Lords Sitting of 25 January 1996

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

Youth Training Allowance
Earl Russell Earl Russell asked Her Majesty's Government:
Why they have not uprated the youth training allowance and the youth training bridging allowance.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, the Government set minimum allowances which are topped up by a significant proportion of training providers and employers. They reflect the future career benefits to be gained from their training.
Earl Russell: My Lords, does the Minister agree that if those allowances are, as he implied, adequate now, they were grossly excessive in 1988? Is he aware, further, that they have caused considerable top-up costs to the Department of Social Security? Will the Government consider transferring responsibility for uprating those allowances to the Department of Social Security, which has an organised uprating procedure?
Lord Henley: My Lords, I do not agree with the noble Earl in his first supplementary question. We have no plans to so uprate the allowances. If more money went into allowances, less would go into training.
As he is aware—though I understand that he feels otherwise—we believe that the policies we are pursuing whereby we seek to prevent young people of 16 and 17 from receiving income support are in their best interests. We provide three possible avenues—education, training or work. I am pleased to say that we now have only around 8 to 10 per cent. who are not pursuing one of those three options.
Lord Molloy: My Lords, does not the Minister agree that the failure to uprate youth training allowances could possibly mean that those not entitled to income support may become progressively worse off? Is that not an unfair situation?
Lord Henley: My Lords, I do not believe that to be the case. Many employers or training providers top up the allowances. Where individuals are in hardship, income support can be available; but we do not believe that there should be general entitlement to it for 16 and 17 year-olds.
Baroness Gardner of Parkes: My Lords, for those of us who are not so well informed, can my noble friend make clear what is the difference between the youth
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training allowance and the youth training bridging allowance? What kind of money is involved in the amount a person receives each week?
Lord Henley: My Lords, the youth training allowance is £29.50 for 16 year-olds and £35 for those aged 17 or over. The bridging allowance, which is £15 a week, is paid to those who are waiting to take up training under the YT guarantee.
Lord Weatherill: My Lords, perhaps I may ask an allied question, and I apologise for not giving the Minister notice. I declare an interest as a trustee of the Prince's Youth Business Trust which over the past 10 years has set up in business around 24,000 young people. They are being severely affected by the phasing out of the enterprise allowance. Will the Minister please look at the situation again? The enterprise allowance will be much cheaper than keeping a young person on the unemployment register.
Lord Henley: My Lords, I appreciate that the noble Lord speaks with extraordinary experience, and I am grateful to him for declaring his interest to the House. It is a valuable interest to society. I am prepared to look at the issue. As the noble Lord said, the matter goes slightly beyond the Question on the Order Paper.
Lord Morris of Castle Morris: My Lords, does the Minister recall that the Government defended the decisions not to uprate the YT allowance as long ago as 1992? They said:
"the current minimum allowances are sufficient to meet the normal requirements of trainees living in the parental home".—[Official Report, Commons, 10/7/92; WA351.]
As the noble Earl, Lord Russell, said, 1988 and 1995 are a long way apart. But in the same column of the same edition of the Official Report the Government said:
"Employers benefit considerably from Government expenditure on YT and are strongly encouraged to supplement trainee incomes wherever possible".
Can the Minister tell the House how many employers did so then, and how many do so now?
Lord Henley: My Lords, I cannot answer the noble Lord's question as to how many employers supplemented trainee incomes then. As regards the present time, two-thirds of trainees are either in paid training or in receipt of the allowance and finding it topped up.
Lord Rochester: My Lords, why are those allowances not uprated on the same basis as other allowances for which the Department of Social Security is responsible?
Lord Henley: My Lords, they are not social security benefits and they should not be seen as social security benefits. I made clear earlier, but I think that this is a point worth making again, so I shall repeat it: if more money goes on allowances, less money is available for training. We have a very good record on training. As I said earlier, something of the order of over 90 per cent.

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of our 16 and 17 year-olds are either in work, in training, or staying on at school or college. In fact, more are staying on at school or college than ever before.
The Countess of Mar: My Lords, can the Minister explain why severe hardship payments for this group of young people increased from 1,669 in May 1990 to 10,988 in May 1994, and is that trend continuing?
Lord Henley: My Lords, I do not know whether the trend is continuing, but it obviously shows that the social security offices are applying those rules in the appropriate manner. However, I can advise the noble Countess—I know that she has advocated this for a long time—that merely giving 16 and 17 year-olds an automatic entitlement to income support would not only be highly expensive, but would not serve their best interests. In fact, I think that fewer people would stay on in full-time education or enter work or training if we were to go down that line.
Lord Stallard: My Lords, the Minister mentioned that £15 is the bridging allowance for a trainee, but does he accept that it does not matter whether it is the Department of Social Security or any other department which pays that £15? Our point is that £15 in 1988 is now worth at least £21.76. Therefore, is it not about time that we accepted that that £15 is inadequate in 1996 and should be uprated, irrespective of who uprates it? According to a dossier from the citizens advice bureau, hundreds of thousands of people are suffering hardship because such allowances are far too low.
Lord Henley: My Lords, the £15 to which I referred is purely a bridging allowance for those waiting to start training—a training that will benefit them. As I made clear, those who are in vulnerable groups and likely to suffer severe hardship will have an entitlement to income support, but we do not think that there should be an automatic entitlement to that support.
Earl Russell: My Lords, the Minister argues that this is not a matter for income support, but why has the youth training allowance been allowed to fall so low that it is topped up out of income support? Has the Department for Education and Employment compensated the Department of Social Security for the charge that it has thereby imposed on its budget?
Lord Henley: My Lords, generally speaking, the figures are more or less above the rates of income support. As I have said, we do not believe that there should be an automatic entitlement to income support, but that it is right that there should be an entitlement to income support for those suffering severe hardship.

RAS: Privatisation Benefits
3.15 p.m.
Lord Bancroft Lord Bancroft asked Her Majesty's Government:
What benefits they expect to accrue to the public sector borrowing requirement from the proposed sale of Recruitment and Assessment Services (RAS).
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): My Lords, the sale of the Recruitment and Assessment Services (RAS) will not significantly affect the public sector borrowing requirement. Privatisation will benefit RAS, freeing it to compete for business in wider markets and offering new opportunities for investment. Existing customers will benefit because, freed from public sector operational constraints, RAS will be better able to improve its services.
Lord Bancroft: My Lords, I am much obliged to the noble Earl for effectively confirming by his Answer that the Government's decision is explicable only in terms of ideology. That is not the Question that I asked. However, is the Minister aware of the disquiet that is being caused by the privatisation (without parliamentary process or discussion) of a main safeguard of Civil Service integrity, however hedged about by contractual conditions? Is he further aware that last year RAS recruited 100 per cent. of the administrative fast-stream entry, the future leaders of the service, and has increased its share of total Civil Service recruitment from 7 per cent. to 11 per cent.?
Earl Howe: My Lords, I very much respect what the noble Lord says. He has wide experience of these matters. We look to privatisation to provide a better service with better value for the taxpayer, consistent with the overall aim of recruiting the right people. There is enormous expertise in RAS in terms of graduate recruitment, as the noble Lord indicated, but recruitment to the fast stream of the Civil Service represents only about one-third of its business. By making that expertise available to the private sector, which RAS cannot do at the moment, we have the prospect of a broader-based business with lower unit costs and better value for customers.
Lord Campbell of Croy: My Lords, does the proposal mean that what used to be the Civil Service Commission will be on offer for sale to private firms? If so, will there be very careful scrutiny of the fitness of any prospective buyers and plenty of time allowed for a necessarily delicate and detailed process, since the commission was widely regarded as having carried out its tasks well?
Earl Howe: My Lords, I stress that I am in full agreement with the underlying theme of my noble friend's question. Recruitment to the fast stream of the Civil Service must be handled with the utmost propriety. I stress also that that principle is in no way affected by the Government's proposals for RAS. Civil servants will remain in control of all appointments. The customers of RAS—namely, government departments—will be closely involved in setting up and managing the contract. Critically, the principle of fair and open competition on merit as the basis of selection will remain entirely unchanged. There is no question of the Civil Service Commission being privatised.
Lord Jenkins of Hillhead: My Lords, does the Minister accept that in the 150 years since the Trevelyan-Northcote report the British Civil Service has

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become one of our most unique and prized national assets, and that the method of recruitment is an essential part of that tradition? Will he speak to his noble friend the Leader of the House and ensure, if this House is to discharge its proper constitutional function, that we have a full debate on this matter before there is any question of irrevocable decisions taking place? Will the Leader of the House—if I may address him directly for the moment—have consultations on this issue with party leaders and the Convener of the Cross-Benchers?
Earl Howe: My Lords, I should he happy to convey the noble Lord's remarks to my noble friend in so far as he has not already heard them, and I am sure that he has. The Government start from the premise that the administration of a recruitment service—that is to say, the operational mechanics of such a service—is not a task which needs to be undertaken by government. However, we recognise fully that appointments to the fast stream of the Civil Service represent a particularly important part of RAS's work. That is why we shall ensure that the Civil Service remains in control of the appointments to the fast stream not just through the terms of the contract with RAS, which will be tightly drawn, but by having civil servants on the panel of assessors.
Lord Barnett: My Lords, is the Minister aware that he has in no way replied to the noble Lord, Lord Bancroft, today or in his article in December? If there is a three-year review of RAS in process, which will not be completed until the summer, what is the point of announcing in advance what the Government propose to do? Judging from the response of the whole of the House to the request of the noble Lord, Lord Jenkins, that there be an early debate on the issue, I hope that the Leader of the House will whisper in the Minister's ear that there is to be such a debate.
Earl Howe: My Lords, I have endeavoured to answer all questions put to me this afternoon. I am sorry if noble Lords feel that I have not done so. I said also in answer to the noble Lord, Lord Jenkins of Hillhead, that we on this side of the House stand ready to listen to representations, and I am sure that we will receive them positively. My noble friend has indicated in my ear that he will be more than happy to have a debate on this subject if that is the wish of the House.
Lord McIntosh of Haringey: My Lords, that undertaking is of course extremely welcome. Perhaps I may declare an interest, as one who was rejected by the Civil Service Selection Board more than 40 years ago and has been profoundly grateful ever since. I should have been a rotten civil servant. Do not the assets of RAS include not just the expert staff but a capital asset in the form of the tests which have been developed over more than 50 years? Even though they may be retained in the ownership of government, how could those capital assets be used for the benefit of the people of this country if privatisation were to go ahead?
Earl Howe: My Lords, the noble Lord has himself drawn attention to a key point, which is that the assets of RAS consist not merely of the staff, to whose expertise I
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have referred, but to the qualifying tests and exercises. They will remain at all times the property of the Crown and in the Crown's control. That is an important control over what RAS can do, alongside the detail of the contract.
Lord Hunt of Tanworth: My Lords, as someone who a long time ago held the job of First Civil Service Commissioner, may I ask the Minister how the Civil Service Commissioners will ensure that a privatised body's natural wish to shave costs will not result in a lowering of standards or the degree of rigour of the tests, without themselves undertaking a degree of monitoring and second guessing which would themselves negate the whole object of the privatisation?
Earl Howe: My Lords, the strict requirement that fast stream recruitment to the Civil Service must he based on merit in fair and open competition will form the heart of the contract with RAS. Adherence to that requirement will be the subject of a periodic independent audit. If the requirement is not met, then RAS would lost the contract. I stress that standards of probity and impartiality will not be compromised.
Lord Campbell of Alloway: My Lords, does my noble friend accept that it is a little difficult to understand what positive advantage would accrue to the Civil Service as a result of this proposal?
Earl Howe: My Lords, the Civil Service, which is, after all, the customer in this exercise, has been consulted closely throughout. It will be involved closely in drawing up the contract and in monitoring it as it proceeds. I feel that the Civil Service will be able to control closely how RAS performs in the future.

Council of Ministers: Voting Statistics
3.25 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether they will state how many times in votes by qualified majority at meetings of the Council of Ministers during the period since the Single European Act came into force up to the end of 1995 (a) the United Kingdom has been in the minority and (b) Germany and France voted differently from one another.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, there have been two changes of voting system since the Single European Act. Voting figures for the period between the Single European Act and the Maastricht Treaty can only be obtained at disproportionate cost. Of 261 votes carried in the Council by qualified majority during the period 6th December 1993 to 31st December 1994, 197 were passed unanimously. Of the remaining 64 votes passed, Britain either voted against or abstained on

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21 occasions. During this same period Germany and France voted differently on 18 occasions. Final statistics for 1995 are not yet available.
Lord Bruce of Donington: My Lords, I am most grateful to the Minister for her reply. Does she agree that the figures she has been kind enough to give, covering the three years to the end of 1994, indicate that, despite all the Government's protestations of acting with independence and, indeed, courage from time to time, by and large they seem to have gone along with practically everything that has come before the Council of Ministers? That means, for example, that in the three years ending 31st December 1994, during which time 4,850 items of legislation were passed, for all its protestations of independence and sole judgment, the UK rode along with the rest of Europe. Do the German and French figures indicate that in the overwhelming number of instances the Elysée Treaty of 22nd January, 1963, by virtue of which right down to senior civil servant level Germany and France agree beforehand what would be their attitude at forthcoming Council meetings, seems to have been very effective indeed?
Baroness Chalker of Wallasey: My Lords, at times I become a little weary when the noble Lord thinks that there is a plot in all of this. We will vote in favour of something only if we agree with it. If we disagree with it strongly, we will vote against. If there is a reason to abstain and not to vote against, we will do that. The myth of a Franco-German stitch-up in Europe, to which several noble Lords come every now again, is just as unfounded as the myth of the UK's isolation in Europe. When the noble Lord goes on to talk about other matters, including quoting more than 4,000 items of legislation, let us get one thing absolutely straight on the record. When I answer questions, I answer them explicitly, as did my noble friend Lord Chesham when he answered my noble friend Lord Brougham and Vaux explicitly about acts of legislation, and said:
"These figures do not include acts of day-to-day management where validity does not exceed a few weeks".
That is why the figures in the Commission's annual report are higher than the Celex database. We only include acts that are meaningful. That is why we do not go along with all things only when they are in Britain's best interests.
Baroness Elles: My Lords, does my noble friend agree that, contrary to the deduction of the noble Lord, Lord Bruce of Donington, it is largely a tribute to the British Government and civil servants negotiating on behalf of British interests that we have so few times been in a minority in a qualified majority vote? Will she confirm that both Germany and the Netherlands, among others, have lost far more often in majority voting than has the United Kingdom?
Baroness Chalker of Wallasey: My Lords, I believe that my noble friend is absolutely right is saying that Germany and the Netherlands have lost far more often than the United Kingdom in majority voting. She is also right in pointing out that often, while agreement may
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not be reached on an issue at the first or second reading, so to speak, when it is thoroughly argued out it is frequently agreed by unanimity, the sense of the case having been fully explored. The need to explore cases fully accounts for much of the work not only in the Council of Ministers but also in COREPER.
Lord McNally: My Lords, does the Minister agree that any rational analysis of the figures before her show that most of the countries behave similarly and that statistics about Germany, the Netherlands, France or Britain being isolated are roughly the same? Does she agree that it is only the chip-on-the-shoulder approach to Europe that brings the conspiracy theory forward? Can she provide figures showing the number of times the noble Lord, Lord Bruce of Donington, has asked Questions on Europe in respect of which he has been profoundly isolated from his Front Bench?
Baroness Chalker of Wallasey: My Lords, I have lost count of the number of times that the noble Lord, Lord Bruce of Donington, has been out of agreement with his Front Bench but I do not want to penalise him unduly. He is a good friend in personal terms and I appreciate that very much.
The noble Lord, Lord McNally, is right in that it is arguing out the issues, in particular what lies behind the apparent issue, that is sometimes trumpeted by certain members of the press. That is essential and while I do not have to hand all the figures the noble Lord would like I can assure him it is a matter we watch with extreme care.
Lord Pearson of Rannoch: My Lords, can my noble friend tell the House—
Noble Lords: Next Question!
The Lord Privy Seal (Viscount Cranborne): My Lords, I hesitate to interrupt what I know has been an extremely interesting series of exchanges. As always, I am in the hands of the House. I am conscious of the clock and we have a fourth Question which will be at least as interesting. Perhaps the House feels that it is time to move on.
Noble Lords: Hear, hear!

Bosnia: Deployment of NATO Troops
3.32 p.m.
Lord Monson Lord Monson asked Her Majesty's Government:
Whether it is the case that NATO troops in Bosnia will not be deployed either to protect UN teams investigating suspected massacre sites or to prevent the destruction of incriminating evidence by Bosnian Serb forces.
Baroness Chalker of Wallasey: My Lords. IFOR will provide security for UN teams visiting alleged grave sites. It will conduct foot patrols and aerial reconnaissance of sites and report any suspicious

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activities that might suggest tampering. These activities should ensure that sites are not disturbed until the tribunal has been able to investigate them.
Lord Monson: My Lords, I am grateful to the Minister for that Answer. It clarifies considerably the position of IFOR and Admiral Leighton Smith, about which there have been conflicting reports. Does she agree that every effort must be made to uncover what appear to be the worst atrocities on European soil for 50 years, in which it would seem that more civilians and POWs have been murdered in cold blood than Polish officers were massacred at Katyn?
Baroness Chalker of Wallasey: My Lords, the noble Lord is right, and every effort will be made in this regard. At a meeting on Monday this week in Sarajevo the commander of the NATO peace implementation force, Admiral Leighton Smith, and the chief prosecutor of the International Tribunal on War Crimes in the former Yugoslavia, Richard Goldstone, agreed the procedures to co-ordinate their respective missions. That is a good step forward. I assure the noble Lord that IFOR is very sensitive to this issue and is prepared to help the tribunal in whatever reasonable ways it can.
Baroness Blackstone: My Lords, does the Minister agree that it is of the utmost importance to secure the release of the many hundreds of prisoners who are still being held by all sides in this conflict. Since the deadline for their release has passed, will she tell the House what steps are being taken to secure their release? Is NATO supporting the UN in that task?
Baroness Chalker of Wallasey: My Lords, the answer to both questions is yes.
Lord Mayhew: My Lords, does the Minister agree that her answers are further evidence of the admirable work that IFOR is carrying out?
Baroness Chalker of Wallasey: My Lords, IFOR is doing excellent work and is also co-ordinating with the Higher Representative, Carl Bildt, very well. We know that the early weeks were difficult, in particular prior to 19th January, but the progress made is significant and it is palpable when one is in the zone.
The Earl of Onslow: My Lords, if those in IFOR know that there is a warrant out for someone's arrest, will they arrest that person, and, if not, who will?
Baroness Chalker of Wallasey: My Lords, IFOR can provide the security. It does not have the power of arrest. It must report any suspicious activities, and it will do that. It is then up to the war crimes tribunal and its chief prosector to make sure that persons who should be arrested are so arrested.
Lord Avebury: My Lords, did Judge Goldstone accept the offers made by IFOR with unqualified satisfaction? Will the Minister give an assurance that, if he goes hack to IFOR and asks for additional
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measures of protection or control, they will be carefully considered and a report will be made by the Minister to the House about those demands?
Baroness Chalker of Wallasey: My Lords, I understand that Justice Goldstone has said that he is satisfied with the level of support offered by Admiral Leighton Smith. He has agreed that the IFOR support should be provided within the limits of its mandate and its resources. If there is any need for further assistance, the parties will be consulted. If there were any specific news to tell your Lordships of course I should seek to do that.
Baroness Blackstone: My Lords, I am sorry to come back but "Yes" is not an answer to what steps are being taken, as I am sure the Minister will agree.
Baroness Chalker of Wallasey: My Lords, I apologise to the noble Baroness. I thought that she had asked two poignant questions and that we were both on the same wavelength. I believed that she asked me about the steps being taken to assist the investigation. Am I right?
Baroness Blackstone: My Lords, no; I asked about securing the release of the many hundreds of prisoners who are still being held in Bosnia.
Baroness Chalker of Wallasey: My Lords, I apologise to the noble Baroness. The steps being taken arc the responsibility of the High Representative and of IFOR. The way in which they are pursuing these matters is not known to all of us, but they are watching for every sign and following up signs in order to find out where people might have been taken. As regards those whom we hope are still alive—the prisoners behind the lines—it is a matter of negotiation, which is being pursued daily, if not hourly. We know that a large number of Serbs and Croats could be exchanged for Moslem prisoners, but working that out must be done on the ground, and it is being pursued in the most practical way.

Broadcasting Bill [H.L.]
3.38 p.m.
Lord Strathclyde: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Inglewood on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Broadcasting Bill [H.L.] has been committed that they consider the Bill in the following order—

Clauses 1 to 28,

Schedule 1,

Clauses 29 to 62,

Schedule 2,

Clauses 63 to 67,

Schedule 3,

Clauses 68 to 87,

Schedule 4,

Clauses 88 to 90,

Schedule 5,

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Clauses 91 to 93,

Schedule 6,

Clauses 94 to 95,

Schedules 7 and 8,

Clauses 96 and 97.—(Lord Strathclyde.)

On Question, Motion agreed to.

Family Law Bill [H.L.]
3.39 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.]
Clause 14 [Financial arrangements]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 153A:
Page 8, line 21, at end insert ("and (c) to enable property adjustment orders to make provision as to pension benefits").
The noble Baroness said: In moving Amendment No. 153A I shall speak to the substantive Amendment No. 203C and to the consequential Amendment No. 212AC, which stands in my name and the names of the noble Baronesses, Lady Seear and Lady O'Cathain, and the noble and learned Lord, Lord Simon of Glaisdale.
I do not propose to describe the amendments in detail. If the Committee agrees, I shall instead try to argue the issue in the hope that the amendments will attract the support of the entire Committee. When we discussed the Pensions Bill last spring we tried to make more equitable the financial provisions of divorce. Now we are dealing with a family law and divorce Bill in which we are trying to make more equitable the financial provisions of pension.
Why do we need to revisit the issue? Last spring there was wide agreement in the House, when we discussed pensions, that they were part of matrimonial property. The husband may have earned it—let us assume for these purposes that he is the pension holder—but the wife, in bringing up the children, supporting the husband and taking a range of part-time jobs to add to the family budget, has contributed her share too. Until last spring, however, even though a pension might be the largest financial asset in the marriage, she was entitled to none of it.
Clearly, when you are trying to settle financial matters at the time of divorce, if you ring-fence as untouchable the largest single asset then possible injustice follows. And it did. Countless women wrote to your Lordships—especially to the noble Baroness, Lady Young—describing the destitution into which they had been plunged.
In the Pensions Bill, your Lordships decided two things. First, that courts must take pensions into account on divorce and, secondly, that they could do this either by offsetting it with other assets, if there were enough of them, or by earmarking, that is deferred maintenance. splitting the flow of pension income when it comes to be drawn at retirement. I am sure we would all like to pay tribute here to the noble Baroness, Lady Young, who fought so stoutly for an amendment that attracted the entire support of the House
Noble Lords: Hear, hear!
Baroness Hollis of Heigham: It was also agreed at that time that earmarking or deferred maintenance should be paid through the pension fund, rather than separately by the husband, to avoid pensioners having to pursue the issue through the courts.
These were good and valuable changes made by the whole House which were especially helpful to older women—women in their late 50s—who have too often written to us to say that they have been traded in for a younger model.
But deferred maintenance or earmarking has, as we now know, two great drawbacks. The first is that the wife's pension maintenance depends on the husband. It is a gamble. If he retires early she has less income; if he retires later she has to wait longer for it; if he dies early, she may get nothing; and when eventually after retirement he does die, she will get nothing.
Let us say that he is three years older than she. He dies at 80 and, unfortunately, she dies at 85. For 15 years after reaching pension age she will have had an adequate pension. Then, when she is 77, he dies. For the last eight years of her life her pension have vanished, because he has gone, and she will be forced onto income support at a time when she is increasingly frail, needs more home help, extra heating and perhaps more nursing. A frail, elderly lady is forced into penury, through no fault of her own, because deferred maintenance—though suitable for many couples—is a lottery on his life. That is no way to live.
The second difficulty with deferred maintenance is precisely that: it is deferred until retirement. A couple may divorce in their 40s, and that means that for the next 40 years their financial lives remain entangled, even though it may have been clean and decent for both of them to have had the opportunity of a clean break. With deferred maintenance they cannot do so. They have to keep track of each other and the pension scheme has to keep track of them both.
May I urge a third option which does not just offset assets against each other, if you are rich enough, and not just defer maintenance, which splits income at retirement if you are elderly enough. We need the third option of pension splitting, that is splitting the capital at the point of divorce, so that each party has the core of a pension on which to build while they continue in work, keeping both of them off poverty in old age and allowing both of them to get on with the rest of their lives. It is clean, it is decent, it is simple and it is fair. It is supported by every organisation that I am aware of which has an interest; by the entire pensions industry,

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by accountants and actuaries and professional associations, by business and industry led by the CBI, by the law societies and family solicitors societies, by organisations representing the elderly, such as Age Concern, and organisations representing women, from business and professional women's organisations to Fair Shares and the Mothers' Union itself. If then it is fair, and if it is, as I have suggested, so widely supported, why did the Government then resist splitting pensions? The Government gave, basically, two financial arguments. But those arguments no longer apply, as the Government concede.
The first argument was that it would cost the Government, as employer, £500 million a year if the departing spouse took her share of the pension out of an unfunded Civil Service scheme. The way to deal with that real problem is that in any unfunded scheme—the Civil Service scheme, for example—both fractions of the pension remain within that scheme and are not taken out until, or if, the pension earner transfers out or retires. That way there is no real cash outflow and, therefore, there is no cost to government as employer. The problem goes away. In good schemes—as the Civil Service scheme is known to be—most people would wish to keep their pensions there. Such a small restriction on Civil Service and unfunded schemes is a small price to pay for broad justice for the rest of our working people who are in occupational and private schemes. That was the first of the Government's argument, and we can show a way of addressing it which produces no cost to government as employer.
The Government's second argument was the cost to the Government as tax raiser. The Government, in this House, argued that tax allowances and fiscal drift would in 2037 cost —300 million. By the time it went to the House of Commons, the Treasury figures had become —200 million a year. Now the Treasury has conceded, in its Written Answers to myself on the 9th and 15th January, and in the House of Commons on 15th January, that in the year 2020–25 years from now—the cost to the Treasury in loss of tax will be £80 million, offset, says the Treasury, by savings of £70 million in income support, together with something in the region of £10 million in court costs and legal aid. In other words, costs of £80 million, savings of £80 million, cost to the taxpayer nil. Those are not my figures but Treasury figures, and I apologise if they are very different from the Treasury figure of £300 million which was bandied around last spring. The Treasury, on its own information, now accepts that the true cost to public funds is nil.
Last spring we did not, as some of us would have liked to do, press this amendment to a vote because we respected Treasury information that has subsequently turned out to be—how can I put it?—less than complete. However, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Mackay of Ardbrecknish, did say at the time that we would have a second occasion on which to revisit this issue—that is to say, this Bill—and my faith in them, if not in the Treasury figures, remains unshaken.
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I would expect pension splitting to produce some technical difficulties with SERPS and GMPs, but we have drafted amendments which could possibly overcome such difficulties. No one ever said that pensions would be easy. It is technically difficult—we all accept that—and we accept that any amendments we have drafted may be flawed. However, we have overcome the two major arguments that the Government used to stop us going down that route last spring. We now know that the remaining arguments are lesser and technical. They can and should be overcome and they can and would be overcome if the political will was there. If the department were asked to resolve those difficulties it would do so. I hope that that is what Members of the Committee will say today.
The amendments are not party political; indeed, I believe that there is widespread support for them in the Committee. Certainly, Members of all parties in this Chamber have expressed their support. They do not favour women over men or men over women. The provision would apply equally to both. Many men would prefer to keep some present assets—savings—and part of their pension rather than lose all their present assets to keep a pension which they may never live to enjoy. Moreover, the provision would not privilege divorce over marriage. That is an argument to which I shall return if necessary. Instead, it would stretch a pension that normally covers one household to cover two, thus saving us all money on benefits in the process.
We are talking about a set of amendments which are fair, decent, clean and simple. Indeed, it represents what couples and the courts want as an option; it is what every professional organisation wants; and, on the Treasury's own figures, it need cost taxpayers nothing at all. I truly believe that Amendment No. 153A is a win-win amendment. We do not always have the chance to do what is right, fair, popular and free. We can do so today. In so doing, we will float thousands of elderly people off the poverty line in old age. I beg to move.
Baroness O'Cathain: I rise to speak to the amendment to which I have attached my name. One of the most compelling issues as regards the amendment is the fact that it is fair and just, as the noble Baroness said. Moreover, from the point of view of business, it would also introduce a system whereby there would be a reduction in administrative costs. It would make the organisation of pension funds as regards trustees that much simpler in the case of divorce. The amendment does not actually support divorce; indeed, it supports the situation which arises after a divorce where there is a break-up of the assets.
The two ways currently available in the case of a divorce have their problems. The first is that pension rights remain undisturbed but the value is taken into account in the allocation of assets and the second is the method of earmarking part of the pension for payment to the time hence when it actually comes into effect. However, the proposed method of splitting the pension is really the most sensible and easy way.
In the case of earmarking, the arrangements require pension scheme administrators to store and update information about a non-member spouse throughout the

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period up to retirement. Incidentally, I should like to make the point that it does not necessarily mean that it will be the woman who will benefit. It could well be that the woman is the higher earner in the case of a divorce—indeed, such situations do arise. That period could he 20, 30 or 35 years. The administrators must then implement the split of the pension and the lump sum payments and make two monthly payments rather than one. While employers, especially the CBI, welcome the Government's willingness to take account of the employer's administrative costs in earmarking arrangements (the costs are borne by the divorcing couple) those extra burdens in terms of costs are quite unhelpful.
In effect, splitting would mean a one-off administration cost—that is, the calculation and implementation of the transfer payment—and that should not be too difficult. Employers generally regard that as preferable to ongoing record keeping, and so on. Employee relations problems may develop when scheme members find that they do not receive from their employer the full benefit that they expected because of payments direct to a former spouse. That situation would be obviated by the amendment. Indeed, such problems could be exacerbated where a divorce has been bitter. Employers are concerned to avoid involvement in the personal affairs of their employees and, unfortunately, earmarking necessitates such involvement. Again, splitting would allow the employer to make a single payment which would mean an end to contact with the employee's former spouse. Such an arrangement should minimise the danger of employee relations difficulties.
The amendment should also have significant advantages from the perspective of divorcing individuals. Splitting better satisfies the common desire to achieve a clean break, as the noble Baroness said. I say that because each former partner would have his or her own separate assets, whereas earmarking only comes into effect when the scheme member chooses to retire. That may not occur at a time convenient to the former spouse who may not want to begin receiving such payments at an earlier time or, indeed, may have needed such payments far sooner than when the spouse who is receiving the main pension actually received it.
The provision of splitting gives freedom both to the employer and to the individuals concerned. On that practical basis alone, I believe that the proposal has much merit. Indeed, if we add that to all the merits outlined by the noble Baroness, Lady Hollis, I believe that the amendment is one that the Government should take away and act upon.
Earl Russell: I should like to join the noble Baroness, Lady Hollis, in the tribute that she paid to the noble Baroness, Lady Young, for the distinguished work that she has done on the subject and for which we are all extremely grateful. I should also, if I may, like to extend that tribute to the noble Baroness herself for the work that she carried out on the Pensions Bill. Indeed, I am also most grateful to my noble friend Lady Seear in that respect.
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Members of the Committee will have observed that I am not my noble friend Lady Seear. Unfortunately, my noble friend is, for reasons beyond her control, unable to be with us until some time around 5 p.m. this evening. Therefore, I have been appointed understudy and it is in that capacity that I now appear before the Committee.
We are discussing an immensely complicated subject. There is one major difficulty which I do not see how we can get around whatever we do; namely, that there is not enough to go around. However, I can see no reason whatever why one party—and I agree with the noble Baroness, Lady O'Cathain, that there is no reason why it should necessarily be the woman—should suffer all the hardship. There is a case for some fairness even in hardship. Therefore, the argument for some form of splitting is a very strong one. Indeed, in terms of moral equity, it is very hard to answer.
The problem that we have to consider is how that ought to be done. I do not believe that I need to repeat the criticisms of the earmarking procedure which both noble Baronesses developed most fully. But I must say that I particularly like the way that the amendment tackles the problem. It seems to me that it follows the principles of drafting set out by the noble Lord, Lord Renton, in the Renton Report, to which I have often paid tribute. It would allow for the statute to state a general principle and for the application of that general principle to circumstances which will be infinitely various to be a matter for the court.
One pension scheme is not like another. Moreover, as the noble Baroness, Lady O'Cathain, pointed out, one retirement age is not like another. It is one of our big difficulties that the retirement of one partner is no longer under the influence of the other after divorce. That is probably the biggest reason why we need outside involvement. There will be immensely variable situations; for example, the numbers of dependants, who may or may not be children of the marriage; capital; property; and inherited resources. Moreover, there are quite severe complications as regards valuing art collections for probate.
Therefore, it will be necessary to consider each case on its merits. If we attempt to legislate in too much detail, we shall run into all the problems that are involved in laying down a formula. I shall not bore noble Lords with my views on those matters. I support the amendment.
I am pleased that the noble Baroness, Lady Hollis, mentioned the saving of income support that results from the division of pensions. The amount of income support spent on topping up the state pension is considerable. I suspect that the amount spent in that regard in the age group 60 to 65 did not form part of the Treasury calculations.
I received a written answer this morning about the number of people over the age of 50 who have been out of work for more than 10 years. The figure is 2.5 million. There will also he a saving of income support in regard to that group. Many of them will have a spouse who is already beyond pension age. I should like to know whether the Treasury has taken that fact into account and reworked the figures and whether the saving is greater than it would otherwise have been.

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Before returning to this matter at Report, I should be grateful to receive clarification; but in the meantime I support the amendment.
4 p.m.
Lord Simon of Glaisdale: As my name is on the amendment I should like to congratulate the noble Baroness, Lady Hollis, on the amendment and on the speech that she made in support of it. I should also like to congratulate noble Lords who also spoke with such knowledge and intelligence.
Many aspects of marriage fall for consideration under the Bill, but one which is particularly relevant to the amendment is the concept of the norm of traditional marriage as a way of working out the different contributions made by husband and wife, operating co-operatively by way of differentiation of effort in marriage.
The wife inevitably is the child bearer and usually the home-keeper. By reason of those activities, even if she goes back to work, she is at an economic disadvantage. By performing those functions she releases her husband to obtain an economic advantage. Frequently his emolument these days will be paid in part in the form of a pension for work he has done but for which his wife has released him. That is recognised by the widow's pension that is present in most occupational pension schemes. The wife, having made that co-operative effort in the division of labour, is entitled in justice to enjoy that pension. It would be an act of simple injustice if she were to be denied it, without compensation, and if it were to be carried away for the benefit of another woman. After all, divorce is a licence to remarry.
I use the words "without compensation" because the situation is solvable, though frequently with difficulty, when there are sufficient other assets to compensate the divorced wife for the loss of her widow's pension. However, that is not possible if there are insufficient other assets. In those circumstances, if we are to consider justice at all it is essential that there should be some way of securing for her the widow's pension, the earning of which became due to her at negation.
The problem was serious enough under the 1969 Act, but in that case the unilateral repudiation of marriage could take place only after five years. Minimal use has been made of that provision. Under this Bill the situation is far more serious: there is unilateral repudiation simply on one year's notice. The problem is infinitely exacerbated.
The noble Baroness, Lady Hollis, and the noble Baroness, Lady Young, fought valiantly on this issue when we debated the Pension Bill. We got nowhere. We were told that the problem was too complex, which we interpreted as meaning that the Treasury thought it would cost £300 million in loss of income tax. The noble Baroness and the noble Earl on the Conservative Benches have dealt with that aspect of the situation. The problem would be largely solved if one looked at the figures in the way they did under the amendment. The noble Baroness proposes a simple act of justice. There should not be unilateral repudiation of marriage merely
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on one year's notice, without cause and without facing the injustice that requires solution. I fully support the amendment and the remarks made by the noble Baroness.
Lord Stoddart of Swindon: I support the amendment for two reasons: it is eminently sensible and it gives me the opportunity of supporting my Front Bench on at least one occasion in relation to the Bill.
At the point of divorce it is right to see that the husband and wife are treated fairly. The noble Baroness, Lady O'Cathain, emphasised that point. My noble friend Lady Hollis assured me that the amendment would be equitable as between the sexes, husband and wife.
I am glad that the noble Baroness was able to deal with the Treasury opposition to this amendment concerning pensions on divorce. However, it is quite outrageous that the Treasury should use fiscal arguments to attempt to abort a measure which is so reasonable, sensible and fair. I hope that we shall not hear today that, because of the fiscal implications, a measure which is so sensible, fair and reasonable should not be agreed to.
I wish to ask only one question. What happens where there are second, third and even fourth marriages? I assume that the accrued pension contributions will then be split according to the length of that marriage. My noble friend Lady Hollis nods her head. I am glad that that is so because I believe that that is the only way it can be done.
I support the amendment. I feel quite confident that, whatever the Government say, the whole House—or most noble Lords—will wish to support it.
Lord Boyd-Carpenter: I am sure that my noble and learned friend the Lord Chancellor has noted that all speeches so far have been in support of the amendment. I wish to say at once that I, too, fully support it.
It is clear that the splitting of pensions is practical. There are complex details to he resolved. However, I think that I know the noble and learned Lord the Lord Chancellor well enough to believe that he is not the sort of person who relies on technical small details of this kind but is well able and well suited to understand the opinions held throughout the Chamber on matters of considerable importance like this. I very much hope that he will not disappoint those of us who do not wish to see this admirable remedy for certain troubles and difficulties frustrated. I hope that he will feel that it is up to him to deal with any minor technical problems that arise and that he realises that your Lordships' House in a matter of this kind is a very appropriate judge of the merits.
I add one further comment. I do not know whether my noble and learned friend has had time to read the clear report of the Law Society—it is not a body unduly tainted by sentiment—which has considerable knowledge of the practicalities involved. In particular, in the document that the Law Society circulated support is given explicitly to Amendment No. 203C which is grouped with this amendment. Perhaps I may invite the attention of my noble and learned friend and the Committee to the beginning of the Law Society's opinion. It states:

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"The Law Society supports this amendment, because it provides a better way to ensure that women who previously had a good standard of living do not suffer poverty following retirement because they are unable to benefit from the former husband's pension".
That seems to me a conclusive consideration. Members of the Committee will be well aware that in the affairs of today for many married couples the husband's pension is the main, almost sole, source of income apart from current earnings. The tendency has been—I speak with some experience having been Minister of Pensions and National Insurance for a number of years, as some Members of the Committee may recall—that for a considerable number of families the husband's pension is the main support for a couple in their old age. It seems absolutely right from the arguments so well put, if I may say so, by the noble Baroness, Lady Hollis, that where there is a divorce, unhappily and unfortunately, the pension should be split and there should be power in the relevant authorities to ordain an adequate and sensible splitting.
I hope that the noble and learned Lord the Lord Chancellor, with his very great knowledge of these matters and his humane sympathy with human problems and difficulties, will see his way to accepting the proposals contained in the amendment, if necessary at a subsequent stage of the Bill introducing any minor and technical repairs which may be necessary.
Lord Acton: The noble and learned Lord, Lord Simon of Glaisdale, described the amendment as a simple act of justice; the noble Baroness, Lady O'Cathain, described it as practical; and the noble Baroness, Lady Hollis, described it as clean, decent, simple and fair. I regard the amendment as so obviously sensible that I, too, support it; and I very much hope that the noble and learned Lord the Lord Chancellor will see his way to agreeing to it.
4.15 p.m.
Lord Dean of Harptree: I support the amendments in principle. I shall be extremely brief because the main arguments have been effectively deployed already in all parts of the Chamber. As the noble Baroness, Lady Hollis, said, there is little doubt that the Pensions Act 1995 was a big step forward from the previous position. However, as one reflected on that position, it seemed clear that it did not go far enough. The earmarking has definite difficulties—this is not the only difficulty—in particular for the older divorced woman, and it can create uncertainty.
When we discussed the prospect of a clean break option in debate on the Pensions Bill, there appeared at that time to be a number of considerable difficulties which had not yet been overcome. Some were technical, some related to costs. It appears from what has been said in the Chamber this afternoon, and from the briefing material from the Law Society, the National Association of Pension Funds Limited and others, that many of those difficulties have now been removed. They have been resolved through further discussions, including, of course, the matter of costs which is clearly always an important factor when one deals with issues like the vast expenditure involved in the social security budget.
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The National Association of Pension Funds Limited has stated that the clean break would be, "an inexpensive option". If the difficulties have been removed, and the cost implications are much less than appeared at one time, I hope very much that my noble and learned friend the Lord Chancellor will be prepared to give sympathetic consideration to the principle underlying the amendments. It may well be that the amendments are not technically correct. I shall he quite content if my noble and learned friend says that he is prepared to consider seriously the points put from all sides of the Chamber and that if he is not satisfied with the details of these amendments he will bring forward government amendments at Report stage.
Baroness Hamwee: I support the amendment from a slightly different perspective. The noble Baroness, Lady O'Cathain, mentioned the support for marriage which is absolutely fundamental to the Bill. I know a couple who are not married, the man rather older than the woman. They have been together a long time and it is clear that their relationship is stable. I wondered why they were not married. I discovered recently that it is because of anxiety for the wife who is also older than the female partner in the current relationship. There is anxiety about her loss of pension rights. There could be nothing more moral and more in support of relationships as they are than to pass the amendment and allow three people who find themselves in that situation to rectify matters.
Lord Marsh: There are strong, fundamental disagreements among us in relation to the Bill, but there is virtually no disagreement on the amendments. That is significant. It is understandable because there can be no logic in differentiating between pensions and other matrimonial assets. It is impossible to do that in logic.
It has been said that there are technical problems which would arise from the amendment. That is true. However, as someone who has spent many years in the pensions industry, I venture to say that the problems are not insoluble and are certainly not fundamental. The change is long overdue on the grounds both of logic and of compassion. The time has now come when Ministers should overrule the actuaries on the subject.
Lord Milverton: I hope that if the noble and learned Lord the Lord Chancellor is not able to accept the amendment as it is, he will at least give it due consideration. It has great support and, as was said by one noble Lord, we know him as an understanding person, concerned about human relationships, especially marriage and people's rights in the breakdown of marriage. I hope that he will be able to give a satisfactory answer to the amendment.
Lord Boardman: I wish to support the amendment and illustrate it with a short example of which I am well aware. A civil servant who had been married for many years divorced his wife and married a young second wife. He died. His young second wife then became entitled to the pension. She was an honourable person and did her utmost to disclaim it; she asked the Civil Service to pass the pension benefit to the first wife to whom the civil servant had been married for many years. She was unable

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to do so. The second wife then arranged a whole series of deeds of covenant to ensure that the first wife received what she rightly considered her due.
The rules in regard to Civil Service pensions may have altered, since that was a few years ago, but it is an illustration of the need for a change along the lines of the noble Baroness's amendment.
Lord Williams of Mostyn: Divorce is dismal. All divorce reflects human failures. The question therefore arises: what is to be done about the financial assets of the marriage. As the noble Lord, Lord Boyd-Carpenter, rightly said, the pension fund is either the greatest matrimonial asset or the second greatest. It is properly to be seen as a joint asset. It has been earned either directly or indirectly by both parties. The wife is fully entitled, I submit, in justice though not at present in law, unless and until this amendment takes effect, to her full part.
In the majority of cases—although not all, as the noble Baroness, Lady O'Cathain, said—at present the wife is left in a dependency which is indecent and unnecessary. I believe that there is no argument in principle against the thrust of the amendment and that any technicalities are not beyond the ingenuity of the human mind to resolve.
Lord Pearson of Rannoch: I too wish to support the amendments and to congratulate all Members of the Committee who have spoken so compellingly in favour of them. In lending my support I should declare a rather personal interest. Sadly, I am in the process of agreeing a financial settlement in divorce proceedings at the moment. A quite substantial part of my assets is represented by my personal pension fund. I believe that it is called a self-invested personal pension plan. It seems obviously fair, fair beyond peradventure, that my wife should in future be able to share in that fund and in the income arising therefrom. The amendments seem just as persuasive to me, even in cases where the pension is not the main asset.
Although it is not strictly the position in my own case, I wish to mention a situation which has perhaps not been fully exposed in the debate so far. It is that there must be many divorce settlements where the pension of one party represents such a substantial share of the joint wealth of both parties that, if it is not possible to split the fund and income, as proposed by the amendments, the family home may have to be sold, to the disturbance and therefore the detriment of the children who might otherwise continue to live where they have been brought up.
The amendments are not prescriptive. They would give the court the power to allocate this important asset either as agreed between the parties or as seems appropriate to the court. It appears to me that the case made by all other speakers is completely watertight, especially now that the dread hand of the Treasury has been so skilfully removed by the noble Baroness, Lady Hollis. I should he interested to hear anything that my noble and learned friend the Lord Chancellor can conceivably think of to say against the amendments—even acknowledging his considerable acumen. I very much hope that he will not employ his talents in that way.
The Lord Chancellor: That sounds slightly like a challenge and there is nothing that brings one forward quite like a challenge. I understand and fully sympathise with a great deal of what has been said about the amendments. I have sought to study the detail and have not found the amendments self-evident in their application, but I have no doubt that we can consider them later. They are quite complicated and I find it difficult to understand the main amendment and how it would work. If that is to be achieved, the Committee would need to decide matters of policy which go outside what is covered in the amendments.
The noble Lord, Lord Marsh, said that the pension is an asset just like other matrimonial assets. Of course, in a sense, that is true, but in another sense it is rather a special asset. The reason for that is that, generally speaking, the pension is not assignable. It is possible for a husband and wife between them so to arrange their property disposition from the point of view of tax as to minimise the tax burden on the couple. In the ordinary course most property assets are capable of being held jointly or in such proportion as the parties may decide.
However, that is not true of a pension. The pension is not assignable. That is the reason for the example given by the noble Lord, Lord Boardman, when the second wife—upright spirit that she must have been—generously wished to give the former wife a share of the fund which had been accumulated during the first marriage. However, although she was a beneficiary of that pension under the law, much as she would have liked to do so she could not assign it to anyone else. Therefore, the only way in which she could handle it was to give deeds of covenant out of the money that was payable to the former wife. Thus the pension is different in that respect, and it is quite an important respect.
Let us as take as an example a case where the husband is the earner and the wife has fully contributed to the family but has not earned a separate income. The only income coming into the home is the husband's salary during his working time, and then his pension when his working time is finished. There is no way in which the parties can divide that amount between them in such a way as to make any part of the husband's income the income of the wife for tax purposes. This is a fiscal point, but a very general one. It is part of the structure of our tax law as it is. The same is true of a pension, as my noble friend Lord Boyd-Carpenter, with his great experience of these matters, knows. The result is that the husband and wife between them, while they are married, can do nothing to reduce the total tax burden arising as a result of the payment of a salary during working time and the pension after retirement.
If a power of this kind is granted, on divorce that will alter the matter and give rise to two separate pensions, which will therefore be subject to tax separately thereafter. The total tax burden on the couple will therefore be reduced, which from their point of view is eminently a good thing. But there is no way in which they can reach that situation except through this kind of power. Thus, an incentive to divorce would, from that point of view, he created. That is certainly the case. If it is done simply in this way, it will have this effect—

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assuming that the tax regime remains as it is, which is an important assumption that I am making. If a couple are nearing pension age and the pension is substantial, a way of reducing their total tax burden would be to divorce and split the pension fund, and then to remarry, with the result that each would have a separate pension. It is a way of overcoming the difficulty of the non-assignability of pensions.
4.30 p.m.
Lord Marsh: I am most grateful to the noble and learned Lord for giving way. For very many years until relatively recently, when a wife's unearned income was taxed at the rate of her husband's earned income—I speak from personal experience—getting married was an extremely expensive business. I managed to wipe out my wife's unearned income in the three minutes of the service in Marylebone Registry Office—which she did not appreciate! We still got married, and so do most people in those circumstances.
The Lord Chancellor: That is absolutely right in that case. All I point out, and wish the Committee to have full acquaintance with, is that divorcing, if this particular power is granted, will have exactly the same effect in reverse. It will enable the tax burden of the individuals in the circumstances I mentioned to be reduced.
Lord Pearson of Rannoch: Would my noble friend give way? Surely that is always the case. It is the same with all the other assets. Divorce can be very tax efficient. But surely my noble and learned friend is not suggesting that that is a reason for it.
The Lord Chancellor: That is not so true of other assets. If a couple want their income to be tax efficient, they have the possibility of so arranging the assets between them as to maximise the tax allowances. The reason why that is not possible for the pension is the non-assignability of the pension, just as the salary that one earns is non-assignable. Therefore, in respect of this kind of asset, it is not possible during marriage, by agreement, to arrange the situation in the way it would be possible to do by reference to divorce. All I want the Committee to understand is that, while this proposition is extremely attractive from the point of view of fairness, it has quite considerable consequences. In other words, it enables a couple, in respect of the division of property, to do something that they could not do with the fullest agreement assuming that they remain married.
Lord Shaughnessy: Can the noble and learned Lord help me in one respect? It seems that the Committee has a feeling that something should be done about the pension arrangement, and in all equity that seems quite appropriate. Is there no way that Parliament, in its sovereignty, can adjust the law to make provision for this, either in this Bill or in some other way?
The Lord Chancellor: Certainly, Parliament can in its sovereign way make arrangements, but they would be fairly far-reaching if they were to be fair to everyone. Basically one is removing the non-assignability of
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pensions. Their non-assignability has been there for good reason and is of very considerable importance. I cannot see why, if it is done for people who are being divorced, the same should not follow for people who are married. That is a big problem.
Lord Stoddart of Swindon: This really is an extremely complicated matter. I am not well up in tax matters nor, I imagine, are a number of others in this Chamber. Is the noble and learned Lord saying that it would be tax efficient because there would be two tax allowances instead of one? But is it not the case at present that the state pension is assignable and a wife attaining the age of 60, if her pension is on her husband's contributions, is able to set her part of the pension against tax? Therefore there is assignability in the case of the state pension. Could the position not be overcome, and indeed would it not help marriage generally speaking, if the allowances were interchangeable? Would that not solve the problem?
The Lord Chancellor: It would be helpful if the salary or other emolument of that kind could be split in a way that suited the parties. It would be of tremendous advantage to many people. It is not such a mystery.
The position is that, ordinarily, a person's salary is taxable on the basis of that person's allowances. If one has other property, the right thing to do might well be to arrange matters so that the rest of the income is derived in favour of the wife. To that extent the recent changes are beneficial. But to take as a paradigm case an example where the husband receives quite a substantial salary and the wife is at home, working and supporting him in every way that she can to earn that salary, at present the reduced rates of tax based on allowances are all applicable to his salary. If he and his wife could arrange that, say, half the salary belonged to her and half the salary belonged to him, they would both be a good deal better off.
Lord Meston: I have heard of bogus marriages and now I hear of bogus divorces. Is there any evidence from any of the other jurisdictions which already allow pension splitting to support the argument that people will go through an artificial divorce?
The Lord Chancellor: I am not sure about that. I am not certain of the tax situation in other jurisdictions either. The point about people going through a bogus divorce is simply taking the argument to its logical conclusion. My point is that this power, as distinct from the arrangements made under the Pensions Act 1995, has the effect of enabling the pension itself to be split. Therefore, the income tax position of the two people could be substantially improved as a result. I want the Committee to understand that point. I hope that I am making it clear. I do not think that it needs any special knowledge of income tax or anything of that kind. It is quite a simple point. It arises from the non-assignability of the pension. In effect, this provision overcomes the non-assignability of the pension in the case of divorce. If the result were to be as I said, it certainly would be

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possible—I do not say that it would necessarily happen—as a tax efficient arrangement, if people agree to do it. I myself would not wish to encourage that.
Lord Milne: Surely that would only occur when the pension is practically the sole income of the pensioner. With single assessment, it is now perfectly possible for one spouse to transfer assets to the other spouse to equate the income of the spouses. So it will only occur when the pension is the main source of income and it must not be a great income.
The Lord Chancellor: That is precisely the point that I want to make. So far as other assets are concerned, they can be arranged between husband and wife in such a way as to be most tax efficient. But that is not true of a pension. I only mention the point in answer to the noble Lord, Lord Marsh, who explained that the pension is just a form of matrimonial property. Of course it is. It is the deferred earnings of the worker. But it is different in this respect.
I entirely agree that it applies principally in cases in which the pension is the main asset, but this problem is strongest in the case where the pension is the main asset and requires division, as the noble Baroness, Lady Hollis, said in her excellent introduction of this matter. That is where the problem arises. There is that effect.
Lord Williams of Mostyn: The noble Lord, the Lord Chancellor, is concerned about the floodgates being opened to the galloping throngs of those who intend to divorce simply to benefit their income tax position. Has any calculation been made at all of the net loss to the Revenue? Secondly, is not the principle for which we are contending that the tax regime and the regime of law ought to be the servants of just objectives, which every speaker has supported?
4.45 p.m.
The Lord Chancellor: The tax system should be a fair one for everyone, so far as possible. My point—it is for the Committee to consider what, if any, effect they feel that this point should have—is that it will confer a power in respect of pensions which is not available in respect of income of exactly the same type enjoyed by a couple in marriage. Of course the couple who are divorced are then in a different position from those in marriage. That is an important question. Therefore there is a comparison to be made between the situation of divorced people who are able to get over the difficulty of non-assignability of the pension and the situation of married people who will remain subject to that problem. So far as concerns the cost to the Revenue, I look at the matter from the point of view of the parties rather than that of the Revenue and the general tax regime with which we have been familiar for some time, and there is certainly an incentive there.
There are other matters to be considered in relation to this amendment. One of the most important is that it proposes that the benefits which are payable under an order of this kind would not be subject to the provisions of Part XIV of the Income and Corporation Taxes Act. That is an important part of the amendment. Certainly, it raises a technical question, but it is not a small
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question. There are very important questions of tax law about what the regime should he. Part XIV confers benefits as well as raising other matters—for example, in relation to lump sum payments. We need to know at some stage—not today, of course—the kind of regime that is envisaged for these payments.
There are fundamental issues in relation to this matter which I have sought to mention in respect of divorcing couples, particularly as this is a family law Bill. I want the Committee to understand that. I shall not go into them, but there are other fundamental issues about the tax regime which will apply to withdrawn or divided pensions. As an example, let me take the case of the husband, who is the earner and has the pension, and his wife who is not in employment. The regime applying to what she receives would not be the ordinary employee regime. The rules of the pension schemes are extremely complicated and there is a lot of policy involved. One would need to look very closely at what the policy should be in regard to these new types of pension scheme which are related to but not the same as the provisions relating to employee pension schemes.
There are also questions relating to where the pension fund is situated, particularly perhaps, so far as I am concerned, trust funds that are situated in Scotland. There are various matters of that kind which have to be considered.
I wanted to make that particular consideration clear to the Committee because it is relevant to concerns that some Members have expressed in relation to these proposals. Therefore, I suggest to the Committee that we should consider this amendment carefully. I should wish to have it considered carefully and sympathetically. Personally, I understand well that the Committee would like to see something along these lines carried into law. I should not like the Committee so to act without fully appreciating the point which I made earlier. I have now sought to discharge my responsibility in that connection. I have at least tried to make the point clear to the Committee.
In the light of the discussion, I should certainly wish to consider sympathetically this series of amendments, with the proviso that I believe that there are a great number of quite difficult questions associated with this matter that we would have to consider and try to resolve. I feel that their resolution would be likely to take a little time.
Lord Mishcon: I hope the noble and learned Lord will forgive me for submitting a very humble suggestion for his consideration. At present this Bill operates, as regards divorce, based on a declaration that the marriage has irretrievably broken down. If that were made the subject of a statutory declaration, would not the party that the noble and learned Lord is thinking about, who is merely trying to get a divorce in order to pay less income tax, be guilty of perjury if they made the statutory declaration that the marriage had irretrievably broken down?
The Lord Chancellor: I had thought about that. I wondered whether it might be possible for them to say that that marriage had irretrievably broken down, but

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they were hoping, perhaps as a result of the financial changes made, to enter into a new one. It may be that the Committee has given more emphasis to the particular illustration I gave than I intended. The really important point is that those being divorced are able to do, in relation to a pension, what people in marriage cannot do.
Earl Russell: I am most grateful to the noble and learned Lord for the concluding words of his speech. I have admired him for many things, although it has never previously occurred to me to compare him to Cleopatra, but on this occasion he has truly shown an "infinite variety". The noble and learned Lord has never surprised me quite so much as he has this afternoon.
The noble Lord, Lord Marsh, hit the first nail on the head. These are not normally matters on which one acts on a strictly economic calculation.
I recall a long series of exchanges with the noble and learned Lord in 1991 as regards the benefit penalty in the Child Support Bill. His argument implied that he believed that people breaking up marriages, when considering whether to name the father of their children, would act on a strictly economic calculation. I thought that that would not happen. I believe that events have shown that I was right. If people acted on a strictly economic calculation most of us would not get married. There are limits to complete, dogmatic, economic theory.
Were anyone to consider such a proposal it would have a very severe and detrimental effect on their own marriage. When I left home this morning I was happily married. Were I to decide now to take advantage of the noble and learned Lord's suggestion, and organise a divorce for financial benefit, I believe that when I reach home tonight my marriage would have irretrievably broken down, in which case I would be unwittingly telling the truth.
The noble and learned Lord's argument cuts equally seriously against the reduction in the married couple's allowance—a point with which we on these Benches agree. That also has the effect of creating an incentive to be apart in order to have two personal allowances. If the Government and the Treasury were taking the noble and learned Lord's argument seriously they would not have done what they have about the married couple's allowance.
Lord McIntosh of Haringey: The noble Earl, Lord Russell, has compared the Lord Chancellor to Cleopatra. I suggest that there is another comparison with her:
"The barge she sat in … Burned on the water".
Baroness Hollis of Heigham: I am sure that I am speaking for the co-signatories to these amendments; namely, the noble Baroness, Lady O'Cathain, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Earl, Lord Russell, who at very short notice—and I am very grateful—stood in for the noble Baroness, Lady Seear. I am sure that I speak for everyone in expressing gratitude to the speakers this afternoon. I believe about 13 Members of the Committee
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contributed speeches and about another half-a-dozen additional speakers contributed with interventions. I believe that there was not one speaker who spoke directly, or by intervention, who did not support the principle of these amendments. The whole Committee has spoken today and it is saying to the Lord Chancellor, "We believe that the principle of these amendments is right". The precise wording may not he right and no one is going to the stake about that. We are asking the noble and learned Lord today to take these amendments away and to come back with government amendments, if they should be more satisfactory, which embody the voice with which the Committee has spoken today.
The Chamber has spoken today in a way which I have never heard before regarding pensions Bills or anything else of that kind. However, it would be wrong not to try to address some of the issues that the noble and learned Lord the Lord Chancellor raised in his remarks. He said that the amendments may be flawed and I entirely accept that. I am happy to withdraw them. They come with the full support and drafting of the National Association of Pension Funds and the Law Society. If the drafting is incomplete, so be it, but that is not an issue or a problem for us.
I shall try to address the issue, which I believe is the only one the Lord Chancellor raised; namely, that somehow this amendment would be an incentive to divorce. The Committee will note that the Lord Chancellor did not challenge at any point what I call the Treasury argument—that is to say, the cost would be balanced out for the public Exchequer because the savings on income support would offset the costs to tax revenue: it is between the couples concerned.
I have two points to make. Almost everybody, and certainly women, are poorer after divorce. People do not divorce to get rich: they are almost always poorer after divorce. We are saying that they should not be penalised by financial arrangements and locked into an unhappy marriage when all of us would respect and recognise the fact that it is time to make a clean break. Let us consider a married couple. If they were to divorce, following these amendments, they could split their pensions, but they would only be better off if they came to live together, having separate pension provision. The mind boggles at people in their late fifties or sixties getting divorced and then coming together again in their sixties to enjoy the tax privileges that they had so carefully arranged 10 to 15 years ago when they were divorced. I do not recognise that world and I do not believe the Committee does, either. If there is a problem in this area we can certainly look at it in terms of the issue of lump sums and so on. At the moment the Law Society says that financial arrangements are such that people offset the lump sums against the tax revenues.
I do not believe that the Lord Chancellor himself believes he is right. All governments have conceded this matter in one basic respect; namely, in the state old-age pension. That costs nearly £30 billion a year and represents £59 to a married man and £35 to his wife on his contributions. They get divorced and he continues to receive £59 a week on his contributions and she gets £59 a week on his contributions. The state recognises in its own pension scheme that in order to avoid poverty

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in old age different financial arrangements have to be made after divorce than in marriage because two households cost more than one. The state recognises that with its own pension scheme. Why is that justice denied to people whose main income derives from occupational pension schemes? The Government have already conceded this issue in its own scheme. They should not now deny the chance for similar justice to pension schemes.
The noble and learned Lord the Lord Chancellor then went on to talk about taking away the non-assignability of pensions. This is what this amendment will do and is precisely what it is intended to do, but only to assign it to one person and one person only; that is, the previous spouse or, to follow my noble friend, a second spouse or whatever at the point of divorce.
The reason that pensions were non-assignable in the first place and were privileged by means of tax concessions was because it is in the state's public interest to ensure that no one willingly has poverty in old age. Those tax privileges were meant to apply to personal pensions and the like as an encouragement to people to save for their old age. Tax concessions were made available so that they could do so but they were non-assignable so that they could not be used by creditors, for example. That was the purpose of the concessions; to make them non-assignable to pay off debt because it was not in the public interest to have the taxpayer helping somebody to have their debts paid off cheaply. It was not about marriage but about that.
Within marriage you do not need to assign a pension; it is matrimonial property for the two of you. The injustice arises only at and after divorce. That is why in that issue and instance, and only then, do we need the possibility of a pension being split. It is for no other reason than to remedy an injustice. All the other reasons to make it non-assignable—to aid creditors, mortgages, and what you will—would remain. Simply in this one situation would it be assignable, to rectify a grievous wrong. It would only be necessary at the point of divorce. And so the argument that it cannot be done in marriage falls because it does not need to be done in marriage, and that is why we are not asking for it.
The noble and learned Lord the Lord Chancellor said at the end that he thought this was fair. He admitted, if I may say so, that his objections were technical only. He was responding and giving us the benefit of a brief. Those technical objections can and must be met.
5 p.m.
The Lord Chancellor: I made it plain, I hope, that there are technical difficulties to be dealt with. The point I was making on the main matter is one of principle that your Lordships should understand. That is what I was seeking to do on that point. I will leave it at that. I am not suggesting that that of itself is any more than something that your Lordships should have in mind in considering this amendment. As I said, I am very happy to consider it further. Other details such as
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non-assignability attaching to the benefits for the wife have to he considered, because I do not think that is clearly protected under the present arrangement.
Baroness Hollis of Heigham: I entirely accept that. I was about to say that I think we have addressed the financial arguments produced by the Treasury to suggest that there is no cost for the taxpayer in supporting these amendments. The noble and learned Lord the Lord Chancellor has produced some technical difficulties, which certainly exist—no one would suggest otherwise—but we all know that they can he overcome.
The third set of arguments brought forward by the noble and learned Lord were that, by definition, the proposals appear to accord privilege to divorce over marriage. I am suggesting that the situation after divorce is very different from the situation in marriage itself. Injustices occur at the moment and this would help to rectify them. The Government themselves have recognised this in their own handling of the state old age pension.
I am sure that the noble and learned Lord has taken the opinion and view of the entire Committee this afternoon. I know that he had, if I may so put it, a set of arguments which he felt it important for the Committee to hear. However, I am convinced that the noble and learned Lord knows and believes that what the Committee has been arguing today is the right thing to do. We can do it on this Bill and we can do it without cost to the Exchequer and we can do it now. With the assurance of the Lord Chancellor that he will take this away and think sympathetically—I think that was his word—about this, I am delighted to ask him to do precisely that on behalf of all of us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 14 shall stand part of the Bill?
Lord Coleraine: I should like to speak to the central position which would arise under Clause 14 of the Bill, the thrust of which I generally support. The main object of Schedule 2 which is to be introduced by Clause 14 is to provide that in the case of divorce or separation an order about financial provision may be made under the 1973 Act before a divorce order or a separation order is made. It would obviously be inconsistent with the whole thrust of the Bill and mediation, together with the period for reflection and consideration, were the existing law to be continued into this new Bill. Under the existing law, orders for financial provision and property adjustment may be made only at the time of the decree nisi and can only take effect on the decree absolute being made. The noble Lord, Lord Clifford of Chudleigh, has two amendments tabled for discussion later, Nos. 197A and 197B, and it might well be that he will wish to address points covered by those amendments at the same time, because they cover the same ground as do the points I am going to make.
Clearly the existing law cannot continue. We must have some way of making it possible to go to court during the period of reflection and consideration. This should not be deferred until the divorce is over; but the

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effect of the amendments made to the 1973 Act under this Bill would be to make it possible for a divorcing party to apply to the court for financial provision and for the application to be heard very soon after the statement of breakdown has been made to the court, very soon after the moment when the one year for reflection and consideration starts.
The effect of this would be to destroy all hope of reconciliation were a party to start straight off by going to court, because he or she might get the order made very soon afterwards and would find himself the beneficiary of a financial provision or property adjustment order which would completely destroy any confidence on the part of either party that there was any possibility of reconciliation. It would also completely short-circuit any possibility of mediation taking place. I am only here this afternoon to draw attention to the problem and to suggest one or two ways in which this position might be rectified.
One way would be to say that an order might be made as soon as the divorce proceedings were started but only brought into effect after the divorce when the application is made a year later. I would not for a moment support this approach because once the order has been made, whether we like it or not, the marriage will effectively be at an end and there would be no possibility of picking up the pieces later. It seems to me at the moment that the only way to resolve the problem is to provide for a date during the period for reflection and consideration during which there may be no application to a court for a court order. My own feeling is that it might be possible to say that there should be no application to a court before six months, or even nine months, of the year were up.
This would have the additional beneficial effect in that it would strengthen the period of reflection, because there would be a period during which the parties engaging in the divorce would not be able to go to court and would have to consider seriously either reconciliation or settling their differences by mediation. I believe that all those who favour fostering mediation in divorce proceedings, as I do, would recognise that this procedure would be beneficial.
There have been suggestions from time to time that there might be a compulsory period, set off during the early stages of the year, in which nothing could be done except attempts to reconcile. I do not favour that because I feel that reconciliation and mediation must be able to go hand in hand throughout the whole of the period. The effect of providing a period during which the application to the court may be made would have very much the same effect and be extremely beneficial. I hope the ideas that I am presently canvassing may be seen by the Committee to be good.
Lord Clifford of Chudleigh: I am grateful to the noble Lord, Lord Coleraine, for introducing the Committee to the fact that amendments listed in my name, beginning with Amendment No. 197A, are associated with the question of whether Clause 14 shall
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stand part. All my amendments are designed to address the grave financial injustices which exist in the present law and which are likely to be made worse by this Bill.
Under paragraph 4 of Schedule 2 of the Bill as drafted, as the noble Lord, Lord Coleraine, said, the parties can apply for financial orders before the mediation period even begins. Clearly that cannot he right. That is totally at variance with the attempt by a civilised society to support marriage.
The effect of the Bill would be to enable orders dealing with maintenance and matrimonial homes to be made before the period for reflection and consideration even begins. Maintenance and lump sum orders may be obtained at any time after the filing of a statement of the breakdown of the marriage; that is to say, at the very start of the divorce process. Orders giving the matrimonial home to one of the parties may, in special circumstances, be made at any time after the filing of a statement of breakdown; again, at the very start of the divorce process.
We are rightly concerned about "quickie" divorces. But Schedule 2 will give us the "superquickie" divorce. It means that a divorce in all but name may be obtained within weeks rather than months, still less the 12 months claimed. The parties concerned may not be allowed to remarry for 12 months, but in every other way the divorce settlement will have been sewn up. That surely defeats the purpose of mediation and pays lip service to the chances of achieving any reconciliation.
How does that save saveable marriages, which we are told is one of the purposes of the Bill? I am told by lawyers that once the matrimonial home is settled or transferred, then reconciliation becomes highly unlikely. Do we or do we not want to save marriages? How can we allow the possibility of a superquickie divorce? Under the present law financial and property orders are made after a decree nisi but are not carried into effect until after the decree absolute. The wrangling in divorce settlements takes place between the two decrees.
Perhaps I may say in passing to the noble and learned Lord the Lord Chancellor that the statistics he cited on Tuesday showing that only 15.9 per cent. of divorces involving children under 16 are obtained in less than 6 months is nothing like the figure of 75 per cent. that some have bandied about. I believe that only 32 per cent. of all divorces take place within six months. Under Schedule 2, orders can be made at any time after the statement of breakdown. The court does not have to wait for the divorce order. One can quickly see that that is a significant change in the present law where the court has to wait until the decree absolute.
Let us consider the following scenario. A wife wishes to divorce her husband. Her solicitor writes to him asking him to agree a settlement. He also adds that an appointment has been made before the judge in 28 days time to invite the judge to make an order moving the husband out of the home. That could arise under Part III of the Bill. The husband may agree so as to buy time. The wife can lodge a statement of breakdown on day one and, shortly after, the solicitor may obtain an early appointment before a judge and is able to present the

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parties' agreed settlement. Under Schedule 2 it seems that the judge will be able to rubber stamp the agreed settlement. How many judges will then say, "Wait 12 months"? Is not the experience of divorce courts proof that judges will use such powers as they possess?
My amendments are designed to face that problem. Specifically, Amendments Nos. 197A, 197B and 203A ensure that orders cannot be made by the court until after the period of mediation has ended and cannot take effect until the divorce order is made or the separation order comes into effect. The amendments are designed to make the mediation year effective and to give reconciliation a reasonable chance. That should also help the innocent party and the party that does not wish to divorce. In particular, it will eliminate the superquickie assets splitting which the Bill will otherwise introduce under Schedule 2. I hope that the noble and learned Lord the Lord Chancellor will see that it is an area of the Bill which requires careful review and amendment.
5.15 p.m.
Baroness Young: I wish to speak briefly in support of what my noble friend Lord Coleraine said on Clause 14 stand part and also because the amendments spoken to by the noble Lord, Lord Clifford, are obviously relevant to it.
As I understand the position, Clause 14 and Schedule 2 make fundamental changes in the law as it now stands. Financial provision orders by the court—that is, those that require the payments of large lump sums—can be made at any time after the statement of marital breakdown. In certain special circumstances property can be reallocated before the divorce. That has a number of implications of a serious character. For example, asset splitting can technically start on day two—a point made by the noble Lord, Lord Clifford, in his remarks. That could well lead to irreversible court orders within three months.
Without wishing to repeat all the arguments, that appears to run contrary to the principle of the Bill that there should be a year for reflection and consideration. Court orders for lump sum orders or property adjustments make reconciliation unlikely, if not impossible. I believe it to be true that such orders set the divorce in concrete long before the divorce order actually comes through. In other words, although the legal permission to remarry only comes with divorce under the Bill, all the practical arrangements can be set up well before the divorce order and very soon after the initial statement.
As was pointed out, that is a "superquickie" divorce and cuts right across what I understand my noble and learned friend seeks to do in the Bill. That is a point I recall my noble friend Lord Coleraine raising at Second Reading or perhaps at an earlier stage at the Committee. It is important and although no amendment has been tabled in that regard I hope it is a point that my noble and learned friend will address.
Lord Elton: I rise now for the avoidance of confusion later on. I notice that Clause 14 stand part is a group on its own; that the amendments to which the noble Lord, Lord Clifford of Chudleigh, was speaking
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fall to be debated some hours hence, and that among them is a solitary amendment in the name of the noble Lord, Lord Meston. I do not know whether it lies with the noble Lord, Lord Meston, to decide whether we should deal with the whole chunk now. I am merely anxious, on behalf of us all, that we do not deal with them twice. I wonder whether those on the Front Bench, or others, could give us some guidance.
The Lord Chancellor: I am quite content to deal with those amendments at any time, but. I certainly do not want to deal with the same amendments twice if I can possibly avoid it. It is a question of what the noble Lord, Lord Meston, wants to do with his amendment. The noble Lord, Lord Clifford, has tabled a number of other amendments which may hear on the same matter. Perhaps the noble Lord, Lord Meston, will indicate what he wants to do and I can then deal with the points that have already been made—that is, unless the noble Lord would like to leave it until later.
Lord Meston: It was not entirely clear to me to which of his several amendments the noble Lord, Lord Clifford, was speaking. When I have caught up with that point, I shall perhaps be able to give a clearer indication.
Lord Clifford of Chudleigh: Perhaps it would be easier if I listed the amendments which I should like to have included in my last speech. I refer to Amendments Nos. 197A and 197B, 199A to 199C, and 203A and 203B. I know that some of those amendments may not be entirely relevant to a Clause 14 stand part debate, but the Bill is so intricate that all of our amendments are in some way interrelated. I hope that the Committee will understand why I spoke as I did, especially given that the noble and learned Lord the Lord Chancellor has said that he does not want to deal with the same subject twice or three times this evening. Perhaps I may help the noble and learned Lord by advising him that I intend to speak later to the second group of amendments which stand in my name, that is, to Amendments Nos. 203D and 204A.
Baroness Trumpington: I wonder whether the noble Lord, Lord Clifford, has a copy of the groupings. Quite frankly, I was totally lost when he was speaking to amendments which are practically at the end of that list. Naturally, it is up to my noble and learned friend the Lord Chancellor to decide whether he wants to answer those amendments now, but we certainly do not want to go over the same ground twice. When it comes to the noble Lord's other amendments, perhaps I may suggest that he sticks to their place in the groupings and does not confuse the Committee.
Lord Meston: May I respectfully agree with the noble Baroness. It seems entirely appropriate to deal with Amendments Nos. 197A and 197B now because they deal with the important point raised by the noble Lord, Lord Coleraine, and the noble Baroness, Lady Young, about the timing of the application of the order as compared with the timing of the divorce. I suspect that the other amendments in the name of the noble Lord, Lord Clifford, cover other ground, as do my amendments, Amendments Nos. 199 and 206. Frankly, I should prefer to deal with them in their correct place.

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Having said that, I do not want to follow the noble Lord, Lord Coleraine, and others down the path which was addressed at the beginning of this debate. However, I should like to take this opportunity of a debate on Clause 14 stand part to express some concern about the structure of Schedule 2. That concern relates more to the technicalities of the drafting than to the substance of the provisions. The main object of Schedule 2 is stated in Clause 14(2)(a) as,
"to provide that, in the case of divorce or separation, an order about financial provision may be made under that Act before a divorce order or separation order is made; but
(b) to retain (with minor changes) the position under that Act where marriages are annulled".
From a drafting point of view the essential problem seems to be that provisions which fall at present in a single subsection of the Matrimonial Causes Act become three subsections in this Bill. As there are no substantive changes to the law relating to financial provision or property adjustment, that makes me wonder whether it might not have been better to try to make the minimum alterations that are necessary to the Matrimonial Causes Act in order to achieve the same object. I do not find that redrafting user-friendly. Of course, it may be that I lack familiarity with the Bill as drafted and that practitioners such as myself are too familiar with the existing provisions. However, I find the new provisions complicated and dense and wonder why they have been drafted in that way.
I have not presumed to table an amendment at this stage, but I wish to reserve the right to do so on Report. It must have been possible—I imagine that it was contemplated—to have redrawn the existing provisions of the Matrimonial Causes Act in such a way as to produce something which made far less change to the existing statutory structure and to have reproduced that amended structure in the Bill, possibly by way of a Keeling schedule to show how the provisions would look if amended in that way. I wonder whether we should look more fundamentally at the drafting of Schedule 2 to see whether this might be done differently.
The Lord Chancellor: The question of what orders a court can make and so on is important in that while the parties are in the stage of their marriage having broken down, the intervention of the court may be necessary to regulate matters between them, particularly in respect of periodic payments. The wife might have no income at all, for example, and it must then he right for the court to have the power to intervene. Therefore, the power to make orders of some kind at an early stage is a necessary one.
The question of the matrimonial home is also important since there may well be situations in which (for example, because of violence) the best way to deal with the matter is to give the wife the matrimonial home as early as possible because if that is not done, the violence may well continue with damaging effects.
Turning to the rule on property adjustment orders, apart from in special circumstances such orders take effect on divorce or when the separation order is
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granted. I think it is important that where the parties are able to bring such matters forward, they have an opportunity to do so if that will help them in their relationship. We have to look not only at the past, but also to the future. I think that the court needs the power to make orders between the parties from the time that it is seized with the matter.
I have now set up an ancillary relief advisory group to look at the current procedures with regard to ancillary relief and, as far as is possible, I should like to have its advice on the various matters that have been raised in the Committee. There are two competing problems. There is the problem of things requiring to be done during the interim period. We need a structured framework to allow the court to intervene if the parties cannot agree during that period. There will not be a complete vacuum during that time. Therefore some power in the court to make orders is required. Of course the firmer the orders are, if they take effect only on the divorce order being made, the more clear it is what the future arrangements will be. That is part of what the period for reflection and consideration has to look to. I agree that it is important that the schedule should go in accordance with that principle.
So far as concerns divorce in all but name, if the Committee thinks back to our previous discussion, one of the possibilities that the parties have is to make agreements while they are still married about all their property, without intervention by the court at all. The parties could agree, for example, that the matrimonial home became entirely the property of the wife. They could do that before any divorce proceedings were considered.
To say that settling property matters is divorce in all but name is, with respect, to undervalue what the divorce order does. A divorce order is what frees parties to remarry. They can make any arrangements—subject to the point I made before about assignability and so on—with regard to their property that the law allows. They can make agreements about such matters if they want to. I do not want to do anything which would create unnecessary dispute. On the other hand, I do not want to do anything that freezes unnecessarily matters which have been the subject of discussion during the period of reflection and consideration.
I hope that the Committee will agree that it is necessary for the court to have powers under the equivalent of Schedule 2 in the interim period. Whether those powers should be further restricted than they are is a matter that I am happy to consider in more detail, but we need something of the kind. With regard to the drafting, I would wish to take the advisory group's views on that. The intention was to make the matter plainer. So far as concerns the noble Lord, Lord Meston, we do not seem to have been entirely successful in that respect. I hope that with that explanation the Committee will allow Clause 14 to stand part of the Bill.
5.30 p.m.
Lord Coleraine: I am grateful to my noble and learned friend for what he has said. I hope that he will look further into the point that I have made. It is obvious

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that at any time during a marriage there must be power for the court to intervene with regard to the matrimonial home, for example, but I should have thought it would be sensible if it were those powers which continued into the period of reflection and consideration.
Without wishing to change the thrust of the argument put forward by the noble Lord, Lord Clifford of Chudleigh, the way I would put it is that what we do not want is not divorce in all but name, but irretrievable breakdown in all but name. If there is acrimonious dispute over ancillary provisions very early on in the divorce proceedings that will negate any prospect of progress through mediation or reconciliation.
Clause 14 agreed to.
Clause 15 [Grounds for financial provision orders in magistrates' courts]:
On Question, Whether Clause 15 shall stand part of the Bill?
Lord Simon of Glaisdale: This is a short, strictly exploratory Motion, that Clause 15 should not stand part of the Bill. On the face of it is unobjectionable. It is concerned with a provision under the Domestic Proceedings and Magistrates' Courts Act 1978. A magistrates' court may make two sorts of matrimonial order: a separation order and a maintenance order. I am concerned purely with the maintenance order. Under Section 1 of that Act a magistrates' court may make financial provision if the respondent:
"(a) has failed to provide reasonable maintenance for the applicant";
under (b) a reasonable contribution for the children; under (c) has been guilty of unreasonable behaviour; or, under (d) has been guilty of desertion.
The Domestic Proceedings and Magistrates' Courts Act 1978, in other words, brought the law of domestic proceedings under the Magistrates' Courts Act into line with the wording of the Divorce Reform Act 1969. What the Bill proposes is that paragraphs (c) and (d) relating to unreasonable behaviour and desertion should be omitted. That is presumably in line with the tendency of the Bill to try to eliminate fault when seeking relief. My noble and learned friend will correct me if I am wrong in that.
Does not the first provision, that the respondent, who will almost always be the husband, has failed to provide reasonable maintenance for the wife, itself frequently, in fact more often than not, involve the investigation of fault? The husband says, "It would he unreasonable for me to provide any maintenance at all in view of the conduct of my wife". There are infinite varieties of such a defence. Equally, the applicant has to prove that it would be reasonable for the husband to supply her with maintenance.
As I said, my question is a short one. Does not that provision itself, notwithstanding the elimination of paragraphs (c) and (d), invoke the investigation of fault, or be liable to, and will do so more often than not?
The Lord Chancellor: The provision that requires that the respondent has failed reasonably to provide for
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the applicant or child of the family may involve investigation of conduct, or something of the kind, or of the circumstances.
Lord Simon of Glaisdale: I do not believe that we are concerned with the child.
The Lord Chancellor: The child is of course one of the parties in respect of whom this may arise. The question is whether the respondent has failed reasonably to provide for the applicant—just to restrict it to that. It applies equally to a child. If reasonableness in the circumstances requires an investigation of fault, so be it, but there might he many cases in which what is really in question is whether the amount is reasonable. In other words, it is accepted that the respondent should be providing for the applicant, but the applicant may say, "It is not enough. You have given me £1 a week and it should be £20". Reasonableness is a broad concept. It requires investigation of matters such as fault only so far as the court may require to do that in order to judge whether in the circumstances what the respondent has done is reasonable.
Lord Simon of Glaisdale: I am obliged to my noble and learned friend. I respectfully agree that the quantum of maintenance may be sometimes in question. I wanted to ascertain—and I believe that it is conceded—that the conduct of the parties, the fault on either side, may require investigation. I wanted to know that because of the claim that an achievement of this Bill is to eliminate investigation of fault in case that exacerbates relations between the parties. I believe that my noble and learned friend wishes to intervene.
The Lord Chancellor: Only when my noble and learned friend has completed what he wants to say. I never said that it is possible to eliminate altogether such matters. I said that the purpose of the Bill is to eliminate them so far as possible; in other words, not to require that these matters be alleged or looked into unnecessarily. It may well be that sometimes it is necessary, and I make the point that we are saying only in so far as it is necessary to investigate these matters in order to decide on a question of reasonableness would they arise. Certainly there are many cases in which the main questions between the parties are as to the size of the payment.
Lord Simon of Glaisdale: I am obliged to my noble and learned friend. So be it. The point is that, here again, investigation of fault may be required. On Tuesday we heard that it might arise in different circumstances quite early in a marriage that an application for a separation order is made. My noble and learned friend said that that may well require follow up by an interim periodical payments order. He conceded that that too could well require the investigation of fault on either side.
I thought that we ought not to pass this provision before noting that, here again, investigation of fault in conduct may well be required. Later we shall come to the requirement in respect of the financial provisions under Section 25 of the 1973 Act and to property adjustment orders under that Act in Section 24.

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We are merely noting as we go through the Bill that time and again conduct and fault fall for investigation. Arguments that it is impracticable to ascertain accurately in a court of law where the fault lies, as was argued earlier in Committee by the right reverend Prelate the Bishop of Oxford, simply goes by the board.
The Lord Chancellor: I do not accept the latter conclusion, but I accept that it may involve some investigation of conduct to decide whether the respondent has failed reasonably to provide for the applicant or a child of the family.
Clause 15 agreed to.
[Amendments Nos. 154 and 155 not moved.]
Clause 16 [Jurisdiction in relation to divorce and separation]:
[Amendment No. 156 not moved.]
5.45 p.m.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 157:
Page 9, leave out lines 1 and 2.
The noble and learned Lord said: Amendment No. 157 is a probing amendment. It is to leave out lines 1 and 2, which provide that a divorce order shall not be made while nullity proceedings are pending. That is entirely reasonable. One cannot dissolve a marriage—indeed, one cannot separate the parties—until one knows that they are validly married. That was the doctrine of the ecclesiastical court and has been acted on by the lay courts ever since.
My only doubt as to that was whether it goes far enough. The question of the validity of a marriage these days—or perhaps I should say in my time—is often investigated by a party seeking a declaratory judgment. I do not know whether that has been considered. If it has not, perhaps my noble and learned friend will give it such consideration as he thinks it merits. I beg to move.
Lord Meston: I join the noble and learned Lord in questioning how Clause 16(2)(c) is to work in practice. It suggests that the court's jurisdiction is exercisable only if one of three possible states of affairs obtains. Presumably it is not intended in any way to restrict the party who is on the receiving end of a nullity petition from lodging a statement of marital breakdown, because it would be wrong if that could happen.
I move briefly to Amendment No. 158, which stands in my name and appears in this group of amendments. Clause 16(7) purports to define nullity proceedings by reference to Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973. That section deals with jurisdiction in nullity proceedings but does not actually define them. Either Clause 16(7) is intended to define nullity proceedings, in which case it should do so, or at the least the word "nullity" should be added before the word "proceedings", which is proposed in Amendment No. 158.
The Lord Chancellor: As regards Amendment No. 157, my noble and learned friend Lord Simon is
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asking not to delete paragraph (c) but rather to consider adding to it the matter of a declaratory action in respect of issues concerning the marriage. I shall be happy to consider that.
As to Amendment No. 158, I am advised that what we have is all right. Let me explain why. Nullity proceedings are defined as proceedings in respect of which the court has jurisdiction under Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973. As Section 5(3) is concerned only with the court's jurisdiction to entertain proceedings for nullity, the reference to proceedings in Clause 16, as currently drafted, can only mean nullity proceedings. Not only is the addition of the word "nullity" superfluous; it could be misleading as it implies that Section 5(3) deals with other proceedings as well as those of nullity.
That is the explanation of why we think what we have is better. I hope that the noble Lord, Lord Meston, is properly impressed with the cogency of those observations.
Lord Simon of Glaisdale: I ask leave to withdraw the amendment in view of what has been said by my noble and learned friend, for which I express my thanks.
Amendment, by leave, withdrawn.
[Amendment No. 158 not moved.]
Clause 16 agreed to.
Baroness Elles Baroness Elles moved Amendment No. 158A:
After Clause 16, insert the following new clause—
CHILDREN'S WELLBEING: CONSIDERATIONS OF THE COURT
(" . In deciding any question under this Part the court shall take account of the following—

(a) the conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant;

(b) in the absence of clear evidence to the contrary, the principle that the child's welfare is best served by regular and reasonable contact with each party to the marriage who is the natural parent of any such child;

(c) the risk occasioned by the new living arrangements of the parent with whom the child will reside including any likelihood of risk arising out of cohabitation with any party who is not the natural parent of the child.").

The noble Baroness said: We have discussed the question of disputes between the parents. The two amendments that I have tabled are specifically concerned with the children of the marriage. As to the jurisdiction of the court, which is dealt with in Clause 16, it is appropriate to raise the issue. I hope that my noble and learned friend the Lord Chancellor—perhaps I am optimistic—will agree that the jurisdiction of the court should specifically include the duty to take account of the conduct of each of the parents, the regular contact of each party with the child and the risk occasioned by the new living arrangements of the parents. My noble and learned friend has already said that investigation into the conduct of a party may be necessary in certain cases.
The question of payment of maintenance for the children should be specifically mentioned here. The heading of my amendment deals particularly with the children's well-being and the considerations of the court. That would include, in Part I of the Bill, any

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financial arrangements being made for the children as well as the arrangements being made as between the parents.
This clause, I accept, is fairly widely drawn. It also includes any other person in relation to whom the court considers the question to be relevant. That may include guardians or grandparents who have a duty or obligation to maintain a child of divorced parents.
As to subsection (b) of my amendment, I am sure most noble Lords will agree that, whatever our views of this Bill, it is advisable—and we would wish it to happen—that a child should have regular and reasonable contact with each party to the divorce. Here again it is helpful for the court to have it explicitly set out on the face of the Bill. It is very often said that while the court is concerned, understandably, with the conduct of the parents in these cases, the children do not always get the priority that they deserve. I am trying to strengthen in this Bill the protection that should be accorded to the children, who, after all, will suffer most from the divorce.
The third point in relation to Amendment No. 158A is about the risk occasioned by the conduct of the parties or the way one of the parties is living, particularly in the case of the party with whom the child or children are resident. We all know the difficulties there can be where a cohabitee has come into the home, or where different matters arise out of the conduct of the party 'with whom the children are resident.
These are matters which I hope my noble and learned friend will consider including on the face of the Bill. He may rightly say that the court automatically takes these matters into account, but it would be helpful, in considering the provisions of the Bill, that they should he spelt out as being part of the duty of the court towards the children of the marriage.
The same thinking is contained in Amendment No. 158B. It should be an obligation on the court welfare officer who has to compile a report concerning the children of the marriage—this was a point raised by my noble friend Lady Faithfull—that he should interview the children in the presence of each of the parents separately so that the child can say what he or she thinks in relation to the situation. That would be much fairer on the children than any other way. Where it is not done, the court welfare officer should say that he or she has been able to get this evidence, and that should also be taken into account by the court when making its decision.
These amendments are fairly explicit in their content and I very much hope that my noble and learned friend will consider including them on the face of the Bill.
Baroness Faithfull: I support the noble Baroness, Lady Elles. As to subsection (a) of Amendment No. 158A, it says:
"the conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant".
Throughout this Bill there is cross-representation, or cross-fertilisation, whatever it is called, with the Children Act 1989, and it would be very helpful, if possible, to refer to the Children Act 1989. There is a
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checklist in the Children Act to which, in addition to what the noble Baroness has recommended in Amendment No. 158A, I hope very much the court will refer.
As to subsection (b) of Amendment No. 158A, keeping regular contact with each party, there is very real trouble over the question of access. When I moved Amendment No. 155, I wished to know whether, if the court order was breached in regard to access, the party who was suffering by not seeing the child or having the child kept away from them would get legal aid. I think my noble and learned friend gave the answer yes.
One of the difficulties is that there are a number of cases where a man is not eligible for legal aid and yet he does not have enough money to go to court when access arrangements are not being fulfilled. It is a very great problem whether the father or the mother has the care of the child. Very often the access arrangements are not adhered to and the absent parent loses contact with the child over a number of years. I am not sure how this can be resolved, but there should he somebody safeguarding the interests of the child.
As to Amendment No. 158B, I am not quite sure. We debated this question on, I think, Tuesday. Although I recognise the recommendation of the noble Baroness that the child or children should be interviewed in the presence of both parents, we also discussed the proposal that the child or children should have someone to whom they could go either at the time of the divorce, or, afterwards, when access arrangements were being breached. We did not resolve the question, and I mention it only in relation to the noble Baroness's recommendation.
6 p.m.
Lord Simon of Glaisdale: With respect, I strongly counsel against the suggestion that any child should he interviewed in such circumstances in the presence of both parents. The more the child is kept out of the conflict the better. To have both parents present while questions are put to the child, whoever puts them, seems to me to be attendant with considerable danger. I respectfully agree that there should remain someone to whom the child can go, not only during the proceedings but also, as the noble Baroness postulated, after an access order has been made.
One of the functions that we envisaged as regards the Family Court was the fact that the welfare side should be available in such circumstances. However, failing the establishment of that Family Court as we urged it, I suggested that the best person to represent the interests of the child throughout was the Official Solicitor. I agreed with the suggestion made by the noble Earl. Lord Onslow; namely, that it is the interests of the child, much more than the views of the child, which need emphasis.
If the Official Solicitor is brought in at an early stage, I fail to see why he should not be available to the child subsequently. I understood that my noble and learned friend was prepared to brood over the suggestion that the Official Solicitor was the best person to represent the interests of the child. However, that does not mean

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that that should be the responsibility of the extremely eminent lawyer who is immediately responsible to my noble and learned friend; indeed, he has an official who is constantly and intimately concerned with such problems on a daily basis.
Lord Wilberforce: I should like briefly to suggest that Amendment No. 158A may be quite useful in practice. Of course, it could be said that such provisions will be held in mind in any event by any experienced court dealing with the matter and that there is no need to state them on the face of the Bill. Indeed, that is generally true in relation to this sort of provision. However, one might bear in mind that not all courts are equally experienced and that a number of other persons will be involved with the application of such considerations; for example, the parties' legal advisors or the parties themselves.
I believe that it might be quite useful to have such provisions on the face of the Bill so that they may be present to the mind of the parties at the stages when such matters are being considered. No doubt they would also find their way into any information pack which may be prepared for the use of parties or their legal advisers. Therefore, although the proposed provisions may be self-evident and tautologous, I believe that they may serve a useful purpose in practice. I should like to express my support for them.
Earl Russell: For the first time during the proceedings on the Bill, I am glad to be able to take the chance to agree with the noble and learned Lord, Lord Simon of Glaisdale. Indeed, we are back on familiar territory and I am very pleased to be there. I entirely agree with the noble and learned Lord that having the child interviewed in the presence of each of his parents, whether jointly or severally—and I am not quite clear about that—would put that child in a position whereby he would not be quite sure whether he was executing the judgment of Solomon or was its victim. It would be a very painful situation.
However, I have a great deal of sympathy with the intention behind the amendments. I imagine that one of the problems that they are intended to address is the fact that so many children lose contact after divorce with one of the parents, usually the father. The noble and learned Lord and I exchanged words on the matter on Second Reading. I entirely agree with what he said about the difficulty involved in doing anything about it. But if the amendment—or some other version of it—could help, I believe that it would be well worth trying.
In its present form of drafting, Amendment No. 158A is, perhaps, a little more prescriptive than I would have wished. Subsection (b) states that,
"in the absence of clear evidence to the contrary",
the welfare "principle" must be assumed. It may very often be correct to do so, but I should like a little more room for discretion involved than the present wording allows. I say that because one can get some very unexpected reactions. I have in mind one case which was not actually a custody case. I must apologise, first,
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to the noble Baroness, Lady Faithfull, if this was a matter with which she had to deal. I do so because it actually happened in Oxford.
The child of two Jehovah's Witnesses aged eight was knocked down, severely injured and was bleeding to death. The parents refused to sign the form giving permission for a blood transfusion, as they would because of their religion. A judge was summoned to the child's bedside; a care order was made; the transfusion was given, and the child recovered. However, the parents refused to have the child back because they said that it was no longer the same child.
I believe that the judge and the hospital in that case did right. However, it goes to show quite how much one must pause and consider the unknown reactions that may arise. If one attempts to enforce access with a legal big stick, the reaction of one or the other parent may be quite unpredictable. Such a generalised discretion as the one suggested would, perhaps, force the court to run upon a waterfall. I believe that it should have discretion to hold back from that waterfall if it sees fit.
As regards subsection (a) of Amendment No. 158A, I would also be interested to know how the reference to "the conduct" of the parties impinges on the very long debates that we have had about fault during the course of the proceedings on the Bill. I am not able to work that out in the time available; and, indeed, I certainly do not intend to detain Members of the Committee. However, if fault is to come into the Bill, I believe that it should come in through the front door and not accidently by the back door. If we bring such a provision into the Bill accidently, it may create no end of legal confusion afterwards.
The Earl of Onslow: I had read that phrase in the amendment which refers to,
"the conduct of each of the parents",
and found myself in exactly the same dilemma on the fault question. In the actual granting of a divorce, I believe that the fault question should be left outside. However, it is impossible to talk about custody arrangements without taking into account the behaviour of one or both of the parents. That suggests to me that we should have a little bit of "front door", "back door" or twin tracking—or whatever the latest cliché is.
I can see two distinct considerations. One is bringing a contract to an end in the most civilised way, with all the hoops that one has to go through to do so: the other is the matter of dealing with the fall-out from that contract being broken. One cannot divorce—I am sorry that was a rather silly pun which was not intended; I meant to say that one cannot separate the conduct of parents from child responsibility, but you can and should separate it with the end of a contract.
Lord Stoddart of Swindon: I support the amendments. It is helpful that the courts should have guidance. The guidance that is given here is quite firm and will ensure that the interests of the child are safeguarded.

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We are very well aware of the recent trend that says that two parents do not matter and that one parent will do. I do not speak for Families Need Fathers, as suggested by the noble and learned Lord the other night, although I very often agree with what it says.
The Lord Chancellor: I did not mean to suggest that. The noble Lord has stated that he often agrees with that organisation. I meant that he put forward views which closely resemble its views in a number of respects.
Lord Stoddart of Swindon: The noble and learned Lord is correct, and I often sympathise with its views particularly in relation to access to children. All too often the courts do not enforce access orders which they have made. Children are then removed from the vicinity where the father lives which makes access extremely difficult and costly.
A child may be taken away from his natural father who will be devoid of all contact with his own child, whereas a stepfather will have daily access, and that access could be detrimental to the interests of the child. It is therefore in the interests of the child that there should be contact between both natural parents. That fact cannot be over-emphasised.
The noble Baroness had done a great service in bringing the amendments before the Committee. I know that the noble and learned Lord will take these matters very seriously. The existing arrangements are not good enough. There is insufficient provision in the Bill to safeguard the interests of children and to ensure that the rights of both parents in relation to children are properly taken into account.
Lord Meston: The provisions in the amendments concern:
"any question under this Part".
I understood that considerations of residence and contact are always dealt with under the Children Act. Under that Act the kinds of principles that are stated in Amendment No. 158B are carried out as a matter of common practice. It is good practice for a welfare officer to interview a child in the presence of each of its parents. If that is not done it is usually the subject of comment by the court and something that the court would take into account.
6.15 p.m.
The Lord Chancellor: The court has a duty to be satisfied in relation to arrangements for children and has powers to enforce the Children Act which is the legislation that deals with private disputes between parents about children, and allows the intervention of the local authority, should that be necessary. The principle is that the court should not intervene and no public authority should intervene unless it is necessary. The family is best able to decide these matters, but the Children Act facilitates the intervention of the court.
The principles espoused in the Children Act have been operating for a considerable time. The noble Lord, Lord Meston, will correct me if I am wrong, but I understand that those with day to day involvement have
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found that the principles of the Children Act and the methods of employing those principles have worked extremely well.
One of those principles is quite plain; that is, that those with parental responsibility for children should be in contact with them unless there is a reason to the contrary. That is the central point in my noble friend's first amendment. That principle is already embodied in the Children Act.
The Bill deals with arrangements following disputes in divorce, but disputes about residence or contact with children are dealt with under the Children Act, whether they arise before or after a divorce or where there is no question of divorce and the parties are merely in dispute about where their children should be.
The general principles of Amendment No. I58A are correct. The difficulty is in reconciling those principles in an individual case. For example, Amendment No. 158A(a) states:
"The conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant."
A situation that often occurs is where there has been abuse or cruelty by one parent to the children. That would normally displace any idea of contact. It would depend upon the nature of the cruelty, and there is always the possibility that the person responsible will repent, but that kind of consideration generally prevents an order for contact with both parents.
I agree with noble Lords who have said that it is extremely important for both parents to have contact with children after divorce. All the research shows that to be correct. One of the principles that moved me to put forward the Bill was to avoid difficulty in that area. In that sense my noble friend Lady Elks and myself are in agreement.
The first amendment is unnecessary because of the provisions in the Children Act which are presently enforced. The court must consider all the circumstances, for example any risks in relation to one of the parents setting up with somebody else, depending upon the nature of their relationship. Those circumstances would be taken into account when considering arrangements for residence and contact.
In relation to the welfare officer provision in the second amendment, under the Children Act there has been an adoption of national standards for probation service Family Court welfare workers. The Family Court welfare service is part of the probation service. Those standards were introduced on 1st January 1995 in the light of previous experiences. It is a framework to ensure that Family Court welfare work is carried out consistently and fairly. The standards require the court welfare officers in preparing reports carefully to consider whether or not it is appropriate to see the parties separately or together, to visit each party at their home, to contact other relevant agencies, for example a school, doctor or health visitor, to see each parent alone with their siblings, to see each child with both of its parents, to see each child with each parent at their home

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or to see any other significant carers or the new partners of a parent. I believe that that is the point referred to in paragraph (c) of Amendment No. 158A.
It is emphasised that the inquiry should be even-handed and fair to both parties. The standards also specify that the report should give details of the inquiries undertaken, including who was seen at each interview, where, and the source of any information included in the report. Thus, the court welfare officer's attention is specifically drawn to the need to consider the full range of options for interviewing the child and his parents, but the officer retains the flexibility to decide exactly what is appropriate in each individual case. In addition, the court will be made aware in the report of what inquiries have been undertaken. The court is able to consider the weight to be given to the report along with all the other evidence before it.
I suggest to my noble friend that that standard which is adopted throughout the court service gives effect in a good general way to the principles that she has embodied in Amendment No. 158B. If my noble friend wishes it, I can give her a full copy of the standards.
I hope that in the light of those assurances my noble friend will feel able to withdraw the amendment, leaving the mechanisms of this issue to the functioning of the Children Act.
Baroness Elles: I am grateful to my noble and learned friend for his reply. I should like to study it closely in Hansard.
I thank all noble Lords who have taken part in discussions on the amendment. I agree with the noble and learned Lord, Lord Wilberforce, that the Bill would benefit from having the provisions in Amendment No. 158A on the face of the Bill. I accept from my noble and learned friend that many of them are included in the Children Act. While I hate to disagree with him, I suggest that not all the elements set out in the amendment are spelt out in the Children Act. The checklist that courts are required to go through does not enumerate all those issues. Clause 9 of the Bill requires only that the court consider whether there are children and, if there are, the arrangements to be made for them, I believe under Section 41 of the Matrimonial Causes Act 1973.
Although I accept that the Children Act contains certain provisions, they do not cover every element spelt out in Amendment No. 158A. Even if the provisions are included in various parts of the Act, we owe a duty to the children who, I believe, will suffer as a result of the Bill. I know that the noble and learned Lord probably does not think that they will suffer, but the fact is that many children will suffer as a result of the Bill and it is our duty to ensure that they are fully protected under the Bill and that it is not left to the interpretation or discretion of a court to decide whether or not to include certain provisions on a checklist.
I shall not press the amendment to a Division. However, I very much hope that the issue can be considered again with my noble and learned friend between now and Report stage. There is the specific
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provision as regards risk arising where there is a cohabitee. That is a useful addition to the Bill. I accept that the drafting of the amendment is loose, and that it could be better worded. However, paragraph (b) of Amendment No. 158A specifically states:
"in the absence of clear evidence to the contrary".
I accept what my noble friend Lady Faithfull said. Access is a difficult issue. However, I hope that my noble and learned friend will consider stating that principle.
As regards Amendment No. 158B, I know that the court welfare officer has a duty under the Children Act. However, I am informed—I may he wrongly informed—that the court welfare does not always have either the time or the opportunity to ensure that his report to the court contains the full details which may be necessary for a court to decide on the welfare of the children. I understand that judges tend to follow the court welfare officer's report. That is understandable. I believe that no stone should be left unturned to ensure that the position of children is protected in so far as is humanly possible.
The Earl of Onslow: Before my noble friend withdraws the amendment, perhaps I may ask my noble and learned friend the Lord Chancellor one question to clear my mind. Am I right in saying that the Children Act applies absolutely to any divorce proceedings that will take place if the Bill goes through? If that is the case, surely it is unnecessary to put any extra provision into the Bill. If what my noble friend Lady Elles wants does happen—as, I am sure, we all hope—it is surely not necessary to put the provision down twice.
The Lord Chancellor: The Children Act applies where a court has to consider questions of residence or contact in respect of children. This is the sort of situation in which those questions arise. The Bill will require the court to consider the arrangements for the children. If the court then considers that an order under the Children Act should be made it has power to enable that to happen and then the principles of the Children Act will apply.
Baroness Elles: Perhaps I may conclude. It is correct to say that contact and residence provisions are contained in the Children Act. The proposed amendment does not include only residence and contact, but other matters as well.
In the circumstances, I beg leave to withdraw the amendment. Perhaps we can consider the issue between now and Report stage.
Amendment, by leave, withdrawn.
[Amendment No. 158B not moved.]
Clause 17 [Time when proceedings for divorce or separation begin]:
[Amendment No. 159 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 160:
Page 9, line 27, leave out ("or").
The noble and learned Lord said: I beg to move Amendment No. 160 and speak to Amendment No. 161.
These are drafting amendments. The word "or" at the end of Clause 17(3)(a) should not be there. A provision to the effect that marital proceedings are both divorce proceedings and separation proceedings at a time when no application for an order has been made was erroneously omitted from the final print of the Bill.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 161:
Page 9, line 29, at end insert—
("( ) Marital proceedings arc to be treated as being both divorce proceedings and separation proceedings at any time before an application for a divorce order or for a separation order is made by reference to the statement.").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
Clause 18 [Intestacy: effect of separation]:
On Question, Whether Clause 18 shall stand part of the Bill?
Lord Simon of Glaisdale: I have a Motion that Clause 18 shall not stand part of the Bill, and for more than one reason I am glad to be associated in this with the noble and learned Lord, Lord Archer.
Clause 18 disapplies part of the ordinary law of intestacy in the case of a separation order. By the normal law of intestacy, going back a long way, a widow enjoys a substantial right; in other words, there is a bias of the law in favour of marriage. Under this provision that right is no longer to be enjoyed after a separation order, notwithstanding that the parties remain married.
When we discussed separation orders on Amendment No. 2, my noble and learned friend confirmed that part of the purpose was to allow a spouse who had a conscientious objection to divorce to seek a separation order instead, in order to keep the marriage alive, if only because while the marriage is alive there is still a chance of a reconciliation. However, after a divorce there is little chance of it.
What the Bill does repeatedly, as it does here, is nevertheless to show a bias in favour of divorce and against separation. The noble Lord, Lord Mishcon, identified the first bias that we examined in Amendment No. 5 and there have been several instances since then. However, this is the most glaring. Why should a spouse who conscientiously prefers a separation order be penalised as to intestacy? The Bill is really saying: "You may take a certain course from conscience, but you must not think that you will enjoy the ordinary financial advantages accruing from that. We will larn you to be a toad".
As I understand it, the provision reproduces the effect of Section 18(2) of the 1973 Act. Perhaps, when he replies, my noble and learned friend will say whether that is right. The provision in the 1973 Act is repealed in the repeals schedule, Schedule 10 to the Bill. That is presumably why we have Clause 18. However, the 1973 Act itself replaced Section 40(1) of the Matrimonial Proceedings and Property Act 1970, which itself replaced Section 20(3) of the Matrimonial Causes Act
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1965. I shall be corrected if I am wrong, but in other words the provision goes back no further than the 1965 Act.
I see no reason why we should attach any particular value to a statutory provision in a matrimonial statute of the swinging 1960s, particularly when it is contrary to the ordinary law of intestacy. By that law, if a marriage subsists the surviving spouse enjoys special rights on the intestacy. I oppose Clause 18.
6.30 p.m.
Lord Archer of Sandwell: In the course of our debates on the Bill, to my regret I have not invariably found myself in agreement with the noble and learned Lord, Lord Simon. On this occasion I can intervene with a confidence born of the fact that he and I are indeed in agreement. It would be presumptuous on my part to seek to clarify or embellish the case which he expressed so clearly and with such erudition.
In the course of one of our earlier debates there was a question as to what were the effects of a judicial separation. Clearly one such effect is that the marriage remains in existence. One of the reasons for retaining that option may he that one of the partners at least wishes to retain the rights and claims which are normally associated with marriage. If one partner enters into a new relationship and wishes to provide for the new partner or the children of the new relationship, he or she—and normally it will be he—can do so by making a will. If he neglects to do so, then a simple respect for the institution of marriage would seem to indicate that the normal consequences would follow. Certainly there is no obvious reason why the other partner should lose his or her rights under the marriage.
I simply add that this anxiety is, to my knowledge, shared by the Law Society. No doubt the noble and learned Lord will tell us the reasoning behind the clause, but I am bound to say that it is not self-evident.
The Lord Chancellor: So far as I am concerned, the reasoning behind the clause is that I have sought, generally speaking, to retain the existing law as regards the effects of orders. As my noble and learned friend Lord Simon explained clearly, that is the existing law and it has been so since 1965. The fact that it is the existing law does not mean that we should not change it, but until now there has not been much pressure to change the provision, as I have understood it. Generally, in regard to financial matters, I have left the existing law as it is. It is a big subject to get into in a systematic way. We shall have other amendments suggesting changes, some more dramatic and some less. That is the reason that I put in the provision. If the views that Members of the Committee have expressed represent the general view of the House, I have no feeling against it myself. My only reason for including it is that it happens to be the law and has been for about 30 years.
Baroness Elles: Will my noble and learned friend explain the logic of why he wishes the clause to remain when it is already part of the law? He was not keen on my amendment on children which he also says is part of the law, but in another Act. It does not seem to me

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logical why we should keep one provision which is the present law and not allow something which is the present law in another part of the Bill.
The Lord Chancellor: As usual, my noble friend has an extremely good point. However, as my noble and learned friend Lord Simon said, as regards drafting, Schedule 10 repeals a number of the provisions of the Matrimonial Causes Act 1973. Thus, in order to preserve the effect of the existing law I have to put in this provision. One of the effects of that is to bring the matter to the Committee's attention in a way that it would not have been if I had left the provision in the 1973 Act. Perhaps it is a good idea. However, that is altogether a different argument from the previous one. I am certainly not repealing the Children Act nor do I propose to do so in this Bill. What I am doing is to propose the repeal of parts of the Matrimonial Causes Act 1973. Therefore, I thought I should put the provision back in. It represents the existing law but if the Committee believes that the existing law should be changed, I have no strong reason against it.
Lord Coleraine: My noble and learned friend explained why the provision was introduced in the swinging sixties. Therefore I feel that we ought to go ahead and follow the course recommended by the noble and learned Lord, Lord Simon of Glaisdale.
Lord Simon of Glaisdale: I am most grateful to the noble and learned Lord, Lord Archer, the noble Lord, Lord Coleraine, and indeed to my noble and learned friend the Lord Chancellor. I seem to recognise in his reply—I hope rightly—some green edges. He is obviously not committed to this provision beyond the fact that it represents the existing law. But if the existing law is contrary to principle, if it is in derogation of marriage, as the noble and learned Lord, Lord Archer, has shown, we have no reason at all to be attached to it.
I undertook at the outset of the Committee stage that I should not press any of my amendments to a Division, and I think that covers this case. But I shall certainly return to the matter on Report. I hope in the meantime my noble and learned friend, having given himself a locus penitentiae, will tell me that it is not necessary and that he will do the job for me.
Clause 18 agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 162:
After Clause 18, insert the following new clause—
FUNDING FOR MARRIAGE SUPPORT SERVICES
(".—(1) The Lord Chancellor may, with the approval of the Treasury, make grants in connection with—

(a) the provision of marriage support services;

(b) research into the causes of marital breakdown;

(c) research into ways of preventing marital breakdown.

(2) Any grant under this section may be made subject to such conditions as the Lord Chancellor considers appropriate.").
The noble and learned Lord said: This is a rather important amendment, to which I spoke earlier. I am very glad to have the opportunity of moving it. It gives the Lord Chancellor a basis for supporting research of a
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most important kind, as well as supporting by grant in appropriate circumstances the marriage support services. I beg to move.
Baroness Hamwee Baroness Hamwee had given notice of her intention to move, as an amendment to Amendment No. 162, Amendment No. 162ZA:
Line 4, after ("marriage") insert ("and family").
The noble Baroness said: This amendment made its way onto the Marshalled List after we had debated the point. It is not moved.
[Amendment No. 162ZA, as an antendment to Amendment No. 162, not moved.]
6.45 p.m.
Lord Simon of Glaisdale: Speaking therefore to my noble and learned friend's Amendment No. 162, I have only one small point, which I put forward in no very hopeful mood. It relates to the statement that my noble and learned friend may make grants only,
"with the approval of the Treasury".
Those words appear in statute after statute, and are totally unnecessary. There is firm and fair machinery within the machine of government which prevents my noble and learned friend splashing about with public money at his unfettered discretion. There is, indeed, a Treasury official who watches closely what is happening in my noble and learned friend's department; and similarly, all his officials are aware of that. They are firmly aware that they must not incur public expenditure except with the consent of the Treasury. The words are entirely unnecessary. I know that the Treasury values them greatly, but it is utterly wrong to include them. I venture to speak as a former Treasury Minister. I am all in favour of Treasury control, but not of cluttering up the statute book with a whole number of unnecessary phrases.
The Deputy Chairman of Committees (Lord Lyell): We are still debating Amendment No. 162, but, with apologies to the noble Baroness, Lady Seear, I must call three other amendments before we proceed further with this one; namely, Amendments Nos. 162A, 163 and 163A.
[Amendments Nos. 162A to 163A, as amendments to Amendment No. 162, not moved.]
Baroness Seear: We on these Benches very strongly support Amendment No. 162. It is sometimes thought that those of us who are strongly in favour of this Bill are not in favour of marriage. That is completely false, and we should like to have it on record that that is so. We support this amendment because it will give great support to marriage. We want to make that absolutely clear. I should, however, like to see the amendment somewhat strengthened. I agree very much with the point made by the noble and learned Lord, Lord Simon. I have been waiting for someone to say that it is ridiculous that we are so much in the clutches of the Treasury. After all, the Prime Minister is the First Lord of the Treasury; if he decides that money should be spent, surely it should be spent.

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That aside, one would like to see it made absolutely clear that there will he money for these services. I agree with the noble and learned Lord the Lord Chancellor that research is extremely important, but we also want to see support for conciliation services. On a number of occasions during debate on this Bill we raised the issue of the uncertainty of money being available for conciliation services. Those services are a very, very important prop to the sustaining of marriage. Unless money is there for them, a great many people will not take advantage of them. We are confident on these Benches—and I think probably this is true throughout the Committee—that while the present Lord Chancellor is in post he will be assiduous in giving support of this kind. But Lord Chancellors come and go. I do not say that the next one will be any better or worse, but there could come a time when a Lord Chancellor was less interested in these matters. We should like to see it firmly on the face of the Bill that these moneys will be available whatever the Treasury says and whoever the Lord Chancellor may be.
The Lord Bishop of Worcester: I support this amendment firmly and emphatically. I remember saying at Second Reading that I hoped the moneys would be available for marriage support services, and for research into the causes and ways of preventing marital breakdown. These are essential if this Bill is to bring about a hoped for improvement.
I agree that those of us who support the Bill have been accused of being soft, liberal and unsupportive of marriage and the family. That is not so. But we feel that the noble and learned Lord's Bill puts marriage and the family at the centre. However, if resources are not available, the last state will he worse than the first. That is the point. This is a Bill that seeks to bolster marriage, to build it up, and to provide counselling for those whose marriage has broken down. Therefore from these Benches I strongly support the noble and learned Lord's amendment, provided that we may have some fairly firm assurance that resources will be available for these extremely positive measures to support marriage and the family in such a way that it is more than just legalism.
Baroness Hamwee: In a genuine spirit of inquiry, I ask about the status of the Explanatory and Financial Memorandum to the Bill. The financial effects of the Bill are described in that memorandum. The provisions in Parts I and II of the Bill are designed to be cost neutral. The argument might be advanced that by making an investment in the services described in the amendment of the noble and learned Lord the Lord Chancellor, there will be savings made elsewhere but that, no doubt, would be over time.
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I hope that the noble and learned Lord can reassure the Committee that the provisions of the Bill have precedence over that memorandum, which will be changed, as necessary, if—as I hope—the amendment is accepted.
Baroness Young: Before my noble and learned friend rises to reply, I should like to put a question to him. I do not think that anybody can quarrel with this particular amendment.
Lord Simon of Glaisdale: I can.
Baroness Young: I bow to the superior wisdom of the noble and learned Lord, Lord Simon. I am quite certain that there is a lot in it that I have not seen. But leaving aside his point—
Lord Simon of Glaisdale: With the consent of the Treasury.
Baroness Young: Yes. Having been an ex-Minister myself I have in fact seen that before. I do not have much sympathy with my noble and learned friend on anything to do with this Bill. However, on this particular point, I see that he must put that in, whatever the noble and learned Lord says.
There is a rather more serious point that I make on this amendment with regard to paragraph (a)—the provision of marriage support services. I am very concerned about much of the briefing material that has been sent to me by organisations that purport to support marriage. On reading them, it is perfectly clear that what they support is marriage as a kind of aà la carte menu on a series of lifestyles. I shall not go into that matter now. However, it seems to me that there are a great many organisations which, when one comes down to reading about what they are doing, are not supporting marriage. They say that if it is difficult, one may do something else and so on. It is a very serious point that I make. If public money is put into anything, it should be put into making quite sure that we are supporting marriage and not a sequence of, what I understand is now the politically correct term, alternative lifestyles.
Baroness Elles: Before the noble and learned Lord replies perhaps I may put my question to him. The noble Baroness, Lady Hamwee, drew attention to the Explanatory and Financial Memorandum to the Bill and the financial effects of the Bill. There is mention of the effects of public service manpower. Will the marriage support services be entirely confined to voluntary organisations—of which my noble friend Lady Young has spoken so strongly—or will they also apply to certain professional bodies being set up by the Government; or will they rely on the Churches? By whom will the marriage support services be fielded? What kind of people are they?
Lord Simon of Glaisdale: Adverting again to the point raised by the noble Baroness, Lady Hamwee, my noble and learned friend will correct me if I am wrong but I understood the memorandum to mean that there will be a saving on legal aid and that will go

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to financing the mediation services, those two items balancing out. This amendment would impose additional cost. It would help very much if we could be told what would be the cost of the amendment annually so far as can be envisaged.
Lord Stoddart of Swindon: I hope that I can like this amendment. I should very much like to be able to like this amendment. I hope that it is not just a sop to those who are opposed to the Bill. For example, the amendment speaks of:
"(a) the provision of marriage support services".
I should like to know exactly what those support services are. The amendment continues:
"(b) research into the causes of marital breakdown".
I know that one of the great causes of marriage breakdown is lack of money. I want to know what the Government intend to do to ensure that married couples get more money—are allowed to keep more of the money that they earn. The amendment goes on:
"(c) research into ways of preventing marital breakdown".
I said at an earlier stage of the Bill that, although the Government have expressed their intention of bolstering marriage and their belief in marriage, all their actions have contributed to undermining marriage, particularly in relation to financial support for marriage. Indeed, over a long period of time, they have reduced the allowances of married couples, especially the married man's allowance, which has made it more difficult for married couples to exist and easier for couples to exist financially if they are not married. If we believe what is said in this amendment, we believe that the Government wish to put that kind of thing right.
It has also been government policy to favour the single person. I do not particularly object to that. If two people live apart—cohabit rather than marry—they can have two tax allowances. But if they are married and the wife remains at home and has no income of her own, they can only have one tax allowance plus a very much reduced in value married man's allowance. I have advocated for a very long period of time that the two allowances should be transferable. Where, in fact, a woman does not go out to work, she will then be able to hand her personal allowance over to her husband who is in work or vice versa.
Those are matters that have to be examined. If marriage is to be strengthened, it is necessary to enable one of the partners at least, if they wish to do so, to remain at home and look after their own children. It is absurd for us to give financial and tax encouragement for women to go out to work and a detriment for them to stay at home and look after their children.
If this amendment means that all those matters will he investigated—they are, believe me, very serious matters—then I am very much in favour of it. I do not want to delay the Committee beyond the dinner hour, though I could speak on this issue for a long time. I simply say to the noble and learned Lord the
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Lord Chancellor that if that is the intention and if we want to get to grips with the financial difficulties and indeed other difficulties faced by married couples, then I am all in favour and this is an amendment by the noble and learned Lord the Lord Chancellor that I could support.
7 p.m.
The Lord Chancellor: I am grateful for the support that this amendment has received. It is a considerable move from the present position. It puts on the statute book very clearly recognition of the importance of the three subject matters referred to. The phrase,
"with the approval of the Treasury"
is one which my noble and learned friend and I have discussed in a number of different contexts over quite a period. I believe that the phrase has appeared in statute both before and since my noble and learned friend was a distinguished Treasury Minister.
The noble Baroness, Lady Seear, said that the Prime Minister, as First Lord of the Treasury, can do anything. I suppose, subject to the law, that that may be true, but it is not the Prime Minister who is going to make these grants but the Lord Chancellor. Therefore, it is only natural that he should be subject in this respect to the First Lord of the Treasury. I am grateful for what the noble Baroness, Lady Seear, said in this connection. I shall do my best to get as much as I can and for it to be properly used for the purposes of this provision. Exactly what I shall be able to get from year-to-year may vary very much. I am unable to make estimates about that because it will depend on the success of the scheme. In my view, one of the matters of extreme importance is showing to what extent the work supports marriage and helps to prevent marital breakdown. The more successful the scheme is, the more likely it is to be supported. As Members of the Committee have observed, success in that connection—apart from the human relationships and those with children, which we all value as important—has important consequences for public finance.
The purpose of this clause is to enable the Lord Chancellor, with the approval of the Treasury, to make grants in connection with the provision of marriage support services. That envisages that they will he carried out by the Churches or other voluntary bodies of that kind. Many other different types of organisations are envisaged.
I particularly refer to what my noble friend Lady Young said. This clause will condition the power to make grants and therefore it emphasises the point made by her, that under this clause it will be legitimate to fund only those services which are for the support of marriage. That is what the clause says. It will clarify the matter. That is one reason why it is wise to keep the provision in this way, but it does not mean, as the noble Baroness, Lady Hamwee, asked when we debated this matter before, that children are not included. The provision focuses on marriage as the matter being supported.
The noble Lord, Lord Stoddart of Swindon, remarked on the tax treatment of married women. I see the point that he makes. He has advocated it over

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more than 17 years, but as yet he has not been successful. We have made a change in respect of any other income that the married woman has. There is separate assessment for her income. In the good old days, as some would see them—but that is not a view which I share in this respect—the income of both was aggregated. I believe that we have made some progress. The noble Lord would like to make more and he will no doubt continue to wish for that.
Lord Stoddart of Swindon: Perhaps I may make the point that that is so, but to take advantage of the situation the woman has to have some income. I fear that in most families a woman not at work has no income at all and that is the problem.
The Lord Chancellor: I understand that. I have to look at what has been done. Where people have between them income-bearing property, it is possible, as long as it is not a pension or a salary, for the woman to get the full benefit of that income and therefore the full benefit of a separate assessment. 1 understand that if she has no income she cannot get tax allowances. That applies whether she is married or single. In other words, though the noble Lord compared the married state with the unmarried state, he must compare like with like.
In the noble Lord's example of unmarried people the woman has to have no income, and if she has no income, she will certainly not receive any kind of tax allowance. Therefore, in comparing like with like, I believe that this Government have improved the situation although not as yet to the state that the noble Lord, Lord Stoddart, would like to take it. We have made progress and I hope that the noble Lord will be generous enough to acknowledge that. I also believe that we have made progress with this provision. The approval of the Treasury is a small price to pay for having this power in the Bill.
Lord Simon of Glaisdale: Is my noble and learned friend inclined to answer the two questions I asked? First, does the financial preface really envisage that the cost of mediation will be paid for by a saving on legal aid and, secondly, how much is it envisaged will he payable under this new clause?
The Lord Chancellor: As regards the new clause, as I said it will vary from year to year. Therefore, it will be unwise to say precisely what may come from that. The Explanatory and Financial Memorandum refers to the Bill as introduced.
As regards the cost of mediation, it is so far as it requires to be borne by the Legal Aid Board under the extensions. As regards mediation and services, I hope that the people who are able to pay for them will do so. That is the situation that obtains. However, this Bill enables the Legal Aid Board to incur costs for mediation, which is not the present position. The costs incurred for mediation in that respect, paid out of the public purse, are likely to be about the same
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as the savings in legal aid which otherwise would be defrayed in respect of the representation that will become unnecessary if this Bill takes effect.
Lord Simon of Glaisdale: I am much obliged to my noble and learned friend for the answer to that question. As regards the first question, I should like him to give an estimate of how much is likely to be spent on the support services, although he may not be in a position to do so at present.
The Lord Chancellor: I would prefer not to at the moment. This is a completely new provision. There has been no payment under it until now. The responsibility for making grants in this area has been with the Home Office. The matter was transferred to the Lord Chancellor's Department when the White Paper was published. Some grants have been made without the need for statutory authority. I believe that the statutory authority makes a difference and for my part, as has been said, I would wish to use this provision effectively, but it would be unwise for me at this juncture to estimate how successful I shall be in getting money.
Lord Coleraine: I believe that my noble and learned friend is quite clear on the point, but I ask him to confirm that in referring to marriage support services supporting marriage, he is speaking entirely of existing marriages and not marriage support services supporting, in anticipation, marriages which may form later on when existing marriages break down. A concern which many of us have about the expression "marriage support services" is that they may also extend to treating existing marriages as only part of a large problem and try at the same time to support the anticipated future marriages, which I do not believe should be the case and I do not believe it is what my noble and learned friend has in mind.
The Lord Chancellor: I am not sure that I fully understand the question, but let me attempt an answer and then if it is not the right answer to the question, my noble friend will correct me. When two people are married but their relationship has broken down and they are contemplating divorce, trying to consider whether the marriage has broken down irretrievably, I would think that a marriage support service could properly help them to keep the marriage together.
One of the purposes I have in mind in this Bill is that where parties are married they will face up to the responsibilities of that marriage before it is dissolved. I think that that is extremely important. As I have said earlier, the rate of breakdown in second marriages is very high and I believe part of the reason for that is that people have not faced up to the responsibilities of their first marriage before going into a second one and that the obligations and so on of the first marriage have continued to affect the relationships of the people in the second marriage. So part of the purpose of this Bill is to require people to face up fully to their obligations under the first marriage before they are divorced. However, there is no question so far as I am concerned of a grant being made to an organisation to help them

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move the people who are in a situation of marriage breakdown in a first marriage into a later marriage, not at all. On the other hand, the provisions of this Bill, if they work as I have said, will have the effect of making the chances of success of a second marriage better than they are now.
Of course, marriage support services would include a future marriage. I think that preparation for marriage is an important part of the whole situation and I believe it would be right, if at all possible, to help services that are designed to help people who are entering marriage to make them ready to understand and fulfil the commitments which I believe a proper marriage requires. In that sense it is a future marriage, but I think that perhaps my noble friend was concerned that I was trying to encourage people to get out of one marriage and into another. That is the last thing that I would want to do, but I would wish to support, if it was possible and necessary—that is, assuming they were needed—services which help people to prepare adequately for marriage. I hope that I have answered my noble friend's question.
Lord Coleraine: My noble and learned friend has understood me and has answered my question. I do not think he is saying that he would consider a marriage support service endeavouring to preserve an existing marriage as in any way preparing for a second marriage.
The Lord Chancellor: That is so, but I think that the obligation to face up to the responsibilities of the first marriage is an important step to take and it would help the success of a second marriage, if people want to go into that. That, in my view, is important in itself for a first marriage. I think that this is facing up to the responsibilities that people have undertaken. That is an important part of this Bill and an important change from the existing law. I believe it will be effective and that it will also have the effect that, if someone goes into a second marriage, the chances are that the second marriage has a better chance of survival because the responsibilities of the first marriage have been faced and taken into account before that second relationship has been entered into.
7.15 p.m.
The Lord Bishop of Worcester: The noble and learned Lord the Lord Chancellor has spoken extremely well on this because there is obviously in all our minds a terribly important concern for the state of marriage and the family, our present society and our present crumbling culture. Obviously we want marriage to be restored to the lifelong commitment it always has been. However, we must live in the real world. Anyone who is a parish priest knows perfectly well that there are people for whom the second marriage is the real marriage. It becomes a Christian home where children are brought up according to the best approved ways within Christian marriage. I hope, as I have already said in this Committee, that we shall not think that somehow you bolster marriage by making the divorce laws more punitive; you do not.
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What we want is good marriage. I do not want to be anecdotal, but time and time again we meet people who have made an undergraduate marriage, who have married because their mother and father wanted them to, have married an unsuitable person and then, older and wiser, they actually make a second marriage. If they have been helped along the lines indicated by the noble and learned Lord, then their second marriage can be the success we know many of them to be, although of course I realise the statistics show that if people go straight out of one marriage into another, very often the second one gets just as far as the first one did and then breaks down again. We do not want that. We want to make laws in this country which will be positive and will make for good marriage. That is our aim in life. We are not saying it is just one other life-style among many. If I may say so, it is not right to suggest that bodies like Relate, Catholic Marriage Guidance and One Plus One are of that ilk. They are not. They want to support marriage and the family. Let us support them, for they have a lot to offer.
On Question, amendment agreed to.
Lord Lucas: I beg to move that the House be resumed. In moving this Motion, may I suggest that the Committee stage begins again at 8.15 p.m.?
Moved, That the House he now resumed.— Lord Lucas.)
Lord Simon of Glaisdale: May we know, at any rate when the Committee stage begins again, at what time the House will rise? What happened on Tuesday was profoundly unsatisfactory; indeed a discredit to Parliament.
Lord Lucas: I will certainly talk to my colleagues and to the usual channels, and I will report the results of that conversation to the noble and learned Lord.
On Question, Motion agreed to.
House resumed.

International Tribunal for the Law of the Sea (Immunities and Privileges) Order 1995
7.18 p.m.
Viscount Goschen Viscount Goschen rose to move, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committee].
The noble Viscount said: My Lords, I beg to move that the International Tribunal for the Law of the Sea (Immunities and Privileges) Order 1995 be approved. In moving that Motion it may be for the convenience of the House if I also speak to the International Sea-Bed Authority (Immunities and Privileges) Order 1995 and to the Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order 1995.
These three orders will enable the Government to implement the provisions of the 1982 United Nations Convention on the Law of the Sea, with a view to the United Kingdom's forthcoming accession to the Convention.

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The convention was the product of the third United Nations Conference on the Law of the Sea, which was held over ten years between 1973 and 1982. The aim of the convention was to establish a comprehensive legal regime for the oceans. In this it is largely successful and is beneficial to United Kingdom interests. It confirms important rights, such as the freedom of navigation and overflight. It provides for a package of maritime limits: notably a maximum of 12 miles for the territorial sea and 200 miles for the exclusive economic zone, within which coastal states have jurisdiction for the conservation of natural resources and the protection and preservation of the marine environment. These maximum limits are generally accepted and have caused some states to withdraw more extravagant and unjustified claims. The convention also contains extensive provisions on the peaceful settlement of maritime disputes.
The Merchant Shipping (Prevention of Pollution)(Law of the Sea Convention) Order is one element of the package of 18 tough new measures to reduce illegal discharges of wastes from ships, which was launched yesterday. The package includes measures to tighten the regulations, to improve enforcement of the regulations, to improve port waste reception facilities and to improve awareness of the problem among shipowners.
I am pleased to say that this new initiative, which was achieved following lengthy consultations with all interested parties—including ports, users, waste companies and environmental groups—will put the United Kingdom at the forefront of international action on the discharge of waste from ships. A number of measures flow as a direct result from the report of the noble and learned Lord, Lord Donaldson, Safer Ships, Cleaner Seas; some go beyond the recommendations encapsulated in that report.
The Merchant Shipping (Prevention of Pollution)(Law of the Sea Convention) Order will help us to enforce the regulations on marine pollution from ships. Currently, we are only able to bring prosecutions for pollution offences which occur in our territorial waters. This is not a satisfactory state of affairs, as we are sometimes able to identify ships which pollute waters just outside the 12-mile limit. At present, our only recourse in such cases is to report the incident to the ship's flag state. Experience has demonstrated, however, that that is rarely an effective means of bringing sanctions against polluters.
This order will permit the Department of Transport to make regulations which will greatly increase our ability to prosecute polluters. As proposed by the inquiry of the noble and learned Lord, Lord Donaldson, we will take powers to the maximum extent consistent with international law. That will allow us to bring prosecutions for illegal discharges which occur up to 200 miles from the UK coastline. We will also introduce provisions to enhance our co-operation with neighbouring states by making it possible for UK courts to prosecute ships which have polluted other states' waters.
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The other two draft orders confer privileges and immunities on two new international institutions established by the Law of the Sea Convention: the International Sea-Bed Authority and the International Tribunal for the Law of the Sea. Privileges and immunities need to be conferred in order for the Government to meet their international obligations under the convention.
In relation to the International Sea-Bed Authority, the privileges and immunities are to be similar to those provided for in the 1947 Convention on the Privileges and Immunities of the Specialised Agencies of the United Nations. As regards the International Tribunal for the Law of the Sea, they are similar to those conferred on the International Court of Justice.
The authority is located in Jamaica and the tribunal in Hamburg. In practice, therefore, there are only likely to be claims for refunds of VAT on goods and services purchased in the UK for the official purposes of the organisations. The privileges and immunities conferred by the orders are, of course, granted in accordance with the limitations imposed by the International Organisation Act 1968, as amended, under which the orders are made. I commend the order to the House.
Moved, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committed].—(Viscount Goschen).
Lord Clinton-Davis: My Lords, I thank the Minister for speaking on these three draft instruments in the way that he has, particularly as the one which falls within his own remit was hardly dealt with by the Foreign Office Minister in another place. That is regrettable and there are therefore a number of questions I wish to put to the Minister in that regard. I gave him notice of the questions. This is not a controversial party political matter; it is a matter in which a number of bodies outside the House are interested.
I wish to say at the outset that the Opposition support all three statutory instruments. We believe that they arc important and I welcome many of the measures that the Minister announced yesterday. I have not had time to digest them all but they represent an important contribution to the defence of the maritime environment. Again, I want to put a number of questions to the Minister in that regard, of which I have not given him notice because it is only within the past one-and-a-half hours that I have managed to obtain copies of the documents concerned.
In addressing the first two statutory instruments, which are within the remit of the Foreign and Commonwealth Office, we particularly welcome what has happened. I should perhaps declare an interest at this stage in covering all three matters, in that I am chairman of the Advisory Committee on the Protection of the Sea.
Viscount Goschen: Hear, hear!
Lord Clinton-Davis: My Lords, at last I have done something which meets with the approbation of the Minister. I am glad about that.

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That body, in 1952 when few people were even talking about the "environment", was established by my noble friend Lord Callaghan, who showed a substantial measure of prescience in so doing. Since then it has taken a keen interest in these policies. It is over 13 years since the final text of the Law of the Sea Convention was accepted at the Plenipotentiary Conference in Jamaica in 1982. The United Kingdom then joined the United States and other G7 states in not signing because of problems it thought it had with Part XI in relation to deep seabed mining. But 155 states signed within the first year and further negotiations ensued over a long period of time. It was not until 1994 that the G7 countries felt that their objections to Part XI had been satisfactorily resolved.
The statutory instruments are designed to ensure that the United Kingdom can meet the obligations of the convention and to take advantage also of its opportunities. However, will the Minister confirm that many of its provisions are part of customary international law and are therefore already binding on the United Kingdom and other states—for example, rights in territorial waters; the 200-mile fishery zones; the rights of transit passage through straits such as the Dover Strait and rights over the Continental Shelf?
Ratification of the convention by the United Kingdom remains important because it allows this country to participate in the new institutions, as the Minister outlined, established by the treaty and to take advantage of the new rights; for example, to control pollution in the 200-mile exclusive economic zone.
In our view the instruments cover key issues, including inter alia privileges and immunities to institutions established by the convention. The Minister dealt with the International Sea-Bed Authority and the International Tribunal for the Law of the Sea. I sincerely hope and believe that the new authority will not be another high-spending international institution, and that the voting system has been adjusted to ensure that the interests of developed states are well represented in the decision-making process.
I believe the tribunal is to be based in Hamburg and will represent the flagship of the new significant dispute settlement procedures based on the convention. Perhaps I can say in parenthesis that I wish Mr. David Anderson, of the Foreign and Commonwealth Office, who is to be the United Kingdom nominee for the tribunal, every success in the challenging role that he will face.
I turn from that to the third statutory instrument, which again we welcome. It will enable the United Kingdom to take advantage of Part XII of the convention, which grants more extensive powers to coastal states to exercise control over pollution from ships within the 200-mile zone. Is it right that the United Kingdom does not propose to claim formally a 200-mile exclusive economic zone but will be designating an area of the sea above its Continental Shelf as an area in which pollution control powers may be exercised? If that is right, would the Minister be kind enough to explain the reasons for taking that course?
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Having said that, it may be a little academic because I recognise that the really important issue is that the United Kingdom will now claim the powers to regulate vessel-source pollution in waters to be designated but which presumably will be up to 200 miles from the coast or the agreed boundaries with our neighbours, since the Secretary of State will be designating the geographical area within which the United Kingdom will exercise these powers and by which it will be able to apprehend, inspect and punish violations of the convention in those areas. Can the Minister inform the House when the United Kingdom proposes to ratify the convention, which is justifiably called (because of its general application and its fundamental impact on all matters concerning the oceans), a Constitution for the Oceans? It would be helpful if the Minister could throw some light on that because it is important.
I turn now to a number of issues germane to maritime pollution. Will the Minister confirm that, although vessel-based marine pollution remains a significant threat and the Government are determined to do a great deal about it, a far larger threat to the marine environment is represented by land-based sources of marine pollution, accounting for something like 85 to 90 per cent. of all marine pollution? That is not generally recognised by the man or woman in the street who thinks that such pollution comes entirely from ships at sea, but that is a wrong perception.
Does the Minister agree that an obligation arises from Agenda 21 of Chapter 17 of the Rio Agreement, as well as from Chapter 28 which deals with the role of local authorities and which is known as "Local Agenda 21", for signatories to take effective steps to deal with those issues? Is the Minister aware that the Advisory Committee on the Protection of the Sea has played a significant part in seeking to marshal a coherent contribution from local authorities internationally in that regard? What are the Government doing in positive terms to make a meaningful contribution to reinforce those efforts from an NGO to which many local authorities have responded well?
Does the Minister agree that the real importance of this draft statutory instrument is that it must be effectively enforced as well as implemented? MARPOL 1973 was designed—and its objective remains—to achieve:
"the complete elimination of international pollution of the marine environment by oil and other harmful substances"?
The United Kingdom has implemented the MARPOL obligations by the Merchant Shipping (Operations Book) Regulations 1988, but how well is that being enforced? Are threats posed to its proper enforcement as a result of cuts in the Coastguard Agency and in the Marine Safety Agency? Can the Minister safely assert tonight that there will be no compromise with safety as a result of those cuts? I am sure that he will aver that that is the case, but a mere assertion is not necessarily the whole story.
The Minister must justify the position that the Government are taking because, on the face of it, a serious review of the coastguard service could result, as I understand it, in a loss of something like 10 to 15 station officers around the United Kingdom, with

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380 auxiliary coastguards being replaced by people known as "watch assistants". What will be the difference in the effectiveness of the roles to be performed by the watch assistants as against the auxiliary coastguards? How well trained and skilled will they be? Would it not be much more desirable, especially from the point of view of those who are seeking to deal with a polluting ship or seeking to help somebody in difficulty, to have a more highly skilled and trained force available? What impact will there be on safety? I have to ask the Minister whether it is not really all about saving money so that the Department of Transport can makes its contribution to tax cuts before the next election. In that context, my last question is: can the Minister say something about the areas most likely to be affected by the changes?
I should like to say a word or two about the Marine Safety Agency. Further pressure will be imposed on the MSA to reduce its staff at a time when it will be taking on new responsibilities. They are set out in some of the 18 new measures to combat marine pollution from ships which the Minister announced yesterday. The MSA is already under pressure and is delegating more than ever to classification societies. There is a debilitation of its surveying staff and I believe that, as a result, there has been a reduction in this country's influence not merely at present, but more importantly for the future, with regard to important maritime councils. That will be the inevitable effect of a lack of surveyors.
Can the Minister say something about aerial surveillance? There is reason to suppose that that is not being enforced as effectively as one would wish even within the 12-mile limit, so how is it likely to be effective within the new 200-mile limit?
I turn now to fines. I welcome very much what the Minister said. Indeed, I began to prepare my notes before seeing what the Minister was going to say, which is pertinent to my own thinking. The fines that applied previously were hopelessly inadequate. Therefore, the suggestion that is now emerging from the Department of Transport is very much to be welcomed and I congratulate the Minister on it. Like his officials, he has realised that much more draconian penalties are required if there is to be a suitable deterrent.
I also very much welcome what the Minister said about waste reception facilities. The Royal Society for the Protection of Birds was particularly concerned about that and drew my attention to the serious pollution which occurred last September off Flamborough Head and to another incident on 27th December when a very large number of oiled birds were found. The RSPB may well have drawn the attention of the noble Baroness, Lady Thomas, to that also. The RSPB has asked that regional waste auditing systems should be put in place to supplement aerial surveillance. That system already operates in the Netherlands. I may be wrong but I have not yet seen any reference to that, so the Minister may want to say something about it. I must ask: if it is working well there, why not apply the same system here?
I turn now to some of the other points raised in the Minister's press release and in the document that was published yesterday. The Minister referred to the waste
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management plans which are designed to improve port waste reception facilities and to encourage shipowners to use them instead of dumping their waste at sea. That is a commendable suggestion. However, following consultation, the Minister is proposing to introduce that on a voluntary basis, reserving the right to introduce a mandatory requirement if that breaks down. Given that we are not talking simply about British flagged ships, but about flags of convenience which show little regard for voluntary systems, why should the Minister believe that a voluntary system is likely to have any real effect? I repeat that it is not only British ships which use British ports, but those of many other nations.
The Minister said in the statement that parliamentary approval for the plan would be sought at the earliest opportunity if it was necessary to make it a mandatory requirement. I believe that it is necessary to introduce a mandatory requirement in any case, but can the Minister say anything about the bid that he will make in the next Session of Parliament—if we have one, which is a moot point? We would wish to pursue that proposal when we take office after the next election.
The Minister spoke about the scale of charges. It is a difficult question, as I recognise. Can he say what scale of charges he has in mind? Will the ports he able to discharge those expenses? What consultation is going on within the EU? I doubt very much whether we can expect to make rapid progress within the IMO, but perhaps we can hope for some more purposive efforts to be made within the EU.
Is there any reason to suppose that mandatory requirements in relation to the regime for waste disposal and the enforcement of marine pollution regulations that the Minister has in mind are being applied elsewhere in the EU at present? Having asked those questions and been a little critical—not very much—I hope that the Minister recognises that we shall use our best endeavours to ensure that the proposals he is putting forward, for which I once again thank him, and which are essentially constructive and helpful, will be a positive support for cleaner seas round the coasts of the
UK. I thank the Minister for the way in which he has dealt with the matter.
Baroness Thomas of Walliswood: My Lords, I shall attempt to be brief. I do not have many questions to add to the large number which have already been asked. We welcome the first two draft orders relating to the International Tribunal for the Law of the Sea and the International Sea-Bed Tribunal. I too should like to know how soon we are likely to complete our accession to the convention.
On the merchant shipping order, I understand that in relation to the North Sea lines will he drawn on the map which will divide the North Sea into regulatory zones according to each nation which borders onto the North Sea. I managed to get in touch with one of the Minister's officials. I wonder whether there is going to be a hole in the middle of the North Sea. I hope there will not be. One could imagine a sort of doughnut of orders with a gap in the middle. I hope that that has not happened. I imagine also that there will be a much greater

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extension of our zone and those of other nations towards the Atlantic Ocean. I see from noble Lords shaking their heads that that will not happen. I shall be interested to hear how it will be done. That comes under Article 2 of the order.
I welcome the fact that we and other nations will be able to exercise greater control over pollution by merchant vessels at sea. I support the power to fine up to £50,000 which I gather to be attached to the order. The important matter which was referred to earlier is the prevention of such merchant vessels from discharging at sea by encouraging them to discharge at ports. However, I am not satisfied with the idea that ports will not be obliged to make a waste disposal plan. A large number of other companies—a port is a large company—are obliged to do so in the context of local government and so on. The disposal of waste is a serious issue, no matter where it is generated. It is becoming more and more serious with every day that passes. So I hope that we can move to a satisfactory regime in that respect.
The one question I have to ask is whether it is presently in the Minister's mind to enable ports which have such regimes to charge vessels entering their ports in such a way that vessels are encouraged, because they have had to pay for the discharge process in any case, to discharge their waste inside and not outside the port.
7.45 p.m.
Viscount Goschen: My Lords, in the end, we have had a rather different discussion from that which occurred in Standing Committee in another place. I welcome that, because we have had an opportunity to discuss a number of important issues surrounding marine pollution and the measures that we are taking to prevent it. I welcome the remarks on that subject made by the noble Lord, Lord Clinton-Davis, and the noble Baroness, Lady Thomas.
The noble Lord asked me a number of questions. He was good enough to let me know in advance the subjects that he wanted to raise in the debate. It might be helpful if I said in the first instance that the package of measures that we have announced will go a great deal of the way towards addressing the problem of pollution from vessels. A number of intricate questions were asked. Some were to do with charging and some to do with the facilities being provided. I hope that I shall be able to deal with them during the course of my remarks.
The important point is that ships should discharge their waste, be it garbage, oily waste, chemicals, noxious substances, or whatever, in properly provided facilities in port rather than chuck them over the side when they are at sea, which is always the easy option. Our enforcement to stop that so-called easy option will be a major plank of the regulations.
The noble Lord raised the issue of whether some of the provisions contained in the convention are not already part of the legal system, agreements or arrangements. The noble Lord is right. Many of the provisions are now customary in international law, but the law is obviously much more certain when agreed internationally by the convention. It confirms a number
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of those points. I can confirm that the authority will not be a high spending body. It will be of modest size, but we hope very effective.
The noble Lord also asked me whether we would establish the exclusive economic zone. The rights and obligations given by the convention are more important than just the name. As the noble Lord said, we have had a 200-mile fisheries zone since 1976. The Continental Shelf, which extends beyond 200 miles, is regulated by its own Act—the Continental Shelf Act 1964.
The prevention of pollution order will allow the UK to declare jurisdiction over marine pollution out to 200 miles. We are considering the case for the declaration of a zone. I believe that is the answer to the noble Lord's question. We shall, of course, keep that firmly under review. We have already exercised most of the rights covered by that zone.
I was asked by both speakers when we will accede to the convention. We have, of course, already announced our intention to do so. The Government will be in a position to accede to the convention once the remaining necessary procedures have been completed. Most of the legislation to give effect to the convention is already in place. The consideration of these orders this evening is an important part of that process.
The noble Lord inquired about sources of pollution. He welcomed what we are doing to address pollution from vessels, but asked about pollution from land. That is a different and bigger subject, but I happened to glance at a few figures which were incorporated within the report of the noble and learned Lord, Lord Donaldson. I understand that an estimate has been made about the sources of pollution. In that document we see that waterborne land source pollution accounts for about 44 per cent. of the total; airborne land pollution some 33 per cent.; marine transportation some 12 per cent.; marine dumping, which is mainly land source waste, some 10 per cent.; and offshore oil production some 1 per cent. That reinforces the point which the noble Lord made about the degree of the problem from pollution coming from the land. It is an issue that we address on a number of different fronts. That is not to say that the 12 per cent. which comes from marine transportation, according to this particular estimate, is not important. We must do everything we can to address that matter.
The noble Lord asked me about enforcement, which is a key issue. It is vital that we enforce the provisions effectively and a number of tools are available to us. Aerial surveillance is extremely important. It is not the only method but it is one of the tools at our disposal. Masters of ships should be aware that the whole of our sea is regularly patrolled by remote sensing aircraft and we will continue to pursue aerial surveillance. It is an extremely good deterrent and it is also helpful for distinguishing the various vessels which are responsible for the pollution.
The other aspect of enforcement relates to the Marine Safety Agency, a matter that was raised. I believe that the agency has a good record in port state control which is an issue that we pursue according to the provisions of

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the Paris Memorandum of Understanding. We inspect some 30 per cent. of vessels when our obligation is to inspect some 25 per cent.
The noble Lord, Lord Clinton-Davis, invited me to give an assurance as regards the continuing effectiveness of both the Marine Safety Agency and the Coastguard Agency. Of course I can give that firm assurance. Both agencies do a splendid job and I can give an absolute assurance that they will continue to perform their roles, which are safety and pollution related. The Coastguard has a marine pollution control unit which is a valuable resource in combating pollution.
Lord Clinton-Davis: My Lords, I am grateful to the Minister for giving way. I expected him to give that assurance, but how does it weigh against the serious depletion in the numbers of an already depleted MSA and Coastguard? It is difficult to reconcile the further incursions as regards the number of people employed against the essential criteria of safety, which I know the Minister respects. However, I fear that the Treasury may have a serious effect upon his thinking.
Viscount Goschen: My Lords, we must judge by results, and the results put out by both agencies in terms of the work that they have done over the past years show chat they have been extremely good at their jobs of enforcing safety measures and of co-ordinating search and rescue. In consideration of the budgets, at the top of our list of objectives is to maintain an efficient and proper service for people who go to sea and to prevent pollution. That will continue to be the case and, as requested, I can give an assurance about that.
Both the noble Lord and the noble Baroness raised the issue of fines. It is important that we seek powers to raise the level of fines. The noble Lord, Lord Clinton-Davis, referred to Draconian penalties but believe that a big stick is indeed required in this case because we have often seen some serious incidents. Having the ability to fine people a large sum of money is extremely beneficial in terms of the tools at our disposal.
I turn to the waste management plans. Of the package that was announced, that is the key measure, and where we see planning between all the bodies involved. On a number of occasions insufficient information is available about the facilities provided at each port; for instance, whether there is a facility for receiving oily waste, noxious substances, chemicals or whatever. The consultation that was undertaken with the industries—and I stress the plural—was long and took into account a wide spectrum of organisations. It was considered to be the most effective method and I believe that it will produce major benefits. We have said that initially the plan will be introduced on a voluntary basis and at the earliest opportunity we will be seeking powers to make a mandatory requirement for the facilities and the planning stage that we have spoken about. I referred to the earliest opportunity and we will have to see when that is. There are a number of issues in the merchant shipping world that can perhaps be brought together with legislation. I believe that the issue of waste reception facilities is important and it should have its due priority.
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The best way to answer the noble Baroness, Lady Thomas of Walliswood, is to send her a map. It is not easy to describe accurately any potential holes about which she might be concerned. I will write to the noble Baroness with a map. I hope that that will give her confidence hut, if not, perhaps she will be good enough to come back to me.
I hope that I have covered the majority of the points. If I have not, and I will look through the record, I will write to the noble Lords concerned. I believe that the orders we are considering tonight are important. They add a great deal to our ability to govern the sea properly and to ensure the minimum pollution possible. I commend the orders to the House.
On Question, Motion agreed to.

International Sea-Bed Authority (Immunities and Privileges) Order 1995
7.56 p.m.
Viscount Goschen Viscount Goschen rose to move, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committee].
The noble Viscount said: My Lords, I have already spoken to this order. I beg to move.
Moved, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committee].—(Viscount Goschen.)
On Question, Motion agreed to.

Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order 1995
Viscount Goschen Viscount Goschen rose to move, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committee].
The noble Viscount said: My Lords, I have already spoken to this order. I beg to move.
Moved, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committee].—(Viscount Goschen.)
On Question, Motion agreed to.
The Earl of Courtown: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.58 to 8.15 p.m.]

Family Law Bill [H.L.]
House again in Committee.
Clause 19 [Interpretation of Part 1 etc.]:
[Amendment No. 163B not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 164:
Page 10, line 12, at end insert—
(""mediation" means family mediation conducted by a person accredited as a mediator in family mediation to an organisation which is concerned with such mediation and which is approved for the purposes of this Part by the Lord Chancellor;").
The noble Baroness said: On the groupings list, Amendments Nos. 164 and 169 are down as having been dealt with. Unless I was fast asleep I did not deal with them and I therefore deal with them now. I will take Amendment No. 164 together with Amendment No. 171.
Both the National Family Mediation and the Family Mediators Association are currently regulated by their own joint code of practice, and we discussed the question of codes of practice earlier. The mediation organisations consider it important that, in addition to a code of practice, there should be a structure of accountability to ensure that the public can be certain that the standards of mediation are high and will remain high. That is in line with what my noble and learned friend has set out in paragraph 6 of the White Paper Looking to the Future.
There are two amendments because Part I of the Bill deals with the introduction of mediation into the divorce process and Part II deals with the legal aid funding of mediation through the Legal Aid Board. In Part I it is important that every couple referred to mediation should know that the mediator will be an accredited mediator. In Part II it is important that public money—legal aid funds—should go only to accredited mediators. One of the organisations which may be referred to in these amendments is the newly-formed United Kingdom College of Family Mediators. However, it is a new body and it is not at present clear whether it will regulate all the mediation carried out in the United Kingdom. Possibly other regulatory bodies will come into being.
That is the reason for the rather convoluted language of the amendments, which is drawn from the Civil Evidence (Family Mediation) (Scotland) Act 1995 which was taken so ably through your Lordships' House last year by my noble friend the Baroness Carnegy of Lour. We should not presume necessarily to lift legislative language from the Scots, but where they have succeeded we might well follow. I am sure my noble and learned friend will agree.
If my noble and learned friend agrees with me that something similar to these amendments should appear in the Bill, one amendment to cover both Parts I and II, perhaps with rather shorter wording, would be welcome.
As to mediation itself, I regret that there seems to be some misunderstanding of what is involved. It is true that mediation begins when couples have come to the conclusion that their marriage has ended, but it is not true that the mediation process is insensitive or unprofessional, as some have felt it necessary to imply.
Always at the outset of mediation, the mediator will explore with the couple, either separately or together, whether they are really convinced that the marriage has broken down irretrievably. If there is any indication that that may not be the case, the couple will be referred for
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marriage guidance if they are willing. If the marriage has indeed broken down, infinite pains are taken with the couple to work out arrangements for the children with the best interests of the latter forming the basis of these often very painful discussions.
The mediators carrying out such work are all carefully selected according to strict criteria. They receive both broad training in core skills and specialist training in particular areas, such as consultation with children and screening for domestic violence, as well as the technicalities of financial and other practical matters. After training, they are supervised for a considerable period before being accredited; but they are not accredited if they do not reach the standards required. The current training methods and requirements for standards are similar to those adopted in the United States of America and the rest of Europe, as well as being in line with the approach taken in the United Kingdom. Mediation in this country is carried out to very high standards. The amendments would ensure that those standards are maintained and that the public would know that the standards are high. I beg to move.
The Lord Chancellor: I fully understand what my noble friend wishes to achieve. I believe that it will be clear that public money will not go to any body or profession, except in so far as they are satisfactory to the Legal Aid Board which will be working on the Lord Chancellor's behalf in that connection. As I said earlier—and I believe that this is right—it would be a good idea for the Lord Chancellor to have power under the Bill to make a code of practice which might well be along the lines of that which the professional bodies will issue. Nevertheless, it would be quite good for the Lord Chancellor to have such a power. In my view, it would be right for the Legal Aid Board to be confined to those services which acted in accordance with, and adopted, the code. As with legal services, we would wish to have arrangements under which the quality would be of a proper kind.
The first part of the Bill is a little more difficult to regulate. Outside people who want to start up a service could offer such services to people; indeed, they may have different ways of doing so. The public would be able to know which bodies were approved by the Lord Chancellor and the Legal Aid Board for the purposes of legal aid. Therefore, they would have confidence in contacting them. However, I feel somewhat reluctant to attempt to regulate the whole profession. I say that because it is a developing profession and, just as is the case with the legal profession, it would be quite wrong to regulate it at government level. I do not believe that the Government should be in the position of, so to speak, dictating to the profession precisely how it should go about matters.
On the other hand, where public money is being used for the purpose of purchasing particular services, it is clear that the Government need to be satisfied on behalf of the public purse that that is an appropriate position. Therefore, I intend to make it clear that the legal aid money—that is, in the second part of the Bill—is regulated in that way. Nevertheless, in the light of what I have said in relation to the first part, I hope that my

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noble friend will feel that it would be right to allow that to develop and give people the indication that there will be services which are provided for legal aid which would also be available for other people and which would, therefore, have a stamp of quality upon them. That might be a reasonable guarantee to people that the services were of the appropriate standard.
Baroness Faithfull: I thank my noble and learned friend for that explanation. I agree with him as regards the second part, but, as for the first part, I think that it is most important, even at the beginning of the service, that the public should have complete confidence in the mediators. It is also important that the professional people working in the field should have complete confidence and that the mediators are well trained and accredited.
I understand that my noble and learned friend feels that such a task should not be undertaken by his or any other government department. I shall, therefore, give thought to the matter and discuss with the mediation service how the public could be helped to understand that it is a professional service; as, indeed, it is. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 165 to 167 not moved.]
Clause 19 agreed to.
Clause 20 [Connected proceedings]:
[Amendment No. 168 not moved.]
Clause 20 agreed to.
[Amendment No. 169 not moved.]
8.30 p.m.
Clause 21 [Legal Aid for mediation in family matters]:
Lord Stallard Lord Stallard moved Amendment No. 169A:
Page 11, line 15, after ("to") insert ("reconciliation or").
The noble Lord said: In moving the above amendment I shall, with the leave of the Committee, speak also to Amendments Nos. 169B to 169D, 171A to 171E, 172A and 175A to 175E. I grouped the amendments together because there is a link which runs through all of them and it is quite just that they should be dealt with as a group. The aim of the amendments is to promote the possibility of reconciliation right up until the time of divorce. I first mooted the question of reconciliation at Second Reading. Since then I have received shoals of correspondence. That carried on right up until the Committee stage and the very first amendment. From the correspondence that I have received from organisations and individuals, I am convinced that there is an overwhelming desire for reconciliation to form part of the Bill.
Therefore, my amendments want to take the matter to the last stage. In promoting reconciliation, I want to provide legal aid for such services. I want to encourage reconciliation during the first six months after one or both of the spouses have made a statement of marriage breakdown. My amendments would provide for the funding of reconciliation on the same basis as applies for mediation. If a person's financial circumstances
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qualify him for legal aid in mediation, then he would automatically qualify for legal aid for reconciliation purposes. In Amendment No. 171D, I am restricting the legal aid funding for mediation during the first six months of the one-year waiting period.
Amendment No. 171E makes it clear that reconciliation is voluntary. Both parties and the counsellor must consent before legal aid funding can be used. I know that I do not have to go into a long and lengthy speech about the need for reconciliation, as I have already made two or three such speeches which, I believe, attracted some support even from the Opposition Front Bench. Indeed, on the first day of Committee I was delighted to hear my noble friend Lord Irvine of Lairg say that the Bill did not promote reconciliation and that he felt it ought to do so. Of course, he is quite right. I welcome his support.
The amendments would guarantee funding for reconciliation as of right to every person who is also qualified for mediation funding. Funding for reconciliation services is vital. People who qualify for legal aid will be able to use the conciliation or mediation service.
There was a lengthy discussion on mediation in relation to Amendment No. 162. We heard the response of the noble and learned Lord the Lord Chancellor. Reconciliation is not dealt with adequately in that amendment because it deals with organisations. I agree that organisations concerned with reconciliation should be funded, whether or not they are affiliated to the Church. Amendment No. 162 does not give any guarantees to individuals that they will be assisted in the process of reconciliation. It is essential that individuals are consulted and given the opportunity to seek reconciliation and that they can obtain legal aid for that process. The amendments deal specifically with the needs of individuals and their entitlements.
The right reverend Prelate supported Amendment No. 162. We have been critical of some statements that have been made by the right reverend Prelates, but some of us are worried about what they have not said and that they have not been taking any lead in saving marriages. That is the concern, how to save marriages.
It has been stated that the first marriage failed because children did not listen to parents, and that the second marriage was a far better marriage. My experience is not dissimilar. I have discovered that first marriages often break up because children did not listen to their parents' advice and the second marriage was a success because they realised that they should have listened to parents in the first place. That is a slightly different slant to the matter, but there are as many cases of that as for other reasons.
From my research I have found that the state spends over £3 billion per year on the consequences of divorce. If the amendments are carried, they will save marriages and save money. Income support and social security benefits, for example, will be saved, so saving marriages is more economic for the Government than financing the consequences of divorce.
I ask that the amendments be given serious consideration. They can be included in the Bill as they are because they are very simple and self-explanatory. We have debated the need for reconciliation. Amendment No. 175E puts legal aid funding for reconciliation on the same basis as mediation, and I do not think there can be any argument about that.
I hope that the noble and learned Lord the Lord Chancellor will accept the amendments; if not, I shall be grateful if he can give reasons as to why they cannot be accepted. I beg to move.
Baroness Faithfull: I am a patron of the National Mediation Service together with the noble Lord, Lord Habgood. I have spent some time with the officers of that service and I understand that the purpose of mediation is to help people to come to terms amicably with what will happen to the assets, the children, living arrangements et cetera. That is quite different from the specific reconciliation that is done by the voluntary organisations mentioned in Amendment No. 162.
Mediation has a different goal from that of reconciliation. I understand that a proportion of those involved in mediation withdraw when they know what is involved in mediation and divorce. Therefore, by a strange quirk there is an element of reconciliation, but that is not the goal of mediation.
Baroness Young: I support the noble Lord, Lord Stallard, on these very important amendments. They are in line with amendments that I moved at an earlier stage in Committee. Many noble Lords are concerned that the Bill does not find a place for reconciliation in the timetable that is set out in the process of divorce. My noble friend Lady Faithfull has pointed out that mediation is not the same as reconciliation but it is concerned with the division of assets. It may be possible to divide them up in a more amicable way than in a court but, nevertheless, that is its purpose.
As I understand the matter, the noble and learned Lord the Lord Chancellor hopes that at some stage in the mediation process something will happen and the mediator can stop the process and say, you should go to reconciliation because all is well. Noble Lords should be very pleased that a proportion of couples attending mediation withdraw. One of the more encouraging statistics that we have heard is that between 20,000 and 30,000 couples per year contemplate divorce, stop and return to their marriages.
Reconciliation, which is a different process, is not included in the Bill. The amendments address this point and ask for reconciliation and that it should be funded from legal aid. Noble Lords know the costs involved in divorce and the figure will probably rise as a result of the Bill. Relatively small sums are spent in supporting marriage, which would be a more useful exercise. Therefore, if we are going to take the matter seriously it should be given support. Can the noble and learned Lord look at the amendments in relation to Amendment No. 162 which concerns support for marriage services?
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The noble Lord, Lord Stoddart, made an extremely important point about the tax system in relation to Amendment No. 162. If we are really serious about wanting to do something to reverse divorce we should first have a complete overhaul of the tax and benefits system. One is constantly sent papers which indicate that married couples are in many ways greatly disadvantaged by the tax and benefits system and that married couples are paying for other cohabiting couples or single parents. This is not the time to go into that aspect and I do not intend to. However, I leave the matter with my noble and learned friend because I believe that we should consider this matter very seriously indeed if we want to do something about it.
Not only should we state that we believe in marriage, we believe in supporting marriage. We do not believe in making divorce easier—as I think the Bill does—and we should have a tax and benefits system which supports marriage. We should make that point absolutely clear. I am happy to support the amendments of the noble Lord, Lord Stallard.
The Lord Bishop of Worcester: I support the noble Baroness, Lady Young, and the noble Lord, Lord Stallard. We must probe with an open mind into the causes of the breakdown of marriage. There must be no holds barred. The issue is far more important than some of those we have debated in this House. I very much support what has been said. I am glad to do so because I am sorry when Christian people disagree over a matter such as the Bill.
I hope that the word "reconciliation" can appear somewhere in the Bill. However, the point about mediation is that it encourages people to enter into it with perhaps an open mind. If the word "reconciliation" is used from the start, people feel that the issue has been prejudged and they will not begin to consider the consequences. When they do consider those consequences, with the terrible uprooting for them and the children, and the investment that they have put into their marriage over 15 or 20 years, then they often seek reconciliation. But the word "mediation" is used because it has an attractive appeal to those who wish to enter into it, to begin with, with an open mind.
At Second Reading, I cited that research indicated that 50 per cent. of men and 30 per cent. of women regretted that they went for divorce. People are divorcing in haste and repenting at leisure. Mediation is an endeavour to prevent that.
Lord Stoddart of Swindon: I listened carefully and with great interest to the intervention by the right reverend Prelate. However, I have to disagree with him. My noble friend Lord Stallard is seeking to put the horse before the cart. In other words, he seeks to say that before the irreconcilable breakdown of marriage—we have been told that mediation means arranging the consequences of the breakdown of the marriage—we want to try to reconcile the differences between the husband and wife in order that they do not have to reach the mediation stage. We believe that that is the way to save marriages. Once one has gone to the mediation stage one has accepted that reconciliation may not be possible.

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I am sorry to disagree with the right reverend Prelate. I have said a few unkind words about the Church during the course of debates. However, the reason is that I believe that too many institutions, as we have heard so often in debates, say, "We have to take things as they are". That is an abrogation of leadership. If the Church is not about leadership, politics is not about leadership, the House of Commons is not about leadership, the Prime Minister is not about leadership, and the Lord Chancellor is not about leadership, what are we here for?
The Lord Bishop of Worcester: Perhaps the noble Lord will give way. I quite agree on leadership. But if a colonel says to the troops, "Over the top, lads" and turns round to find that they have not come with him, is that leadership?
Lord Stoddart of Swindon: You do not lead by following. That is precisely what so many institutions have been doing. Instead of leading they have been following. Instead of pointing to the right road, they have allowed people to take the wrong road without correction. I believe that that is the fundamental flaw about this Bill.
My noble friend's amendments make some attempt to say, "Isn't there something you can do to save this marriage?" As I said, he is trying to put the horse before the cart; and I believe, as always, that that is the proper place for the horse to be.
8.45 p.m.
Baroness Elles: I support the amendment and the noble Lord, Lord Stoddart. The wording is difficult. The right reverend Prelate said that reconciliation already implies that the marriage has broken down. But how many couples do we know who say that they would like to speak to some independent person, perhaps not connected with "marriage guidance", or using the word "reconciliation", but providing the work of reconciliation?
Lord Stallard: The noble Baroness seems to say that reconciliation means that the marriage has broken down. It is the opposite. Mediation starts when the marriage has broken down. According to the Bill, the White Paper and elsewhere, when one person says that the marriage has irretrievably broken down, mediation starts then. They start to discuss property, money, access and so on. Reconciliation is in the opposite direction. It starts before the breakdown point is reached to see whether the issue can be resolved before the marriage breaks down.
Baroness Elles: I do not think that the noble Lord quite heard what I said. I said that the right reverend Prelate had said that reconciliation was the stage at which the marriage was breaking down. Like the noble Lord, Lord Stallard, I believe that reconciliation should come long before that stage is reached. It is the nomenclature of organisations available for so many young people who wish to be able to turn to a third party for advice. I support the amendments.
Baroness Seear: Perhaps I may ask a brief question arising from the amendment. I believe that the noble and
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learned Lord is anxious that no one should be unable to go for conciliation through lack of money. Under Amendment No. 162, when the Lord Chancellor obtains his money from the Treasury will it be allocated in such a way that people who really cannot afford to pay for reconciliation will be able to obtain it free? It is an important point. We do not want anyone excluded from reconciliation through inability to pay.
Lord Simon of Glaisdale: I, too, support the amendment. The more our discussions proceed, the more apparent it is that these terms need to be statutorily defined.
Mediation was described accurately by the noble Lord, Lord Irvine of Lairg. It is a preparation for, or, better still, a substitute for litigation. Mediation helps parties to narrow and, if possible, to resolve the issues between them. In so far as it does not succeed completely, the matter has to go for adjudication.
Reconciliation is quite different. It is designed to bring together the parties whose marriage is in crisis so that their life together can be reconstituted. I agree that it is particularly necessary at the earliest stage of crisis. It is also very necessary at the last stage, when the parties see what divorce might involve for them. It should also be available throughout. I draw particular attention to what the noble Baroness, Lady Faithfull, told us on the last occasion—that in Scotland the reconciliatory agent and the mediator occupy the same office. Thus at any moment there is a chance of reconciliation.
However, mediation is quite different and, as I see it, a substitute for adjudication, helping the parties to resolve their differences. If they succeed, it is likely to be much more successful than anything that is imposed by the court. That was always my experience as regards children. Practically anything that the parties agreed was better for the children than anything one imposed on them.
Mediation goes beyond children. It is particularly relevant to the property and financial differences involved in the fall-out from a divorce. To my mind, what the noble Lord, Lord Stallard, suggested is entirely salutary, except that it points to the necessity for definition of the terms.
The Lord Chancellor: Reconciliation is highly desirable. It is a misunderstanding to suggest that there is not already reference to it in the Bill. It underlies the statement in the heading about the period for reflection and consideration,
"to reflect on whether the marriage can be saved".
In the plainest words that I can find, it makes it clear that there must be an attempt to reconcile. If it does not, if that is not what it means, then I do not understand English.
Lord Simon of Glaisdale: Will my noble and learned friend agree that the difference between mediation and reconciliation is that there is an outside agent which

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helps? Whether the marriage can be saved is left to the parties themselves, but they can be helped. That is the difference.
The Lord Chancellor: I believe that reconciliation is an outcome; namely, that the difficult differences between the parties have been resolved. That is what reconciliation is. It is not a process but a result. I would happily pay for it if I could be sure that that was always the result, but sadly it is not the situation. The purpose is to reflect on whether the marriage can be saved. I have explained or sought to explain that the purpose of the information session is to draw people's attention to the services that are available to help them in that connection. It will include outside help with reflecting on whether the marriage can be saved.
As regards mediation, as my noble and learned friend and others said, it is a process under which people consider—in substitution for litigation—what the future has for them if they should go forward to divorce. As I have often said and as has been agreed by a number of speakers, that may well be the best way of effecting reconciliation late in the day.
The point about reconciliation is that it may be helped by services such as marriage counselling or other types of counselling. I gave some examples earlier and will not repeat them because it is desirable to make progress, if we can. As regards marriage guidance, it is quite wrong to think of it as applying only after a statement has been lodged that the marriage has broken down. The best hope for marriage guidance and help is before one comes to that stage, when people are in crisis. Therefore, to give special funding to marriage guidance, which is resorted to at the end, is to invite people to go to the end in order to obtain the funding.
A great variety of services are needed in this connection. For example, I mentioned bereavement counselling in some situations. Those services are better provided by voluntary organisations funded by grants. As I said earlier in the debate, many provide people with services for nothing, sometimes there is a donation, sometimes charging is in accordance with a sliding scale, depending on people's needs. Many people who find themselves in this situation could well afford to secure the services themselves. So I do not think it right to use the mechanism of legal aid for the purposes of helping to pay for marriage guidance or counselling. That is better done by funding a voluntary body. I shall take good care that the voluntary bodies which are funded to provide such services receive the funding on the basis that they attempt to get into the situation as early as possible and do not wait until the process of divorce has been begun.
Although I understand well the spirit behind the amendments, I do not believe that they are appropriate in the circumstances of this case, because I believe that help coming early is best. Therefore, to put a premium on later marriage guidance is not suitable. What is suitable is that organisations which provide the kind of support I have described should be given grants and left to make their own decision as to how the priorities in respect of providing their services should be determined.
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As my noble and learned friend Lord Simon said, referring to something which my noble friend Lady Faithful] said earlier, I too believe that it is a good idea to treat marriage counselling and mediation as complementary. There are combined services in Scotland as well as a combined counselling and mediation service in Northern Ireland. There are six combined services in England and Wales, with others being developed. So there is a degree of complementary development taking place.
I strongly support the idea that the parties should try to be reconciled. My train of thought was slightly broken, I referred earlier to Clause 7 and said that at the very start of the process there was a period in which to reflect on whether the marriage can be saved. Then I provide for breaking the period off, stopping it if parties require time to attempt reconciliation. The word "reconciliation" is in the Bill in terms. I believe that it comes twice in the provisions. So it is referred to and I intend to refer to it again in relation to the code that I hope to have for mediation.
Lord Stoddart of Swindon: Before the noble and learned Lord sits down, I have been reflecting on what he said about reflection while he was speaking. I cannot reconcile reflection with reconciliation. The noble and learned Lord has not convinced me that they mean the same thing. If they do, would he have any objection to re-heading Clause 7 "reconciliation"? Would that meet his point?
The Lord Chancellor: No, the two are quite different. The purpose of reflecting is so that the marriage can be saved. Let us suppose that a marriage is in difficulty and then the marriage is saved. I do not know how the noble Lord would describe that, but for my part I am perfectly prepared to describe it as reconciliation. If a marriage has broken down and then that marriage is saved, that has resulted in reconciliation. That is precisely what Clause 7(1)(a) is about. As my noble and learned friend Lord Simon said, people may need help to become reconciled; they may need help with reflection; they may need help in a number of ways. That help is marriage counselling or a marriage support service of some kind.
9 p.m.
Lord Irvine of Lairg: Before the noble and learned Lord sits down, I wonder whether he can assist the Committee on this point. He indicated earlier that a reason for withholding legal aid for attempting reconciliation was that the reconciliation might not succeed. Legal aid will be available for mediation which may not succeed. Why, therefore, should it not be available for attempted reconciliation which may not succeed? What is the rationale of making legal aid available for mediation but then, if the mediation has to stop because the mediator learns from the parties that they would like to attempt a reconciliation, continuing to make public money available for the ongoing process

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of mediation but not available to assist them in attempting a reconciliation when they have indicated that they desire to make that attempt?
The Lord Chancellor: I do not believe I said the reason was that it might not succeed. If I did, I certainly cannot think of a context in which I would say that. No doubt Hansard will tell me. Obviously, I am not reading from a piece of paper.
The rationale is this. Mediation is at the stage where people are considering, the marriage having broken down, what arrangements should be made for the future. That is a substitute for litigation. Therefore, it is appropriate that legal aid should be available. But attempts at reconciliation and the services that assist in that are available not only at that stage but much earlier. People often meet with crises in their marriage before there is any thought of divorce. That is the best time for them to use the service and get help. Therefore, there should be no distinction between the treatment given for reconciliation attempts and the assistance available for that at whichever time in the history of the marriage it comes along. Consequently, I believe that it is right to provide the same system for help in reconciliation at whatever stage in the marriage that help may be required.
To provide help at the expense of the state only at the late stage is to invert the priorities, when the more successful attempts at reconciliation are more likely to be at earlier stages in the crisis. Those are the reasons why the situation in regard to reconciliation is quite different from the question of providing mediation, which is in effect a substitute for the legal process because the issues that are the subject matter of mediation are themselves justiciable.
Lord Stallard: I thank all who participated in this short debate and offered support. The whole matter is becoming more and more confused as the two words are bandied about as though they were interchangeable. They are not. I do not even accept that reconciliation is the end of the process. The end of the process of reconciliation is that the couple are reconciled. That is the difference. The noble and learned Lord the Lord Chancellor said that reconciliation was the end of the process. It is not. It is the beginning of a period of discussion to see whether the marriage can be saved. If the period that I call reconciliation is successful and if, at the end, the parties are reconciled, there is no need for mediation. That process of reconciliation should be funded and encouraged if we are really serious about saving marriages. If we are concerned only with speeding up divorce, or making it tidier and easier for divorce to take place, reconciliation will not be needed. But if we are serious about saving marriages, there has to be a period during which people can attempt reconciliation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 169B to 171 not moved.]
Clause 21 agreed to.
Clause 22 [Provision and availability of mediation]:
[Amendments Nos. 171A to 171E not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 172:
Page 12, leave out lines 14 and 15 and insert ("and the parties suitable to the dispute having regard to all the circumstances of the case").
The noble and learned Lord said: Once again the Committee is confronted with a grouping for which the kindest adjective that springs to mind is "eccentric". The Committee may, however, wish to discuss with this amendment Amendments Nos. 173 to 175, 176 and 178. Amendment No. 177, in the name of my noble friend Lord Irvine will he spoken to by him separately when its turn is reached on the Marshalled List.
I think the most helpful way in which I can introduce this debate is to speak specifically to the two amendments standing in my name. I do not think there is any way in which one can give a preface, as it were, to the whole of this debate. Other Members of the Committee will then speak to amendments standing in their names.
Amendment No. 172 may appear to be a drafting amendment. It is proposed in order to emphasise what I hope is the intention of the clause. First, the intention, I hope, is that mediation is not to proceed unless it appears appropriate not only to the mediator but also the parties. Secondly, and separately, I hope that the intention is to bring into prominence the requirement that deciding whether it is appropriate depends on the circumstances.
I hesitate to say for the hundredth time that we are discussing mediation and not conciliation. I hope that there is not a danger1 that, like so many other admirable remedies mediation may become the automatic answer to every problem, even after the proceedings have begun. There is a danger that one has a Pavlovian reaction whenever confronted with the question of what to do next.
National Family Mediation points out that some situations do not admit of mediation. It says that it is possible to categorise a number of types of situation in which, from the outset, one can say that it is not appropriate.
First, it says that the dispute may be incapable of being negotiated because, for example, the parties are not agreed on the facts. Someone may have to agree with one of the parties and simply adjudicate on what are the facts. Secondly, there may be irreversible imbalances of power; for example, where there is domestic violence or where a woman from a minority ethnic group may find culturally that she is not in a position to be able to bargain with her husband. Thirdly, one of the parties may suffer from some mental or other impairment, with the result that he or she cannot meaningfully negotiate. Fourthly, one of the parties may feel coerced if he or she had to attend any kind of mediation process. Fifthly, there may be criminal child protection issues.
There one can categorise the situations. One simply looks at the situation and says that mediation is not appropriate in that case. But, of course, there are other

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situations which depend on the attitude of the parties. Even when the case does not fall into one of those categories, National Family Mediation emphasises that the case may not be suitable for mediation if one partner, even after agreeing to participate, demonstrates a lack of commitment by failing to keep appointments, to produce the necessary information or to abide by any agreements which have been made. I doubt whether any of that is controversial. I do not believe that we need a vote on whether there are situations which do not readily admit of mediation. But there has been some anxiety expressed in the country that the Government are anxious to make mediation a blanket remedy to the exclusion of such other remedies as legal advice.
I know that that is not the intention. The noble and learned Lord has said very helpfully on more than one occasion that one looks to see what is appropriate. I hope that he can assist by saying that today, and that he can assure the Committee that, if he pursues his suggestion—I believe that it was his own suggestion—to issue a code of conduct for mediators, he will include a specific direction to mediators to direct their minds to those questions at the outset.
May I make one other suggestion which may not fall squarely within the intent of this amendment. Perhaps the noble and learned Lord could include in the code a requirement that the mediator "shall make known" to the parties the availability of legal advice where that is appropriate and advise them to go down that path. That deals with Amendment No. 172.
Amendment No. 173 is directed to a very different question, although it relates to mediation. I suppose that that is why it has been included within this suggested grouping. It is intended to suggest a better mechanism than is found in the Bill for the collection of whatever contribution is assessed from the legally assisted party when legal aid is granted for mediation. The Bill proposes that it should be paid directly to the mediator. The noble Lord, Lord Meston, and the noble Baroness, Lady Hamwee, are more familiar with this matter than I am, but as I understand it, when legal aid is granted for legal advice and assistance from a solicitor, any contribution that is levied is paid not to the solicitor but to the Legal Aid Board which, in due course, pays the solicitor his or her proper costs and fees.
That has two fairly obvious advantages. First, the Legal Aid Board is likely to have a more cost effective mechanism for collecting what is due. Collecting money, as we all know in a number of contexts, requires letters and accountancy processes and reminders. All that costs money. So there is a cost element in the process of collecting. If the contribution is a small one, the cost of collecting it may be in danger of becoming disproportionate to the amount to be collected. Is it not better, I ask rhetorically, to use machinery which is already in place and to take advantage of the experience of the Legal Aid Board? That is the first reason behind the amendment.
Secondly, and even more importantly, if the recipient of legal aid and advice is in arrear with the contribution instalments, the solicitor who is doing the work for the assisted person may be required to cease doing any
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further work or incurring any further costs. It is the Legal Aid Board which notifies the solicitor and then takes whatever other action is necessary to see whether it is possible to recover the contribution. If the solicitor had to collect the contributions and then remind his or her own client that he or she was in arrear and that if those contributions were not paid further services would cease, it might create an undesirable conflict of interest for the solicitor. I assume that that is one reason why collection is carried out by the Legal Aid Board.
So a question naturally occurs and it is this: is there any distinction for that purpose between the position of the solicitor and the mediator? May the mediator, too, not be faced with that kind of conflict of interest? These were the considerations which were common both to National Family Mediation and the Law Society when they made representations on this issue.
From National Family Mediation there comes one further consideration, which is this. If the mediator can look forward to a block payment from the Legal Aid Board for a whole sector of work, then it can be sure of a cash flow and can plan its workload, investment in training and staffing. Therefore, for all these reasons it appears better that payment from clients should be received and processed by the Legal Aid Board.
I have added my name to Amendment No. 174, but it stands in the name of the noble Baroness, Lady Hamwee. I think it would be more sensible if I were to leave its introduction to her, reserving the right to say that I agree with her, if that arises. I beg to move.
9.15 p.m.
Baroness Hamwee: The noble and learned Lord, Lord Archer of Sandwell, has acted as the straight man for my amendment. I agree with what he has said as regards Amendments Nos. 172 and 173. He may have different reasons for promoting Amendment No. 174 as regards the statutory charge which applies when someone gains or retains property in dispute as a result of services provided by the Legal Aid Board, with the board having a charge on that property so that it can claw back its payment in respect of the services.
In the information guide published by the Lord Chancellor's Department on this Bill the comment is made that:
"The statutory charge will not apply to mediation costs from the outset of the new system because the application of the charge is complicated and the Government and the Legal Aid Board will want to monitor how mediation works in practice before deciding how best to implement the statutory charge for mediation costs".
I read that paragraph because it seems to me that it is not quite what Clause 23(4) provides. It states "Regulations may provide" for the statutory charge. If the noble and learned Lord's view was that the statutory charge should apply but that the mechanism by which it should be implemented was to be considered, that is something rather different.
If there is no statutory charge, there is a danger of penalising those who cannot pay rather than those who will not pay. Clearly there are those for whom mediation is unsuitable—that has been agreed during the course of the debate—such as victims of domestic violence.

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Certain people for whom mediation may not be suitable may, through no fault of their own, be liable to repay their costs whereas others will not.
It is worth considering whether those in receipt of legal aid should have a financial stake in the outcome of the matter in order to encourage a cost-effective approach to mediation in the same way as one must consider a cost-effective approach to litigation. I recognise that I am treading on sensitive ground in making that statement, but it is certainly a matter worth considering.
Also, if the statutory charge were not to apply, it might be regarded as being a financial incentive to mediate, or rather not to negotiate or litigate. I am concerned that mediation through the back-door, as it were, may come to be regarded as compulsory when it is agreed that, though desirable, it should not be compulsory. For those reasons and also in order to discover whether the intention is that there should he a statutory charge, with the implementation as a matter to be considered, or whether this is still an open matter, I have put down this amendment.
Lord Meston: In fully supporting every remark made by the noble and learned Lord, Lord Archer, may I also speak to my amendments in this group, beginning with the second, No. 176, which is designed to moderate in some way the provisions of Clause 24. Clause 24 provides that legal aid for representation will generally riot be granted because mediation is considered more appropriate than taking proceedings, except in classes of proceedings or other circumstances to be prescribed. That means that a party of modest means will not have a straight choice between mediation and legal representation, and it is really part of the pressure for mediation which was referred to earlier in our debate in relation to Clauses 12 and 13. It overlooks the fact that lawyers are often the best mediators, particularly in financial disputes. I would readily accept that mediation has an increasing respectability, but I suggest that the presumption in favour of mediation should be modified until the workings of this Bill are tried and tested in practice. The noble Baroness, Lady Faithfull, referred, quite properly, to the increasing confidence in mediation. She is right, but it is not yet universal.
It is also unclear as to what is to he the extent of legally aided advice short of representation. If legal advice short of representation is available throughout the mediation process, so much the better; but one must not lose sight of the fact that the mediators, in financial situations particularly, will be trying to mediate within the existing framework of statutory law governing financial provision and property adjustment. It is not clear, to me at any rate, what are to be the exceptions under Clause 24. We must remember that it is not just in cases where there is a lot of money around that there is complexity. People should have the ability to have recourse to law rather than to mediation. They should certainly have the ability quickly to go to court in the circumstances to which the noble and learned Lord, Lord Archer, referred, where there is obstructive behaviour or non-co-operation or indeed where there may he dissipation of assets to frustrate the mediation
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so that an injunction is necessary. Without the fall-back of recourse to law with proper legal representation, the vulnerability of the weaker party to accept a less-than-perfect mediated settlement may be very hard to resist.
The other amendment I wish to speak to is No. 175. Clause 23(6) says that for the purposes of subsection (4) the nature of the property and where it is situated are immaterial. That, as I understand it, is not stated in the existing provisions of the Legal Aid Act. It has never been thought necessary by the Legal Aid Board or its predecessor, the Law Society, in administering the Legal Aid Fund. As I have always understood it, a common-sense view has been taken of what realistically the statutory charge can be enforced against.
Although in theory the statutory charge may be applicable to many of the assets, many practitioners have to argue about including the family budgerigar in its cage or the picture in the smallest room of the house. In practice, the Legal Aid Board takes a practical view. But I wonder what is the utility of subsection (6) of Clause 23. Presumably it is not envisaged that washing machines in Timbuktu will be subject to the statutory charge and we seem to have managed pretty well without that provision so far.
Lord Archer of Sandwell: Perhaps I can delay the Committee for one further moment for two purposes. First, I wish to express my agreement with what was said by the noble Lord, Lord Meston, particularly in relation to what he said about the danger that a vulnerable party may be coerced into accepting a mediated settlement. This has been described as a "rogue's charter". For example, a husband may say to his wife, "You will accept the settlement which I am now proposing or you will have to go by way of legal proceedings and you will suffer the clawback".
The other point I want to make is that I agree, as I anticipated I would, with what was said by the noble Baroness, Lady Hamwee. Perhaps I can add one further reason to the reasons she listed. I believe that there is general agreement that when the parties choose mediation in preference to legal advice, that should be for good reasons; because it is the more appropriate course of action. It would be disastrous if they chose it not for reasons relating to merit, but because there is a financial incentive for doing so.
The Lord Bishop of Worcester: I heartily agree with what was said by the noble and learned Lord, Lord Archer of Sandwell, in relation to the choosing of mediation because it is the most appropriate course and not because it is the cheapest. However, I should like to ask the noble and learned Lord the Lord Chancellor whether he agrees that to impose the statutory charge on property that has been recovered or preserved, fits with the process of mediation—because mediation is not a matter of competitive "win or lose". It is a matter of helping to allocate property suitably so that resources are for the benefit of the children. For that reason it is a good argument for exempting couples who mediate from the imposition of the statutory charge. That is what the Bill allows as it stands, making it possible but not

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mandatory for regulations to require such a charge to be made. I therefore prefer the Bill to remain as it is.
I am aware that some may argue that that may persuade some people into mediation who are not suited to it, which is what the noble and learned Lord, Lord Archer, was saying. They may seek mediation only in order to avoid repaying moneys to the Legal Aid Board. That is not an objection which can be upheld. I am sure that mediators always assure themselves that those entering mediation are suited to it; that they would not be able to mediate for those who are not prepared to take a constructive part. Therefore, mediation would not continue where an aggressive spouse was involved who was making demands and bullying the other spouse. Indeed, that is confirmed in Clause 22 of the Bill which inserts a new Section 13B into the 1988 Act. Subsection (3) of the Clause states:
"A person is not to be granted mediation in relation to any dispute unless mediation appears to the mediator suitable to the dispute and the parties and all the circumstances".
I hope that your Lordships will agree that the amendment may not be helpful. I look forward to hearing what the noble and learned Lord the Lord Chancellor has to say on the matter.
9.30 p.m.
Lord Simon of Glaisdale: Perhaps I may say a brief word about the relevance of legal aid, legal advice and legal representation to the processes with which the Committee is concerned. In mediation, legal advice may well be needed. I would hope that the mediator would indicate to the parties where he thinks that legal advice would help them. In my view, legal representation is entirely alien to the mediatory process. If the matter cannot be entirely mediated and some issue has to go to adjudication, it is at that stage that, for the first time, legal representation becomes necessary or at any rate appropriate in many cases. However, legal representation is an alien influence which cannot help the ordinary mediatory process. The Scottish procedures would be helpful in this respect because I believe that in Scotland there is official recognition of mediation. One would like to know how far Scotland has at all invoked or admitted legal representation or legal advice.
The Lord Chancellor: I think that I should try to take the amendments more or less in the order in which they appear on the Marshalled List. Therefore, I turn first to Amendment No. 172. I am not sure that I fully understand the distinction that this amendment brings into the clause as drafted compared to what we have already. It is intended that the situation should appear to the mediator as suitable to the dispute, the parties and the circumstances. Obviously, if there is to be legal aid for the mediation, somebody has to apply for it. It is intended that that should be the party. The result is that mediation would not be granted unless it appeared to the mediator that it was suitable to the dispute, the parties and the circumstances.
In so far as I understand the amendment, it would provide for joint decision-making. I should have thought that the decision should take account of whether it
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would be suitable for those parties to engage in mediation. There might be many problems about a particular party that would make it unsuitable for that party to be involved in mediation. The potential mediator would probably be the best judge of that. Therefore, I am not sure that the amendment improves matters.
Turning to the other points raised by the noble and learned Lord, Lord Archer, when speaking to his amendment, I have taken the power in Clause 24 to exempt from the principles set out "prescribed descriptions of proceedings" or "prescribed circumstances". I have in mind the kind of circumstances that the noble and learned Lord mentioned, where it is plain that mediation would not be suitable. He mentioned a number and, so far as I recall them, all those he mentioned would be circumstances where it may well be right to make regulations to exempt the application of the principle.
Amendment No. 173 is an entirely different matter; namely, whether the payment should be to the mediator or the Legal Aid Board. When this was in preparation, we had discussions about it with the mediation organisations and the Legal Aid Board. It may be a matter that should be left fairly flexible. I thought that it might well be convenient for the person who is going to mediation to pay at that time. I can see that certain problems might arise in some circumstances in relation to that.
So far as concerns the legal aid matter, at present I think I am right in saying that where legal aid is given for advice and assistance—for example, ABWOR—the contribution is paid to the solicitor, but where contributions are payable in relation to civil legal aid they are payable to the Legal Aid Board. I believe that the size of the contributions has something to do with that distinction in practice. I am content to consider this matter further in the light of the present attitude of the mediation organisations. It is an important issue, and I am grateful to the noble and learned Lord for raising it.
We come to Amendment No. 174. In a way I am slightly surprised to find the noble Baroness seeking to force me to apply the statutory charge to mediation. She obviously has a concern for Her Majesty's Treasury, which is interesting, but I should have thought it wise to leave that as a discretionary power, because I want to see how the whole thing works. Apart from anything else, mediation will apply to children's disputes where there is no question of the statutory charge applying, because no property is recovered or retained. There are pressures to apply the charge. Obviously the public purse might be interested in that. On the other hand, I am anxious to see how the mediation works in practice before deciding what should happen in relation to the statutory charge, and how it should apply if it is decided to apply it in respect of mediation costs.
Apart from anything else, the statutory charge, if it goes on, involves a degree of cost of enforcement, and so on. It is not a straightforward matter. Costs are involved in relation to the statutory charge. Depending upon the level of the mediation charges and costs, we may need to be careful.

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I was asked about the provision of legal advice in relation to mediation. As my noble and learned friend Lord Simon of Glaisdale said, there can be no question of representation covering the same area as mediation. That would not be appropriate. On the other hand, legal advice may he required in relation to mediation; for example, on the question of whether or not a mediated settlement is a reasonable one having regard to all the circumstances. I hope that I may be able to develop a standard way of handling that by having a standard fee for the sort of legal advice that might be required on average. There may be exceptional cases, but it may be possible to deal with them. All that is covered under the present Legal Aid Act. We are extending that to mediation but all the machineries of the Legal Aid Act continue to apply.
In Amendment No. 175 the noble Lord, Lord Meston, took us to Hong Kong and to the washing machine. My understanding is that Section 16 of the Legal Aid Act 1988 does the same in respect of the charge for legal aid and I have slavishly followed that provision. If one were to impose a statutory charge in respect of mediation, as his noble friend would wish and oblige me to do, it would seem right to apply the same kind of conditions as apply to legal aid.
I do not believe that Amendment No. 176 adds a great deal. The idea of Clause 24 is to suggest that proceedings relating to family matters are more appropriate for mediation than for litigation. That is the general principle, but obviously it would yield to particular circumstances. That is what the insertion of the word "usually" is intended to do, but I believe that it is implicit in the present situation.
I do not believe that the noble Earl, Lord Russell, mentioned Amendment No. 178. Perhaps I may say for brevity that the circumstance mentioned there would be covered by the regulations which would proscribe descriptions of proceedings. I believe that the noble and learned Lord, Lord Archer, mentioned that circumstance as one of his examples, most of which it would be perfectly appropriate to cover in the regulations. I believe that I have dealt with most of the amendments.
As I am dealing with mediation and what that involves, it may be worth while to put on the record a note which was issued earlier today by the Family Mediators Association and the National Family Mediation. They stated:
"It is the current practice of family mediators to establish with the couple at the outset of mediation whether they each believe that the marriage has broken down. If there is any indication that they are not agreed, or that they are not certain, then the mediator will explore this and refer them if they are willing for marriage counselling. Throughout the mediation process the possibility of reconciliation is kept under review by the mediator and if any uncertainty emerges about whether the marriage is over or not, he or she will explore this with the couple".
That puts more eloquently what I was trying to say about the process of mediation.
I believe that in respect of Clause 24 there are good reasons in principle why mediation is to be preferred in the interests of all the parties. However, it is right to allow certain types of proceedings to be taken out. That is best done by a regulation-making power because
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experience might suggest some new type of circumstance emerging. Rather than trying to achieve everything in primary legislation, that seems appropriate. I believe that the Delegated Powers Scrutiny Committee had no adverse comment to make on this aspect of the Bill.
Lord Archer of Sandwell: Unless the noble Baroness, Lady Hamwee, or the noble Lord, Lord Meston, wish to reply in relation to their amendments, perhaps I may say that I am most grateful to the noble and learned Lord for his replies in relation to Amendments Nos. 172 and 173.
He expressed some puzzlement as to the distinction between the text in the Bill and the amendment. The distinction is as to who applies the judgment. Under the Bill it is the judgment of the mediator; it must appear to the mediator that mediation is the appropriate procedure. He makes the decision, taking into account the parties and the circumstances. The amendment transfers the party from the position of being the object of the consideration to being the subject, if I may put it in that slightly obscure way. The mediators and the parties together apply the judgment, and they apply it to the situation. It is a slightly different arrangement of the same three words. It transforms the judgment of the mediator alone into a joint judgment of the mediator and the parties.
As the noble and learned Lord has said, it is unlikely that mediation will go ahead unless the parties can be persuaded that it is the most appropriate course. I understand that. The real purpose of the amendment was so that the noble and learned Lord could say what, in effect, he did say.
I was particularly grateful in relation to the regulations under Clause 24 that the noble and learned Lord said that he was minded to set out the categories I cited. That will put a number of minds at rest. But, having taken out those categories, there still remain the other cases where someone still has to supply a judgment. If that is recognised, people will he quite happy about the situation.
The Lord Chancellor: I am not sure that I made an important point clear to the noble and learned Lord. The provision in the Bill includes a decision by the mediator as to whether mediation is suitable having regard to the parties. It is possible that the mediator will give a judgment on the parties which would preclude mediation. One can think of possible examples. I do not think the noble and learned Lord's amendment would permit that; I am not certain about that.
Lord Archer of Sandwell: I am grateful to the noble and learned Lord for pointing that out. As I said in introducing the amendment, sometimes the parties are not appropriate. For example, the mediator may take the view that a party has demonstrated a lack of commitment to the process of mediation. I think we are very much ad idem on that. I am happy to reconsider whether any doubt has been cast on that by the form of the amendment. It is something which we can each reconsider before Report stage.

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As to Amendment No. 173, I was a little puzzled when the noble and learned Lord said that he wanted to leave this flexible. I am not sure how to whom the contribution must he paid or who is responsible for collecting it can be left flexible. One has to make a decision one way or the other. I appreciate that there are arguments as to who should be landed with the duty of collection, but a decision has to be taken at some stage. However, I am perfectly content that we do not take it tonight.
Baroness Hamwee: On that last point, I think it was the flexibility of the charge to which the noble and learned Lord replied. I understood that he would consider further the question of collection, as to whether it should be the mediator or the Legal Aid Board.
Lord Archer of Sandwell: If I misunderstood what the noble and learned Lord said, it is because I am unusually somnolent at this hour of the evening.
The Lord Chancellor: The noble and learned Lord is not somnolent at all. I did say I would consider this matter. It may be that it should be left open, but I certainly want to consider it. Some of the views of those I have consulted may have changed a little—I am not unfamiliar with that happening—so it may be that we should make a change.
Lord Archer of Sandwell: I am grateful for that. It is a pleasure doing business with the noble and learned Lord.
I was not sure whether the noble and learned Lord was leaving flexible what was going to be the final form of the Bill, or whether it might be his intention that in the final form of the Bill the matter should be left flexible. That would be undesirable. As we have resolved that confusion, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 172A not moved.]
Clause 22 agreed to.
Clause 23 [Payment for mediation]:
[Amendments Nos. 173 to 175D not moved.]
Clause 23 agreed to.
Clause 24 [Mediation and civil legal aid]:
[Amendments Nos. 175E and 176 not moved.]
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 177:
Page 14, line 12, after ("matters,") insert ("except where either party to the proceedings does not agree under section 12 to take part in any mediation").
The noble Lord said: Clause 24 adds the following provision to the Legal Aid Act:
"(3F) For the purposes of determining whether to grant representation for the purpose of any proceedings, recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except—

(a) in relation to prescribed descriptions of proceedings; or

(b) in prescribed circumstances".

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I emphasis the words, "is to be considered" as more appropriate than "taking proceedings". The effect of the provision is to place upon the Legal Aid Board in divorce cases the duty in the generality of case to refuse legal aid representation in favour of mediation. The clause means that the Legal Aid Board must—not may—refuse legal aid representation in family proceedings on the ground that mediation is to he considered as more appropriate than taking proceedings. That is the basic principle. The Bill states that it will be subject to exceptions, but they are not defined in the Bill. We invite the noble and learned Lord to tell us, broadly, what those exceptions are to be. We made the same invitation to the noble and learned Lord on Second Reading, but he did not find it appropriate then to respond. We hope that he will do so on this occasion.
In Committee on Tuesday last, when replying to my noble and learned friend Lord Archer of Sandwell who had moved Amendment No. 82, the noble and learned Lord the Lord Chancellor said:
"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".
The noble and learned Lord then added:
"What I seek to do is to extend the scope of it to include the funding of mediation, with the principle in favour of mediation where that is appropriate".—[Official Report, 23/1/96; col. 1001].
However, Clause 24 does not enunciate a principle in favour of mediation where that is appropriate. It is a direction to the Legal Aid Board to consider mediation in family proceedings as more appropriate than taking court proceedings. The clause says in plain terms that, in considering the decision of whether to grant representation for the purposes of proceedings relating to family matters, mediation "is to be considered"—not may be considered—
"as more appropriate than taking proceedings".
Therefore, that is the position that the Legal Aid Board must—not may—adopt. That is emphatically not a presumption. In the generality of case, the Legal Aid Board must regard mediation as more appropriate. If an exception applies, then mediation need not be regarded as more appropriate. But we do not, as yet, have the least idea what the exceptions will be. The point is that, in the generality of case where no exception applies, mediation is to be regarded as more appropriate than taking court proceedings. That is not a presumption. It is an invariable direction to the Legal Aid Board in the generality of case to which no exception applies.
Clause 24 will bite on cases where parties under the existing rules would be eligible for legal aid for representation in proceedings relating to family matters; for example, disputes about periodical payments, division of family assets or, more importantly, children. The Legal Aid Board is to be required to say: "We know that you do not agree to mediation; nonetheless, we are obliged to regard mediation as more appropriate, whatever you may think, so there will be no legal aid for court representation but we will support you in

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mediation". If that is to be stated, at the same time as it is asserted that mediation is voluntary, most people would think that the assertion was a hollow one.
The purpose of the amendment is to qualify the direction to the Legal Aid Board that is contained in Clause 24 by a provision that mediation is not to be considered as more appropriate than taking proceedings where either party to the proceedings does not agree under Clause 12 to take part in any mediation. Unless the amendment is agreed to, mediation will not truly be voluntary, because the Legal Aid Board will have to say to applicants who are asking for legal representation in proceedings relating to family matters: "It is up to you whether you agree to mediation, but legal aid is available only for mediation and, if you do not agree to it, there will be no legal aid for representation in court".
We look forward to the noble and learned Lord's response to the amendment. Noble Lords will recognise that it in no way increases public expenditure. Its object is to preserve the present position where legal aid is available for legal representation in cases where a party does not agree to take part in mediation. I beg to move.
Lord Coleraine: In reply to the last amendment the noble and learned Lord stated that the inclusion of the word "usually" by the noble Lord, Lord Meston, was not necessary. I thought that he was disagreeing in advance with the statement that the noble Lord, Lord Irvine of Lairg, has just made. However, at the time I realised that that could not be correct and that the noble Lord, Lord Irvine of Lairg, is right. Assuming that he is correct, what will happen when one party is willing to mediate and the other party is forced to go to court? I presume that one or both of the parties would be entitled to legal aid.
Having said that, I think that the noble Lord, Lord Irvine, is mistaken about Clause 12 because it does not impose on any party a liability to mediate. It enables the court to send parties away, once they have started to litigate, to be told the advantages of mediation. At the end of that process the person who gives that explanation has to produce to the court a report stating that they have done so and stating whether or not the parties have complied with the direction and, if they have, whether they have agreed to take part in any mediation. The clause does not contain any threat, inducement, incentive or compulsion on the parties to mediate. The final part of the clause is merely for the purposes of giving information to the court which would want to know the situation when the parties went away to be told about mediation.
Baroness Hamwee: I should like to support the noble Lord in his amendment, which goes to my decision to put down a Motion that the clause should not stand part of the Bill. It may be possible to debate the two together. I hope that we receive a sympathetic hearing by the noble and learned Lord the Lord Chancellor.
I should like the provision to make clear that either party can withdraw the agreement to mediation at any time and then the legal aid for representation kicks in.
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I, too, had marked the passage in Hansard which has been quoted and a passage at Second Reading. The noble and learned Lord, the Lord Chancellor, said at col. 704 of the Official Report of 30th November 1995:
"I am not intending that mediation should become compulsory—compulsory mediation quite simply does not work, and is a contradiction in terms".
One cannot begin to argue with that. He also stated:
"Legal representation will be available for eligible parties when mediation is not suitable for the parties or appropriate for the circumstances of the case".
On re-reading that passage, I realised that the noble and learned Lord was suggesting that legal representation and mediation were being described as alternatives. That is where I become concerned.
I shall not take up the time of the Committee by repeating the arguments so powerfully made by the noble and learned Lord. I believe that the prescribed circumstances are of such importance that we should look at the detail at this stage if we are to consider the clause without the proposed amendment. The amendment is fundamental to our acceptance of the clause. It would be entirely wrong to introduce what might become a two tier system—proper legal advice and representation for those who can pay for it and compulsory mediation for those who do not have the funds.
We are all concerned about the size of the fund available. I know that the noble and learned Lord the Lord Chancellor shares that concern. I referred earlier to the explanatory and financial information which commented that the Bill was designed to be cost neutral. As we were reminded earlier, that was with regard to the Bill as presented; that is, direct legal aid. Therefore, it is suggested that no additional legal aid funds will be available in total. Legal aid is rationed now, but if it has to be rationed also with regard to mediation and legal advice, the point should be made that in general men will buy advice and women will not receive it. There is a discrepancy between the assets of men and women and as regards eligibility between men and women.
The noble and learned Lord the Lord Chancellor said that he was surprised at my amendment on the statutory charge, and wondered about my concern for the public purse. I do have a concern; that the public purse is adequate for its purpose and its size is a material consideration.
It used to be advantageous for tax reasons to get married at a specific point in the financial year. If those contesting for legal aid funds have to take account of the fact that the fund may run out at some particular point they may have to consider getting divorced at a specific point in the financial year before the available funds have run out. I support the amendment.
10 p.m.
Earl Russell: Not having spoken for nearly five hours I hope that I may be forgiven for taking enough of the Committee's time to congratulate the noble and learned Lord on his stamina, which is truly formidable. I should like to thank him for proving me right in not taking the

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time to speak to my Amendment No. 178. I am entirely reassured by what he said about it and I am most grateful.
However, on this amendment I share a number of the concerns expressed by my noble friend Lady Hamwee. The noble and learned Lord may remember, although it is a long time, about two years ago, kindly giving me a meeting on the subject, before the White Paper. He was extremely helpful then and I was concerned to know how far mediation would be voluntary. He gave me the assurance that it would be and if I remember rightly he used the phrase that "You can take a horse to water but you cannot make it drink". That is clear. However, to be truly voluntary it must be such that you can refuse to undertake it without suffering any evil consequences. That is where I am worried by the wording of Clause 24. On 10th January the noble and learned Lord kindly sent me a long and extremely helpful letter which I have read many times. He wrote:
"The effective clause is not intended to be that the Legal Aid Board is under a duty to refuse legal aid representation in favour of mediation".
I shall be interested in the resolution of the technical conflict between him and the noble Lord, Lord Irvine of Lairg, on that point. If the wording is ambiguous, then it needs clarifying.
The noble and learned Lord's letter continued:
"Clause 24 is intended to be read as a presumption in favour of mediation which may not apply in certain types of cases or may he rebutted in certain circumstances. The effect is intended to be that, all things being equal, mediation should be considered more appropriate than representation".
I understand his point that exceptions are to be made to that by regulation. I appreciate what he said about the content of the regulation, but what worries me is that, with those people for whom there is a presumption in favour of mediation, if they do not wish to accept that presumption and go into mediation, exactly what happens to them? The noble and learned Lord is quite right that you cannot have effective mediation between unwilling parties. The right reverend Prelate mentioned the danger of people with financial difficulties being pushed unwillingly into mediation because it is cheaper. For unwilling people, mediation can be an extremely intrusive process and may create a sense of impertinence which will not help with making progress. If possible, I shall want clear assurances that, if people decide that mediation is not appropriate for them, they may do without mediation without suffering for what they do. It is only with that assurance that I would truly be convinced that mediation is voluntary.
The Lord Chancellor: The noble Earl, Lord Russell, quoted from my letter written some time ago. It explained the position as I understand it. First, Members of the Committee must read Clause 24 in the light of Clause 22, particularly the part which was the subject of Amendment No. 172 tabled by the noble and learned Lord, Lord Archer of Sandwell. It states that:
"A person is not to be granted mediation in relation to any dispute unless mediation appears to the mediator suitable to the dispute and the parties and all the circumstances".
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That is our condition which is to be taken into account before one comes to Clause 24. I understand by Clause 24 that the Legal Aid Board has to have in mind that,
"recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except … in relation to prescribed descriptions of proceedings or … in prescribed circumstances".
Certainly it is clear that, where either party to the proceedings is not prepared to take part in mediation, mediation is not suitable to the dispute, the parties and all the circumstances. I cannot see that a mediator could possibly regard mediation as suitable for a dispute where either party was not prepared to take part in it. That seems to me to dispose of that particular matter. I certainly intend that Clause 24 should apply, subject to that clause. That is what is intended. In other words, it is intended that in relation to family matters mediation is more appropriate than taking proceedings. It would be more appropriate only in cases to which Clause 22 applied. I have been kindly handed a copy of the letter, but I think I remember what the circumstances were.
The noble Lord, Lord Irvine of Lairg, said that I have not given any indication of the circumstances to which this would apply. I tried to do so in reply to the noble and learned Lord, Lord Archer of Sandwell, who kindly provided me, as a good start, with a list of circumstances of his own. Very many of the circumstances are pretty obvious. Certainly in situations where the parties are apt to be violent towards one another it might be all right for a court, as my noble and learned friend Lord Simon of Glaisdale said earlier, but I do not believe a mediator would have quite the same position in relation to that situation as would a judge.
My main point in regard to mediation is that for it to work people have to be willing to speak, to communicate. Mediation relates effectively to communication. It is difficult to mediate in a communication if neither party, or one of the parties, is not prepared to speak at all. That is my basic approach.
My noble and learned friend Lord Simon of Glaisdale believes that it is possible to have compulsory mediation. I do not find it easy to disagree with him on many points, but I do find it necessary to disagree with him in this respect, for the reason I just sought to explain.
This amendment, as was pointed out, is inappropriate in its reference to Clause 12. I think that would probably be accepted. So far as I am concerned it is inappropriate in the light of Clause 22. If the noble Lord is not satisfied with my explanation so far, I can certainly readily deal with the matter by undertaking that it would be one of the clauses of the excepting regulations just to put the matter beyond all doubt. That is one of the reasons why it is quite good to have a flexible power in this connection. Other circumstances might appear in which that would be so. That is why I say it is a matter of principle, and then the exceptions are provided under the regulation-making power.
Lord Irvine of Lairg: That is a helpful response from the noble and learned Lord. His substantive reply was to refer me to Clause 22(3) which provides that,

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"A person is not to be granted mediation in relation to any dispute unless mediation appears to the mediator suitable to the dispute and the parties and all the circumstances".
He then says that it is inconceivable that any mediator would regard mediation as suitable if one party did not want to play. He then moves from that proposition to the proposition that in those circumstances the Legal Aid Board, despite the language of Clause 24, could not possibly consider mediation as more appropriate than taking proceedings. I would hope that that would be so. With respect, I agree with the noble and learned Lord and welcome his undertaking that these matters should not be left, as it were, to a process of reasoning, but should be made clear. I therefore welcome his assurance that one of the prescribed circumstances when we come to the regulations will be where one of the parties does not agree to mediation.
10.15 p.m.
Earl Russell: I am grateful to the noble and learned Lord for what he said, but it fell short of the assurances for which I was asking in two crucial points.
First, the noble and learned Lord drew our attention to Clause 22(3). But there we are dealing with cases where mediation does not appear to the mediator to be suitable to the dispute. I was interested in the situation where mediation does not appear to the party to be suitable to the dispute. I entirely take his point that, where one person is not willing to take part in the mediation, the mediator may—not will—decide that mediation is not appropriate. I say "may" because all of us are capable of error, all of us are capable of impatience and all of us are capable of the mistaken belief that the party is simply being obstructive and may be persuaded otherwise.
I still want to know, in a case which appears to the mediator to be suitable for mediation but does not so appear to the party, what will in fact happen to the party who will not go into mediation. The answer to that question is, to me, absolutely crucial. I should be very grateful if it could be spelt out exactly.
Baroness Hamwee: Before the noble and learned Lord responds to my noble friend, perhaps I may ask him to comment on how Clauses 24 and new Section 13B(4) (as introduced in Clause 22) interrelate. I think it is part of the same issue. New Section 13B(4) provides for withdrawal or revocation of a grant of mediation. On the amendment of the noble Lord, Lord Irvine, I queried the position in which one of the parties changed his or her view during the process and, having started on a course of mediation, felt that it was no longer appropriate to continue. I asked whether one could then move on, with the benefit of legal aid, into proceedings. That is perhaps another slant on my noble friend's question.
The Lord Chancellor: It may depend somewhat on the circumstances. The tests for the grant of legal aid generally include the merits test in respect of which the Legal Aid Board would have to make a judgment. I can readily foresee circumstances—I refer principally at the moment to the question of the noble Baroness, Lady Hamwee—in which difficulties arise in the mediation;
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for example, if it is not clear that a full disclosure has been made of all the assets. Then the mediation would have to stop and an application be made to the court in order to obtain full disclosure. In my view, it is right that in that situation legal aid would be available in appropriate circumstances for those proceedings.
In situations in which the person suddenly decides that he or she has had enough and wants to stop, the circumstances might vary. The person who so decided might be the person who had legal aid. If he (or she) decided without good reason just to stop, the Legal Aid Board might wish to revoke the certificate for mediation. The noble Earl shakes his head, but I cannot see any option to that. If the person who wanted to mediate decided that he did not want to go any further, and that is the person who has legal aid for that, then the legal aid certificate would have to be withdrawn in respect of mediation.
What would happen then would depend on the situation in which that person was, and the application to the circumstances of the tests that presently exist under the Legal Aid Act. That is the answer that I have to give to the noble Earl, Lord Russell. The mediation is certainly not compulsory. But that is not the same as saying that unnecessary expense should be incurred by the taxpayer at the whim of unreasonable litigants. The whole underlying basis on which legal aid is granted is that the conduct of the litigant and the litigation should be reasonable and that unnecessary expense would not be put on the public purse. In my view those circumstances also would be relevant to the question. That does not mean that mediation would be compulsory, but that the public purse might not fund it if the situation came out of an unreasonable attitude on the part of the party seeking legal aid.
Lord Irvine of Lairg: I am not entirely happy with that answer. It is a point of detail raised by the noble and learned Lord in developing his answer that concerns me. I do not see how mediation can truly be described as voluntary unless the initial and continued participation of the parties to it is voluntary. I got the whiff of a suggestion from the noble and learned Lord that if someone had legal aid for mediation and half-way through it decided that he or she did not wish to continue to participate in mediation, that could, as it were, be a black mark against that individual which the Legal Aid Board could take into account as a ground for refusing legal aid for court representation. If that is what the noble and learned Lord was saying, I suggest that he is seriously trenching on the proposition that mediation is voluntary.
However, I shall leave that point of detail to one side. As I understand it, the noble and learned Lord has given me an assurance that he will state, as one of the prescribed circumstances constituting an exception in the regulations, where a party does not wish from the outset to participate in mediation. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No 178 not moved.]
Clause 24 agreed to.
Lord Simon of Glaisdale: Before moving the next group of six amendments, I believe that it will be

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convenient if I move that the House do now resume, in order to give the Government business managers the opportunity of letting us know what their plans are. In asking that question I venture to remind them of the importance of the issues which are now to be discussed: the importance of the Bill; the assurances that were given to the House at the time we discussed the Rippon Report on the hours of sitting and, finally, the practice of your Lordships' House in allowing the Government to get their business through which is reciprocal to the Government conceding adequate and proper time for it to be discussed. The hours between 10.30 p.m. and midnight are, I venture to say, quite improper times. In the meantime, I beg to move that the House do now resume.
Moved, that the House do now resume.—(Lord Simon of Glaisdale.)
Lord Graham of Edmonton: The situation, as I see it—and indeed as the usual channels see it too—is that we are attempting to get to a point where we can leave the business tonight and have sufficient business left to ensure that we can have a reasonable stab at concluding it at some other time to be determined next week. It is of little use for those who have not sat in the Chamber—of course, the noble and learned Lord, Lord Simon, has—for eight hours today to feel that it is reasonable to look to the rest of the groupings and feel that they can be accommodated in a reasonable time. They cannot, and the Motion should be resisted.
There are two factors which one has to be brutally frank about. There is the convenience not only of the Members but also of the staff, and there are certain matters which hang on the time at which we conclude our business. It is felt that if in fact we deal with Amendment No. 179 and the other amendments they may very well take us to between 10.30 and 11 p.m., in which case that may be a sensible time to conclude the business. Of course it may even be that we would deal with the other amendment, No. 182. The conclusion that the usual channels have come to is that it is not unreasonable to proceed perhaps from now for 30 minutes and then conclude the business for today, leaving the rest to be determined at another time.
Lord Lucas: I am very happy to confirm from this side of the House that the noble Lord the Opposition Chief Whip has expressed with his usual clarity the agreement that the usual channels have come to. We must make progress with this Bill, and if we do not do more tonight we shall merely find ourselves sitting at an unreasonable hour on some other night.
Lord Simon of Glaisdale: I must just say this. The noble Baroness, Lady Young, has on several occasions referred to the sort of message we are sending out about marriage, but by sitting these sorts of hours on this sort of Bill we should consider also what sort of message we are sending out about parliamentary government and your Lordships' place in the Constitution. Having said that, with as much indignation as I can muster, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
10.30 p.m.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 179:
Before Clause 25 insert the following new Clause—
(" . Schedule (Matrimonial Homes (Co-ownership)), which makes provision for statutory co-ownership of matrimonial homes and other provision as to the rights of husbands and wives (whether during the marriage or after its termination), and to extend to engaged couples certain rules applying to married couples, shall have effect.").
The noble and learned Lord said: I am moving Amendment No. 179 and with it speaking to Amendments Nos. 180 and 181. They introduce three new schedules. I am speaking also to Amendment No. 207 at pages 16 to 24 of the Marshalled List, which deals with co-ownership of the matrimonial home. Amendment No. 208, pages 34 to 39, deals with co-ownership of the matrimonial goods and Amendment No. 209, page 40, deals with other matters relating to matrimonial property.
All three schedules reproduce Bills which were recommended and drafted by the Law Commission. I would have preferred to insert them in the Bill as separate parts, Parts IV, V and VI. But I was advised by the Public Bill Office that the only way to introduce them—they fall within the scope of this Bill—was by making them schedules.
I am grateful to the noble Lord, Lord McGregor of Durris, for adding his name, though he cannot be here, and to the noble Baroness, Lady Faithfull. My noble and learned friend, who also, under most unhappy circumstances, cannot be here, has written to support me.
I propose to deal with these matters more shortly than the Committee is entitled to expect in view of the importance, length and complexity of the first two schedules. But it is very late at night and I shall not go into the details of any of them. I hope the Committee will excuse that course; it is not to be taken as any slight to the Law Commission or to minimise the importance of these, its recommendations.
I must say a word about the background of the schedules and the Bills that were drafted. In 1979 the Law Commission made a third report on matrimonial property and annexed to it three draft Bills; the first related to the co-ownership of the matrimonial home, which is now Amendment No. 207; the second to assuring rights of occupation in the matrimonial home, which really completed the work of the late Lady Summerskill and was subsequently enacted as part of our law of matrimonial property after divorce. The third Bill related to co-ownership of matrimonial goods; in other words, Amendment No. 208.
In July 1979 I introduced a debate in your Lordships' Chamber on that report and therefore on the Bill. There was strong support for the home co-ownership Bill and considerable support for the goods co-ownership Bill, though less unanimous and less unreserved than that relating to the home. But in view of that debate, I introduced a home co-ownership Bill early in the following year. In the meantime, or perhaps a little before, there had been a survey

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commissioned by the Law Commission which showed that more than 90 per cent. of all married men canvassed and more than 90 per cent. of all married women canvassed approved of the principle of co-ownership.
The Second Reading was in February 1980 and again there was strong support for that Bill on home co-ownership. The noble Lord, Lord Boston of Faversham, was the Labour spokesman and on behalf of his party he strongly supported the Bill. I hope that that will be echoed by the noble Lord, Lord Irvine of Lairg. Perhaps I should point out that there are some electoral lollipops in this because in February 1976 a general election in New Zealand was won on the basis of the co-ownership of homes and goods. I say that merely to encourage the noble Lord.
Apart from the noble Lord, Lord Boston, the noble Baroness, Lady Seear—I am glad to see that she is still in her place—supported the Bill strongly on behalf of her party, and a great many noble Lords in all parts of the House, including my noble and learned friend Lord Scarman, also supported the principle.
There were two reservations. The noble Lord, Lord Middleton, on behalf of the Historic Houses Association was worried about the effect on historic houses. My view was that the Bill took care of that, but in any case I negotiated an amendment with the association's legal adviser. It is not in the schedule because nobody could find the correspondence until after I had tabled the schedule, but its provisions could be introduced at a later stage if necessary.
The other reservation came from the then Lord Chancellor, my noble and learned friend Lord Hailsham, who in view of the strong support—indeed, it was unanimous support, with the exception of the noble Lord, Lord Middleton—felt it necessary to act on that occasion as, as he described it, "devil's advocate".
The subsequent history was this: my noble and learned friend asked me later in the Session whether I would withdraw the Bill so that it could be considered further by the Law Commission in the light of a case in your Lordships' House involving Williams & Glynn Bank which dealt with the highly technical matter of overriding interest. I did not think that any amendment was necessary, but naturally I agreed with my noble and learned friend and withdrew the Bill.
I had an additional reason. As your Lordships can see from Amendment No. 207, that Bill was highly technical property legislation and was by no means within my sphere of experience and I thought myself inadequate to carry it through without assistance. If I felt inadequate when I was 70, your Lordships can imagine what I now feel 15 years later. However, I thought it right to lay it before your Lordships.
Why is that desirable? It has been common ground in our debates that the law can affirm and strengthen the institution of marriage. In the debate on the Queen's Speech I suggested two fiscal ways in which that could he done: the married couple's allowance and a differential succession duty in place of inheritance duty. I mentioned also these two outstanding Bills. There is also the attraction of the Scottish law of succession
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which takes much more notice of family relations than ours, but I was advised that that was outside the scope of the Bill.
Secondly, co-ownership reflects the concept of marriage as a partnership of two equals. Thirdly, the matrimonial home is essentially the sphere of a married woman. Fourthly, and arising out of that, as the Law Commission pointed out, in order to enjoy legal rights in her sphere (the matrimonial home) the married woman would have to become either a widow or a divorcee. Obviously the law cannot decently be left in that condition, hence these amendments. Divorce by unilateral repudiation has made this reform more than ever necessary.
I must say a brief word about the third new schedule (Amendment No. 209). That is a recent provision drafted by the Law Commission in its report of 1988. In a still more recent Written Answer in reply to a planted Question in each House, the Government do not accept that Law Commission proposal. They assign no reason for saying that. I have added that schedule so that my noble and learned friend can explain why that has been rejected, and whether he accepts reform in this branch of the law, because, after all, the proper priority would seem to be measures to affirm marriage rather than measures facilitating—to put it at its lowest—dissolution of marriage.
What course should be taken in regard to the Bills which are now Amendments Nos. 207 and 208? The most satisfactory course would be for my noble and learned friend to accept the amendments, to assume responsibility for them, taking them out of my grateful hands and probably referring them to a Jellicoe Committee. Next to that would be for my noble and learned friend to say that he will, at an early opportunity, bring in a Bill, at any rate in relation to the matrimonial home, and also, desirably, in relation to matrimonial goods. I have skirted over this matter. I hope that at this hour the Committee will excuse that. I beg to move.
Baroness Faithfull: I shall make the shortest speech on record. I support the noble and learned Lord, Lord Simon of Glaisdale.
10.45 p.m.
The Lord Chancellor: I am grateful to my noble and learned friend for raising these matters. The amendments bring forward the results of three reports by the Law Commission relating to the matrimonial home and matrimonial property. The situation as I see it is that at present in England and Wales we have a system of separate ownership of property during marriage. There is no regime whereby spouses automatically become co-owners of the home by virtue of marriage. However, on the whole, spouses are free to decide for themselves how they wish to hold property during marriage. The ordinary rules of property apply. There are few exceptions; for example, the presumption of advancement can mean that a husband who transfers property to his wife is presumed to have intended the transfer to be a gift.

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The main advantage of our current system is that spouses have complete freedom of choice as to how they should own property during marriage and also freedom as to the timing of when they should make decisions regarding such matters. There is nothing to stop spouses deciding to be joint legal owners of the matrimonial home or to agree that certain chattels should belong to one party or the other.
Although spouses have no automatic right of ownership of either's property during marriage that does not mean that they have no rights in respect of that property at all. If, for example, the husband is the legal owner of the home and the wife has no interest in it she does have automatic occupation rights under the Matrimonial Homes Act 1983, which is re-enacted in Part III of the Bill. Such rights are referred to in this Bill as matrimonial home rights. These rights of occupation give the wife, among other things, the right to apply for an order ousting her husband from the home. Once the rights are registered no prudent purchaser of the home will proceed to completion until such time as the rights are released. If a spouse has an interest in the home which is registered land, she will have a measure of protection for her interest, even though it is not registered, so long as she is in actual occupation of the property. If the husband should fail to make reasonable provision for the wife on his death she can make an application for such provision under the Inheritance (Provision for Family and Dependants) Act 1975.
Lord Simon of Glaisdale: Does she not need to be a widow to do that?
The Lord Chancellor: I believe that it depends whether she is a dependant. The way in which I put it implies that she would be a widow because I said that, if the husband should fail to make reasonable financial provision for his wife on his death, she can make an application for such provision under the Inheritance (Provision for Family and Dependants) Act 1975. A provision for the wife on the husband's death would seem to imply—
Lord Simon of Glaisdale: That was exactly the point that the Law Commission made. She must either be a widow or a divorcee to acquire rights to the matrimonial home.
The Lord Chancellor: By virtue of inheritance she can obtain occupation rights as a wife in occupation, as I said.
As regards the matrimonial home, the Law Commission, in its report on matrimonial property in 1988, questioned whether further statutory intervention was needed. The reasons for doubting whether further intervention was required were threefold. First, there is the automatic protection given to a spouse who has an interest in registered land if she is in actual occupation of the home, to which I have referred. Secondly, a substantial number of matrimonial homes were at that time and still are purchased in joint names. Thirdly,
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spouses are more likely to receive legal advice when purchasing a home than when purchasing other property.
That position means that under our present system husbands and wives are free to agree the way in which any property in which either of them has an interest is held as between them. As my noble and learned friend knows, the exemptions in relation to the capital taxes allow transfers as between husband and wife to he free from such taxation in respect of these transfers. So there is a complete freedom during marriage for parties to arrange property rights between them.
I understand well the considerations which led the Law Commission to make these proposals. I intended in the Bill to deal with the divorce process and the other matters connected with the support of marriage which have now been dealt with, and the extension of legal aid to mediation in relation to matrimonial disputes. I did not intend to deal with the detailed provisions in respect of the family property at this stage.
There are arguments, as my noble and learned friend has said, for considering this matter further. The present situation, if it were to be changed in the way the Law Commission suggest, would involve quite a degree of transitional difficulty for fairly long-term consequences. I intend that the Law Commission should review the whole of this area and bring these matters up to date. The first two of the reports referred to are now quite elderly.
In that situation, I hope that my noble and learned friend will feel that he has served an important purpose by bringing these matters again fully to our attention. I am glad that the 15 years which my noble and learned friend referred to, at least from my perspective, does not seem to have produced any diminution in his powers of advocacy or analysis.
It would be unwise to embark in this Bill on a detailed review or a detailed change of this area without a more modern consultation upon it than we have as yet.
Lord Simon of Glaisdale: Will my noble and learned friend deal with why the Government rejected the 1988 proposal? He will correct me if I have misunderstood, but he implied that it was because he had asked the Law Commission for a fresh appraisal of the whole situation. Perhaps he will clear that matter up.
The Lord Chancellor: I think the reason we had in mind was what I have indicated—that the Law Commission itself in 1988 questioned whether further statutory intervention was needed in respect of the matrimonial home, which, in a way, is the central part of these proposals. It is not the only part but it is the central part, for the reasons that I indicated, and I believe that those were quite good reasons.
However, an additional factor which I mentioned in the course of my submission to the Committee was that a change of this magnitude in property rights as between spouses would involve a good deal of transitional difficulty and possibly litigation and we were not, at that stage at any rate, assured that the difficulties would be

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ultimately, as it were, repaid by the benefits to be reaped after some considerable time before this new regime would settle down.
Lord Simon of Glaisdale: I am most grateful to my noble and learned friend for replying to the debate. I am sorry that we did not have a contribution from either of the Opposition Front Benches. Perhaps the noble Lord, Lord Irvine, modestly felt that he could not improve on the commitment of the noble Lord, Lord Boston of Faversham—a commitment of his party. Moreover, perhaps the noble Baroness, Lady Seear, was too modest to repeat what she said so effectively when I introduced the Bill.
My noble and learned friend said that the parties are entirely free at present to make what arrangements they may wish to make as to ownership of the matrimonial home. That is absolutely true. The Law Commission, both in its Bill and in its report, expressly left open the right to any couple to make their own arrangements. The Bill was only intended for use in default. The situation is that the law does not really exist for those who do not need it—that is, those who live in amity and make their proper arrangements as to the matrimonial home. The law exists primarily to deal with social, pathological situations; indeed, the sort of situations where the married woman is left without any right in her matrimonial home.
I gather that my noble and learned friend—no doubt he will correct me if I misheard him—is prepared to ask, or has asked, the Law Commission to re-examine the whole situation. We have now waited 15 years—indeed, married women have waited 15 years—for elementary justice. There is no reason why they should be kept waiting much longer. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 180 and 181 not moved.]
Clause 25 [Rights concerning matrimonial home where one spouse has no estate etc.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 182:
Page 15, line 17, leave out ("(6)") and insert ("(5)").
The noble and learned Lord said: In moving the amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 183, 186, 187 and 210. The amendments arc grouped together because they are all of a technical nature and are being made to correct drafting matters arising out of the putting together of the Family Homes and Domestic Violence Bill from the former Session.
Of course, when Parts I and II of this Bill were drafted, I intended to present them separately from Part III which I had hoped might have achieved Royal Assent by that time. However, Members of the Committee know well that, due to an unforseen circumstance, my expectation was not realised. As I said, the amendments are of a technical nature. Obviously, I am in a position to explain them further to anyone who may wish me to do so. But, in the absence of such a request, I beg leave to move the amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 183:
Page 15, line 21, leave out ("the spouses in question") and insert ("theirs").
On Question, amendment agreed to.
Clause 25, as amended, agreed to.
Clauses 26 to 29 agreed to.
Lord Lucas I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at eleven o'clock.