Lords Sitting of 30 January 1996

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

Transport Policy
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
Whether they will adopt the objectives for a sustainable transport policy and the targets for achieving them contained in the Royal Commission on the Environmental Pollution's 18th Report Transport and the Environment, published in October 1994.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, decisions on the Government's response will be taken in the light of the national debate on transport, as set out in the consultation paper Transport: The Way Ahead.
Lord Berkeley: My Lords, I thank the Minister for that interesting Answer. It is 16 months since the report was published. The report contained 110 recommendations and, as the Minister said, was followed by a debate on transport policy which was instigated by the former Secretary of State, Dr. Mawhinney. One of those recommendations was that the amount of freight moved by rail should treble in 15 years.
Lord Strathclyde: Question!
Lord Berkeley: My Lords, many people had an input, but when are we going to see something, even a smoke signal, come out of that bottomless pit? Can the Minister say when we are likely to have an answer?
Viscount Goschen: My Lords, it may be 16 months since the report was published, but that report took two and a half years to produce. I think that that gives some indication of the weight of that document. I believe that that report was valuable in putting forward environmental issues, but it also raised a number of other important matters. If those targets were to be accepted, there would have to be real change in terms of people's transport requirements. That is why we have undertaken such a major transport consultation exercise.
Lord Clinton-Davis: My Lords, is the Minister aware that his reply hardly seems an answer given the urgency of the matter, bearing in mind that his own department's report indicated, among other things, that diesel pollution was killing thousands of people a year? repeat that his own department said that. Is the Minister not aware that unless and until the Government
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begin to approach transport as an integrated whole, they will never begin to solve the urgent problems affecting transport and the environment?
Viscount Goschen: My Lords, we are taking serious measures with regard to air quality, in terms of both static-based pollution and pollution from vehicles. We have a wide range of policies designed to address that matter. The fact that there has not yet been a specific response to the commission's report does not mean that we take those issues other than extremely seriously. The noble Lord calls for an "integrated transport policy". I am not always entirely clear what is meant by that, especially when it is proposed as a universal panacea.
Lord Jenkin of Roding: My Lords, does my noble friend recollect that the report of the special Select Committee on Sustainable Development made some clear recommendations about the establishment of more targets in relation to transport? Does he further recollect that in their reply the Government were not entirely enthusiastic about them? As there really is evidence that, without such targets, there is unlikely to be the sort of progress that many noble Lords would like, can my noble friend give the House an undertaking that the Government are looking again at this matter and that their response to the Royal Commission will take a step forward by setting targets on transport, as they have done so admirably in so many other environmental areas?
Viscount Goschen: My Lords, I have sought to explain that we are addressing all of those issues in the extremely wide consultation exercise that we are undertaking at the moment. Indeed, I could describe that wide consultation as unparalleled. Of course, targets are important and we already have a number in relation to transport, on, for example, road casualty reductions and carbon dioxide and nitrous oxide emissions. New targets are being developed in relation to air quality standards. They are extremely important, but the issues raised by the Royal Commission were very wide ranging and I think that we need to make the best possible response, which means involving the population as a whole in the wide transport debate that we have initiated.
Lord Dean of Beswick: My Lords, is the Minister aware that some of the worst areas for air pollution are our large inner-city centres? Is he aware that the situation in Manchester is giving cause for great concern among a substantial number of people? If Manchester and our other large cities are to deal with that problem, can they expect any assistance from the Government other than advice?
Viscount Goschen: My Lords, the Government have a wide range of policies designed to address the problem of air pollution. We have already taken forward new standards on emissions from vehicles, both in relation to those currently in use and for the production of new vehicles. I believe that such policies will help to address the difficult issue of air pollution.
Lord Clinton-Davis: My Lords, is not the Minister aware that there is no coherence in what the

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Government are purporting to do in that regard? What we are promised is more and more analysis—in fact, that seems to be the determinant factor of government policy—but analysis on that scale can also mean paralysis.
Viscount Goschen: My Lords, I am afraid that we are now back to slogans. I should have thought that even the party opposite would realise from the report that there are no easy answers to these questions. The Royal Commission proposed the doubling of fuel prices. Such a measure would have a real impact on the way in which people lead their lives. We need to give all such proposals proper examination and I think that wide consultation is the answer. We have strong transport policies, but we are not so arrogant as to believe that we know everything about this and that we should not involve the public.
Lord Taylor of Gryfe: My Lords, is the Minister aware that my railway fare has gone up this week from £149 to £165? Does he believe that a contribution could be made towards solving the problem by making railway travel more attractive? Is his privatisation policy likely to contribute to that end?
Viscount Goschen: My Lords, yes, I entirely agree with the noble Lord that we should make rail travel more attractive. Yes, rail privatisation will do precisely that. That is why we have taken the policy forward.
Baroness Farrington of Ribbleton: My Lords, will the Minister explain how railway travel will be more attractive in the light of the result of government policy being that connections can no longer be made and that the service has been fragmented? Whereas three years ago a question about a train from the north of Scotland involving connections allowed the public to make the assumption that those connections would be met, the answer now from the separate parts of the rail network is that trains are no longer intended, or can be relied upon, to connect. How will that encourage the use of rail transport and reduce car pollution?
Viscount Goschen: My Lords, such fears and scaremongering will be shot down as soon as the new services start to run. No one would seriously expect that privatised airlines, for example, would offer services that did not connect with others, or would offer unattractive fares. One has only to look to history. Those companies have shown themselves to have come from the public sector and be now providing the service that the passenger wants. That will happen with the railways as well.
Baroness Young: My Lords, does my noble friend agree that since 1950 billions of pounds have been poured into the railways by way of subsidy, and that the number of passengers travelling on the railways has reduced consistently? As someone who travels regularly by train, I can assure my noble friend that the service is far from excellent at present.
Viscount Goschen: My Lords, my noble friend is right. Some £15 billion has been invested in our national
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railways since 1979. It is clear that major structural change is required if we are to have the type of railway that we all want: an efficient railway with the best possible benefits for passengers. That will be achieved under privatisation.
Lord Gisborough: My Lords, is my noble friend aware that in travelling from the north, as the result of competition fromthe airlines and the threat of privatisation, there has been a dramatic improvement in the condition of the coaches and the service which has been very noticeable?
Viscount Goschen: My Lords, my noble friend points to the advantages of competition, which the party opposite refuses to believe even in the face of such clear evidence.

Restraints on Prisoners
2.46 p.m.
The Earl of Longford The Earl of Longford asked Her Majesty's Government:
Whether they will now cancel any instructions issued in 1995 regarding the handcuffing of prisoners.
The Minister of State, Home Office (Baroness Blatch): My Lords, in his Statement of 18th January, my right honourable friend the Home Secretary set out new arrangements for the use of restraints on prisoners attending hospital. The Prison Service Director of Security, Mr. Tony Pearson, wrote to governors with details of those new arrangements the following day.
The message to governors said that the changes should be implemented immediately. An instruction to governors formally cancelling the 1995 amendments to the security manual affected by those changes will be issued as soon as possible and a copy will be placed in the Library.
The Earl of Longford: My Lords, I welcome the news that that restriction on pregnant women will be removed. Do I gather that men, and women who are not pregnant, will still be subjected to that brutal and obscene practice? I have frequently visited prisons and prisoners in hospital, but I have never been told that handcuffing was necessary. I visited Holloway last week. Can the Minister, who we all know is so humane, possibly justify that drivel?
Baroness Blatch: My Lords, moving prisoners from one place to another involves risk. It involves the risk of prisoners escaping and risk to the public. It sometimes involves risk to the prisoners themselves. Following assessment of risk, it will be necessary into the mists of time for some prisoners to be restrained. Governors have the flexibility not to restrain prisoners. We have already accepted that when medical advice is such, it may override the need for security.
Lord Boardman: My Lords, does my noble friend agree that restraining prisoners to prevent them from

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escaping and damaging innocent victims is right and proper, and that police and warders should be given the appropriate powers to do that?
Baroness Blatch: My Lords, I absolutely agree. It is worth recording that 150 prisoners have escaped since 1988. In the course of escaping, they have used guns, sharp instruments and blunt instruments. They have physically overpowered staff. They have even engaged their friends from outside to help them escape. There will always be a need to restrain prisoners in those conditions.
Lord Merlyn-Rees: My Lords, I am not quite clear about what the Minister was telling the House. Will she explain who takes the decision about the handcuffing of pregnant women prisoners who might want to escape? I find it difficult to believe that a pregnant woman about to give birth will get very far. Is it a Home Office Minister, the Home Secretary or the decision of the Prison Service? Is it a policy decision or an operational decision?
Baroness Blatch: My Lords, there will be a professional assessment of risk by the prison officers themselves. We have made it clear that the security manual will be adjusted so that no pregnant prisoner admitted to hospital to give birth will be physically restrained from arriving at the entrance to the hospital, right the way through all the treatment, including post-natal treatment, to leaving the hospital entrance. However, there will be exceptional circumstances. One of those exceptional circumstances will be where a prisoner is at risk of self harm, of harming the baby, or of harming members of the medical staff.
Baroness Williams of Crosby: My Lords, many noble Lords welcome the Minister's concession with regard to women in labour and immediately after the birth. However, can she assure the House about two matters: first, is it correct that in recent years there has been a considerable extension of the handcuffing of non-violent prisoners? Secondly, in the light of her reply to a question asked by the noble Lord, Lord Merlyn-Rees, is the issue of whether a prisoner has a record of violence taken into account in the operational decision of whether to use handcuffs? In the past the handcuffing of non-violent prisoners did not appear to be necessary.
Baroness Blatch: My Lords, the issue was not always about non-violence. The assessment of risk includes the likelihood of a prisoner to escape using violence or not. This House takes the issue seriously. I know that I and my noble friend who held the post before me have had to face this House when prisoners have escaped. This House has been very critical of the Prison Service and in particular the Home Office after prisoners have escaped. There is a responsibility to ensure that prisoners do not escape, and therefore a violent record is not the only issue to be taken into account.
Lord McIntosh of Haringey: My Lords, the Minister said in an earlier answer that some prisoners must be restrained. Will she accept that we are bound to agree with that? However, is it not a presumption that female prisoners leaving prison for any purpose will be
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restrained—in other words, handcuffed—and is there not a conflict between that presumption and the need for a small minority to be restrained?
Baroness Blatch: My Lords, no. In the consideration of the prison officer when leaving the prison with any prisoner, whether a woman or a man—that is, with the exception of pregnant women—the rules are applied equally between men and women. The concern must lie with the likelihood of the prisoner escaping, the likelihood of the prisoner using violence, the likelihood of risk to the public and the responsibilities of the prison officer who must escort a prisoner between one place and another. Those are the considerations that are taken into account.
It is true that governors have the flexibility to allow prisoners not only to be released for hospital visits but, under licence, to keep a hospital appointment without any escort and without any restraint whatever. It is also possible for prisoners to go escorted but not restrained. The risk assessment is a judgment of members of the Prison Service and the prison staff concerned. If the risk assessment is such then that prisoner will be restrained. I have to ask myself, as this Question has been pressed so many times, on whose side are noble Lords opposite?
Lord Campbell of Alloway: My Lords, will my noble friend the Minister accept that her explanation of policy is wholly satisfactory at least to some of us on this side of the House? Is she aware that when she draws the distinction between violence and the dedication to escape she is wholly right in believing that the most effective and dedicated escapers are usually non-violent?
Baroness Blatch: My Lords, I agree with my noble friend and I am grateful to him for his comments. They are pertinent to this Question.
Lord Howell: My Lords, may one ask a question on behalf of other hospital patients? As a result of these exchanges, will the Minister tell the House whether the Prison Service is now in charge of arrangements in our hospitals? I understand what the Minister has said and I appreciate the need to take action in appropriate cases. However, is she aware that it can be extremely depressing for other hospital patients, in particular for their visitors and children, to see people chained up in their ward? Will the Minister assure the House that the needs and rights of hospital patients are equally considered when these issues are determined?
Baroness Blatch: My Lords, I can think of hospital patients who would be very relieved to know that some people who go into hospital are restrained in some way. The particular point that the noble Lord raised is important. We and the Prison Service have accepted that it must defer to medical advice and therefore the Prison Service is not in charge of hospitals. If the medical advice is such the restraints are removed. We want to see a better working relationship between the Prison Service and the hospitals.

ODA: Fundamental Expenditure Review
2.55 p.m.
Lord Judd asked Her Majesty's Government:
What is the outcome of the fundamental expenditure review of the Overseas Development Administration; which bilateral and multilateral programmes are to be cut; and from which multilateral agencies it is proposed to withdraw.
Lord Chesham: My Lords, the Fundamental Expenditure Review confirmed the need for continued substantial levels of concessional aid. The ODA's policy is to focus this aid on where it is most needed and where it can do most good, particularly in the poorest countries.
Final decisions on the exact distribution of resources for future years are not yet finalised. However, the planned allocation for bilateral aid is likely to be little changed from that set out in last year's FCO departmental report. We have no intention at present to withdraw from any multilateral agencies.
Lord Judd: My Lords, does the Minister agree that the review has underlined the fact that from 0.51 per cent. of gross national product, and rising in 1979, the aid budget was set to fall to 0.26 per cent. of GNP in 1997-98 even before the cuts of last November? Does he further agree that that is happening when across the world one in four people still live in absolute poverty, 800 million people still do not have enough to eat and every day 35,000 children die from preventable diseases? In view of the 114 specific recommendations in this interesting report and the falling resources available to the administration, will the Minister assure the House that the Government as a whole have any strategy at all for their part in the fight against world poverty?
Lord Chesham: My Lords, I can certainly assure the noble Lord that we have a strategy. It remains to maintain a substantial and effective bilateral programme and to intensify efforts to ensure that our contributions to multilateral aid are spent effectively. The FER's conclusions were recommendations only. We are now considering how policies should be changed to respond to those recommendations and we welcome discussion thereon. As regards the amount of aid, it might be interesting for the noble Lord to realise that while we have had a minor reduction in the amount in this year's budget, last year Italy's aid expenditure fell by 36 per cent., Canada is reducing its aid by 20·5 per cent. and that the US, which provides only 0·15 per cent. of GNP as aid, is reducing its programme still further. I believe that the Government have a record considerably better than those other countries.
Lord Redesdale: My Lords, considering that the Fundamental Expenditure Review does not take into account the 0·7 per cent. UN target for aid, is it not
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time for Britain to abandon its commitment to that under present spending arrangements and actually say that they have given up on aid?
Lord Chesham: My Lords, our position on that is unchanged. We have agreed to the UN target but not to a timetable for reaching it. Levels of aid will continue to depend on our economic circumstances and other demands on public funds.
Lord Bridges: My Lords, may I, through the noble Lord, invite the Government to complete their study of the review at an early date? Is the Minister aware that as a result of the recent sequence of reviews of overseas aid the level of disbursement to the specialised agencies of the United Nations has fallen considerably? Is he conscious of the fact that the United Nations Children's Fund, of whose national committee I am chairman, has noticed a considerable decline? Does he share my concern that at the end of the financial year, which is now not very far away, there may show an evident decline in the Government's support for that organisation, to which they have been most generous in the past and which fully meets the standards of efficiency that the Government now require from agencies of the United Nations?
Lord Chesham: My Lords, we continue to support agencies as far as possible. However, we have had to take some very tough decisions this year which have resulted in cuts in the spending plans of many government departments.
Baroness Gardner of Parks: My Lords, can my noble friend the Minister confirm that a considerable amount of aid is now being determined locally in such countries in need? Moreover, in view of the fact that we have had such Answers in the past, can my noble friend confirm that the money spent through the NGOs is providing very good value for money? Can my noble friend also assure the House that they will still be funded wherever that is possible?
Lord Chesham: My Lords, I am delighted to be able to say that we really appreciate the efforts made by the NGOs. We shall do everything that we can to support them.
Lord Molloy: My Lords—
Noble Lords: Cross Benches!
Lord Avebury: My Lords—
Lord Molloy: My Lords, they have had a turn!
The Lord Privy Seal (Viscount Cranborne): My Lords, we are running out of time. Of course, I am always in the hands of the House, but, if both noble Lords were able to ask their questions with expedition, I believe that we might be able to get each of them in before moving on to the next Question.
Lord Molloy: My Lords, is the Minister aware that British overseas aid is highly respected in Africa, Asia and. indeed, in the United States of America and the

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Commonwealth? Anything that could damage that respect would harm the name of Great Britain. Remarkably, such aid was built up by all governments. I hope that the present Government will recognise that fact and ensure that our reputation is in no way harmed.
Lord Chesham: My Lords, the efforts of past governments—and, indeed, those of the present Government—in that respect are certainly very highly valued. We are very well received all around the world as to what we are doing now.
Lord Avebury: My Lords, can the Minister say how many states, apart from Dominica, have had their aid cut because they were in arrears with debt repayments; and how many states—again, apart from Dominica—have enjoyed a 350 per cent. increase in the aid paid to them this year, consequent upon the repayment of such arrears?
Lord Chesham: My Lords, I would need advance notice of such a question. I shall write to the noble Lord on the matter.

British Coal Enterprise: Privatisation
3.2 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they have any plans to privatise British Coal Enterprise.
Viscount Goschen: My Lords, the British Coal Corporation has invited competitive proposals for British Coal Enterprise. It expects to have completed the sale of this subsidiary company by the end of March.
Lord Dormand of Easington: My Lords, I thank the Minister for that Answer. However, does he agree that British Coal Enterprise has an excellent record in the difficult task of generating employment in pit closure areas? Will the noble Viscount also confirm that the all-party Coal Fields Communities' Campaign has complained very strenuously to the Secretary of State about the proposed sale and that the European Commission, which has given BCE £10 million in grants, is also very much opposed to it? Is it not sheer vandalism to destroy such a successful operation?
Viscount Goschen: My Lords, I do not believe that to be the case. However, I join the noble Lord in his praise for the work that British Coal Enterprise has done. That is indeed the case. Well over 100,000 people have passed through its auspices. But with the winding up of British Coal change is inevitable post-privatisation. We want to see the regeneration work that BCE has undertaken so successfully in the past continue. We believe that this move will be the best way to achieve that aim.
Lord Mason of Barnsley: My Lords, can the Minister say, first, how many bids have been submitted since British Coal advertised; secondly, whether the economic regeneration of the coal fields is still part of
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the bid criteria; and thirdly, whether the moneys raised from the sale will be ploughed back into the coal field communities?
Viscount Goschen: My Lords, in answer to the noble Lord's first question, I understand that British Coal has prequalified 14 organisations to bid for all of BCE or its individual activities. I agree with the noble Lord that it is important to ensure that the regeneration work that BCE has undertaken so successfully should continue. As regards the issue of the revenues from the sale, I have to tell the noble Lord that, allowing for the repayment or the write-off of BCE's current debts, it is by no means certain what level of proceeds will accrue. However, such proceeds will go to British Coal.
Lord Skelmersdale: My Lords, can my noble friend explain what is behind the idea that this regeneration can only be done by the public sector?
Viscount Goschen: No, my Lords, I cannot explain that because, as my noble friend knows, that is not the Government's policy. A number of other institutions—private companies and, indeed, organisations in the public sector—undertake such work. It is most important to realise that fact when considering the future for BCE.
Lord Ezra: My Lords, as it appears to be generally agreed that valuable work has been done by British Coal Enterprise and that it is desirable that such work should continue under the new owners, can the Minister say whether there is anything in the conditions of sale which will make that come about? In other words, is there not a risk that, with the new ownership of such businesses, such efforts could be diverted into other activities?
Viscount Goschen: My Lords, I do not believe that that is the case. When considering the bids that are put forward, British Coal will be looking most carefully at the sort of undertakings that such bodies will be able to give to continue that work. Within its statutory obligations British Coal is clearly looking for such work to continue. I believe that that is the right way to go about it.
Lord Dubs: My Lords, does the Minister agree that British Coal Enterprise has been one of the most successful examples of job creation in the coal field areas and that there is no certainty at all that any new company will be as successful in that respect as regards what we have seen recently? Can the Minister also give a better assurance than the one he gave earlier that the money from the sale will be used in the coal field areas? Will he confirm that that money will not just he given to British Coal, but that it will be used in the coal field areas for the benefit of the people living there?
Viscount Goschen: No, my Lords; I have clearly stated the position on what will happen to the proceeds. The moneys will accrue to British Coal. As I said—and I agree with the noble Lord—BCE has been a great success. However, that now has to be put against the background of post-privatisation and a changing environment for BCE. With the gradual winding-up of

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British Coal, we have to look at the right environment to ensure that such activities are taken forward. We believe that this move will be the best way to achieve that aim.

Foreign Prison-made Goods (Amendment) Bill [H.L.]
3.7 p.m.
Lord Avebury: My Lords, I beg to introduce a Bill to amend the Foreign Prison-made Goods Act 1897. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— (Lord Avebury.)
On Question, Bill read a first time, and to be printed.

Disclosure and Use of Personal Health Information Bill [H.L.]
Lord Walton of Detchant: My Lords, I beg to introduce a Bill to make provision for the collection, use and disclosure of personal health information. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— (Lord Walton of Detchant.)
On Question, Bill read a first time, and to be printed.

Business of the House: Standing Order 38
Viscount Cranborne: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 38 (Arrangement of the Order Paper) be dispensed with today to enable the Motion standing in the name of the Lord Dubs to have precedence over the Chemical Weapons Bill and the Family Law Bill.—(Viscount Cranborne.)
On Question, Motion agreed to.

Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996
3.8 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham rose to move, That an humble Address be presented to Her Majesty praying that the regulations (S.I. 1996 No. 30) be annulled.
The noble Baroness said: My Lords, we believe that the regulations we are debating this afternoon are rather shocking. They deliberately remove benefit from some of the most traumatised and troubled people to arrive in this country and that will leave them destitute. Why? Well, the Government occupy a world of some very simple propositions. The Government believe that the number of asylum seekers has increased without good cause and that almost all of them are bogus. The
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Government claim to know that because they say 70 per cent. of the applicants apply for asylum status once they are in this country and, accordingly, they are eating up the benefit bill and need to be deterred and the best way of doing that is to refuse them benefit. That is the Government's view. It is very tidy.
In this House—and, indeed, in the country—I believe that we are fortunate. We live under the rule of law; we have never been invaded; we have never had enemies on our land; and we do not fear government. In fact, many of us in this House are government. We do not fear terrorists; we do not fear police; we do not fear officials and we do not fear the dark. We know our rights. We are sure that the system is on our side. How do we begin to comprehend the situation where an asylum seeker comes from, or what it is like to arrive here confused, terrified, perhaps unable to speak English, often in broken health and desperate for the safety of anonymity? How can we comprehend that? Which of us has experienced that?
These regulations are chilling, not just because of the benefit income they refuse to defenceless people but because, in my view, they reveal a lack of imaginative understanding of what seeking asylum is all about and of what it means to be on the wrong side—the dark side—of the official system. Government, almost because they are government, can never understand that. That is why we believe that these regulations are founded on a set of propositions, every one of which is incorrect, and which together are indefensible and whose consequences are morally wrong.
Let us look at the Government's arguments. Their first proposition is that the number of asylum seekers has risen without good cause and therefore most must be bogus. The United Nation's High Commission for Refugees states in its evidence to the Government's own independent Social Security Advisory Committee,
"In our view the rise in asylum claims may be more rationally seen as a consequence of unprecedented scale of global conflict which produces refugee flows. Moreover refugee recognition rates must be analysed with considerable caution. A narrow application of the refugee definition will reduce the number of successful applicants but lower figures are then tendentiously used as evidence that bogus claims are increasing thereby justifying further restrictive measures. We believe that there are many dangers in such a self-justificatory and secular analysis".
Those are the words of the UNHCR, not ours. In the first six months of 1995 this country recognised just 5 per cent. of those seeking asylum as refugees, though of course it granted exceptional leave to remain to others. France and Germany recognised twice as many; Italy and Switzerland three times as many. Are we really saying that our asylum seekers are less genuine than theirs? Is it not more likely that our criteria are already more stringent than theirs, just as the UNHCR suggests?
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, perhaps the noble Baroness might help the House by putting her figures into context and by telling the House

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how many asylum seekers seek applications in some of those states—for example, Italy—so that her percentage can be put against a figure.
Baroness Hollis of Heigham: My Lords, I am happy to try to give the House those figures. The latest complete figures I have are for 1994 when the figure for Germany was 127,000; for the Netherlands 52,000; and for the UK 42,000. I do not have the figures for 1995 but for the previous year Italy had a figure of 1,800, coming down from 31,700 in 1991. Nevertheless, the figure for Germany of 127,000 is twice our number of acceptances, and the position is similar in France. I do not have the figures for 1995 but I have given the complete figures for 1994 and they show that in Germany, France, Sweden and Switzerland both the absolute figures and the proportional figures were well above those of the UK.
Of course there is a proportion—perhaps a high proportion—of economic migrants for which this country cannot take responsibility. Of course we accept that a country must protect its borders and cannot permit unlimited entry. However, the right way to do that is to have fair but fast decisions on applications for asylum status. Instead, as at December last, 15 per cent. of those who applied in 1991 had not even had their initial determination heard. The figure was 15 per cent. in 1992; 15 per cent. in 1993; 25 per cent. in 1994; and 25 per cent.—but that is more understandable—in 1995. Nearly 70,000 people—some of whose applications were lodged before 1991—have not had even their original application heard.
I am sure that the Minister would welcome another foreign comparison. Germany in the first six months of 1995 heard 112,000 applications. This country in the same period managed just 12,000. Would the Minister care to comment? Perhaps he would not. Precisely because we do not resolve asylum bids on asylum grounds we instead are trying with these regulations to deter asylum bids on social security grounds. Because we do not—and will not—hear the applications when we should, we instead try to deter the applicant by denying him any means of financial support. In all fairness, whose fault is that—the person who seeks asylum or the system which will not hear his application on time, as is the case here? If we want to cut the social security bill, we should do so by hearing and determining applications speedily and then, but only then, denying benefits to those who do not merit them, not by withholding benefits indiscriminately from those who are genuine and those who are not, which is the Government's policy.
I now turn to the Government's second main proposition. The Government say, "We know that most are bogus because they apply for asylum once arrived in this country". The Government say that those applying at port of entry will receive benefits because they are true asylum seekers and that only those who apply once they are in the country will be denied benefits because they are bogus. I suggest that the Government are wilfully refusing to understand what it means to seek asylum and they are equally wilfully
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ignoring the advice of their own Social Security Advisory Committee. That committee states at paragraph 38 of its report to the Government,
"There are many valid reasons why people do not make their asylum claim immediately on arrival. Lack of knowledge of the procedures, arriving in a confused and frightened state, language difficulties or fear of officialdom may all be insuperable barriers to making any kind of approach to the authorities at port of entry. Many intending applicants will quite reasonably want to get help and advice before making their claim. We are told by refugee organisations that there is a common fear that making an asylum application while still in port is more likely to result in immediate deportation or being held in detention. For these and other reasons it is easy to see why for the majority of asylum seekers it appears much safer to make their claim from inside the UK".
I emphasise that these are the words of the Government's own Social Security Advisory Committee. I suspect that what I have described is what each and every one of us would ourselves do in a similar situation.
The majority of asylum seekers—the Refugee Council says this applies to up to 80 per cent. of its clients—apply for asylum within a month of arrival and most do so within a week or so of being here. They are not holiday makers, tourists or visitors who are staying here after their money runs out to enjoy the delights of our social security system. Their first priority was to enter the safety of our country; their second was to get in touch with an organisation to help them; and their third was to seek official permission to stay. They did all of that within a couple of weeks of being here. Can anyone truthfully say that they were wrong?
Yet these regulations erect a distinction between application on arrival and application in the country. That distinction is, I believe—to coin a phrase—quite bogus. If the Government were right that those who apply at port of entry are genuine and those who apply when in country are not, virtually all those who gain asylum status or exceptional leave to remain would be from those who apply at port of entry. That would follow logically, would it not? Yet precisely the reverse is true. A lower number of people and a lower proportion of applicants gain refugee status at port of entry whereas a higher number and a higher proportion gain refugee status and exceptional leave to remain once they are in this country. Therefore by the Government's own criteria there are more likely to be genuine asylum seekers among those to whom the Government are denying benefit than among those to whom, under these regulations, they will continue to grant it. That is perverse, and it is wrong. Yet the Government are proposing tonight income support, housing benefit and council tax benefit to all in-country applicants. We know that they need the money because those are means-tested benefits without even a threshold of a capital limit. If asylum seekers had other means of support, they would not be eligible for any of those benefits. The old, the young, children, families, the sick, pregnant, disabled, and in some cases those who have been the victims of torture, will all he left without any means of support, in the belief, I suppose, not that they are less deserving than port applicants—the Government's own figures indicate that they are probably more deserving—but presumably in the seedy

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hope that such action will deter asylum seekers. They will therefore not come. Therefore the benefit bill will fall.
Are we really saying that we shall deny income support to traumatised children from Somalia in the hope and expectation that it will deter those from applying who are terrified of torture in Iran?
There is likely to be some 2,500 new applicants each month. If they are terrified enough they will still come; and precisely because they are terrified they are more likely to seek asylum once in this country as they fear otherwise that they will be turned away on arrival. What are they supposed to live on when the little money they have runs out and they wait the eight, 12 or 15 months, or the two or five years, to have their original application heard by the Home Office? How will they buy food? How will they keep warm? Where will they sleep? Do we expect them to join the rough sleepers? Do we expect them to huddle under Waterloo Bridge? Do we expect them to steal, to break windows, sell drugs or go into prostitution? They have no home to go back to in this country. Those applicants have no means of supporting themselves because they are not allowed to work for the first six months.
What can they do? What should they do? What do they do? Many will have children traumatised—perhaps deeply—by what they have been through. What will we be doing to them? Under the Children Act 1989, though government may walk away from those children, the local authorities cannot do so. What social security will not do, local social services will have to do. Will we take children into care and offer them dingy bed and breakfast accommodation, church halls, warehouses, with the spaces partitioned by flapping sheets on ropes, or tents?
As Save the Children has said:
"These proposals will devastate every aspect of children's lives causing homelessness, ill-heath, poor development, loss of education, family breakdown and emotional distress".
Are we deliberately going to let that happen to children because their parents did not tidily fit our regulations? Is that what we are willing to do?
We are utterly opposed to the regulations. They are morally repugnant. By convention we cannot vote against the regulations; nor can we amend them. Hence on today's Order Paper we have two Motions which we ask the Government to accept once the regulations have been implemented. We on these Benches will support the Motions in the name of the noble Earl, Lord Russell, that benefits should continue while appeals are being heard, and of our noble friend Lord Dubs in arguing that at the very minimum we should protect the position of children so far as we can. Our Motion will bring the children of asylum seeking families to a similar position to that of our own 16 and 17 year-olds: that though denied benefits as of right they should be eligible for discretionary hardship payments as regards living on or off the streets. We do not believe that the children of asylum seekers should be treated more harshly than our own. For centuries this country has been a sanctuary
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for those in distress. Virtue has been rewarded because yesterday's asylum seekers have become today's entrepreneurs.
Perhaps I may conclude with a final quotation from the Social Security Advisory Committee—the Government's own independent advisory committee—which states:
"The reality of the proposals is that thousands of men, women and children will be left with no means of providing themselves with food or shelter. Many will have no option but to live on the streets of our major cities and ports. Health professionals have warned that, given the vulnerability of many asylum seekers due to their already precarious physical or mental health, some will die".
The advisory committee continues:
"We do not believe that solution should be found by putting at risk of destitution many people who are genuinely seeking refuge in this country among whom may be some of the most vulnerable and defenceless in our society".
It is not too late for the Government, encouraged by this House, to think again. Otherwise some 30,000 to 40,000 troubled, traumatised and destitute families next year will be living on and off our streets. We can make a modest difference tonight if your Lordships choose to support the Motions.
Moved, That an humble Address be presented to Her Majesty praying that the regulations (S.I. 1996 No. 30) be annulled.—(Baroness Hollis of Heigham.)
3.26 p.m.
Earl Russell: My Lords, as I understand it, we are using a procedure similar to a grouping in Committee. Although there is only one Question formally before the House, we are debating a grouping of three Motions: that of the noble Baroness, Lady Hollis of Heigham; my own; and that of the noble Lord, Lord Dubs. We on these Benches support all three, each to the degree procedurally appropriate to its status within the conventions of the Chamber. I wish to speak to all three in turn. However, because my Motion and that of the noble Lord, Lord Dubs, do not cover the whole field of regulations I speak, first, to the prayer in the name of the noble Baroness.
I listened to the debate on the regulations last Tuesday in another place. Almost the moment I entered, I was extremely surprised to hear myself being ticked off by name by the Secretary of State for agreeing with my honourable friend Mr. Alton that we are dealing not with bogus refugees but with bogus refusals. Since it is appropriate to respond to a Minister in another place, I should like, if I may, to begin by replying briefly to the Secretary of State.
First, the figures that he used were concerned only with those accepted for refugee status, and left out the 15 per cent. who are given exceptional leave to remain. That means that on his figures the genuine go up from 4 per cent. to 20 per cent. which is a significant change.
Secondly, I must repeat that I cannot regard the criteria used in the 1993 Act as satisfying me as a way of distinguishing between the bogus and the genuine. I accept, of course, in the words used by one of Henry VIII's bishops in commenting on one of that monarch's more wayward acts, "I take it for law because the lawyers so said. But my reason digested it not".

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Perhaps I may take one example. If I were a Bosnian Moslem living in Mostar, watching the Croat forces closing in, I might have a well founded fear of persecution. But to apply for asylum in this country under the terms of the 1993 Act in order to secure freedom from persecution by Croats I should have to walk from Mostar to the British consulate in Zagreb. My Lords, my reason digested it not.
There is, too, what has been described among immigration officers as a culture of disbelief. It so happens that the subject arose over drinks after my postgraduate seminar last week. I hasten to assure your Lordships that it was not I who introduced it. It was introduced by an articulate New Yorker with a Cambridge PhD who has been living for 10 years in this country. She has been married to and living with an Englishman long enough to have a daughter about to enter primary school. She was stopped at the airport, detained for questioning for many hours and threatened with deportation under the primary purpose rule. As soon as she raised the subject, she produced an outpouring of indignation from every overseas member of that seminar. They had all had similar experiences, all had friends with similar experiences.
From the point of view of our national interests, one of the most serious was a Canadian businesswoman coming to this country on her company's business. The company had neglected to get the paperwork fully completed, the kind of thing one would have thought a simple phone call might have settled. She was deported to Canada at Her Majesty's expense. That company has probably now taken its European Union business elsewhere. Noble Lords will understand why I speak of a culture of disbelief and why I do not accept that everyone who fails a Home Office test is therefore necessarily bogus.
It is also crucial to me that the regulations make absolutely no attempt to make a distinction between the genuine and the bogus; they apply to all equally. In the words of paragraph 30 of the report of the Social Security Advisory Committee:
"The proposal to address the perceived problem of economic migrants through the benefits system by financially penalising all but a minority of asylum seekers, without regard to the strength or validity of their claim, was seen as arbitrary and unjust".
I cannot help sharing that perception.
The question whether an asylum seeker is genuine or bogus is not one which can be addressed by any formula. It is about individual motives and it must be addressed by individual examination. According to Article 1 of the UN Convention on Refugees, it must be addressed by an individual hearing of claimants. No other way of dealing with bogus asylum seekers is even so much as relevant to the question. I do not know how many asylum seekers are bogus. I am prepared to believe that some are, but the question cannot be addressed by these regulations.
The only attempt to distinguish within the regulations is the discrimination against those who apply at the port of entry. The noble Baroness, Lady Hollis, has saved me a little time by pointing out that more of those who apply in the country are accepted than of those who
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apply at the port of entry. So the Government do not believe their own distinction. In that case, I should like to join them: neither do I.
Apart from the points about language which I have made, one often needs help with handling government forms. I know that the Department of Social Security does its best with forms, but none of us always understands them. None of the postgraduates in my seminar with whom I was talking last week would have dreamed of applying at the port of entry. They did not have sufficient confidence in those who would have judged them.
I do not know whether any of your Lordships have ever tried to persuade a rape victim to tell her story in public. I have; I was not successful. Some of the applicants are literally rape victims, especially a number who come from Zaire, I understand. But other victims of torture may have similar difficulty in telling their story. Like the Social Security Advisory' Committee, I should be prepared to discuss a time limit for claiming asylum after entering the country. However, the attempt to make all people apply at the port of entry is insensitive to the evidence and is impractical.
I shall touch on two small points. The first is that the interim payments under the urgent cases rules for people caught by the habitual residence test are being stopped. Since those who have failed habitual residence tests include the niece of my late noble friend Lord Byers, who used to be our leader on these Benches, we believe that the net is catching too much. We must return to that on another occasion. Secondly, as for the rules about sponsorship, I do not understand why the Government have not made allowance for the case of sponsors going bankrupt, which may happen, as with everyone else. A bankrupt sponsor cannot be held to maintain the person for whom he was originally able to answer.
I turn to my Motion. Procedurally it is the type of Motion that will become known as an "Allen", after the noble Lord, Lord Allen of Abbeydale, who moved one on 5th December 1995. It makes no attempt to stop the passage of the regulations. It asks the Government, following the passage of the regulations, to ensure that asylum seekers have visible legal means of support and that they have the right to pursue their appeals. When I was working in the Record Office of your Lordships' House last October, I happened to come across a Private Bill from 1610. It said:
"It is notorious that a sentence may be and is suspended by an appeal duly made to a superior judge. … It is incredible that any judge should proceed without regard of such appeal".
That was not said with reference to the present regulations, but I agree with every word.
When my honourable friend in another place, Liz Lynne, used what Conservatives described as "the argument of destitution", cries were heard from the Benches opposite of "Rubbish!". I shall offer the Minister a sporting chance. If he can show me that asylum seekers who are denied benefit have some other legal way of maintaining their livelihood, then he may convince me that that argument is rubbish. I cannot he convinced simply by the bare assertion; I have to hear of something else which may appropriately be done.

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The Government's answers so far have been a little uncertain. The Secretary of State in another place said (at col. 239 of Hansard for 23rd January):
"the vast majority have contacts over here".
I should like to know whether that is based on evidence from any study, or is it the Secretary of State's conjecture? If it is evidence, I shall listen to it. If it is conjecture, I beg leave to dissent from it. Many of the Germans who came over here in the 1930s and 1940s, to whom my parents and my wife's parents used to give hospitality, were without any contacts in this country. If that can happen to Germans, I believe that it can also happen to Somalians. I should want evidence before I was moved to doubt that. Can the Minister show me any?
On 11th January, in answer to my noble friend Lady Seear, the Minister said that they could,
"go back to their own country or find some other way of looking after themselves".—[Official Report,11/1/96; col. 276.]
The Minister will have to be a little more specific if he is to convince me that the argument on destitution is rubbish. As for going back to their own country, it is a little like the test of ducking witches. The guilty witch floated and lived and the innocent witch sank and was drowned. I always thought that that was a bit unfair. In much the same way, the genuine refugee may be able, if he came with savings withdrawn, to go elsewhere. But the economic migrant who has no money and whom the Government so much dread will not be able to leave this country. The Government cannot deport such people. The case of in re M stands in the way. The noble Baroness, Lady Blatch, admitted that there is no plan for deportation.
The Government could, in return for voluntary withdrawal of the asylum claim, finance returning people to their own countries. I have not heard of any government plan to make money available for that purpose. If I hear of any, I will think again. Until I do, I believe the majority of people concerned will be unable to leave this country. They must therefore find some way of living here, or else be left, as we fear, homeless and destitute on the streets, and probably constituting a health hazard in the process.
What else could happen to them if they are not to be destitute? They might be put in detention. I do not regard that as a desirable solution. It may yet turn out to be the least bad option if these regulations go ahead. But it is not in the interest of the taxpayer. The figures, as the noble Baroness gave me them on 20th December, are: £540 a week in a detention centre; or, if you are a little cheaper, £449 per week in a prison. But I do not advise the noble Baroness, given the present state of prisons, to put in a further 13,000 inmates at one time. I should hesitate to repeat the comments that prison governors might see fit to make on such a proposal.
Applicants are not allowed to work in the first six months; and after that it is difficult, especially if there are language difficulties in the way. Begging is an uncertain and undesirable option. I shall not be reassured if the Government say that they will not starve because they can beg. There is, of course, crime. But I
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am sure that it was not the Government's intention that they should make a living by crime. There is private charity, and great efforts are being put into that provision. But it will not help that many of the charitable organisations that have housed refugees, paid for out of housing benefit, are in danger of going bankrupt as a consequence of these regulations. That will have knock-on effects on the treatment of other sorts of homeless people in other contexts. There is the possibility that UNHCR might feel the need to open refugee camps in this country. But again, I think I may safely assume that that was not the Government's intention.
We still have left the local authorities, whose spending, unlike that of the Government, is capped. Their liability to rehouse refugees lasts, if the asylum Bill passes in its present form, only until the Bill becomes law. Therefore we should be left only with liabilities under Sections 17 and 20 of the Children Act. That is not an income/maintenance provision. Foster care for a child, which is a lot cheaper than residential care, can cost for a 16 year-old up to £6,750 a year. That cost is independent of what happens to the parents. So if that were the route, it would waste a vast amount of public money and at the same time create gross hardship. That seems to me to be the worst of both worlds.
Perhaps I have missed something. If so, I am sure the Minister will tell me what it is. But if I have not, it is my conclusion that I am not prepared to use starvation as an instrument of policy.
3.44 p.m.
Lord Dubs: My Lords, first, I declare an interest. Until last June I was director of the Refugee Council and therefore for a number of years had a day-to-day involvement with some of these issues. I believe that Britain's treatment of refugees is a test of the sort of country we are and of the commitment we have to the human rights of some of the world's most vulnerable people.
Perhaps I may give just a few words of background. Over the past few years, the United Kingdom has taken a smaller proportion of asylum seekers than any other European country, save possibly France in the past couple of years. For a long time Germany took 60 per cent. of Europe's asylum seekers—took, not kept, them. For a long time Britain has not given asylum seekers the full level of income support but only 90 per cent. of it. There have been successive waves of legislation and changes in immigration rules in order to make things more difficult for asylum seekers. Now we have another proposal and a Bill that will presumably reach this House before too long.
Why are the Government doing all this? It seems that there is only one argument: "Let us make it pretty unpleasant so that people will not even want to arrive here". That is a distasteful approach by any standards. Many organisations which have day-to-day involvement with refugees—I refer not only to the Refugee Council but to Save the Children, which was mentioned, and many others—are desperately concerned about what

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will happen. They have made it very clear, and I speak from personal experience as well, that if an applicant is refused refugee status, that does not mean that there was no justice in the claim—although that seems to be the argument on which the Government are hanging this measure. It may well be that people who are refused refugee status are given exceptional leave to remain—an admission by the Government that it would not be appropriate for that individual to be sent back to the country from which he or she came. There may be third country refusals when the Government have not said to an individual, "You have no basis for your claim", but have simply said, "You spent some time in another country; that is where your claim should be determined". But in the meantime, the Government say, such people do not have any rights.
I do not argue that every asylum seeker has a claim for refugee status under the 1951 convention. All I argue is that surely we should as a country have a system of natural justice whereby we determine each asylum claim fairly and properly, and whereby we allow the asylum seeker to live tolerably decently while that process is going on.
It is perfectly clear that the Government have in their own hands the best remedy for the difficulties in which they find themselves; namely, to cut down the long delays in getting an asylum claim heard and decided, and to do so, not by truncating the process of deciding asylum claims, but by having enough staff to do the job properly. That approach would pay for itself very quickly. When there are 50,000 to 60,000 people waiting for their claim to be considered, it is a signal to those in other countries who do not have a soundly based claim to say, "Well, it takes so long I might as well have a year or two there". However, I contend that many people do have a soundly based claim. My evidence is based partly on statistics but partly on the fact that people come from countries with a history and record of oppression, turmoil, persecution and war—countries such as Zaire and Nigeria. People come from a large number of countries where conditions are such that it is no wonder they flee to safe countries—of which this country is merely one.
I am concerned that the Government seem to be saying, as a justification for these proposals, that not many people are awarded full refugee status anyway, so while the process works its way through it does not matter too much if some of them are denied support to sustain themselves. I argue, in contrast, that surely in a country that believes in human rights, every individual's claim is important and every individual's right to proceed with a claim in decent circumstances is important. After all, that is the basis of the UN Convention 1951.
The UNHCR has come out very clearly in this instance—and it is not given to public pronouncements because its method is to deal privately and discreetly with governments—against the Government's proposals. Perhaps I may quote from what it said:
"A country's recognition rate of refugees may more often reflect the narrowness or liberalness of that state's application of the refugee definition than the legitimacy or otherwise of individual claims".
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Perhaps I may make a comparison before and after the implementation of the Asylum and Immigration Appeals Act 1993. In 1990 the number of people not allowed to stay on any basis at all was 17 per cent. In 1994 the number of refusals had gone up to 75 per cent. To a large extent the reason is not in determining refugee status, although there has been some difference in that, but largely in the other category of exceptional leave to remain, to which I have already referred. In 1990, 60 per cent. of applicants were given ELR, but in 1994 the number had fallen to 16 per cent. ELR is discretionary status, which the Government give, as I have said before, because they recognise that it is not appropriate to send an individual back, even if they technically deny refugee status. It is the difference in ELR, which is directly under the Government's control, which has led largely to the dramatic increase in the rate of refusals and which in turn seems to be why the Government are saying, "These people are not genuine". If the Government approve the answer, they can hardly claim objectivity for it.
Reference has already been made to the Social Security Advisory Committee. I do not want to take up the time of the House by quoting again what it has said, except to say that my understanding is that its comments on this proposal have been the most starkly negative on any proposal that has ever come before the SSAC. It said bluntly that the proposal should be withdrawn.
Noble Lords have already referred to the good reasons why not every asylum seeker may make a port application, although many make one in the country within a short period of arriving here. It is an understandable human reaction, even if they had full knowledge of the Government's proposals. But it is very likely that people will be in ignorance of those proposals and will inadvertently put themselves into the position of not being entitled to any benefit or other basis for support.
The Government's own figures have made the position very clear. In each year between 1992 and 1995 as regards in-country applications, a larger percentage were given refugee status than from port applications. So there is no support for the Government's view that people make in-country applications because they do not have as good a case as those making port applications. The available figures for each year deny the Government's contention. There is enormous concern that there will be great hardship caused by these measures to children, families, lone parents, pregnant women, people with disabilities, the elderly and those who have suffered torture.
Perhaps I may deal with two specific points before I conclude. The Government, through the noble Lord, Lord Mackay, said some weeks ago that there was a parallel between not giving anyone income support if they have been refused an asylum claim and they are appealing against it and the normal refusals and appeals on social security grounds. I argue that there are a number of reasons why that parallel is not valid.
First, I understand that there is backdating on domestic social security cases but not for asylum seekers. I hope that the Minister will prove me wrong.

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There are far longer delays in going through the asylum determination process and the appeals process than in appeals to the normal social security tribunals. In any case, the appeal would be against the Home Office and not against the DSS. Secondly, a person already living in this country and making a normal social security appeal is far more likely to have friends, a supportive family or some personal resources, whereas the pattern for many asylum seekers is that they come to this country with virtually no belongings at all except perhaps the contents of a plastic bag.
I refer briefly to the Motion standing in my name which deals with one consequence only of these proposals; namely, the hardship affecting children or families who have children. I am very concerned that if the proposals are given effect many asylum-seeking children or the children of asylum seekers will suffer severe hardship. If the House were to pass my Motion and that in the name of the noble Earl, Lord Russell, there would be no damage to the main thrust of the Government's proposals. I wish that there would be but there would not be. The Motions would merely be lessening some of the more appalling consequences of this measure.
3.56 p.m.
Lord Boyd-Carpenter: My Lords, this is obviously an emotional issue and anything to do with immigration in the present confused and unhappy state of many parts of the world is understandably emotional. But the Government have to respond not only to emotion but also to secure that the wellbeing of this country and its economy is fully supported. I ask your Lordships, before coming to any final judgment on the matter, to study the statement by the Secretary of State attached to the report. I do not wish to detain your Lordships for any undue length of time, but I shall quote from it two short passages. Paragraph 4 says:
"The Government recognises that genuine refugees do not come to the UK to obtain social security benefits but to escape persecution. Their rights to asylum will not be curtailed in any way by these regulations or the Bill. And those who make their true intentions clear when they arrive in this country, and seek asylum at the point of entry, will continue to have access to benefits while their claims are considered by the Home Office".
There then follows perhaps the most important passage of all, which states,
"However, well over 90 per cent. of those claiming asylum are eventually found not to be genuine refugees".
That is a finding of fact and those who wish to ease restrictions, as all the three previous speakers wish to do, have to face this.
We have a considerable number of people wishing to come to this country and claiming to be refugees. But it is found as a matter of fact that 90 per cent. of them are not genuine refugees. Obviously, there are many people who want to come to this country because it is a good country to live in and because, although I do not expect noble Lords opposite to accept it, it is a country with a good government. It is a country with a very fine system of social security and services for which I can claim having played a modest part because I was responsible
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for them for quite a number of years. Therefore, it is a country which attracts a lot of people who are in no sense refugees and are not necessarily coming from countries where there are refugee problems. Therefore, it is necessary for any government to operate carefully and secure that only genuine refugees are admitted as such.
When it comes to a point, which noble Lords opposite must face, that 90 per cent. of those who claim to be refugees are as a matter of fact not found to be genuine refugees, it simply is not good enough in the light of that just to say, "You must relax restrictions and you must not impose restrictions". The restrictions have to be imposed, or we shall be simply swamped by a large number of immigrants who come here because it is a good country to come to and because they want to enjoy our social services and our social security system, and who like to call themselves refugees in the hope that that will secure their entry into this country.
Therefore I ask your Lordships to think very carefully indeed about this matter before coming to any final decision or any final vote. It is very important for government—and it is government's job—to secure proper control of entry into this country. We cannot afford to be swamped with immigration. We cannot afford to have unlimited numbers coming into this country: nor is there any justification for it. We are not, after all, the only country to which refugees from those countries which are in an unhappy state have to go. There are many other countries; but it is significant that so large a proportion of those who claim to be coming here as refugees are not found to be coming as refugees but are in fact simply taking advantage of the situation and of the emotional side to it, all in order to try and "dig in" and establish themselves here.
Therefore, with great respect to noble Lords opposite who take a different view, and fully understanding the humanitarian and sensitive approach which they are showing, I beg of them to think very hard indeed as to whether it would be possible to relax in any degree whatever what the Government propose. My own view is that if controls of this sort are necessary, if the well-being of this country and its people is to be properly supported and maintained, it is necessary to do what the Government propose to do. I, for one, will support them.
4.3 p.m.
The Lord Bishop of Ripon: My Lords, widespread dismay and anger has been expressed by Churches, refugee organisations, immigration bodies and other significant groups about the Government's proposals to withdraw benefits from some categories of asylum seekers. Indeed, I do not remember an issue in recent times which has given rise to such a volume of briefing papers. There is, I believe, deep outrage in many quarters at these regulations. It is important, as the noble Lord, Lord Boyd-Carpenter, has just made clear, that emotions be substantiated by facts. If my contribution this afternoon seems cerebral it is not because there is no passion in the Churches or in myself but because argument is also important.

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I was slightly dismayed to find that my own speech bore a striking resemblance by those uttered by the noble Baroness, Lady Hollis, the noble Earl, Lord Russell, and the noble Lord, Lord Dubs. As I reflected upon this it seemed to me that the reason for that is that the figures speak for themselves. Each of the speakers in this afternoon's debate has referred to figures and therefore I think we must look at those figures. If there is a certain element of repetition in my own contribution I ask forgiveness, but I do think that these points need to be made.
The Government invite us to believe that there is a small minority of asylum seekers who are genuine and that the remainder are bogus, economic migrants whose aim is to better their standard of life by gaining admission to this country. Withdrawing benefit will mean that such economic migrants will go elsewhere. To return once again to the figures, the 1995 figures at which I have been looking and for which I have accurate figures only for the months January to September, show that in every 100 determinations in that year four were granted refugee status and 19 were given exceptional leave to remain. That is a total of 23 out of each 100. In previous years the proportion has been similar: that is from a total of about 1,000 applications resolved.
This is not a small minority but a substantial proportion, 23 per cent., who are shown to be genuine applicants, either refugees or people meriting stay in this country, on the basis of their applications. What, then, about the 77 per cent. remainder? Are they all bogus? We are invited to say yes, and one of the arguments given is that they come from so-called safe countries. My memory is that when I had an exchange of views with the Minister on the 11th January on this matter he invited me to look at actual figures and to study such countries as India and Pakistan. I have done that and have discovered that in the period from January to September 1995 10 applicants from Pakistan were given refugee status and another 15 were given exceptional leave to remain, while from India 30 applicants were granted exceptional leave to remain.
These are small numbers, but they are enough to disprove the claim that these are safe countries, all of whose applicants can be regarded as bogus. And what of those whose applications for asylum status are rejected? This does not mean, as noble Lords opposite have already said, that they are bogus. Some of them may indeed be so and, human nature being what it is, people will always seek to abuse a system. It is to be expected that some will abuse the asylum system and that the checks have to be such that those abusers will be rejected. But there will be others whose claims are rejected not because they are bogus but because they are unable to satisfy the tight requirements of our own asylum procedures. They are genuine asylum seekers; they come from motives of fear and not of greed, but they will not know until they are here whether their claim will be accepted. That does not make them bogus.
The noble Lord, Lord Dubs, has already referred to the statement from the office of the United Nations High Commissioner for Refugees, and I have noted precisely hat statement and have noted that this recognition rate may have as much to do with the state of our own
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refugee application system as it has to do with the legitimacy or otherwise of individual claims. I hope that we can move away from this language of "bogus". Again to quote the statement from the High Commission for Refugees:
"In our experience such simplistic terms are emotive, and undermine an appropriate perception and response to the problems of refugees."
The Government propose to withdraw benefit from all asylum seekers who make their claim in-country and not at the point of entry. I can add very little to what other noble Lords have already said, except perhaps to give actual figures. In 1994, of those granted refugee status 300 were port applicants and 530 were in-country applicants: that is both a larger absolute number and a larger proportion. The 1995 figures for the months I have already quoted, January to September, show that 285 successful port applicants were determined and 670 in-country applicants; an even greater imbalance. The greater number of those who are granted refugee status have sought it by means of an in-country application.
If this is the case and if it is indeed true, as these figures undoubtedly show, that in-country applicants are more likely to be granted refugee status, why is this one of the groups from whom benefit is being withdrawn? The statistics simply do not support the argument. The withdrawal of benefit from those who appeal seems to me to be a straightforward attempt to dissuade them from appealing. Once again, given that a significant number may succeed on appeal—indeed almost as many as on initial application—why is this group targeted for removal of benefit?
Of course it is the Government's responsibility to look with great rigour at our expenditure, and in particular at expenditure on these benefits, but the savings which are being made here on benefits are made at great cost. I believe that we need to reflect upon that cost. Let me give just one example. Oaklands Refugee Services, a Roman Catholic and Anglican project, which provides accommodation and related support to newly arrived asylum seekers, comments that the bulk of its income derives from housing benefit. Indeed, in that respect it is not unlike other projects to which the noble Earl, Lord Russell, made reference. It receives top-up funding from charitable trusts and business. But if benefit were stopped, Oaklands would be forced to refuse further referrals and, in due course, evict existing residents when their housing benefit ceased. Many of those people would end up sleeping rough on the streets, just at the time when they are most vulnerable.
It is widely agreed that the way to reduce the level of benefits is to shorten the length of time the asylum procedure takes. I referred earlier to the dismay and anger felt by many people and groups in relation to these proposals. They offend against our sense of moral responsibility to the many who genuinely seek asylum in our country. We want the regulations annulled.
4.11 p.m.
Lord Haskel: My Lords, I rise to support my noble friends Lady Hollis and Lord Dubs and the noble Earl,

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Lord Russell. In so doing I declare an interest. I am an asylum seeker. I was brought to this country as a child by parents seeking asylum.
I was born in Lithuania. The threat that caused my parents to leave and to seek asylum was the threat of occupation by Russia or Germany. They knew that being Jewish would lead to persecution by the Nazis. My father was a bit of an intellectual and indeed a religion school teacher. He knew that that was punishable by deportation to Siberia by the communists.
The noble Lord, Lord Boyd-Carpenter, said that the regulations would not stop those facing persecution from entering. But would an immigration officer have understood the position of my parents in 1937? I doubt it. Would Lithuania have been on a white list in 1937? Probably.
My father earned his living by selling yarn for a Manchester cotton-spinning mill. It was through that connection that he was able to bring his family to Manchester and to seek asylum. Applying for a visa would have been out of the question; nor could he have applied for a visa in a third country without putting all his family in danger. I strongly suspect that, were the proposed regulations in force at that time, we would not have been admitted. That may be a cheerful thought for those noble Lords with whom I have crossed swords; but to me the government regulations give rise to the feeling that, but for the grace of God, there go I.
We all have our childhood memories and mine are very much bound up with being an asylum seeker. One vivid memory is the pride that my family and friends took in British institutions and British ways. No destructive criticism was allowed of those British institutions and ways. We were proud to identify with a British sense of decency and fair play; we were proud of the Royal Family; we were extremely patriotic. We were grateful and anxious to put something back into the pot whenever we could. That attitude was not confined to my family. In conversations over the years with people in similar circumstances to mine, many have told me that that too was their experience. That is confirmed by the many interviews of this past generation which are in the National Sound Archives. So asylum seekers are not always scroungers; they bring benefits if we give them a chance.
Nevertheless, with the Bill we are faced with the prospect of people who have been or who are likely to be persecuted abroad being forced to sleep on the streets and beg for food purely because they have the temerity to seek asylum. The Minister said that if one asks for asylum at the port, one will be able to claim social benefit. My noble friend Lady Hollis responded to that.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for giving way. He is giving the impression that we will turn people away at the port. That is not the case. It is not the case at all. The point is that applications for asylum at the port of entry will be accepted and the applicants will receive benefit; they will not be turned away.
Lord Haskel: My Lords, my noble friend Lady Hollis and others explained the difficulties of applying
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for asylum at the port of entry. The Minister says that the barriers are to stop bogus asylum seekers. In fact, the additional barriers will make it less likely that people with families will seek asylum. They will not want to punish their children by dragging them through the hardships and difficulties placed in their way by the Government. That would certainly have been a consideration with my parents. Young people who can rough it will have a go, but families will be excluded. I therefore particularly support the Motion of my noble friend Lord Dubs.
My criticisms are not only directed at the British Government but also at the European Union. Safe lists have been adopted by Europe since 1992 and the Commission has been strongly criticised for that by the UN Commissioner for Refugees.
I realise that this is very much a personal and emotional appeal. But human rights are an emotional and personal matter. Others far better qualified than I have spoken and will speak of the legal and moral reasons why your Lordships should support the Motion. I speak simply out of concern that this inhumane legislation contributes to the destruction of the very values which inspired my parents to seek asylum here in the first place.
4.17 p.m.
Lord Dean of Harptree: My Lords, we in this country have a long tradition of humanity and compassion for asylum seekers. One of the best known examples is the Huguenots fleeing from religious persecution, many of whom settled in this country and brought considerable benefits to our community and our economy. A more recent example is the Uganda nations, who again were forced out of their country and many of whom have settled here successfully. The noble Lord, Lord Haskel, gave his own example, to which I am sure your Lordships listened with considerable attention and sympathy.
Long may that tradition continue. Human nature being what it is, there will always be genuine refugees and Britain should always be a haven for them. On the other hand, as my noble friend Lord Boyd-Carpenter said a moment ago, the Government have a duty to guard against abuse of our hospitality. They must be an effective guardian of the public purse. When one looks at the figures, one can see that a serious problem exists.
My right honourable friend the Secretary of State for Social Security gave some figures in a debate in the other place on 23rd January. He said that last year people claiming asylum, including dependants, totalled over 57,000 and that that represented a tenfold increase over 10 years. That suggests that an extremely serious problem exists that needs to he dealt with. It is significant also that the increases over that period appear to he smaller than the increases in other European Union countries where the benefits are usually less generous than ours or, in some cases, not available at all.
For example, in France and Belgium there is no benefit available after 12 months; in Italy there is no benefit available for any period, whereas in France and Holland asylum seekers are usually accommodated in

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camps where benefit is mainly in kind rather than cash. The figures probably mean that this country is becoming a soft touch. Word gets around among vulnerable people that life is better in Britain than elsewhere, and, as with illegal immigration, there are those who try to persuade vulnerable people that they can work the system to their own advantage.
I suggest that in the light of the very great increase in applications in recent years no government can turn a blind eye and do nothing. At a time when the Government have made strenuous efforts to prevent domestic fraud against the social security system it would be neglect of a clear duty for them to do nothing about asylum fraud. Your Lordships will know that it is a bad thing for the genuine asylum seeker. A number of your Lordships have made clear in speeches this afternoon that delays occur in the processing of claims, which clearly are to the disadvantage of the genuine asylum seeker.
In his Motion the noble Earl, Lord Russell, used the interesting phrase "visible legal means of support"—but by whom? In a debate in another place on 23rd January the Secretary of State said that 70 per cent. of claims for asylum were made by people who claimed to be students, tourists, visitors or business people. If they are granted entry under those categories they have to satisfy the immigration authorities that they can support themselves while in this country. If later they change their minds and apply for asylum I do not see why the taxpayer should pick up the bill, unless the individual case involves special circumstances. Reference has been made to application at the port of entry. I believe this to be right. I do not see how the system can be effectively controlled and abuse prevented in any other circumstances, unless there are exceptional conditions.
Having accepted that, I seek three assurances from my noble friend the Minister when he comes to reply. The first concerns upheavals in the country from which the person has come. Let us say that someone is here legally as a student. Can he apply for asylum away from the port of entry if circumstances in his home country have changed to such an extent that his life will be endangered if he returns to that country? If so, will the application be dealt with speedily wherever the individual is living at the time? Secondly, while I accept that application at the port of entry should be the normal procedure, I ask the Minister to give an assurance that adequate facilities will be available at the port of entry, including interpreters for those who do not speak English. Thirdly, am I correct in thinking that those who claim asylum at the port of entry will have access to benefits while their claims are being determined? If my noble friend can give assurances on those three matters, I believe that the Government are amply justified in proceeding with this statutory instrument, and I shall have no difficulty in supporting them in the Lobby tonight.
4.25 p.m.
Lord Beaumont of Whitley: My Lords, many years ago for the first time I witnessed the passing of a Bill through your Lordships' House in the course of one night. I refer to the so-called Ugandan Asians Bill. It
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was a most shameful occasion. A Conservative Peer, who sat almost exactly in the position from which the noble Lord, Lord Dean of Harptree, has just spoken, said that a pledge had been given to these people that they would be let in if they were thrown out of their country and relieved of their civil rights. However, if one invited people to come and stay and they took up that offer later one would not be bound to it if it proved inconvenient because one's house was overfull at that time.
I thought then that it was a most unreasonable, uncharitable and dishonourable statement, but never in my wildest dreams did I think I would hear a Conservative Peer get to his feet and cite the Ugandan Asians as an example of a very successful form of immigration after such appalling behaviour in relation to that particular Bill. I entirely agree with the noble Lord that those who finally managed to get in are a very good example, but it is not to the credit of this House or the other House that they were not allowed in at the time we were first faced with that challenge.
Baroness Elles: My Lords, perhaps the noble Lord will permit me to intervene. I happened to be one of the United Kingdom delegates in the General Assembly of 1972 when this issue arose. We were under instructions from the British Government to do everything we could to help in this particular situation. I well remember the visit of the then Foreign Secretary, Sir Alec Douglas-Home, who went out precisely to negotiate for the safety of these people. It ended up with over 50,000 Asians being welcomed to this country. I am very glad to say that the vast majority of them have benefited from living in this country as a result of the action of the British Government of the day.
Lord Beaumont of Whitley: My Lords, negotiations for the safety of those people did take place, but there was a failure to honour the pledge that had been given by Mr. Macleod, which he acknowledged that he had given at the time—he wrote a very famous leader in the Spectator to support it—to let those people into this country in the way that we said we would without qualification. We let some in, and eventually we let in a great many, and we are all richer and better for it. That does not affect the fact that we behaved extraordinarily badly then.
Having embarked upon that, your Lordships may be slightly surprised to hear that I share a number of the presuppositions on the Government Benches. The only reason I add my voice to those of the noble Earl, Lord Russell, and the noble Baroness, Lady Williams—who are much more able to cope with the situation than I—is that I come from a slightly different background. I believe that we face a major problem with the prospects of immigration and population. I believe that we will need to have a population policy, which we do not have at the moment. I also believe that in future the number of people who want to emigrate to this country will increase enormously and will present us with a major problem. Therefore, I do not challenge the Government about what they say is their basic attitude toward refugees. I do challenge them on the competence with which they deal with the issue and what appears to

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be their inability to deal with appeals, or even first hearings, within a short time. That is shocking. I cannot defend them on that.
It is from that background, of thinking that we have to be fairly strong on the subject of immigration, that I take up another point that has been raised, in particular by the noble Earl, Lord Russell, the problem of whether refugees, or anyone at all admitted to this country on any understanding whatsoever, will be allowed to become destitute or starve. A long time ago a very famous judgment was made—the Mansfield judgment—which stated that any slave who set foot on English soil immediately became a free man. I believe that it is equally important that any person admitted legally onto British soil should be protected from destitution and starvation. If they are not, we cannot regard Britain as a civilised country.
I heard the challenge made by the noble Earl, Lord Russell. I shall not repeat it. I too shall listen to what the Government have to say. If they can convince us that there will be no cases of destitution or starvation whatsoever—I mean whatsoever—I shall reconsider how I cast my vote. But if, as I suspect and as previous speakers have demonstrated, there may be a situation in which people can become destitute and starve on the streets of Britain, I shall certainly vote for this Motion.
Before I sit down, I should like to ask the Government what they are doing about helping the local authorities. I have heard from friends and colleagues of mine of various professions, including the clergy, in the south-east corner of England, where many people land up. They say that there will be very real problems. They do not know how they will cope if they find people destitute and starving on their streets. People will land up in such areas. It is very important, whatever happens as a result of this evening's vote, that the Government take special measures to make certain that the local authorities which have to deal with these problems are supported and helped.
4.32 p.m.
Lord Brabazon of Tara: My Lords, from what we have heard this afternoon, there is no doubt that the problem of asylum seekers is a very great one. I understand that there has been a tenfold increase in claims for asylum since 1988. I am certainly prepared to believe that the world is not an entirely happy place, even after the collapse of the Soviet Union and other positive events that have taken place in recent years. But I am not prepared to believe that the situation is 10 times worse than in 1988. Even Amnesty International—I do not always agree with everything that organisation says—states:
"The misuse of the asylum process by those merely seeking to circumvent UK immigration controls is a significant and difficult problem".
Only four out of 100 claims are deemed to he genuine refugees by the Home Office, and just 4 per cent. of appeals against refusal are upheld by independent adjudicators. Some noble Lords have criticised the criteria which have been set. But my understanding is that the appeals are held by independent adjudicators.
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I hope therefore that one cannot disagree with them too much. From some countries, such as Poland, Ghana and Romania, 98 per cent. are rejected.
The cost to the British taxpayer is enormous—over £200 million in benefits alone. That is money which, I should have thought, noble Lords all round the House, and in particular those sitting on the Opposition Benches, might feel would be better spent on genuine UK benefit claimants. I ask my noble friend the Minister why we are the only European country seemingly to have failed to tackle the problem so far. Between the beginning of 1994 and last November the number had nearly doubled. I understand that the figure for 1993 was 22,000 and last year it was over 50,000. Yet in western Europe as a whole numbers fell from over half a million in 1993 to 32,000 in 1994. Belgium, Denmark, Finland, Sweden, Germany, Norway, Spain and Switzerland all have had large falls in numbers. We get some 40 per cent. of total European applications, excluding Germany.
All those countries have taken steps either by shortening their procedures for dealing with unfounded claims or returning claimants to third countries from whence they came and where they are not at risk. Other countries also seem to be far less generous in the benefits that they give. That is perhaps why the United Kingdom has gained a reputation, as my noble friend Lord Dean of Harptree said, for being a soft touch. I am glad that my noble friend Lady Blatch is sitting next to the Minister. She will be aware of my not wholly uncritical remarks in the past about the operation of the Immigration (Carriers' Liability) Act. She will be aware that up to this time last year airlines and ferry companies had been fined a total of £75 million for bringing in illegal immigrants of one kind or another, many of whom, I suspect, will have been bogus asylum seekers. I do not know whether my noble friend has any figures on that. I hope that one advantage of these regulations will be that they will at least reduce from that point of view the burden on airlines and shipping companies.
On the point about claimants coming from other safe third countries, such as across the Channel from France, Holland or Germany, surely it would be simple to return the claimant to that country. The claimant can hardly claim to be at risk on the other side of the Channel and to take such action could not possibly be in breach of our international obligations. Presumably, the reason that bogus economic migrants want to come to Britain is because our benefits are so much more generous than they are in other European countries.
I welcome the changes that the Government have made in the transitional arrangements that have been announced. But surely the message that we in this country need to put across is that we will not be a soft touch in the future and only applicants who are genuine asylum seekers are welcome. Noble Lords on all sides of the House do not wish to see any genuine asylum seekers prevented from coming here. But those who are only economic migrants need not apply.

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I have listened carefully all through the debate. I have not heard a single word from noble Lords opposite who are critical of these regulations about how they would attempt to deal with the problem and how they would deal with the cost to the British taxpayer.
The noble Lord will have a chance at the end of the debate to make his point, but, if he wishes to make it now, I shall give way.
Earl Russell: My Lords, I merely wish to say that I dealt with that point at some length.
Baroness Hollis of Heigham: My Lords, perhaps I may also join in those remarks and say that I too dealt with that point.
Lord Brabazon of Tara: I am afraid that I did not hear anything from either the noble Lord or noble Baroness on that matter. No doubt when the noble Baroness comes to wind up, that point will be reinforced. However, I did not hear anything that would convince me that they wished to deal with the cost of bogus asylum seekers.
4.39 p.m.
The Lord Bishop of Chelmsford: My Lords, I begin by acknowledging the need for the Government to do something to curb the very large number of asylum applications, 90 per cent. of which turn out to be judged invalid. They also have to do something to end the extraordinary delays in processing asylum applications and the appalling backlog of over 64,000 cases awaiting adjudication, with all the pain and uncertainty attached to that situation. I am bound to say that it stretches credulity to say that that backlog is due simply to unexpected increases in the number of applications. Frankly, it seems to me that an additional factor is that too little was done too late to invest in the necessary wherewithal to keep on top of the demand and to keep the system working smoothly.
Be that as it may, the Government are absolutely right to insist that we cannot go on as we are. I welcome also the transitional arrangements recently announced by the Government by which those who have already made their asylum claim will keep their benefits entitlement until their claim is adjudicated.
Having said all that, many of us in the Churches and voluntary organisations still feel that not all of the criticisms made by the Social Security Advisory Committee have been taken seriously, let alone answered. We have continuing anxieties that the proposed changes will deprive some genuine asylum seekers of the means to pay for food and shelter—and there are genuine asylum seekers. I think that we should concentrate a little more on them and their needs rather than on how to keep out those who are not genuine.
Moreover, we believe that the proposals are too inflexible to take account of foreseeable cases of acute hardship. Noble Lords will be aware that religious Leaders have made representations to the Government at the highest level about those concerns, and that the most reverend Primate the Archbishop of Canterbury, together with Cardinal Hume, has had discussions with
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the Secretary of State and with the noble Lord the Minister. I know that they were glad to be reassured that the Government would keep their concerns under review, but I have to say that they remain uneasy that the present proposals may be so rigid as to cause substantial hardship in particular cases.
Perhaps I may highlight some of the problems as we see them. The Government have refused any period of grace whatever once somebody leaves the port. From that moment onwards, any person seeking asylum will not be entitled to benefits, irrespective of his or her financial circumstances and needs. It seems wrong to draw no distinction between someone who, for instance, applies for asylum after three years having completed their studies at university and someone who applies for asylum within days of arriving in the country.
It is true that people should declare their wish for asylum on arrival at the port, but the Government have been unable to refute some of the cogent reasons given by the Social Security Advisory Committee as to why so many asylum seekers do not immediately declare their intention at the port even if their claim is perfectly genuine. Some cannot get a visa to travel here by claiming to be a refugee, so they simply have to create a story and to stick with it. It is understandable that they stick with that story until they are in the country for fear of being deported if they change their story at the port before getting in. One can add to that the fact that they may have no idea of how to apply for asylum and desperately need help and advice to know what to do.
To that confusion add fear and sometimes acute language difficulties and one can readily see that it is inevitable that a continuing significant proportion of people with well-founded claims for asylum will not disclose them at the port and then, without any entitlement to benefit, will be at real risk of unwarranted hardship themselves and of imposing extra hardship on others who may feel obliged to look after them but who themselves have inadequate means. I am most unhappy about airy claims that all those people would probably be looked after by friends and relations. In some cases, they are deeply and rightly suspicious of people from their country who are over here. Others come from places from which there is not yet any critical mass of immigrants to this country offering networks of support. Moreover, imposing on friends and relatives can impose worse overcrowding and poverty on some of the poorest families in our society. Surely that is not a proper basis for deliberate policy-making.
Similar considerations will apply to some of those who lose their entitlement to benefit when the initial adjudication is made against their claim and who may have great difficulty in keeping body and soul together while they exercise their legal right to appeal. Therefore, the Motion tabled by the noble Earl, Lord Russell, is to be welcomed.
The Government have made the concession that those who apply for asylum in-country following a major upheaval in their home country will be entitled to benefits. That is to be welcomed. However, here again the Government have not responded to the probing questions of the Social Security Advisory Committee.

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The fact is that there are all sorts of reasons why a volatile situation may shift decisively against an individual family without there being any great overall upheaval. What happens if the overall situation in the country remains much the same but the army or the police back home have clearly started to take an unhealthy interest in someone's family and associates? The Government's proposals are too rigid to allow such a person to draw benefits while pursuing an asylum claim.
The same point is true of the proposals relating to sponsored immigrants. Let us take the case of an elderly lady who arrives here as an immigrant, sponsored by a younger relative. After a couple of years or so, the young relative unfortunately becomes mentally ill and is hospitalised or has kidney failure, or suffers a stroke, or is run over, or sees his business collapse—of course, these are exceptional cases, but they happen—and because the old lady has not yet been here for five years, she has no entitlement to benefit. How is she going to live? The Government have not given a satisfactory answer to that question.
We are talking typically about vulnerable people, such as old ladies, who will have absolutely no entitlement to a basic means of livelihood. The litmus test of any society is the way in which it treats the elderly and the vulnerable. That is what Church leaders mean when they speak about "insufficient flexibility" in the proposals to allow for hardship cases which are not only predictable but inevitable. Many people in the Churches and the voluntary organisations who acknowledge that major problems exist which any government would have to address nevertheless feel that the proposals are not a sound basis on which to proceed because they cannot cope with the many predictable cases of hardship. The proposals cry out for more understanding and more flexibility.
4.49 p.m.
Lord Clinton-Davis: My Lords, I start by declaring an interest in that I am the President of the Refugee Council. I was chairman for some five years, and in the past week I have been made president. I feel very privileged and honoured to have been put in that position. The speech that we have just heard encapsulates many of the concerns which have been expressed not just by the Refugee Council but by many bodies which are directly affected, day in and day out, by these problems.
No one in their right mind supports serious abuses of the position affecting bogus asylum seekers. I was going to say "genuinely" bogus. This, nevertheless, is one of the meanest, most unprincipled and unscrupulous pieces of legislation that I have ever come across in quite a long period in another place and here. I am ashamed of it. I am ashamed of it not because I suffered the same problems as my noble friend Lord Haskel directly, but my grandparents confronted major difficulties when they came to this country. I am ashamed of it because I should have hoped that the Secretary of State himself would not have sought to divorce himself from the experience of his own family, but he chose to do that
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deliberately. I am ashamed of it because it does not seem to me that Ministers, and many of those who support these draft regulations, have confronted the problem. I wonder how many have met refugees. I wonder how many have been to the ports of entry and have tried to discuss these issues with them afterwards. I wonder how many Ministers do that.
I am not prepared to acquit the Government of the charge of engaging in political motivation to try to secure an electoral benefit. I cannot omit the fact that it was a Conservative research director who said not very long ago:
"Immigration, an issue which we raised successfully in 1992 and again in the 1994 Euro-elections campaign, played particularly well in the tabloids and has more potential to hurt".
Is that irrelevant? Yes, the background to all this is emotive. It has been emotive and pejorative language which has been used by both Secretaries of State involved in this issue (Mr. Lilley and Mr. Howard) to milk votes, to stimulate popularity with the bigoted. If the Government had approached this matter in a reasonably anodyne way; if they had stated the problem, one could have understood that. But they played for applause, and the game has been given away.
This is a case of shameless opportunism, designed to whip up prejudice. The constant reference to asylum seekers as "bogus" illustrates what I mean. The constant use of the term "a soft touch" illustrates what I mean. I cannot believe, from my knowledge of the situation, that people coming from some of these countries in travail settle around a table and say, "How are we going to get to Britain where we can milk the social services system?". Life is not like that. They may not know it, but life is not like that.
I only hope that Conservative Party Members in another place and here are not confronted themselves at any time with that situation, although they might learn a great deal from it. I do not begin to believe that they understand the pressures which were referred to by the right reverend Prelate. I am a political realist. I do not expect great shows of compassion from the Secretary of State for the Home Department or Miss Widdecombe. That would be like expecting a large family from a eunuch.
What I want to do is to ask the Minister some personal questions. I have, as he knows, a high regard for him personally, though not for the case that he will present tonight. Is it not a fact—this has been said over and over again, and the Government must answer this point—that over and above the 4 per cent. who have been given refugee status, 15 per cent. of applicants receive exceptional leave to remain for humanitarian reasons? Were those 15 per cent. at one time regarded as bogus? The Minister shakes his head. Why not? Of course it makes a huge difference, does it not, to the statistics that we have heard over and over again that only 4 per cent. of the claimants are genuine.
Is it not a fact that, even within the Government's own thinking, since the regulations apply right across the board, some genuine asylum seekers may be caught if they apply in-country? Will the Minister reply to that question in due course? If that is right, is it not probable

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that children of destitute families may be rendered even more vulnerable by being taken into care and torn away from their families and parents? What responsibility do they have for their plight? Why should they be visited with these problems?
How are such people—including those who may ultimately, perhaps under this regime against all the odds, succeed on appeal—to be expected to survive as nearly 3,000 asylum seekers a month are to be denied benefit? That is a crucial point. We have not heard from the Minister in another place what is the real answer to that.
Why do the Government persist in their "soft touch" propaganda when it is clear that few asylum seekers believe that Britain's streets are paved with gold—as they find out to their bitter experience when they arrive? They do not receive the full rate of income support, as my noble friend Lady Hollis illustrated so vividly earlier. Is it not a fact that the Government's policy is designed deliberately to undermine rights of appeal which are critical to any society which bases itself on the rule of law?
How are these people expected to live, to survive financially, while waiting for an appeal which can take anything between 14 and 21 months? What is to happen to them during that period? How do the Government square their assertions with the fact that one out of 10 asylum seekers obtained refugee status in 1995 following appeals, having presumably been depicted in the interim by the authorities as "bogus"?
A number of noble Lords referred to the fact that there are ample statistics to suggest, contrary to what the Government have asserted, that in-country applicants are more likely to be proved to be genuine than port applicants. Why is it that the statistics illustrate clearly that they are much more likely to be accepted as genuine refugees? I return again to the point raised by the noble Prelate—
Lord Hailsham of Saint Marylebone: The right reverend Prelate.
Lord Clinton-Davis: My Lords, the right reverend Prelate, I am sorry. I always get that one wrong. I find it difficult to trip it off the tongue easily. He asked a number of pertinent questions about the views of the Social Security Advisory Committee. Why did the committee advise so strongly against the withdrawal of benefit and the rigid application of these rules? Why does the Minister think that the UNHCR has adopted such a strong line against what the Government are proposing? Is the UNHCR to be regarded as a discreditable institution? It is probable that it has rather more knowledge of what goes on than the Minister himself. I wish to put to the Minister one of the many questions that I could put about what the UNHCR has said. With regard to children it has said:
"If the effect of withdrawal of welfare support for the family impacts in a negative way on any child in that family, then the United Kingdom is likely to fall foul of the Children's Convention. inter alia, Article 22".
Will the Minister deal fully with that point because it comes from a very credible authority?
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I am ashamed of this Government, and much more so than on any issue that confronts us in respect of which I have major disagreements. They emerge from this discreditably. I support the Motions standing in the names of my noble friends and the noble Earl, Lord Russell.
5 p.m.
Baroness Elles: My Lords, I too found the discussion on the regulations to some extent discreditable. Compassion is not felt only by those on one side of the House. Time and again the Government have shown compassion to those in this country who need and seek compassion and support. In considering the length of time that asylum seekers must wait for their claims to be dealt with, one has only to remember that the Government will he putting in £37 million to pay for 700 staff to deal with the mounting number of claims of asylum seekers, genuine or otherwise, when only last week they wished to give £33 million to hypothermia cases as a result of the cold weather. If one were in government, whom would one choose as the deserving case needing that source of money? When one is in government—perhaps noble Lords opposite will never know that experience—one must make decisions and have priorities. The first duty of a government is to their own citizens and that should be remembered during the course of the debate.
I wish to turn to a point that was raised by the noble Lord, Lord Haskel. Asylum seekers at the ports are automatically granted benefit. There is no question of them being treated as scroungers. They are identified as they arrive at the ports. If they come here as asylum seekers they are identified as such and they are supported by the benefit system. Perhaps my noble friend the Minister will confirm that. I understand that the present figure is approximately 13,000.
Perhaps we may then consider the 70 per cent. who are discovered not to be genuine asylum seekers. Apparently, they come in as businessmen, tourists and students. They are not the poor Bulgarians with no interpreter who will end up sleeping on the streets. They are people who come here with a reasonable amount of money in their pockets. On entry they are asked whether they have money to support themselves or whether they will be claiming benefit and they state their case. I usually travel through airports and I have not come across immigration officers who maltreat people as they are going through those questions. I believe the remarks that have been made are derogatory to the immigration officers who serve this country loyally and efficiently and as best they can in the very difficult circumstances under which they must sometimes work.
I turn to the way in which Britain receives foreigners into this country. It might be thought that this is a xenophobic attack, as was perhaps suggested by one or two noble Lords. As was mentioned by my noble friend Lord Dean of Harptree, the DSS is already trying to seek out those British subjects, or people living in Britain, who are defrauding the public purse of something like £1.4 billion as a result of false claims under the social security system. This regulation merely brings in a category of people who are being suspected of

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defrauding the benefit system. They are being treated no worse and no better than British subjects who regrettably, in many instances, are defrauding the benefit system and the public purse. Without that fraud millions of pounds would be available to be spent on more deserving cases—
Baroness Hollis of Heigham: My Lords, I thank the noble Baroness for giving way. I am hesitant to intervene. The point is that when, in the British system, a British citizen loses benefit it is because the initial case has been heard and there is a presumption that he or she is committing fraud. The problem under these regulations is that benefit is being withdrawn before the case is heard. That is the difference between the two systems, and that is what we are seeking to address.
Baroness Elles: My Lords, the benefit is not being withdrawn. I understand that it is withdrawn between the rejection and the appeal. That is precisely the same as in British benefit cases—
Baroness Hollis of Heigham: My Lords, I apologise for rising a second time. I wish only that the noble Baroness were right. Were she right that benefit is retained both at the port of entry and in the country until the determination had been made and the appeal heard there would be no dispute between us. I hope that in the light of that the noble Baroness will join us.
Baroness Elles: My Lords, the noble Baroness knows perfectly well that I will not. The fact of the matter is that those who have stayed in the country came in originally on false pretences as students, tourists and businessmen. Where others came in through fear of persecution that is another matter. The right reverend Prelate the Bishop of Chelmsford—
Earl Russell: My Lords, I am grateful to the noble Baroness for giving way. Can she tell us any way in which these regulations discriminate between those who have come in under false pretences and those who have come in in genuine fear of persecution?
Baroness Elles: My Lords, those who have come in in genuine fear of persecution are automatically given benefit at the port of entry. In future, as a result of these regulations, those who do not will not receive the benefit.
One has only to look at the social security regulations to see the amount of non-contributory benefits that are being poured out on these people, with no justification. Perhaps I may refer to the United Nations' adoption of the declaration on human rights of aliens in 1985. The point is that any alien has the right to benefits in the country in which he or she is legally resident and in which he or she has contributed to the welfare system. The asylum seekers with whom we are dealing are not technically legally resident under the general definition of that term, nor have they contributed to welfare benefits. Of course, if they have contributed to welfare benefits they are entitled to benefit in the normal way. However, these particular asylum seekers have not done so.
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I wish to turn to the point that I was about to make when the noble Baroness intervened. It is the recognition of people who come into this country, who are treated as citizens of their country of origin, and who after a number of years make a claim to be naturalised. That speaks highly of the United Kingdom and its welcome to foreigners because among the European Union countries we have a high record of naturalised citizens. According to the 1993 figures, which are the latest available, more than 45,000 people have been made British citizens as a result of our naturalisation process. Most of them, perhaps I may say, come from Asia and Africa; they are not just from white dominions or whatever. They are citizens who have come from Asia and Africa. The only country in the European Union which has a higher figure is France which has 60,000. A vast number of those come from Morocco with their own cultural links.
I wish to insist on the fact that there is no question of discrimination on grounds of race or of not being a British citizen. It is a question of using the finances of this country for totally unjustified purposes. I am happy to say to those who dislike the Maastricht Treaty that provision under Title III to deal with asylum and immigration issues has given us an opportunity to discuss the issues right across the European Union. Many countries have suffered exactly the same problems as the United Kingdom. There may be proof that we have been too generous with our benefits as a result of not being strict on the identification and definition of asylum seekers because during the past three years other European countries have suddenly realised that there is a great influx and have introduced much stricter provisions.
At one recent Council meeting, I am happy to say that a definition of the term "refugee" was agreed unanimously by all member states, including the United Kingdom. The definition states that the refugee is someone who has a well-founded fear of persecution in his own country. The people who come through such controls as students, businessmen and tourists do not qualify under those grounds. The United Kingdom is perfectly justified in taking the proposed measures. I very much hope that the Government will play a full role under Title III and co-operate with other member states in the European Union to deal with what is undoubtedly a European problem and not just one that applies to the United Kingdom.
5.10 p.m.
Lord Hylton: My Lords, I differ somewhat from the noble Baroness, Lady Elles. I regret to say that the regulations before us are evil fruits stemming from a tree of prolonged bad policy. They, and their forerunners, have been universally condemned by those with experience; namely, the Churches, Jewish organisations, local government, the UN High Commissioner for Refugees and charities and advice agencies working with asylum seekers and refugees. To cap it all—as if that was not enough—the Social Security Advisory Committee rejected the proposals. The Government seem to think that they know better than those in day-to-day contact with the practical

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problems. I know that some transitional relief has been provided. I welcome that very much, but of course it is quite inadequate, given the original intention to deprive most asylum seekers of benefit.
It is worth looking at the background to the proposals. Since about 1987, governments have successively reversed our traditions of welcome and hospitality to the persecuted. The Immigration (Carriers' Liability) Act, which has already been mentioned, attempted to reduce the number of asylum seekers reaching this country. Costly detention has been used, not just for people awaiting deportation, but for many asylum seekers pending their assessment. The Asylum and Immigration Act 1993 did very little to help things, and now we are faced with new regulations savagely cutting benefits and with a new Bill which is now in the other place.
Of course, a few economic migrants have reached our shores, despite the best efforts of many other governments to stop them coming here. That has caused Her Majesty's Government to mount a loud campaign crying "foul" and trying to pretend, both in Parliament and in the tabloid press, that,
"90% or more of those claiming asylum are bogus".
That statement, vociferated by the right honourable gentleman the Home Secretary, and the Secretary of State for Social Security (supported in this House by the noble Lord, Lord Boyd-Carpenter) is not even correct as it stands. In 1995, about 23 per cent. of applicants were either accepted as refugees, or given exceptional leave to remain on humanitarian grounds and because, to return home, would be dangerous for them. A further 4 per cent. received refugee status on appeal. In previous years the proportion of refugees and ELR was considerably higher.
I ask: why have the proportions changed? The answer, I believe, is to be found in instructions, whether formal or informal, given to those who deal with applicants. That is the culture of disbelief that was so properly mentioned by the noble Earl, Lord Russell. The burden has been put on the applicant to prove that what he says is true. In fact, the burden is often quite an impossible one, because the relevant witnesses cannot be produced in this country. Virtually every sentence in applicants' statements is contested. That sometimes produces ludicrous results; for example, a man fleeing the brutal and corrupt dictatorship of Colonel Mobutu was told that he could not have crossed the Congo River by canoe because of the number of crocodiles! How else does the Home Office think that the river has been crossed for many generations? Are we to imagine a barrage of crocodiles, nose to nose and tail to tail, waiting to tip up the poor man in his canoe?
In another case, the Home Office considered it,
"unlikely that he did not know the name or locality of the prison where he had been held".
In that case, the applicant's solicitor had to point out that his client was unconscious on arrival and escaped with help, during the hours of darkness. Attitudes such as these are even more serious when genuine victims of torture are told that their scars and bruises could perhaps have resulted from other causes.
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I suggest to your Lordships that means and methods quite contrary to the spirit and intention of the 1951 convention (which Britain helped to draft) have been used to minimise acceptances. What then should Her Majesty's Government be doing. First, they should cut the numbers of asylum seekers detained in this country, often in unsuitable and unsatisfactory places and conditions. Voluntary organisations, housing associations and reporting conditions should be used to ensure that applicants do not disappear. Asylum seekers should be allowed to accept work, if and when they can get it, before the presently prescribed six-month period has expired. Both those measures would save money.
On the other hand, money should be spent on maintaining the existing welfare and supplementary benefits. That will avoid arbitrary and unjust action and protect many genuine asylum seekers, especially those who, for genuine reasons, do not always apply at the port of entry. These are national responsibilities which should not be shuffled off on to certain local authorities—indeed, a rather small number of the total of local authorities—as was wrongly being done in the case of unaccompanied children. The Government should be aware that, among asylum seekers, there are children, frail and elderly people as well as some victims of war and torture. Housing benefit should certainly not be removed.
We were promised in 1993—and I believe that the noble Lord, Lord Dubs, mentioned this fact—that money would be spent on extra Home Office and Immigration Department staff to cut down on the processing time and the huge backlog of about 64,000 cases. Some progress may perhaps have been made; but, in my view, it is quite inadequate. The processing time needs to be cut dramatically and, as has been mentioned before, that will result in considerable savings on welfare benefits.
I accept that the savings and the extra costs may not balance exactly, but what I have recommended would produce a better system, much more in keeping with our traditions and our international responsibilities.
Lord Campbell of Alloway: My Lords, can the noble Lord tell the House what is the reason that a genuine asylum seeker does not give when he is seeking asylum at the port of entry? Why does he not say, "I am suffering; I am a victim of persecution and I am seeking asylum"? Why does such a person come into the country as a student, or something of that nature?
Lord Hylton: My Lords, there are many reasons. One of them is that people arrive in this country exhausted by travel, and in a state of shock and trauma.
5.18 p.m.
Baroness Hayman: My Lords, I share the general concerns felt both outside and within the House about the regulations that are before us today. I rise to support the Motions which have been proposed. The noble Baroness, Lady Elles, talked of the prime responsibility of a government being towards their own citizens. As a citizen of this country, I feel that one of those responsibilities is to maintain the honourable tradition

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that we have had of behaving in a civilised and humane way towards those seeking sanctuary here in fear of persecution in their own lands. I believe that in putting forward these regulations the Government are failing in that duty of maintaining a tradition of civilised behaviour.
The general concerns have been mentioned. I rise to speak specifically about the concerns arising from the effects of these regulations on pregnant women and families with children. The importance of good nutrition in pregnancy is well known in terms of the outcome for the baby. When women are malnourished during pregnancy, as many asylum seekers have been in their own countries, the risk of their having babies with low birth weights who will therefore require expensive healthcare not only immediately after birth but possibly for the rest of their lives is greatly increased. I find it deeply shameful that we in this country would consider adding to the risk of malnutrition during pregnancy, and the effect on the subsequent baby, by removing financial support for women in this situation.
The Maternity Alliance in its submission to the Social Security Advisory Committee stated that, if pregnant asylum seekers with no financial means are denied access to social security benefits which would enable them to have a reasonable diet, it is inevitable that not only their health but also that of their babies will suffer in consequence. Those of us who have seen the demands put on neo-natal services by the babies of some refugees in this country, occasioned by their health status, are well aware of expense in this area. I suggest to your Lordships that it is deeply shortsighted of the Government not to consider giving adequate financial support to families before the birth of their children, but to accept the need for expensive healthcare after birth because of the failure of these policies.
The other issue I wish to raise is that of care of the children of these families. Although it is possible to change the social security regulations affecting the support for children of asylum seekers, Section 17 of the Children Act of 1989 maintains the duty on local authorities as regards the welfare of these children. Therefore if these children are destitute, as some of them will be, and if their parents cannot provide adequate support, the local authority will have to care for these children but will have no responsibility to care for the parents. There will be few local authorities who will face a disproportionate burden in this respect. We envisage local authorities providing expensive residential or foster care for children and facing the inhumane course of separating these children from their parents. I suggest that it is quite wrong to believe that we cannot support families who are in this situation.
The welfare of these children is dependent on, and intertwined with, the welfare of their parents. One cannot blame the parents and take action against them, and thereby penalise the children. The Government need seriously to consider the United Kingdom's obligations under the United Nations Convention on the Rights of the Child. I believe that to penalise children for their parents' failure to apply for asylum at the port of entry
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is in fundamental conflict with the UK's obligations under the convention. I would he grateful if the Minister would address that point when he replies to the debate.
5.24 p.m.
Lord Vivian: My Lords, I have listened carefully to the speeches made by your Lordships who are so knowledgeable on asylum, immigration and social security matters. I apologise to your Lordships if I should be guilty of some repetition but I feel that some matters need to be emphasised again.
I speak as a taxpayer, and therefore on behalf of all other taxpayers in the United Kingdom. My reading of the report of the Social Security Advisory Committee—much of which I disagree with—is that, although it understands the Secretary of State's view that it is unreasonable to expect the United Kingdom taxpayer to support people whose reasons for coming to this country are purely economic, it does not recommend that the Government's proposals relating to asylum seekers, sponsored immigrants, non-contributory benefits and interim payments should be proceeded with.
I believe that the United Kingdom has a proud record of giving refuge to those fleeing genuine persecution, but our asylum procedures are increasingly being abused. For instance, as we have already heard, only 4 per cent. of those claiming asylum are deemed to be genuine refugees by the Home Office, and just 4 per cent. of appeals are upheld by independent adjudicators. Indeed, as many as 98 per cent. of claims from countries such as Poland, Ghana and Romania are rejected.
I am aware that there is a growing number of asylum claims by economic migrants who come to the United Kingdom simply to seek a better life rather than to flee persecution. Since 1988 claims for asylum in the United Kingdom have grown from under 4,000 to over 40,000 a year and the number for 1995 may well exceed some 50,000. The cost to the taxpayer is huge. The annual cost of those seeking asylum is now over £200 million in benefits alone, and if additional costs for health, education and social services of around £10,000 per asylum seeker per year are included, this amounts to a further £500 million. Some 700 staff now work on asylum cases compared with under 100 in the late 1980s. Some 25,000 asylum decisions were taken between June 1994 and June 1995, but even this does not keep pace with the number of applicants.
In February the Home Secretary announced that £37 million would be spent on extra asylum caseworkers and adjudicators over the next three years, which should enable the Immigration Department to process 37,000 applications a year from next year. This should help speed up the system, ultimately reducing costs to the taxpayer. I believe that it is essential to reduce this huge burden of cost to the taxpayer and, in so doing, it is necessary to discourage unfounded applications from those who are actually economic migrants and who live off our country, while ensuring that the United Kingdom remains a haven for those genuinely fleeing from persecution. I therefore support the proposed changes by the Government; namely, that benefits will be available

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only for people making an asylum claim at their port of entry, and entitlement to benefit will cease once the asylum claim is first rejected. There will be other changes as regards non-contributory benefits, sponsored immigrants and interim payments.
In this debate I wish only to refer to asylum seekers' applications on arrival and to rejected claims. As we have already heard, 70 per cent. of asylum claims come from people already in the United Kingdom. Typically, they enter this country as tourists, students or business people and undertake not to be a burden on public funds. The changes mean that those who claim asylum after they have entered the United Kingdom will no longer be able to claim benefits. That is reasonable. All foreign visitors to the United Kingdom are required to declare their reasons for coming to this country at their port of entry. Genuine refugees can be expected to declare that they are asylum seekers when they arrive in this country. Those who claim not to be asylum seekers at the port of entry but subsequently change their story will be allowed to pursue their claim for asylum but can scarcely be expected to be allowed benefits as well. The change will deter those who seek to make an asylum claim as a means of prolonging their stay at the expense of taxpayers. An exception will be made for people from countries where there has been a significant upheaval since their arrival in the United Kingdom. That was discussed earlier this afternoon.
I cannot agree with the Social Security Advisory Committee report as to why in-country claimants may not have applied for asylum at the port of entry. The report cites reasons of language difficulties, ignorance of procedures, the need to obtain legal advice or advice from friends and relatives in the United Kingdom and a deep rooted fear of officialdom. As for the latter reason, asylum seekers choose to come to the United Kingdom precisely because of our reputation for legality and fair play. Therefore the Government consider it unlikely that more than a handful of bona fide refugees are genuinely in fear of officials at UK ports. Perhaps more can be clone to ensure that potential asylum seekers have greater knowledge of the procedures before departing from their home countries. Many arrive with visas; and surely it would be possible to brief people on asylum procedures at the consulate concerned.
To cease benefit for people whose claims have been considered and rejected by the Home Office will also save the taxpayer money, but it does not withdraw the right of the asylum seeker to appeal. This change will be another deterrent for bogus asylum claimants, who make up the vast majority of appellants, and should then enable appeals from the small number of genuine cases to be expedited.
In conclusion, I believe that the potential asylum seekers of the future will be fairly dealt with and, by the introduction of the government proposals for asylum seekers, I believe that the processing of cases will be expedited more competently, leading to an eventual reduction of case officers and adjudicators, while bringing about a saving of millions of pounds to the taxpayer.
I strongly support the Government on their proposals and I do not support the Opposition Motion.
5.31 p.m.
Lady Kinloss: My Lords, from the many points and worries that have been expressed this evening, it would seem that perhaps there has not been enough preparation or realisation of the consequences that the changes in the regulations will have on the lives of those seeking asylum in this country.
When passengers arrive in this country, those who do not hold a British passport are issued with a disembarkation form. Could they not at the same time be given a short printed explanation pamphlet giving details of how to proceed if they intend to become asylum seekers? Perhaps it could be printed in more languages than one.
When they arrive, they should he given help in understanding the printed explanation. It is essential that they understand the need to claim asylum on entry in order to remain entitled to urgent cases income support until a decision is made on their case. There will probably be language difficulties, and perhaps sign language will be needed in some cases. Can the Minister confirm that in these cases, and if language difficulties arise, everything will be done to ensure that the applicant understands what is needed? Can the Minister say what immediate assistance will be given in particular to unaccompanied children, the elderly and the frail, especially those who are the victims of war and torture, as it would seem that under the new regulations they will all be denied benefits? Would the Government consider a government funded hostel, at least for families and the people whom I have just mentioned? Would a hostel be practical or too expensive to run? It would at least give asylum seekers a shelter, and if no benefits are paid food should be provided.
Local authorities now have responsibility for children under the Children Act 1989. The Government have said that they will give the local authorities additional funding, but so far they have not said how they will allocate any funding, which will surely cause difficulties for those local authorities which need it. Can the Minister say what the rest of Europe does? Would this new legislation bring us into line with the rest of Europe; and should we not all offer equal treatment?
I apologise for asking so many questions, but I hope that the Minister will be able to answer some of them. Meanwhile will the Government reconsider their decision on the question of asylum seekers?
5.34 p.m.
Baroness Williams of Crosby: My Lords, as a relatively new Member of this House, I have been extraordinarily impressed by the sincerity, dedication and quality of the debate. I feel proud to be a Member of a House which can debate these astonishingly serious matters in the way that noble Lords have done this afternoon. In particular, I have been very impressed by the intense interest and concern that those engaged in the voluntary sector and the Churches have brought to bear.

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I turn, first, to what the noble Lord, Lord Boyd-Carpenter, said about the Statement by the Secretary of State for Social Security. I should like, too, to draw attention to the wording of the Statement. It states that the rights to asylum of genuine refugees,
"will not be curtailed in any way by these regulations or the Bill".
In the strictest and most narrowly legal sense, that may be true. But the report refers to genuine refugees, applying either in country or at the port of entry, who will not be able to be sustained during the appellate process. I find that, to say the least, somewhat misleading. If, as the United Nations High Commissioner for Refugees states, a person who seeks to appeal against the decision of an immigration officer cannot be physically or economically sustained during the period of that appeal, then his rights may be false for he cannot exercise them.
Secondly, in the Statement, the Secretary of State says that,
"those who … seek asylum at the point of entry will continue to have access to benefits while their claims are considered by the Home Office".
Again, it is strictly correct that while the claims are being considered by the Home Office, applicants will receive benefit. However, they will receive no benefit at the point at which their claim to the Home Office, having been disallowed and appealed against, is considered by the adjudicator. That period currently averages 116 days after the papers have been placed with the adjudicator by the Home Office. It means that the actual period is considerably longer. As other noble Lords have said, we are looking at periods which may vary from six months to five years.
The Statement continues:
"Well over 90 per cent. of those claiming asylum are eventually found not to be genuine refugees".
A number of noble Lords have drawn attention to that figure and have accepted it as correct. We have already heard during the course of the debate that in addition to the 4 per cent. originally granted asylum, some 19 per cent. are given extended leave to stay. Therefore the figure of 90 per cent. is strange if 19 per cent. are given extended leave to remain, unless we assume that immigration officials are giving people leave to remain who are not genuine refugees; and I do not assume that any noble Lord makes that claim.
However, as regards the 71 per cent. rejected—I do not refer to those given either extended leave to remain, an original grant of asylum, or even the further grant of asylum on appeal—one has to ask in the light of evidence put before noble Lords in the past few days whether some of those are not genuine refugees. The Medical Foundation for the Care of Victims of Torture has sent a number of us an extremely harrowing list of cases which have been rejected on application for acceptance as a genuine asylum seeker. I shall not bore the House with more than a few details. There is the case of the Kenyan man who was beaten on his heels, sexually assaulted, saw his house go up in flames and his elder son and his father both burned in that attack.
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He was refused entry on the grounds that he was not a genuine asylum seeker. However, on the face of it, he would seem to have a good case.
There is the case of the Nigerian man believed to be involved in the effort to try to retain democracy in Nigeria against one of the most disagreeable dictators the world has seen for some time. He saw his father beaten to death before his eyes. He was himself repeatedly beaten with rifle butts. He finally managed to escape to this country but was refused recognition as a genuine refugee. Again, one has to ask: what more was he supposed to prove? Both those men and a third case which I shall mention briefly were shown by medical doctors in this country to have signs of extreme torture on their bodies. That is according to the Medical Foundation whose chairman is a distinguished Conservative Member of another place.
The third and last case which I shall mention—although I could give many more—falls directly into the group described by the right reverend Prelate the Bishop of Chelmsford. An Iranian woman was attacked because her brother happened to be a supporter of a previous regime in Iran, one which was regarded as a friendly state by this country. Her home was continually and repeatedly entered and destroyed in large part by security guards of the present Iranian state. She herself was, in most extreme terms, sexually assaulted. When she managed to escape and come to this country, she too was rejected as not a genuine asylum seeker.
I wish to read what was said about her case by the adjudicator to whom she appealed. She will now have to appeal with no financial support. The document from the Medical Foundation states:
"In granting her appeal and recognising her as a refugee with a genuine fear of persecution, the Adjudicator commented that the Home Office refusal letter was inaccurate, not … reflecting what [she] said".
The adjudicator said:
"I saw the acute distress of the appellant giving evidence to me … it is clear she still finds it almost impossible to talk about her treatment".
When the Iranian woman arrived in this country, she was speechless with sheer shame at what had happened to her. It would he inconceivable to imagine that she would be able to make a coherent case at the port of entry.
I wish to make one further point about the so-called bogus applicants for asylum in this country. It has been pointed out by other noble Lords in terms of time. Over a series of years we have seen the proportion of those seeking asylum who are accepted change dramatically, as the noble Lord, Lord Dubs, pointed out. It is difficult to conceive that somehow in 1989 there were far fewer bogus applicants than there are today. If so, at least some of us would wish to know what explanation and evidence are offered for it.
As a further example, currently 70 per cent. of those who apply to Canada for refugee status are accepted; and of the over 150,000 who apply to the United States, 50 per cent. are accepted. Both those facts appear to bear out the statement made by the United Nations High Commission for Refugees that the figures for refugees

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accepted as genuine as a proportion of the total has more to do with the culture and attitude of the country concerned in terms of its liberality or strictness in interpreting what makes a refugee.
Thirdly, I wish to touch on the position of those who are sponsored. We have already heard about that in the debate and I have no desire to prolong it. I wish to ask the Minister about the case of a student sponsored by his or her government and who is therefore here bona fide, and able to pay the necessary fees. If there is an upheaval in that person's home country, such as has occurred in recent years in Nigeria, will he or she be considered in the same way as those on the so-called "white list", or will he or she be bound by the terms of the regulations? Those regulations state quite straightforwardly that it is only in the event of the death of a sponsor that the position of those sponsored can be reconsidered. In the case of such students, that would be an extraordinarily harsh act of injustice.
I wish to refer to the problems dealt with by many of my right honourable friends and the noble Baroness, Lady Hollis, and the noble Lord, Lord Dubs. We would like to know exactly what position is being taken by the Government with regard to the circumstances of those who are likely to find themselves thrown back on the final resort of local authorities. Will the local authorities be bound by their present obligations under the Children Act?
Finally, as regards the issue raised on the immigration Act 1968, my noble friend Lord Beaumont of Whitley referred to the actions of the party opposite. With great respect to him, I wish to dissociate myself from what he said. I believe that every now and then a matter comes up which is so painfully wrong that even those bound by loyalty to the Government of the day feel themselves obliged to stand out against the normal commitment of party loyalty. In the way in which it dealt with the position of the East African Asians, the immigration Act 1968 fell into that category.
I am not at liberty to tell the House what actions I took then, although I certainly acted. I am at liberty to say that on that occasion the actions of Mr. Iain Macleod were in the highest possible traditions of this place. He said: "I gave my word to these people and I will keep it". By "this place", I mean this country of ours, not just one particular House of Parliament. It was wrong of the Labour Government of that era to refuse to uphold and accept the commitment made by Mr. Macleod. It was right of Mr. Heath, the subsequent Prime Minister, to stand by that commitment in 1972 when the East African Asians came under the threat of being expelled and in some cases killed by the Government of Uganda.
However, two wrongs do not make a right in an instance where once again the House has to consider what one can only describe as a profoundly shameful proposal by the Government. In saying that, I am not moved by the colour of the Government on the issue. It is simply wrong. That has been said eloquently on both Front Benches of the Opposition parties and also by many Cross-Benchers and some Members of the party opposite. I beg them to consider their position carefully
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and ask themselves whether on this occasion conscience and humanity should take first place over any other consideration.
5.50 p.m.
Lord Mackay of Ardbrecknish: My Lords, perhaps I may start by saying that I hope my noble friends will not take a lesson in loyalty from the noble Baroness, Lady Williams of Crosby, and that they will in fact retain a greater sense of loyalty than she is trying to encourage them to show.
These regulations form an important element of the Government's overall policy on asylum seekers. The policy has three aims. The first is to ensure that the United Kingdom remains a safe haven for those genuinely fleeing persecution. The reason genuine refugees come to the United Kingdom is to share our freedoms, not our benefits. Their rights to asylum will not be altered in any way. That is why, unusually, I intervened during the remarks of the noble Lord, Lord Haskel. I was extremely concerned that he seemed to have misunderstood what was happening and assumed that we should actually turn people away at the port of entry if they claimed that they were asylum seekers. Nothing could be further from the truth. We have no intention of doing that. Those people who claim asylum at the port of entry will be allowed in, their asylum claim will be considered and, while it is being considered, up to the point of decision by Home Office officials, they will be eligible for benefit. Therefore it is simply not true, as I fear the noble Lord was suggesting in his personal example, that he and his family might in the new circumstances have been returned to persecution having been turned back at the port of entry. I hope that the noble Lord can accept my assurance that that will certainly not happen.
On this point about the port of entry, the noble Lady, Lady Kinloss, and my noble friend Lord Dean of Harptree asked whether interpreters are available. A very considerable and impressive range of interpreters is available at the major ports of entry. On the rare occasions when an interpreter is not available, the applicant will be given temporary admission until an interpreter can be found. That would in no way affect his or her status as a port applicant, although he or she would obviously be in the country before the application was actually made. It would not affect status at all. I hope that the noble Lady and my noble friend will he reassured on that point. As I have just underlined, we are ensuring that anyone who arrives as a refugee claiming asylum at the port of entry will have access to benefits while the Home Office determines that claim.
Our second objective is to deal more speedily with genuine claimants so that they can get on with their lives. In response to the right reverend Prelate the Bishop of Chelmsford, I absolutely agree that we have to try to do better when it comes to processing asylum applications. Indeed, we are trying to. However, one of the problems is that, as we put resources in, the numbers increase. We arc almost in a Catch-22 situation. The Home Office has already increased the number of caseworkers seven-fold, from 100 to 700, since 1988. An extra £37 million is being transferred from my

1351
budget to the Home Office and the Lord Chancellor's Department to expand its asylum work further over the next three years; and the Home Office is planning a major initiative to computerise the handling of asylum cases. Above all, the Asylum and Immigration Bill currently before Parliament will help to streamline the handling of cases.
However, these objectives cannot be met if the system continues to be clogged up by vast numbers of unfounded claims. Therefore, our third objective is to remove from the benefits system the incentive for unfounded applicants—the great majority of them, as my noble friend Lord Vivian mentioned, economic migrants—so that they can no longer be on benefit and claim asylum in the United Kingdom.
The rising tide of asylum seekers represents a major problem which no responsible government can ignore. We are not the only government to have to tackle this problem. I shall come to that in a moment. Last year, the total number of people claiming asylum in the United Kingdom exceeded 57,000, including dependants. The figure for the previous year was 42,000. That is a ten-fold increase over 10 years. A decade ago, in 1984, 1985 and 1986, for example, the United Kingdom received 4,000, 6,000 and 6,000 applications. Over the past three years the figures were 32,000, 28,000 and 42,000; as I said, applications rose to 57,000 in the year just ended. That is a very considerable increase.
As my noble friends Lord Brabazon of Tara and Lady Elles pointed out, the situation in Europe, which mirrored ours, has now taken a considerable downturn as a result of steps taken by European countries. Belgium, for example, found that applications rose to 26,900. Following steps taken in 1993, its applications are now down, at 14,300. I mentioned Italy, which managed to bring down its applications from 31,000 in 1991 to 1,800 in 1994.
It is interesting to note that the UK's share of all those coming to Europe and claiming asylum a decade ago was roughly 4 per cent. over a three-year period, give or take a per cent. or two. The figures were: 4.3 per cent., 3.8 per cent. and 2.9 per cent. In the past three years they were 4.7 per cent. in 1992, 5.1 per cent. in 1993 and 13.2 per cent. in 1994. We have not collected the full annual statistics from the rest of Europe; however, it is perfectly clear to me, using a calculator, that the likelihood is that the percentages for 1995 will go well into the twenties.
If one excludes Germany from this calculation—Germany dominates the tables because of its proximity to the refugee influx from Eastern Europe over many years—the position for the rest of Europe is even more graphic: from about 6 per cent. in the three years a decade ago, we have seen the position move from 12.7 per cent. in 1992, to 12.3 per cent. in 1993 and 22 per cent. last year; and my calculator tells me that if the trends in the half-year figures continue, we shall certainly be in the region of 40-odd per cent.
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UK claims have risen by something like 45 per cent.—and that as a share of Europe's asylum seekers. We have therefore seen our share increase quite dramatically. Indeed, over a decade it has trebled. That point underlines the problem that we have to try to do something about it.
The right reverend Prelate the Bishop of Ripon said that figures were important. Indeed they are. And these figures are very, very important indeed. Amnesty International recognises that. It states:
"The truth of the matter is that, since 1992, immigration controls and asylum procedures—particularly those applied at the border—have been tightened far more in some European countries than in the UK".
It adds that this,
"no doubt works to make the UK a more attractive destination for would-be asylum-seekers than some other European countries".
So the tightening up by our friends and neighbours in Europe has helped to make our problem the greater. People see that if they cannot go to some of those countries, they can perhaps come to the United Kingdom.
We do have a serious problem. It is not helped by the remarks that we heard in this debate. The noble Earl, Lord Russell, made some points about Bosnian refugees. I can tell the noble Earl that in 1994 there were 1,385 applications from the former Yugoslavia. Of those, 140 were granted refugee status—80 at the port and 60 in the country—and 1,365 were granted exceptional leave to remain. Of that number, 765 were granted permission at the port—where the noble Baroness would have one believe that everyone is so traumatised that they cannot think about asking for asylum—and 595 in-country. In addition, we agreed to take 500 Bosnians under the quota scheme of the UNHCR. I hope that the noble Earl will appreciate that we have played a very big part in trying to help people who are fleeing some of the serious problems in the former Yugoslavia.
Lord Dubs: My Lords, before the noble Lord leaves the statistics, can he say how many asylum claims there are now in the pipeline? I suggest that between 50,000 and 60,000 asylum claims are waiting to be considered and that that is the biggest incentive for people to come here and not the argument that we are getting soft.
Lord Mackay of Ardbrecknish: My Lords, of course the backlog has increased, because no matter how hard I try to explain that we have put resources into dealing with the problem, even more come in. In the real world that is very difficult to tackle. The noble Lord need not worry because I have not finished with the statistics: there are a lot more to come.
The plain fact is that our benefit system offers a greater incentive to economic migrants than applies in other countries. Under current arrangements an asylum seeker in the United Kingdom has open-ended access to benefit and is generally accommodated in the community. How much more attractive that is to an economic migrant than, say, Germany or Holland where they are accommodated in a camp and benefits are mainly in kind; or in Belgium or France where benefit stops after a year. After six months in Britain an asylum

1353
seeker can take work. In Denmark, France, The Netherlands and Spain asylum seekers are not allowed to work. So, as the rest of Europe has tightened up their procedures, we have seen our system becoming clogged up with a large number of false asylum claims. The burden on the system continues to grow as more economic migrants are drawn to the UK in preference to other European countries. By removing the incentive for economic migration, as we are doing in these regulations, we shall be able to ease the asylum process for genuine refugees.
Noble Lords should be clear that the overwhelming majority—I used the following figures on the last occasion and no one is countering them, with perhaps a slight exception as regards the two leading figures in the parties opposite—of claims are unfounded. Your Lordships will recall that I tried to simplify the figures away from thousands by simply saying that in 1994, for every 100 asylum seekers who came to this country, seven were found to be genuine refugees, 17 were granted permission to remain in the UK on humanitarian grounds (exceptional leave to remain) and 76 received an outright refusal. We are spending £200 million a year, which is rising rapidly, and over 90 per cent. of that goes to people who do not meet the criteria set out in the UN Convention on the Status of Refugees.
Baroness Williams of Crosby: My Lords, does the Minister argue that all the cases that I indicated from the Medical Foundation for the Care of Victims of Torture were bogus cases? They were all refused.
Lord Mackay of Ardbrecknish: My Lords, I am not going to argue in detail about individual cases because I do not know the facts. I know the facts about some cases which received high profile treatment, but the facts are often not as reported. There is an appeal system. If the noble Baroness does not mind, I shall give my speech in the round.
The appeal system is not going to be removed and neither is the right for people to come here and seek asylum. One would have thought occasionally this afternoon that these regulations were actually going to stop people coming here and seeking asylum. They do not do that. They are tackling what we believe—but which quite clearly the Opposition do not believe—is an abuse of our benefit system.
I was going to try to be helpful to the noble Lord, Lord Clinton-Davis, who asked me a question about exceptional leave to remain on humanitarian grounds. Where the conditions in a particular country are so difficult, Ministers have agreed that it would be unreasonable to expect individuals to return to that country for the time being. Those are the kinds of circumstances in which exceptional leave to remain is given. Countries which currently fall into that category are, for example, China, Liberia and Somalia.
I tried to work out in my mind what the difference was. I believe it is that if in a particular country a person is likely to be in danger, not individually but simply because there are a lot of bullets flying around, not necessarily with the individual's name on them, that
1354
begins to lead people to believe that we should give exceptional leave to remain. A refugee is where a bullet may have his name on it.
We allow people to stay in this country on exceptional leave to remain in 17 cases out of 100. I return to the figure that I want to leave in your Lordships' minds for the rest of my speech. Three-quarters of them—76 cases out of 100—are actually found after the whole procedure has finished, including appeals and cases where the adjudicator decides that the original decision was correct, either not to warrant exceptional leave to remain or not to be genuine asylum seekers.
A great deal has been made of the time when people apply. That is one of the key changes we are making. Currently people can apply at the port of entry and when they are already in the country, having got in by saying that they were coming to visit, to be educated, to conduct business or whatever. Something has been made of the fact that they arrive and within a few days they decide to apply for asylum. That is not the case. In the first nine months of 1995, 63 per cent. of all visitors claimed asylum a month or more after arrival. The figures are these: those who applied within a month of arrival, 45 per cent.; between one and two months, 10 per cent; between two and four months, 15 per cent; between four and six months, 20 per cent.; and over six months after arrival, 10 per cent. Therefore, noble Lords can see that more than half of the asylum seekers actually apply at least a month after arrival in this country.
Continuing with the distinction between at-port and in-country applications, under these regulations anyone who arrives here and claims to be a refugee at the point of entry will be entitled to benefit while the Home Office assesses their claim. Seventy per cent. of claims are made by people who have entered this country claiming to be visitors, students or businessmen or who have entered illegally, only later to claim asylum. The bulk of these people have in fact convinced entry clearance officers in their home country and immigration officers at the UK ports that they intend to remain in this country for only a limited time and that they have sufficient funds to support and accommodate themselves while they are here. It is my belief that it is entirely reasonable to say to people that if they want to seek asylum in this country they ought to do it when they reach our shores.
I am told by noble Lords that that is an entirely unreasonable expectation and that people are too scared or disoriented, or lack knowledge of our procedures, and are traumatised, which is one of the words used by the noble Baroness on more than one occasion. The statistics do not bear that out. The noble Baroness tried to pluck your Lordships' heartstrings as regards children. The interesting fact about unaccompanied children is that the vast majority claim at the port. In 1994, 357 claimed at the port, 59 claimed in-country. In 1993, 245 claimed at the port and 30 claimed in-country. In 1992, 185 claimed at the port and only five claimed in-country. I do not believe that these statistics bear out the assertion of people being traumatised.

1355
The noble Earl, Lord Russell, in arguing this matter mentioned Zaïre. I took the trouble to look at the figures for that country. The whole principle of the debate on which the argument by the Opposition is based is that people are too frightened or traumatised to apply at the port of entry. If they believe that we are that kind of country, I do not know why they come to Great Britain. However, that question was not answered. As regards Zaïre, in 1904, of the 775 people who applied, 360 applied at the port and 415 applied in-country. That is pretty close to a balanced position. In the previous year, 635 people applied; 340 at the port and 295 in-country. The year before that, out of the 880 who applied in total 440 applied at the port and 435 applied in country.
I could go through, as I did on the day of the Statement, one or two other countries which draw out exactly the same point. However, the noble Earl, Lord Russell, kindly led me to Zaire as a country where people would be so traumatised and so distraught that they certainly would never think of applying for asylum on entry. The statistics simply do not bear out the noble Earl at all. I do not believe that if someone has identified the United Kingdom as a safe haven and if they have successfully misrepresented themselves to an entry clearance officer in their home country and they have found their way to this country, they suddenly lose the capacity to make the asylum claim which is actually what brought them here in the first place.
I believe, and I am sorry to say it to all noble Lords who have argued this case, that this stretches credulity a little too far. I am told also there is no evidence that in-country applicants are any less likely to be genuine than those who claim on arrival. The implication is that these regulations are based on the belief that in-country applicants are somehow more bogus. That has never been my case. I have never claimed that an in-country claim is less likely to be genuine. Rather it is my contention that the availability of benefit for in-country applicants, who actually form the majority of the applicants, provides an incentive for economic migrants to represent themselves as asylum seekers.
What we are saying is simply that those who wish to claim asylum in this country should do so on arrival. In saying this—this was a point my noble friend Lord Dean of Harptree made, together with the right reverend Prelate the Lord Bishop of Chelmsford—we do accept that there may be occasions when someone is trapped in this country by an upheaval in his home country. In these circumstances it will be possible for an in-country applicant to claim benefit on the same basis as a port application.
The great majority of asylum seekers appeal against the refusal of refugee status. Fewer than 4 per cent. of appeals are actually upheld, but the mere fact of having lodged an appeal allows the asylum seeker to retain entitlement to benefit until his case is decided. So in fact our generosity clogs up the system and causes the very delays that every noble Lord who has spoken has actually highlighted as a real problem in this situation. There is a clear incentive for a claimant to string out his appeal.
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Our purpose in these regulations is to remove this incentive in order to free up the appeal system. It can only be to the advantage of a genuine refugee and asylum seeker that the appeal system be relieved of this enormous burden of people who simply appeal because it keeps them here. And of course a British citizen who appeals against a domestic benefit decision receives no benefit during the course of the appeal. I just do not believe it is right that we, that is the British taxpayer, should be supporting this vast number of people who turn out to be without-foundation claimants, encouraging them almost to go through the appeals procedure so that they can keep on drawing benefits. The noble Earl's Motion, standing in his own name, would in fact reintroduce this very incentive for people to submit unfounded appeals.
I am asked what happens to the roughly three-quarters out of every hundred of those who come in who, at the end of the Home Office's consideration, are found not to be justified, having no exceptional leave to remain, and with no refugee status. How do they fend for themselves? I am going to turn that question round, because a little later three-quarters of them end up being refused totally and absolutely and then do not receive any benefit: no housing benefit, no council tax benefit. What do they do? Are the streets full of those people sleeping out at night? Of course not. This is a completely, if I may use the word, bogus argument because if there had been any justification noble Lords would have been complaining for years that the current situation, which would stop benefits after the end of the appeal system, was in fact uncaring, traumatising and all the other words we hear. Frankly, all the proposals before us are doing is actually bringing forward the time when the bogus asylum seeker will be deprived of benefits under our system.
If I may, I will now turn to a number of points raised by your Lordships. The noble Lord, Lord Clinton-Davis, the noble Baroness, Lady Hayman, the noble Lord, Lord Beaumont of Whitley, and in fact also the noble Lord, Lord Dubs, who has his own Motion down on this very point, referred to the safeguarding and protection of the children of in-country applicants. The welfare of those children is already safeguarded by the Children Act 1989, which provides that where children are in need local authorities have an obligation to protect them. This obligation extends to children of an asylum seeker, and these regulations in no way change the operation of the Children Act.
I am dismayed that people, in their haste to condemn these regulations, have chosen to overlook the safeguards we have provided. First, we have made it clear that existing claimants who are awaiting the outcome of an asylum decision or appeal will retain their right to benefit. Secondly, the children of asylum seekers will continue to have rights under the Children Act. Thirdly, we have recognised that local authorities may face additional costs in meeting their obligations under that Act and the homelessness legislation; and we have made it clear that we will discuss with them these matters and we will assist them with these costs once they have been identified.

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I should like to say the noble Lord, Lord Clinton-Davis, that, regarding the UNHCR's point about our being in breach of the United Nations Convention on the Rights of the Child, we do not believe that is the case. We are fully satisfied that there is nothing in these regulations that places the United Kingdom in breach of that convention.
We have had a great many arguments for and against the Resolutions and the Prayers, but I do not believe any of them have actually properly addressed the points that I have put over in advancing the case before the House this evening supporting these arguments. The blunt fact of the matter is that the facts speak for themselves: the increase in the numbers coming here as compared to Europe and the three-quarters of them that are found not to be genuine refugees. Indeed, the Social Security Select Committee in the other House said this:
"The committee shares the widespread view that the growth in the numbers of unfounded asylum claims and their cost to the taxpayer is a serious problem that the Government is right to tackle".
Even Amnesty International towards the end of its report concludes:
"It is not disputed that the Government faces serious difficulties in dealing with large numbers of asylum applications, many of which are not well founded".
The noble Baroness, Lady Hollis, even went a little way along that line too. She said that maybe a high proportion are economic migrants. A high proportion are clearly economic migrants and the figures show it beyond peradventure. We are saying that we have a responsibility towards the United Kingdom taxpayers. We have also a responsibility towards the genuine asylum seekers. What I am left not knowing is: would the two parties opposite actually allow people in and to claim and then pay them benefits endlessly without question? I am puzzled about that because anybody who reads or listens, as I have done, to the attack on the Government's policy is unfortunately led to the conclusion that if I have got it so wrong then they must be going to open up the system and pay a lot more benefits. I believe I have proved that there is an abuse of our system. It is an abuse we can stop, and it is an abuse that, once stopped, will actually help both the United Kingdom taxpayer and the genuine refugees. These regulations I think ought to be commended.
Lord Graham of Edmonton: Sock it to 'em!
6.19 p.m.
Baroness Hollis of Heigham: My Lords, I should love to but I have only 30 seconds. First, I should like to thank all noble Lords who took part. Whatever our views on this subject I think we would all agree that we have heard some deeply moving speeches which will remain in the memory and which may indeed remain to trouble us in the memory when we see what we fear will happen may come true.
Where we all agree is that this country, and we, have no obligation to support and finance economic migrants. We do not dispute that for a moment. All of us, I hope, and most of us, I believe, think that we should finance, help and support true asylum seekers. If that is the
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position, we all accept that we need to distinguish between the two. The question therefore before us is: how do we know which is which?
The Government, in the shape of the Minister the noble Lord, Lord Mackay, following an intervention by the noble Lord, Lord Campbell of Alloway, said that the way to distinguish between those two is that those who apply at the port of entry are true asylum seekers and obtain benefit status; but those who apply in-country are not true and therefore do not receive benefit. That is the distinction on which the Government are operating and on which these regulations are based; that is, that those who apply at port of entry receive benefit and those who apply subsequently do not. That is the way to distinguish between the real and the bogus asylum seeker.
However, as the Government know, that is not true. One is more likely to be granted asylum status or exceptional leave to remain not if one applies at the port of entry, but if one applies in-country. Therefore one is more likely to be a genuine asylum seeker if one applies in-country rather than at the port of entry. That is why we should take seriously the words of the Social Security Advisory Committee, which certainly ring true to me: that if I were in the position of a refugee seeking asylum, I would seek first the safety of a country; then I would seek the advice of an organisation to help me, and then I would apply for leave to remain. That is the safer way to proceed, as evidenced by the fact that on the Government's figures they accept that argument both for asylum seekers and for those granted exceptional leave to remain.
If it is invalid to distinguish between genuine applicants at port of entry and in-country on the basis of whether or not we allow them benefit, then how do we distinguish between economic migrants and the true asylum seekers? There is only one safe and just way to do that. The distinction is not made on the basis of where one applies; for instance, whether one buys a train ticket at the office or on the train. That is irrelevant. The only fair, right and just way to distinguish between the economic migrant and the asylum seeker is on the basis of a determination by the Home Office.
The answer to the question posed by the noble Lord, Lord Brabazon, as to how we cut the costs is simple. If we wish to cut the cost falling on the DSS then we require the Home Office to speed up the process of determination. The bill has mounted not because we are being swamped by immigrants, but because between 60,000 and 70,000 people are still waiting to have their initial determination processed. We are saying today that we are refusing asylum seekers social security money because our system is not speedy enough to offer them justice. That is what we are saying. We will refuse them money because we cannot offer them justice, and we will do so on the arbitrary distinction of where they apply—whether they apply at port of entry or in-country—even though we know that those who apply in-country, on the Government's figures, are likely to have a stronger case. That is not decent; that is not just; that is not fair; that is not humane. It will linger in our conscience for many years to come.

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I regret that convention does not allow me to seek the opinion of the House on a statutory instrument. Therefore, though I believe the Government's case to be profoundly and morally wrong, I have no alternative but to beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Asylum Seekers: Means of Support
6.25 p.m.
Earl Russell Earl Russell rose to move to resolve, That this House calls on Her Majesty's Government, following the implementation of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 (S.I. 1996 No. 30), to ensure that asylum seekers pursuing appeals have visible legal means of support pending the conclusion of their appeals.
The noble Earl said: My Lords, I promised the Minister not to take more than two minutes. When I listened to him I was reminded of a remark by Sydney Smith: "I wish I were as sure of anything as Tom Macaulay is of everything".
The Minister relied heavily on the idea of the bogus asylum seeker. But these regulations make no attempt whatever to distinguish between the bogus and the genuine. They sweep them all up together and penalise the lot. They put the Minister in the position of Sherlock Holmes's Inspector Athelney Jones, who, wishing to find a murderer in the house, arrested the whole household. Holmes finally remarked, "I see, Inspector, you have one genuine fish in your large haul".
The noble Lord, Lord Brabazon of Tara, challenged us in regard to treatment of bogus claims. That is a matter for individual examination, and improving individual examination is the only way to do it. Anything done by the regulations in relation to bogus claims is entirely wide of the question. The regulations are not relevant to that argument.
The Minister said that the right of appeal remained intact. So, in a formal sense, it does. But if one cannot live, if one cannot have an address, if one cannot eat and one cannot have papers served upon one, one's right of appeal is rendered nugatory.
The Minister wanted to withdraw an incentive to put forward unfounded appeals. But that argument applies against the whole of our criminal justice system. The argument does too much. I offered the Minister a sporting challenge to show what will happen to the people who are refused benefit. He most unsportingly ducked it. The Minister made a point in relation to the people whose appeals fail. But those people may legally be deported; they are not in the position of those people who can neither go nor stay. The Minister said that they come to enjoy our freedoms, not our benefits. I believe that our right to benefit is one of our freedoms. I beg to move.
6.27 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 126; Not-Contents, 175.

Division No. 1

CONTENTS

Acton, L.

Kinloss, Ly.

Addington, L.

Kirkwood, L.

Airedale, L.

Lester of Herne Hill, L.

Ashley of Stoke, L.

Lincoln, Bp.

Attlee, E.

Listowel, E.

Avebury, L.

Lockwood, B.

Bancroft, L.

Longford, E.

Barnett, L.

Lovell-Davis, L.

Beaumont of Whitley, L.

Macaulay of Bragar, L.

Berkeley, L.

McGregor of Durris, L.

Birk, B.

McIntosh of Haringey, L.

Blackstone, B.

Mackie of Benshie, L.

Blease, L.

McNair, L.

Borrie, L.

McNally, L.

Brentford, V.

Mallalieu, B.

Bridges, L.

Mar, C.

Broadbridge, L.

Masham of Ilton, B.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Carter, L.

Mayhew, L.

Castle of Blackburn, B.

Merlyn-Rees, L.

Chelmsford, Bp.

Meston, L.

Cledwyn of Penrhos, L.

Milner of Leeds, L.

Clinton-Davis, L.

Monkswell, L.

Cocks of Hartcliffe, L.

Moore of Wolvercote, L.

David, B.

Morris of Castle Morris, L.

Dean of Beswick, L.

Murray of Epping Forest, L.

Dean of Thornton-le-Fylde, B.

Nathan, L.

Desai, L.

Nicol, B.

Diamond, L.

Ogmore, L.

Donaldson of Kingsbridge, L.

Palmer, L.

Dormand of Easington, L.

Peston, L.

Dubs, L.

Prys-Davies, L.

Elis-Thomas, L.

Rea, L.

Ezra, L.

Redesdale, L.

Falkender, B.

Richard, L.

Farrington of Ribbleton, B.

Ripon, Bp.

Freyberg, L.

Robson of Kiddington, B.

Gallacher, L.

Rochester, L.

Geraint, L.

Runciman of Doxford, V.

Gladwin of Clee, L.

Russell, E. [Teller.]

Glenamara, L.

Sainsbury, L.

Graham of Edmonton, L. [Teller.]

St. John of Bletso, L.

Gregson, L.

Sandwich, E.

Grey, E.

Seear, B.

Hamwee, B.

Sefton of Garston, L.

Harris of Greenwich, L.

Serota, B.

Haskel, L.

Shepherd, L.

Hayman, B.

Strabolgi, L.

Healey, L.

Taylor of Gryfe, L.

Henderson of Brompton, L.

Thurso, V.

Hilton of Eggardon, B.

Tope, L.

Hollis of Heigharn, B.

Tordoff, L.

Howell, L.

Turner of Camden, B.

Howie of Troon, L.

Varley, L.

Hughes, L.

Wallace of Saltaire, L.

Hutchinson of Lullington. L.

Walpole, L.

Hylton, L.

Wedderburn of Charlton. L.

Irvine of Lairg, L.

Whaddon, L.

Jay of Paddington, B.

White, B.

Jeger, B.

Wigoder, L.

Jenkins of Hillhead. L.

Williams of Crosby, B.

Jenkins of Putney. L.

Williams of Elvel, L.

Kilbracken, L.

Winston. L.

1361

NOT-CONTENTS

Aberdare, L.

Harris of High Cross, L.

Abinger, L.

Harrowby, E.

Addison, V.

Hayhoe, L.

Ailsa, M.

Henley, L.

Allenby of Megiddo, V.

Holderness, L.

Archer of Weston-Super-Mare, L.

HolmPatrick, L.

Astor of Hever, L.

Hooper, B.

Banbury of Southam, L.

Hothfield, L.

Barber, L.

Howe, E.

Barber of Tewkesbury, L.

Hylton-Foster, B.

Belhaven and Stenton, L.

Inglewood, L.

Belstead, L.

Jenkin of Roding, L.

Blaker, L.

Johnston of Rockport, L.

Blatch, B.

Kimball, L.

Boardman, L.

King of Wartnaby, L.

Boyd-Carpenter, L.

Kingsland, L.

Brabazon of Tara, L.

Lauderdale, E.

Braine of Wheatley, L.

Lawrence, L.

Bridgeman, V.

Leigh, L.

Brigstocke, B.

Lindsay, E.

Brougham and Vaux, L

Lindsey and Abingdon, E.

Bruntisfield, L.

Liverpool, E.

Butterworth, L.

Long, V.

Cadman, L.

Lucas, L

Caithness, E.

Lucas of Chilworth, L.

Campbell of Alloway, L

Lyell, L.

Campbell of Croy, L

McColl of Dulwich, L.

Carnegy of Lour, B.

McConnell, L.

Carnock, L.

Mackay of Ardbrecknish, L.

Carr of Hadley, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Chelmsford, V.

Chesham, L. [Teller.]

Mackay of Drumadoon, L

Clanwilliam, E.

Macleod of Borve, B.

Clark of Kempston, L.

Mancroft, L.

Cochrane of Cults, L.

Marlesford, L.

Colwyn, L.

Massereene and Ferrard, V.

Courtown, E.

Merrivale, L.

Cox, B.

Mersey, V.

Craigmyle, L.

Middleton, L.

Cranbome, V. [Lord Privy Seal.]

Miller of Hendon, B.

Crathome, L

Milverton, L.

Cross, V.

Monk Bretton, L.

Cumberlege, B.

Mottistone, L.

Darcy (de Knayth), B.

Mountevans, L.

Dean of Harptree, L.

Mowbray and Stourton, L.

Denton of Wakefield, B.

Munster, E.

Derwent, L.

Murton of Lindisfame, L.

Devonport, V.

Newall, L.

Dixon-Smith, L.

Northesk, E.

Downshire, M.

O'Cathain, B.

Dundonald, E.

Oliver of Aylmerton, L.

Dunrossil, V.

Onslow, E.

Eden of Winton, L.

Orkney, E.

Ellenborough, L.

Orr-Ewing, L.

Elles, B.

Oxfuird, V.

Elliott of Morpeth, L.

Park of Monmouth, B.

Eme, E.

Pearson of Rannoch, L.

Ferrers, E.

Pender, L.

Fraser of Carmyllie, L.

Peyton of Yeovil, L.

Gainford, L.

Phillimore, L

Gainsborough, E

Pike, B.

Geddes, L.

Rankeillour, L.

Gisborough, L.

Rawlings, B.

Goschen, V.

Reay, L.

Gray of Contin, L.

Rennell, L

Greenway, L.

Renton, L.

Griffiths of Fforestfach, L.

Romney, E.

Giimston of Westbury, L.

Saint Albans, D.

Haig, E.

Saint Oswald, L.

Hailsham of Saint Marylebone, L.

Seccombe, B.

Harding of Petherton, L.

Selborne, E.

Hardwicke, E.

Shannon, E.

Harlech, L.

Shaw of Northstead, L

Harmar-Nicholls, L.

Sherfield, L.

Harmsworth, L.

Skelmersdale, L.

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Stockton, E.

Tugendhat, L.

Stodart of Leaston, L.

Ullswater, V.

Strathcarron, L.

Vivian, L.

Strathclyde, L. [Teller.]

Wakeham, L.

Strathcona and Mount Royal, L.

Waverley, V.

Sudeley, L.

Westbury, L.

Swinfen, L.

Wharton, B.

Tebbit, L.

Whitelaw, V.

Teynham, L.

Wilberforce, L.

Thomas of Gwydir, L.

Wolfson, L.

Torrington, V.

Wynford, L.

Trefgame, L.

Young, B.

Trumpington, B.

Zouche of Haryngworth. L.

Resolved in the negative, and Motion disagreed to accordingly.

Asylum Seekers: Hardship Payments
6.37 p.m.
Lord Dubs Lord Dubs rose to move to resolve, That this House calls on Her Majesty's Government, following the implementation of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (S.I. 1996/30), to ensure that a person who submits a claim for asylum after entry into the United Kingdom, who has dependent children living with him or her and lacks the means to support those children, is eligible for a discretionary hardship payment sufficient to care for and maintain those children.
The noble Lord said: My Lords, I shall be extremely brief. To judge by the Minister's argument in the debate, the Government feel that every asylum seeker ought to claim asylum at the port of entry. We know that not all of them will do so, despite the new proposals that the Government adopt. Therefore, families with children will inevitably suffer hardship. My Motion seeks to address that point. I do not believe that to use the Children Act and to place the responsibility on local authorities is satisfactory. I believe that throughout the House there is a sense of unease at what may happen to children. For that reason, I have today put down this Motion, which I hope will command wide support. I beg to move.
6.38 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 126; Not-Contents, 169.

Division No. 2

CONTENTS

Acton, L.

Blease, L.

Addington, L.

Borrie, L.

Airedale, L.

Brentford, V.

Ashley of Stoke, L.

Bridges, L.

Attlee, E.

Broadbridge, L.

Avebury, L.

Carmichael of Kelvingrove, L.

Bancroft, L.

Carter, L.

Barnett, L.

Castle of Blackburn, B.

Beaumont of Whitley, L.

Chelmsford, Bp.

Berkeley, L.

Cledwyn of Penrhos, L.

Birk, B.

Clinton-Davis, L.

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Cocks of Hartcliffe, L

Mackie of Benshie, L.

David, B.

McNally, L.

Dean of Beswick, L.

McNair, L.

Dean of Thornton-le-Fylde, B.

Mallalieu, B.

Desai, L.

Mar, C.

Diamond, L.

Masham of Ilton, B.

Donaldson of Kingsbridge, L.

Mason of Barnsley, L.

Dormand of Easington, L.

Mayhew, L.

Dubs, L.

Merlyn-Rees, L.

Elis-Thomas, L.

Meston, L.

Ezra, L.

Milner of Leeds, L.

Falkender, B.

Mishcon, L.

Farrington of Ribbleton, B.

Monkswell, L.

Freyberg, L.

Moore of Wolvercote, L.

Gallacher, L.

Morris of Castle Morris, L.

Geraint, L.

Murray of Epping Forest, L.

Gladwin of Clee, L.

Nathan, L.

Glenamara, L.

Nicol, B.

Graham of Edmonton, L. [Teller.]

Ogmore, L.

Gregson, L.

Palmer, L.

Grey, E.

Peston, L.

Hamwee, B.

Prys-Davies, L.

Harris of Greenwich, L.

Rea, L.

Haskel, L.

Redesdale, L.

Hayman, B.

Richard, L.

Healey, L.

Ripon, Bp.

Henderson of Brompton, L.

Robson of Kiddington, B.

Hilton of Eggardon, B.

Rochester, L.

Hollis of Heigham, B.

Runciman of Doxford, V.

Howell, L.

Russell, E. [Teller.]

Howie of Troon, L.

St. John of Bletso, L.

Hughes, L.

Sandwich, E.

Hutchinson of Lullington, L.

Seear, B.

Hylton, L.

Sefton of Garston, L.

Irvine of Lairg, L.

Scrota, B.

Jay of Paddington, B.

Shepherd, L.

Jeger, B.

Strabolgi, L.

Jenkins of Hillhead, L.

Taylor of Gryfe, L.

Jenkins of Putney, L

Thurso, V.

Judd, L.

Tope, L.

Kilbracken, L.

Tordoff, L.

Kinloss, Ly.

Turner of Camden, B.

Kirkwood, L.

Varley, L.

Lester of Herne Hill, L.

Wallace of Saltaire, L.

Lincoln, Bp.

Walpole, L.

Listowel, E.

Wedderbum of Charlton, L.

Lockwood, B.

Whaddon, L.

Longford, E.

White, B.

Lovell-Davis, L.

Wigoder, L.

Macaulay of Bragar, L.

Williams of Crosby, B.

McGregor of Durris, L.

Williams of Elvel, L.

McIntosh of Haringey, L.

Winston, L.

NON-CONTENTS

Aberdare, L.

Bruntisfield, L.

Abinger, L.

Butterworth, L.

Addison, V.

Cadman, L.

Ailsa, M.

Caithness, E.

Allenby of Megiddo, V.

Campbell of Alloway, L.

Archer of Weston-Super-Mare, L.

Campbell of Croy, L.

Astor of Hever, L.

Camegy of Lour, B.

Banbury of Southam, L.

Carnock, L.

Barber, L.

Carr of Hadley, L.

Barber of Tewkesbury, L.

Chelmsford, V.

Belhaven and Stenton, L.

Chesham, L.[Teller.]

Belstead, L.

Clanwilliam. E.

Blaker, L.

Clark of Kempston, L.

Blatch, B.

Cochrane of Cults, L.

Boardman, L.

Colwyn, L.

Boyd-Carpenter, L.

Courtown, E.

Brabazon of Tara, L.

Cox, B.

Braine of Wheatley, L.

Craigmyle, L.

Bridgman, V.

Cranbome, V. [Lord Privy Seal.]

Brigstocke, B.

Crathome, L.

Brougham and Vaux, L.

Cross, V.

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Cumberlege, B.

Macleod of Borve, B.

Darcy (de Knayth), B.

Mancroft, L.

Dean of Harptree, L.

Marlesford, L.

Denton of Wakefield, B.

Massereene and Ferrard, V.

Derwent, L.

Merriale, L.

Devonport, V.

Mersey, V.

Dixon-Smith, L.

Middleton, L.

Downshire, M.

Miller of Hendon, B.

Dundonald, E.

Monk Bretton, L.

Dunrossil, V.

Mottistone, L.

Eden of Winton, L.

Mountevans, L.

Ellenborough, L.

Mowbray and Stourton, L.

Elles, B.

Munster. E.

Elliott of Morpeth, L.

Murton of Lindisfame, L.

Erne, E.

Newall, L.

Ferrers, E.

Northesk, E.

Fraser of Carmyllie, L.

O'Cathain, B.

Gainford, L.

Onslow, E.

Gainsborough, E.

Orkney, E.

Geddes, L.

Orr-Ewing, L.

Gisborough, L.

Park of Monmouth, B.

Goschen, V.

Pearson of Rannoch, L.

Gray of Contin, L.

Pender, L.

Greenway, L.

Peyton of Yeovil, L.

Griffiths of Fforestfach, L.

Phillimore, L.

Grimston of Westbury, L.

Pike, B.

Haig, E.

Rankeillour, L.

Hailsham of Saint Marylebone, L.

Rawlings, B.

Harding of Petherton, L.

Reay, L.

Hardwicke, E.

Rennell, L.

Harlech, L.

Romney, E.

Harmar-Nicholls, L.

Saint Albans, D.

Harmsworth, L

Saint Oswald, L.

Harris of High Cross, L.

Seccombe, B.

Harrowby, E.

Selbome, E.

Hayhoe, L.

Shaw of Northstead, L.

Henley, L.

Sheffield, L.

Holderness, L.

Skelmersdale, L.

HolmPatrick, L.

Stockton, E.

Hooper, B.

Stodart of Leaston, L.

Hothfield, L.

Strathcarron, L.

Howe, E.

Strathclyde, L. [Teller.]

Hylton-Foster, B.

Strathcona and Mount Royal, L.

Inglewood, L.

Sudeley, L.

Jenkin of Roding, L.

Swinfen, L.

Johnston of Rockport, L.

Tebbit, L.

Kimball, L.

Teynham, L.

King of Wartnaby, L.

Thomas of Gwydir, L.

Kingsland, L.

Torrington, V.

Lauderdale. E.

Trefgame, L.

Lawrence, L.

Trumpington, B.

Leigh, L.

Tugendhat, L.

Lindsay, E

Ullswater, V.

Lindsey and Abingdon, E.

Vivian, L.

Liverpool, E.

Wakeham, L.

Long, V.

Waverley, V.

Lucas, L.

Westbury, L.

Lucas of Chilworth, L.

Wharton. B.

Lyell, L.

Whitelaw, V.

McColl of Dulwich, L.

Wilberforce, L.

McConnell, L.

Wolfson, L.

Mackay of Ardbrecknish, L.

Wynford, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Young. B.

Zouche of Haryngworth, L.

Resolved in the negative, and Motion disagreed to accordingly.

Chemical Weapons Bill
6.48 p.m.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, I

1365
have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Chemical Weapons Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
I beg to move that the Chemical Weapons Bill be now read a second time. The Bill will enable the United Kingdom to ratify the Chemical Weapons Convention which seeks to rid the world of chemical weapons. United Kingdom ratification will help to bring forward the date on which the convention will enter into effect. This is a measure which I am confident is supported by all political parties and by all noble Lords.
Chemical weapons are not weapons of the past. They are weapons of mass destruction and they still pose an awful threat. Nerve agents many times more deadly than the chemicals used in the First World War are held by some countries and are sought by others to add to their arsenals. It is a threat that we must seek to eliminate. The Chemical Weapons Convention offers the promise to prohibit chemical weapons globally and to stop proliferation. This legislation would enable the United Kingdom to become one of the founding state parties to the convention.
The convention, which the United Kingdom signed on 13th January 1993, is the fruit of some 20 years of difficult negotiation. It is the first treaty to provide for a verifiable worldwide ban on an entire class of weapons of mass destruction. The United Kingdom, which no longer possesses any offensive chemical weapons, has played an active and major part in support of the treaty throughout the negotiations. This is a good treaty and is one we support fully; 160 states have signed the convention and I hope that others will sign in due course.
The convention prohibits the acquisition, development, production, stockpiling, retention, transfer and use of chemical weapons and requires their destruction. It bans military preparations for the use of chemical weapons and assisting others to do those things. A key element of the convention is that it requires all existing stocks of chemical weapons to be destroyed together with the facilities used to produce them. Each country must forbid its citizens from undertaking any activity which is prohibited by the convention. The convention rightly addresses not just actual chemical munitions and prepared agents, but also the chemicals used in their manufacture.
To check that states are complying with the terms of the convention, and to provide mutual assurance that there is no longer a threat from chemical weapons, the Chemical Weapons Convention provides a powerful verification regime. It is unprecedented in its extent. Its effective operation will provide assurance that the threat from chemical weapons has been removed.
The verification regime contains three key elements: declarations, inspections and trade controls. Declarations are required by each country periodically in relation to companies and others using chemicals of concern. Requirements are graded according to the threat the chemicals pose. Chemicals listed in the three
1366
schedules to the convention must be declared and absolute limits are imposed on the production and stocking of some of them. Sites producing a fourth category of chemicals known as "discrete organic chemicals" must also be declared if their production level rises above threshold levels. Unfortunately, many of the chemicals which might be used for chemical weapons also have common industrial applications. The requirement to make declarations on activities in chemicals of concern is a significant deterrent to potential proliferators.
Inspections will be undertaken by an international inspectorate based in the Hague. There will be two main types of inspection: routine inspections will check accuracy of the declarations; and "challenge inspections" which will be undertaken at short notice, 12 hours, at any site where there are grounds for suspecting it is in breach of the convention. Challenge inspections can be requested by any state party.
Trade controls will be imposed progressively. Initially, trade in the most toxic chemicals—those in Schedule 1—will be controlled, and Schedule 2 chemicals will be controlled after three years. Existing trade controls cover many of the trade control requirements of the convention. Others can be implemented using existing legislation and there is no need for them to be implemented through the Chemical Weapons Bill.
Clearly, the declaration and destruction of existing stocks of chemical weapons and of chemical weapons production facilities must be verified. In addition, the convention provides for controls on chemicals which can be used for chemical weapons purposes and on their precursor chemicals in order to prevent the reintroduction of chemical weapons.
A new international body, the Organisation for the Prohibition of Chemical Weapons, will be set up when the convention enters into force to undertake its implementation. In particular, its Technical Secretariat will provide the inspectors responsible for carrying out the verification activities which I have described.
The convention will come into force six months after 65 signatory countries have ratified it. So far, 47 have done so; 28 of those ratified during the course of 1995. We estimate that the convention is likely to enter into force towards the end of this year. As yet the key signatories of the United States and the Russian Federation have not ratified. I need hardly say that it is vitally important that they do so as between them they hold some 90 per cent. of the world stockpile of chemical weapons. I am pleased to be able to inform your Lordships that both are committed to destroying their stockpiles and intend to become full members of the convention. The UK will play its part in encouraging them to ratify the convention quickly.
In the meantime, a preparatory commission is working in the Hague to develop the many detailed arrangements for implementation so that the time before entry into force is not lost. We are playing an active part in that work.

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Each state party to the convention is required to establish a "national authority" to act as the focal point for the operation of the convention in that state. In the UK, the national authority will be the Department of Trade and Industry.
In preparing the legislation now before the House, the Government have undertaken extensive consultation with industry, academia, and research bodies. I am pleased to say that industry has been involved through all the stages of implementing the convention and during its negotiation. Further, industry supports the convention.
My department issued a discussion document last January. A Bill was subsequently issued in draft in July for consultation. The purpose of that consultation was to explain to those affected, not just those in the chemicals industry, the requirements of the convention and to help them to prepare for its implementation; secondly, to seek industry's views on points in relation to declaration procedures; and thirdly, to seek views on our planned approach to implementation in the United Kingdom.
The key messages in response to the consultation were that unavoidable burdens must be minimised; that industry and others need help in dealing with declarations and inspections; that strict measures are needed to preserve commercial confidentiality; and that the operation of the DTI national authority must be seen to be effective.
We have sought to address the concerns expressed during that consultation. In some cases this has resulted in provisions in the Bill. In other cases, concerns have been addressed in other ways. For example, commercial confidentiality is protected through strict rules laid down in the convention for the handling of sensitive information by national authorities and the international organisation. We shall insist that the rules are strictly maintained. The DTI has a good record of protecting commercial secrets, but to address concerns about protection of commercial proprietary information the Bill makes provision for giving statutory protection to information collected as a result of the Act or the convention.
A second example is that the Bill provides that the DTI national authority will issue an annual report about its activities and the operation of the Act. This will help to make its work more transparent and enhance proper parliamentary scrutiny. Thirdly, my department is committed to making the declarations process as easy as possible and will provide assistance to sites being inspected.
Perhaps I may make it clear that the process of consultation will continue once the convention is in operation. The national authority will need advice from a wide range of sources on a broad spectrum of issues in order to maintain the effectiveness of its operations. This advice will best be obtained in some areas through formal committees and in others through less formal bilateral contacts.
Perhaps I may turn briefly to the provisions of the Bill. I must start by making it clear that this is not a convention about governments only. Article VII of the
1368
convention requires us to forbid both individuals and legal entities to undertake any activity prohibited to a state party and we are required to enforce that through penal sanctions. I therefore make no apology for the inclusion in this Bill of the new powers and regulations necessary to enable the Government to honour the United Kingdom's obligations under the convention.
Although Notes on Clauses were made available in the Library before Christmas, perhaps I may briefly outline those clauses. Clauses 1 to 3 prohibit chemical weapons. Clauses 4 to 10 set out procedures for the identification, and, if necessary, the seizure and destruction of chemical weapons. Clauses 11 to 18 set out procedures for the destruction or alteration of any facility which may be identified as a chemical weapons production facility.
Clauses 19 and 20 provide for the very toxic chemicals contained in Schedule 1 to the convention to be controlled through the issue of licences.
Clause 21 enables the Secretary of State to require information where he suspects an offence under the Act has been, or is being, committed.
The convention requires the UK to make declarations to the international organisation in the Hague of its activities in certain chemicals. Clauses 22 and 23 enable the Secretary of State to obtain the necessary information.
Clauses 24 to 28 make the provisions needed for inspections under the terms of the convention to be successfully carried out.
Clauses 29 to 31 contain provisions relating to offences, such as powers to enable investigation where an offence is suspected, a power for a court to order forfeit an object connected with an offence, and restrictions on the initiation of prosecutions.
Clause 32 provides statutory protection for information provided under the Act or the convention.
Clause 33 requires the Secretary of State to issue an annual report to Parliament on the operation of the Act.
Clauses 34 to 39 contain various provisions, such as that service personnel committing any of the most serious offences be tried in a civil court rather than by court martial, the power to amend the Act consequent upon any amendment to the convention, and that the Bill binds the Crown, subject to certain qualifications.
I hope that I have signalled sufficiently clearly the Bill's ambit. I do not propose to elaborate further. As I said at the outset, it would seem to me that all rational beings would warmly support not merely the convention but its implementation in the UK through this legislation. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Fraser of Carmyllie.)
7.1 p.m.
Lord Peston: My Lords, I thank the Minister for his clear exposition of the Bill. On behalf of the Official Opposition, I must say immediately that we welcome this important piece of legislation. It would not be an exaggeration to say that the Convention on the

1369
Prohibition, Development, Stockpiling and Use of Chemical Weapons upon which the Bill is based is vital for global security.
Of course, my interests are industry and economics. I have no expertise in foreign affairs or armaments. But we all know only too well that the possibility or alleged use of chemical weapons by nation states or terrorist groups is never far from the surface of our concern. The Gulf War, Iraq's treatment of the Kurds last year, terrorist attacks in Tokyo and recent reports from Bosnia are all evidence of that.
It is vitally important for the UK to uphold the convention to which we are a signatory. It is also highly desirable—I think I understood the Minister to be saying this—for the UK to be among the first 65 ratifying signatories to the treaty for reasons which the House well knows and which were outlined partly in what the Minister said and in other documents.
As your Lordships will recall, the UK signed the convention on 13th January 1993—fully three years ago—following the public commitment of Her Majesty's Government at the London G7 economic summit which had occurred some 18 months previously. Our commitment involves the UK being an original party to the treaty.
If I have it right, the convention will enter into force once 180 days have elapsed following 65 signatory states ratifying the convention and depositing their instruments of ratification with the UN Secretary-General. Again, I am not sure whether I missed what the Minister said, but my advice is that 47 of the original signatory states have deposited their ratifications. They include many EU member states—France, Germany, Italy, Spain and the Netherlands—together, I am very happy to say, with Commonwealth states such as Australia, Canada and South Africa.
The Minister mentioned the USA and Russia and their progress towards ratification, which is of course of enormous importance. There has been some uncertainty in those countries, but I believe I am right—I understood the Minister was confirming this—that the presidents of both those countries are now pushing hard for ratification. In that connection, I read some stories in a Sunday newspaper to the effect that the USA is finding some technical difficulties in disposing of its existing stockpile. I hope that that is not some kind of signal that something will go wrong with the ratification of the convention in that country. We would normally expect the USA to take a considerable lead in a matter such as this.
To revert to the UK, I believe that we would all agree that there would be disadvantages, even damage, caused to us if we were not among the ratifying signatories by the time the convention comes into force. I am sure that that is what the Minister is saying. My initial remark was that the Official Opposition are determined to see that our role is to help rather than hinder that.
I believe that I am correct in saying that, were one not to do so, one would suffer some adverse trade consequences. We should he obliged to remain outside the decision-making structures of the convention. The
1370
nationals of a country that did not ratify would not be employable as inspectors or for any of the 450 jobs which the treaty will create.
Again, to go over some of the technical ground, there will be a body called the Organisation for the Prohibition of Chemical Weapons which is to be based at the Hague and which already has a provisional technical secretariat. As I understand it—I hope the Minister will confirm this—an offshoot of the preparatory commission for the convention has the important tasks of watching progress towards ratification and hiring and training a large international corps of inspectors to be ready by the time the treaty comes into force.
Again, my advice is that the chief executive of that provisional secretariat is British, as are other key officials. Assuming that I am right, I must say that I am very pleased to hear that, because it is a reflection of the UK's important role during the long and arduous negotiations on the convention. To repeat, it would therefore be unthinkable for us not to be among the first 65 ratifying signatories. Again, to repeat almost ad nauseam, I interpret the Minister as saying that he feels a sense of urgency now and that this will go ahead with no delay.
The matter looked as if it were in abeyance at one time. That concerned me, because I believe it was presaged in a much earlier Queen's Speech. Your Lordships' House will now act with dispatch, but I should emphasise that despite the urgency of the timetable there is time to consider the Bill properly, thoroughly and constructively. I hope to make some contribution. I have in mind one or two possible improvements that we could deal with in Committee. When the Bill was dealt with in another place, similar improvement occurred.
I pointed out my ignorance of these matters when I started. I should now like to pay a particular tribute to those who advised me, notably the Royal Society of Chemistry, which has played a most helpful role in providing invaluable background briefing not just to me but to other noble Lords for our debate. I relied heavily also on Dr. Julian Perry-Robinson who is a distinguished academic of Sussex University. Without that kind of advice from a distinguished body such as the RSC many of your Lordships who lack the right scientific credentials and an understanding of the convention would he unable to deal with these matters. It is a pleasure to pay tribute to such a non-partisan professional body as the RSC. Oddly enough, at least three of its past presidents are Members of your Lordships' House but I do not see any of them in their seats at the moment.
It is important for the scientific community to assist Parliament when it is considering scientific subjects. I have to point out at the other extreme that, vital though this is to chemical firms within the chemical industry—I believe they have been in touch with the Minister—not one chemical firm has felt it worth while to get in touch with me, although they are one of our country's major industries. I also say with regret that we know that chemistry is one of the few subjects in our

1371
universities which still remain world class, but I have heard nothing of this subject from the CVCP. I suppose the heads of our universities these days are too busy running them as businesses to remember that they are supposed to be academic institutions.
The Government considered seriously at least one important amendment tabled in the other place, namely the provision of an annual report to Parliament. I was delighted that the Government responded to that initiative, which was pressed for by the Royal Society of Chemistry. However, I shall press again a matter with which the Government disagreed in the other place. It is the need for an advisory structure stronger than the Minister has outlined. I listened to him tonight and I shall listen to him again in Committee. However, for the sake of transparency, and agreeing that we must identify a national authority—in this case that will be the DTI, which will be the lead agency for the enabling legislation and all the associated matters—the DTI will need an advisory group of a formal kind.
I do not believe that that suggestion is controversial and I do not believe that a formal advisory group will give rise to controversy. It would be of practical help, and I am sorry that the Bill is totally silent on that point. The Ministry of Defence has an advisory mechanism in connection with chemical work at Porton Down. I believe that we can build on that and therefore we would not be breaking new ground. I shall press that matter and the issue of transparency when we sit in Committee.
Another matter to which the Minister referred is the licensing arrangements. I always have difficulty with the correct use of grammar there, but I believe that it is correct to say that another matter "is" the licensing arrangements. These are extensive. That does not fit grammatically either but I shall reflect on it when Hansard is printed. The Bill goes further than the convention in its adoption to the licensing system in the sense that the convention does not ban academic research involving the use of toxic chemicals, as in Schedule 1 to the Bill. It positively permits it under Article II(9)(a). That is one part of the convention that most impinges on industry and the academic community.
However, the Bill does ban research, subject to certain strict conditions which are set out in Clauses 19 and 20 which create the extensive system of licensing. Perhaps I may say immediately that I agree that, if we err at all, we should err on the safe side. We are concerned with chemistry, and the chemical industry and the nature of the chemical compounds that are used. We have a serious balancing problem to safeguard academic research in chemistry, which in this country is world class, but not to make it possible for potential criminals to assemble lethal or potentially lethal mixtures.
Perhaps I may draw to your Lordships' attention a most interesting and important article in last Sunday's Mail on Sunday, although I am sure it has been noted already. The article mentions my name, which is unusual. I was concerned about what was reported, in
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particular because it appears to throw into serious doubt the effectiveness of the chemical industry's own code of conduct which is designed to minimise the risks of such chemicals getting into the wrong hands. I do not wish to labour the point, but it appears that two different companies provided the Mail on Sunday&—which was posing either as an individual or as a bio-research centre—with thiodygycol and thionyl chloride. The point is that those chemicals are useable or involved in the manufacture of mustard gas. It appears that in supplying those chemicals the firms concerned breached the code of conduct and showed no sign of being suspicious about anyone wanting them. I raise that matter partly to congratulate the Mail on Sunday on what it did in exposing the problem and to ask the Minister whether he can comment upon that. If such an incident can take place, it is a serious problem.
Having said that, we must not go to the other extreme whereby those who have wholly legitimate research purposes will not be able to obtain chemicals, albeit in small quantities, which are vital for their work not only in chemistry but in related subjects such as biology and medicine. Perhaps I may refer to a great deal of the research which is chemical in nature on the neuro-chemical transmission process; that is, brain research and so forth. It is vital that we rid the world of chemical weapons, but we do not want to rid the world of the science of chemistry.
There is a great deal to be said on the issue of licensing and of the enormous powers granted to the Secretary of State as regards varying and revoking licences. However, at this late hour I believe that they are matters to be raised in Committee. I shall not press them on your Lordships tonight.
I wish to raise two further matters. First, the Minister said that he had engaged in widespread consulting, and I am sure that he must have done so. However, I wonder whether there has been enough publicity on what the Bill is all about and whether the potential has been sufficiently publicised. My guess, which relates to my point on the CVCP, is that, if we were to take a random sample of chemistry departments and ask them what they thought about the Bill, the majority would say, "What Bill?". If we were to say, "There is a problem that you might have", I guess that they would ask, "What problem'?". When proceeding with legislation that cannot he a satisfactory state of affairs.
In turning to my final point I know that I am in a minority. Noble Lords are aware of my obsession with the question of delegated legislation and all of that. There is an enormous amount of delegated legislation in the Bill. Your Lordships' Select Committee looked at the Bill and, even though Clause 36 is a Henry VIII clause, and seems to me to be a pretty extreme one, it said that it was willing to live with it. I am beginning to think that I am becoming an obsessive in my concern about such things. I would never criticise your Lordships' committee, but I am doubtful about that clause. I am particularly doubtful about whether the so-called negative procedure for dealing with such

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matters will do in this case, although I agree that it is entirely precedented. My view, and I quote the Royal Society of Chemistry, is that:
"The guiding principle which should apply is that Parliament should have the right, and the maximum possible opportunity, to consider and debate any proposed changes to this Act, before they are implemented".
I have spoken longer than the Minister, for which I apologise, and I do not wish to delay your Lordships further. I merely repeat my point that, although I shall raise three or four serious issues in Committee, my main objective is precisely that of the Minister—to get the Bill on the statute book as quickly as possible and for the United Kingdom to be a ratifying country as rapidly as possible.
7.18 p.m.
Lord Mayhew: My Lords, this is a good Bill and my noble friends would wish me to welcome it and to express the hope that we shall soon be ratifying the convention. As the noble Lord, Lord Peston, said, there was a strange delay in bringing it forward. It is three years since we signed the treaty and during that period we on these Benches asked the Government to explain the delay. We were not reassured when we were told that there was a shortage of parliamentary time. We found that very hard to believe. Nevertheless, in retrospect it is clear that thorough, successful consultation was carried out and we are in time to ratify the convention before the expiry date.
I followed carefully what was said by the noble Lord, Lord Peston, about improving the Bill in Committee. I believe that my noble friends are of the same thinking. The noble Lord mentioned the fact that the Government yielded in Committee in another place on the question of an annual report. Personally, I should like to go further: I should like to see the Government agree to statutorily lay down a minimum content for that annual report; otherwise, it may lose much of its value. There is also more than one view on the question of an advisory committee. We shall listen carefully to what the Government say on that point.
It is certainly a little odd to note that, apparently, there will be only seven servants in the ministry concerned with monitoring and verifying the convention. Of course, seven is a magical number, but it seems very few for the huge task and responsibility which the Government will face. Surprisingly—and, I think, on the whole unfortunately—the legislation is presented as a DTI Bill. That is not in any way to disparage the able Ministers of that department who have presented it in both Houses. It seems to me that it should have been a Foreign Office Bill. I believe that we have become a little introspective about the subject. We seem interested only in perfecting the system of control in this country.
However, there are much wider and more difficult questions arising from the Bill and the convention. It would have been good to have had the Government's view on them. We are told that so many countries have ratified, so many have signed and that so many will ratify. But, what will happen in a few years time? There will he three groups of nations. The first group will have ratified and will have the administration, as we have,
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to ensure control. That group will in fact contain those countries which would not dream of using chemical weapons, with or without a convention.
The second group of countries will be those which will have ratified but which will not have the strength and integrity of administration to ensure control. For example, one thinks of the Soviet Union and many other countries. The third group of countries will be those which will have resisted international pressure to ratify. I should like to have heard the Government explain what measures they propose to ensure that the non-signers, the non-ratifiers, are sufficiently pressurised to make the convention universal. That is a very key point. How do the Government propose to deal with the situation?
Countries which sign the convention are, of course, renouncing their ability to deter an attack by chemical weapons through holding such weapons themselves. I have heard it argued that the reason why Hitler did not use chemical weapons in World War II was the fear of retaliation by such weapons. Well, the Government—and, indeed, both Opposition parties—agree that we should not hold chemical weapons in order to deter attack by such weapons. That is something which requires thinking about. It contrasts, for example, with the attitude of the Government and of the Opposition parties on nuclear weapons.
We are agreed that we should hold nuclear weapons in order to deter nuclear attack by other countries. There is a strange inconsistency in that respect. It cannot be argued that chemical weapons are crueller or more destructive than nuclear weapons; indeed, they arc not. Nuclear weapons are infinitely more destructive. They are crueller and more destructive of property than chemical weapons. It cannot be argued that chemical weapons are easier to detect and prevent than nuclear weapons. On the contrary, nuclear weapons are very much easier, or much less difficult, to detect and control internationally than is the case with chemical weapons. Why then do all of us on both sides of the House say, "Yes, we should hold nuclear weapons to deter nuclear attack; but, no, we should not hold chemical weapons to deter chemical attack"?
It is possible that the Government think that nuclear weapons can be used to deter chemical attacks. If so, they have never said so; and, indeed, conspicuously did not say so at the time of the Gulf War when it would certainly have been relevant. That is certainly not the policy of my noble friends.
I suppose that, logically, the only answer is that we should work urgently for the international suppression of all weapons of mass destruction, accepting as inevitable that that will take a long time; that it will involve every country in a marked loss of sovereignty; and that it will, from time to time, expose governments who are peace-loving and scrupulous to threats from governments who are neither. For all I know, that may he the Government's policy; or, indeed, they may have no policy.
Therefore, as I said, I should have liked the Foreign Office to handle the matter. In that way we could have been shown the broader thinking of the Government on such important and difficult questions. In the meantime,

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we welcome the convention which, among its many merits, has the advantage of helping progress in eliminating biological weapons. In that field, as in the field of chemical weapons, Britain has played a distinguished leading part. I believe that we should pay tribute here to our old colleague Lord Mulley who played a distinguished part in securing the biological weapons convention. If we can control and verify chemical weapons, that will help enormously those who are now struggling to do the same for biological weapons.
I do not wish to cover or repeat what the noble Lord, Lord Peston, said on points which I believe will be more appropriately dealt with in Committee. Similarly, I do not ask the noble and learned Lord to answer the very big and difficult and controversial questions that I have raised. Nevertheless, the Government must face up to the matter. They must decide what they will do about the non-signers, the non-ratifiers.
Are the Government content that well behaved, civilised governments should be exposed to threat from those who refuse to ratify and either maintain a chemical weapons capability, or at least maintain the capability to build a chemical weapons capacity? That is a very important question. I roughly sketched out what might be a logical answer, but I rather regret that, in handling the Bill, those wider considerations have not been taken into account.
7.28 p.m.
The Lord Bishop of Chelmsford: My Lords, I too welcome the Bill warmly. Its immediate purpose is to enable the United Kingdom to ratify the convention in time to be an original state party and also to play a full part from the outset in the proposed organisation for the prohibition of chemical weapons, which will provide the international inspectors and supervise the working of the convention. But, in the longer term, it will also provide a permanent legislative framework to enable this country to uphold the convention and ensure that everyone co-operates so that it is fully implemented by the United Kingdom in perpetuity.
The Churches have long encouraged the negotiation of a chemical weapons convention. It is now almost 20 years since a deputation from the British Council of Churches visited the Foreign and Commonwealth Office to discuss ways of promoting the UK Draft Convention of 1976. That draft convention was only one of the initiatives taken by the United Kingdom over the years towards the goal of a world-wide, verifiable treaty ban on chemical weapons.
That goal had to be in the interest of a country which no longer possessed chemical weapons but felt under threat from those possessed by others. Our national interest coincided happily with the wider interest of the international community. So the eventual CWC took shape, painstakingly crafted and negotiated, and in 1993 the United Kingdom was one of the original signatories. Now this Bill opens the way to ratification. We are happy with its approach. In particular we applaud the
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readiness of the Government to improve the content of the Bill in the light of consultation over successive drafts. It has got better at every stage.
There remains, however, one major area of concern which has already been mentioned by the noble Lord, Lord Peston. Will the Government accept that an advisory committee should be added? Without this addition the Bill will be incomplete because it leaves the national authority for the CWC too isolated from key constituencies of support and expertise in science and in industry. An advisory committee is needed with the force of law; it is not enough for Ministers to say that naturally they will seek advice in various quarters which should remain unspecified in the Bill. The Bill should ensure that Parliament receives annual reports from the advisory committee, as well as from the national authority.
An advisory committee, I submit, would be a safeguard against the Act being used to interfere with legitimate chemical activity unrelated to the CWC—if that is a risk. Equally it would be a safeguard against the national authority proving insufficiently active and vigilant in its proper, preventive role—if that indeed is a risk. Both eventualities may be remote; let us hope so. But it is wise to take precautions and this is the simplest way available. The statutory existence of an advisory committee would be likely to hold the national authority to a steady course. It would help to ensure that the national authority continued to do its job; no more, no less. It would enhance the parliamentary accountability and transparency of the whole process of CWC implementation in the United Kingdom. It would also help to keep intact that broad unity of purpose in support of the convention which has been such an impressive feature of our public life.
Over many years British people in science, industry—and, I think, in the universities—and not least the Churches, have encouraged successive Ministers and officials first to secure a good convention and then to apply it. It belongs to us all. For let us remember that it is the United Kingdom that will come under the full set of international legal obligations when the convention comes into force; and the United Kingdom, not just the United Kingdom Government, is, we believe, ready to take on that solemn commitment and to implement the convention wholeheartedly. I believe that it is an advisory committee, representative of that wide-ranging spectrum of support, which can best express this permanent commitment and channel British experience and expertise into lasting, practical involvement, so that we can carry forward this great enterprise and, as a nation, make the convention work.
7.34 p.m.
Lord Jenkins of Putney: My Lords, I find myself in the unusual position of agreeing absolutely with everything that everyone has said. Perhaps that is going a trifle too far; I agreed with most things that everyone has said. That is an unusual occurrence for me. I believe that the Government have performed well on this issue. They have experienced difficulties and they have not overcome all of them. Noble Lords who have followed this matter throughout are aware of points that need

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further exploration. However, having said that, this is an area where we can offer the Government praise. It is quite nice to be able to do that.
Lord Peston: And unusual!
Lord Jenkins of Putney: My Lords, it may be unusual but it is a greater pleasure for that. There are, however, certain aspects of the Bill which worry one, although it gives me pleasure to reflect on what has been achieved. It occurred to me—I think, reasonably—that the methodology which has achieved success here might conceivably be adapted to deal with other matters, particularly as regards the means of mass destruction. The example of what has been done in the area that we are discussing ought to be followed in the nuclear field. That has never happened. All other kinds of methodologies have been tried but we have never achieved a convention, and the ratification of a convention, in the nuclear field. I hope the methodology that has been used in the area we are discussing will at least be considered as regards the nuclear field. I believe that everyone would agree that the dangers inherent in the nuclear field are even greater than those which we face in the area we are discussing.
With that in mind, I had the intention of putting down a provision which all your Lordships would recognise as a probing amendment in order to sound out the Government as to whether they thought that lessons could he learnt from their experience in this area which might be adapted and used in the other area I have mentioned. One cannot properly propose such a course of action at Second Reading; it is a matter for the Committee stage. I devised an amendment for that purpose. Of course such an amendment would not be pressed to a Division; I would not even vote for it myself in such a context. However, such an amendment is often used in order to explore the Government's thinking on a matter. Indeed I believe that an amendment of this kind is one of the most useful tools of the Committee stage.
However, I committed a grave error in letting the Public Bill Office know of my intention before the event. I was a little surprised to receive a note from the clerk who was concerned with the matter which stated that he could not accept the amendments because they were not relevant. My first amendment sought to amend the Title of the Bill—for the purpose of the probing discussion—so that it became the "Nuclear and Chemical Weapons Bill". I envisaged withdrawing the amendment after the exploratory discussion had taken place and that would have been the end of the matter as we should have had the necessary discussion.
However, the clerk—quite properly from his point of view—said that the amendment was not relevant to the Bill as this is a Chemical Weapons Bill. However, the Bill also concerns one of the means of mass of destruction. Therefore it is relevant to compare what is achieved in this Bill with what has been done in other fields and ask ourselves whether we can learn any lessons from the Bill. One can follow such a course ideally in the way I have described; indeed, one cannot do it in any other way. If the Government were to say
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at this point that they had no objection to such a discussion, nor to informing us about one or two points which might be to our advantage, the technical objection which, quite correctly, has been raised could not, I believe, be raised now. I believe that, if I had tabled the probing amendment instead of bothering the clerk about it, it would have been dealt with without any problems.
I hope that, when the noble and learned Lord, Lord Fraser of Carmyllie, replies to the debate, he will say that he does not mind being probed on this question in the form of an amendment, in the full knowledge that, after the discussion has taken place, the amendment will certainly be withdrawn. What else could I do with it except withdraw it? Under the circumstances that I have outlined, the clerks may agree that there is no objection to putting down this probing amendment.
7.40 p.m.
The Earl of Halsbury: My Lords, this Second Reading tonight finds me in a rather nostalgic mood. Some 70 years ago, not yet having obtained my majority, I sat on the steps of the Throne listening to my father discussing the dangers of chemical warfare on a Motion arising from an accident in a chemical factory in Germany. The Leader of the House in those days, the great grandfather of the noble Viscount who leads our House today, as I remember, took my father to task for alarming the public mind. But my father was unashamed about that because he relied on a model of the gassing of a square mile of central London that I had built him while still a schoolboy. It was a lovely model. I knew nothing of Reynolds numbers or the numeracy of turbulent phenomena. I should love to describe to noble Lords how I made the model and how it worked, but time is late and your Lordships' time very valuable. We have another debate to follow, so I forbear to do so.
My father's attitude was very much that of Lord Fisher, the first Sea Lord before World War I: hit first, hit hard and keep on hitting. It is only the fear of retaliation which keeps the peace. That was a point of view well expressed by the noble Lord, Lord Mayhew. However, it was also expressed in the post-nuclear age by Robert Oppenheimer, the chief executive of Los Alamos, who said that the United States and the Soviet Union were like two scorpions in a bottle, each anxious to sting but each terrified of being stung.
The construction of chemical weapons was a blot on the chemical industry; and the chemical industry is only too anxious to remove that blot by promising full co-operation in the execution of this Bill. Compared with mechanical engineering, the chemical industry is—if I may so call it—a hit sneaky. You cannot take a motor bicycle to pieces and reconstruct it as a sewing machine or a typewriter. But that is what chemical operators are continuously doing, for everything which goes on in the way of a chemical reaction is a disassembly of a selection of some of the 92 elements that exist, and it is reassembly in another form.
That is why inspection of what goes on must he an essential part of chemical weapons control. As I said, the chemical industry will co-operate in the necessary

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inspection, subject to one condition only. There must be confidentiality of peaceful processes under development by competitors for the future.
In praising the willingness of the chemical industry to co-operate, I must also acknowledge, as the noble Lord, Lord Mayhew, said, the help of the Royal Society of Chemistry, of which I have the honour to be a fellow, and in particular its executive officer for parliamentary affairs, Mr. Stephen Benn, who has been most helpful in providing us with our various briefs.
Broadly, I think that the convention is right. We must patrol ubiquitously for toxic chemicals. We must also patrol for the precursors of those chemicals. What about the precursors of those precursors? I think that that would be going a little too far—we should be trying to inspect everything under the sun. Owing to the volatility of chemical variability, when it comes to tracing compounds back to their ultimate sources—they are usually hydrogen, oxygen, nitrogen—we might, without very great care, find ourselves having to patrol people for the production of water.
A point of principle is this. Who will help run the convention? The question of an advisory council has been raised by the right reverend Prelate and others. All I can say to that is no, no, no. I know how advisory councils work; I have been on them. What we want is a Select Committee of both Houses of Parliament with a scientific adviser in attendance to sort out any points that are unclear, technically as regards chemistry. I could easily recommend the secretary of the science policy advisory committee at Sussex University, who has drafted many of the documents which have reached your Lordships.
In scrutinising the Bill, I considered its Long Title and early clauses. A Bill proceeds from the general to the particular. The most general aspect of a Bill is its Long Title. We postpone the title of the Bill in Committee so that we can raise matters that are not strictly speaking covered by the Long Title before settling what the title should be. As regards one or two items in the early sections of the Long Title, I should like to propose counter examples to the parliamentary draftsman. Prior to proposing them as amendments in Committee, I should like to ask him where we stand on the different counterparts. Otherwise I believe that we may end up looking for precursors to precursors in a rather frustrated spirit.
I could take time by giving examples of some questions that arose in my mind. However, I simply ask the noble and learned Lord to give me facilities for talking to the parliamentary draftsman, possibly with my own scientific adviser.
I wish the Bill success. I support it in all its particulars. Such criticisms that I have arc purely friendly criticisms.
7.48 p.m.
Lord Fraser of Carmyllie: My Lords, perhaps I may respond to the noble Earl by saying how much we welcome his reminiscences. It has been a salutary reminder to your Lordships of the time the issue has
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been under discussion. I am pleased that I now have the opportunity to introduce to your Lordships' House this Bill which allows there to be a proper control in the United Kingdom within the wider context of the convention to which I have already made reference. The noble Earl's expertise in these matters is always welcome in your Lordships' debate.
I thought that the noble Lord, Lord Mayhew, was a little unkind in suggesting that this matter might have been more appropriately handled by the Foreign Office. Certainly as regards the wider issue of the convention, and what was originally to be contained in it, I can see some force in that argument. But after a long period of gestation—some 20 years—it is important for Parliament to introduce into the law of the United Kingdom provisions which will enable us to ratify that convention. It is a critically important convention, being the first treaty to provide for a verifiable world-wide ban of an entire class of weapons of mass destruction. It is very important. I very much hope that we shall move swiftly towards a world-wide ratification of it. But clearly in such matters, where sovereign states are involved, they cannot be compelled to ratify. However, one hopes that at the very least with the United States and Russia concluding their ratification, hopefully in the relatively near future, others will be shamed into joining in. There are obvious states where there will be difficulty in securing ratification and compliance, as the noble Lord will appreciate. However, if nothing else, it is worth recalling the evidence of the Chemical Industries Association which I understand was provided to this House and to another place. It stated:
"If the United Kingdom failed to be one of the 65 signatory states, this would have a serious effect on the trade relations of many United Kingdom companies that trade in chemicals".
So even if that is nothing more than a practical argument, I hope that some states will realise why they should comply.
The noble Lord, Lord Peston, put to me for confirmation a number of points on the facts and timings. His understanding of the position and the figures entirely coincides with mine. He asked whether we needed more publicity for the Bill. I should be delighted to give it as much publicity as possible, but we are alive to the point that he made. We are considering what further publicity will be appropriate when the Bill passes into law, as I hope it will.
One matter with which both he and the right reverend Prelate were concerned, as was the noble Earl, is whether there should be not only an advisory committee but whether it needed to be established on a statutory basis with the express provisions within the Bill. Our view is that the national authority will need advice from many sources. It is doubtless a matter to which we shall return in Committee, but we think it is mistaken to believe that the authority will obtain all the advice it needs from a single committee, however expert that committee might be. We will need advice on the implementation of the convention in the United Kingdom, how the burden which the regulations place on business and academia might be minimised and how compliance monitoring arrangements of the national authority can he made more effective. For those areas

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of advice we intend to establish an advisory committee. We hope that a single committee will be able to provide the advice that the national authority will need on those subjects. However, it is a new regime and we must be able to modify the arrangements in the light of experience.
I mention one particular matter for your Lordships to consider before we return to the Bill at Committee, if we do so. There are difficult questions about commercial confidentiality. Information coming from commercial research might not readily reach the type of advisory committee that some have in mind. One would not wish to be in a position where those who held that information were not prepared, for fear of disclosure, to bring the national authority along with them.
The noble Lord, Lord Peston, asked a number of questions relating to what he understood might be technical problems in the United States. My understanding of the position is that the destruction of existing chemical weapons is complex, expensive and dangerous. It is no surprise that a country such as the United States, with an enormous stockpile, may face technical difficulties. But we believe that there is no reason to doubt the ability of the United States to fulfil its obligations under the convention.
The noble Lord was also concerned that there might be an effect on research, the point having been raised in briefing that he received. We have already announced that we plan to introduce a system which will considerably reduce the burden of licensing for small users of the Schedule I chemicals. I stress that those chemicals are the most toxic and include the most potent chemical weapons agents. I do not believe that it would he right to have no controls at all on the chemicals. We propose to issue an open general licence which will enable research using the chemicals and in quantities of up to five grammes a year. Possession and use of the chemical within the limits will be subject only to registration with the national authority. I trust that that will reduce the burden on small users to what we believe would be the bare minimum.
Finally, I was asked a number of questions by the noble Lord, Lord Peston, on the article that appeared in the Mail on Sunday and perhaps I may comment on it. 'The Bill is intended to implement a convention which addresses the problem of chemical warfare. That is war between states. It is not intended to deal with terrorism. Measures to counter terrorism are the responsibility of the Home Secretary. However, some of the measures in the Bill—though aimed at implementing the convention—would also help those agencies involved in anti-terrorism. The chemicals procured by the Mail on Sunday are dangerous chemicals, readily enough acknowledged, and as such are scheduled chemicals under the Chemical Weapons Convention. However, those chemicals are also in regular industrial use. Declaration of them is required under the two schedules and the quantities are indicated in the schedules when they have to he declared.
The controls result from the consensus reached during international negotiation of the treaty where it was decided not to have more onerous controls. We have
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signed the treaty and we believe that our task is now to implement its provisions. The Bill does not provide for full-scale licensing of all scheduled chemicals; it would be out of proportion to the threat from chemical weapons in this country which we see as low. However, the prohibition on chemical weapons is not limited by quantities. Any person who was to hold the chemicals other than for a permitted purpose would be committing an offence under the Bill and would be liable on conviction to a sentence of up to life imprisonment. So while the position may be rather different at present, once the Bill is implemented a severe regime would he in place.
Lord Peston: My Lords, I apologise for interrupting the noble and learned Lord. I hope that I understood him, in which case his remarks are reassuring. Is he saying that we would no longer rely on the code of conduct? That is what the Mail on Sunday was seeking to expose. Would there now be a genuine legal basis to prevent what happened occurring again? Would criminal penalties be involved if anything like that happened again?
Lord Fraser of Carmyllie: My Lords, in trying to get through quickly, I may have unnecessarily shortened my comments on the requirement with regard to the declaration and the quantities that can be held. I can expand on it at a later time, if it would be helpful. I was seeking to emphasise what seems to me to be important. It is that anyone who holds the chemicals for other than a permitted purpose would be committing an offence under the Bill. The penalty to which they would be subject is the most severe: namely, life imprisonment.
I would rather not name the chemicals because the Mail on Sunday responsibly declined to mention one of them. The chemicals are subject to strict trade controls. Trading Schedule 1 chemicals with non-state parties will be banned from the date the convention enters into force and after three years in the case of Schedule 2 chemicals. All the most toxic chemicals (those in Schedule 1) are subject to licensing.
A series of questions was raised with me by the noble Lord, Lord Jenkins. I have to deal with an important Bill relating to chemical weapons, but it is not appropriate for me to comment on whether the type of amendment that he wishes to put down is appropriate. That is not my remit. However, I welcome from the noble Lord, Lord Jenkins, and other noble Lords the unanimous indication of support for this important Bill. I therefore commend it to your Lordships.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Family Law Bill [H.L.]
7.59 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.)

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On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord McColl of Dulwich) in the Chair.]
Clause 30 [One former spouse with no existing right to occupy]:
Earl Russell Earl Russell moved Amendment No. 184:
Page 19, line 14, leave out subsections (1) and (2) and insert—
(" .—(I) This section applies if—

(a) one cohabitant, former cohabitant, or former spouse is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving him the right to remain in occupation;

(b) the cohabitant, former cohabitant or former spouse is not so entitled; and

(c) the dwelling house—

(i) in the case of the cohabitants or former cohabitants, is the home in which they live together as husband and wife or a home in which they at any time so lived together or intended so to live together, or

(ii) in the case of former spouses, was at any time their matrimonial home or was at any time intended by them to be their matrimonial home.

(2) The cohabitant, former cohabitant or former spouse not so entitled may apply to the court for an order under this section against the other cohabitant, former cohabitant or former spouse ("the respondent").").
The noble Earl said: In speaking to this amendment, I shall also speak to this group of amendments standing in my name. We now enter on Part III of the Bill, which incorporates the former Family Homes and Domestic Violence Bill approved by this House last Session, having been given the most exhaustively careful scrutiny by a committee chaired by the noble and learned Lord, Lord Brightman. At Second Reading I studied the noble and learned Lord's speech with great care. I regret that he is unable to be present today. That is yet another reason why it is inappropriate to have a Division at the Committee stage of this Bill. I should not wish this matter to be resolved without the advice of the noble and learned Lord, Lord Brightman, if, by waiting until Report, we can have it resolved that way.
There are a string of small changes in this Part—changes introduced since the Bill went through this House last Session—and one large symbolic statement. The effect of these amendments is to cut out two clauses that were inserted to separate the status of cohabitants from that of married people, and in general to restore the Bill to its previous state. I have in front of me the noble and learned Lord's summary of the changes, so I hope that I shall not mislead the House. They are a little technical.
Where there is a cohabitant who does not have a clear legal title to occupy the House, the order to occupy can be renewed only for a period not exceeding six months. There will need to be a certain number of probing, Committee-type exchanges here. I need to understand exactly why it has appeared necessary to the Government to make this change. I need to know exactly what is the ground of the discrimination against the cohabitant—whether it is. as suggested by the
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wording of Clause 36, a moral one, or whether it is a legal one concerning a doubt about the person's status as occupant of the house.
I also have a smaller question, which I hope may be practically addressed. Why can such an order be renewed only once? Let us suppose, for example, that the victim of domestic violence also happens to be disabled, as sometimes happens. Let us suppose that the accommodation is purpose-built. One wonders whether in such circumstances there might be a case for allowing the woman to remain permanently in occupation, as she would have the right to do if she were a spouse. I still need to understand the precise thinking which justifies this distinction. Only then will I be able to address the question as to how far I am, or am not, convinced by it.
The next change that has been introduced relates to where there is a test of balance of harm for the victim of domestic violence to occupy the property. What was previously a duty on the judge to follow the balance of harm test has now been changed into a discretion, allowing the judge to weigh the balance of harm test against a number of other matters, including the financial interests of the party and the interests of the children.
I admit that I speak as a layman and not a lawyer in these matters; but, prima facie, either that change was right, both for spouses and cohabitants, or it was right for neither. Again, I do not understand the basis of the Government's thinking in making the distinction. I shall want to hear an answer to that question before deciding, at a later stage of the Bill, what I want to do in regard to the amendments.
The other technical change is that cohabitants have been deprived of the right to use an accelerated procedure under the Married Women's Property Act. Again, I admit that I speak as a layman, but I have not heard any technical description of the accelerated procedure or of the advantages or disadvantages of using it. Again, I want to understand in a way in which at present I do not, why that procedure should be available to spouses and not to cohabitants.
The change that causes me the most anxiety is the new Clause 36 that has been inserted into the Bill. It states:
"In deciding whether and (if so) how to exercise its power to make an occupation order, or its power under section 35, the court is to have regard to the fact that the parties have not given each other the commitment involved in marriage".
First, that strikes me as a mistaken sense of priorities. However deep an attachment people may have to the principle of lawful matrimony, it is the first duty of the state to ensure the preservation of the Queen's peace. I feel a certain anxiety about the idea that anybody's morals, however bad, should make them less entitled to the protection of the Queen's peace than are other people. After all, even in the old days when there were public executions, people in the custody of the state on the way to execution used to be accorded the protection of the Queen's peace. In 1612 there was an extraordinary case in Spain when a heretic who was being taken to be burnt was set upon by the crowd and suffered 500 stab wounds—hut was rescued by the officers of the state before being burnt. It is a macabre

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story, but I understand the interest of the state in doing that. The monopoly of the right to violence is one of the defining marks of the state. I cannot help feeling that in suggesting that there is a group of people with a lesser right to protection from violence, the state is in danger of abdicating that position.
Secondly, the noble Lord, Lord Habgood, whose absence I much regret and whose return to our debates I very much look forward to—I understand that the noble Lord has not been well and I hope that he is making a good and happy recovery—argued at Second Reading that we should make this distinction because marriage is a public status. But with respect, cohabiting is a public status, equal with marriage.
Yesterday, we approved the jobseeker's regulations. We approved a reference on page 8 of those regulations to benefits going to, "a married or unmarried couple". In social security law that is perfectly normal. It is a public status, recognised through shared finances, shared bank account, joint responsibility for the housekeeping, jointly visiting the children's school to see the teacher, and all the things that married people do together. It is now a recognised status.
The British Academy is generally regarded as a respectable institution. When, over Christmas, it sent out invitations to the presidential reception, it invited fellows to say whether they intended to bring "their spouse or partner". What is respectable enough to be recognised by the British Academy is respectable enough to be recognised by the law of the land. Cohabitation is a public status. Many of us have friends, close relatives and others whom we know extremely well who are cohabitants. For those of us in that position, to have them set aside like this and given a sort of lower status, entitled to less protection, appears offensive.
I perfectly understand, and respect, the view of the those who think that only those who are married in the sight of God are married. It is a perfectly proper view. Those who think that believe that those who, like me—and the noble Lord, Lord Marsh, as we discovered on Thursday—were not married in church, are living in sin. Although it is perfectly proper for them to hold that view, as a matter of normal social courtesy they do not normally impinge it upon me or the noble Lord, Lord Marsh. It seems to me that in handling co-habitants we ought to do it in just the same way as those who believe only in religious marriage treat those who have undertaken a civil marriage. When I look at the actual words of the clause, they have not given each other the commitment involved in marriage.
Thinking of some co-habitant couples I know extremely well, I believe these words to be false. What I mean about the commitment involved in marriage is that determined—indeed, I might almost say, bloody-minded—determination to keep the relationship going in the face of every obstacle, every quarrel and every confusion; that one is simply not going to let go. Its political equivalent is something I observed—to take a small example—in the television appearance of Mr. Stephen Dorrell on the night of the Dudley by-election. It was one of the most impressive television
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performances by a politician that I have ever seen. He simply stuck to his last and was not letting go. That is what I understand by the commitment involved in marriage.
In my observation, co-habitants give just as much or as little as people who have been through the marriage ceremony. Indeed, what really amuses me, looking at my friends who decided to co-habit about 30 years ago, is that some of them believed that they were striking a blow for a new type of society. But in fact I have observed that they have become married couples, with their ups and downs, highs and lows, dull points and lively points, their strengths and weaknesses, exactly like any of the rest of us. It is because they live exactly like any of the rest of us that I believe that they deserve legal protection exactly as any of the rest of us. I beg to move.
8.15 p.m.
Lord Clifford of Chudleigh: I support the noble Earl, Lord Russell, in opposing the Question that Clauses 31 and 33 stand part of the Bill. I need not rehearse the circumstances of how Part III was introduced into the Bill. The Committee may well recall that the legislation fell during the last Session in its final consideration in another place as the Family Homes and Domestic Violence Bill. It fell two working days before it was due to become the law of the land. Its fall was swift and sudden. It fell because it was claimed that it was a consolidating measure but that claim proved to be false. That claim was maintained throughout the. Bill's passage through this House under the Jellicoe fast-track procedure. That claim was maintained throughout its passage in the other place under the fast-track procedure. It was maintained right up to the point where the Bill was about to become law; yet that claim proved inaccurate.
It seems to me a pity that the unfortunate and ill-fated Family Homes and Domestic Violence Bill should have been presented to the House in such a manner. It cannot but reflect badly on the respective fast-track procedures and on the way in which they are used. I wonder whether it is not now an appropriate time for the noble and learned Lord the Lord Chancellor to give some assurance to the Committee that the Jellicoe procedure will be used with a little more circumspection in relation to future Bills of the kind just mentioned.
Clauses 31 and 33 of the Bill, as we have heard, make provision for a new type of order in the family court which is to be known as an occupation order. It subsumes the orders currently made by the court which are commonly known as ouster orders and exclusion orders. I am aware that occupation orders may do other things. They can enforce the applicant's right to remain in the home or to enter the home. They can regulate the occupation of the home. However, the most important power will be to oust or exclude a party from the home.
I venture to suggest that if there is domestic tension or strife, it is that order which will continue to he most commonly sought after by applicants and, I might add, most commonly granted. Orders specifying which rooms a party may or may not use are not, I am told,

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very common and tend to be impractical. So it is with exclusion and ouster orders that we are mostly concerned.
In the case of Summers (1986) and additionally in the case of Tuck v. Nicholls (1988) the court made it clear that it viewed an ouster order as a "draconian" measure. That seems to me to be plain common sense. I suspect that it would be viewed as common sense by the vast majority of voters and citizens in the land. To throw a man or woman out of their own home by means of a court order must surely be a draconian action unless it involves a clear case of violence.
If there is to be any substantial change in the law in order to make such an order less than draconian, then clearly we need to be concerned. Part III of the Bill reproduces parts of the Matrimonial Homes Act 1983 and the Domestic Violence and Matrimonial Proceedings Act 1976 which specifically include co-habitants. Part III of the Bill, and these clauses, mark a change. The changes remove the requirement for the court to have regard to the conduct of the parties before making an order and instead there is an entirely new "balance of harm" test which will dictate when an order should or should not be made.
The test is this: an applicant must be suffering significant harm. That is defined in Clause 57 as,
"ill-treatment or the impairment of health".
"Health" means "physical or mental health". The court may make an order unless the respondent is likely to suffer as much or more harm than the applicant when the order is made. Of course, the test applies equally to any child of the family.
At first sight that does not sound too bad does it? I remind the Committee of the case of Richard's (1984). The effect of that case was to arrest a tendency to grant injunctions on ever more flimsy grounds. Many courts would throw a man out of the home on the ground that one party said, "I refuse to live with that man". The noble and learned Lord, Lord Hailsham, occupying the office of Lord Chancellor, sought to ensure that a degree of blameworthy behaviour had to be proved against the man before he could be ousted from his own home. There the law now stands.
Enter Part III of the Family Law Bill 1996. Proof of such conduct will once again be unnecessary. The very words "conduct of the parties" are excised and in so doing we shall have taken a retrograde step. But that is not all. The Bill goes even further than that in defining "harm" so widely as to include impairment of health, including mental health, which goes well beyond what is considered sufficient in existing law to oust or exclude a party from the home. It is not even clear that the harm needs to be caused mainly or directly by the respondent. The harm suffered by the applicant may he attributable to other causes, for example, physical or mental disease, and the respondent's mere presence may do no more than to add to that harm, sufficient for it to become significant. No blame of any kind need be attached to the respondent; his mere presence may he sufficient.
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If it is asserted that a child is being considered, one can readily see that it will be even easier to make out a case against a respondent. Indeed the definition of harm is even extended in the case of a child to include the impairment of development—a very different thing from domestic violence. What are we to say—that a child's low marks at school are a reason for ousting one of its parents from the matrimonial home? How can that be? one may ask. Yet low marks at school may well represent evidence of impairment of development. A child psychologist would not be asserting anything radical by giving evidence to that effect in a court of law. It would not be difficult in practice to secure a medical opinion that the presence of one party in the home is damaging the health of the other. Nor would it be difficult for one party to assert that the presence of the other is had for the children. All that party need assert is that the presence of the other merely contributes to their ill health or any upset to the children. The harm test nowhere requires that the harm is mainly or directly caused by the respondent.
This is plainly a recipe for rapid and irrational domestic chaos and family break-up. It is also astonishingly unjust. Even apart from the intrinsic injustice of this clause, it is not difficult to see how easily such a provision could be abused by an unscrupulous party, a party interested in gaining most for themselves. One party will readily perceive that they can obtain de facto custody of the children by the simple expedient of ousting the other party. Once applications for custody are made, the court will be reluctant to overturn any situation of de facto custody, for fear of further upsetting the settled life of the children. In fact this can happen under the existing law, but it will be very much easier to achieve under the provisions of these clauses.
The harm test, at the very least, should go. If conduct is restored then the harm test adds nothing and can be removed. Part III would then begin to look very much more like the consolidating measure that it is claimed to be. Part III, and particularly these clauses, arc not chiefly about domestic violence. In my reading of this part of the Bill I was unable to find even the word "violence" anywhere in it. Perhaps I have overlooked it and, if so, I should be very grateful if the noble and learned Lord would point it out. If not, then does he not agree with me that this lack is astonishing, in view of the fact that it is meant to make provision for domestic violence?
I trust that the noble and learned Lord will agree also that this part of the Bill is, in its current form, very far from satisfactory and requires substantial review and amendment. I hope that he will also be able to recognise and welcome efforts on the part of noble Lords to amend and restore this part of the Bill to a form where it can truly be said to be a consolidating measure, and not the radical departure from existing law which it clearly is in its present form.
I am aware that the noble and learned Lord has made some changes to this part of the Bill since it first appeared as the family homes Bill but, so far as I can see, they have not altered it very much except that for spouses the court has to make an order if the harm test

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is satisfied. This appears to prejudice spouses and to benefit cohabitants. Is that what the noble and learned Lord intended, may I ask? I urge upon the Committee the need to reconsider this part of the Bill at Report stage, but for the present I support the noble Lord in opposing the Question that Clauses 31 and 33 stand part of the Bill.
Baroness David: I should like to support the amendments moved by the noble Earl, Lord Russell. I was a member of the special committee dealing with the Family Homes and Domestic Violence Bill, as were three other people who are here tonight—a small assembly at this time of night—the noble Baroness, Lady Darcy (de Knayth), the noble Lord, Lord Meston, and myself, who were four members of that committee. I am quite sure that the noble and learned Lord cannot deny that we entirely agree that these clauses, as they were before being changed in the other place, were accepted by the Committee. There was no question about their acceptance: I do not think there was any debate about that.
We made changes in the Bill as it came from the Law Commission. Various clauses and an extra schedule were added, but the Bill as it came from the Law Commission was basically accepted, with a few changes. The Committee was very much agreed that it was not changed at Committee or Report stages. There was intensive discussion. We had, as I think the noble and learned Lord, Lord Brightman, said, 83 amendments discussed at various stages of the Bill. It was very thoroughly gone into and accepted. I find it very hard to believe that the noble and learned Lord could really have liked these changes which he accepted.
If we accept the changes now it will show that we are rather an ancient Chamber. A number of questions were raised at earlier stages in the Committee, but what is the message going out from this Chamber? I would say that the message we are sending, if we accept these changes, would be unrealistic. I must be one of the oldest Members of your Lordships' Chamber but I think I can accept that life is very different from what it used to be. There are a great many people in stable relationships—partners, or whatever they are called. I do not like the word, but that is apparently how they are currently referred to. The idea that cohabitees cannot be treated in the same way as married couples is ridiculous.
I hope that the noble and learned Lord will go back to what he apparently believed in for a considerable period during the long days of that Committee and indeed the Report stage and Third Reading. I hope he will think again about these amendments. It would be a very much better message from this Chamber if we go back to the Bill which we approved before it went to the Commons and which the other House misguidedly changed. They did not even get the Bill through: there was no advantage whatsoever in the changes that were made. I should also like to say that I support the amendments standing in the name of my noble friend Lord Irvine, Amendments Nos. 184A to
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184C. I make a plea to the noble and learned Lord that we should get this Bill put back as it was when it left this Chamber.
8.30 p.m.
Baroness Lockwood: I too would like to support this series of amendments. In doing so, I must admit that for personal reasons I was not able to be involved in the previous Bill when it went through this Chamber and so I am coming to this current Bill with a fresh mind, conscious of the controversy which surrounded the withdrawal of the previous Bill.
Like the noble Earl, Lord Russell, I cannot see why Clause 36—the clause that requires the court to take account of the fact that the parties involved in cohabiting have not given each other the commitment involved in marriage—has been inserted into this Bill. The Bill concerns the breakdown of marriage. If a commitment in marriage has been given and then broken, that is surely equally bad, if not worse, than if a commitment had not been given in the first place.
Like my noble friend Lady David, I believe that we are now operating in a society with different values. However, though the values may be different, it does not follow that in all cases they are less valid. In circumstances where two people are cohabiting in good faith, and in particular where the woman may have made the same kind of sacrifice as a married woman—for instance, where children are involved she may have given up her job, thus losing her financial independence—I do not see why those two people should be treated any differently from the two parties in a marriage where the marriage has broken down. It follows therefore that I do not accept the proposals in the Bill whereby cohabitees and partners in marriage should be treated differently.
Much has been said in regard to the "harm" factor. Again, when we are looking at the breakdown of a relationship, we must look at the extent of the harm that is done, whether it is in marriage or in cohabitation. In his summary of the Bill the noble and learned Lord said that, even if the court made an order, that order would be confined to a maximum of one year whereas, under marriage, the order may be extended. But if an order is being made, it is far too rigid to say at the outset that that order will he for one year only. The same flexibility should apply in cohabitation as in marriage.
I hope the noble and learned Lord the Lord Chancellor will think again about the changes he has made in the Bill and look more favourably on the kind of Bill that he was advocating at the end of last year.
Lord Meston: The speech of the noble Lord, Lord Clifford, covered ground which was covered extensively in the course of the consideration of the Family Homes and Domestic Violence Bill during the last Session. So far as the improvements to the existing law are preserved by this Bill, the Committee may have every confidence in them. I simply wish to point out that it is a travesty to suggest that the mere presence in the home of one party to the dissatisfaction of the other party would be a sufficient basis for what is colloquialk known as an "ouster" order. Such an order is now, and

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will remain under the new law, a drastic order to be regarded as a matter of last resort by the court. It is inconceivable that the courts will regard it otherwise. Certainly the courts will be astute to look for the sort of unscrupulous misuse of the powers provided by the new law which the noble Lord suggested may arise.
In relation to the remaining alterations to the Family Homes and Domestic Violence Bill which are brought about in this Bill, I do not wish to repeat the points already made. I have one regret in particular; that is, that the procedures of the Married Women's Property Act 1882 for determining property disputes between cohabitants have not been preserved in this Bill. It was commented by Dr. Eekelaar of Oxford University, in an article in Family Law this month, that,
"It is hard to see how maintaining procedures which benefit only lawyers, even those of the Chancery Bar, help the institution of marriage, but political compromise seldom produces rational results".
Lord Simon of Glaisdale: On Second Reading I ventured to deprecate attempts to amend too violently Part III of the Bill on the ground that it has virtually come through a Jellicoe Committee whose conclusions should be generally accepted. Nevertheless, for reasons that will become clear in a moment, I support the changes proposed by my noble and learned friend.
I turn to the comments of the noble Earl, Lord Russell. I have long felt that what history gained, the law lost. It was an astute insight of his at Second Reading—and he repeated it today—that, looking at the law as a whole, cohabitation has now become a status. "Status", in its legal sense, means a condition of belonging to a class of society to which the law ascribes particular rights and duties; capacitors and incapacitors, the capacitors and incapacitors being the more important because, of course, there are many classes of society which enjoy particular rights—for example, the tenant of an agricultural holding. But, in the legal sense, status goes far beyond that. One looks to see that there is a substantial body differentiating that class of society.
The noble Earl was quite right in saying that, as the social security law has developed, though not that alone, cohabitation should now be recognised as a status. English law is not peculiar in that regard. There are a number of systems of law which differentiate between concubinage differentiated from marriage on the one hand and from the denizens of the red light district on the other. Concubinage is a status in those systems, and I am prepared to concede that cohabitation may now become a status under our legal system.
But where I believe the noble Earl has been uncharacteristically ungenerous is in his criticism of those Members in another place who demurred at some aspects of what is now substantially Part III of the Bill. Their fear was that the Bill in its former form would virtually conflate the status of marriage with the status of concubinage. Several of the speeches this evening have gone a very long way down that road. In the end, we have to decide whether we value marriage as a special status or whether we are willing to see it conflated with concubinage, cohabitation or call it what
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you will. It is because those changes that my noble and learned friends have made seem to me to differentiate the status of marriage from the status of concubinage that I believe they are to be supported.
The Lord Chancellor: I appreciate that Part III of the Bill is in its essential characteristics very like the Family Homes and Domestic Violence Bill in the last Session, in which a number of your Lordships played a most important part in the Jellicoe Committee.
I begin by directing my attention to a point raised by the noble Lord, Lord Clifford of Chudleigh. He suggested that the Family Homes and Domestic Violence Bill had been presented as a consolidation measure and put through a procedure which was appropriate for that purpose. Your Lordships know well that the procedure for consolidation is the Joint Committee on Consolidation Bills. There was no question of that Bill going through any such procedure. It was well appreciated that substantial changes were to be made to the pre-existing law. Your Lordships have only to read my Second Reading speech—for what it is worth—when I introduced the Bill to this House to appreciate that point. If the noble Lord had sat through the discussions in Committee he would have appreciated that even more fully. I believe it is remarkable for it to be claimed that the previous Bill was presented to Parliament as a consolidation Bill. That is not so. Anyone who cares to read the proceedings and the substantial volume of evidence that was received when the Bill was in the Jellicoe Committee will appreciate that.
Viscount Colville of Culross: Hear, hear!
The Lord Chancellor: I am particularly grateful for the support that the noble Viscount has just given. He gave us the great benefit of his expertise as a judge in the detailed consideration of the amendments that were made in the course of our consideration of the procedures that were required in this connection.
The Bill in its previous form was based largely on advice from the Law Commission, but quite substantial changes were made from that. The Bill as proposed by the Law Commission received the support of the Home Affairs Select Committee in another place following a number of hearings. That committee asked that it be introduced into Parliament as quickly as possible. I was not able to do it as quickly as that committee wished. I thought that I had not done too badly. It just shows that one cannot he certain that one has been successful until Royal Assent.
The Committee will know that towards the end of the proceedings in another place on that Bill representations were made to me on the lines described by my noble and learned friend Lord Simon of Glaisdale; namely, that the person reading the Bill might be apt to think that the status of marriage and the status of cohabitation were being too closely assimilated. Of course, both the previous Bill and the present one distinguish between these two. But apart altogether from the changes that I have made, there are very substantial distinctions. In particular, if one party is married to another, those parties will have the rights of occupation by virtue of

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marriage in the matrimonial home even if they had no other title to occupy that home. That is a right not conferred on cohabitants. That substantial distinction has always been present in this Bill in its various forms and it existed in the law prior to the introduction of this Bill.
It is also important to look at the Bill as previously drafted. To use the references in the present Bill, Clause 31(6)(d) requires the court, in considering what to do in relation to orders of this kind, to consider the nature of the parties' relationship. The clause that I have put in in response to representations made to me, namely Clause 36, simply recognises and emphasises the particular nature of the parties' relationship when they are married. I think that that matter is already implied in paragraph (d) of Clause 31(6). The changes that I had made are intended to make clear, and to get as much consensus on the terms of the Bill as possible, that there are distinctions between those who are married and their rights and those who are not.
I share the regret expressed by the noble Earl, Lord Russell, that my noble and learned friend Lord Brightman is not able to be here. He sat very patiently through earlier proceedings in this Committee in the hope that he would be present when this stage was reached. Unfortunately, the detail in which your Lordships considered the earlier provisions meant that we overtook the arrangements for his holiday before we reached this stage in the Bill. As a result of our earlier dletailed consideration, we are therefore without the help of his presence this evening. I am sure we all hope that he will enjoy his well-earned holiday, among other things because of the distinguished way in which he chaired the committee on the previous version of this Bill. Similarly, I much regret that the noble Lord, Lord Habgood, is, by virtue of his health, unable to be with us tonight. I am sure we all hope that he will soon be fully restored to health and will be able to join us at later stages of the Bill.
The amendments to which the noble Earl, Lord Russell, has spoken affect provisions that I have put in to deal with representations that have been made to me. One's understanding of the parliamentary process is that, while one has one's own views, it is wise to do what one can to accommodate the views of others, in so far as that is consistent with the principles for which one is looking, in order to attain the maximum consensus on the finished product. So far as I am concerned that is what I sought to do in relation to this matter. Therefore, I have no difficulty in accepting that I have moved forward, as it were—perhaps not very far but a little distance—from the position that I personally had reached at the end of our proceedings on the previous Bill.
I do not believe—I may be wrong—that the amendments introduced by the noble Earl, Lord Russell, would tie in or be supported by a good number of the observations made by the noble Lord, Lord Clifford of Chudleigh. I do not feel that these amendments are related to a substantial part of the contribution that he made. I shall direct myself, at least for the moment, to the amendments which were introduced.
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The first amendment, Amendment No. 184. is a restriction in the case of cohabitants who have no entitlement to occupy the property to the overall length of time that they can receive the benefit of an occupation order. There are two distinctions there. It concerns not only a cohabitant but a cohabitant who has no other entitlement to occupy the property. A cohabitant who has an entitlement to occupy the property is not affected by this measure. So it concerns a cohabitant who has no entitlement to occupy the property. I have inserted a limit to the overall length of time. The limit in the Bill is six months, renewable only once. The amendment would allow indefinite renewals at the discretion of the court, which is the position for non-entitled spouses. I believe that an occupation order in favour of a person who is not entitled to occupy the property should essentially be to provide short-term protection for the victim while that person seeks alternative accommodation.
I am sure that the noble Lord, Lord Meston, will be able to confirm or correct me, but my understanding of the matter is that the practice is to make those orders on the basis of a three-month period. They are intended as short-term measures to deal with an emergency. Looking at the practice in the light of the concerns expressed, I felt that it would be sufficient to provide a year in order to give the short-term protection for the victim while that victim seeks alternative accommodation to which these provisions are directed.
It is important to recognise that during that time a person who is entitled to occupy the property may be prevented from doing so. So one has to think about the other person who has a right by virtue of something other than these rights; in other words, something in the nature of a contractual or property right in the property. That person may be prevented during that time from occupying the property. In the case of marriage, which has involved the commitment of marriage, I believe that there may be instances in which the court feels that it is just to make a longer order in favour of the non-entitled spouse. But those cases must be left to the discretion of the court.
The second change that I have made in these clauses was to the operation of the balance of harm test. There was specific opposition to the suggestion that the court should be under a duty to grant an occupation order with a restriction or exclusion provision in favour of an unentitled cohabitant. In placing the court under a duty to ask itself the question set out in Clauses 31 and 33 of the Bill, I believe that we have ensured that the question of harm to the parties and to relevant children will he fully considered by the court. However, I have accepted that in this particular situation it would be wrong to fetter the court's discretion to act in the way in which it sees fit having regard to all the circumstances of the case. Therefore, we simply give the court in this situation a discretion to act in the way that it sees fit in the light of all the circumstances.
Finally, notice has been given of the wish that Clause 36 should not stand part of the Bill. The noble Earl dealt with that matter and it might be as well for me to deal with it now. That clause instructs the court. when making an occupation order in favour of the

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cohabitant, to have regard to the fact that the parties have not given each other the commitment involved in marriage—I take that to mean the commitment to one another that they are married. They have not done so. They may have given plenty of other commitments but not that particular one because they are, in fact, not committed to marriage.
As I have already outlined, I believe that cohabitation and marriage are different—as my noble and learned friend Lord Simon of Glaisdale pointed out—and it is right that the court should consider that when making orders. After all, all I am doing in this clause is to make express what in any event is required because, in the Bill that was approved, the nature of the relationship is something that the court has to consider. I simply point out, in order to make it clear to those who felt that it was not so clear as it might be, that that is the situation and the court has to have regard to that.
However, the specific effect in each individual case is something which I feel is best left to the discretion of the court as each case comes before it. There is no suggestion of the precise consequence of examining this matter that would be involved for the court. All that it has to do is take that into account. What would be the precise effect of taking it into account in any particular case is a matter on which the court itself will make up its mind.
I believe that it is important that we should do our best to secure a Bill which is as acceptable as we can make it to everyone who has taken a sufficient interest in it, subject to the principles that I seek to achieve. Therefore, I hope that the Committee, though I quite understand the concerns expressed about them, may feel, in the interests of securing a Bill which will have so far as I can judge almost universal acceptance, that these changes may be allowed to stay in the Bill.
Earl Russell: I am most grateful to the noble and learned Lord for that very full and careful reply. Before I leave the amendments, perhaps he will forgive me for raising just one point on which I should like to hear a little more. I have not heard—I may have missed the explanation, and, if so, I am sorry—why he decided that he should not use the expedited procedure under the Married Women's Property Act for cohabitants. I should be very grateful to hear that before we leave the matter.
The Lord Chancellor: The reason that I did not mention the point is that I do not feel that it is expressly covered in these amendments. In any case, the answer is simply that the way in which it was expressed in the Bill suggested perhaps an unnecessary equivalence with married women. It uses the Title of the Bill. It is a purely procedural matter. One way of doing it is to express the procedure, which is the procedure of the Married Women's Property Act, without in fact using the name of the Act to describe procedure that would be open in appropriate cases to people who might not be married. It is purely a procedural provision. It is certainly possible to reach that result in a number of other ways without, as it were, by reference incorporating provisions from an Act of Parliament. In
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other words, the court itself has plenty of powers to regulate its procedure without the necessity of that express provision.
Originally, I thought that it was a good idea. But, having looked at the matter, I concluded that it was not necessary to do it that way. The consequence of doing it that way was that some, at least, who read the Bill took the meaning from it that I have just suggested. That was an unnecessary confusion. I believe that I have been able to remove that confusion. In due course, the procedures which, in any case, are subject to change, might well be appropriate procedures for those cases and may well be introduced as soon as we can do it.
Earl Russell: I am most grateful to the noble and learned Lord and indeed for the whole of that very careful reply. I entirely agree with what he said about the Jellicoe procedures. I was not able to be a Member of that Committee. I have read the Minutes of Proceedings and Evidence which indicated that very careful consideration indeed had been given to that Bill.
With regard to the ouster orders, the noble and learned Lord made a very serious case. Anything that I say this evening is, of course, provisional, because I must read very carefully in Hansard what the noble and learned Lord said. But if I understood him correctly, he said that the discrimination between the married person and the cohabitee was not on any moral ground but because there was a difficulty in establishing any title to the house in those particular cases and that he was allowing marriage to create a presumption which was not being given to cohabitees simply because the situation was clear. If that is a fair paraphrase of what the noble and learned Lord said, although I would not necessarily have written the Bill that way myself, I can understand why he did it and I take that argument seriously.
The question of the Married Women's Property Act and Clause 36 raises the issue of equivalence. Here I think that there is a deeper disagreement between us. I entirely understand that it is proper for anyone in a ministerial position to give way to representations that are made—after all, I am asking the noble and learned Lord to do that, so I can hardly say that it is improper that he should do so—but I ask him to bear in mind that on this matter he is receiving pressure from both sides and therefore has a certain degree of discretion about to which side he gives way, on which points, in which ways and on what principles.
Of course, I accept what the noble and learned Lord, Lord Simon of Glaisdale, said and that marriage and cohabitation are not the same thing. I am extremely grateful to the noble and learned Lord for his recognition that cohabitation is becoming, or has become, a status in law. However, if one is to distinguish between them, a further question arises of whether the distinction should he made in matters concerning the Queen's peace and protection from physical violence. I might have a good deal less objection to a distinction being made in, for example, testamentary dispositions. My argument in this case is that the duty of protecting people's physical safety is a

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higher duty than that of having recognition of any particular form of legal status. In fact, it is a matter of priorities.
We shall have to discuss this matter further—probably outside the Chamber as well as within it. Meanwhile, I thank the noble and learned Lord the Lord Chancellor very warmly for the care that he has taken and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 agreed to.
Clause 31 [One cohabitant or former cohabitant with no existing right to occupy]:
9 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 184A:
Page 22, leave out line 24.
The noble Lord said: In moving Amendment No. 184A, I should like to speak also to Amendments Nos. 184B and 184C which also stand in my name. All have a common purpose, which is to protect the victims of violence.
Before explaining the purpose of the amendments, I desire to make a number of observations of a more general character. This is a time, even as late at night as this, for some straight talking. An important issue is at stake in relation to these domestic violence provisions which transcends the particular provisions. It is how to secure that appropriate Law Commission Bills are put through our Jellicoe procedure, a fast-track procedure, with all-party agreement and with all the salutary co-operation—
Lord Simon of Glaisdale: I hope that the noble Lord will cast a benevolent eye on the schedules that we discussed last week which were based on Law Commission Bills.
Lord Irvine of Lairg: Law Commission Bills naturally find their proper place in legislation which is brought before your Lordships' House and the other place. However, I have to say that the noble and learned Lord's propositions, which may have had a great deal of merit, did not find a natural place in this Bill.
My point is this: an important issue is at stake when we are seeking to use our fast-track procedure, the Jellicoe procedure, with all-party agreement and with all the salutary co-operation that that involves between the parties. I am sure that the noble and learned Lord will confirm that that co-operation extends to smoothing the passage of such Bills through the other place which is perhaps a rather more political place, perhaps I should say a rather more "partisan" place, than this House. That co-operation is put at risk for the future when the Government allow an agreement between the parties, reflecting not a party agreement but the actual agreement of the overwhelming majority of all the relevant parties in both Houses, to be blown off course by an irrational reaction on the part of a tiny unrepresentative minority of the governing party in the other place. In this case, it was a tiny and unrepresentative minority which was trying to claim a spurious moral high ground for party political reasons.
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If that kind of unrepresentative minority is yielded to, I have to say that that is the way to imperil the making of agreements which will allow such Bills to go through the Jellicoe procedure in the future. Assuaging uninformed minorities does not facilitate all-party agreements which alone can be the foundation for utilising the Jellicoe procedure in the future.
My three amendments are designed to restore the full force of the previous Bill, before concessions were made to appease the uninformed minority in the other place. I can only suppose that the attitude of that uninformed minority was based upon what a tabloid newspaper, the Daily Mail, claimed about the Bill and not on what the noble and learned Lord's Bill provided. That minority obviously thought, because that is what they said, that the Bill for the first time would afford legal protection to mistresses and somehow, as a result, undermine the institution of marriage. Quite how a freedom to be violent to one's partner upholds the institution of marriage remains unexplained.
Anyway, that uninformed minority was 20 years out of date. The Domestic Violence and Matrimonial Proceedings Act 1976, as the noble and learned Lord is well aware, gave protection both to spouses and to unmarried partners against domestic violence. That protection was underpinned by a power in the court to make an ouster order against the violent party.
In fact, that power is used very rarely by the judges up and down the country, but the existence of the power, and the threat of its use, is a potent weapon in the hands of the courts to calm the domestic scene, to make it plain that our courts will not tolerate domestic hooliganism. That hooliganism damages victims, inflicts misery on children, and, if unpunished, feeds in the perpetrators an appetite for further violence.
Before I move the amendment, it may be of interest to the Committee to know how the law at present works in practice. A partner complains of molestation and the court is asked to consider the complaint. The usual upshot of the first court hearing before the district judge in the county court will be an adjournment of the application on the basis that each party will give undertakings not to molest the other in the future, usually without an admission of any previous molestation.
In the great majority of cases that is the end of the matter, but in a small number of cases the parties come before the court again, breaches of undertaking arc alleged and, once established, the court will impose an injunction against violence. If that is disobeyed, then the court will either make an ouster order if co-habitation is continuing or, if the violent partner has already left, the court could commit to prison. In practice, the court will usually suspend the order on condition of future good behaviour. It is only when all those remedies have been tried and failed that the violent partner is at risk of imprisonment.
I take a minute or two to say that so as to make what is my point, which is to call attention to the fact that great latitude is already given to the persistent aggressor. From these Benches we see no reason why those aggressors should be indulged further.

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Amendments Nos. 184A and 184B are designed to restore the Bill to its original form, with which the noble and learned Lord previously agreed, in one very important respect: to restore the balance of harm test in all cases. Under Clause 28(7) the test for making an ouster order in favour of a partner with a right of occupation against a partner without any such right—for example, against a partner with no legal interest in the property—is to make the order if the order will protect the applicant or a child from significant harm, but not to make that order if as great or greater harm will be caused to the other partner or a child from the making of the order. That is what called the balance of harm test, to which the noble and learned Lord has already referred. What it requires is for the court to make a detailed appraisal of the consequences of making or abstaining from making the order.
Neither the Law Commission nor this place in its previous deliberations suggested that there was anything wrong with the balance of harm test or that it should not equally be applicable in cases where the victim of violence had no strict legal right to occupy the property.
The new provisions in Clause 31(8) draw a distinction between orders made in favour of those with an entitlement to occupy and orders made in favour of those with no such entitlement. Thus, the balance-of-harm test, if satisfied, must result in orders in favour of those with rights in the property. But even if the balance-of-harm test is satisfied in favour of those without any legal rights in the property, the matter is purely within the discretion of the court.
Under the Law Commission's proposals, if the court were of the view that the balance-of-harm test was satisfied, the court had to make an order in favour of the non-entitled applicant—that is, if more harm would be caused to that applicant or any child than would he caused by not making the order.
Despite what the noble and learned Lord said in his response to the previous amendment, the plain fact is that the test for non-entitled applicants is being deliberately changed to their disadvantage. The courts will be bound to give effect to the different test in their case and to hold that they have a discretion to withhold protection from a non-entitled partner, even though the balance-of-harm test is satisfied.
That severely weakens protection for the abused because it consigns those already vulnerable, because they lack property rights, to a second-class protection. It cannot be said—and I ask the noble and learned Lord to declare whether he says—that the two different tests will make no difference in practice. If that is what is to be said, why make the difference? The purpose of Amendments Nos. 184A and 184B is to give a quality of court protection for all victims of domestic violence.
Amendment No. 184C deals with a related but distinct subject. It is aimed at restoring the provisions in the previous Bill which here too have been altered as a sop to the objectors but in a way that I say opens up the dangerous gap in the protection that the court may confer on victims of domestic violence. The previous provisions gave the flexibility of renewing protection for
1400
as long as was necessary—I repeat, as long as was necessary. Of course the court would need to be satisfied that the continuance of its ouster order was necessary to protect the victim and any children. Typically, the court might make an ouster order for, say, three months. The reasoning would be that in a domestic crisis parties need time to reflect on and to take steps to deal with their situation. If for good reason the three months were not enough, under the old provisions—the provisions which first appealed to the noble and learned Lord—the court had the flexibility to continue its protection as long as it was needed.
Ouster orders in favour of non-owners may be for six months only with the possibility of one further extension of six months but no further extension whatever the circumstances. It may be that in many cases 12 months would be adequate; but I say that in this sensitive jurisdiction, where the facts of every case vary so infinitely, it is unhelpful to tie the court's hands to arbitrary time limits. The judges should be trusted.
I have no doubt that cases will arise in which acute difficulty will be found in rehousing the abused party or where the couple may be elderly, ill or even terminally ill. If alternative accommodation does not become available to the abused partner within the 12 months under the Bill in its present form, the court is literally powerless to prevent that individual being turned out on the street.
I dare say that there can be sops to the uninformed which may not much matter in practice, but I have to say that this one does matter: it is repugnant to justice. Those who are in favour of the changes as regards the previous provisions—as the noble and learned Lord recommended them and, indeed, believed in them—which are brought about, so we are told, to strengthen the family, have a duty to explain how that object can conceivably be arrived at by insisting on this gap in the court's protective powers. I suggest that that gap would leave the abused, and the uniquely vulnerable, homeless. I beg to move.
Lord Meston: While I agree with everything just said by the noble Lord, Lord Irvine, about the benefit of the proposed amendments, I would question his description of the Jellicoe procedure as providing a fast track. The perception of those of us who served on the Committee on the previous Bill must be that it was a rather slower track than might have been afforded by the normal procedures of this Chamber. It enabled the predecessor to Part III of the Bill to have detailed consideration, the Bill itself being the product of a Law Commission report which, in turn, was the result of detailed consultation. The impression that one gained was that the Jellicoe procedure in this Bill, as with previous Bills, was in fact to enable the fast track to operate not in this Chamber but in another place.
The Lord Chancellor: Perhaps I may begin with the notion of a "fast track". It is apt to be misleading, especially to those who have not engaged in the procedure for themselves. As the noble Lord, Lord Meston, said, far from being a fast track, it is a track on which a much more detailed examination of the

1401
technicalities of the proposal are possible than would be the case under the normal procedures which apply in this Chamber.
As regards the other place, my understanding—and I speak subject to correction by those who know more about another place than I do from personal experience, as I never had the privilege of such experience—is that the procedure was by a Second Reading Committee. The amount of discussion that one can have there depends on the nature of the subject matter. Moreover, so far as concerns the Standing Committee procedure, that also permitted the discussion of a number of matters. The ultimate procedures were the same. It is a question of whether matters are dealt with on the Floor of the House on Second Reading or otherwise; but it is not necessarily the case that one procedure produces a result more quickly than the other. Indeed, the Bill that we considered last Session failed ultimately to reach the statute book. Therefore it would perhaps be inadequate to describe it as a fast track procedure to the statute book.
I believe that there are some problems as regards the amendments as currently drafted. For example, the proposed subsection outlined in Amendment No. 184B refers to subsection (4) and not subsection (5) of the clause. That means that it would apply only where the applicant was not in occupation. I do not think that that can be the intention. I shall speak about the principle of these matters. First of all, the changes that I made apply only to non-entitled cohabitants; they do not apply to non-entitled spouses, for the obvious reason that the situation is different.
I should make it plain that, under this Bill as now drafted, the court must, before deciding whether to make an exclusion or restriction provision, consider the balance of harm that will be caused to the parties and to any relevant children. It is only in relation to that matter that this point arises. I believe that the intention is to replace these questions with a balance of harm test similar to the one in Clause 30, which places the court under a duty to make such a provision if it is satisfied that the significant harm to the applicant or relevant child if the order is not made will be as great or greater than the significant harm to the respondent or relevant child if the order is made. I should point out that I believe the amendment has, as I said, a question in it as regards whether it applies only if the cohabitant was not in occupation. That is something that the noble Lord may wish to consider.
I believe that, in placing on the court a duty to ask itself the question set out in Clause 31 of the Bill, we have ensured that the question of harm to the parties and to relevant children will be fully considered by the court. The change I have made is to accept that it would be wrong in the particular circumstances of a non-entitled cohabitant, against a person who has rights in the house, to fetter the court's discretion to act in the way it sees fit having had regard to all the circumstances of the case. I am not saying that that would always result in precisely the same result as if the court had a duty to do that—an obligation on a court would he different. However, I am saying that, in the special circumstances to which these provisions apply, it is right that the court
1402
should have a discretion. I accepted representations made to me by those who are elected representatives of constituents in the other place who had considered these matters and raised them with me. I believe that the balance that we have in this provision, and in the circumstances to which it applies, is right.
Amendment No. 184C—the last one to which the noble Lord spoke—seeks to change the period for which an occupation order can be made in favour of a non-entitled cohabitant or ex-cohabitant under Clause 31. Clause 31 as currently drafted provides that an occupation order can be made for a maximum period of six months and that this period can be renewed once. As I have already discussed, this contrasts with a situation for an ex-spouse, where the order may be renewed for an indefinite number of times at the discretion of the court. Instead of treating non-entitled cohabitants in the same way as non-entitled ex-spouses, they are treated in the same way as applicants who have a right to occupy the property by virtue of a beneficial estate or interest, or by virtue of matrimonial home rights. I believe—this was the situation under the Family Homes and Domestic Violence Bill—that an occupation order for an entitled occupant can serve a different purpose than for a non-entitled occupant. With the former it might be the case that the occupation of the home requires regulation in the longer term. Therefore I believe that the length of orders is best left to the discretion of the court.
In the case of the second group, the primary purpose—I think the authorities demonstrate this—is to provide the applicant with a short-term protection and accommodation while suitable alternative accommodation is sought. That is on the basis that the applicant is without any other rights in the home and that the other party is the person who has the rights. It must be remembered that it is a serious step to remove someone who would otherwise be entitled to occupy the home for the benefit of someone who would not he so entitled. I therefore think it appropriate that such an order should be finite and subject to review in the way this clause presently proposes. I think it is right that as a Bill goes through Parliament representations are considered, and in so far as those representations may make improvements on the balance and presentation of the Bill, they should be accepted. It is on this basis that I invite the Committee to go along with the Bill as it is now drafted.
9.30 p.m.
Lord Irvine of Lairg: I am bound to say that the noble and learned Lord's observations about the fast track procedure were, I respectfully suggest, of a debating nature and not substantial. In using the expression "fast track" I was not seeking to diminish the quality of the Jellicoe procedures; far from it. The Jellicoe procedures involve the taking of expert evidence and the consideration of it, and can be regarded, therefore, in many senses as superior to the procedures which in the ordinary way of debate we follow on the Floor of the House.
First, "fast track" is used in the sense that it is a different track—a track which is a means of avoiding the allocation of what is scarce prime time for business

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on the Floor of the House. By means of this salutary Jellicoe procedure, we can get legislation through which we might not have been able to do otherwise.
Secondly, the procedure is appropriate for legislation which is free of the party political disputation that attends Bills taken on the Floor. Therefore I did not use "fast track" in the sense of any inferior legislative procedure. I used it in the sense of a beneficial and different procedure by which urgent, important legislation could be got through for which otherwise time would not be found.
The Lord Chancellor: I entirely accept what the noble Lord has just said. However, not everyone is as well informed about our procedures as the noble Lord. I think it is important that it is understood that although between us we speak of it as a fast track, it is in fact a different track from the normal but a track which permits very detailed consideration of these matters, as the noble Lord said. I believe I am right in saying that the phrase was used earlier in our debates (although not by the noble Lord) in a way which at least gave me the impression that it was considered as some speedy procedure under which full consideration was not available.
I know that the noble Lord understands full well what the procedure is, having sat through one such procedure himself at quite considerable length.
Lord Irvine of Lairg: I am grateful to the noble and learned Lord. I simply had the fear that it might be misunderstood both in your Lordships' House and elsewhere that by using the expression "fast track" I was in some sense suggesting that the Jellicoe procedures were speedy and therefore inferior to the procedures that apply on the Floor of the House.
I used the word "fast" in the sense that the procedures secured a more prompt passage of a Bill than would otherwise be the case, because it was a law reform Bill. As experience commonly shows, time is not found available in a complicated and burdened legislative programme for what is regarded as pure law reform.
On the questions of detail which the noble and learned Lord raised in relation to my amendments, I shall certainly read? Hansard with care and consider what he says. We may have to revisit the matter on Report. My anxiety is that we have received no signal whatever that the noble and learned Lord was at all willing to meet us on the points that we make. I hope that that is not so.
I have difficulty in accepting that the noble and learned Lord really thinks that the alterations to the provisions in the previous Bill, now incorporated into this one, are improvements. If he thought that the new provisions which he has brought forward are right, why did he not propose them in the first place? I have difficulty in accepting the proposition that he is persuaded by the arguments of the sources from which the initiative for the changes emanated. However, I have a clear appreciation that the noble and learned Lord is constrained to say certain things, and on that basis I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
[Amendments Nos. 184B and 184C not moved.]
Clause 31 agreed to.
Clause 32 [Neither spouse entitled to occupy]:
[Amendment No. 185 not moved.]
Clause 32 agreed to.
Clause 33 [Neither cohabitant or former cohabitant entitled to occupy]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 186:
Page 24, line 13, after ("parties;") insert—
("( ) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child;").
On Question, amendment agreed to.
Clause 33, as amended, agreed to.
Clauses 34 to 55 agreed to.
Clause 56 [Meaning of "cohabitants", "relevant child" and "associated persons"]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 187:
Page 34, line 43, leave out ("(I)(f") and insert ("(3)(f)").
On Question, amendment agreed to.
Clause 56, as amended, agreed to.
Clause 57 [Interpretation of Part III]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. I 87A:
Page 35, line 26, leave out ("in relation to a child").
The noble Lord said: The purpose of the amendment is to draw attention to what I hope is a sensible question in relation to the drafting part of the Bill on which I desire the assistance of the noble and learned Lord. My basic objective is to ensure that victims are protected against all aspects of domestic harassment.
A distinction is drawn in the interpretation clause between the harm which must be established as having been suffered by an adult partner and that suffered by a child. Perhaps Members of the Committee would turn to page 35, lines 19 to 24. In the cases of both an adult and a child "harm" means "ill-treatment". However, a few lines further down the page, "ill-treatment" does not mean the same for both. In the case of a child "ill-treatment" means,
"forms of ill-treatment which are not physical",
but not so in the case of an adult. The issue that I desire to put before the Committee, and on which I invite the assistance of the noble and learned Lord, is that it appears that non-physical ill-treatment does not qualify as "harm" in the case of adults.
If I am right in that interpretation, surely the Bill has to be wrong. Why should a partner be entitled to switch off the central heating, leave on the lights all night, send hate mail or, as in one case about which I was told, keep revving up the motor car in the driveway all night to rob his partner of sleep. Another fairly typical type of harassment, sadly, is stalking one's partner, or making nuisance, or abusive phone calls to the partner's place of work.
If I am right in my reading of this interpretation clause—and I shall be happy to be told that I am wrong—I find it hard to understand why it is that non-physical ill-treatment is automatically excluded from the court's protection for adults but not for children. That exclusion does not foster good family relations or good family life. On the contrary, if I am right about it, it will be seen as signalling a parliamentary lack of concern for the plight of those who are subjected to any of the many forms of mental torture that human beings, sadly, from time to time devise for one another. I beg to move.
The Lord Chancellor: The effect of this amendment is to define "ill-treatment" in Part III of the Bill in relation to adults. Currently a definition is given only in respect of children. It was suggested by the noble Lord that a possible construction of the clause as drafted would be to exclude ill-treatment that was not physical from the definition in relation to adults, and in that respect would afford less protection than the current law.
I do not accept that that is the case. We made the decision to define "ill-treatment" in relation to children specifically because of the question of sexual abuse. I wanted to put beyond doubt the fact that sexual abuse was ill-treatment. Sexual abuse is widely understood in relation to children. It can include any form of sexual contact. That is of course not the case with adults. It could also include non-physical abuse at times; for example, adults exposing themselves to children could be abuse. The decision not to define "ill-treatment" generally was made because there are many things that could constitute ill-treatment. To attempt to define them could result in an unnecessary and unwarranted fetter on the court's discretion. What will be ill-treatment will vary from case to case, but it is not my intention that some form of physical ill-treatment should be a pre-requisite. I hope that approach commends itself to the noble Lord.
9.45 p.m.
Lord Irvine of Lairg: I shall read with care the brief answer which the noble and learned Lord has given. It appears to me, leaving aside the words "includes sexual abuse" in the definition of ill-treatment in relation to a child, that the Bill, on its proper construction, includes, other than sexual abuse, forms of ill-treatment which are not physical. If that is expressly ill-treatment for a child, but not for an adult, it appears to me that forms of ill-treatment which are not physical would be held by a court not to qualify as ill-treatment in relation to an adult.
If that is not the noble and learned Lord's intention, for the life of me I cannot see why he is unwilling to yield on that point. At the very lowest he must regard that as an ambiguity because of the contrast in treatment of adults and children, and make it plain. I invite him to reflect on that. Meanwhile, in the spirit of this Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 agreed to.
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Clause 58 [Rules, regulations and orders]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 188:
Page 36, line 36, after ("under") insert ("section 4(5) and").
The noble and learned Lord said: In moving this amendment, I shall speak to Amendment No. 189, the two being linked. We are concerned with parliamentary control of subordinate legislation. Clause 58(3) proposes that all statutory instruments, rules and regulations under this Bill shall be subject to the negative procedure only. I am very glad that the noble Earl, Lord Russell, has put his name to this amendment because I very much_prefer marching shoulder to shoulder with him rather than be at horns locked.
We propose that orders made under Clause 4(5) shall be subject to the affirmative procedure. The Delegated Powers Scrutiny Committee, in. its first report of this year, accepted the negative procedure as appropriate generally, but signalled an exception in its significant way to orders under Clause 4(5). Rather than take the Committee right through Clause 4, and the Delegated Powers Scrutiny Committee having put the matter so succinctly, I shall read what it says:
"Clause 4(3)(b) imposes a time limit on applications for a divorce or separation order. The time limit is six months from the earliest time when an application for a divorce order could have been made by reference to the statement on marital breakdown. Clause 4(5) allows the Lord Chancellor to amend Clause 4(3)(b) by varying the time limit, and Clause 58 provides for this to be done by negative procedure. Clearly this is a Henry VIII provision and"—
This is in bold type—
"the Committee will wish to consider whether this provision is so important to the scheme of the Bill that affirmative resolution procedure is required."
That is what the Scrutiny Committee had to say.
The reason for the time limit, as I understand from the debates we had on Clause 4, is, on the one hand, that there should be enough time for the parties thoroughly to consider their position, including, we think, time for reconciliation. On the other hand, stale statements, possibly quite outdated, should not he left hanging over the proceedings to the detriment of the parties and their children. When we debated this matter, different periods were suggested and argued over. I am not going to read the whole debate. What it amounts to is that the Bill proposed six months, the noble Lord, Lord Meston, proposed 12 months and the noble Baroness, Lady Young, proposed 18 months.
I think my noble and learned friend, reviewing these three contentions, thought that probably there was much to be said for 12 months, and he said he would consider an amendment on those lines to he brought forward by him on Report. It is a matter of considerable importance and your Lordships may well think that it should be on the face of the Bill that Clause 4(5) gives a Henry VIII power to alter that figure in the light of experience. In my submission, if it is not to be'primary legislation, it should clearly he under the affirmative procedure. Your Lordships know well the advantages of that affirmative over negative procedure: principally that the Minister comes forward himself and lets Parliament know what are his reasons for making the order. There is also the

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serious question in another place that negative orders are often not reached, and I imagine that would be worse under the Jopling proposals which are now in force. I think the noble and learned Lord the Lord Chancellor went a long way to meet that view.
In relation to the three periods which are to go on the face of the Bill, my noble and learned friend said that it was suggested that that should be done by an instrument in a slightly different form from the one that he proposed. I take it that the one which my noble and learned friend proposed is the form in the Bill; in other words, the negative procedure. By "a slightly different form" I hope that he meant the affirmative procedure. At any rate, being perennially optimistic, it is in that spirit that I beg to move.
Earl Russell: I want to say only that I am happy to support Amendment No. 188. I share the pleasure of the noble and learned Lord, Lord Simon, that on this occasion we are on the same side. The point he made about the difficulty of reaching negative instruments in another place is a serious one, especially if it is only my party which wishes to challenge them.
The Lord Chancellor: It gives me considerable pleasure on this occasion to find myself marching also in the same direction as my noble and learned friend Lord Simon of Glaisdale. I tried to hint at that in the passage he summarised; I make it express now. I agree with his amendment in principle and shall bring forward an amendment on Report to give effect to it.
Lord Simon of Glaisdale: There is nothing to be said to that except to offer an expression of profound gratitude. I am obliged to my noble and learned friend. That being so, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 189 not moved.]
Clause 58 agreed to.
Clause 59 agreed to.
Clause 60 [Short title, commencement and extent]:
Lord Coleraine Lord Coleraine moved Amendment No. 189A:
Page 37, line 3, at end insert—
("( ) Part I of this Act, other than section 8 and paragraph (b) of section 2(1), shall come into force on 1st January 1997.").
The noble Lord said: Amendment No. 189A seeks to probe a little further as to why my noble and learned friend feels that the substantive changes to the law of divorce should be deferred until the completion of the pilot projects and also as to when he considers the pilot projects will be completed. Its effect would be to provide that, with the exception of the information-providing sessions, the substantive reform of the divorce law—that is to say, the statement of marital breakdown, the year for reflection and consideration and the completion of the arrangements for the future before the making of the divorce order—shall be brought into effect before completion of the pilot projects.
At Second Reading, I asked my noble and learned friend a question in these terms:
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"I wonder whether my noble and learned friend has decided, and can tell the House, when he anticipates that the provisions for no-fault divorce and the year for reflection which are central to the Bill will be brought into force. Will it be one year, two years or three years?"—[Official Report, 30/11/95; col. 724.]
My noble and learned friend kindly replied to me by letter on 19th December, as follows,
"You referred to the pilot study which I plan to set up to monitor and test the new proposals before full implementation. I consider this necessary because some aspects of the proposals are untried in this country, such as the information sessions, and a number of options are possible for delivery of mediation services. The pilot study will also enable the Legal Aid Board to develop and test standards of quality assurance and monitoring of these. We are still at a very early stage of planning for all aspects of the pilot study. It is therefore not possible at this stage for me to give you any indication of when I would envisage the new proposals coming into force".
I turn to the debate initiated by the noble and learned Lord, Lord Archer of Sandwell, on 22nd January of this year. That debate related specifically to the information sessions. On that day, at col. 832, the noble and learned Lord asked my noble and learned friend whether the operation of the Bill was to be postponed until the pilot schemes had operated and the results were known. At col. 837 my noble and learned friend replied:
"My present view is that the Bill, with its new provisions, should not come into force until the pilots are concluded. Obviously I am open to persuasion as the Bill proceeds, but the information session is so fundamental to the whole idea that it is wise to have it in place, with the proper regulations, before the grounds of divorce set out in the Bill become effective law."
Later, at col. 839, the noble and learned Lord, Lord Archer of Sandwell, expressed relief to hear that at that moment it was not my noble and learned friend's view that the Bill should be brought into full force before the completion of the pilot schemes. He asked my noble and learned friend how long that was likely to be. In the same column, the reply of my noble and learned friend was:
"I believe that something in the order of two years is reasonable for testing out the information-giving methods which we wish to use.
My noble and learned friend did not reply as to the completion of the pilot project on the provision of mediation services. Perhaps I may ask my noble and learned friend whether he now has any better advice as to when he expects to complete the full pilot project process. The noble and learned Lord, Lord Archer of Sandwell, drew attention to the fact that,
"As a lawyer—and I am sure that the noble and learned Lord will understand my thinking—I am always reluctant to legislate by having a statute in limbo for too long a period of time."
In the best of all possible worlds one would wish to have the information-providing service and the full mediation provisions in the Bill before it was implemented. But in this case we are dealing with the replacement of what is, we are all agreed, bad law with what is, we are all agreed, better law. In those circumstances, I should have thought that there was a strong case for bringing the substantive changes into effect sooner rather than later, not letting them hang in limbo. I believe that the completion of the pilot project would be more easily and satisfactorily effected if the new law were in force, especially in regard to mediation. It might be very

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difficult to do justice to the mediation services in the pilot project in the context of the existing quickie divorces. I beg to move.
10 p.m.
Earl Russell: The noble Lord, Lord Coleraine, produces an argument which at first is extremely seductive. He says that good law is to replace bad law and therefore it should be introduced as soon as possible. That argument must have force. On the other hand, I do not believe we always realise how much work is involved in the introduction of a major Bill. I refer to the amount of reorganisation, redeployment, testing and consideration of cases which must take place. I and my noble and honourable friends spend a great deal of time calling for the Government to take a little longer over the implementation of projects. In the light of that, I believe that I should be guilty of inconsistency if I supported this amendment, though I see its attractions.
The noble and learned Lord knows that, though I am sympathetic to many of the basic principles of the Bill, I have anxieties about the process of mediation, which will be engaged in very sensitive areas and will need to he done very carefully. The fact that he has provided these pilot studies goes a long way to alleviate that anxiety. I am very glad that he has done it and rather hope that he will not change it.
Lord Archer of Sandwell: Let me first apologise to the Committee because I was not in my place at the outset of these debates. It is perfectly true, as the noble Lord, Lord Coleraine, said, that I was in two minds about this matter in the earlier debate. On the one hand, I was relieved to hear that it was not proposed to implement the provisions of the Bill until the pilot schemes had been completed. On the other hand, I expressed some hesitation about the idea of a statute operating in limbo. I must say that I am persuaded by the argument just enunciated by the noble Earl, Lord Russell. This is an important matter and it is important to get it right before it is let loose on the public.
I take the point made by the noble Lord, Lord Coleraine, a few moments ago that it might, in a sense, be easier to carry out one of the pilot schemes if there were a substantive law in place on which it could bite. But it seems to me that, on balance, that might be a dangerous way of doing it. To have a substantive law in place and try to make it work before it has been possible to see the results of the scheme and assess them on the whole might endanger the whole scheme and bring the law into disrepute. So, for what it is worth, I take the view that, on balance, it would be better not to implement the substantive law until the pilot schemes have been assessed.
The Lord Chancellor: This is an important question. I am certainly entirely in favour of bringing this legislation, assuming that it reaches the statute book, into force as soon as reasonably possible. But it is important to make the necessary preparations. My experience in relation to the Children Act confirms that that is a good viewpoint. The Children Act was on the statute book for something like two years before it was
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implemented. That period was not spent in idleness, as those noble Lords who work in this field know. We did a lot of work. Various departments—the Department of Health, my department and the Judicial Studies Board, as well as local authorities and so on—had to engage in detailed preparation. The Act was all the better for that detailed preparation in its ultimate working.
I regard it as vitally important that the information session should be in place and working. The interval between getting the information and starting the divorce process is an integral part of what I should like to see. I want to be as sure as I can that the arrangements for information sessions are as good as we can make them before I have brought into effect the substantive provisions.
The mediation provisions are somewhat different in the sense that, as my noble friend said, it is much easier to envisage mediation against the background of the new law than against the background of the present law. That is an important point. On the other hand, I want to be sure that mediation provisions are reasonably well in place. On the best view that I can take at the moment of what is likely to happen, the kind of estimate that I gave in answer to the noble and learned Lord, Lord Archer of Sandwell, is the best that I can give. My noble friend can be assured that I would wish to bring the statute into operation as soon as is reasonably possible. But I believe that at least the information sessions and a good deal of the arrangements in relation to mediation should be in position before that happens, for the reasons that I sought to explain.
Lord Coleraine: I understand that my noble and learned friend intends his reply to the noble and learned Lord, Lord Archer of Sandwell, to apply to the whole project and not just to the information-providing session. I am grateful to my noble and learned friend for the clarity with which he has answered my amendment and to other noble Lords who have spoken. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 60 shall stand part of the Bill?
Lord Simon of Glaisdale: I wanted to ask my noble and learned friend to say a word about the relationship of this Bill to Scotland. As I read it, the Bill applies to Scotland only in a very minor respect. In effect, therefore, unless Scottish law is altered to bring it into line with this Bill, there will be great differences in the jurisdictions. That sort of difference of matrimonial jurisdiction can be highly inconvenient, particularly when there is only a border separating the two legal systems. It leads immediately to forum shopping—in other words, to trying to acquire the best jurisdiction and the best form of suit for one's case. That is particularly a danger with this Bill because Clause 16(2)(6) allows one party, who will almost always he the party seeking the divorce, to acquire a jurisdiction for the purpose of this Bill by one year's habitual residence in England or Wales before the statement is filed. Therefore, nothing is easier than forum shopping under this Bill in relation to Scotland.

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The 1969 Bill was not extended to Scotland because the then Secretary of State for Scotland, Mr. William Ross, who later became a Member of your Lordships' House, would not have it at any price. He was in a minority in his Cabinet in being far from enamoured of the permissive society. That is why the Bill was not extended to Scotland. The 1969 Act was in effect extended subsequently, during the 1970s, by a Private Member's Bill, so it is now the law in Scotland as it is in England—and a highly unsatisfactory law it is, as the White Paper has shown.
Apart from that background, with which I should be grateful if my noble and learned friend could deal, I wonder whether he can specifically answer whether a system of quickie divorce obtains in Scotland. In this country it was the creation of the Lord Chancellor's Department and if that system obtains in Scotland, I imagine that it is by rules of court. If I am wrong, perhaps my noble and learned friend, with his vast knowledge, will correct me.
Apart from the question of the quickie divorce, which would be a reason, I suppose, for extending the Bill to Scotland as rapidly as possible along with all the other defects of the 1969 jurisdiction as set out in Chapter 2 of the White Paper, I should have thought that there is every reason why this Bill should extend to Scotland or why there should alternatively be a Scottish counterpart.
10.15 p.m.
The Lord Chancellor: As my noble and learned friend has explained, the Scottish divorce law has in recent times depended upon different provisions from those in England, although at present the statutory provisions are very similar. The history of the divorce law of Scotland and that of England and Wales has not been the same over the centuries. The way in which the law is used in Scotland is different; for example, a much smaller proportion of cases is based upon fault Scotland than in England and Wales.
Procedures in Scotland are somewhat different from those in England and Wales, but the essential difference between a fault-based divorce and a divorce that is not based on fault in relation to the times that one has to wait is reflected in the law of Scotland. The Bill is brought forward on the basis of consultation in the English jurisdiction. It is true of course that there are provisions for jurisdiction in Clause 16, which are the normal ones for this type of statute.
It may well be that in due course the Scottish people will wish to have a law along these lines or a different law. The two have not, as I said, marched together. I have no proposal to extend the Bill to Scotland. My responsibilities at the moment, as it happens, are in relation to England and Wales. There were minor matters with which my noble and learned friend was not concerned, but on the main subject matter it is not proposed to extend the Bill to Scotland. It will be for
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those concerned with the Scottish jurisdiction to consider in due course whether they want to follow along these lines.
Lord Simon of Glaisdale: I am much obliged to my noble and learned friend. Would he care to say something about the quickie divorce in Scotland?
The Lord Chancellor: I have sought to say that fault-based divorce is not used in Scotland in anything like the proportions in which it is used here. The procedures are somewhat different in Scotland, but they admit of a divorce being granted earlier on the fault base than on the non-fault base.
Clause 60 agreed to.
Schedule 1 [Arrangements for the Future]: [Amendment No. 190 not moved.]
Lord Meston Lord Meston moved Amendment No. 191:
Page 38, line 16, leave out ("obtaining the information which it requires to determine") and insert ("making an order in respect or).
The noble Lord said: Schedule 1 contains the exemptions to the requirements in Clause 9 to have finalised the financial arrangements before a divorce order or a separation order. The first exemption depends upon a number of conditions being met. Under paragraph 1(b) the applicant must show that he or she has:
"taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements".
Questions have been raised as to whether that will require disclosure of privileged correspondence to the court, which may preclude the same judge from dealing with the final financial hearing, if there is to be one.
Under paragraph 1(c)(i) the applicant must also show that the other party has been obstructive, or under paragraph 1(c)(ii):
"for reasons which are beyond the control of the applicant, or of the other party, the court has been prevented from obtaining the information which it requires to determine the financial position of the parties".
It is not clear what paragraph 1(c)(ii) is aiming at. It seems to envisage a situation when neither party is at fault, but somehow the court has been prevented from obtaining necessary information. One can imagine situations where the applicant, or indeed the respondent, is prevented from obtaining information by the other spouse or by some uncooperative third party, but it is less easy to see what might prevent the court. I also question why the exemption is limited to the obtaining of information. Would it not he better to provide for any circumstance which would prevent the court from making an order? I give as an example lack of available court time to deal with the case within the period of one year provided under the Bill.
These provisions are potentially of considerable importance. The noble and learned Lord, Lord Simon, referred to forum shopping as between England and Scotland. Questions of broader international forum shopping need to be considered. Upon the progress of the divorce may well hinge the power to make financial provision. If a spouse is able to obtain a quicker divorce abroad, while under the English procedure at least one

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year must elapse, the inevitable consequence will be that without some amendment the English court will he disabled from dealing with the financial ramifications of the marriage breakdown. Other jurisdictions may be less willing to grant the equivalent of a stay if they learn that divorce in this country will take at least one year.
I do not seek to expedite the procedure whereby a year is required but it seems to me that these questions need to be addressed. Meanwhile, the purpose of this amendment is to probe a little further the thinking behind the first exemption in Schedule 1. I beg to move.
Earl Russell: In addition to supporting the amendment tabled by my noble friend Lord Meston, I wish to speak to Amendment No. 193 which stands in my name and is grouped with his amendment. It adds one more to the list of exemptions to the requirements under Clause 9. It adds the exemption:
"where there is continuing violence, to the applicant, other party or child of the family".
Those are circumstances in which continued negotiation may be extremely difficult and sometimes unsafe. It is a principle on which I have already touched, Ihat the physical safety of the parties should come first. if am sure that the noble and learned Lord will understand that sometimes it is crucial that women who are escaping continuing domestic violence should be in a place where their former partners cannot find them. Of course, if one is continually corresponding through a lawyer it is very difficult to keep one's whereabouts literally and strictly secret. If the exemption were not granted there could be a threat to the safety of the parties as a result.
Some time ago the noble and learned Lord kindly gave me a meeting on these issues. I hope that I shall receive a sympathetic response tonight. If he indicates that the amendment is not the most appropriate way of pursuing the matter, that is something to which I would listen. In the meantime, I do not beg to move any more than did the noble and learned Lord, Lord Simon, but I hope that the amendment will be considered with this group.
The Lord Chancellor: Perhaps I may speak to the amendment tabled by the noble Lord, Lord Meston. It deals with the situation in which an application has been made to the court under Schedule 1(c), which is where the amendment takes effect. The paragraph reads:
"the applicant has made an application to the court for financial relief and has complied with all requirements of the court … but",
the court is unable to make the order for lack of information.
The effect of the amendment would be to widen the scope of the exemption so that it will apply in all cases where a court is prevented from making an order in respect of the financial position of the parties for reasons beyond the control of the applicant, not simply where information is not available to the court. That part of Schedule I was intended to provide for specific circumstances whereby a party was unable to put before the court sufficient information to enable a decision to be made about financial matters. For example, that may occur where there is outstanding separate litigation
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relating to the ownership of land or, indeed, to personal injury damages. The total amount of the asset in question might he difficult to assess. Such matters would affect the assessment of the total value of the parties' assets, so a final decision for a division of assets may take some years.
I am very wary of extending the scope of the exemption provisions of Schedule I because, as I tried to explain earlier, they are fairly fundamental to my view that it is essential that parties face up to the responsibilities of the marriage before a divorce is granted. That is the explanation for the provisions. I do not believe that it is necessary to make such provision wider in the way suggested by the noble Lord.
So far as concerns forum shopping, one cannot completely obliterate that unless one makes provisions in this Bill which are the same as those in every other jurisdiction; but, as they are not all the same, it would be quite difficult to do so. Therefore, some element of forum shopping cannot be completely ruled out. Nevertheless, I believe that we have a reasonable provision in the way that we have approached the matter with the jurisdictional requirements of Clause 16.
I turn now to Amendment No. 193. I can tell the noble Earl that, again, I am reluctant to widen the scope of the second exemption under Schedule 1 so that it could be used in cases where the applicant has been unable to reach agreement due to,
"continuing violence, to the applicant, other party or child of the family".
If I have understood the amendment correctly, I believe that it would allow for the applicant to take advantage of the exemption, even where he or she was the perpetrator of the violence, because of the reference to the "other party". However, I am not sure whether that is necessarily what was in mind.
In any case, I do not believe that the scope of the exemptions under Schedule 1 should be widened. Making financial arrangements does not, by definition, imply or require mediation or any other face-to-face negotiation. Parties can be separately represented and make their arrangements through their legal representatives; that is, through arm's length negotiation for which purposes legal aid would be available to those who qualified. As I mentioned earlier in relation to mediation, where questions of violence are likely to arise as between the parties, mediation would hardly be a suitable forum.
Obviously, where a party suffered injury or ill-health as a result of domestic violence which prevented him or her from making arrangements, the second exemption under Schedule 1 would apply. I am relying on Part III to deal with situations of domestic violence. Indeed, we have made provision in that part for dealing with domestic violence during the currency of the divorce, as well as at other times. In that situation, I am not very willing to extend the exemption further. One of the reasons why it is so necessary to have Part III before

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one can go forward to a satisfactory divorce law of this kind is precisely the sort of situation mentioned by the noble Earl.
Lord Meston: I am grateful to the noble and learned Lord the Lord Chancellor for the clarification that he has provided on the first exemption in Schedule 1. It is correct to say that my amendment would have somewhat widened the scope of the exemption, but, I would suggest, not unduly so. However, I understand the anxiety of the noble and learned Lord not to widen the scope of the exemptions much beyond those contained in the Bill.
I certainly would not wish to interfere in any way with the jurisdictional provisions of the Bill which preserve the existing law. Indeed, in no sense would I have sought to do so by way of this amendment or by any other means. My anxiety in that regard is that the provisions of this Bill, when they become law, may mean that other countries would be tempted to accept jurisdiction in divorce cases which they otherwise would not have accepted. My anxiety as a practitioner is that parties should not be tempted, as it were, to shop outside this country. I should prefer them to shop in this country—a shop in which I am an assistant. However, I recognise that this amendment is perhaps an inadequate peg for the various comments I sought to make about the first exemption. It is something to be looked at closer at Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 192:
Page 38, line 27, leave out first ("or").
The noble and learned Lord said: In moving Amendment No. 192, I wish to speak also to Amendment No. 194. These are drafting amendments to correct and clarify the parts of the clauses to which they refer. I beg to move.
On Question, amendment agreed to.
[Amendment No. 193 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 194:
Page 38, line 30, after ("agreement") insert ("with the other Party").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 195 and 196 not moved.]
Schedule 1, as amended, agreed to.
Schedule 2 [Financial provision]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 197:
Page 40, leave out lines 41 to 43.
The noble and learned Lord said: In moving Amendment No. 197, I wish to speak also to Amendments Nos. 198, 200, 201, 202, 203, 204 and 205. These amendments are largely technical and are inserted by way of clarification. The intention is that
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the current law relating to financial provision on divorce should be amended by Schedule 2 only to the extent that is necessary as a result of the changes in the Bill to the law relating to divorce and judicial separation and no more. Amendments Nos. 197, 198, 200 and 202 clarify that there is no change in the existing law in relation to the number of periodical payments orders and lump sum orders which may be made in favour of each spouse. Amendment No. 202 clarifies that only one property adjustment order of the same type may he made in relation to the same spouse. Where a term in a financial provision order in favour of a spouse or child of the family is to begin earlier than the time when the order was made, Amendments Nos. 204 and 205 alter the earliest time by which the term can begin from the date when the statement of marital breakdown was made to the date when the statement was received by the court. This is in the interests of certainty and should avoid disputes as to the date when the statement was actually made. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 197A and 197B not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 198:
Page 41, line 15, at end insert ("but may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party.").
The noble and learned Lord said: I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 199:
Page 41, line 18, after ("payments") insert ("or lump sum").
The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 206. Amendment No. 199 is designed to empower the court to order an interim lump sum at an interlocutory stage. I should tell the Committee that this is an amendment proposed by the Family Law Bar Association to address a gap in the existing jurisdiction. If the litigation or negotiations become protracted, parties may need more than just interim maintenance as the present law provides. They may need capital to continue to fund their lawyers or expert witnesses. They may require capital to purchase a house, or to put down a deposit. Some other need may unexpectedly arise for which they are unwilling or unable to borrow.
If the power is to be given to the court, it is clearly a power to be exercised with some caution in case it distorts the ability of the court to deal fairly with matters at a final disposal of the case. Nevertheless, it is a useful power, and I hope that the opportunity will be taken to add it to the legislative armoury.
Amendment No. 206 seeks to introduce two recommendations of the original Law Commission report which were omitted from the Bill. The first limb of the amendment provides for variation of settlement of property orders. Paragraph 6.3 of the Law Commission report includes the following passage:
"Experience has shown that settlement of property orders are usually made at a time in the lives of spouses and their children when it is extremely difficult to predict events which may occur and needs which may arise some ten to fifteen years ahead. This has

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been particularly so with the `Mesher type order, where the house is settled upon the parties in fixed shares, but not to be sold until. for example, the youngest child reaches a certain age or the mother re-marries. Such an order cannot he varied even though the shares were fixed on the assumption that, for example, one party would continue to pay mortgage instalments or make periodical payments. which in fact he or she has not done".
Amendment No. 206 is borrowed with gratitude, but with some modification, from the Law Commission. It provides for the power to be exercised in closely defined circumstances which appear on the face of the amendment. It provides that the power of the court shall be exercised if it appears that,
"a fundamental assumption underlying the making of the original order has become falsified due to supervening circumstances outside the control of the parties; or … one of the parties has failed to comply with his or her obligations under the order and in consequence it is unjust for the order to remain in effect; or … the order was made on the basis that any children of the family would reside with one party to the marriage and some or all of them are in fact residing with the other or elsewhere or have died".
The other limitation on the face of the amendment is that the court shall not exercise its power unless it appears that the interest of a third party will not be prejudiced.
Secondly, the amendment provides for there to be a power to commute an existing maintenance order by means of a capital order even if there has already been a previous capital adjustment. Considering the powers of the court when varying financial provision orders, the Law Commission stated at paragraph 6.9 that,
"it could not escape our attention that the exercise of the court's power to substitute a 'clean break' for a continuing maintenance obligation was unduly hampered by the fact that the court cannot make a property transfer ora lump sum order at that stage".
The report described the particular difficulties which were manifested in one reported case, where the court was unable directly to order the husband to pay a sufficient lump sum to compensate the wife for loss of future periodical payments even though he could well have afforded it. The problem is that, although an arrangement can be brought about by an agreement between the parties, if the payer will not agree, the court cannot order it. That is another gap in the law which is well known to practitioners and which hampers the clean break and limits the flexibility of the court. The wording of this part of the amendment is again borrowed from the Law Commission proposals. I beg to move.
Lord Phillimore: As a barrister practising in family law, I should like to support both amendments proposed by the noble Lord, Lord Meston. I wholly endorse all the comments that he has made and all the reasons that he has advanced in support of his amendments. I understand that the intention behind the first is to enable the courts to make an interim lump sum order, which they cannot at present easily or usually make; that is to say, to have the power to make a capital provision order in divorce or separation proceedings at an early stage.
There are often circumstances such as those that the noble Lord outlined and others where it would be possible to alleviate the tensions and hardships that often occur during the trauma of divorce proceedings if the courts had such a power. It would be for the benefit not only of the parties but, more important, for any children involved.
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For instance, in appropriate cases capital provision could be made for alternative accommodation for one of the spouses at an early stage. At present, the usual practice is not to make any capital provision orders until after such matters as the determination of any application in relation to such matters as with whom the children should live in the long term. That necessarily involves substantial delay before the courts can properly make capital provision orders. It has often been said that justice delayed is justice denied. That would, in my view, he true in such circumstances.
I consider that my point would also be valid under the new procedure proposed by the Bill whereby the parties should seek to resolve any disputes relating to child, children and finance in the period for reflection and consideration by mediation or, in the absence of agreement, by recourse to the courts. It would seem highly desirable that the courts should have available to them the power to make all appropriate orders at as early a stage as possible and to have wide enough powers to do justice between the spouses.
This leads me also to support the noble Lord's second amendment, since it would provide the courts with two valuable powers which they do not at present enjoy in making financial provision and property adjustment orders. As I understand it, the effect of the amendment would enable the courts, first, to mitigate hardship and injustice in cases where the provisions of the original order making capital provision have unforeseen consequences. Secondly, it would enable the courts to make a further capital provision order at some time later than the original order. At the present time, the law only enables the courts to make one property adjustment order and/or one lump sum order. This type of order can only be varied in very limited circumstances, when the courts have allowed the device of leave to appeal out of time to be used. This device is reflected in the proposed subsections (2A)(a) and (c), derived, I believe, from the leading case dealing with this exception from the general rule. Furthermore, this exception can only be used where the fundamental supervening event has occurred within about 12 months from the date of the original financial order. I suggest that it would be preferable to grant the courts the necessary wider statutory power by these amendments.
As for the second additional proposed power, the present law only enables the court to make one capital provision order and that cannot be varied save in the way that I have already stated. That is too restrictive, since circumstances may subsequently occur where it would be possible in the light of the financial resources of the parties to impose a clean-break order where it was not possible when the original order was made. It is clearly desirable that clean-break orders—a phrase used to indicate complete severance of all financial links between the parties—should be made wherever possible so that, among other things, new relationships, whether of cohabitation or marriage, do not suffer unnecessarily from the continuing stress of maintenance payments.
10.45 p.m.
The Lord Chancellor: Taking Amendment No. 199 first, my understanding is that the court does at present

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have an inherent jurisdiction to make such payments, but in rather limited circumstances. I think it is fair to say that the precise basis of the jurisdiction is a little uncertain.
My main concern regarding an amendment of this kind is that orders under it could restrict judicial discretion at the final hearing unless there are very substantial assets, which is when the court's inherent power would appear to be used at the moment.
I can, however, appreciate that a power of this kind might well be useful. Therefore, I propose to deal with it in the same way as I should like to deal with Amendment No. 206, which extends the power of the court in Section 31 of the Matrimonial Causes Act 1973 to vary or discharge property adjustment orders which settle property or vary settlements; and, secondly, gives the court power to make a property adjustment order or lump sum order where it considers it appropriate when it is dealing with an application to vary a periodical payments order.
In principle, in the interests of certainty and finality in litigation, property adjustment orders are once and for all orders. It is for this reason that only those which settle property or vary a settlement can be varied, and then only where they were made in the course of judicial separation proceedings and the decree is rescinded where an application for divorce is made.
I can appreciate that there are circumstances where, in the interests of justice, there may be grounds for making an exception to this principle. Accordingly, I wish to seek the opinion of the ancillary relief advisory group which we have in place in relation to these matters, advising about the whole procedure of ancillary relief, whether or not it would consider that amendments on these lines would be helpful. I should like therefore to consider these amendments and seek to obtain as soon as I can the advice of the ancillary relief advisory group.
Lord Meston: I am grateful to the noble Lord, Lord Phillimore, for his support. It is reassuring to have at least one other paid-up member of the Family Law Bar Association in the Chamber, even at this hour. I am also particularly grateful to the noble and learned Lord the Lord Chancellor for the indication that he will put this matter before the committee for further and, I hope, reasonably urgent consideration. On that basis, I am very happy to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 199A to 199C not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 200 to 203:
Page 43, line 22, at end insert ("but the court may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party.").
Page 44, line 11, at beginning insert ("On an application made under this section,").
Page 44, line 12, at end insert—
("(IA) If the court makes more than one property adjustment order in favour of the same party to the marriage, each of those orders must fall within a different paragraph of section 21(2) above.").
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Page 44, leave out lines 19 to 24
The noble and learned Lord said: I spoke to these amendments with Amendment No. 197. With the leave of the Committee I should like to move them en bloc. I beg to move.
On Question, amendments agreed to.
[Amendments Nos. 203A to 203C not moved.]
Lord Clifford of Chudleigh Lord Clifford of Chudleigh moved Amendment No. 203D:
Page 45, line 23, at end insert—
(" . For section 25(2)(g), substitute—
"(g) the conduct of the parties and the cause of the breakdown of the marriage;").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 204A and Amendments Nos. 206A to 206F at the same time. I am most grateful to the Committee because I understand that certain of the points I raise may have been broached before.
My amendments are designed to remedy existing financial injustice in the divorce law. At present, before the courts will consider the conduct of any of the parties, the onus is on the applicant to show that the conduct is exceptional. In the words of the Matrimonial Causes Act 1973, as amended, it would be "inequitable not to consider it". Clearly, that is best done by permitting the court, when it assesses the financial provisions, to take into account the conduct of the parties and the causes of the breakdown of the marriage. I suspect that most people will agree that that is essential.
However, under the present law, conduct is all too frequently left out of account. I am told that in the case of Whiston v. Whiston (1995) Mr. Whiston had to go as far as the Court of Appeal at his own expense, before the court could be persuaded that his "wife's" bigamy was something which they should be concerned with when assessing what he should pay her. The respondent was legally aided so Mr. Whiston could not recover his costs and it was a great deal of money.
I was pleased to see that the noble Lord, Lord Habgood, so stated in his Second Reading speech, that in the settlements arrived at during the year of reflection, conduct ought to be considered. My Amendment No. 203D will ensure that that is achieved more satisfactorily than it is at present. The Committee may have noticed also the article referred to in the media and published in The Tablet by His Eminence, Cardinal Hume, in which he came to a similar conclusion. He said:
"If one party does not want to divorce and sees themselves as the innocent party it is extremely important that they should not be penalised in any settlement. To this extent, at least, it is essential that immoral or unjust conduct should effectively be taken into account".
Amendment No. 204A prevents a party from claiming maintenance not only when they subsequently remarry, but also when they start co-habiting as if married. Without this, marriage will continue to be discriminated against by the divorce laws. Since mediation is meant to be the means by which financial settlements are achieved, one might ask in passing: who is to choose the mediator? Who is to train the one person who is to

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"divide the spoils" in a marital breakup? Surely, it would he wise to have a panel of at least three people. The body should include one who has experienced the trauma of divorce himself or herself; a child psychologist, if children are involved; and a lawyer trained in family law. This replacement for the present gallery of solicitors, counsel, accountants, asset assessors, etc., will be compelled by existing law to be subject to almost limitless acquisitiveness on the part of an applicant. That may often be the female spouse who is, more often than not, not the family breadwinner, nor usually the inheritor of capital assets nor the creator of those assets or of any income-earning business.
Members of the Committee may wonder how that will he so. I have to say that it is the law at present. The law with respect to financial settlements in divorce proceedings already works that way. A spouse may be turfed out of his house on false allegations. The other spouse will get de facto custody of the children thereby and may choose to invite a lover into the home. If the children are young the mother will get custody in the vast majority of cases. I doubt whether there are many lawyers who would dispute that.
If the children reside with the mother, she will then have need of the available accommodation and thus she will get the matrimonial home. She will get maintenance for the children and also for herself. The Child Support Agency will chase the father for child maintenance—and they can reduce him to just about the income support level. However, the father will not get any additional rights of access to his children, despite the financial asset-stripping which he will have had to undergo. Neither, more importantly, will the children get any greater rights to access to the father. That is a most important point which the social workers so often overlook.
Your Lordships may ask how this can be possible. The answer is this. No matter how flagrantly she may choose to ignore the order of the court defining the father's right to access, the likelihood of the court taking the children away from the mother and giving custody to the father is very slim. I think the Committee will begin to see that this can all have a shattering effect on the ordinary father. Yet there are many men who have suffered in this way. Some are not without fault; but many have done nothing wrong. They are just ordinary, regular husbands and fathers. But their lives are ruined. They have no home; no family. They cannot see their children except rarely when the mother allows; yet they have to pay, pay and pay. And they have to endure this cruel and unusual system of injustice until their children have grown up or have ended their fulltime education. That sometimes can be for the majority of the father's life. It is a sad fact that many of these fathers end up drifting away from their children, not because they want to—on the contrary.
A converse hardship can be seen in the case of older women whose children have grown up. She may be deserted by her spouse and her children have grown up, so she will not receive the usual lion's share of the family assets. However, what becomes of her selfless
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commitment to her marriage and her family? It is not a matter which the law directs the courts to he especially concerned about.
Our laws appear to be in the position where they reward the badly-behaved and they penalise the victims of such had behaviour. That is the very paradigm of injustice. We should be deeply ashamed that our legal system has sanctioned it. We all agree that this is unsatisfactory, and we all agree that it needs reform. But it is an unfortunate fact that the Family Law Bill as currently drafted will not change this most unjust situation.
I have knowledge of a case where the wife successfully sued for a decree absolute, custody of the children, the family home and all her husband's income-earning assets within four years of the husband having inherited capital wealth. The husband was forced to borrow large sums of money to replace sums which were in effect stolen from his children's education fund and also in order to cover maintenance payments to his wife and huge legal fees that he had no option hut to incur.
Unlike the situation described by the noble Lord, Lord Irvine of Lairg, on the llth January (at col. 283 of Hansard), there was no proven fault in this case, and the respondent did not defend the case precisely because he was thinking of the children. This is not an unusual case. Similar cases occur regularly.
In defending the case, the husband recognised that the inevitable slanging match between the legal representatives, the parties and witnesses would be presented in open court. It would subject the children to harmful remarks at school or from those parochial newspaper readers who might gloat over the reports of the case.
That was not the only cause. I warmly urge the noble Lord, Lord Irvine of Lairg, to hear that in mind before he makes further pronouncements about "defence" and the guilty parties in cases of marital breakdown.
The respondent husband was assured by his legal advisers, in the knowledge that there is a tendency among members of the judiciary to favour the mother, that for every extra week that he might wish to pursue the case in court and attempt to protect himself and his children from allegations falsely made against him and from the process of asset-stripping that he was forced to endure, it would cost him a further £100,000 in legal fees. Truly a most unenviable choice: the devil or the deep blue sea.
Who are the winners in that situation? Certainly from the financial point of view the appellant wife was, and of course the lawyers were. Who were the losers? One loser was certainly the respondent father, who is still paying heavy interest payments on his large, enforced borrowings. But, above all, the losers were the children. The financial arrangements originally designed for the children's future went into the pockets of the legal representatives; the major part of the balance went to the appellant wife. But, most of all, the children lost the all-important stability of their home life—to be able to confer, to question both their mother and father at any time and under the same roof and to have the assurance

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of a reply which they would and could accept with confidence in the knowledge that behind it lay the completely committed love of a father and a mother.
That stability disappeared. Consequently, it affected the children's education, which, in turn, required a further financial outlay from the respondent father. It appears that the father is always responsible for the education fees of the children as he is the conventional breadwinner. Therefore, on top of his existing interest payments and debts, he must pay still more.
That situation is not confined to the very rich. It is typical throughout the wealth brackets—the rich, the moderately well-off and those substantially poorer in society. Neither is it an uncommon occurrence; it is standard. An appellant who may be almost entirely to blame for marital disharmony, and who may be suffering from or prone to a mental disorder and lacking in the proper responsibility, is nonetheless permitted equal choice as to where the children of the marriage are to be educated. That is so despite her having no financial obligation towards that essential, vital part of their young lives.
There are many complications in this field—the location of the school and the proximity of the school to the custodial parent as well as to the other parent. It is so complex that it seems unjust to expect the mediator to take the decision or to allow him to require the parties to do so at his behest. It is precisely the kind of situation arising within the mediation process which will undermine any glimmer of reconciliation.
My amendments would provide for adjustments in maintenance payments according to changing circumstances. For example, if the child is a day-school attender and then changes to being a weekly or full-time boarder, to ensure that justice is done to the parties involved in the marital break-up, the provider of the education fund should be relieved from part of the maintenance payment that he is currently making.
One particular phrase that strikes terror in the heart of any man whose wife wishes to divorce him is that she has the right to live in the manner to which she is now accustomed. She can make a claim on her former husband, even if it means near-ruin for him financially. How will the mediator cope with that terrifying concept which will be imposed on him by law? How will he be able to maintain a balance between the parties in treating with them? This ill-conceived parameter for financial justice between the parties is generally applied to the female spouse, depending on the financial status of the male spouse at the time of the grant of the divorce order. The beneficiary applicant, who prior to the divorce has had the benefit of help from the ex-partner's financial advisers and has in the past left money matters to her husband, may find that a sudden inflow of capital goes to her head. Sometimes she finds that the money is just blown. That can hardly be to the advantage of the children. It cannot set a good example of careful husbandry of resources.
There is no doubt that the flow of capital from the male to the female spouse—though occasionally it may operate in the reverse—is more the rule than the
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exception. No matter which spouse is the recipient of the capital flows and/or maintenance payments, the inclination to live off unearned wealth is often wasteful and a poor education of the children in financial matters. All too often it is financially crippling to the respondent husband, particularly if his resources are limited. The eventual result may be that he becomes yet another person who relies on the taxpayer for welfare payments. The social costs rise. The mediator is to be paid out of the Legal Aid Fund. If there are little resources within the family, one of the parties will end up relying on welfare. The taxpayer is to pay. Where is the saving?
If approved in its present form the Bill will justly earn the title of a lethal, merciless and punitive measure, both to the taxpayer who will have to pay and to the party who is divested of his assets, and the children will be denuded of their basic right to the love and care of a mother and father. I note in passing that the framers of this legislation enjoyed that right when they were themselves children but seem very unconcerned that children of this generation should be denied it.
The majority of taxpayers need stable married lives. Why should they be required to subsidise the folly of our current situation? It strikes me as yet another form of hidden taxation. It may be worth the expense if the benefits to the children are obvious, but there are none. Instead, there is much damage. If it were not for the fact that the nation was fed up with the creation of new regulatory monitoring bodies, I would suggest that the noble and learned Lord the Lord Chancellor initiate the creation of a legal watchdog, similar to those that currently cover the public utilities. I hope that cricket and tennis umpires will forgive me if I suggest the name "Offleg" or "Offcourt".
Let us take a more optimistic view. Is it beyond the wit of us all to make the essential reforms to redress the terrible injustices to which I have alluded? I believe that it is not, and I urge these amendments upon your Lordships. I beg to move.
Lord Irvine of Lairg: I shall detain the Committee for only a moment or two. The noble Lord, Lord Clifford of Chudleigh, attributed certain observations to me on a previous occasion or occasions. I have to say that I neither recognise them nor recall them. I am as capable of erring in recollection as any. Hansard will tell. But I have to put on the record of our proceedings that I have no recollection of the observations that he has attributed to me.
The Lord Chancellor: I am not sure that I entirely follow all that the noble Lord, Lord Clifford of Chudleigh, said. The present law is the law under which the cases to which he referred must have been decided. There is no doubt that in matters of disputed residence and access to children, the courts make a decision in the light of all the circumstances. I believe that they do their best to reach the right decision. One of the leading principles under which they make those decisions is to treat the welfare of the children as their primary consideration.
The noble Lord considers that his amendment, Amendment No. 203D, would make matters better. Over the years, the courts have considered these matters.

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In 1973, the noble and learned Lord, Lord Denning, who was and is a very humane and concerned judge, said in relation to conduct:
"Does this mean that after a marriage has been dissolved, there is to be a post mortem to find out what killed it? We do not think so. In most cases both parties are to blame, or, as we would prefer to say, both parties have contributed to the breakdown. There will be many cases in which a wife, although once considered guilty or blameworthy, will have cared for the home and looked after the family for many years. Is she to be deprived of the benefit otherwise to be accorded to her because she may share responsibility for the breakdown with her husband?"
One has to consider what benefit that particular amendment would give. The noble Lord referred to Whiston v. Whiston. My understanding of the result of that case is that as a result of the wife's bigamy, the court held that no claim should be permitted for financial provision under the existing law. I am not sure whether or not the noble Lord thinks that that was a right decision, but, as I understand it, that was the decision. I doubt whether his amendment would have produced any other decision. I think not. So I do not understand how that case is relevant to supporting his amendment.
However, I should wish to refer this issue to the ancillary relief advisory group. My understanding of the law as it works at present is that conduct can be taken into account if it would be inequitable in the opinion of the court to disregard it. I believe that that is a reasonable basis on which conduct should be considered in relation to financial provision.
So far as concerns the various cases to which the noble Lord referred in the course of his speech, it is very difficult to generalise about these matters. But there is no doubt that, if husband and wife—father and mother—separate, there is a very difficult decision left for the court. My understanding is that the court does its best to do justice in the particular circumstances of the particular case. Certainly, I am not aware of any general view that the courts do not attempt to do justice between the parties in those situations.
So far as concerns the children, I believe that the court seeks to ensure that both parties remain in contact with the children so far as that is possible. Sometimes the nature of the dispute makes that difficult, but I am certain that it is in the best interests of the children that they should remain in contact with both parents in the generality of cases. I believe that that principle guides the court in its consideration. As with other amendments, I am prepared to take the advice of the ancillary relief group, but the present law on this matter was reached after mature consideration and I should be surprised if it can be improved upon.
11.15 p.m.
Lord Clifford of Chudleigh: I am grateful to the noble and learned Lord for his statement. Although I know that we differ on various aspects of this, I am grateful that he has acknowledged that conduct must also be taken into account. I am sure that this subject and the amendments that I have tabled will reappear on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 204:
Page 45, line 32. leave out ("made") and insert ("received by the court").
The noble and learned Lord said: I spoke to this amendment with Amendment No. 197. I beg to move.
On Question, amendment agreed to.
[Amendment No. 204A not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 205:
Page 46, line 5. leave out ("made") and insert ("received by the court").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 206 to 206F not moved.]
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 207:
After Schedule 3, insert the following new schedule—
("SCHEDULE MATRIMONIAL HOMES (CO-OWNERSHIP)

PART I
RIGHTS IN RESPECT OF OWNERSHIP OF MATRIMONIAL HOME
PART I

  CHAPTER I
  INTRODUCTORY
  Scope of Part I
  1 .—(1) In this Part of this Schedule—

  (a) Chapter II provides, subject to certain exceptions, for husband and wife to become joint owners of land if it is owned by either of them while comprised in a property in which they have a matrimonial home after this Part comes into force; and

  (b) Chapter III makes provision as to the rights of a husband or wife in relation to land of which, while so comprised, they are or have been co-owners (whether statutory co-owners or not), and as to related matters.

  In this Part "statutory co-ownership" means co-ownership by virtue of the operation of Chapter II, and "statutory co-owner" shall be construed accordingly.
  (2) In this Part references to husband and wife and to marriage apply whether or not the marriage was entered into under a law which permits polygamy; but there shall be no statutory co-ownership on any occasion if at the time the husband has more than one wife or the wife more than one husband.
  (3) In this Part references to marriage apply to a voidable marriage, notwithstanding that it is retroactively annulled, and references to husband and wife shall be construed accordingly.
  Meaning of "own" and related terms
  2.—(1) In this Part of this Schedule the expression "own" and related terms refer to beneficial ownership and do not include ownership in a fiduciary capacity.
  (2) Subject to sub-paragraph (1) above land is for the purposes of this Part "owned" by a person if, but only if—

  (a) he is (within the meaning of the Law of Property Act 1925) the estate owner in respect of the fee simple absolute in possession or in respect of a term of years absolute in possession; or

  (b) he has a corresponding equitable interest.

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  (3) Where an equitable interest arises under a contract to convey or grant, for valuable consideration, an estate or interest within sub-paragraph (2)(a) or (b) above, the said sub-paragraph (2)(b) shall not apply to the equitable interest so arising if and so long as the consideration has not been paid or transferred.
  (4) Subject to sub-paragraph (5) below, where land or an interest in land is held on trust for sale, persons having an interest in the proceeds to arise from the sale and in the rents and profits till sale are for purposes of this Part to be treated as having the equivalent interest in the land; and sub-paragraph (2)(b) above shall include the case where a person is joint tenant or tenant in common of such an interest as is there mentioned.
  (5) A person is not to be treated for purposes of this Part as owning land by virtue of an interest he has in it as a member of a partnership; and for this purpose any interest a person has in land as a member of a partnership shall be deemed, notwithstanding that the partnership is dissolved or he ceases to be a member of it, to continue to be one he has as a member of it so long as any other person has any claim on the interest (or the property in which the interest subsists) as a member or former member of the partnership or in right of a former member.
  What constitutes a property
  3.—(1) Subject to the following sub-paragraphs, references in this Part to a "property" are to be read as references to a house or flat and any garage, outhouse, garden, yard and appurtenances going with it which from time to time constitutes or together constitute a dwelling.
  For this purpose "house or flat" includes a maisonette and any other separately occupied part of a building, but does not include a caravan or other structure designed or adapted for human habitation unless it forms part of the land on which it is sited.
  (2) Where husband and wife set up or have a home in a property as described in sub-paragraph (1) above, or a man and woman having a home in a property as so described marry, the property shall be taken to extend to any other land which—

  (a) is owned by them or either of them and goes with the property as an adjunct to it; but

  (b) does not form part of their dwelling either because it is used for business or other non-residential purposes or because it is not in their occupation.

  (3) Land not for the time being forming part of a property as described in sub-paragraph (I) above is, in particular, to be regarded under sub-paragraph (2) as going with the property if, given its situation and relation to the property, its primary use is likely to be for, or subservient to, the domestic purposes of an occupier of the property, including in those purposes the provision of accommodation for a parent or other dependant and such professional or business activities as those engaged in them commonly carry on at their homes.
  (4) Without prejudice to section 25 of the Interpretation Act 1978, references in this Part to land are to be read as including parts of houses or buildings.

  CHAPTER II
  STATUTORY CO-OWNERSHIP OF MATRIMONIAL HOME
  Construction of Chapter II
  4. The following paragraphs of this Chapter are framed for the case where, apart from their operation, the husband is the owner, but are to be read as applying equally, with the necessary adaptations of references to the husband or the wife, to produce the converse result in the case where the wife is the owner; and where each is part owner apart from the operation of those paragraphs that alone does not exclude their operation.
  Occasions for statutory vesting in co-ownership
  5.—(1) Where at the time when this Part comes into force husband and wife have a home in a property and the husband is owner of the property or part of it, then the two shall thereupon become co-owners in respect of the interest the husband then has as owner of the property or part.
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  (2) Where husband and wife set up a home in a property, and the husband is owner of the property or part of it, then the two shall thereupon become co-owners in respect of the interest the husband then has as owner of the property or part.
  (3)(a) Where husband and wife have a home in a property, and the husband acquires the ownership or a new ownership of the property or part of it otherwise than from the wife or out of her interest, then the two shall thereupon become co-owners in respect of that interest of the husband in the property or part; and
  (b) a husband is to be treated for purposes of this sub-paragraph as acquiring the ownership of a property or part of a property in any case where he becomes the owner whether by acquiring an interest (or further interest) amounting to ownership or by a change in an interest he already has or otherwise.
  (4) Where husband and wife have a home in a property, and there is made to the property any addition owned by the husband (whether so owned before it is added to the property or not), then the two shall thereupon become co-owners in respect of the interest the husband then has as owner of the addition.
  (5) Where a man and a woman having a home in a property marry one another, and the husband is at the time of the marriage (or becomes on the marriage) owner of the property or part of it. then the two shall thereupon become co-owners in respect of the interest the husband then has as owner of the property or part.
  (6) This paragraph has effect subject to the exceptions in paragraphs 7 to 14 below.
  Effect of statutory vesting in co-ownership
  6.—(1) Where a husband and wife become statutory co-owners in respect of an interest of the husband in a property or part of a property, then—

  (a) if the interest is a legal estate, it shall become subject to a trust for them as beneficial joint tenants; and

  (b) if the interest is not a legal estate, it shall vest in the two of them as beneficial joint tenants; and

  (c) the same consequences (including the creation of a trust for sale and the severance of any joint interest) shall ensue, as if the like result had been achieved by a written declaration of trust or assignment made by the husband.

  (2) Notwithstanding sub-paragraph (1)(c) above, no limitation, covenant or condition restrictive of the husband's right to deal with the property shall be taken to extend or have reference to any transfer of ownership under this section.
  Exception from statutory co-ownership of joint interests and certain derivative interests
  7. There shall be no statutory co-ownership on any occasion in respect of an interest of a husband where the interest either—

  (a) is one he has as joint tenant with the wife; or

  (b) derives from one he had as joint tenant with her, the joint tenancy having been severed at a time when they had a matrimonial home in the property; or

  (c) is one he acquired prior to that occasion out of an interest of hers in respect of which he is on that occasion excluded under paragraphs 8 to 14 below from becoming statutory co-owner (or would be if she retained the interest).

  Right of husband or wife to exclude statutory co-ownership in transitional cases
  8.—(1) There shall be no statutory co-ownership on any occasion in respect of an interest which a husband has at the date when this Part comes into force (or which derives from such an interest) if before that date—

  (a) the husband has by any writing signed by him declared that the interest he has at that date, being a separate interest, is to be free of statutory co-ownership; or

  (b) where the interest is not a separate interest, either the husband or the wife has by a writing signed by him or her declared that both the interest the husband has at that date and the wife's corresponding interest are to be free of statutory co-ownership;

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  and the person making the declaration under sub-sub-paragraph (a) or (b) above has not, before the occasion in question, by a further writing signed by him or her revoked the declaration.
  (2) A declaration under sub-paragraph (1)(a) or (b) above must be attested by a person present as a witness when the declaration is signed.
  (3) In this Chapter references to a separate interest of a husband or of a wife are references to an interest of his or her not being an interest as joint tenant or tenant in common with the other of them (with no implication that they are married at the time referred to).
  (4) In this Chapter references to a document being signed by a person include its being signed for him by his agent.
  Right of husband or wife to exclude statutory co-ownership of interests held before marriage
  9.—(1) There shall be no statutory co-ownership on any occasion in respect of any interest which a husband has in any land at the time of the marriage (including an interest acquired on the marriage) if—

  (a) he has before the marriage by any writing signed by him declared, either specifically with reference to the wife or generally, that the interest is to be free of statutory co-ownership; and

  (b) he has not, before the occasion in question, by a further writing signed by him revoked the declaration or (it being a general declaration) directed that it shall not have effect in the case of the wife.

  (2) A declaration under sub-paragraph (I)(a) above must be attested by a person present as a witness when the declaration is signed.
  (3) For purposes of this paragraph an interest as joint tenant and the interest derived from it by the severance of the joint tenancy are to be treated as one interest.
  Right of donor to exclude statutory co-ownership in case of gifts
  10.—(1) There shall be no statutory co-ownership in respect of an interest of a husband acquired by gift if the interest given him either—

  (a) is a separate interest which is directed by the instrument making the gift to be free of statutory co-ownership; or

  (b) is not a separate interest.

  (2) Subject to sub-paragraph (3) below, any disposition of an interest in land is a gift—

  (a) for purposes of sub-paragraph (1)(a) above, if it is made without consideration in money or money's worth moving from the husband (and is not a disposition by him alone);

  (b) for purposes of sub-paragraph (1)(b) above, if it is made without consideration in money or money's worth moving from the husband or the wife (and is not a disposition made by them or either of them alone).

  (3) Where a disposition of an interest in land is made by the exercise of a power of appointment, the interest is to be treated for purposes of this section as acquired by that exercise and not under the instrument conferring the power; but the disposition is not for those purposes a gift unless that instrument was made (as well as the power being exercised) without consideration as mentioned in sub-paragraph (2) above.
  (4) Where the husband's interest in any land is or was conferred on him as a separate interest by an instrument conferring a power of appointment capable of being exercised in his favour, but he acquires ownership of the land by a release of the power, then if the instrument releasing it directs that the husband's interest is to be free of statutory co-ownership, the direction shall have the same effect under this section as if the husband had acquired his interest by the exercise by that instrument of the power.
  (5) For purposes of this paragraph an interest as joint tenant and the interest derived from it by the severance of the joint tenancy are to be treated as one interest.
  Exclusion of statutory co-ownership by husband and wife '.s agreement for or creation of sole ownership
  11.—(1)(a) Subject to any written agreement to the contrary
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  signed by the husband and wife, there shall be no statutory co-ownership on any occasion in respect of a separate interest of the husband—

  (i) if at any time before that occasion the husband and the wife have entered into a written agreement signed by them that the interest is or is to be a separate interest and is to be free of statutory co-ownership; or

  (ii) if he has acquired the interest by her express disposition in his favour, or the interest became a separate interest or, being a separate interest, was enlarged or improved by such a disposition: and

  (b) in sub-sub-paragraph (a)(ii) above any reference to the wife's express disposition in the husband's favour is a reference to a written disposition made and expressed to be made to him beneficially and made by her or made and expressed to be made by her direction.
  (2) Subject to any written agreement to the contrary signed by the husband and wife, there shall be no statutory co-ownership on any occasion in respect of an interest of the husband if the interest is or derives from one in relation to which sub-paragraph (1)(a)(i) or (ii) above was satisfied at some previous time.
  (3) For the purposes of this paragraph an interest as joint tenant and the interest derived from it by the severance of the joint tenancy are to be treated as one interest.
  Exception from statutory co-ownership where entitlement of husband and wife to shared interest settled by agreement
  12.—(1) Subject to any written agreement to the contrary signed by the husband and wife, there shall be no statutory co-ownership on any occasion in respect of an interest of the husband, if—

  (a) the interest is not a separate interest, and the fact that they are or are to be joint tenants or tenants in common and, if tenants in common, the relative size of their shares has been specified by a written agreement signed by them or by an instrument such as is mentioned in sub-paragraph (2) below; or

  (b) the interest is or derives from one in relation to which sub-sub-paragraph (a) above was satisfied at some previous time.

  (2) The instruments referred to in sub-paragraph (1)(a) above are instruments whereby either—

  (a) the husband and wife are made beneficial joint tenants or tenants in common of the land or of an interest in it; or

  (b) one of them disposes of any right or interest in favour of the other,

  being instruments which satisfy one of the conditions in sub-paragraph (3) below.
  (3) The said conditions are—

  (a) that the entitlement of the husband and wife specified in the instrument as required by sub-paragraph (1) above is in accordance with a prior agreement between the husband and wife; or

  (b) that before the occasion in question both the husband and wife adopted the instrument by any act showing an intention to accept the instrument; or

  (c) where by the instrument one of them disposes of any right or interest in favour of the other, that before the occasion in question the other adopts the instrument by any act showing an intention to accept the instrument.

  (4) For purposes of sub-paragraph (3)(a) above the instrument (if it specifies the entitlement of the husband and wife as required by sub-paragraph (1)) shall be presumed, unless the contrary is shown, to do so in accordance with a prior agreement between them.
  (5) For purposes of this paragraph the entitlement of a husband and wife is not specified by an agreement or instrument as required by sub-paragraph (1), if the nature or extent of their interests is left in any relevant respect, other than a respect in which it is affected by the rights of some other person, to be ascertained from outside the agreement or instrument.

  1431
  (6) Sub-paragraphs (3) and (4) of paragraph 8 above shall apply for purposes of this paragraph as they apply for purposes of that paragraph.
  Exception from statutory co-ownership to avoid severance from other land
  13.—(I) There shall be no statutory co-ownership on any occasion in respect of an interest the husband has in a property or part of a property if at the time—

  (a) the husband has a substantive interest in any adjoining or neighbouring land which is not comprised in the property nor would be treated under paragraph 3(2) above as so comprised if owned by the husband; and

  (b) the difficulties or disadvantages involved in a severance would be such that, on a sale of the whole in the open market for the relevant estates or interests, subject to any subsisting tenancies but otherwise with vacant possession, it would not be practicable for the property or that part of it to be sold as a distinct lot without the adjoining or neighbouring land or, if it had to be so sold, the price to be expected for the whole would be substantially reduced.

  (2) Where but for this paragraph a wife would on any occasion have become statutory co-owner in respect of an interest of the husband in a property or part of a property, and afterwards while the husband is owner of the property or that part of it he ceases to be entitled to a substantive interest in the adjoining or neighbouring land or any material part of it (without the wife having in the meantime become statutory co-owner in respect of the interest in the property or the part of it in question), then this Part shall thereupon have effect as if he had acquired his ownership of the property or that part of it on ceasing to be so entitled.
  (3) For purposes of this paragraph "the relevant estates or interests" are—

  (a) in the case of the property or part of a property in question, the legal estate in respect of which, or in respect of the husband's interest in which, there is an occasion for the husband and wife to become statutory co-owners; and

  (b) in the case of the adjoining or neighbouring land, any legal estate in which the husband then has a substantive interest.

  (4) In this Part "substantive interest" means a beneficial interest (whether vested or contingent) other than an interest by way of security only, or by way of rent charge or annuity, or by way of charge under section 26 of this Act.
  Effect of bankruptcy or insolvency
  14.—(1) There shall be no statutory co-ownership on any occasion in respect of an interest of the husband, if at the time the wife is an undischarged bankrupt.
  (2) Where a wife, after becoming on any occasion statutory co-owner in respect of an interest of the husband, becomes bankrupt as from that time or an earlier time, then subject to sub-paragraph (4) below the wife shall be deemed not to have become on that occasion co-owner in respect of that interest.
  (3) Where a wife becomes insolvent, then—

  (a) there shall be no statutory co-ownership on any later occasion in respect of an interest of the husband, if the interest she thereby acquired would be included in the assets to be administered; and

  (b) subject to sub-paragraph (4) below, she shall be deemed not to have become on any earlier occasion statutory co-owner in respect of such an interest, if the assets to be administered extend (by relation back) to her then assets.

  (4) Sub-paragraphs (2) and (3)(b) above shall not affect any dealing by the wife with her interest before the time when she is adjudged bankrupt or becomes insolvent.
  (5) For the avoidance of doubt it is hereby declared that, subject to sub-paragraph (6) below, the circumstances in which the disposition ("the statutory disposition") supposed, by paragraph 6(1)(c) above, to be made by the husband is voidable by reason of his bankruptcy or insolvency are the same as the circumstances in which an actual disposition of that kind would be voidable.
  1432
  (6) Where the wife and the husband each become statutory co-owners in respect of an interest which the other has as part owner of the land (the two interests being ones which they have as tenants in common) and—

  (a) subsequently the husband becomes bankrupt or insolvent; and

  (b) the bankruptcy or insolvency is not one within sub-paragraph (2) or (3)(b) above (so that the statutory disposition by the wife is unaffected by the bankruptcy or insolvency),

  the statutory disposition by the husband shall not be voidable by reason of the bankruptcy or insolvency except to the extent (if any) by which the husband's interest as part owner of the land exceeded the wife's (so that avoidance of the statutory disposition will do no more than prevent the wife from having obtained, as co-owner of both interests, more than she had previously as entire owner of the one interest).
  (7) This paragraph shall have effect in relation to bankruptcies and to insolvencies under the law of any part of the United Kingdom or elsewhere.
  (8) In this paragraph references to insolvency are references to the making, in bankruptcy proceedings, of a composition or arrangement under which assets are to be administered by a trustee for the benefit of the insolvent's creditors and references to the assets to be administered shall be construed accordingly.
  Effect of minority or incapacity
  15.—(I) Notwithstanding anything in paragraph 6(1)(c) above, that paragraph shall have effect—

  (a) in relation to any interest of a husband who is a minor as if he were of full age;

  (b) in relation to any interest of a husband who is an incapacitated person as if he were not incapacitated.

  (2) A declaration or revocation made for purposes of paragraph 8 or 9 above shall not he affected by the minority of the person making it.
  Minority: agreement or instrument excluding statutory co-ownership
  16.—(1)(a) This sub-paragraph applies to an agreement which, under paragraph 11 or 12 above, has the effect of excluding a wife from statutory co-ownership in respect of an interest of the husband in any land, and in this sub-paragraph "the relevant law about minors" means the law relating to the effect on a contract of the minority of a party to the contract.
  (b) If the agreement was made in contemplation of the use or possible use by the parties of the land (or a property comprising it) as a matrimonial home, the agreement shall be treated for purposes of the relevant law about minors as a contract for the husband to acquire from the wife her interest as statutory co-owner.
  (2)(a) This sub-paragraph applies to an agreement, disposition or instrument which under paragraph 11 or 12 above has the effect of excluding a wife from statutory co-ownership in respect of an interest of the husband in any land.
  (b) Where the agreement, disposition or instrument is avoided by the wife or husband by reason of her or his minority paragraph 5(3) above shall apply as if on the avoidance the wife and the husband each acquired (otherwise than from the other or out of the other's interest) the interest she or he then has in the land in question.
  Exemption from stamp duty on reversal of statutory co-ownership
  17. Stamp duty shall not be chargeable on an instrument executed within two years after a husband and wife have become statutory co-owners of a property or of land comprised in a property, in so far as the instrument operates to vest in each of them the same interest (if any) in any land as he or she would have had if on the occasion in question there had been no statutory co-ownership in respect of any interest of either of them in the property or land comprised in it.

  CHAPTER II

    CHAPTER III
    Incidents of Co-ownership of Matrimonial Home
    18.—(1) For purposes of this Chapter "relevant land" means land of which a husband and wife are co-owners at a time (after the coming into force of this Part) when it is comprised in a property in which they have a matrimonial home, and includes any such land—

    (a) notwithstanding that the land ceases to be comprised in a property in which they have a matrimonial home; and

    (b) notwithstanding that they cease to be husband and wife.

    (2) For purposes of this Chapter land continues to be relevant land notwithstanding that on death, or on any other occasion, either the husband or the wife ceases to own the land, so long as—

    (a) the other remains an owner of the land in respect of the estate or interest in respect of which the husband and wife were co-owners immediately before that occasion; and

    (b) that estate or interest is held by trustees.

    (3) In this Chapter, where the context permits, in relation to relevant land—

    (a) in accordance with sub-paragraph (1)(b) above, references to "husband" and "wife" include former husband and former wife,

    (b) in the circumstances specified in sub-paragraph (2), references to the husband and wife being co-owners are references to one of them being an owner, and references to the husband or wife are references to that one of them.

    (4) In this Chapter—

    (a) "the trusts" means the trusts under which a husband and wife are co-owners of relevant land,

    (b) "the trustees" means the trustees of the trusts,

    (c) references to a disposition of trust property made by the trustees are references to a disposition by them of, or of any estate or interest in, the estate or interest held by them, not being a disposition incident to or consequent on the appointment, resignation or removal of a trustee,

    (d) references to a disposition do not include references to taking a further advance under an existing mortgage or charge.

    Qualifications of provisions requiring consent of husband or wife
    19.—(1) This paragraph applies to the following provisions of this Schedule ("the consent provisions") namely—

    (a) in paragraph 20 sub-paragraphs (1)(a) and (2)(a);

    (b) in paragraph 21 sub-paragraph (1);

    (c) in paragraph 36 sub-paragraph (1).

    (2) The consent provisions shall have effect in relation to any relevant land only if the husband and wife are or have been sole co-owners of the land at a time (after the coming into force of this Part) when it is comprised in a property in which they have a matrimonial home.
    (3) For purposes of this paragraph a husband and wife are sole co-owners of land if, regard being had only to substantive interests, they are sole co-owners in respect either of the fee simple or of a leasehold interest.
    Rights in respect of trusteeship
    20.—(1)(a) The consent of the husband and of the wife shall be required to any appointment otherwise than by order of a court of a new trustee of the trusts or to the discharge of a trustee from the trusts otherwise than on an appointment of new trustees.
    (b) A person's consent is required by this sub-paragraph, and shall for purposes of this sub-paragraph be valid and binding, notwithstanding that person's minority.
    (c) An appointment or discharge of a trustee shall not be invalid for want of a consent required by this sub-paragraph, nor shall any person be under any liability for making or concurring in an appointment or discharge without that consent unless he knows or ought reasonably to have known that the consent was so required.
    1434
    (d) Where a trustee is appointed without a person's consent required by this sub-paragraph. the court may on the application of that person remove the trustee from the trusteeship, unless in the opinion of the court the appointment is one that would have been made by the court in the circumstances.
    (2) Where a husband and wife are co-owners of relevant land under the trusts of a legal estate in the land, then—

    (a) if either of them is a trustee, he or she shall not without his or her consent be removed from the trusteeship of that estate under any power contained in the instrument creating the trust unless he or she remains out of the United Kingdom for more than twelve months or refuses or is unfit to act in the trust or is incapable of acting therein; and

    (b) either of them may be appointed trustee of that estate notwithstanding the statutory restrictions affecting the number of persons entitled to hold land on trust for sale, or those on the appointment of additional trustees, and if appointed by virtue of this provision shall be disregarded in the application of those restrictions; and

    (c) if either of them (being of full age) is not a trustee and applies to the court to be appointed trustee of that estate, the court shall make an order appointing him or her trustee of it (and of the proceeds of sale), unless the court sees special reason for not making the appointment.

    (3) In this paragraph "the court" means the High Court or a county court, and a county court shall have jurisdiction notwithstanding that, by reason of the amounts involved or otherwise, the jurisdiction would not but for this sub-paragraph be exercisable by a county court.
    (4) Where a person withholds consent under sub-paragraph (1) above to the appointment or discharge of a trustee of an estate or interest in land, a separate set of trustees may be appointed in accordance with section 37(1)(a) of the Trustee Act 1925 for the remainder of the trust property (if any), notwithstanding that it is not held on distinct trusts.
    (5) This paragraph has effect subject to paragraph 19 above.
    Sales etc. to require consent of both co-owners
    21.—(1) The trustees shall not without the consent of the husband and of the wife make any disposition of trust property.
    (2) A person's consent is required by this paragraph, and shall for the purposes of this paragraph be valid and binding, notwithstanding that person's minority.
    (3) The requirements of sub-paragraph (1) above, for any case within that sub-paragraph, shall take the place of any requirement of consent that might arise from the land having been acquired for a matrimonial home or other common purpose.
    (4) This paragraph has effect subject to paragraph 19 above.
    (5) A disposition made without a consent required by this paragraph shall be of no effect.
    (6) Where the trustees hold a legal estate sub-paragraph (5) above has effect—

    (a) where the legal estate is registered land, subject to paragraph 24(2) and (3) below;

    (b) where the legal estate is not registered land, subject to section 4(9) of the Land Charges Act 1972 (inserted by paragraph 30(2) of this Schedule).

    Court jurisdiction as regards consents and powers of trustees
    22.—(I) The court shall have power on the application of any person interested to declare whether a person's consent is required by paragraph 20 or 21 above or by paragraph 36 below, in the case specified in the application.
    (2) If—

    (a) any consent to a disposition by the trustees, or to their taking a further advance under an existing mortgage or charge, whether required by this Schedule or not, cannot be obtained, or

    1435

    (b) the trustees refuse to sell, or to exercise any of the powers conferred by sections 28 and 29 of the Law of Property Act 1925 (powers of management, and delegation of powers),

    any person interested may apply to the court—

    (i) for a vesting or other order for giving effect to the proposed transaction, or

    (ii) for an order directing the trustees to give effect to the proposed transaction,

    and the court may make such order as it thinks fit.
    (3) In considering under sub-paragraph (2) above a consent required from a person as being or having been one of the parties to a marriage the court may have regard to the welfare (if affected) of any children of the family within the meaning of the Matrimonial Causes Act 1973.
    (4) In this paragraph "the court" means the High Court or a county court, and a county court shall have jurisdiction notwithstanding that, by reason of the amounts involved or otherwise, the jurisdiction would not but for this sub-paragraph be exercisable by a county court.
    (5) The jurisdiction exercisable under section 30 of the Law of Property Act 1925 or section 17 of the Married Women's Property Act 1882 shall not be exercisable where the jurisdiction under this paragraph is exercisable.
    Trustees holding a legal estate in unregistered land
    23.—(1) This paragraph applies where the trustees hold a legal estate which is not registered land.
    (2) So long as the husband or the wife is not one of the trustees there may be registered in the register of land charges under section 2 of the Land Charges Act 1972 a land charge for his or her benefit to be known as a land charge of Class G.
    (3) Registration of a Class G land charge for the benefit of the husband or wife shall constitute registration—

    (a) of that person's beneficial interest under the trusts; and

    (b) if applicable, of the requirement of consent by that person imposed by paragraph 21 above,

    and notwithstanding that registration of that person's beneficial interest under the trusts shows that the legal estate is subject to trusts, registration of the land charge, or failure to register it, shall not affect any other person's interest under the trusts.
    (4) The Land Charges Act 1972 and the other enactments mentioned in Chapter I of Part IV of this Schedule shall be amended as provided in that Chapter.
    Registered land
    24.—(1)(a) Where the registered land is relevant land production of the land certificate shall not be required by section 64(1)(c) of the Land Registration Act 1925—

    (i) for an application for the entry on the register of a restriction with reference to the requirement that there shall be at least two trustees; or

    (ii) for an application for the entry on the register of a restriction with reference to the requirement of consent imposed by paragraph 21(1) above; and

    (b) accordingly in section 64(I)(c) of the Land Registration Act 1925 after the words "except as hereinafter mentioned" there shall be inserted the words "or as provided by paragraph 24(1) of Schedule (Matrimonial Homes (Co-ownership)) to the Family Law Act 1996".
    (2) A purchase under a registered disposition, as defined in section 3 of the Land Registration Act 1925, shall not, as against the purchaser, require the consent of any person under paragraph 21 if that consent requirement is not protected by a restriction or other entry on the register.
    (3) Sub-paragraph (2) above is without prejudice to section 59(6) of the Land Registration Act 1925 (failure to register matters capable, in the case of unregistered land, of registration under the
    1436
    Land Charges Act 1925) or any other provision of the Land Registration Act 1925 concerning matters which have not been protected by entry on the register.
    (4) For the removal of doubt it is hereby declared that the rights capable of being overriding interests under section 70(1)(g) of the Land Registration Act 1925 (which protects the rights of persons in actual occupation or in receipt of the rents and profits of registered land) do not include—

    (a) in the case of land held on trust for sale, interests or powers which are under the Law of Property Act 1925 capable of being overridden by the trustees for sale; or

    (b) in the case of settled land, interests or powers which are under the Settled Land Act 1925 and the Law of Property Act 1925 or either of them capable of being overridden by the tenant for life or statutory owner.

    Further advances on mortgages
    25. Chapter II of Part IV of this Schedule, which relates to mortgages made for securing further advances, shall have effect.
    Application of proceeds of sale
    26.—(1) Where the interest of a husband and wife in any relevant land is sold during the marriage, then either of them who pays or has paid the whole or part of the cost of acquisition of a new home (that is to say, of another property in which they have or propose to have a matrimonial home in place of the home in the property comprising that land) may require the other to apply in meeting the cost of acquisition of the new home a sum amounting to the other's share of the proceeds of the sale or any less sum and, if the other does not, may apply to the court for an order requiring it.
    (2) In sub-paragraph (1) above—

    (a) the reference to an interest in land being sold shall extend to any disposal, by the trustees, or by the husband and wife, for a consideration in money (and references in this section to proceeds of sale shall be construed accordingly); and

    (b) the reference to acquisition includes acquisition before the coming into force of this Part, and before the making of any decision to have a matrimonial home in the property.

    (3)(a) On an application for an order under this paragraph, the court may make such order (if any) as the court thinks just; but the court may refuse to make an order if the court thinks it just to do so having regard to lapse of time or other matters.
    (b) The court may in particular by an order under this sub-paragraph—

    (i) direct the respondent to make to the applicant or any other person such payments at such times as may be so directed; and

    (ii) direct that any payment to be made by the respondent under this sub-paragraph shall be secured for the benefit of the applicant on any substantive interest of the respondent in the new home.

    (c) An order of the court under this sub-paragraph shall not affect the substantive interests of the applicant and the respondent in the new home except in so far (if at all) as the extent of their respective interests is affected by the proportion in which they bear the cost of acquisition.
    (4) The jurisdiction conferred on the court by this paragraph shall be exercisable by the High Court or by a county court, and shall be exercisable by a county court notwithstanding that by reason of the amounts involved or otherwise the jurisdiction would not but for this sub-paragraph be exercisable by a county court.
    (5) A husband or wife's right under sub-paragraph (1) above, and the court's power under sub-paragraph (3), to require money to be applied in meeting the cost of acquisition of a new home shall be limited to the amount (or further amount) from time to time needed in order that the cost may be borne by the husband and the wife in proportion to their respective shares of those proceeds of sale, but includes the right to require any such amount to be applied in reimbursing to him or her money applied in meeting that cost.

    1437
    (6) Any reference in this paragraph to the proceeds of sale of land is a reference to the net proceeds after meeting the costs of or incidental to the sale and after satisfying any sum secured on the interest sold.
    (7) For purposes of this paragraph the cost of acquisition of the new home shall be taken to include—

    (a) the cost of any improvements or alterations to the property undertaken in order to adapt it for the purposes of the husband and wife; or

    (b) where the new home is provided by the erection of a house, the cost of erection, in addition to the cost of acquisition of the site.

    (8) It is immaterial for purposes of this paragraph that the new home is not in England or Wales.
    (9) Sub-paragraph (1) above shall have effect subject to any agreement made between the husband and wife, and shall not apply where either the husband or the wife is not an owner, but the land is relevant land by virtue of paragraph 18(2) above.

  PART II
  PROVISIONS APPLYING TO MATRIMONIAL HOME OR OTHER LAND
  Equal co-ownership of husband and wife not disturbed by payments for acquisition or improvements
  27.—(1) So long as two spouses are equal co-owners of any land in England or Wales either as joint tenants or as tenants in common having equal shares with one another, any contribution made by one of them in money or money's worth to meeting the cost of acquisition or to the improvement of the land shall be deemed, for the purposes of any rule of law or presumption as to the effect of such a contribution in conferring an interest or larger interest on the person making it, to be made equally by the two of them, except where they became tenants in common having equal shares with one another by the operation as between themselves of any such rule of law or presumption.
  (2) Any reference in sub-paragraph (1) above to a contribution to meeting the cost of acquisition or to the improvement of the land includes expenditure on or with a view to the repayment of money borrowed to defray the cost of acquisition or of an improvement.
  (3) In relation to the rule as to improvements this paragraph shall be deemed always to have had effect, except where the marriage has been terminated before the time when this Part comes into force, or before that time either—

  (a) one of the spouses has by any contribution acquired under the rule a share or additional share out of the beneficial interest of the other, and the extent of that share has been ascertained by agreement between them or by order of a court; or

  (b) one of the spouses by writing signed by him or her or for him or her by his or her agent has directed that this subsection shall not apply.

  (4) This paragraph shall not affect the operation of the rule as to improvements as that rule is applied by section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1970 (property of engaged couples if engagement terminated), except where an agreement to marry is terminated by death after this Part comes into force.
  Application of certain rules to engaged couples
  28.—(1) Subject to sub-paragraph (2) below, where after the coming into force of this Part a man and a woman enter into an agreement to marry one another, then as regards land in England and Wales the rule as to improvements and paragraph 27(1) and (2) above shall apply as if their agreement to marry had been implemented.
  (2) Where an agreement to marry is terminated otherwise than by death, the beneficial interest of the parties to the agreement in Any land shall be the same as if this paragraph had not been enacted.
  Interpretation of Part II
  29. In this Part—

  (a) "co-owner" has the same meaning as in Part I;

  1438

  (b) "the rule as to improvements" means the rule of law explained by section 37 of the Matrimonial Proceedings and Property Act 1970.

  PART III
  MISCELLANEOUS
  Sharing of "winkling money"
  30.—(1) Where two spouses have a home in a dwelling-house (whether a house or part of a house) of which they have, or one of them has, a statutory tenancy under the Rent (Agriculture) Act 1976. or the Rent Act 1977, and either of them receives any pecuniary consideration in respect of the giving up of possession of the dwelling-house, the other shall be entitled to receive from that one a sum equal to half the net amount or value of that consideration.
  (2) For the purposes of this paragraph "pecuniary consideration" includes any consideration in money or money's worth other than land and interests in land; and the net amount or value of the pecuniary consideration received by a spouse is the amount or value of it reduced by the amount or value of any consideration which that spouse gives in order to enable possession of part of the dwelling-house to be obtained from another and given up.
  Rules as respects registered and unregistered land
  31. The powers of making rules under section 144 of the Land Registration Act 1925 and section 16 of the Land Charges Act 1972 shall include power to make provision for the purpose of implementing this Schedule.

  PART IV

    CHAPTER I
    CLASS G LAND CHARGE: AMENDMENT OF OTHER ACTS
    Land Charges Act 1972 (c. 61)
    32.—(1) In section 2 of the Land Charges Act 1972 (the register of land charges) after subsection (7) there shall be inserted the following subsection—
    "(7A) A Class G land charge is a land charge registrable under paragraph 23 of Schedule (Matrimonial Homes (Co-ownership)) to the Family Law Act 1996."
    (2) At the end of section 4 of the Land Charges Act 1972 there shall be inserted the following subsection—
    "(9)(a) A land charge of Class G (as described in paragraph 23(3) of Schedule "(Matrimonial Homes (Co-ownership)) to the Family Law Act 1996) shall, as against a purchaser of the land to which it relates, or of any interest in such land, be unenforceable unless the land charge is registered in the appropriate register before the completion of the purchase.
    (b) Accordingly, unless the land charge is so registered before the completion of the purchase, the purchase shall overreach the beneficial interest of the person for whose benefit the land charge is registrable whether or not the requirements of section 27(2) of the Law of Property Act 1925 (capital money not to be paid to a single individual as trustee) are complied with.
    (c) Unless the land charge is so registered before completion of the purchase, the purchase shall not as against the purchaser require that person's consent under paragraph 21 of Schedule (Matrimonial Homes (Co-ownership)) to the Family Law Act 1996."
    Law of Property Act 1925 (c. 20)
    33. At the end of section 2(3)(v) of the Law of Property Act 1925 (interest protected by registration not to be over-reached under section 2(2) of that Act, but subject to the exceptions in paragraphs (a) and (b) of the said paragraph (v)) there shall be inserted the following paragraph—
    "(c) an equitable interest registrable as a land charge of Class G".
    County Courts Act /959 (c. 22)
    34. In Schedule I to the County Courts Act 1959 (county court jurisdiction under section 1(6) of the Land Charges Act 1972) in column 2 against section 10(8) of the Land Charges Act 1925 (re-enacted in the said section 1(6) for the words "or Class E" there shall be substituted the words "Class E or Class G".

    CHAPTER I

      CHAPTER II
      MORTGAGEES MAKING FURTHER ADVANCES
      Preliminary
      35.—(1) This Chapter applies where the estate or interest held by the trustees is subject to a mortgage made, whether before or after the coming into force of Part I of this Schedule, for securing further advances.
      (2) In this Chapter—

      (a) "mortgage" includes a charge, and "mortgagee" shall be construed accordingly,

      (b) "mortgagee" includes any person deriving title under the mortgagee.

      Further advance to require consent of both co-owners
      36.—(1) The trustees shall not without the consent of the husband and wife borrow any money by way of further advance secured by the mortgage.
      (2) A person's consent is required by this paragraph, and shall for purposes of this paragraph be valid and binding, notwithstanding that person's minority.
      (3) This paragraph has effect subject to paragraph 19 of this Schedule.
      (4) It is hereby declared that no obligation to make a further advance shall be enforceable against the mortgagee so as to require him to make it without a person's consent required by this paragraph.
      Avoidance of charge securing a further advance
      37. If a further advance is made without a person's consent required by paragraph 36 above, the mortgage, so far as it secures that further advance, shall be of no effect if, and only if, before the making of the further advance—

      (a) notice in writing was served on the mortgagee or his agent by or on behalf of the person whose consent was required stating that that consent was required, or

      (b) that person's consent was required to the creation of the mortgage, and the mortgagee knew that that consent had been given.

      Cases in which a further advance overreaches interest of husband or wife
      38.—(1) The mortgage, so far as it secures a further advance, shall not overreach the interest of the husband or wife under the trusts if the further advance is paid or applied in contravention of section 27(2) of the Law of Property Act 1925 (capital money not to be paid to a single individual as trustee), and the mortgagee had, before the making of the advance, effective notice, as defined in paragraph 39 below, of that interest:
      Provided that if the husband or wife was the person to whom, or by whose direction, the further advance was paid or applied this sub-paragraph shall not apply to that person's interest under the trusts.
      (2) Except as provided by sub-paragraph (1) above the mortgage, so far as it secures a further advance, shall overreach the interests of the husband and wife under the trusts.
      (3) This paragraph has effect whether or not the interest of the husband or wife under the trusts can be or is registered or protected under the Land Charges Act 1972 or the Land Registration Act 1925.
      Meaning of effective notice
      39.—(1) For purposes of paragraph 36 above the mortgagee has effective notice in the circumstances specified in this paragraph.
      1440
      (2) The mortgagee has effective notice when notice in writing is served on him or his agent by or on behalf of the spouse stating that the relevant land. or the trustees' estate or interest, is subject to trusts.
      (3) The mortgagee has effective notice as from the time when the mortgage is made if the trusts arose before that time and—

      (a) the mortgage was made by two or more persons, or by a trust corporation known to the mortgagee to be acting as a trustee, or

      (b) the mortgage did not overreach the interest of the husband or wife under the trusts.

      (4) Notice under sub-paragraph (3)(a) above is effective notice of the interests under the trusts of both the husband and the wife, and notice under sub-paragraph (2) or sub-paragraph (3)(b) above is effective notice of the interest of the spouse by or on behalf of whom the notice is served, or as the case may be of the spouse whose interest was not overreached.").
      The noble and learned Lord said: Amendments Nos. 207, 208 and 209 were grouped with a paving amendment and, although they were not considered, they were open to debate. In those circumstances, I do not propose to move them.
      [Amendment No. 207 not moved.]
      [Amendments Nos. 208 and 209 not moved.]
      Schedules 4 and 5 agreed to.
      Schedule 6 [Amendments of Children Act 1989]:
      Lord Meston Lord Meston moved Amendment No.209A:
      Page 57, line 35, at end insert—
      (" . After paragraph 11 of Schedule 2 to the Children Act 1989 there shall be inserted—
      " . Every local authority shall take such steps as are reasonably practical and as may be necessary, to advise, assist and, where appropriate, befriend those families with dependent children which notify a Court that the marriage or relationship has broken down or is in danger of breaking down.".").
      The noble Lord said: The noble Baroness, Lady Elles, asked me to express her regret that she cannot be here to move this amendment and has asked me to do so on her behalf. At present no steps are required to be taken by a local authority when marriages get into difficulty. A visit to a solicitor is often the first step, followed by divorce. There is a role for the churches and the counselling agencies but they are voluntary and need first to be approached by a party to the marriage. Parties may not know of their services. In the first instance, a local authority has a role to fill that gap. Its services should be activated after parties notify the court of the breakdown of their marriage - that is, when there is the initial statement of breakdown. Local authorities should make available their services to advise, assist and, where appropriate, to befriend those families with dependent children. The local authority may then assist those families to seek help from counselling agencies or the Church, which would keep costs to a reasonable level.
      I know that the noble Baroness was particularly anxious that in the divorce process the voice of the child should be heard and that the child should have someone to speak to and, where appropriate, to assist him or her. That is the purpose of the amendment. It strikes me that the amendment meets a need which, to some extent, used to be met by the old Section 41 of the Matrimonial Causes Act 1973. Since the amendment of that section

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      of the Children Act 1989, the usefulness of Section 41 has diminished considerably. It is on that basis that, on behalf of the noble Baroness, I beg to move.
      The Lord Chancellor: The court's power in Section 16 of the Children Act to make a family assistance order in any family proceedings has certain similarities to the amendment. That order can apply to specific members of the family or to the family as a whole, and can he made whether or not any other order is made in relation to the child. It is a short-term order designed to provide the expert help of a probation officer or local authority officer to promote co-operation within the family or to assist it to cope with problems arising during what may be a difficult period of transition following divorce or separation.
      However, that involvement will clearly not be necessary or appropriate in every case, and the Act therefore provides that before making an order the court must he satisfied that the circumstances are exceptional and that the consent of every person named in the order other than the child is obtained.
      The proposed amendment would be in addition to the court's power to make a family assistance order. Local authorities would be required to become involved whenever the court was notified of the breakdown or impending breakdown of a relationship, and to decide themselves what steps it was reasonably practical and necessary to take. I consider that, as at present, decisions of that nature are best exercised by the courts in the light of all the circumstances of the individual case, which is essentially the power under Section 16.
      In addition, the amendment is unclear on whom the onus to notify the local authority would rest. It appears that an obligation would be placed upon the court to keep a record of notices received and to pass them to the local authority. Also, it does not require the consent to the referral of all the parties involved. The latter is essential, as, if there is opposition to the involvement of an outside agency from within the family, then that involvement is unlikely to be successful in resolving the difficulties that may exist. The principle of the Children Act is that only where intervention in family life is necessary is it right for a local authority, for example, to become involved.
      The Government are committed to providing help to support services to families where the need arises to help them resolve areas of conflict and to protect the welfare of the children involved. However, I believe that families should not be subject to the intervention of outside agencies unless it is clear that that is genuinely necessary. In the great majority of cases, it is likely that local authority intervention of the type proposed by the amendment would not be appropriate, and thus substantial time and resources would be wasted in unnecessary investigations which could well have the effect of exacerbating tensions within the family.
      I understand well my noble friend's concerns, so well expressed on her behalf by the noble Lord, Lord Meston, but I believe that Section 16 of the Children Act strikes the appropriate balance between those concerns and the need to preserve the autonomy of families generally when considering intervention by
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      outside agencies. Therefore I hope that my noble friend and the noble Lord will see that it is better to address those concerns within the powers existing under Section 16 to which I have referred.
      Lord Meston: The amendment was designed, as I understand it, to provide a practical method of notification of local authorities. It has to be said that even the exceptional circumstances which would normally provide for a family assistance order can he overlooked under the existing process. Perhaps the way to cater for the needs which the amendment seeks to meet would he for the Government to consider breathing some fresh life into Section 41 of the Matrimonial Causes Act 1973. That is something that may have to be looked at later. I am sure that the noble Baroness would wish me to reserve her position. On that basis, I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Schedule 6 agreed to.
      Schedule 7 [Transfer of certain tenancies on divorce etc. or on separation of cohabitants]:
      The Lord Chancellor The Lord Chancellor moved Amendment No. 210:
      Page 58, line 45, leave out ("respective").
      The noble and learned Lord said: I spoke to this amendment with Amendment No. 186. I beg to move.
      On Question, amendment agreed to.
      Schedule 7, as amended, agreed to.
      Schedule 8 [Minor and Consequential Amendments]:
      Lord Meston Lord Meston moved Amendment No. 211:
      Page 62, line 44, leave out ("months") and insert ("weeks").
      The noble Lord said: The schedule reproduces Section 1(5) of the Matrimonial Causes Act which provides that the time between the decree nisi and the decree absolute in a nullity suit should be six months unless a shorter period is fixed. Since 1972 the period has actually been six weeks and it seems absurd to re-enact a period of six months. On that basis, I beg to move.
      The Lord Chancellor: I am happy to consider this amendment. However, there is a question as to whether if one does this the power of the High Court to shorten the period further should be preserved. It may be that at this juncture the thing to do is to fix the period in the primary legislation and leave it at that. However, I shall be happy to consider that further.
      Lord Meston: I am grateful for that indication. I would wish the power of the court to shorten the period to be preserved. But, subject to that observation, I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendments Nos. 212 to 212C not moved.]
      Schedule 8 agreed to.
      Schedule 9 [Modifications, Saving and Transitional]:
      The Lord Chancellor The Lord Chancellor moved Amendment No. 213:
      Page 78, leave out lines 13 to 18.
      The noble and learned Lord said: This is a drafting amendment. I beg to move.
      On Question, amendment agreed to.
      Schedule 9, as amended, agreed to.
      Remaining schedule agreed to.
      House resumed: Bill reported with amendments.

  Reserve Forces Bill [H.L.]
  Reported from the Committee (on Recommitment) in the Moses Room with an amendment and ordered to be reprinted as amended.
  House adjourned at twenty-eight minutes past eleven o'clock.