Lords Sitting of 27 June 1996

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

BBC Charter and Agreement
Lord Orr-Ewing Lord Orr-Ewing asked Her Majesty's Government:
On what date the new BBC Charter and Agreement will come into effect; and on what date the up-dated producer codes will come into effect.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, the new BBC Charter and Agreement came into effect on 1st May. The new impartiality code is due to be produced in July and the updated producers' guidelines are expected to be published in the autumn.
Lord Orr-Ewing: My Lords, that is rather late. If we can bring in the new Charter and Agreement on 1st May, it is a pity that we cannot also bring in the new codes which will react on the BBC and the new functions and responsibilities of the governors to see how they are working. Can the Minister assure us that the code will be published and both read and put into action by the new structure of the BBC?
Lord Inglewood: My Lords, the new obligations on the BBC have been in place since 1st May. I can confirm that the new arrangements impose a much more rigid regime and the new requirements will be vigorously enforced by the BBC, as the new Chairman of the Governors, Sir Christopher Bland, made clear.
Lord Donoughue: My Lords, is the Minister aware that under the new management structure announced to conduct the BBC under its new Charter and Agreement, the World Service is to be absorbed into a single unit? Given that the great reputation of the World Service is based particularly on its unique and separate identity, can the Minister assure the House that its distinctive values and news priorities will be maintained within that uniform structure?
Lord Inglewood: My Lords, it is for the BBC to decide how best to make its arrangements. It is early days, but I can confirm that the characteristics and quality of the World Service, which are so well regarded both in this country and abroad, will be maintained.
Lord Thomson of Monifieth: My Lords, following the question of the noble Lord, Lord Donoughue, may I ask whether the Minister is aware that in the new Agreement there is a new clause—Clause 4—which specifically calls for public consultation before the BBC makes any material change to the nature of its services? The radical change in the structure that has been put
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forward has major implications for the service to which the noble Lord, Lord Donoughue, referred. That took place with no public consultation, either outside or inside Parliament, and indeed with no consultation with the most senior management in the BBC. Is that not a breach of the spirit of the Agreement?
Lord Inglewood: My Lords, I want to make clear that the clause to which the noble Lord, Lord Thomson of Monifieth, refers relates to objectives for the Home Service. We are talking about the way in which the BBC internally organises itself. What is being done therefore falls outwith the scope of the matters to which the noble Lord, Lord Thomson, refers.
Lord Barnett: My Lords, I am sure that everyone shares our admiration for the World Service, which is held in high esteem worldwide. As I understand it, it is to be quite separate from the domestic services. Can the Minister confirm that the cuts being made by the Foreign Office amount to £4.8 million from the capital budget this year and another £4.1 million in the operating budget in the following year, leaving a shortfall of £8 million? Are there any plans to do anything about that?
Lord Inglewood: My Lords, I understand that the BBC is confident that by the application of greater efficiency it can retain the level of services it is currently able to deliver.
Lord Boyd-Carpenter: My Lords, can my noble friend confirm that the BBC World Service will be maintained to the same high level of quality it has enjoyed over the years and that there will be no changes?
Lord Inglewood: Yes, my Lords.
Lord Chalfont: My Lords, does the Minister recall that when certain amendments were tabled and withdrawn during the passage of the Broadcasting Bill through this House and through Parliament, it was on the understanding that the Charter and Agreement would give the governors not just the right, but the obligation to exercise control over some of the more idiosyncratic and radical elements of the producers and presenters in the BBC? Can he give us an assurance that those producers and presenters who put on programmes in the BBC will be required to obey the new codes of practice and not just use them as an interesting basis for discussion?
Lord Inglewood: My Lords, the noble Lord, Lord Chalfont, is correct. The powers of the governors were defined and further identified in the new charter. Adherence to the producers' guidelines is an essential part of the job of those working for the BBC. A failure to adhere to those guidelines is a serious disciplinary matter.
Lord Avebury: My Lords, is the noble Lord aware that there is not a single individual in the whole of Bush House who agrees—
Lord Jenkins of Putney: My Lords—
The Lord Privy Seal (Viscount Cranborne): My Lords, I am sure it will be helpful if we take one question at a time.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that the undertaking that he has just given to the noble Lord, Lord Chalfont, does not agree with the Minister's own undertaking that this great and memorable broadcasting service will be maintained in the manner in which it has been maintained? On the one hand, one cannot introduce government control at second hand and, on the other, say that everything will be the same as before.
Lord Inglewood: My Lords, the noble Lord, Lord Jenkins, seems to have misunderstood. There is no question of government control being imposed at second hand. The Government, legislating through the Charter and Agreement, laid down certain general guidelines as to the modus operandi of this independent organisation. It is within those guidelines that the BBC will function independently.
Lord Avebury: My Lords, is the Minister aware that there is not a single individual in Bush House who agrees with the proposals made by Mr. John Birt? What provision is there in the Charter for safeguarding the World Service from being destroyed, thus cancelling out an asset which is not only of value to the people of Britain, but to the whole world?
Lord Inglewood: My Lords, the noble Lord, Lord Avebury, over-reaches himself. What he has said is not the case, but merely a generalisation. It is part of the terms of reference of the BBC to have a world service. There is no question of it being dismembered or anything else.
Lord Tebbit: My Lords, may I ask my noble friend whether he has any hope that we shall in future, under the new producer code, see soap operas which represent the more orthodox views of family and society, which I believe will be generally favoured in this House, as opposed to some of the rather strange values which are put forward in soap operas? Does he have any further hope that one day we might also see a play about the Falklands War which represented it as a justifiable war, which was well managed, successful and in which honourable men fought bravely and overcame their opponents in an honourable manner?
Lord Inglewood: My Lords, the manner in which the BBC operates is within the constraints of the proper rules of impartiality, good taste and decency. Subject to editorial decisions to broadcast these matters, I have not only the hope but the expectation that we shall see such programmes.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware—
Baroness David: My Lords—
Noble Lords: Stoddart!
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that many of us believe that it is simply not good enough to say that the BBC should decide how to maintain this service? This is a matter for the country and for Parliament. Does the Minister agree that Parliament has a great interest in what goes out over the airwaves to the world which gives an impression of Britain? Is the Minister further aware that many of us are getting fed up with the bad publicity that this country so often gets and that the World Service is the medium through which that can be corrected? I should like to have an assurance from the Government that not only will the revenue for the service be maintained but will be improved.
Lord Inglewood: My Lords, as I have already said, the qualities of the World Service are recognised not only by the Government but, clearly, by your Lordships' House as well. The way in which the BBC was established was recommended by the Select Committee of another place. The Government agreed that that was right in their White Paper The Future of the BBC. The matter was debated in both Houses of Parliament. Although there were a number of dissenting voices the general consensus clearly was that this was the right way to proceed. Against that background the World Service will be operated in that way.
Baroness David: My Lords—
Lord Campbell of Alloway: My Lords, perhaps I may ask my noble friend the Minister—
Noble Lords: Next Question!
Viscount Cranborne: My Lords, we have the luxury of only three Questions today. With your Lordships' permission it might be sensible to confine ourselves to perhaps two more questions on this subject. Perhaps the noble Lord, Lord Annan, will kick off.
Lord Annan: My Lords, can the noble Lord explain how the World Service is going to be maintained at its present level when, as I understood him to say, £8 million are being taken from the Foreign Office Vote for that service? Is it true, as rumour suggests, that many of the specialised people who work in Bush House, broadcasting in foreign languages, are going to be disbanded?
Lord Inglewood: My Lords, I shall answer the noble Lord's second question first, which is that I am not in a position to know the answer. I shall write to the noble Lord. The World Service obviously has to operate within budgetary constraints, as does the rest of government. As I have mentioned earlier, within those constraints we believe that there is considerable capacity for increased efficiency, which will mitigate the impact of those cuts on the service that is provided.
Lord Campbell of Alloway: My Lords, what are the means and the sanction by which the undertaking my

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noble friend has given can be honoured, in particular as regards the World Service, on which I made my maiden speech in this House?
Lord Inglewood: My Lords, as I of all Members of your Lordships' House am most aware, Parliament takes a very great interest in matters relating to the BBC. I have no doubt that your Lordships will be only too ready to draw the attention of the Government to the concerns that they may have and, in particular, if noble Lords felt that there were severe threats or otherwise to the future of the World Service. That is the way in which Parliament can register its interests.

MV "Derbyshire": Loss Investigation
3.19 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Whether they will reconsider their refusal to permit a representative of the Derbyshire Families Association to be present during the further investigations concerning the loss of MV "Derbyshire" which they announced on 3rd May 1996.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, we have given sympathetic consideration to the request from the Derbyshire Families Association that it should be represented on, or have a degree of control over, the return to the ship. We have concluded that this would not be appropriate. The association is one of a number of parties with an interest in the outcome of the return expedition. For one of those parties, but not the others, to be represented on the return expedition could lead to suggestions that the findings lacked balance or objectivity.
Lord Dean of Beswick: My Lords, is the Minister aware that since that terrible incident, with its heavy loss of life, many of the next of kin, including the spouses and children of the men who died, have also passed on without knowing how their husbands and fathers died? At this stage, would it not be an act of great compassion, for which the Government could earn some plaudits, if they were to allow the surviving next of kin the right to appoint an appropriate representative to go on that exercise and to put forward a view on return? I am not suggesting that anyone would try to produce a phoney report, but surely after all the time that has elapsed and all the people who have passed on, the Government can recognise that they would gain some credit by such an act of compassion. I cannot see any reason at all why they should not do that.
Viscount Goschen: My Lords, we are sympathetic—I personally am very sympathetic—to the concerns of the Derbyshire Families Association. I pay tribute to its work over the past 16 years since the terrible and tragic loss of that vessel. It is because of the association's work that the issue is still largely in our thoughts. However, we must remember that the return expedition
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must be foolproof, for want of a better word, in terms of objectivity because it could lead to the reopening of the formal inquiry. That is why we believe that, in the long-term interests of finding out what actually happened and securing agreement on it, it would not be appropriate for a representative to accompany the expedition.
Lord Clinton-Davis: My Lords, does not the Minister recognise that there is a world of difference between people who have suffered the most appalling bereavement and those with other interests such as the insurers, shipowners and cargo owners whose interest cannot he as profound? Does not the Minister also recognise that those involved in the association have suffered a great sense of injustice over a considerable period—some 16 years—that their case was not being listened to and that consequently all that they are asking for, as I understand it—perhaps the Minister will confirm the position—is for somebody to be present simply to observe what happens at the investigation? Therefore, instead of adopting an attitude of sympathy, would not the Minister be wise to offer a positive means of expressing that sympathy and to review what he has decided not only with a sense of urgency but, as my noble friend said, with compassion?
Viscount Goschen: My Lords, I recognise that members of the Derbyshire Families Association have a special interest on compassionate grounds, having suffered the terrible loss of their families and friends. However, although the other interested parties have a different interest, it is nonetheless a strong interest. I hope that the Government have shown their seriousness about getting to the bottom of the issue and finding out the real benefits for maritime safety by agreeing jointly to fund such a major expedition in two parts so long after the event. We are dedicated to finding a proper solution to the issue. That is why we have decided to take forward the mission in two parts. If there was an easy and proper solution to this, I would certainly take it. However, I really do not believe that we can allow anything to threaten the objectivity of the results of the expedition.
Lord Clinton-Davis: My Lords, what if the Minister were to secure an undertaking from any representative duly appointed by the Derbyshire Families Association that there would be no interference with the investigation and that the representative would be there purely and simply as an observer? Given that there has been a large measure of suspicion among the bereaved about indifference on the part of the Government over many years until fairly recently and until the International Transport Workers Federation initiated the inquiries, does the Minister recognise that to undertake in a positive and constructive manner what my noble friend asks would allay those suspicions?
Viscount Goschen: My Lords, I welcome the noble Lord's contribution to the debate, but I hope that the suspicions to which the noble Lord alluded can be put to one side by the very fact that we appointed the noble and learned Lord, Lord Donaldson of Lymington, to conduct an independent assessment of the matter. The

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noble and learned Lord produced a full report which recommended returning to the wreck site. That is what we have done and I hope that that puts firmly to one side any suspicions which the association might have.
Lord Donaldson of Lymington: My Lords, will the Minister confirm that the assessment paid a considerable tribute to the efforts of the Derbyshire Families Association to get the matter further investigated and to keep it before the public eye? Will the Minister also confirm that the recommendation suggested that an expedition return to gather evidence, not to reach conclusions? There will no doubt be a later stage when the evidence can be examined. The Minister may wonder what contribution an observer can make which the Derbyshire Families Association and others have not already made by suggesting to the expert technical advisers what they should be looking for. If there is any suspicion that the expert technical advisers are in any way biased in favour of any particular solution, I personally can assure the Minister that that is not the case.
Viscount Goschen: My Lords, I thank the noble and learned Lord for his contribution. I confirm what he said about the conclusions of the report and about the fact that this is an evidence-gathering mission which will take place in two stages. I concur with the noble and learned Lord that the purpose must be to gather evidence in as objective and professional a manner as possible. That evidence will then be debated before firm conclusions are reached.
Lord Tebbit: My Lords, does my noble friend agree that if at some later stage blame were to be apportioned to one party or another, it would be tragic if, by virtue of an act of compassion in allowing observers to go on the mission, that party could attempt to wriggle out by saying that the families had been given a special privilege which had not been accorded to him?
Viscount Goschen: My Lords, my noble friend is absolutely right. That is the point that I have been trying to put across, but my noble friend does it much better. The results of the expedition could lead to the reopening of the formal inquiry. I firmly believe that it is in the best interests of the families to be at arm's length from the independent assessment stage so that there is no question, accusation or taint of anything other than an objective and independent assessment of factual evidence.
Lord Dean of Beswick: My Lords, is the Minister aware that I join the rest of your Lordships' House in expressing my appreciation to the noble and learned Lord, Lord Donaldson, for the magnificent report which he produced on the subject? I thank the Minister for his expressions of personal deep sympathy for the people involved. However, I get the impression that the decision has been taken by somebody higher than the Minister. If that is the case, will the Minister take this issue back to the person concerned and make him aware of what has been said in your Lordships' House today?
Viscount Goschen: My Lords, it was my decision.

Euro '96: Nationalistic Press Reports
3.28 p.m.
The Viscount of Falkland The Viscount of Falkland asked Her Majesty's Government:
What action, if any, they consider appropriate to counteract recent expressions of nationalism in certain newspapers in connection with Euro '96.
Lord Inglewood: My Lords, newspapers are subject to the criminal law and can be prosecuted for breaking it. Breaches of the industry's code of practice are for the Press Complaints Commission. Matters of tone, taste and content are for the editors, proprietors and publishers. The Government believe that the application of existing rules and imposition of the relevant sanctions where appropriate are sufficient to define the limits beyond which newspapers should not go.
The Viscount of Falkland: My Lords, I thank the noble Lord for his rather guarded and narrow reply. Does he agree that anyone who saw the matches in this tournament, particularly those last night, could not fail to be impressed by the general conduct of players and fans, and that the whole event has been a great success? Does he also agree that patriotism is one thing but nationalism is another, and that certain sections of the popular press have ignited, deliberately or otherwise, an unfortunate fuse of xenophobia, of which they must have been aware, which amounts to extraordinary irresponsibility and so must take some share of the blame for the sad events last evening?
Lord Inglewood: My Lords, the noble Viscount is right. The love of one's country does not imply contempt of others, which is the unattractive characteristic of xenophobia and mutated nationalism. He is right when he says that Euro '96 has been a great success, albeit marred by the behaviour of certain fans last night. The comments in the newspapers to which he referred might not have been the cause of what occurred but must have contributed to it.
Lord Aberdare: My Lords, is it not a fact that, despite the efforts of some newspapers to stir up racial hatred, there was absolutely no evidence of it at any of the venues where these matches were played? The matches have been played in a spirit of excellent good sportsmanship. Does my noble friend agree that yesterday the real fans were at Wembley and not in Trafalgar Square? Is it not right to pay tribute to those who have organised Euro '96 for having produced an extremely successful championship, although it is not quite over? I believe that the football authorities of Europe and this country, the police and indeed our team have tried throughout to do their best.
Lord Inglewood: My Lords, the traditional British value of fair play has been very much in evidence throughout these championships, which have been a great success. My noble friend is right when he says that a good deal of this is due to the hard work put in by the officials and organisers, and also those involved in the

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games themselves. I add my congratulations to the English and Scottish teams, both of whom acquitted themselves excellently. Although it was a disappointment, I should also like to say "well done" to Germany.
Lord Wright of Richmond: My Lords, I acknowledge the earlier remarks of the Minister about the criminal law, Press Complaints Commission and other bodies in pursuing errors of taste in the press, but can the Minister inform the House whether any expression of regret has been made to our partner and ally, the Federal Republic of Germany, for the disgraceful and vulgar expressions of Germano-phobia which have appeared in the press in recent weeks and are in marked contrast to the remarks of many noble Lords in the recent debate on Anglo-German relations?
Lord Inglewood: My Lords, I understand that the editor of the Daily Mirror, one of the newspapers principally associated with the comments that have been made, has made an apology. These events are deeply regrettable. I am still not entirely clear what, if any, proceedings may flow from these events, so I must be slightly guarded in my remarks. As I understand it, the British Government have made no formal comment to the German Government about this affair.
Viscount Montgomery of Alamein: My Lords, does my noble friend agree that football is a splendid, strenuous game which is to be much encouraged and should not be compared with war, which is quite terrible?
Lord Inglewood: My Lords, my noble friend is absolutely right.
Lord Jenkins of Putney: My Lords, does the noble Lord agree that if the newspapers wish to continue to control their own affairs they must do so more effectively in future if government control, which nobody wants, is not to be reintroduced? Does the noble Lord agree that in particular the Daily Mirror is guilty in this matter and possibly an apology is insufficient?
Lord Inglewood: My Lords, it is clear that the Daily Mirror has gone beyond the bounds of acceptable manners and decency in this respect. It is for the newspapers as a whole to make sure that they conduct themselves in a manner that enables them to play their part in the important British way of organising these matters—through self-regulation. They probably have more responsibility than anybody else to ensure that this element of British liberties is retained.
Lord Pearson of Rannoch: My Lords, does my noble friend believe that expressions of European nationalism—and perhaps in future more violent expressions than those to which this Question refers—are more likely to occur under the federal socialist
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superstate desired by Herr Kohl and others than under the Europe of free nations desired by Her Majesty's Government?
Lord Inglewood: My Lords, my noble friend sets up a false antithesis, to which I need not reply.
Lord Monson: My Lords, does the noble Lord agree that we are in danger of making rather heavy weather of this matter? Certainly, the tabloid headlines were crude and juvenile. Equally, they were obviously tongue-in-cheek, which admittedly is a form of humour not always appreciated in other countries. Does the noble Lord agree that the real problem is that far too many vigorous young men watch sport slumped in front of television sets and not nearly enough get onto playing fields to practise these sports and thereby work off surplus energy?
Lord Inglewood: My Lords, I can understand why those responsible for these headlines may try to laugh them off as a jolly joke, but I do not believe that it is as simple or as straightforward as that. The noble Lord refers to young men watching football on television. I was slumped in front of the television last night.
Lord Burnham: My Lords, the bulk of the remarks which gave such gross offence were in last Monday's papers. Is it not the case that in the past three days a number of other newspapers have expressed themselves forcefully about these remarks, which in itself proves that self-regulation can be made to work?
Lord Inglewood: My Lords, the general revulsion caused by these comments is undoubtedly evidence of the fact that collectively those responsible for them went too far.
Lord Donoughue: My Lords, we on these Benches associate ourselves with the very proper and responsible approach of the Minister to a very serious issue.
Lord Inglewood: My Lords, I am most grateful to the noble Lord, Lord Donoughue.
Baroness Strange: My Lords, is my noble friend aware that my friend and lodger, who happens to be a German, thought it much safer to watch the television in the safety of my living room?
Lord Inglewood: My Lords, I am sorry to hear the remarks of my noble friend, which I understand.

Business of the House: Asylum and Immigration Bill
3.39 p.m.
Lord McIntosh of Haringey: My Lords, before the House proceeds to the next business, I feel obliged to inform the House of the progress, or lack of it, in consideration of the Asylum and Immigration Bill. Noble Lords will recall that last Monday the

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Government indicated their intention to introduce major new amendments at Third Reading next Monday to override the judgment of the Court of Appeal given the previous Friday. In negotiation the Government Chief Whip was good enough to agree that there should be a recommittal of the relevant parts of the Bill to hold a Committee stage before the matter proceeded to Third Reading. I expressed my gratitude to him for that.
However, the understanding that we then had—it was only verbal and was not in writing—was that we would see the government amendments yesterday. The government amendments in their final form reached me only within the last hour. Earlier versions were in such a form that it was impossible to fax them to advisers. I have not been in any position to table amendments to the government amendments, or even to consider several pages of very complicated amendments and notes on amendments. This is simply not the way to conduct very serious business which has attracted the attention not only of the newspapers but large parts of the country who have been concerned about the destitution in which asylum seekers have been placed by the regulations passed in February of this year, as Lord Justice Simon Brown has said.
Not only is the matter itself a serious one but the procedure is an attempt to overturn a ruling of the High Court and involves serious issues as between secondary and primary legislation. I do not feel that we on this side are capable of dealing with the amendments with the seriousness that they deserve. I ask the Minister concerned whether she is prepared either to postpone the Committee stage, and therefore subsequently Third Reading, for a very short time—a day or two will suffice—or, if it is impossible to postpone the Committee, at least not to hold Third Reading on the same day so that serious consideration can be given to the new government amendments and any amendments to them.
Earl Russell: My Lords, I should like to thank the noble Lord, Lord Mackay of Ardbrecknish, for sending me today a preliminary draft of the government amendments and then what I understand to be the final draft of the government amendments. He will, I think, agree that there are profound legal differences between those two texts. I had begun a legal consultation on the first text, and now find that the point upon which I was taking advice no longer exists. I am, therefore, in the same difficulty as the noble Lord, Lord McIntosh of Haringey.
I understand that haste is difficult for all parties, but is haste so desperately needed that there is no time for a few days' postponement? The issues which involve a conflict between two Acts of Parliament, and between an Act of Parliament and, as some see it, our international obligations, are very complicated indeed. They are issues that might have exercised, had they gone there, the Appellate Committee of your Lordships' House for a very long time. I do not have those skills. I should welcome some more time.
Lord Avebury: My Lords, will the Minister also bear in mind that it is not just noble Lords on the Front
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Benches but one or two others of us who have taken part in the whole of these proceedings on the asylum Bill? For example, the noble Lord, Lord Renton, and my noble friend Lady Williams and I have seen neither the preliminary nor the final amendments.
It is unreasonable to expect me, between now and Monday, to master those apparently enormously complex amendments. In view of the small number of your Lordships who took part in proceedings in Committee and on Report, it would not have been too much to ask that the noble Lord let us have copies too. When the noble Lord replies, will he say how we are to reply to people who are telephoning us constantly—I had a telephone call only this morning—asking our advice as to what happens to the benefits which were taken away from those people and which were restored to them by the Court of Appeal, and whether they can claim at least the benefits which apply until the new amendments are passed, if they are?
3.45 p.m.
Lord Shepherd: My Lords, perhaps I could appeal to the Leader of the House. The noble Lord, Lord Avebury, did at least address the point that there are those interested in this matter other than the Front Benches. It may be that the Front Benches are in great difficulty not just in understanding what will be put to the House on recommittal but because they will also need to consult.
The strength of this House is the membership of the House, and not necessarily the relationship between the three Front Benches. I suggest to the Leader of the House—I know because of his long family connections with this place that he will be aware of this—that great importance should be attached to giving all of us who participate by speaking or, what is perhaps more important, by voting a reasonable opportunity to see the amendments as they are drafted and, if necessary, to consult.
This is a revising Chamber. At least that is the function which we have regarded as being perhaps our most important function. We cannot revise without some degree of understanding of what is being placed before the House. As I have said before, the House is all its Members; it is not an agreement or disagreement among the three Front Benches. We have in this House a great many of what I call the "independents". We who belong to a party may be in a better position than they are. They perform, in a sense, the most important function by providing a balance between the two sides of the House.
I say to the Leader of the House—I have said it before, and I hope he will not mind it being said again from someone who has been involved with business management—that the leadership of the two Front Benches has an inherent duty to protect the interests of the ordinary Members of this House. If we are to deal with important legislation, however contentious it may be, adequate time should be made available, taking into account the composition of the House.
We are not full-time Members. We do our best, but the Government should show greater understanding towards the requests that my noble friend has made.

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I say just one last thing, because it touches upon a previous debate. Despite what the Minister said when he dealt with the Statement, this is a new matter. It is a matter, true, that has been debated on Motions on Orders, but it is a new matter in so far as concerns this piece of legislation.
This House has always been careful about considering new legislation within a Bill. This change to the Bill may be necessary, but at this very late hour we should have a proper opportunity to understand what is being proposed and to be satisfied before we are asked to vote upon it.
Lord Hylton: My Lords, will the Leader of the House bear in mind that there is a postal strike until midday tomorrow? That seems to point us in the direction of delay and postponement.
Lord Stoddart of Swindon: My Lords, I hope that the noble Baroness will listen carefully to what my noble friend on the Front Bench and other speakers have said, because we are getting too fond of passing through Parliament legislation which is defective and which is seen to be defective when it is too late. It would be a disaster if the Court of Appeal, having ruled against the Government on this issue once, was able to rule against them again because the correcting legislation was again defective. That is why it is important that Members of the House, and Members of another place, should have adequate time to consider the revised legislation.
There is one other point I wish to make. The Prime Minister himself—I agree with him, and I think that many in the House will agree with him—said only yesterday, I believe it was, that Parliament was rushing too many Bills through Parliament too quickly. Apparently he is going to propose that we have two-yearly Sessions starting in March. The Leader of the House shakes his head, perhaps he can give us a progress report on that. Let me just tell the House what I believe to be the case from a reading of the responsible press. It is that we are going to have a great deal more time to consider fewer Bills so that we can consider them properly and not make so many mistakes.
I urge the Leader of the House and the noble Baroness to take seriously what has been said and to try to meet that criticism.
Viscount Waverley: My Lords, for those Back Benchers and others who wish to become involved in the Bill, perhaps I may say that cols. 702–736 of Hansard give excellent background reading if they wish to be prepared for the debate on Monday.
Viscount Cranborne: My Lords, perhaps the House will allow me to speak briefly on the point in response to the noble Lord, Lord Stoddart. My right honourable friend trailed the idea not of one opening of Parliament every two years but continuing an opening of Parliament once a year, and looking forward to the second year in terms of what legislation might be brought forward in the interests of a cause which I know both he and I hold very dear. Yet again, I suspect that noble Lords' reaction
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to what the noble Lord, Lord Stoddart, called the "responsible press" confirms me in my unjustified prejudice that the phrase is a contradiction in terms.
I am extremely sorry that a number of noble Lords, in particular such distinguished noble Lords as the noble Lords, Lord McIntosh and Lord Shepherd, have expressed such serious reservations about the timing of the tabling of the amendments in relation to the consideration on recommitment. I wholly agree with the noble Lord, Lord Shepherd, as I know he recognises, that it is absolutely imperative that the Leader of this House should do all he can to ensure that the interests of the whole House are considered above the interests of the Government, however tempting it might be to do the latter. I assure your Lordships that that is always at the front of my mind. It is in that spirit that my noble friend the Government Chief Whip has established such harmonious relationships with his opposite numbers. We must always seek to arrange business by negotiation and arrangement. I am particularly sorry that on this occasion, in respect of what I agree is an important matter, noble Lords should feel that they have a cause for complaint.
I believe that my noble friends Lord Mackay and Lady Blatch in particular have made every effort to keep the House and those noble Lords who are particularly interested thoroughly informed about the matter. As the noble Lord, Lord Shepherd, agreed, the issue is not new. I suspect that in the network of paths of legislation in your Lordships' House this is probably one of the most heavily and frequently trodden and has been during the past few years. Indeed, we know from the enormous number of Hansard columns on the subject that on previous occasions the House has fully debated and pretty strongly endorsed Her Majesty's Government's policy on benefits for asylum seekers. Your Lordships have already had the benefit of what always seems to me to be a remarkably detailed grasp of the matters under discussion, evidenced by noble Lords opposite. That grasp is always most strongly evidenced by the noble Lord, Lord McIntosh, the noble Baroness, Lady Hollis, and the noble Earl, Lord Russell. It is significant that those who have such a mastery of what is proposed are the very ones who say that they need more time in order to extend their already considerable knowledge.
Of course, it has taken some time to draft the amendments. The matters are complex. I hope that the noble Lord, Lord Avebury, will acknowledge that my noble friend Lord Mackay of Ardbrecknish has already circulated and placed in the Library a full briefing of what is at stake. As your Lordships are aware, on Monday he made a full announcement to the House of the Government's response to the judgment of the Court of Appeal and gave notice of our intention to invite the House to amend the Bill to restore the position. I was grateful for the acknowledgement of the noble Lord, Lord McIntosh, that my noble friend the Government Chief Whip readily agreed to his suggestion that a Motion should be moved to allow the new amendments to be debated in Committee and to permit full exchanges without constraints on Third Reading. My noble friend and the noble Lord came to a rapid agreement on that.

1021
I understand that this morning the noble Lord, Lord McIntosh, received a letter from my noble friend Lord Mackay of Ardbrecknish enclosing draft amendments, which required only minor refinements, together with a full explanation of their effect. That communication was copied to other Front Bench spokesmen and was also placed in the Library. Therefore, they were available to the whole House in the way that I think the noble Lord, Lord Shepherd, would approve.
Since then noble Lords have also received a copy of the final amendments as they will be tabled. That allows all of this afternoon and all day tomorrow for noble Lords to prepare their own amendments. I had hoped that the House would agree that those arrangements were properly helpful. In view of what has been said, and despite what has been said, I doubt whether it would be in the interests of the House as a whole to rearrange next week's business at this late stage. But my noble friend the Government Chief Whip will always be prepared to listen to further representations through the normal channels. Those further representations are always welcome. Meanwhile, I should be misleading the House if I did not say that my judgment, for what it is worth, is that there has been ample time and that the interests of the House are that it should proceed to the further consideration of this business as scheduled on Monday. After all, as my noble friend Lord Mackay pointed out, this is a matter on which there appears to be a considerable command of the issues at stake among, in particular, Opposition spokesmen.
Lord McIntosh of Haringey: My Lords, the matter should not be prolonged because there is no Motion before the House. But unless there is a change of heart there will be a Motion before the House on Monday.
Earl Russell: My Lords, the question at issue is not of courtesy but of practicality. Will the noble Viscount think again about his assertion that there is no new matter involved? I would agree that the withdrawal of benefits is not a new matter. However, the view of the Court of Appeal that the withdrawal of benefits conflicts with the right to seek asylum is new. That matter needs the most careful consideration. I must express my regret that the noble Viscount has taken the line that he has.
Baroness Williams of Crosby: My Lords, I apologise for entering the House only a moment or two ago. I came immediately I saw the noble Viscount the Leader of the House. The statement was difficult to anticipate. There are grave matters concerning our acceptance of some of the international conventions and treaties which we have signed. The noble Lord shakes his head but without consultation he can know no more than the rest of us whether that is the case. As Members of this House who are most concerned about British respect for international law, we need time to consult and discover whether that is so. That is another reason why we believe the matter to be exceptionally accelerated.
Lord Campbell of Alloway: My Lords, perhaps I may respectfully put forward a point of view different
1022
from that put forward by the noble Lord, Lord McIntosh, and the noble Earl, Lord Russell. I have now read the transcript. I agree that there was a very complex, difficult issue on which the court was divided. However, it was a simple issue in essence. It was simply whether the regulation was ultra vires.
On Monday, we shall not be concerned with the complexity of that issue. I have not seen the draft of the amendment but I know that other noble Lords have done so. However, it will not be complex in that form; it will be, as my noble friend Lord Mackay of Ardbrecknish said, to put into the statute in primary legislation the intention of the Government. That may take drafting and it may raise difficulties. I accept what was said by the noble Lord, Lord McIntosh. I, too, would have liked to have seen the document and have a little more time. However, surely one must balance that against whether the issue is so important that one should upset the working schedule of your Lordships' House.
4 p.m.
Lord Avebury: My Lords, the Leader of the House said that he agreed with the noble Lord, Lord Shepherd, that the interests of Back-Benchers must be looked after as well as those of noble Lords on the Front Benches. How would anyone on the Back Benches have known that those documents had been placed in the Library of your Lordships' House at half-past eleven this morning? If they take away documents and draft amendments tomorrow, how will they be able to lodge them in time to appear on the Marshalled List when there is a notice on the collection box in the Lobby which says that nothing that is posted by first-class post, even today, will reach its destination until Saturday morning? That means that if noble Lords draft amendments in the course of the remainder of today and post them even as early as half-past five this afternoon, they will not reach the Public Bill Office or the Clerks until Monday morning. Therefore, they cannot appear on the Marshalled List.
Viscount Mountgarret: My Lords, I believe that I detect a sense of deviousness here. Surely if a Motion or amendments were placed before your Lordships which met with the general approval of the majority of noble Lords, I suspect that we should not have all these rather emotional arguments used, although they are understandable, about the apparent shortness of time.
It seems to me that there is a way in which those who are diametrically opposed to the principle of these matters may be trying to appeal to the emotions of this House by using the vehicle of shortness of time and being unable to be prepared.
Earl Russell: My Lords, I ask the noble Viscount to withdraw the charge of deviousness.
Lord McIntosh of Haringey: My Lords, I bitterly resent being called devious.
Viscount Mountgarret: My Lords, I entirely withdraw any suggestion that any person or party is being devious. If I gave that impression, I apologise and withdraw it unreservedly. It seems to me that there is

1023
probably more concern about the substance of the matters to be dealt with rather than the validity of the apparent shortness of time argument. Unfortunately, there is now less time available than there would have been had we not gone down this route in the first place. There is the whole of Friday and, quite frankly, there is the weekend. Sometimes, we must burn a little bit of midnight oil.
Lord Bruce of Donington: My Lords, perhaps I may ask the Leader of the House whether he will enable the whole House to settle this matter on completely non-partisan lines. From time to time both the role and the composition of your Lordships' House are widely discussed not only in Parliament but outside. In order to emphasise the important role which this House occupies in the whole of the United Kingdom Parliament it is repeatedly and very justifiably emphasised that one of our functions is that of revising legislation which comes from another place. Surely in those circumstances, where responsible representations have been made to him and without creating any precedent whatever for the matter to be raised frivolously, and on the basis of what has already been said, not only by my own Front Bench but more seriously perhaps by the noble Lord, Lord Shepherd, the noble Viscount should follow his own precepts, regardless of his own party position, and say that in these circumstances it is necessary for the House to perform its revising function correctly and with due time. In that hope, perhaps the noble Viscount will accede to the request made to him by my noble friend on the Front Bench.
Viscount Cranborne: My Lords, of course I am distressed that I should find my own judgment at variance with that of so many respected Members of your Lordships' House. I shall certainly undertake to reflect on the matters that have been raised in a spirit of co-operation and in the best traditions of your Lordships' House.
But I must reiterate—bearing in mind that I have undertaken most seriously to reflect on what noble Lords have said—that the point made by my noble friend Lord Campbell of Alloway really is worthy of consideration by noble Lords who have voiced their objections. I must reiterate also that the substance of the point has been rehearsed time and time again in your Lordships' House.
Of course, I undertake to reflect further on this matter and I shall endeavour to do so dispassionately, as I know your Lordships would expect me to do. But I hope also that your Lordships will accept that I find arguments on the other side persuasive. If that is the judgment of my noble friends and I, then the promise made by the noble Lord, Lord McIntosh, is something that we shall have to face in due course, but I hope that we shall be able to avoid that eventuality.

Education Bill [H.L.]
4.5 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has
1024
indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

School Inspections Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Offensive Weapons Bill
Read a third time.
The Earl of Lauderdale: My Lords, I beg to move that this Bill do now pass. It would be churlish not to express gratitude to the honourable Member in another place, the Member for Sutton and Cheam, for all the work and initiative which he put in to getting the Bill going in the first place and for piloting its passage through another place. Before formally moving that the Bill do now pass, I express my thanks to my noble friend Lady Blatch for her help, for her department's help and for all the ready assistance which has been given to me by officials of her department in preparing to carry this Bill through your Lordships' House. I commend the Bill to the House.
Moved, That the Bill do now pass.—(The Earl of Lauderdale.)
On Question, Bill passed.

Companies (Fees) (Amendment) Regulations 1996
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie)The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie) rose to move, That the regulations laid before the House on 5th June be approved [22nd Report from the Joint Committee].
The noble and learned Lord said: The main aims of these regulations are, first, to reduce prices overall for a range of Companies House services, and, secondly, within the overall reduction to increase certain charges where higher unit costs have become unavoidable.
Companies House Executive Agency, in undertaking the functions of the Registrar of Companies, has succeeded in meeting its targets to reduce unit costs, thus creating a surplus of revenue over costs. The general reduction in prices is intended to eliminate this surplus.
The regulations, however, provide for limited increases, notably in the charge for a standard fee search, from the level of £3 set in 1991 to £3.50 to reflect the costs of meeting a diminishing requirement for this particular service and to avoid cross-subsidisation by others. I commend the regulations to the House. I beg to move.
Moved, That the regulations laid before the House on 5th June be approved
[22nd Report from the Joint Committee.—(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.

Security Service Bill
4.11 p.m.
Report received.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 1.
Before Clause 1, insert the following new clause—
GENERAL PRINCIPLES
(". The Security Service, in exercising its functions under or in consequence of this Act, shall have regard to the following general principles—

(a) the rule of law is paramount;

(b) the means of investigation must be proportionate to the gravity of the threat;

(c) the more intrusive the technique, the higher the authority should be to authorise its use; and

(d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones.").

The noble Lord said: My Lords, in speaking to this Bill, both at Second Reading and in Committee, I emphasised the support of the Opposition for the general principle behind the Prime Minister's statement at the Conservative Party Conference, that he sought to put on a more established basis, a legal basis, the role of the law enforcement agencies, including the police and the Security Service.
This Bill is the first part of that programme of objectives which the Prime Minister set out. As I said at Committee stage, it is in some ways the most difficult part, not necessarily in drafting terms, but because this is the part which extends the responsibilities of the Security Service, although we have not yet seen the other parts of the Prime Minister's package which are to provide a statutory basis for law enforcement agencies. Therefore, because this part comes before Parliament earlier than the rest of the package I thought it appropriate, as has happened in other legislation in this Session, to seek to add to the Bill a statement of general principle underlying this new role for the Security Service. I have taken that statement of general principle from Canada.
Noble Lords who follows these things will be aware that in the 1970s there was a series of scandals about the unauthorised activities of the Royal Canadian Mounted Police. An inquiry was set up under Justice McDonald, which led to a Royal Commission in 1981, which
1026
produced a report called Freedom and Security under the Law. I believe, having read unfortunately only extracts from that report, it is a very valuable statement of the principles on which the work of the police and the security services in a free society should operate. In the Royal Commission's report the general principles are set out in this form: the Security Service,
"shall have regard to the following general principles—

(a) the rule of law is paramount;

(b) the means of investigation must be proportionate to the gravity of the threat;

(c) the more intrusive the technique, the higher the authority should be to authorise its use; and

(d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones".

These are Canadian words and they may not fit immaculately into English legislative speak. I believe that they will have a resonance to your Lordships, and that you will feel, reading them, that they express the basic principles which we all feel about the role of law enforcement agencies. I believe that they follow and point up the concerns which the Prime Minister expressed in his speech, and which underlie the purposes of this particular piece of legislation.
As a result of the Royal Commission, Canada set up the Canadian Security Intelligence Service, which took over the functions of the Royal Canadian Mounted Police for internal security. It is headed by a director-general, but it also has an inspector-general who has the responsibility of reporting to Parliament and making judgments about the propriety of the activities of the Canadian Security Intelligence Service. Under the legislation which governs the work of that service, an application for a warrant, of a kind we are considering in Clause 2 of this Bill, has to be approved by the solicitor-general and has to be made to a judge in writing. We shall come to that issue when we consider later amendments.
I believe the Canadians have something to teach us in this matter. Having had difficulties in the 1970s, they have shown a responsible approach to the whole issue of the statutory basis of the work of law enforcement agencies. As I understand it, their reforms have been successful; and they have been successful, at least in part, because they are based on the general principles set out in Amendment No. 1.
The House has agreed, as recently as in its consideration of the Family Law Bill, that a statement of general principle can be, under certain circumstances, a valued addition to legislation. I believe that this reflects what the Prime Minister intended from this legislative programme. I commend the amendment to the House.
4.15 p.m.
Lord Renton: My Lords, I do not doubt the good intentions of the noble Lord, Lord McIntosh, in moving this amendment, but frankly I do not think it is suitable for legislation. It states opinions and does not enact law with any precision which would be considered binding on those who have to observe the law and, indeed, upon

1027
the courts. Different judges would take different views as to what should be the application of some of these phrases.
Perhaps I may go through them. First, the amendment says:
"The Security Service, in exercising its functions under or in consequence of this Act, shall have regard to the following general principles—

(a) the vile of law is paramount".

That is merely a statement of opinion of the obvious. It is merely a repetition of a well-known constitutional principle, but it does not get us anywhere in relation to this Bill. Secondly,
"(b) the means of investigation must be proportionate to the gravity of the threat".
That would be good advice to those who will be responsible for administering the law when this Bill is passed, but it is a matter of opinion in every case. If this point were to be brought before juries, juries' decisions would vary enormously on the same set of facts.
Thirdly, there is another statement of opinion:
"(c) the more intrusive the technique, the higher the authority should be to authorise its use".
There is no listing of the techniques, but I am glad there is not because I do not think we should go into that sort of detail. The amendment uses the words,
"the higher the authority should be to authorise its use".
I do not think there will be a multiplicity of authorities authorising use here. It just will not be so. Finally, it says:
"(d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones".
There again, it is good guidance to give to the Security Service in the years to come, but to try to tie them down in law to a statement of this kind does not seem to me to be a way to legislate. I hope the Government and your Lordships will not accept this amendment.
Lord Rodgers of Quarry Bank: My Lords, when I first saw the amendment on the Marshalled List I was not at all clear as to its purpose. However, I listened carefully to what the noble Lord, Lord McIntosh, said when moving it, and to the remarks made by the noble Lord, Lord Renton. On reflection, I believe that there is a great deal to be said for the proposed new clause. I certainly understand the reason why the noble Lord Lord McIntosh, brought it forward. I believe that I was the only Member of your Lordships' House who, in a debate on the humble Address, expressed some hesitations about the Bill which was then foreshadowed. I expressed those hesitations again on Second Reading and, indeed, in Committee.
I recognise what the noble Lord, Lord McIntosh, said—the Minister has reminded us of it from time to time, quite rightly—namely, that the Bill has in its purpose all-party support. However, the longer we have discussed it the more concerned I have become that, in pursuing a good cause—by which cause I mean dealing with organised crime—we may be making constitutional changes which, although not apparently significant
1028
today, may turn out to be the thin end of the wedge over a period of time in terms of many of the freedoms that we take for granted today.
I understand the points contained in the proposed new clause. They are controversial only to a very minor degree. They might, therefore, seem too obvious to require a particular statement here. However, for the very reason that I mentioned, if there is no place for such a clause in the Bill and no endorsement of those sentiments, the difficulties that we have in amending the legislation will stand on record as a failure of your Lordships' House.
Although we shall return to some of these issues later, I remind your Lordships that we have not found it possible to define organised crime in the way foreshadowed and anticipated by the remarks made by the Prime Minister last autumn. We have found it difficult to find a way to deal with an adequate complaints procedure, although we shall return to the issue later. But, perhaps the most important question of all—and, again, we shall discuss it soon—involves the contents of Clause 2 which the noble Lord, Lord McIntosh, ensured were debated in Committee.
Bearing in mind the difficulties that we have experienced thus far in making progress with the changes which many noble Lords believe are desirable, I believe that there is much merit in the proposed new clause. Whatever the course the noble Lord, Lord McIntosh, chooses to take as regards whether or not to press the matter to a Division, I hope that the Minister will find it possible to endorse the principles enshrined in the proposed new clause.
Baroness Park of Monmouth: My Lords, I hesitate to intervene, especially as I have not, unfortunately, recently seen the text of the original Act on the functions of the Security Service. However, although I entirely respect the motives of the noble Lord, Lord McIntosh, in putting forward such views, I should be extremely surprised if the Security Service does not in fact already operate in the way suggested. Therefore, the provision seems a little unnecessary. Indeed, no sensible intelligence officer would do something complicated and dangerous if he could achieve the same admirable result by doing something simple and lawful.
As I believe my noble friend Lord Renton said, there is, in practice, only one authority—namely, the Secretary of State, or so it has always been—as regards the granting of warrants and all those acts which have to be approved because they raise problems of danger and law. It is slightly insulting to the service—I do not believe that it is intended to be so—to suggest that it does not operate in that way. In the last legislation on the service, I assume that it was made pretty watertight that some matters had to be referred upwards and others had not.
There is, of course, a long history of case law in both services as regards what one refers on and when one should do so. But I repeat: no sensible intelligence officer would do something more intrusive if he could do something less intrusive. The Canadian case is not really relevant; indeed, there were many other problems

1029
involved. It happened long ago and it is too difficult to go into the details. There was a need for tightening up quite a lot of screws in that case. However, I do not believe that that is necessary as regards the legislation now before us. I should regret seeing such a provision becoming, perhaps, a rod with which to beat the service at a future stage in some difficult legislative battle.
I feel real anxiety about the lack of certainty and clarity which still exists about what will happen with the authority and with the police. I look forward to those points becoming much clearer. However, although the proposed new clause is entirely honourable, I believe it to be unnecessary.
The Minister of State, Home Office (Baroness Blatch): My Lords, I do not believe that there is a very real difference of opinion here. Certainly that does not appear to be the case from the remarks made by my noble friends Lady Park and Lord Renton. The noble Lord's amendment advances a series of principles which should guide the work of the Security Service under its new function. I am happy to be able to say that the work of the Security Service is already guided by those principles through a combination of existing legislative provisions and internal mechanisms. Indeed, three of the four principles in the amendment are set out in the second edition of the Security Service booklet, which was published earlier this year, as fundamental principles governing the service's work. I hope, therefore, that your Lordships will agree that the amendment is unnecessary.
First, the amendment restates the primacy of the rule of law. In the course of our discussions on the Bill, I have already given the assurance that individual members of the Security Service are subject to the law—both criminal and civil—but I am happy to restate that assurance now. Of course the rule of law is paramount, that is absolutely clear. This is certainly one of the fundamental principles to which the Security Service adheres.
Secondly, the amendment will impose a test of proportionality so that the most intrusive techniques can be used only when the threat is suitably serious. As a related requirement, less intrusive techniques should be preferred to more serious ones. Underpinning both those principles is the desire to ensure that the most intrusive investigative techniques are not used inappropriately or unnecessarily. Again, that is a fundamental principle for the Security Service and one which the Government fully endorse. Hence, the legislation governing the most intrusive techniques already makes specific provision to that effect.
Section 2(2) of the Interception of Communications Act 1985 prevents the Secretary of State from issuing warrants authorising interception unless,
"he considers that the warrant is necessary"
for the stated statutory purposes which include,
"preventing or detecting serious crime".
In defining the word "necessary", the Act goes on to say that the Secretary of State must consider,
"whether the information which it is considered necessary to acquire could reasonably he acquired by other means".
1030
There is a similar provision in the Intelligence Service Act 1994, governing the issue of warrants authorising the entry on, or interference with, property. Section 5(2) requires the Secretary of State to be satisfied that the action is likely to be of substantial value in assisting the Security Service to pursue its statutory functions and that the objective of the action,
"cannot reasonably be achieved by other means".
In other words, for the two most intrusive means of investigation there is already a statutory requirement for them to be used only as a last resort.
The fact that that "last resort" test requires the Secretary of State to be satisfied that other, less intrusive, techniques could not be used, demonstrates the emphasis which is placed in the legislation on restricting the authorisation of the most intrusive techniques to a suitably high authority. For both types of warrant, the personal authorisation of the Secretary of State is required. In both cases, the Secretary of State's exercise of his power to issue warrants is overseen by a senior member of the judiciary in the form of the relevant commissioner. Once again, I would suggest that the existing legislation meets the concern underpinning the amendment's wish to see a higher authority authorising more intrusive techniques.
For general methods of investigation which do not require the issue of an interception or property warrant, the actions of the Security Service are under the control of the Director-General of the Security Service. I do not believe that it would be helpful to the service's operational effectiveness if we were to attempt to specify how the Director-General should apply or delegate his authority in relation to general methods of investigation. The principal is very properly covered in the internal mechanisms controlling the service's day-to-day work. The clear exception to this is where techniques are involved which require serious intrusion into the privacy of members of the public. On those occasions the legislation is clear and the safeguards are robust—the personal authorisation of the Secretary of State is required, with oversight from a commissioner. In conclusion, these principles are extremely important—a fact which has been publicly recognised by the Security Service and endorsed by the Government. Where it is sensible to translate those principles into practical legislative safeguards it has already been done. That is why principles (b), (c) and (d) of this amendment are already addressed in the existing legislation. Principle (a), which reminds us that,
"the rule of law is paramount".
is not specifically addressed in the legislation because, as my noble friend Lord Renton said, it should not be necessary to restate that the rule of law is paramount. There is nothing which could detract from such a clear and fundamental principle. I hope therefore that the amendment will not be pressed.
4.30 p.m.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Rodgers, for his support for this amendment. However, the case for the amendment has been most effectively made by those

1031
noble Lords who have spoken against it. They combined the claim that it is unnecessary with the claim that it might be too restrictive on the members of the Security Service. That confirms all of my fears. The noble Lord, Lord Renton, the noble Baroness, Lady Park, and the Minister all objected to the idea of a statement of general principles in this form. I remind the House that just this afternoon we shall consider Commons amendments to the Family Law Bill. I believe it was the noble Baroness, Lady Young—I am sure she had the support of all noble Lords opposite—who inserted in the Family Law Bill a clause of general principles that,
"The court and any person, in exercising functions under or in consequence of Parts II and III, shall have regard to the following general principles—

(a) that the institution of marriage is to be supported".

There are further principles as regards practical steps to save a marriage and as regards dealing with marriages which have irretrievably broken down. So the House has only recently inserted, in a kind of preamble to a Bill, a statement of general principle which is certainly as wide-ranging and as unexceptionable as the repeated declaration of the primacy of the rule of law.
Baroness Blatch: My Lords, I believe that the comparison the noble Lord makes is almost an odious one. As regards recognising the institution of marriage, that can be a subjective judgment on the part of many people. However, to honour the rule of law as paramount should not be a subjective judgment. It is an absolute principle that we would all expect to see honoured by whomever it concerned.
Lord Renton: My Lords, I am a most enthusiastic supporter of general principles rather than going into too much hypothetical detail. But a general principle must be one which is enforceable in law and not merely a statement of opinion or merely a guide to good conduct.
Lord McIntosh of Haringey: My Lords, are we saying that support for the institution of marriage is enforceable in law? Many lawyers will make a good living for many years to come as a result of different interpretations of what is meant by general support for the institution of marriage.
Baroness Park of Monmouth: My Lords, that is exactly the point that I made about intrusive techniques.
Lord McIntosh of Haringey: My Lords, I did not hear what the noble Baroness said.
Baroness Park of Monmouth: My Lords, my concern was that if the phrase about intrusive techniques in the noble Lord's amendment were to stand, it would be exploited by lawyers in exactly the way that the noble Lord suggested. That is my point; not that I think the service would be vulnerable but that there would be considerable efforts to exploit the matter in the courts.
Lord McIntosh of Haringey: My Lords, that is an interesting point. The Minister subsequently explained that principles (b), (c) and (d) are already contained—
1032
either in exactly those words, or in similar words—in instructions to the Security Service. I am not quite sure of her words, but I believe she referred to some document which describes how the Security Service should operate. The noble Baroness is opposing the idea that it should appear in primary legislation. I remind her that this Bill contains—in primary legislation—detailed prescription for the supervision of the work of the Security Service in support of police forces and detailed prescription for the way in which warrants will operate. Is it not entirely appropriate that we should at the same time bring out into the open and into legislation the basis on which these changes are to be made? I believe that what we are saying in this amendment is entirely consistent with the objectives of the Prime Minister in his admirable defence of a statutory basis for law enforcement agencies. I am not convinced by what the Minister has said. I am certainly not convinced by the arguments made by those on her Benches. I wish to seek the opinion of the House on this amendment.
4.36 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 73; Not-Contents, 122.

Division No. 1

CONTENTS

Addington, L.

Monson, L.

Ashley of Stoke, L.

Morris of Castle Morris, L.

Avebury, L.

Nicol, B.

Beaumont of Whitley, L.

Blackstone, B.

Ogmore, L.

Broadbridge, L.

Peston, L.

Bruce of Donington, L.

Plant of Highfield, L.

Callaghan of Cardiff, L.

Prys-Davies, L.

Carmichael of Kelvingrove, L.

Rea, L.

Carter, L.

Richard, L.

Cledwyn of Penrhos, L.

Robson of Kiddington, B.

Clinton-Davis, L.

Cocks of Hartcliffe, L.

Rodgers of Quarry Bank, L.

David, B.

Russell, E.

Dean of Beswick, L.

Sainsbury, L.

Desai, L.

Seear, B.

Dormand of Easington, L.

Shepherd, L.

Dubs, L.

Simon of Glaisdale, L.

Fitt, L.

Stallard, L.

Geraint, L.

Gladwin of Clee, L.

Stoddart of Swindon, L.

Graham of Edmonton, L. [Teller.]

Strabolgi, L.

Grey, E.

Thomas of Walliswood, B.

Hamwee, B.

Thomson of Monifieth, L.

Harris of Greenwich, L.

Thurso, V.

Haskel, L. [Teller.]

Tordoff, L.

Holme of Cheltenham, L.

Turner of Camden, B.

Howie of Troon, L.

Hylton, L.

Wallace of Coslany, L.

Jeger, B.

Wallace of Saltaire, L.

Jenkins of Hillhead, L.

Warnock, B.

Jenkins of Putney, L.

Whaddon, L.

Kilbracken, L.

White, B.

Listowel, E.

Wigoder, L.

McIntosh of Haringey, L.

Williams of Crosby, B.

McNair, L.

Milner of Leeds, L.

Williams of Elvel, L.

Molloy, L.

Williams of Mostyn, L.

Monkswell, L.

Winston, L.

1033

NOT-CONTENTS

Aberdare, L.

Inglewood, L.

Abinger, L.

Kenyon, L.

Addison, V.

Knights, L.

Ailsa, M.

Knollys, V.

Aldington, L.

Lauderdale, E.

Alexander of Tunis, E.

Lindsay, E.

Allenby of Megiddo, V.

Lindsey and Abingdon, E.

Ashbourne, L.

Liverpool, E.

Astor of Hever, L.

Lucas, L.

Barber of Tewkesbury, L.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Lyell, L.

Blaker, L.

McConnell, L.

Blatch, B.

Mackay of Ardbrecknish, L.

Boardman, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Boyd-Carpenter, L.

Brabazon of Tara, L.

Mackay of Drumadoon, L.

Braine of Wheatley, L.

Macleod of Borve, B.

Brentford, V.

Marlesford, L.

Brookeborough, V.

Massereene and Ferrard, V.

Brougham and Vaux, L.

Mersey, V.

Bumham, L.

Miller of Hendon, B.

Butterworth, L.

Milverton, L.

Cadman, L.

Monk Bretton, L.

Caldecote, V.

Montagu of Beaulieu, L.

Campbell of Alloway, L.

Montgomery of Alamein, V.

Campbell of Cray, L.

Mottistone, L.

Carnegy of Lour, B.

Mountevans, L.

Chalker of Wallasey, B.

Mountgarret, V.

Clanwilliam, E.

Mowbray and Stourton, L.

Clark of Kempston, L.

Munster, E.

Courtown, E.

Murton of Lindisfarne, L.

Cranborne, V. [Lord Privy Seal]

Newall, L.

Cuckney, L.

Norrie, L.

Cumberlege, B.

Northbourne, L.

De Freyne, L.

Northesk, E.

De L'Isle, V.

O'Cathain, B.

Dean of Harptree, L.

Oxfuird, V.

Denham, L.

Park of Monmouth, B.

Donegall, M.

Pearson of Rannoch, L.

Pender, L.

Downshire, M.

Pike, B.

Ellenborough, L.

Quinton, L.

Elton, L.

Rankeillour, L.

Ferrers, E.

Rathcavan, L.

Flather, B.

Rawlings, B.

Gainsborough, E.

Renton, L.

Goschen, V.

Renwick, L.

Gray of Contin, L.

Romney, E.

Griffiths of Fforestfach, L.

Saint Albans, D.

Hailsham of Saint Marylebone, L

Seccombe, B.

Halsbury, E.

Shaw of Northstead, L.

Harding of Petherton, L.

Strange, B.

Harmsworth, L.

Strathdyde, L. [Teller.]

Harrowby, E.

Sudeley, L.

Hayhoe, L.

Swansea, L.

Henley, L.

Swinfen, L.

Holderness, L.

Tenby, V.

HolmPatrick, L.

Teviot, L.

Hooper, B.

Thomas of Gwydir, L.

Howe, E.

Trumpington, B. [Teller.]

Ilchester, E.

Ullswater, V.

Westbury, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.45 p.m.
Clause 1 [Functions of Security Service]:
Lord Avebury: My Lords, perhaps before we take Amendment No. 2 I could raise a matter which arises out of the statement made by the Leader of the House in answer to questions.
Baroness Blatch: My Lords, this is wholly improper in the middle of the Security Service Bill.
Lord Avebury: My Lords, perhaps the noble Baroness will bear with me for a second. The noble Viscount the Leader of the House made a statement that documents concerning the Asylum and Immigration Bill had been placed in the Library of your Lordships' House at half-past eleven this morning. I am afraid that inadvertently he misled your Lordships. After that, I went immediately to the Library to ask for the documents so that I could begin considering the amendments. Complaints had already been made, as the noble Baroness may have noticed, about the shortness of time available within which those who are involved with the Bill had to consider matters. The time available is even shorter than anyone thought because the documents were not there.
Baroness Blatch: Order! My Lords, I suggest that the noble Lord goes to see the Leader of the House and the usual channels and does not use this Bill for this purpose.
Lord Harris of Greenwich: My Lords, with regard to the usual channels, the fact is that inadvertently the Leader of the House has misled the House by saying that documents were in the Library when they were not. The House has the right to hear a statement from Ministers as to exactly what is going on, given that the House has been misled—inadvertently, I repeat.
Baroness Blatch: My Lords, it would be at least courteous for noble Lords to see the Leader of the House to press their point. They can leave him to decide how he will deal with the point, rather than using this Bill as an opportunity to raise a point of order. As the noble Lord knows, I am in no position to answer it because it is not my subject. At this stage, it is a matter for the Leader of the House.
Lord McIntosh of Haringeymoved Amendment No. 2:
Page 1, line 23, at end insert—
("(4) After sub-paragraph 7(3) of Schedule 1 to the Security Service Act 1989, there shall be added—
"(3A) The Tribunal shall submit to the Intelligence and Security Committee established under section 10 of the Intelligence Services Act 1994 details of every determination made by it in relation to any function carried out by the Service under section 1(4) of this Act, its reasons for that determination and the relevant background papers.".").
The noble Lord said: My Lords, the amendment relates to the system of control of the Security Service which is set up under the Intelligence Services Act 1994. I begin by expressing my gratitude to the Minister for sending me details, some of which I had not had, of the tribunal system and the work of the Intelligence and Security Committee.
In the amendment, we propose not that there should be a general reporting of all cases undertaken by the Security Service in performing the functions provided for in the Act, but that the tribunal which deals with only a small proportion of the cases which the Security

1035
Service undertakes, should have the responsibility of submitting details of determinations made to the Intelligence and Security Committee. I do not know how many determinations are made by the tribunal in the course of a year, but the proposal will not be an enormous burden.
On the other hand, it is important that the Intelligence and Security Committee should have the raw material on which it is to base its judgments which must form the basis of its annual report to the Prime Minister. If it is to consider the working of the two services, it must know what complaints have been made and how they have been dealt with by the tribunal. I acknowledge that most complaints made to the current Security Service Tribunal appear to be unjustified. The annual reports of the Security Service Commissioner confirm that. So much the better and so much the more reason why the Intelligence and Security Committee should have the basis on which it can say with confidence to the Prime Minister and ultimately to Parliament that the vast majority of complaints are unjustified.
However, even if they are not justified and are not upheld by the tribunal, they may not all be misconceived. Some complaints, even if they are not upheld individually, could illustrate more general problems in the functions and working of the services. The committee ought to have the information in order to fulfil its own functions adequately. I say that with some trepidation in the presence of the noble Lord, Lord Blaker, but I believe that the amendment is—as it is intended to be—helpful to the work of his committee and helpful to the working of the 1994 Act. It deserves the serious consideration of the House. I beg to move.
Baroness Blatch: My Lords, I must confess that I am somewhat puzzled by the purpose behind this amendment. It seems to be confusing the purpose of the independent Security Service Tribunal, which exists to investigate complaints against members of the Security Service, and the independent Intelligence and Security Committee—the ISC as it is known—which exists to provide a measure of parliamentary scrutiny of the work of all the intelligence agencies.
We discussed the issue of complaints against the Security Service at some length during the previous stages of the Bill and will no doubt do so again when we come to discuss the new clause that has been tabled by the noble Lords, Lord Harris and Lord Rodgers. I am sure therefore that the House is already somewhat familiar with the mechanisms that exist for dealing with complaints that are made against the Security Service. I do not want to go over the same ground again, but let me just remind the House that the Security Service Tribunal, which was set up for this very purpose, consists of three senior members of the legal profession, who are independent of the Security Service.
If the tribunal upholds a complaint, it can order the Security Service to discontinue an inquiry, destroy all records relating to that inquiry and order that redress be given to the complainant. Not only that, but the tribunal is obliged to make a report on the matter to both the Security Service Commissioner and the Secretary of
1036
State so that, should the complaint be symptomatic of a wider problem in the service, the necessary remedial action can be taken.
On the other hand, if the complaint is not upheld, the complainant is told only that. There is good reason why the tribunal does not give reasons for its decisions. As things stand, the unsuccessful complainant does not know if he has been the subject of a legitimate inquiry by the Security Service or if the service has taken no interest in him. It would be most unfortunate if potential targets of the service were able to use the complaints procedure to confirm, or otherwise, that the service had taken an interest in them.
That is the role of the tribunal. The Intelligence and Security Committee is a committee of senior parliamentarians, including my noble friend Lord Blaker, which has the remit of examining the "expenditure, administration and policy" of the intelligence agencies. It was certainly never envisaged that the committee should have any role to play in the complaints process and I must say that I am at a loss to know what the ISC would be expected to do with all the information that this amendment envisages it would receive from the tribunal, including, incidentally, information on all the complaints that were not upheld. It also seems odd that the tribunal should be required to give reasons for its decision to the ISC when, for the very good reason that I have outlined, it does not give them to complainants.
The Security Service Tribunal and the ISC are two important—but distinct—elements of the accountability arrangements that govern the work of the Security Service. They both have important tasks to perform and both do so, if I may express an opinion, efficiently and effectively. However, it is important to realise that these functions are separate and it would be unwise to confuse the two. I hope, therefore, that the noble Lord, Lord McIntosh, is reassured and will feel able to withdraw the amendment.
Lord McIntosh of Haringey: My Lords, I did not intend to press the amendment, so the second part of the Minister's hopes will indeed be fulfilled. However, I am not at all reassured by her remarks. The point about the tribunal is that its proceedings are entirely secretive—very much in contrast to the work of the Police Complaints Authority.
I should not mind quite so much if the tribunal were secretive where issues of national security are concerned; but the tribunal is secretive in all cases. As the Minister said, complainants or persons under investigation are not informed about what is going on. Again, I quite understand if that happens for reasons of national security. But we are now talking about functions in support of the activities of police forces. We are talking about the investigation of serious crime. We are talking not about the generality of the work of the security services but about their work in support of the police. In those circumstances, the analogy for the complaints procedure ought not to be the secretive complaints procedure for the Security Service, but the more open complaints procedure of the police.

1037
Perhaps I have the protocol wrong in suggesting that Parliament, through the Intelligence and Security Committee, should be the point at which these matters become available to outsiders—which those senior parliamentarians are—so that they may comment upon them. No doubt the amendment is defective in that way. Most amendments are. However, the principle behind it, that complaints procedures for the functions under the Bill should be more comparable to those of the Police Complaints Authority, is still valid. It will be dealt with in later amendments. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 3:
After Clause 1, insert the following new clause—
ANNUAL REPORT OF INTELLIGENCE AND SECURITY COMMITTEE
(". At the end of section 10 of the Intelligence Services Act 1994, there shall be added—
"(8) In its annual report the Committee shall report separately on the activities of the Security Service under section 1(4) of the Security Service Act 1989.".").
The noble Lord said: My Lords, again, this amendment relates to the work of the Intelligence and Security Committee. It makes a quite modest demand which I shall introduce very briefly; namely, when the committee produces its annual report it should give separate consideration to the activities of the Security Service which are performed under Section 1(4) of the Security Service Act, which is implemented by Clause 1 of this Bill.
I imagine that the Intelligence and Security Committee will wish to do that in any case. Clearly, it is a matter of public interest how the Security Service performs those functions. I hope that this very small amendment will have the support of government and of members of the Intelligence and Security Committee. I beg to move.
Lord Renton: My Lords, the noble Lord, Lord McIntosh, is justified in asking that the Committee's report shall refer to the activities under Section 1(4) of the 1989 Act as confirmed and extended by this Bill. My only doubt is whether the committee would be obliged to do that anyway. I have not considered from the legal point of view whether the amendment is necessary. However, the noble Lord's point needs to be covered in one way or another.
Lord Blaker: My Lords, as the only Member of this House who is a member of the Intelligence and Security Committee, it is appropriate for me to say a very brief word on this matter. I cannot speak for the committee as a whole; I can speak only for myself. Indeed, I am a relatively new member. However, I am confident that the committee will carry out whatever burden or obligation is laid upon it by Act of Parliament. There is no question about that.
1038
Secondly, I wish to remove what may be an anxiety on the part of some noble Lords that the committee does not attach much importance to this subject compared to the other subjects with which the intelligence and security services deal. The committee, as one of its early acts, issued a special report on this whole subject of dealing with organised crime, which fully demonstrates that it takes the matter very seriously indeed.
Finally, if one imposes on the committee an obligation to report separately on the activities of the Security Service on this particular subject, why should not one impose a similar obligation in relation to the other activities of the Security Service or of the other intelligence and security services? They are all important. This one is important; but the others are, too.
Lord Knights: My Lords, I am a little doubtful about this amendment. My particular concern is that, as with the first two amendments, we seem to be laying up trouble for ourselves when we consider the other aspects of this package introduced by the Prime Minister later in the year. We are talking not only of the activities of the Security Service but also about the activities of the police service. If the Intelligence and Security Committee is to report separately on the activities of the Security Service in relation to this matter, later in the year will we be asking the Police Complaints Authority to report on the same activities of the police? The two cannot be dealt with in isolation. The matter should be dealt with as a whole in the Bill and this item should not be dealt with separately. The same remarks apply to Clause 1.
5 p.m.
Baroness Blatch: My Lords, like my noble friend Lord Renton, we welcome the spirit behind the amendment. The Intelligence and Security Committee—the ISC—is an important element of the accountability arrangements that govern the Security Service and the other intelligence agencies. Not only that, because it is made up of parliamentarians, it is one of the key ways that the intelligence agencies remain accountable to your Lordships and to the members of another place. I know that members of the Committee, of whom my noble friend Lord Blaker is a distinguished representative of your Lordships' House, take their duties to "examine the expenditure, administration and policy" of the intelligence agencies very seriously.
I am confident that the ISC will want to carry out its responsibilities in regard to the Security Service's new serious crime function. Last December (at which point my noble and learned friend Lord Howe represented this House on the Committee) the committee published a special report on that very topic which concluded that the Security Service had distinct skills which it could bring to the fight against organised crime. It made similar comments in its annual report for 1995, which was published in March of this year. It gave a very clear hint that it would keep an eye on this issue when it said: "Our interest will be to see that the working arrangements for any such organisation enable the Agencies to pursue their supporting roles effectively".

1039
Having said that, I do not think it is right for us to tell the ISC, which is, after all, an independent committee, how it should carry out its functions. It may want to include a separate section in its annual report on the Security Service's serious crime work. Equally, it may want to make more general observations about the service's work across its functions. It may want to draw attention to a particular aspect of the service's work, or even a particular problem, that affects all of the service's functions. Similarly, it may want to draw comparisons between the Security Service's serious crime work and that of other agencies. It may want to report to the Prime Minister on the implications for the other functions of the Security Service of its work against serious crime. It may even want to produce a separate report on the issue, as it has done before. All of these matters could be made more difficult if the ISC was required to have a separate section in its annual report on the Security Service's serious crime work.
As the noble Lord, Lord Blaker, commented, why should that aspect of the Security Service's work be dealt with separately? More than that, these are surely matters for the committee and it would be wrong to tell it how to structure its report or to constrain it from presenting the information that it has in the form that it wants.
I have every confidence that the committee will give all due scrutiny to the Security Service's serious crime work, as it does to all other aspects of the work of the intelligence agencies. My right honourable friend the Home Secretary has already given a commitment in another place that the Prime Minister will always seek to publish as much as possible of any ISC report dealing with the Security Service's new function.
I hope that in the light of this the noble Lord, Lord McIntosh, will agree that it would be better not to tie the hands of the ISC in the way that the amendment proposes and that he will consider withdrawing it.
Lord McIntosh of Haringey: My Lords, I have no difficulty in withdrawing the amendment. The purpose of the amendment, as the Minister knows, was to get her to talk, on the record, about the way in which the ISC will prepare its report and the consideration that it will give to the new functions.
It is self-evident that if Parliament imposes new functions on a service, it will require supervision and some reporting back of what happens. Like the Minister, I have no doubt that the ISC will wish in its report to include a section or sections referring to the functions which are added. The question of whether or not it is on the face of the legislation is a secondary issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Warrants]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 4:
Page 2, line 5, at end insert—
("( ) A warrant issued on the application of the Security Service for the purposes of the exercise of their function under section 1(4) of the Security Service Act 1989 shall only he granted by a judge of the High Court or Court of Session.").
The noble Lord said: My Lords, Amendments Nos. 4 and 5 deal with the very grave concerns that were expressed in Committee about provision for warrants in Clause 2 of the Bill. At the time we were only able to discuss them, no doubt due to my inadequacy in drafting amendments, on the Motion that Clause 2 stand part of the Bill, and for obvious reasons we did not press that to a Division.
Our concerns were about the difference in regime for warrants between the Security Service and the police forces they are helping in the pursuit of serious crime. The Government acknowledged the factual basis of our concern. There are two regimes for intrusive warrants. One regime applies to the police where there is adequate judicial control of warrants for arrest and search of property, but inadequate control of warrants for intrusive surveillance; that is, entering property and installing bugging devices and the various activities concerned with telephone tapping or the interception of mail.
It is acknowledged that although the police carry out those activities, they see themselves as being at risk of being accused of criminal trespass if they exercise the powers which they have assumed to themselves and which they have been assumed by the public and Parliament to have. It is acknowledged that the powers of the police are not entirely satisfactorily dealt with by legislation. The Minister stated that subsequent legislation would put that situation right. I accept that that is a genuine desire.
The second regime is that which applies to the Security Service, acting in accordance with the functions given under the Act. It is proposed that they should operate in regard to warrants under the same regime which applies to the rest of their functions, the normal functions of a security service concerned with national security and related matters. That regime provides for the warrants to be authorised not by the judiciary but by the Secretary of State.
The Minister rightly corrected me when I said that the Secretary of State can readily delegate his powers under the Security Service legislation. I accept what she said, that it is strictly reserved to the Secretary of State under his hand and that only in emergencies can an exception be made. My objection is not that the Secretary of State can delegate too easily his powers under the legislation. However, my objection is that it is the Secretary of State advised by the Executive rather than the judiciary who have the power to authorise warrants. That situation still remains.
I still believe that the concerns expressed by the noble and learned Lord, Lord Browne-Wilkinson, are valid. I do not know whether he has had any further thoughts since our Committee stage, and I do not know—because I have not discussed it with him—whether he feels able to support this amendment. He spoke powerfully in favour of the principle that intrusive warrants of this kind—warrants which go to the heart of the power of law enforcement agencies to interfere with an individual's privacy and activities—should be judicially authorised rather than authorised on the recommendation of the Executive. That is the basis of Amendment No. 4, and I understand that Amendment No. 5 seeks to achieve the same objective. I beg to move.
Lord Rodgers of Quarry Bank: My Lords, I want to speak primarily to Amendment No. 5 standing in my name. As the noble Lord, Lord McIntosh, said, its purpose is similar to that of Amendment No. 4 but it seeks to approach the same problem in a different way.
Earlier this afternoon I said that from these Benches we had expressed anxiety about this Bill from the start—from the Queen's speech and at each stage thereafter. But perhaps I can say in parenthesis, as this may be my only opportunity to do so, that I am grateful to the Minister who has been helpful at all stages of the Bill, both on the Floor of the House, in Committee and also in correspondence. I notice that I omitted to thank her for her letter dated 6th June which dealt with an opinion obtained by Liberty and I now do so. Nothing which I have said or will say today bears upon the determination and helpfulness that the noble Baroness has shown in bringing this Bill to the House, nor does it cast doubt on the argument that she has frequently set before us, that the Bill had all-party support in another place, as it does here in so far as it seeks to deal with organised or serious crime as we are now bound to call it.
Though the principle of using the Security Service to fight organised crime is one that attracts us all, in my view, in practice, the consequences of deploying the Security Service in support of the police is potentially alarming. It is that matter to which Amendment No. 5 is addressed. The Minister said in Committee, and may well say again today, that our anxieties are unjustified. She may refer, for example, to long-standing co-operation with Customs & Excise. I am sure that she is right about the experiences of the past and I hope that she is right about the future as well. However, over the years the powers of this Bill, if it is passed as it stands, could turn out to be one step too far.
The noble Lord, Lord McIntosh of Haringey, referred to the remarks made by the noble and learned Lord, Lord Browne-Wilkinson, in Committee. I see that the noble and learned Lord is in his place today. He said,
"I believe that what is being proposed in Clause 2 of the Bill is a major constitutional shift".—[Official Report, 10/6/96; col. 1530.]
If indeed it is a major constitutional shift, it is something which this House should address. If this House decides that it does not want to amend the Bill, nevertheless it is important that the anxieties of a number of noble Lords are placed on record.
The noble Lord, Lord McIntosh, spoke about his amendment and clearly explained its purpose. In Committee he was succinct when referring to the absence of a judicial trigger, and it is that absence of a judicial trigger that my amendment seeks to remedy, as indeed does his. Amendment No. 5 seeks to fill that gap by requiring a High Court judge to approve the issue of a warrant.
It may be that the amendment is defective in drafting and, if so, no doubt the Minister will say so. But I hope that she will address the substance of the matter. If it is only a question of drafting, I am sure that she will be able to advise the House at the final stage of the Bill on the way in which that can be remedied.
1042
I hope that the Minister will not say that it would be inappropriate for a High Court judge to second-guess a Minister. We had a debate in your Lordships' House not more than two weeks ago on the whole question of the role of the judiciary, initiated from the Opposition Benches by the noble Lord, Lord Irvine of Lairg. The Lord Chancellor replied to that debate. He said nothing that I could judge on that occasion-5th June—which cast any doubt upon the present arrangements for judicial review, uncomfortable and unpopular though some of the recent outcomes have been for the Government. Therefore he did not seek to dispute the role of the judges in that respect.
I looked at the leaflet which the Minister kindly sent to those of your Lordships who participated in the debate at Second Reading. It refers to the role of the commissioner and says that,
"The Act establishes the Commissioner who is a senior judge, independent of the Government, who keeps under review the issue of property warrants".
The Minister herself, in the debate in Committee, referred to a judge having an additional oversight—I believe that was her expression. I would be interested if the Minister could explain more fully exactly how, using her words, the commissioner has an additional oversight or, using the words in the leaflet,
"keeps under review the issue of property warrants".
Whatever the senior judge may do, the fact that he does it at all and that this is part of our present legislation—set out clearly in this leaflet as it was set out by the Minister herself—if a judge is at present responsible for surveillance of the acts of the Home Secretary, I cannot see that there can be any objection to a High Court judge being an extra safeguard for the citizen by being required, in the terms of my amendment, to approve an order of this kind. As I say, it is an extra safeguard for the citizen which is not a trifling matter; it is not ephemeral, but goes to the heart of our fundamental and long-cherished freedoms.
I am sure that your Lordships' House and those who have followed this matter from the outside will be reassured if we introduce an element of this kind into the Bill. It is not beyond the capacity of the Minister to draft such an amendment and it would be a safeguard which we should all welcome. It would not in any way detract from the proper role of the Home Secretary nor, least of all, undermine the privileges and responsibilities of your Lordships' House.
5.15 p.m.
Lord Browne-Wilkinson: My Lords, at Committee stage I expressed inadequately and confusingly my anxieties in regard to Clause 2 of this Bill. I asked whether I had got hold of the wrong end of the stick as to its constitutional impact. I have still not heard anything to suggest that I had. I hope that your Lordships will bear with me as I spell out in more detail what is the constitutional threat that I see this clause presenting.
In this country we have never had a written constitution. I listened to the Prime Minister last night expressing in ways with which I agree his confidence in

1043
our freedoms; that freedoms are our constitution. Those freedoms are based on the common law of England, Wales and Scotland. Under the common law nobody can enter into my house, take my property or come onto my property in any way save in limited circumstances to which I shall turn in a moment. If the police, a member of the Security Service or of the Army come to my door and I can get to a judge in time, they will be restrained by injunction.
Our basic freedoms and privacy in our homes are secured under the general common law of this country. If you once take those freedoms away nothing is left in our constitution which, to the extent to which the law is effective, can protect our freedoms. The inability of the state under executive warrant to come into my house to seize my goods was established in the pillar of our constitution in the decision of the courts in Entick v. Carrington in 1757, saying that the Minister was in no different position from any other person. I was glad to hear the Minister say recently that it is obvious that the rule of law prevails. So it is and so it should be.
In relation to police matters experience has shown that there have to be exceptions to the inviolability of the home, which is preserved by the common law. So I hope that there can be no misunderstanding that over the years Parliament is sovereign. It can take away our liberties by legislation, I hope after due consideration but not otherwise. In relation to police matters for many years they have had the power to enter and search, but only under a warrant granted by a judge and ahead of the invasion of private rights and on satisfying an independent person that there is a need for that to happen. What has never happened in policing matters hitherto, since Entick v. Carrington, is proposed in this Bill almost by accident; that is to say, an executive warrant enabling entry into English property; the burgling and bugging of it, under executive warrant, which is the very thing that has been fought by the law and all interested in liberty, for many hundreds of years.
I ventilated this matter at Committee, but I still have not had any explanation. All that is said is that under the security services provisions this can be done already. The position is complicated and I shall deal with it as shortly as I can. The functions of the secret intelligence service under the 1994 Act include supporting the prevention and detection of serious crime. Therefore, that part of the Security Service has a function in relation to crime. However, its function applies only in relation to persons outside the United Kingdom. More important and more relevant for present purposes, the right to enter property does not apply to any property inside the British Isles. It is not right that currently the Home Secretary has any right to authorise entry into property in the United Kingdom in relation to foreign intelligence services. Under the Security Service Act, until now the security services have had no policing function, and that is the purpose of this Bill. In their security functions they have power to get an executive warrant from the Home Secretary to enter premises for the defence of national security.
So far as I can see, what has happened casually, in a House which has remarkably few people in it, is to carry over from the national security, twilight, Smiley's
1044
People world, into the every day life of policing, excessive powers of a kind that this country has always resisted and which are basic to its freedom. Given the way in which the media in recent times occasionally treats judges, I make it quite clear that I am not soft on crime. I am dead against serious crime, especially drug-related crime. Those who know better than I do say that the addition of the security services into the fight against it is a good thing. In that case I am for it. What I am not for is the carry over of powers, which are unhappily necessary in the context of national security, into a policing function enabling a member of the Executive to sanction entry onto private property without prior judicial warrant.
I am speaking perhaps rather too seriously, but I believe it to be a serious matter. At Christmas time there are stickers on cars saying, "Puppies are not just for Christmas". This Bill is not just for this Government and the present position, but forever hereafter until your Lordships seek to repeal it. I am not suggesting for a moment that this Government, the Home Secretary, let alone the Minister, will abuse the new Act, because they will not. But we are not just legislating for this Government or the next, of whatever party; we are actually impairing the constitutional freedoms of the individuals of this country. To my mind that should not be done by a side wind by an empty House—it is empty now, but perhaps it will be fuller later when it comes to voting. People should be considering what is being done.
In the light of what the Prime Minister said last night, I hope that there are people on both sides of this House who, although they support the main structure of the Bill, will think again about whether it is really desirable that in policing matters there shall be rights to bug and enter, covertly and not covertly, exercisable for the future against people corresponding to those protesting at the Newbury by-pass and the poll tax and against whom warrants under this new Act can be issued, even although not by this Government. But not all governments in 100 years' time are going to be scrupulous. I hope that there are Members of this House, including the Government, who think that this is a step which deserves further consideration before it slides through, almost by a side wind.
Lord Cockney: My Lords, I apologise for wishing to speak on the Security Service Bill and the amendments at this stage, having unfortunately not been able to be present during the Second Reading or all of the Committee stage. However, I would like to explain briefly why I do not support the amendments. It is for a fundamental and basic reason—that is, that we should preserve, in as many respects as possible, the separateness between the Security Service and the law enforcement agencies.
Their respective roles are quite different and distinct. As noble Lords know, the Security Service has no executive powers; it is an intelligence organisation and, while having a statutory identity now, it is essentially a secret service. If one reflects on the nature of its work, countering terrorism, subversion and espionage, it must remain a secret service. The noble Lord, Lord Knights,

1045
reminded us in his notable contribution at Committee stage, that the Security Service and the police have a long history of collaboration and joint operations, especially in the field of counter-terrorism and, since October 1992, the Security Service has assumed the lead role in combating the IRA. I understand that it currently remains an effective relationship, well illustrating that the services can work together with existing control and accountability arrangements.
Although it has been decided that at the invitation, and under the operational control, of the National Criminal Intelligence Service the Security Service may, if so invited, provide support in fighting serious crime, I do not see that as justifying changes in accountability in view of the elaborate arrangements which already exist. The Security Service has developed certain operational techniques, especially in dealing with terrorism and espionage, which could have an application—again, if so requested by the police—in fighting serious crime. It is worth remembering that many terrorist organisations engage in serious crime and organised crime for fundraising purposes.
As to introducing a new judicial factor with regard to the granting of warrants, my understanding is that the present exercise of ministerial judgment and responsibility is based on intelligence factors, not often involving issues that call for a judicial standard of proof. Intelligence factors have a relevance to the operational techniques which might be used when fighting serious crime. The judicial element which is introduced through the oversight arrangements can, in effect, validate Ministers' judgments.
Finally, I think that the most effective way of limiting the role of the Security Service in this one area and the best way of avoiding the turf wars which can always develop is to maintain strictly the separateness of the two services.
5.30 p.m.
Lord Knights: My Lords, I return again to the point that I made a few moments ago. We are now debating not simply the powers that may be given to the security services, but the powers which will be sought for the police service later this year. I think that we need to keep that in mind when we decide what to do with regard to this amendment.
What worries me about the amendment is that it seems to suggest that the security services can move in one way for part of their work but in another way when they are engaged in the criminal field. However, in many cases there is very little difference between the two. What is the difference between terrorism and espionage and organised or serious crime? There is nothing more organised than the terrorism which is conducted by the IRA. Where do we draw the line? If we are to deal with such organisations and with some of the organised crime groupings which we have been told are a tremendous threat to this country—no one has denied that—secrecy has to play a part. It has to be at the heart of some of the investigative work that is carried out.
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The security services have the power or the authority now to get a warrant to intrude into premises to bug them—there is no other word for it—when dealing with terrorism. It seems to me that there is very little difference, if any, between dealing with that and dealing with other crimes involving the same type of activity, and explosives and firearms which may not normally be regarded as "terrorism". My dictionary tells me that "terrorism" is,
"systematic intimidation as a method of governing or securing political or other ends".
It seems to me that someone who is seeking to blackmail a supermarket chain by way of adulteration of its products could fall within that definition of "terrorism". It would certainly be "organised" and it would certainly be "serious". If such activities are to be regarded as terrorism when they are dealt with by the security services, bringing forward the authority to get an intrusive warrant, it is splitting hairs to decide in other cases that that is not appropriate and that the intrusive approach cannot be used.
I indicated previously that to my knowledge, which is now a little out of date, the police without any judicial authority occasionally intrude and place bugs when dealing with terrorism. After all, it is only 18 months since dealing with terrorism in the form of the IRA was taken away from the Metropolitan Police. While they were responsible for investigating such crimes in this country, they would obviously undertake the same activities as the Security Service.
I also wonder whether the special skills of investigation are not being played up a little too much with regard to the Security Service. Such investigation involves the bugging of premises in order to obtain information and intelligence. Senior police officers who have been involved in such activities over the years must have the same kind of skills and need the same kind of authority to obtain the information and intelligence on which they are to base their actions. What is the case for having differing methods of obtaining intrusive warrants according to the function which the Security Service is undertaking? If it is not appropriate for members of that service to have such a warrant when dealing with serious crime, how can it be any different when they are dealing with what is regarded not as serious crime but as something else; namely, espionage or terrorism? I really do not see how one can discriminate or differentiate between the two activities.
My feeling at the moment is to oppose the amendment so that the security services do not have to decide whether they are dealing with one kind of activity rather than another and, on the basis of that, where to go for a warrant. I would much prefer to give them the same powers in connection with serious crime as they currently have for what is not at the moment said to be serious crime but something else, and to leave the whole question of intrusive warrants and whether we are or are not going too far until we reach that matter later.
Lord Harris of Greenwich: My Lords, I apologise for not having been present throughout the whole debate. Given that there is now a great deal of activity outside the House concerning the extraordinary affair of the handling of the Asylum and Immigration Bill, to

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which I have had to give a fair amount of attention this afternoon, I have not been able to follow the whole of this debate although I had the good fortune to hear the speech of the noble and learned Lord, Lord Browne-Wilkinson.
The matter which concerns me today is exactly that which concerned me on the last occasion we considered this Bill. It was touched on by the noble Lord, Lord Knights. I refer to the question of how we can possibly maintain a system in which the Security Service is given the powers which are set out in the Bill and the police, who will be dealing with exactly the same issues in, arguably, the same investigation, operate under non-statutory Home Office guidelines. Frankly, it makes no sense whatever.
The Minister's answer is to say, "There is nothing to worry about. We shall be looking into this and introducing legislation in the next Session of Parliament", but that is no answer at all. We are talking about a government who have at the most another seven or eight months in office. Of course, they may be re-elected, but the next Session will be exceptionally short. There is therefore no certainty that any legislation introduced by the Government—that is, assuming that such legislation is introduced at all—will be enacted before the end of this Parliament. The serious issues which have been raised by the noble and learned Lord are simply not addressed adequately by the arguments which have so far been adduced by the Minister.
As far as I am concerned, the central issue is that of separateness between the treatment of the Security Service which, however unsatisfactory this clause is, will at least be acting under some form of statutory provision, and that of the police, which will not be in that position.
To repeat the point that I made on the last occasion, the noble Baroness will be aware that the Association of Chief Police Officers has repeatedly put this matter to the Home Office and has been fobbed off with the explanation that the Government will legislate as soon as they have an opportunity to do so. However, for the reasons I have given I do not believe that that is an answer because of the limited period of the current Parliament. The noble Lord, Lord Cuckney, who has experience in this area stated, by implication, that it was necessary to avoid turf wars between the police and the Security Service. I agree with him. In the past there have been such turf wars between the police and Customs and Excise in the course of drugs investigations. That is something to be avoided at very nearly all cost. But for the reasons I have indicated I do not believe that it is desirable to maintain this degree of separation. I believe that in an arguably short period of time substantial tensions will arise between the police and Security Service because of the different statutory frameworks under which they will operate. The Security Service will at least have a clearly defined statutory position but the police will have nothing, except non-mandatory Home Office guidelines. That causes me serious disquiet and, rather more importantly, serious disquiet to a large number of senior police officers.
5.45 p.m.
Baroness Blotch: My Lords, there is no doubt that this is an important issue. The amendments seek to introduce a new role for the judiciary in authorising property warrants in pursuance of the Security Service's new serious crime function. I am grateful for the interventions of my noble friend Lord Cuckney and the noble Lord, Lord Knights. Of all noble Lords in this House, they speak with direct experience of these matters.
The involvement of the judiciary at this stage of an operation by the Security Service when the primary focus is likely to be the gathering of intelligence is a novel and, I suggest, an unnecessary departure from the existing arrangements. The present system works well, safeguarding the public interest while meeting the needs of the Security Service. The amendment of the noble Lord, Lord Rodgers would introduce an even more novel concept, namely the idea of a system of dual authorisation involving both the Secretary of Sate and a High Court judge under which the Secretary of State would not be allowed to take a decision until he had the consent of a member of the judiciary.
The safeguards surrounding the issue of property warrants already incorporate a role for a senior member of the judiciary. The Security Service Act 1989 made provision for the appointment of the Security Service commissioner, an office which is currently held by Lord Justice Stuart-Smith. The duties of the commissioner include overseeing the exercise of the Secretary of State's power to issue property warrants and investigating complaints relating to the interference with property. If he finds that a warrant has been improperly issued or renewed he can order the warrant to be quashed and compensation to be paid. This is a very important safeguard. I suggest that this is a more appropriate avenue for judicial oversight than the prior approval of individual warrant applications which is envisaged by these amendments. There would also be practical difficulties. I will deal first with the system proposed by the noble Lord, Lord McIntosh, whereby ministerial authorisation would be replaced by judicial authorisation for property warrants under the Security Service's new serious crime function. It is quite feasible that the service could be investigating a drug trafficking operation which was being used to fund terrorist activity. This blurring of the functions was touched upon by the noble Lord, Lord Knights. This would be relevant to the Security Service's new serious crime function and its existing national security responsibilities. In these circumstances, although the service would know under which of its statutory functions the operation had been initiated there could be some property warrants which had been authorised by the Secretary of State and some authorised by a High Court judge. This is unsatisfactory. It is important that there should be a single authority who is responsible for granting the warrants required for a single operation.
Turning to the system proposed by the noble Lord, Lord Rodgers, there would be a wasteful duplication of effort if the High Court judge and the Secretary of State both carried out identical functions of approving warrant applications. This could have the effect of reducing the

1049
Secretary of State's role to that of rubber-stamping the decisions of the judge. It could also limit the operational effectiveness of the Security Service if, in an urgent operation, the consent of a High Court judge had to be secured before gaining ministerial authorisation.
It is not just the practical problems about which we are concerned. There must also be grave doubts about whether the authorisation of this type of warrant is an appropriate function for the judiciary. There is an important distinction between property warrants now issued under the Intelligence Services Act and search warrants issued under the Police and Criminal Evidence Act, which are authorised by the judiciary. Search warrants are overt and are normally disclosed to the subject of the warrant at the time of their execution. Property warrants, by contrast, are covert and will not be disclosed at the time of their execution. The only way in which the subject of a warrant could become aware of its existence would be in the course of any subsequent court proceedings. Given that property warrants will often be issued for the purposes of intelligence gathering rather than the collection of evidence, there is a good chance that these warrants will never be disclosed to their subject. This would be a new departure for the judiciary. Rather than the openness and independence of the normal judicial process, judges would be involved in the covert development of operations. This may be seen as a threat to their impartiality by placing them firmly in the law enforcement camp.
If the desire to involve the judiciary stems from a wish to see independent oversight, I suggest that the present system under which the commissioner applies the principles of judicial review to determine whether the Secretary of State has acted properly in granting a warrant is preferable. The commissioner, who must hold or have held high judicial office, is in a position to take a common view across all property warrants, whereas if all warrants are to be approved by a High Court judge prior to consideration by the Secretary of State the duties will have to be shared between a group of judges.
I listened carefully to the observations of the noble and learned Lord, Lord Browne-Wilkinson. But it is important not to undervalue the significance of the requirement for the warrant to be authorised by the Secretary of State. It is a major hurdle that warrant applications should have to be so authorised. As the legislation presently stands, the personal authorisation of the Secretary of State is required in every case. Even in urgent cases where the Secretary of State is unavailable to sign the warrant personally, it is the practice for the authorisation to be given by the Secretary of State over the telephone to a senior official who completes the signing of the warrant under his authorisation.
The Secretary of State is an entirely reliable and trustworthy authority to grant warrants, particularly when the existing legislation provides a set of additional safeguards. In the commissioner's most recent annual report published earlier this month Lord Justice Stuart-Smith confirmed that he was satisfied that the Secretaries of State had properly exercised their powers under the Act. Furthermore, this reliance on the
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Secretary of State to authorise Security Service warrants accords precisely with the existing arrangements for securing the accountability of the Security Service. Under the Security Service Act 1989 the service is ultimately accountable to the Secretary of State. This reflects the sensitive and covert nature of the service's operations. The authorisation of warrants is a logical extension of this accountability, and at present all Security Service warrants, both interception and property, are authorised by the Secretary of State. The fact that the Secretary of State authorises all warrants greatly simplifies the application of consistent standards and makes it easier to identify problems. In addition, the authorisation of warrants offers the Secretary of State an important insight into the Security Service's operations, which provides an extra control on the service's activities.
I should like to run quickly through the other safeguards governing the issue of property warrants. I have already referred to the requirement for warrants to be authorised by the Secretary of State and the oversight role of the commissioner. The legislation also specifies that the action to be taken will result in the service obtaining information which cannot reasonably be obtained by other means and is likely to be of substantial value in assisting the service to carry out its functions. The Secretary of State must also be satisfied that arrangements are in place to control and restrict the disclosure of information gained in this manner.
In summary, we have a system for authorising those property warrants, which is carefully regulated and surrounded by an appropriate set of safeguards. The system has worked well for the authorisation of warrants in respect of the security services' existing functions. The requirement for warrant applications to be authorised personally by the Secretary of State is an important and effective safeguard which complements the accountability arrangements for the Security Service.
In addition to all of that, there are well-established arrangements for supplying independent judicial oversight of the Secretary of State's decisions, in a manner akin to the process of judicial review, through the role of the commissioner. Those arrangements are robust. They take full account of the intrusiveness of the powers we are discussing. They would not be enhanced by either of the amendments, and therefore I hope that the House will not accept them.
Lord Renton: My Lords, before my noble friend sits down, would she care to add that there is a further safeguard which I did not hear her mention; namely, that the Secretary of State is answerable to Parliament for his decisions in such matters as this as in other matters, and can be questioned about them in Parliament?
Baroness Blatch: My Lords, I can give an absolute and unequivocal answer to that. Of course that is right. Not only that, it was this Government who put all of that on a statutory footing and thus opened up this whole area of activity. It is important that we balance how the intelligence services work, and will work in future in support of the police with the openness, as far as is practicable, of full accountability to Parliament.
Lord Browne-Wilkinson: My Lords, before the Minister sits down, I am still not clear, having now asked twice, whether the Government accept that this Bill involves constitutional change, but say that expediency justifies it, or whether the Government say that there is no constitutional change here. It is an important point.
Baroness Blatch: My Lords, it is indeed an important point. The powers of the security services are not being extended constitutionally, or in any other way. It is a new area of activity to which all the existing systems will be applied. The Home Secretary will give his authorisation to warrants which will incorporate the new function that will be given to the security services under the Bill.
Lord Harris of Greenwich: My Lords, I wonder whether the Minister will deal with a point that I raised, which is the continuing concern of the police service about the different treatment accorded it as compared with the Security Service as a result of the passage of this legislation. What precisely do the Government propose to do to deal with those concerns?
Baroness Blatch: My Lords, I have to be repetitious in my answer to the noble Lord because I have answered the question, I think, more than once. The Government intend to legislate—they have made that clear—at an early opportunity. Even given the timetable that has been mentioned by the noble Lord, the Government are continuing the preparatory work for that legislation. We made it clear on Second Reading and in Committee that the Government see the Bill as a piece of free-standing legislation which will not preclude further legislation to deal with matters concerning the police.
Lord McIntosh of Haringey: My Lords, when we first discussed this clause, I set out three objectives for our consideration of Clause 2. The first was that there should be congruity between the warrant powers of the police and those of the security services when they are, in effect, doing the same thing: when they are working together under the functions as described in Clause 1.
It is acknowledged, and I have to acknowledge, that that will not be achieved by anything we do during the consideration of the Bill. As the Minister has just said, that will have to be done in a broader Bill which will be introduced at the earliest opportunity. So, I give up on that one! There is nothing that can be done.
The second was to seek an assurance that there will be no tacit extension in the Bill—nothing is said on the face of the Bill—of bugging powers for anyone; in other words, no one, as a result of the Bill, will have greater power than they now have. That cannot be achieved. There will have to be legislation to set out more clearly than the legislation does at the moment the extent of the warrant power of the police and of the security services.
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However, before we leave that point, I must remind the House that the noble and learned Lord, Lord Browne-Wilkinson, has now asked three times for an answer to the question as to whether there are constitutional implications. He explained clearly that he meant the constitutional implications of the extension to the Executive of the power to invade the privacy of British people in their own homes. He did not receive an answer. The conclusion must be drawn from that that there is indeed an extension of the powers of the Executive, advising the Home Secretary on what can be done by the security services, acting in support of the police.
Our third concern was that there should be, as there is now for property warrants by the police, judicial rather than Executive authorisation. Again, there has been no adequate answer to the questions posed or the issues raised. Some of the debate has, I think, been based on a severe misunderstanding of what Clause 1 says.
The noble Lord, Lord Knights, said that the security services should not have to make decisions as to whether they are dealing with one kind of case or another. Clause 1 makes it absolutely clear that when they are acting in support of the police in that way they are doing so under the conditions of Clause 1; they are acting under authority which is expressly given; and there should and can be no confusion whatever as to under what authority they are acting.
If the Minister then says, as she did, that there is a blurring of functions between the two, and the actions can be initiated under a single authority but can go back to another authority, then she casts doubt on the effectiveness of Clause 1 in drawing the distinction between the new functions of the security services and the original functions. That would lead me, if it were true, to worry even more about the separation of powers which is provided for in Clause 1.
The Minister referred to the role of the judiciary and doubted whether members of the judiciary were the right people to deal with these covert operations. Plenty of police operations are covert. The investigation of serious crime has always been covert. No one does this, if they can avoid it, under the glare of publicity. I cannot tell whether the Minister is seriously suggesting that there is something different about the serious crime which will be investigated with the collaboration of the security services, or whether she is saying that the judiciary is not fit to deal with covert operations of this kind.
I remind the House that the judiciary has historically been involved in covert operations. The judiciary has the responsibility, for example, of examining all papers, even concerning national security, which are given immune certificates by Ministers. We do not need the Scott Report to remind us of that. It was the judge who had to decide about the applicability of the evidence in the Matrix Churchill case. There have been many cases in the past. There is no doubt that the judiciary is privy to the secrets of state and has been so on many occasions. The judiciary is certainly capable of dealing with individual issues as to whether a warrant of this

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kind is appropriate. That does not mean, to use the Minister's words, that the judiciary would be involved in the covert development of operations. The judiciary is not directing or involved in operations by making a decision in accordance with law as to whether a particular warrant should be granted. It is an individual judicial decision; it is not a policy decision as to the direction of operations.
None of the answers that have been given convinces me that the Government have truly appreciated the fundamental points which were raised by the noble and learned Lord, Lord Browne-Wilkinson. The extension of bugging powers, the extension of these warrants, from the judiciary to the Home Secretary—to the Secretary of State—is a fundamental change, as the noble and learned Lord rightly pointed out.
Baroness Blatch: My Lords, I rise with the leave of the House to say that I am accused of being deliberately evasive to the noble and learned Lord, Lord Browne-Wilkinson. I referred not to an extension of powers but to adding a new function and applying the existing powers to that new function. If the noble and learned Lord is talking about domestic properties, perhaps I may point out that the Security Service already has and is able to exercise property warrant powers if it is in the national security interest.
Lord Browne-Wilkinson: My Lords, if the Minister looks at Hansard she will see that I said exactly that. What is changed is that in policing activities for the first time in the United Kingdom since Entick v. Carrington in 1757, whatever the date, the Home Secretary and the Executive are taking the power to enter, bug and burgle. I believe that I am right about that. I have checked the matter carefully and I believe that the Minister is agreeing with what I am saying. That is what I see as the constitutional change.
Lord McIntosh of Haringey: My Lords, the record will show that I did not say that the Minister was being deliberately evasive. I said that the noble and learned Lord had asked his question three times and had not received an answer. That is not being deliberately evasive. I am not casting aspersions on the honour of the Minister. I am merely saying that there is no answer; the Government do not have an answer to the question which the noble and learned Lord has posed.
In the absence of an answer it must be the case that the noble and learned Lord is right in saying that what the Bill proposes is the overturning of the judgment of Entick v. Carrington in 1757 which stated, and I paraphrase, that a Minister is like any other person; he has no power to burgle or invade the privacy of the home of a citizen of this country. That is the basis on which Amendment No. 4, which provides for judicial authority rather than ministerial authority, is based and I put that question to the House.
6.3 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
*Their Lordships divided: Contents, 49; Not-Contents, 107

Division No. 2

CONTENTS

Addington, L.

Monkswell, L.

Beaumont of Whitley, L.

Monson, L.

Browne-Wilkinson, L.

Morris of Castle Morris, L.

Chorley, L.

Nicol, B.

David, B.

Plant of Highfield, L.

Dean of Beswick, L.

Rea,L.

Dormand of Easington, L.

Richard, L.

Dubs,L.

Robson of Kiddington, B.

Falkland, V.

Rodgers of Quarry Bank, L. [Teller.]

Geraint,L.

Gladwin of Clee, L. [Teller.]

Russell, E.

Graham of Edmonton, L.

Seear.B.

Grey.E.

Simon of Glaisdale, L.

Hamwee, B.

Stallard, L.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Hoffmann, L.

Thurso, V.

Holme of Cheltenham, L.

Tordoff, L.

Irvine of Lairg, L.

Turner of Camden,B.

Jeger, B.

Wallace of Coslany, L.

Jenkins of Putney, L.

Wallace of Saltaire,L.

Kennet, L.

Warnock,B.

Kilbracken, L.

Whaddon, L.

McIntosh of Haringey, L.

White, B.

McNair, L.

Williams of Elvel.L.

Mishcon, L.

Winston, L.

NOT-CONTENTS

Abinger, L.

Gardner of Parkes,B.

Addison, V.

Goschen,V.

Ailsa,M.

Halsbury, E.

Aldington, L.

Harding of Petherton, L.

Allenby of Megiddo, V.

Harmsworlh, L.

Ashbourne, L.

Hayhoe, L.

Astor of Hever, L.

Henley, L.

Belhaven and Stenton, L.

Hertford, M.

Blaker, L.

Holderness, L.

Blatch, B.

HolmPatrick, L.

Boardman, L.

Hooper, B.

Boyd-Carpenter, L.

Inglewood, L.

Brabazon of Tara, L.

Jakobovits, L.

Braine of Wheatley.L.

Kenyon, L.

Brookeborough, V.

Keyes, L.

Brougham and Vaux, L.

Knights, L.

Burnham,L.

Lauderdale, E.

Butterworth, L.

Lawson of Blaby, L.

Cadman, L.

Leigh, L.

Caithness, E.

Lindsay, E.

Caldecote, V.

Lucas, L.

Campbell of Alloway, L.

Lucas of Chilworth, L.

Campbell of Croy, L.

Lyell,L.

Carnegy of Lour, B.

McConnell, L.

Chalker of Wallasey. B.

Mackay of Ardbrecknish, L.

Clanwilliam, E.

Mackay of Clashfern, L. [Lord Chancellor.]

Clark of Kempston, L.

Colwyn, L.

Mackay of Drumadoon, L.

Courtown, E.

Macleod of Borve,B.

Cranborne, V. [Lord Privy Seal.]

Marlesford, L.

Crickhowell, L.

Mersey, V.

Cuckney, L.

Miller of Hendon, B.

Cumberlege, B.

Milverton, L.

De L'Isle, V.

Monk Bretton, L.

Denham, L.

Montagu of Beaulieu, L.

Dixon-Smith, L.

Montgomery of Alamein, V.

Donegall, M.

Mottistone, L.

Downshire, M.

Mountevans, L.

Elton, L.

Mountgarret, V.

Erroll,E.

Murton of Lindisfarne, L.

1055

Newall, L.

Seccombe, B.

Northesk, E.

Shaw of Northstead,L.

Norton, L.

Shrewsbury, E.

O'Cathain, B.

Strathclyde, L. [Teller.]

Onslow, E.

Sudeley, L.

Oxfiurd,V.

Swansea, L.

Park of Monmoutb, B.

Swinfen, L.

Pearson of Rannoch, L.

Thomas of Gwydir, L.

Prentice, L.

Thomas of Swynnerton, L

Quinton, L.

Trumpington, B. [Teller.]

Rankeillour, L.

Ullswater, V.

Rathcavan, L.

Wharton, B.

Rawlings, B.

Wise,L.

Renton, L.

Wyatt of Weeford,L.

Romney, E.

Young, B.

[*The Tellers for the Not-Contents reported 107 names. The Clerks recorded 109 names.]
Resolved in the negative, and amendment disagreed to accordingly.
6.12 p.m.
[Amendment No. 5 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 6:
Page 2, line 10, at end insert—
("( ) Those parts of the Police and Criminal Evidence Act 1984 and guidelines issued in association with that Act which relate to police searches of premises shall apply to the Security Service in the exercise of their function under section 1(4) of the Security Service Act 1989.").
The noble Lord said: My Lords, a number of amendments in Committee sought to introduce elements of the Police and Criminal Evidence Act into this Bill. This is a further similar attempt in Clause 2 and it is very limited in scope. The amendment states:
"Those parts of the Police and Criminal Evidence Act 1984 and guidelines issued in association with that Act which relate to police searches of premises shall apply to the Security Service in the exercise of their function under section 1(4) of the Security Service Act 1989"—
in other words, the functions with which this Bill is concerned.
There are two possible government responses to the amendment. The first is that it is unnecessary; in other words, that those guidelines will apply. The second is that it is undesirable and that they should not apply. I hope that the Government will give the first answer and that I shall be able to withdraw the amendment. I beg to move.
Baroness Blatch: My Lords, as I have said countless times, the Bill before your Lordships confers no new powers on the Security Service. Rather, it allows the Security Service to use its existing powers in a new area. Among these powers is the ability to seek from the Secretary of State a warrant authorising "entry on, or interference, with property"—so called "property warrants". As has been pointed out, such a warrant could be used to enter a property to search for information.
It is important to appreciate that such searches would, by definition, be covert in nature and would often be conducted without the knowledge of the property owner.
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The intrusive nature of such a power is recognised by the fact that warrants require the personal authorisation of the Secretary of State and he may only issue such a warrant if the desired result could not reasonably be achieved by any other means.
The police are able to undertake similar actions on authorisation from a chief officer. This is something we have discussed during the Bill's earlier stages and, as your Lordships are aware, the Government have accepted that the present situation is unsatisfactory and intend to introduce early legislation to put police intrusive operations on a clear statutory footing.
It is important to realise that such covert searches, whether undertaken by the police or the Security Service, are very different from the kind of searches that are regulated by the Police and Criminal Evidence Act 1984. The searches which that Act deals with are the kind authorised by a magistrate or court. I remind your Lordships that the Security Service has no executive powers, and is not to be given any, and cannot apply for such search warrants.
The searches that the Police and Criminal Evidence Act deals with are overt and are normally conducted with the full knowledge of the owner or occupier of the property. The code of practice governing such searches reflects this. It therefore contains provisions stipulating that a search must normally be undertaken at a reasonable hour of the day and a requirement that the searching officer should initially attempt to communicate with the occupier of the premises and must identify himself.
This is all a far cry from the kinds of searches that the Security Service may be authorised to undertake and, I am sure your Lordships will agree, the provisions to which I have just referred, and others, would be most inappropriate for the Security Service. I hope therefore that the noble Lord, Lord McIntosh, will understand why we are unable to accept his amendment.
However, I assure your Lordships that even if the Security Service cannot be bound by the provisions of the Police and Criminal Evidence Act codes of practice, there are still a multiplicity of safeguards surrounding the issuing of property warrants. As I have already mentioned all such warrants have to be personally authorised by the Secretary of State and he can only authorise one if the end sought cannot reasonably be achieved by other means. Beyond that, the issue of all warrants is subject to independent scrutiny by an independent commissioner who is a senior member of the judiciary.
In the light of what I have said, in particular as regards the inappropriateness of the provisions of the Police and Criminal Evidence Act for the kind of searches that the Security Service may seek to carry out, I hope that the noble Lord, Lord McIntosh, will feel able to withdraw his amendment.
Lord McIntosh of Haringey: My Lords. I feared as much. That was the wrong answer. To summarise brutally, the Minister is saying that the Security Service will not abide by civilised standards. I do not think that the police often do so. I do not think that breaking down

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the door at six o'clock in the morning, which is not uncommon, sometimes with the press present, is in accordance with Police and Criminal Evidence Act guidelines, but it seems to happen quite a lot.
I am deeply disappointed that the Minister does not recognise the need to have something comparable with Police and Criminal Evidence Act guidelines. If they have to be altered to fit the circumstances of the case, then so be it. But there should not be the complete divorce from the Police and Criminal Evidence Act when these operations are being carried out in this country against serious crime and the police are also involved. There should not be a dual standard. I am disappointed but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 7:
Page 2, line 13, leave out ("either").
The noble Lord said: My Lords, Amendment No. 7 is a paving amendment for Amendment No. 8. Both are concerned with the definition of "serious crime" which is used for the purposes of Clause 2 but not used for the purposes of Clause 1.
The more I read the definition used in subsection (3B), the more I think that virtually any kind of crime could be covered by this definition. There are two elements in it. First, it involves the use of violence. That is not serious violence or any particular kind of violence but violence which,
"results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose".
That is not an illegal purpose but any common purpose, whether protesting about the poll tax, drowning one's sorrows about Euro 96 or protesting against the Newbury bypass. One does not have to agree with any of those issues to say that those are legitimate occasions and it is very difficult to determine who is or is not responsible for an offence at such a mass occasion.
The second part of the definition is that:
"the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years".
I acknowledge that that is tougher than it seems on the face of it. I acknowledge that it does not refer to all crimes which have a maximum sentence of three years or more. It means that for a first offender, an adult could reasonably be expected to be sentenced to a term of imprisonment, and, to that extent, the provision is more limited.
Now we come to the problem. Having defined the offence which is called a serious crime in paragraph (a), in terms of the circumstances in which it takes place and the purpose for which it is committed, and in paragraph (b), as regards the seriousness with which the courts will consider it, the two points are linked, not by an "and" but an "or". In other words, there is a possibility that some conduct which involves the use of any kind of
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violence or is part of a demonstration by a large number of persons in pursuit of a common purpose, even if paragraph (b) does not apply, will still come under the category of serious crime. Conversely, if the offence meets the conditions of paragraph (b), even if it does not involve,
"the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose",
it still meets the definition of serious crime.
It is difficult to imagine what is not covered by serious crime as defined in the provision. At the very least, the Government should agree to make both paragraphs necessary parts rather than alternative parts of the definition. I beg to move.
Baroness Blotch: My Lords, Amendment No. 7 gives me an opportunity to put on record once more one key fact. Ministers have made clear throughout the Parliamentary passage of the Bill that the Security Service's work in the serious crime field will be directed against organised crime. The service will be tasked to act against crimes against which its special skills and expertise can most effectively be deployed. The National Criminal Intelligence Service will ask the Security Service to employ those skills against organised crime.
That point was a key element of the conclusions of the inter-departmental/inter-agency working group, to which I referred in opening the Second Reading debate, and which met last year to consider what contribution the Security Service might make to the fight against organised crime. So let there be no doubt that the Security Service will be acting against organised crime. No statutory definition of what is organised crime exists and the Home Affairs Select Committee in another place recommended that effort should not be wasted in trying to create one. That is the reason why the Bill refers to serious crime. Nevertheless, on the basis of the assurances that have repeatedly been given, and which I am happy to reinforce—that the Security Service will be deployed only against organised crime—I hope your Lordships will accept that some of the more fanciful speculation of the kinds of minor crimes that the Security Service might be set against is utterly without foundation.
The definition that is in Clause 2 of the Bill was carefully chosen. It was picked because it exactly replicates the definition that is contained in the Interception of Communications Act 1985. It is the definition that is used to govern the issue of serious crime interception warrants to the police, Her Majesty's Customs and Excise and those intelligence agencies that already have a serious crime function. The definition has been in place for more than a decade, there have been no problems, and it has worked well.
Warrants issued under the Interception of Communications Act are subject to scrutiny by an independent commissioner. None of the three distinguished members of the judiciary who have held the office of Interception Commissioner—the noble and learned Lords, Lord Lloyd, and Lord Nolan, and Lord Bingham of Cornhill whom we were delighted to

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welcome to your Lordships' House yesterday—has ever found cause to complain about this definition of serious crime, which is further evidence of its efficacy.
There are good arguments for consistency in legislation. In particular, it would be odd if the Security Service were to find itself subject to different definitions when applying for interception warrants and property warrants, as would be the consequence of passing this amendment. This is especially true as the service may well find itself needing to apply for both kinds of warrant in the same case. In such circumstances it would seem illogical if a different test of serious crime were to pertain.
In the light of the obvious benefits of consistency combined with the knowledge that the definition has been around for 10 years in different legislation, and has worked well—and noble Lords do not have just my word on that, but that of three very distinguished independent Members of your Lordships' House—I hope that the noble Lord, Lord McIntosh, will feel able to withdraw the amendment.
Lord McIntosh of Haringey: My Lords, the Minister used the amendment as an opportunity to reiterate the Government's determination to pursue organised crime with all the legitimate means at their disposal. Therefore I can use the amendment as an opportunity to reiterate our support for that objective, and for the fundamental principle of this Bill in seeking to provide additional weapons in the fight against organised crime.
I am glad that I am not a lawyer because if I were I should be worried about the way in which the Minister always refers to organised crime when referring to the objectives of the Bill, although the word "organised" does not appear as such. However inadequate it may be, and however remote the analogy may be between this and the previous legislation, I appreciate that the definition of serious crime has been used before, and I appreciate the virtue of consistency in legislation. I beg leave to withdraw Amendment No. 7.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]

Family Law Bill [H.L.]
6.25 p.m.
The Lord Chancellor: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)
Lord Simon of Glaisdale: My Lords, perhaps I may intervene at this stage just to ensure that I have the right papers with me. I have a Marshalled List of the Commons amendments and I have a copy of the amendments that it is proposed to be moved in that respect. However, I do not have something which we generally have on such occasions; namely, a list of the Government's recommendations on our consideration of such amendments. It would not surprise me if my noble
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and learned friend intends to ask the House to accept all the Commons amendments. That is perhaps why we do not have the usual document which is supplied to us. Nevertheless, I just want to be sure that I have not missed a document which I might need.
The Lord Chancellor: My Lords, my noble and learned friend correctly anticipates my intention. I intend to invite your Lordships, along with one of my colleagues, to accept all the amendments that the Commons have proposed to the Bill without any further amendment or qualification. I suspect that that is the reason why we have no document setting out different points of view in respect of the various amendments. I believe that my noble and learned friend has all the documents that I have, except possibly those containing some additional help in prompting me as to what to say when I come to make recommendations to your Lordships about particular amendments.
On Question, Motion agreed to.
COMMONS AMENDMENTS
[The page and line refer to Bill (82) as first printed hr the Commons.]
COMMONS AMENDMENT
1 Clause 1 page 1, line 12, leave out 'to save it' and insert ', whether by marriage counselling or otherwise, to save the marriage'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. In speaking to this amendment, I wish to speak also to Commons Amendments Nos. 20, 27, 28, 40 and 41. I am very pleased to present these amendments to the House. I am well aware of the concern felt by many Members of the House about the provisions of the Bill in relation to marriage counselling. That was eloquently expressed by many noble Lords and right reverend Prelates during the passage of the Bill through the House. This group of amendments has, I believe, improved the provisions of the Bill in this respect and will therefore, I trust, meet with the approval of your Lordships.
I shall deal, first, with Amendment No. 1. It builds on the suggestion made to the House during the passage of the Bill by the noble Lord, Lord Stallard; namely, that we should have a general principles' clause at the beginning. The other place has obviously warmly endorsed that and has used it to elaborate somewhat the provisions that it thought should be made in that respect. Indeed, the amendment raises the profile of marriage counselling by ensuring that it is referred to within the clause.
Amendment No. 20 provides that one of the purposes of the information meeting is to provide parties with the opportunity (and to encourage them to take it) of attending a meeting with a marriage counsellor. Amendment No. 27 provides for regulations to specify the way in which such a meeting must be held and to specify the qualifications and appointments procedure for marriage counsellors carrying out such a meeting. Amendment No. 28 provides for such meetings to be free to those who qualify for legally-aided mediation on a non-contributory basis.

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Amendment No. 40 provides that when making grants under Clause 20, the Lord Chancellor shall pay particular regard to the desirability of services being available when they are first needed. Your Lordships may remember that I sought to make that point repeatedly during the time that the Bill was in your Lordships' House. I believe it to be extremely important that, where money is available, it should be applied to provide for services when those services are first needed, otherwise it may well be that matters have gone too far for any real help to be effective. The amendment makes clear that proper emphasis will be given to services aimed at preventing relationship breakdown before a couple reach the point where they are, sadly, considering divorce.
Amendment No. 41 introduces a new clause which provides for the funding of marriage counselling during the period for reflection and consideration. Marriage counselling under this amendment will be state funded for parties who are eligible for non-contributory legal aid. The provisions give the Lord Chancellor the powers to prescribe the circumstances in which the provision of funded marriage counselling is subject to the approval of the Lord Chancellor to ensure that standards of service can be set and maintained.
I believe that the amendments strengthen the Bill in precisely those areas which have been of most concern to your Lordships in this House. Such concerns have been taken up in the other place.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(The Lord Chancellor.)
Lord Irvine of Lairg: My Lords, I welcome in particular Amendment No. 1 which will give a high profile to marriage counselling as a distinct process designed to save a marriage. I have no doubt that this group of amendments significantly improves the Bill. It is also particularly welcome that a purpose of the information meeting is to encourage the party or parties who attend to take up the opportunity of marriage counselling with a view to saving the marriage.
The effect of Amendment No. 28 is to provide a level playing field between marriage counselling and mediation because the meeting with a marriage counsellor will be free for those who qualify for legally aided mediation on a non-contributory basis. Likewise, by way of Amendment No. 41, marriage counselling during the period for "reflection and consideration" will be state funded, again, for those eligible for non-contributory legal aid.
The intent of Amendment No. 40 is to ensure that marriage counselling is available at the time when it is "first needed" and—it is to be hoped—before the marriage has broken down. I believe that this group of Commons amendments accords a rightful high priority to marriage counselling as a means of saving marriages and that it establishes a balanced scheme for the provision of such counselling.
Baroness Seear: My Lords, from these Benches I should also like to support the amendments. I do so
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especially because of the advantages given before conciliation. During the earlier stages of the Bill, we pressed the point that that was a very important matter and one for which finances ought to be made available. Therefore, we are extremely glad to see that that will now be incorporated in the legislation.
Lord Simon of Glaisdale: My Lords, I, too, very much welcome the amendments. I particularly welcome the provision that marriage counselling should be made available at the earliest possible moment. Certainly all assistance in aid of marriage is 10 times more useful if it is available as soon as trouble appears in the marriage.
I have only one question to ask; namely, what is the cost of the counselling services which are now to be provided? That must have been agreed with the Treasury. It is most important that we should know that and, indeed, the total cost involved as regards the measures in the Bill.
Baroness Young: My Lords, I, too, should like to support this group of Commons amendments. We discussed the issue at very considerable length during our deliberations on the Bill. If I have any regret, it is that some of our amendments were not accepted at an earlier stage. However, that is a rather grudging thing to say and, on the principle of better late than never, I am very pleased that the amendments were made to the Bill in the other place.
I should like to reiterate one concern that I have about counselling services. I recently received a piece of literature from Relate. It is quite interesting in that, on looking through the document, one has to read two sections of it before marriage is even mentioned. The literature claims at the beginning that Relate,
"is Britain's leading couple counselling agency".
I really feel—and this is a serious point—that there is a very real distinction in life between marriage and co-habitation. I have always believed that the Bill should buttress marriage and that the counselling services employed ought to be doing just that and not be involved in other forms of what are today called, "alternative lifestyles".
When my noble and learned friend comes to answer the question posed by the noble and learned Lord, Lord Simon of Glaisdale, I hope that we will learn what sums of money we are talking about. Indeed, where government money is involved, we must ensure that it really goes to organisations whose function in life is to support marriage. We must be absolutely clear on that point.
Having said that, I welcome anything which encourages couples to stay together. One of the more encouraging statistics that we heard about at an earlier stage is the fact that between 20,000 and 30,000 couples start divorce proceedings each year but do not proceed to the end. We really must try to encourage more couples, who feel that they have to start counselling, to go back together before divorce occurs.
Lord Stallard: My Lords, I also wish to support the amendments. The noble and learned Lord the

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Lord Chancellor was kind enough to mention the debates that we had when the Bill was passing through this House. I share the concerns expressed about counsellors, especially those of the noble Baroness, Lady Young. Indeed, that matter was referred to in our original debates. Since the Marriage Guidance Council changed its name—it has done so at least once, or, perhaps, a number of times—to Relate, it seems to be distancing itself from marriage as such; that is, in terms that we understand. I am worried as to where all the counsellors will come from to carry out the provisions set out in the amendments.
The noble and learned Lord, Lord Simon of Glaisdale, asked: where will the money come from? They are all important questions. It is great that we have achieved at least the sense of our amendments, but the questions that remain are: who will the counsellors be? Who will counsel the counsellors? I know that there are many Church organisations which have excellent counsellors, but who will counsel the vast army of counsellors which will probably be needed as a result of this new industry of counselling?
I am also worried about the quality of the training of many of the counsellors—that is, those who currently practise and those who will become counsellors. I repeat: who will the counsellors be; who will counsel and train them; and, finally, where will the money come from?
The Lord Chancellor: My Lords, I am grateful for the support for the amendments that I have received from all parts of the House. As regards the point raised by my noble friend Lady Young which was taken up to some extent by the noble Lord, Lord Stallard, I should point out to the House that the Bill makes clear that it is marriage support services and marriage counselling that are in issue from the point of view of support. Therefore, in respect of the clauses we are discussing, there is no question of this Bill authorising counselling in relation to alternative lifestyles. The divorce provisions are relevant only to the situation of marriage. As regards the costs, my noble and learned friend—
Lord Stoddart of Swindon: My Lords, before the noble and learned Lord leaves that subject, I did not speak upon that point but I wish to ask him how will the marriage guidance service be supervised. Will it be supervised by the Government? Will another organisation be set up? How are we to ensure that marriage counselling is about counselling to save marriages?
The Lord Chancellor: My Lords, the provision of counselling will be in the hands of a number of organisations which offer services. However, they will do so under contract or under grant. The grants will certainly be offered under conditions that make it clear what the nature of the service is and the standard of service to be provided. I do not envisage a whole army of counsellors. I have read some suggestion of that in some pieces of paper. However, I do not envisage that at all. I envisage support for a high quality service.
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When the Bill was in this House previously, I said I believed that marriage counselling was capable of being monitored in quite an effective way, because one can ascertain to what extent the consequences of counselling have produced continuation of marriages. I believe that can be effectively monitored. We shall put in place effective monitoring as part of the arrangements. That is also important in relation to costs. I have tried to explain before to your Lordships that I believe it is much easier to get money if you show you are saving a lot of money, than if you are not. If this provision works—as I hope it will—the result should be quite substantial consequential savings in respect of other matters such as housing, benefits and the like. Therefore I believe that monitoring the results of the applications of these amendments is important.
The costs of marriage counselling are comparatively cheaper than are the costs of the provision of legal aid under the present arrangements. Of course there is the additional grant which we presently give under the general powers. I have explained that pilot studies will be conducted before we bring the divorce and mediation parts of this Bill into effect. As this Bill comes into effect I anticipate that it will be possible within the total budget that is presently allocated for legal aid to make quite a substantial shift in favour of marriage counselling. Apart from the grants which are presently separate, I anticipate that the overall result of this Bill will be cost neutral.
We want to encourage a variety of counsellors and a variety of help. One area where counsellors are sometimes situated with particular effect is in association with family medical practitioners. I believe that a good family doctor sometimes has an opportunity of picking up signs of difficulty in a marriage before any other professional adviser is likely to have notice of that difficulty. I wish to keep as flexible arrangements as possible in place, but I believe that this is something that—
Lord Mishcon: My Lords, before the noble and learned Lord leaves that point, would I not be correct in thinking that he of all people would want to encourage those in the legal profession, as soon as a client comes to them in regard to matrimonial affairs, to be fairly good trained counsellors themselves? They could do so much good.
6.45 p.m.
The Lord Chancellor: My Lords, of course there are different circumstances in which clients approach lawyers. There are some people who are able to afford to have a reasonably continuous legal service. I heard someone say that some people complained there were too many lawyers in the United States. In fact there are too few lawyers there because not everyone can have his own lawyer; people have to share lawyers.
The point I was trying to make earlier is that the medical practitioner may well, because of his continuing relationship with patients, have an opportunity of detecting difficulties early. Often lawyers are approached rather later in the course of a problem arising. I entirely agree with the noble Lord,

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Lord Mishcon, that the legal profession should be sensitive about trying to do that. I know there are many lawyers who are extremely good at helping people to overcome their difficulties and keep their marriages going. I know that some of your Lordships will readily identify some such lawyers.
Lord Simon of Glaisdale: My Lords, before my noble and learned friend is finally allowed to settle down, he mentioned that he expected a substantial shift in resources from legal aid to counselling. Could he at least put a figure on that, and also, desirably, on the total cost of the counselling service?
The Lord Chancellor: My Lords, it is quite impossible to do that at the present moment because the precise nature of the arrangements require to be taken into account. My information is that the hourly charges in respect of counselling are very much less than the corresponding charges in respect of legal aid. I hope that there will be more take-up of counselling with the result that there will be less need for legal aid either as regards advice or representation in proceedings. The arrangement this Bill is based on is that the overall cost will remain no greater than the cost of legal aid in respect of the present services, plus the amount which is presently the amount of the grant to the marriage guidance services. Obviously, the precise costs will depend very much on the take-up of that provision. I certainly hope we can encourage that take-up so that the amount that is allocated ultimately to marriage counselling rather than to legal aid is as high a proportion as the practicalities allow.
On Question, Motion agreed to.
COMMONS AMENDMENT
2 Clause 1, page 1, line 22, at end insert; and
(d) that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.
Together with this amendment I wish to speak also to Commons Amendments Nos. 30, 31, 42 and 62. Amendment No. 2 inserts in the general principles clause the principle,
"that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished".
This principle will guide me in making regulations under the Bill, for example, as to attendance at information meetings or attendance at a mediation assessment meeting. It will also inform the actions of those conducting such meetings, mediators and anyone else exercising functions under Parts II and III of the Bill. So in a sense it is a further building on the work of the noble Lord, Lord Stallard, when the Bill was in this House.
Amendments Nos. 30, 31, 41 and 62 introduce into Schedule 1 a further exemption to the requirement of Clause 9 that financial arrangements must be decided upon before a divorce or separation order can be
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granted. Your Lordships will remember that I regard that as quite an important part of our proposals. Having regard to the considerations before the other place, the additional exemption has been inserted. It will apply where there is an occupation order or non-molestation order in force in favour of the applicant, or a child of the family, against the respondent, provided certain requirements have been fulfilled and that delay would be significantly detrimental to the welfare of any child or seriously prejudicial to the applicant.
I believe that it would be wrong for a divorce to be denied on the ground that financial arrangements had not been settled when domestic violence by the respondent is or has been present in the family, provided the applicant has made every effort to comply with the requirements as to the parties' financial arrangements for the future. It should be no part of the law regulating divorce that the victims of domestic violence should be locked into such destructive relationships because the other party to the marriage will not co-operate in making financial arrangements for the future. In my submission to your Lordships, I am anxious to preserve the general principle, but that I regard as a wise exception.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(The Lord Chancellor.)
Lord Irvine of Lairg: My Lords, Part IV of the Bill is about domestic violence. It started as a separate Bill in this House and then was hijacked in the other place by certain Members of the noble and learned Lord's party there. I shall not cause him pain by saying any more. It is to his great credit that he brought back the substance of its provisions as part of this Bill. He could have lost both his Domestic Violence Bill and this Family Law Bill, but he has lost neither.
Structurally, the substantial incorporation of the old Domestic Violence Bill into this Bill has resulted in there being a division between the domestic violence provisions and the divorce and separation provisions. To my mind the real significance of the group of amendments from the other place is that they draw attention to the overlap between the two sets of provisions when domestic violence or the threat of it is a feature of the divorce process. As the noble and learned Lord said, that is the significance of Amendments Nos. 30, 31, 41 and 62.
The failure to agree financial arrangements as a bar to the making of a divorce or separation order should not apply—and I agree with the noble and learned Lord—where there is an occupation order or a non-molestation order in being against the respondent in favour of the applicant or a child. That should be the case where the applicant has genuinely tried to arrive at an agreement about the financial arrangements but without success, when no such agreement is in reasonable prospect and when the delay in the grant of divorce would seriously prejudice the applicant or be seriously detrimental to the welfare of any child. I agree, therefore, that these are beneficial amendments.
Finally, I particularly welcome Amendment No. 2, an amendment moved by my party in the other place and accepted by the Government at the Commons Report

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stage. As the noble and learned Lord said, it adds to the general principles clause the requirement that the court and any person exercising functions under Parts II and III shall have regard to this new general principle:
"that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, he removed or diminished".
The noble and learned Lord has been good enough to acknowledge that it was my noble friend Lord Stallard on these Benches who was the author of the idea that the Bill should include a general principles clause. From this Front Bench I supported it in principle, as did the noble and learned Lord, who was hospitable to the suggestion, as the other place proved to be.
I am sure that noble Lords will agree that as a result of the amendments in the other place, the clause has been significantly improved. Also, as we noted in our discussions on Amendment No. 1, Clause 1 has been further strengthened by the other place in another important way: a high profile has been given to marriage counselling as a distinct process designed to save a marriage. For those reasons, I welcome this group of amendments.
Earl Russell: My Lords, I too welcome the group of amendments and extend a particularly warm welcome to Amendments Nos. 2 and 42. In doing so, I pay tribute to the part played by both the other two Front Benches in bringing it about.
When I first started a debate on domestic violence in this House in 1990, I was told that it was the first time the subject had been discussed in either House of Parliament in a period of 10 years, whereas the picture has totally changed now. The prominence of the issue is much increased. For that, I give the warmest thanks to the noble and learned Lord for Part IV of the Bill and for the persistence he has shown in getting it towards the statute book. In that regard he has enjoyed the entirely involuntary assistance of the Daily Mail. It is a remarkable example of the law of unintended consequences. The practical wording of the amendments seems to me good and helpful and I am glad to see them.
Lord Mishcon: My Lords, I hope that I am not being a pedant, but when the noble and learned Lord replies perhaps he could inform the House, if there is any point in it, why there is the word "and" in the first line of the amendment, and not "or".
The Lord Chancellor: My Lords, in Clause 1 the principles are cumulative in effect. For example,
"that the institution of marriage is to be supported"
is to be taken with the other principles. Principle (d) will be the last provision, so that principles (a), (b), (c) and (d) are all to be taken into consideration at all times.
Lord Mishcon: My Lords, I am sorry but I believe that the noble and learned Lord did not understand my point and perhaps it was unintelligible. I was looking at the first line of principle (d) in the amendment:
"that any risk to one of the parties to a marriage,"
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I should have thought the next word should be "or",
"to any children, of violence",
not "and".
The Lord Chancellor: My Lords, I misunderstood the noble Lord and thought he meant the "and" at the beginning of the amendment. However, the same point applies. Any risk to one of the parties to a marriage and to any children, if there is such a risk, must be minimised. In other words, all risks must be minimised. On the whole I prefer the wording of the amendment to the alternative proposed by the noble Lord. I have great authorities on grammar immediately on my left, but that is my own view. I hope that your Lordships will agree with it.
Baroness Seear: My Lords, if the word is "and", the provision must mean a risk both to the children and to one of the parties. If the word is "or", it can be to either of them.
Lord Irvine of Lairg: My Lords, before the noble and learned Lord sits down, I offer the opinion that the amendment means both:
"any risk to one of the parties to a marriage, and [any risk] to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished".
So either risk, so far as is reasonably practicable, should be removed or diminished. The noble and learned Lord will recall that there are some decisions of the courts where the courts have been ready to read "and" as "or" if the purpose of the clause so requires. For my own part I think that there is no risk in leaving the clause as currently expressed.
On Question, Motion agreed to.
COMMONS AMENDMENT
3 Clause 3, page 2, line 30, after (6)' insert 'or (13)'.
7 p.m.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I wish to speak also to Amendments Nos. 4, 5, 7 and 15. Amendments have been tabled to Amendments Nos. 7 and 15 and we shall return to those in a little more detail when they are moved. However, I wish to deal with the group now.
This group of amendments deals with the period for reflection and consideration. Noble Lords, in particular my noble friend Lady Young, the noble Lords, Lord Stallard and Lord Stoddart of Swindon, and my noble and learned friend Lord Simon of Glaisdale, expressed the view that the period as set at 12 months was not long enough. It was felt that this was especially the case where children were involved or if one of the parties did not consent to the divorce. However, other noble Lords had expressed equal concern that lengthening the period would be detrimental to the welfare of children by increasing uncertainty, or that it might be considered as a system of two-tier marriage.
Amendment No. 15, which was passed on a free vote in the other place, strikes a balance that is to be commended at this stage. We discussed amendments

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similar to this when the Bill was before this House, but none of those ultimately moved included the provisos in Amendment No. 15.
Amendment No. 15 provides that, where there are children or one of the parties objects to the divorce, the period for reflection and consideration shall be extended by six months. However, it provides safeguards, meaning that the extension may not be made in cases where remedies against domestic violence have been obtained—that is automatic; such remedies have been obtained, the extension does not take place—or where the court is satisfied that further delay would be significantly detrimental to the welfare of children.
That is a very important safeguard. During our discussion of the amendment moved by my noble friend Lady Young and carried to a Division at Third Reading in this House, I expressed concern about the effect that it might have on children. I mentioned a number of children's charities, and that those concerned with these matters had expressed that anxiety to me.
I emphasise strongly that Members of the other place, in their consideration of this matter, took very full account of that concern. They put into this amendment the proviso that, where the court is satisfied that further delay would be significantly detrimental to the welfare of the children, the extension does not apply. That gives the court a very clear and full authority in this matter to have proper regard to the effect on the children. "Welfare" is the general word used.
Some have not fully taken on board this important exception. The noble Lord, Lord Habgood, has tabled an amendment, with which we shall deal in a little more detail. But in substance, this point is provided for very clearly.
This is the area in which a free vote was contemplated, both here and in the House of Commons. I regard it as extremely important that, on matters involving important issues of conscience, Parliament should be prepared to legislate. We ought not to shy away from important matters of that kind simply because issues of conscience are involved. Not long ago, two of my noble friends wrote to a newspaper to raise questions concerning life support systems for people in a persistent vegetative state. They asked whether that sort of subject should be referred to Parliament. I express no view about that. I wish merely to point out the need for the mechanism of free votes to be used to resolve matters involving issues of conscience. That is the proper mechanism by which Parliament can legislate on such matters.
In a Committee of the whole House the other place, on a completely free vote, resolved in favour of this formulation. This would be a matter for a free vote in this place, were any of these amendments to be put to a Division. However, I wish to express very strongly my own view that if we are to be able to legislate satisfactorily in this area, unless there is a very strong reason to differ, it would be right for this House to consider as very important the result of a free vote in the other place.
Noble Lords may remember that when the result of the free vote was published a number of commentators described it as a government revolt. I find it difficult to
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understand how revolt is possible when the Government takes no position on a matter and allows a free vote. That was true for my part, and for my colleagues in the other place. Once the Second Reading had taken place and the Committee of the whole House had been charged with the clauses on which free votes were to take place, the Government expressed no particular view and did nothing to advance any, in order that a fully free vote should take place.
Naturally enough, next morning I was asked about the matter. My express opinion then was that the only way in which this kind of issue could be satisfactorily addressed was by my accepting wholeheartedly the result on the free vote in the House of Commons. That I have done, consistently, since. I believe that is wise.
This is a matter for a free vote. Your Lordships are all free and utterly independent. However, I suggest that if matters of this kind are to be legislated for properly in government time as they should be when they are central to our national life, we must do what we can to respect the result arrived at by a democratic free vote in the other place.
The other amendments in this group are consequential on Amendment No. 15. Amendment No. 3 provides that, where the court has both an application for a divorce order and a separation order before it under Clause 3 and the period for reflection is extended, the court is entitled to proceed with the separation order rather than only the divorce order. Amendments Nos. 4, 5 and 7 amend Clause 4 to prevent parties circumventing the extra six-month time period set out in Clause 7 by obtaining a separation order after 12 months and immediately applying to convert it into a divorce order. Obviously that would be to subvert the purpose of Clause 7. This provision was inserted in consequence of the passing of Clause 7 in its present form. The amendments will make the time period in Clauses 4 and 7 consistent. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(The Lord Chancellor.)
Lord Irvine of Lairg: My Lords, in some respects the Bill was a better Bill when it left this House. In many other respects it has been improved by amendments that have been promoted by my party in the other place.
I adhere to my view that a year for reflection and consideration is generally sufficient. Therefore, I appreciate the reasons for the amendment proposed by the noble Earl, Lord Russell, Amendment No. 15A, which he will move shortly, although for reasons that I will explain I do not feel able to offer my support to that amendment.
The other place took the view on a free vote that if one of the parties wants 18 months, then 18 months it shall be; or where there are children, 18 months it shall be, regardless of the wishes even of both parties, but subject to a discretion in the court to take the further six months out where the court is satisfied that further delay would be significantly detrimental to the welfare of the children.

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That provides a satisfactory means of dealing with my concern which, in common with other noble Lords, I have expressed a number of times during our consideration of the Bill: that unnecessary delay and uncertainty would be in many cases detrimental to the interests of the children. I have confidence that the courts will be well able to identify the very many cases where that concern would be justified, so that the further six months should come out in those cases.
On the whole, I am content with this aspect of the amendments. Under the amendments one of the parties is able to insist on 18 months—and I do not doubt that this point will be the burden of the argument of the noble Earl, Lord Russell, when he moves Amendment No. 15A—even where no sensible purpose can be achieved by withholding a divorce for the further period of six months. That is why I was persuaded by the noble and learned Lord in the first instance that 12 months was right in the generality of cases.
We should remember that under the present law there can only be a divorce on the grounds of separation after two years if the parties consent and five years if they do not, in separation cases only, so 18 months is better than five years.
It is true that the quickie divorce on grounds of adultery is these days the rapid line of exit from a failed marriage, but, as many of your Lordships, including myself, argued in our consideration of the Bill, the quickie divorce disfigures the institution of marriage. We must therefore bear in mind that the quickie divorce has gone under the Bill. I believe that the abolition of the quickie divorce and the fault principle is in the interests of the institution of marriage and of the development of sensible agreed arrangements for the future for the benefit of both the parties and their children.
The position that I adopt is that the totality of the provisions governing the delay period and the Bill as a whole are a package which noble Lords should accept.
Earl Russell: My Lords, I shall speak to Amendment No. 15A when it comes to be called in its place. Meanwhile, I should like to respond briefly to the noble and learned Lord's comments on free votes.
I am entirely in agreement with the general framework of what he has said. My noble friend Lady Seear remarked that it was spoken like a true rebel. There is no higher praise. Like the noble and learned Lord, I cannot understand how there can be said to be such a thing as a government defeat on a free vote. We are discussing these matters in a non-party spirit. I do not believe that any party can gain credit or discredit.
It has always been my understanding that on a free vote Bill the two Houses count equal. That is the principle which this House adopted in the War Crimes Bill. The basic argument for the primacy of another place is that the Government should be able to get their business through. If the Government have agreed that there is a free vote, then we may vote freely regardless of the fact that another place may not agree.
In regard to representing the people, if one looks at the opinions of the Houses it is by no means self-evident that on a non-party issue the opinions of another place
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automatically represent the people in a way that we do not. We may vote according to our consciences and as we are, or are not, persuaded by the arguments.
Lord Simon of Glaisdale: My Lords, in my view the amendments have substantially improved the Bill. I am convinced that the provisions are now in a form that will enable the court to do justice and promote welfare generally in all the circumstances that have been envisaged. It is on that ground, rather than attaching any magic significance to a free vote in the other place, that I venture to support the Commons amendments.
7.15 p.m.
Baroness Young: My Lords, these are clearly very important amendments and I am very glad to support Amendment No. 15 which extends the period of reflection and consideration up to 18 months. That is an issue upon which I moved in this House. It is a matter of regret, and I think I wrote down my noble and learned friend's exact words when he said that the Government expressed no view in another place. It is sad that they expressed a view here. We will not debate the relative merits of free votes in another place and free votes here. That is a subject also on which I would have a great deal to say.
I am glad about the 18 months and I accept the qualifications. I am glad about the ending of the quickie divorce. I never thought that it was a good thing and I am pleased that we shall see an end of it. It is unbelievable that throughout the stages of this extraordinary Bill the quickie divorce, which came in by statutory instrument in 1977 under the Labour Government, now presumably being reversed by the Bill, could not be dealt with without all of these complicated measures.
I am glad about the extension because I have always felt that it was quite wrong that one party should be divorced against the wishes of the other at the end of a year without any reason needing to be given.
I realise that there is not a majority in this House or in another place on the issue of fault, but I believe that the institution of marriage has been weakened by removing the moral basis of it and by removing the concept of fault. It has also weakened the legal basis. That is something we shall come to regret very much in the future. If American experience is anything to go by, it will ultimately increase, and not decrease, the number of divorces. I wish to place that view on the record.
This is a Bill about which I have very grave doubts, but I think that Amendment No. 15 is an improvement. I am very glad that it came through on a free vote in the Commons and I am pleased to accept its provisions.
Lord Habgood: My Lords, perhaps I may take guidance as to whether it would be helpful for me to speak to my amendment now or wait until we reach the relevant clause.
The Lord Chancellor: My Lords, in so far as guidance from me may be useful, there is no harm in speaking to the subject matter now. However, I have the impression that because of the form of the amendments of the noble Earl, Lord Russell, and that in the name of the noble Lord, Lord Habgood, it may be convenient to discuss the detail when I call the amendment in the form in which it appears as an amendment to the amendment. There is a grouping which makes it possible to take the amendment now, but the narrow substance of the issue may be better dealt with at that time. My noble friend is going to give us further advice.
Baroness Trumpington: My Lords, further to what my noble and learned friend said, in the chronological order only Amendment No. 3 is moved at this time. All the other amendments are open to being spoken to as they arise.
On Question, Motion agreed to.
COMMONS AMENDMENTS
4 Clause 4, page 2, line 35, after 'while' insert '—
(a)".
5 Page 2, line 36, at end insert '; or
(b) subsection (3A) applies.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 and 5 en bloc. I spoke to these amendments with Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendments Nos. 4 and 5.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
6 Clause 4, page 2, line 42. at end insert 'once the requirements of section (Welfare of children) have been satisfied.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6.
In moving this amendment I should like also to speak to Amendments Nos. 29, 34, 53, 59, 60, 61, 103 and 128. This group of amendments is concerned, first, with the links between the divorce procedures to be established under this Bill and procedures under the Children Act 1989 and, secondly, with the representation of children in family proceedings.
Section 41 of the Matrimonial Clauses Act 1973 provides a procedure which acts as a bridge between divorce proceedings and procedures under the Children Act. Your Lordships will remember that considerable reference was made to this when the Bill was before the House at an earlier stage. It provides a mechanism which enables the court to decide whether, in the light of the arrangements made or proposed, it should exercise its powers under the Children Act in order to protect a child. These amendments re-enact the substance of Section 41 of the 1973 Act as it relates to divorce and separation on the face of this Bill and extend the list of factors which a court should take into account when deciding whether the circumstances are
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such as to require it to exercise its powers under the Children Act. These now include: a requirement to regard the child's welfare as paramount; a requirement to have regard to the wishes and feelings of the child concerned in the light of his age and understanding and the circumstances in which those wishes were expressed; a requirement to have regard to the conduct of the parties in relation to the upbringing of the child; the principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by the child having regular contact with those who have parental responsibility for him and with other members of the family; and a requirement for the court to have regard to any risk to the child which may be caused by the actual or proposed arrangements for the child's future.
The main thrust of this amendment remains as it was following an amendment tabled by my noble friend Lady Elles and supported by many other noble Lords. The current amendment adds to the factors included in my noble friend's amendment, to which the court shall have particular regard on the evidence before it when making a decision as to whether the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989. The amendment also re-enacts what was Section 41 of the Matrimonial Causes Act procedure and so brings that procedure on to the face of this Bill in relation to separation and divorce cases. At the time Section 41 was amended during the Bill's passage through this House, the procedure remained part of the Matrimonial Causes Act and so was amended by paragraph 23 of Schedule 8.
In consultation with the children's organisations during the passage of this Bill in another place, it was decided that it would be helpful to have the full text of this procedure on the face of the Bill and also to enhance its provision. Essentially, however, the function of the court under this procedure remains the same as under the current law; namely, consideration of whether there are children of the family to whom the section should apply and, where there are any such children, whether it should exercise any of its powers under the Children Act 1989. The court has no jurisdiction, therefore, to make a residence or a contact order under this provision. Such orders, if they are to be made, must continue to be made under the Children Act itself. In exercising its jurisdiction under that Act, the court will apply the welfare criteria set out in Section 1(3) of that Act.
In order to clarify the status of the various factors set out in this amendment, I should point out that their purpose is to guide the court when it is deciding whether or not it should exercise its Children Act powers. These factors are not intended to change any of the provisions of the Children Act itself. In particular I would point out that the reference to conduct in subsection (4)(b) is intended to mean conduct towards the child by its parents and not conduct between the parents towards each other. I believe that there has been some misunderstanding about that.
Turning to Amendment No. 53, the Government believe that the voice of the child should be heard in proceedings regarding his or her welfare. The existing law already makes provision for the representation of

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children in a number of ways: by a panel guardian ad litem and/or a solicitor in public law proceedings under the Children Act 1989; via the report of a welfare officer, again under the Children Act 1989; through the offices of the Official Solicitor in private law proceedings in the High Court and county court; and under Section 10(8) of the Children Act 1989 a child may bring his or her own application and be represented. In addition, Commons Amendment No. 46 (to Clause 24) which we shall be discussing later would require the proposed code of practice for publicly funded mediators to require mediators to have mechanisms in place to take account of the interests and wishes of children during mediation between spouses. It is important that, in relation to a child's residence and contact, those matters are taken into account. I have no wish—and when we discussed this matter before I understood your Lordships to have no wish—to embroil children unnecessarily in conflict with their parents. However, this issue relates to the welfare of the children themselves and the arrangements being made for them.
Amendment No. 53 empowers the Lord Chancellor to make regulations across a wide range of family matters, including domestic violence cases. It will be important to ensure that any such arrangements complement existing arrangements, do not duplicate them and so far as practicable, do not place children at risk or exacerbate conflict between spouses by unnecessarily dragging children into disputes between their parents. That will be a difficult and sensitive task and I shall wish to consult widely with both the children's organisations and with those who currently represent the interests of children in court proceedings before attempting to devise an effective system and to make any regulations under this provision.
As I said, we have time to do that, particularly in relation to the divorce and mediation part of this Bill. I shall, therefore, wish to consult widely on that aspect.
Lord Irvine of Lairg: My Lords, it is right to join the noble and learned Lord in acknowledging the credit that should be given to the noble Baroness, Lady Elles, for the incorporation of a list of factors which the court must take into account when deciding whether it should exercise its powers under the Children Act 1989. Commons Amendment No. 34 significantly extends that list.
The court must regard the welfare of any children of the family as paramount when considering whether it should exercise its powers under the Children Act. Also it must have regard to the wishes and the feelings of the child concerned. Usefully it extends the general principle that the welfare of the child is best served by regular contact not only with those who have parental responsibility directly for the child, but also with other members of the family.
I offer a general welcome to this group of amendments. The clauses are an important contribution to the welfare of children. They are fully in tune with the new and increasing contemporary awareness that a child is a person in his or her own right and not merely an object for concern. So the divorce court must now have regard to the interests and views of the children.
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They will now have a right to be consulted about the proposals which the parents are making for the future in which they have a vital interest and, if need be, to be represented separately in proceedings. That is the purpose of Amendment No. 53. It gives the Lord Chancellor the power to make regulations for the separate representation of children. I believe that that is already the law in Scotland under Section 6 of the Children (Scotland) Act 1995 and although it is early days, it seems to be working well there.
There is too often a temptation for divorcing couples to believe that because they have come to an amicable settlement and have made themselves happy, the children must also be happy. Sadly, frequently that is not the case and to the high cost of a failed marriage there must be often added a child who has gone off the rails or a daughter or son who ploughs his or her examinations. Of course, the courts can only do so much. They cannot heal the hurt to a child at losing one of its parents, if that is what happens; but at the very least it can focus on the needs of that child and ensure that, amid the clamour for dissolution and the squabbles over money and the house, the voice of the child is also heard.
In particular, we welcome Amendment No. 53 which empowers the Lord Chancellor to make regulations across a wide range of family matters including domestic violence cases. We agree with the noble and learned Lord that this is a sensitive and difficult task. In particular, we welcome his expressed desire to consult widely on these matters with the children's organisations and with those who derive their expertise from their experience gained from representing the interests of children in court proceedings. We welcome these amendments.
7.30 p.m.
Lord Renton: My Lords, the noble Lord, Lord Irvine of Lairg, has done me the favour of making the speech that I was going to make, so I can be very brief. I simply add that to my mind these are the most important amendments that have come to us from the other place. I particularly welcome the fact that they will enable the provisions of the Children Act 1989 to be dovetailed with the provisions of this legislation. The only point I wish to add now—and I hope I am in order in doing so—is that these amendments, especially the new Amendment No. 34 which inserts the new clause, which is the operative clause in this group of amendments, make the proposed Amendments Nos. 7A and 15C unnecessary. I hope that I am not out of order in anticipating that.
Baroness Young: My Lords, I welcome this group of amendments. I particularly thank my noble and learned friend the Lord Chancellor and the noble Lord, Lord Irvine of Lairg, for their kind remarks about my noble friend Lady Elles. Unfortunately, she is unable to be in her place this evening. I know that she greatly welcomes these amendments and particularly Amendment No. 34, which incorporates many of the points which she raised.
Baroness David: My Lords, I join in the general welcome for this group of amendments. I ask the noble

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and learned Lord two questions about Amendment No. 53 dealing with the separate representation of children which I welcome very much.
Is Section 8 of the Children Act included, bearing in mind that Section 8 orders have been perceived by judges and by childcare law and social work practitioners as a pressing lacuna in the present law? We would like to receive confirmation—because we are concerned—that panel guardians ad litem will be involved in private law proceedings given that in future we cannot depend on Family Court welfare officers being qualified social workers following the recent withdrawal by the Home Office of probation officers from social work training.
Lord Simon of Glaisdale: My Lords, when this Bill first came before your Lordships it was very thin indeed in its consideration for the welfare of children of broken marriages. That was entirely consonant with the long tradition of divorce reform which looked almost exclusively to the welfare of the parents. There was constant talk of a "dead marriage" even though there might be living young children to whom the parents had a living responsibility. The noble Lord, Lord Irvine of Lairg, implied that point.
During the course of our deliberations a noble Lord whom we all hold in very high respect actually talked about the parties, "being locked in a loveless marriage" as though a marriage with young children is other than quite exceptionally loveless. Normally, parents love their children. Their passion or even affection for each other may have deteriorated, but they still have a responsibility and other than in exceptional cases they have love for their children. It cannot properly be spoken of as a dead marriage or being locked in a loveless marriage.
One of the features of the Bill in your Lordships' House was the significant strengthening of the provisions relating to children. I join in the tributes that have been paid to the noble Baroness, Lady Elles, in that regard. The amendments in the other place have continued that and strengthened the Bill so that now, as regards divorce reform, I trust that we shall never again talk of a dead or loveless marriage where there are children but that, on the contrary, in all consideration of marriage and divorce reform the centre of our consideration shall be the children of the marriage.
Lord Meston: My Lords, I welcome Amendment No. 34 in particular. It seems to be an improvement on the existing arrangements in undefended divorce cases. As the noble and learned Lord the Lord Chancellor said, the existing mechanism derives from Section 41 of the Matrimonial Causes Act 1973. In its original form, the court was required by that section to have a hearing to consider the arrangements the parties had made or proposed for the children of the family. That section was altered—most people would say that it was watered down—by the Children Act 1989 to such an extent that there is nowadays no actual hearing before a judge. A statement of arrangement for the children is still put before the court by the parties, but in the vast majority
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of cases the court does not actually meet the parties themselves, it simply reads what they have put their names to.
The new clause, which stands as Amendment No. 34, amplifies the existing Section 41 procedure. I assume that the procedure under the new clause will also depend upon there being filed with the court a statement by the couple as to the arrangements proposed for the children. I ask the noble and learned Lord whether he has formulated procedures to deal with this: what concerns me is the reference in what will be new subsection (4) to the court having regard,
"on the evidence before it, to",
there then follows a list of matters. In my mind, that begs the question of how, in practice, the court will have evidence before it of the different matters set out in that subsection. Is there going to be in place a specific mechanism to enable the court to be informed properly in every case of the wishes and feelings of the children, and so on? If these provisions are to work, there must be a proper mechanism in place to ensure that the court has before it the best information available at the time.
Lord Mishcon: My Lords, perhaps I may say how very much I, too, welcome the new clause represented by Amendment No. 34. However, I have one question for the noble and learned Lord. It arises from the use of the word "exceptional" in subsection (2)(c), which reads:
"there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section".
Perhaps I may ask the noble and learned Lord what, to his mind, should be the court's mental direction in following the word "exceptional". Will we not have many cases in which in the circumstances it is desirable that the order should be made, but in one case a judge may well feel that he cannot regard the circumstances as "exceptional"—no guidance on that is given in the amendment—whereas another judge may think that he can regard that word loosely? Why is the word "exceptional" there?
7.45 p.m.
The Lord Chancellor: My Lords, perhaps I may take that short question first. The ordinary rules with regard to the granting of a divorce are stipulated and, ordinarily, there will be an entitlement; but where something more is required, there may be a need for postponement of the divorce notwithstanding what otherwise would be an entitlement.
The phrase "exceptional circumstances" appears in the current law, as the noble Lord knows. I have sought advice from those who exercise this jurisdiction and I am advised that no difficulties have so far been experienced. Something must be very special in situations where it is right to postpone the divorce until these powers have been exercised in connection with the Children Act procedure, where otherwise there would be an entitlement. My main point, however, is that all that we have done is to adopt the current phrase. If one wants to minimise legal argument, one is wise to adopt the current phrase unless there are some difficulties with its operation.

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Reverting to the questions asked by the noble Baroness, Lady David, Section 8 of the Children Act 1989 is not included in Amendment No. 53 because Children Act proceedings are outside the scope of this Bill, as we are advised. On the rule-making powers under the Children Act, I believe that I may deal with such matters under the rule-making powers available under the Children Act.
On the point about panel guardians, I have indicated that we shall consult widely not only about the types of proceedings, the categories of case and the particular circumstances in which separate representations should be available, but also on the type and nature of that representation. We shall want to consider all types of possible representation in order to decide what is appropriate in different situations.
I turn now to the question asked by the noble Lord, Lord Meston. When the Bill was before us previously, I mentioned—perhaps more than once—that I would expect to provide (under the powers that I have to require matters to go before the court in the form of the statements that are necessary) to consult widely, particularly with children's organisations, about the way in which important factors can be brought out so that the judge—a district judge, presumably, or a judge at whatever the level may be—will have before him or her in the statement the kind of information that would throw light on whether the powers under this section (and therefore under the Children Act) require to be exercised in the particular circumstances of the case. That is the nature of the evidence that I have in mind. As the noble Lord correctly said, the efficacy of the clause depends on having such a scheme in place. As I have said, that is my intention and, again, I shall wish to consult widely about it.
I am grateful for the support that these amendments have received and for the considerable agreement on this aspect of the matter. I welcome particularly what my noble and learned friend Lord Simon of Glaisdale said. I believe that divorce reform is best conducted in a government Bill where it is possible to deal with a much wider range of matters than is normally possible when trying to carry out divorce reform through a Private Member's Bill, as has often been the case in the past.
In view of the various well deserved compliments that have been paid to various Members of your Lordships' House, I feel that it is appropriate for me to mention that the very last piece of business which my late noble friend Lady Faithfull attended in your Lordships' House was the concluding stage of this Bill when it was before us previously. All of us who remember her knew of her concern for children. I am sure that she would have been delighted to know that at long last we have made some considerable improvements as a result of having her help and I am sure that she would have welcomed the sum total of these amendments. It gives me particular pleasure to honour her memory in this way at this stage.
Noble Lords: Hear, hear!
On Question, Motion agreed to.
COMMONS AMENDMENT
7 Clause 4, page 2, line 42, at end insert—
'(3A) Subject to subsection (3B), this subsection applies if—

(a) there is a child of the family who is under the age of sixteen when the application under this section is made; or

(b) the application under this section is made by one party and the other party applies to the court, before the end of such period as may be prescribed by rules of court, for time for further reflection.

(3B) Subsection (3A)—

(a) does not apply if, at the time when the application under this section is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, made against the other party;

(b) does not apply if the court is satisfied that delaying the making of a divorce order would he significantly detrimental to the welfare of any child of the family;

(c) ceases to apply—

(i) at the end of the period of six months beginning with the end of the period of reflection and consideration by reference to which the separation order was made; or

(ii) if earlier, on there ceasing to be any children of the family to whom subsection (3A)(a) applied.'.

The Lord Chancellor: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 7. I spoke to this amendment with Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendment No. 7.—(The Lord Chancellor.)
AMENDMENT TO COMMONS AMENDMENT No. 7
7A Clause 4, in subsection (3A)(a), after ("made") insert ("and the court considers, on the evidence before it, that it will be in the best interests of the child for this subsection to apply").
Lord Habgood: My Lords, I beg to move Amendment No. 7A as an amendment to Commons Amendment No. 7.
Amendment No. 7A is consequential upon my other amendment, Amendment No. 15C. I should like to speak to both, with the emphasis on Amendment No. 15C. The purpose of Amendment No. 15C is to modify the impact of the Commons amendment, which extends the period of reflection by six months when there are children under the age of 16 in the family, by making the extension discretionary rather than mandatory. Amendment No. 7A simply brings the provision for separation into line with this. It provides that a separation order may not automatically be converted into a divorce order when one or both of the parties apply to the court for extension of the period of reflection on the grounds that there are children under 16. The main point of both amendments is that any extension of the period of reflection relating to children should not be automatic but should be considered by the courts when there appears to be a need for it.
The noble Lord, Lord Renton, has already said that Amendment No. 34 makes my amendments redundant. I do not believe that this is so. Amendment No. 34

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relates to Clause 10 which deals with exceptional circumstances, to which the noble and learned Lord on the Woolsack has already referred, whereas my amendments refer to what may be called the ordinary process under Clause 11. These amendments in no way undermine the main provisions of the Bill as it has now been returned to us. They would not weaken the power to extend the process to 18 months when one party did not consent to the divorce. When there is a clearly established need to devote more time to the process in the interests of the children, it is right that that time should be given.
My amendments make provision for that. But they place the onus on the court to impose this rather than dispense with it, as the Bill now stands. Dispensation is possible only when there is an occupation or non-molestation order in force, which may be a very tight restriction, or when the court decides that there may be significant detriment to the interests of the children. Much will depend on how the courts use the power to dispense.
I acknowledge that the difference which my amendments make may be small in practice if the courts adopt a proactive role. Whether the courts will adopt that role is another matter; whether they will be able to do so in reasonable time is another matter still. Whether they will become clogged up with more business than they can manage by having the power of dispensation is a very serious consideration. I accept that this may work in different ways, some of which may be significant and some not. Nevertheless, I believe that there are important principles at stake here which this House ought to have another chance to consider. I am encouraged in this by a speech by Mr. Peter Bottomley in another place. In the light of what has already been said about the debate in the other place, I believe it is worth reading part of his speech. Referring to this particular argument about children, he said:
"That argument did not take place in Committee of the whole House, but I do not think that, after 9 p.m., after a fairly full day on Report, it is right to think that, in two or three minutes, probably under pressure from the business managers even though there might be a free vote, we can rehearse all the arguments.
I simply ask that we put this idea to the other place when it considers the amendment we have made".—[Official Report, Commons, 17/6/96; col. 612]
Therefore, the question to be asked is whether, if these amendments are passed, this House will be going against something which the other place has debated thoroughly. It certainly thoroughly debated the question of when one party did not consent to the divorce. I have no objection to the extension of the period of reflection to 18 months in that case. But I submit that it did not adequately discuss the particular issue which arises when there are children.
I recognise that politically there may be a risk in taking this Bill back to another place with an amendment. But, given Mr. Bottomley's invitation, I do not believe that this house can be accused of seeking, as it were, to reverse a carefully considered decision against that other place. The motives for making this change and adding an extra six months when there are children in the family are entirely admirable. But all
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noble Lords recognised in the lengthy debate on this point that divorce was bad for children, that it should be discouraged whenever possible and that children should be given every possible protection. It does not follow logically from such admirable intentions that automatic extension of the divorce process when there are children in the family is good for them. The argument is a non sequitur.
As my amendment recognises, extension of the period may be necessary; in other cases it may not. As we were reminded by the noble and learned Lord on the Woolsack in our debate, the main voluntary agencies concerned with the welfare of children urged against an automatic extension. I have a list of 18 such agencies. That list includes all of the most famous organisations which deal with children. They support these amendments and have urged me to propose them. We also have to consider Section 1(2) of the Children Act, which states:
"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child".
Therefore, my first reason for moving these amendments is that the automatic six-month extension confuses proper concern for the welfare of children with what in many cases may turn out to be a largely symbolic and possibly harmful gesture in lengthening the process. My second reason follows closely on the first. By making the presence of children in a family the basis of automatic extension the Bill will place them at the focus of the divorce process in a manner which may lead to subsequent recrimination. "But for you", says an aggrieved parent, "all this could have been settled months ago". This is not as unlikely a scenario as one may think. We should not underestimate the potential for divorce to create feelings of guilt, not least in the children of the marriage themselves.
The Bill is deeply concerned with the well being of children, but I believe that it would be wise to place the emphasis on extending the time for making a settlement on their behalf as and when it is needed rather than on making some children feel unnecessarily that they are a further complication in what otherwise might have been a straightforward process.
My third and final reason for wanting to see these clauses amended is that, as they stand, they subtly change the public perception of a marriage by drawing a legal distinction between a marriage with children and a marriage without children. Of course, having children brings additional responsibilities, but those are the responsibilities within the state of marriage—a state which I believe should carry the same implications for everyone. It is a state which is based on mutual consent. It is taken on for life, whether or not there are children, and it is a serious business to break it.
If we create a category difference, implying that it is, in legal terms, a more serious business to break a marriage with children—I am not saying that it is not more serious emotionally, but I am saying that in legal terms it is a more serious business to break a marriage with children—then I believe we have taken a step

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towards a different concept of marriage—a more utilitarian one in which the focus is not on the state of marriage itself, but on estimates of possible harm.
It is because I believe deeply in the holy estate of matrimony that I want to preserve the law whereby all marriages are legally equivalent, and let the issue of possible harm be treated as a separate matter for decision by the courts. I hope that latter point carries some resonances with Members of your Lordships' House so that, even if in the end we decide this matter pragmatically, it remains clear that we want to safeguard marriage as it has been traditionally understood. Although my amendments may seem to lower the hurdles on the road to divorce, I believe that they strengthen our understanding of marriage as well as safeguarding the interests of children. I beg to move.
Moved, That Amendment No. 7A, as an amendment to Commons Amendment No. 7, be agreed to.—(Lord Habgood.)
Lord Harmsworth: My Lords, my name is down to Amendments Nos. 7A and 15C. As the noble Lord, Lord Habgood, said, Amendment No. 15C is a substantive amendment and Amendment No. 7A is a consequential one. I speak to these amendments with a measure of humility because I did not speak at earlier stages of the Bill. I know that the subject matter of the Bill is deeply felt, and quite rightly so, by your Lordships. All the more so perhaps because we are considering amendments from another place. We have already heard some of the constitutional points that we should be bearing in mind. I hope that my noble friend Lord Renton will contribute further points if he has any to make.
Although the amendments are fundamental, in effect they are gentle. What is important is that they strengthen the Bill—one of the major roles of your Lordships' House and one for which it is rightly famous.
The noble Lord, Lord Habgood, said that the amendments in no way undermine the Bill's main provisions, and will not weaken the power to extend to 18 months the period for reflection and consideration.
I am certain that if the Bill becomes law, as I hope it will, it will not be long before all possible routes to short-cut the system will be tested. If there is a short cut, before long it will be well-trodden.
As drafted, there are two categories of marriage: couples with no children under 16, and couples with children under 16. One thing I do not like about it is the automaticity of the extra six months that is triggered by the fact that a child under 16 is involved. That presents scope for harm to the children. The two amendments neatly and easily remove that danger. I do not like the two-tier system. The provisions are unnecessary in so far as there are many safeguards already built in for the protection of the children.
My fear is that the Bill, as currently drafted, will result in couples wanting a quicker divorce, using the children to achieve their end. That is something that your Lordships and Members of another place have, throughout the Bill, wished to avoid.
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Parents have a card to play: the significant detriment to the child's welfare. The children would, as the noble Lord, Lord Habgood, said, become the focus of litigation. That is an avoidable danger. The faster and more flexible resolution of the situation which the amendments provide will bring the Bill into line with the central tenets of the Children Act and with Clause 1(c)(ii) in which there is the positive requirement that
"a marriage which has irretrievably broken down and is being brought to an end should be brought to an end … with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances".
That is a positive approach to the problem.
I am not a lawyer, but I suspect that the amendments make the work of the courts easier. The noble and learned Lord, Lord Simon of Glaisdale, has already said words to that effect. The amendments would clarify and strengthen their position.
On the constitutional points, the noble Lord, Lord Habgood, said that my honourable friend Mr. Bottomley in another place has asked Members of this House to move the amendments. He pointed out the lateness of the hour at which they were considered, and the circumstances.
I support the amendments. They are innocuous in so far as they do not change anything fundamentally but improve and clarify the Bill. I hope that noble Lords will support the amendments.
Earl Russell: My Lords, I, too, support the amendments to which I have put my name. When the Bill was last before us, we had lengthy arguments about whether it was in the best interests of children for the parents to stay together for the sake of the children or to release the children from a marriage which was on the rocks. The noble and learned Lord, Lord Simon of Glaisdale, has just given your Lordships an echo of those arguments. I shall resist the temptation to respond.
The noble Lord, Lord Habgood, has brought to this—I would hesitate to describe an amendment concerned with the welfare of children as a judgment of Solomon—at least a judgment of great wisdom. The noble Lord said that one case is not exactly like another, and for that reason the decision as to whether it is in the interests of the child is best taken by the court. I agree with him. I am delighted that he put down the amendment, and I warmly support it.
Lord Irvine of Lairg: My Lords, I can see the point of the amendment tabled by the noble and right reverend Lord, Lord Habgood. However, I am not persuaded that the point is important enough in practice to differ from the Commons. I am not persuaded for the reasons which he acknowledged in moving the amendments most persuasively. I do not believe that in practice it will make much difference if the court has to decide whether it is in the best interests of the children for the 12 months to be extended to 18, or for the court to have to decide whether to abbreviate the 18 months to 12, if satisfied that the making of the divorce would be significantly detrimental to any child of the family. I am

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not satisfied that in practice there will be any material difference between the operation of the two approaches and therefore I am not persuaded that we should differ from the Commons in line with the noble and right reverend Lord's two amendments.
Finally, I wish to comment on the noble Lord's two tier marriage point. My view is that a year for reflection and consideration is adequate both where there are children and where there are not. However, another view has prevailed in the other place and it must be accepted that when contemplating breaking a marriage there is more to think about when there are children than when there are not. I find the two tier marriage point a little too abstract and I do not support the amendments.
Earl Russell: My Lords, before the noble Lord sits down, do I understand that in putting the argument that this is not important enough to persist with he attempts to impale the House upon a fork? Either an amendment from the other place is not important enough to be worth changing or it is too important to take the risk. Would he agree that it is not in the interests of this House to allow itself to be impaled upon that fork?
Lord Irvine of Lairg: My Lords, I do not recognise the fork. I simply see no difference in substance between the two approaches and therefore I oppose making a change which I regard as unnecessary.
Baroness Young: My Lords, I hope very much that the House will not agree with the amendment tabled by the noble and right reverend Lord, Lord Habgood. I do not accept for one moment his argument about two tier marriages. The view that I and a great many of my colleagues have taken consistently on this Bill is the need to buttress marriage. I should have preferred to have a two year period for reflection. Under the 1969 Act, if one party did not consent the period was up to five years.
However, I accepted that in life one must consider all the arguments and must frequently compromise. I accepted that in the case of a couple who have no children and both agree to the divorce one year is long enough. That is not in any way to undervalue marriage. A divorce is a tragedy in any event. In the case where there are children I wish to see the period extended to 18 months and I completely accept the qualifications to that which were made in another place on a free vote and which I am glad to see.
As I read the amendments tabled by the noble and right reverend Lord he is saying that in the Commons amendment the period is kept to 12 months where the court believes that it would be significantly detrimental for the period to be longer. Commons Amendment No. 7 makes consequential amendments to the arrangements for the conversion of a separation order into a divorce order. It has been agreed to extend the period by another six months if there is a child of the family under the age of 16 but the noble and right reverend Lord's Amendments Nos. 7A and 15C tack on the phrase:
"and the court considers, on the evidence before it, that it will he in the best interests of the child for this subsection to apply".
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It seems to me that the amendments would require the party who objects to the divorce to prove that a six months' extension is in the best interests of the children. That would put children at the very centre of the dispute as to whether the period should be 18 months or one year. I should have thought that that was not in the best interests of children or of achieving the least acrimonious settlement following the divorce. I do not follow the advantages of the amendment and I hope that it will not be agreed to.
8.15 p.m.
Lord Renton: My Lords, perhaps I should try to reassure the noble and right reverend Lord, Lord Habgood, about the effect of Clause 4 upon the two amendments. The provision in Amendment No.6,
"once the requirements of section (Welfare of children) have been satisfied",
invokes Amendment No. 34. We must bear in mind the opening words of that amendment, which are:
"In any proceedings for a divorce order or a separation order, the court shall consider",
and there appears a list.
As the issue has been brought into Clause 4 I do not see how the court could fail to consider the matters under Amendment No. 34, which are set out and which invoke the Children Act 1989, the opening words of which provide that when deciding any case under this Act the welfare of the children shall be paramount.
Baroness O'Cathain: My Lords, having listened carefully to the noble and right reverend Lord, Lord Habgood, there is no way in which I can support the amendments. Despite what the noble Lord said, marriage is very different when there are children and when there are not. Although a divorce in which there are no children is a disastrous situation it is easier to sort out, for instance, the financial and housing matters. When children are involved there is much more to be contemplated; for example, the educational needs, the future emotional needs, the housing needs and the financial strains which are inevitable following a divorce. For all those reasons I believe that Amendment No. 34 is the best that we can hope for and I hope that this House will not overturn it.
Lord Stoddart of Swindon: My Lords, I too oppose the amendments moved by the noble and right reverend Lord, Lord Habgood. I am surprised that he has insisted that children make no difference to a marriage. After all, marriage is about having children more than anything else. It is my belief, and I expressed it in Committee and on Report, that children mean that there at least three people to be considered in any matters of divorce and not just two.
As was pointed out, the interests of children are often different from the interests of the parent. They should therefore be paramount and it will take a great deal longer to settle those interests to suit the children and not the parents. That is why I believe that it is necessary to have the extra period of six months. I do not believe that it should be qualified in the way that the

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amendments suggest. It may only be a matter of nuance but, on the other hand, it may be more important than that when it comes to the practicalities. I believe that the safeguards set out in subsection (3B) are adequate to deal with any difficult situation.
The amendments proposed by the noble Lord will in fact increase the difficulties of the divorce in that parents will seek to use their children in arguments before the court to reduce the time from 18 months to 12 months. In that case, the children become a sort of marital football between the parties. For those reasons, I shall certainly oppose the amendments moved by the noble Lord and, indeed, I hope that he will decide not to press them.
The Lord Chancellor: My Lords, I have said already something about this matter but I should like to express my submissions to your Lordships a little more fully.
First, the amendment that the House of Commons has proposed is not automatic in the sense that the court has a power to disapply it in a situation where the postponement would be significantly detrimental to the welfare of any child of the family. Therefore, there is an overriding and important power in the court in respect of any damage to the welfare of a child of the family.
The second point that I wish to make is that the noble Lord, Lord Habgood, pointed out that he does not wish to distinguish, from the point of view of the marriage itself, between a marriage with children and a marriage without children. The obligations of the marriage as between the parties are substantially the same. Of course, when children come into the world as a result of a marriage, there are new obligations to the children which both parents have as a result of that fact. But the nature of the marriage itself is not affected.
The point that I make in response to that is that the noble Lord's amendments will permit postponement of the divorce where there are children. Therefore, he has also to recognise that from the point of view of the divorce arrangements, they will be different or may be different in a case where there are children as affecting the divorce itself. Of course, there are other arrangements but, as affecting the divorce, the noble Lord's amendments, equally with those which have been passed by the Commons, give a different status to a marriage where there are children from where there are none. That is because in the case of a marriage with children, there is a power in the court to postpone the divorce to the 18 month period or the additional six month period according to the situation of the children.
The next point that I wish to make echoes a point made by the noble Lord, Lord Irvine of Lairg. In practice, the difference between those two formulations will be relatively small because if it is in the best interests of the children that the divorce should be postponed, it is likely not to be detrimental to their welfare. On the other hand, if it is not in the best interests of the children that the divorce be postponed, it will be detrimental to the welfare of the children. Therefore, those are mirror images, the one of the other.
I should like to make one other point which was made by my noble and learned friend Lord Ackner during our discussions on Third Reading on the amendment moved
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by my noble friend Lady Young. Of course, at that time, that did not contain the power of the court to disapply the extension. My noble and learned friend said that in a case where there are children—and my noble friend Lady O'Cathain also made this point—the arrangements are likely to be more complicated and take more time to sort out than if there are no children. So it is highly likely that, in any event, the arrangements will take a good part, if not the whole, of the 18 months. Therefore, there is very little in it.
I suggest respectfully to your Lordships that the difference in practice between the amendment proposed by the noble Lord and the amendments which the Commons have passed is not sufficient to justify the view that we should invite the Commons to reconsider. It is true that the matters were discussed on a free vote as part of a Committee of the Whole House. We must remember, at least I wish to remember, that the House of Commons ultimately passed all the provisions of this Bill with a very large majority. It had a majority of 418 in favour of the Bill which is quite unusual in relation to the Third Reading of a Bill. Therefore, the package as a whole has been very forcefully endorsed.
Of course I understand the concerns of the children' organisations and others. But I feel that those considerations were well before the House of Commons because they were expressed very fully in our debate on Third Reading. The amendment moved on Third Reading embraced those points and, indeed, as some of your Lordships may remember, I read out a very succinct communication from well-known children's charities making those points.
The House of Commons has taken account of that by giving the court the power to disapply that extension where it would be detrimental to the interests of the children that that extension should apply. Therefore, I hope that the noble Lord, Lord Habgood, will feel that this matter has been considered again in your Lordships' House but that, having regard to all the circumstances and the stage which we have reached, it would not be wise to press this amendment.
I give that view as a personal view. Of course, this is a free matter. But having considered as carefully as I can and with a great deal of sympathy the point of view of the children's organisations, I think in practice the court is likely to distinguish in no degree between those two formulations and that the House of Commons has dealt quite reasonably with the point.
Lord Habgood: My Lords, I am grateful to all those who have spoken on the amendment and in particular to the noble and learned Lord on the Woolsack for what he has just said.
Despite what has been said, a certain confusion still persists. It seems to me that there is still an important difference of principle at stake here. While I accept readily that distinctions occur within marriages and within the divorce process where there are children, those distinctions arise out of perceived difficulties. Clearly, where there are perceived difficulties, the process needs to be changed.

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I am exercised about the long-term implications of having two categories of marriage because that is in effect what the Commons amendment would provide. Therefore, I regret that as an ex-Prelate, I am speaking on a moral plane about something which concerns me and many other people very deeply.
I recognise also that there are difficult political issues at stake here and I am not sufficient of a politician to be able to judge the political risks in all this. Indeed, I have already shown my political incompetence by quoting from a speech in another place and naming the person concerned, for which I apologise humbly. However, it seems to me that your Lordships' House is full of people with much more political nous than I have and that that insight would carry the day if I were to divide the House.
I am also conscious that 18 agencies have formed a coalition to sponsor these amendments and they are looking to me to see that this matter gets a fair hearing. I find myself in a tremendous quandary. I have no wish to create difficulties, but I feel that in fairness to those people it would be right for this House to make a decision. I shall leave it to the politicians to decide what is the wisest course to take, while trying to continue my assertion that on the moral level there is a substantial point at stake here. I therefore ask the House to make this decision.
On Question, Amendment No. 7A, as an amendment to Commons Amendment No. 7, negatived.
On Question, original Motion agreed to.
COMMONS AMENDMENT
8 Clause 5, page 3, line 4, leave out from 'statement' to 'has' in line 9.
8.30 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8, and with this amendment I would like to speak to Amendments Nos. 32, 35 and 36. Amendments Nos. 8 and 32 amend Clause 5 and Clause 9. Clause 5(1)(a) requires that where the division of pensions may be involved the statement of marital breakdown was made by statutory declaration. These amendments remove that requirement and instead require that where the division of pension assets may be involved any declaration relating to the couple's financial arrangements, which accompany the application for a divorce or separation order, must be a statutory declaration. These amendments do not affect the principle of pension splitting.
Amendment No. 35 paves the way for introducing pension splitting on divorce. It replaces the parts of Clause 15 relating to England and Wales, and Amendment No. 36 removes those parts from Clause 15, leaving behind a part which attempts to extend Amendment No. 35 to Scotland.
As I said at an earlier stage of this Bill, the Government are fully committed to the principle of pension splitting and we acknowledge the strength of feeling on this matter. While we have stated our belief that legislation in this Bill is premature we have, nevertheless, accepted the desire to
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see the principle of pension splitting on the face of the Bill, and so made no attempt to overturn the original Clause 15 in the other place. As I pointed out to your Lordships, that clause expressed the principle but did not will the means to put it into practice. The amendment before us today attempts to will us the means, in the absence of a full policy, by giving a range of delegated powers to my noble and learned friend the Lord Chancellor. It is not clear that even these wide powers would be capable of delivering full policy when that is settled.
Clearly, those who proposed this amendment in the other place are well aware of the range of changes likely to be required. Thus they have given my noble and learned friend powers to amend by regulation, not only secondary, but also existing primary legislation, and via the negative procedure at that. Furthermore, the noble and learned Lord the Lord Chancellor will have to use these powers to make important changes to pensions and tax law.
I have some reservations about this Henry VIII procedure, having been taught by a few of your Lordships the intricacies of this historic debate. Our work on pension splitting has already identified a considerable number of issues which, under this clause, would demand changes to regulations. That work is on course for the publication of a Green Paper at the end of July. I am sure your Lordships will welcome that. In that Green Paper we will raise all the key issues associated with pensions splitting, and seek the views of interested parties. It will look into, for example, such issues as whether state as well as non-state rights should be included, what rights a non-scheme member's spouse should be given, what obligations scheme managers should have, and to what extent their discretion should be fettered.
We will then proceed with developing a full package of policy proposals and afterwards we envisage publishing a White Paper, followed by legislation as soon as is practicable. We believe that this is a better way to proceed, not only for those who are likely to use pension splitting, but also for the pension industry and other non-divorcing scheme members.
I am convinced that further primary legislation will be necessary. However, I am mindful of the strength of feeling on this issue. The House obviously wishes to see pension splitting on the face of this Bill, and despite my reservations concerning Henry VIII procedures, I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.
COMMONS AMENDMENT
9 Clause 5, page 3, line 27, leave out 'more than one year' and insert 'one year ("the specified period")'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I should like to speak also to Amendments Nos. 10, 11 and 12.

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The Bill has always allowed parties to suspend the passing of the period for reflection and consideration, by notifying the court that they wish to attempt reconciliation. These amendments provide that the passing of the lapse period, following the period for reflection and consideration, can also be suspended for the same reason. This will therefore encourage attempts at reconciliation right up until the time of an application for a divorce or separation order. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 9.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
10 Clause 5, page 3, line 30, after 'the' insert 'specified'.
11 Page3, line 30, at end insert—
'(4A) Subsection (4B) applies if, before the end of the specified period, the parties jointly give notice to the court that they are attempting reconciliation but require additional time.
(4B) The specified period—

(a) stops running on the day on which the notice is received by the court; but

(b) resumes running on the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful.

(4C) If the specified period is interrupted by a continuous period of more than 18 months, any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement received by the court at any time after the end of the 18 months.'.
12 Page3, leave out line 32 and insert 'the specified period'.
The Lord Chancellor: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 10, 11 and 12 en bloc.
Moved, That this House do agree with the Commons in their Amendments Nos. 10, 11 and 12 en bloc.—(The Lord Chancellor).
On Question, Motion agreed to.
COMMONS AMENDMENT
13 Clause 7, page 4, line 26, leave out 'one year' and insert 'nine months'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13. At the same time, I should like to speak to Amendment No. 16.
This amendment reduces the period for reflection and consideration from one year to 9 months. Amendment No. 16 provides that no statement of marital breakdown may be made fewer than three months after attendance at an information meeting. This is in order that there may be a three month 'cooling-off' period between attendance at an information meeting and the making of a statement. Other amendments which have already been debated provide that this three month period will be used to provide parties with an opportunity to have a meeting with a marriage counsellor and that the party or parties attending the meeting would be encouraged to take up that offer, although they would not be compelled to do so.
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It was always the intention that the extra three months given to parties to consider the information that they had received should not extend the overall period for reflection and consideration. Amendment No. 13 provides for this. Were the period for reflection and consideration to remain at 12 months, the overall period would be 15 and 21 months. The view taken on a free vote in the other place was that the overall period should be 12 months or 18 months if the six month extension were to apply.
This really gives effect to the desire that a number of your Lordships expressed, including my noble friend Lady Young, that the period of reflection and consideration should have, effectively, meant a period in which conciliation was the primary matter in issue. This is a way of arriving at that solution. I hope noble Lords will feel able to accept the amendment.
Moved, That this House do agree with the Commons in their Amendment No. 13.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
14 Clause 7, page 5, line 2, leave out 'give joint' and insert 'jointly give'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14.
In moving the above amendment I shall speak also to quite a large number of other Commons amendments which are linked, to some extent, by their diversity, but also by the fact that they are minor. I should like to speak to Amendments Nos. 54 to 58 inclusive, Amendment No. 78, Amendments Nos. 83 to 92, Amendments Nos. 95, 104, 108, 109, 113, 117 to 127 and 129 to 137. They are all minor technical, consequential and drafting amendments which do not make any policy changes.
Moved, That the House do agree with the Commons in their Amendment No. 14.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
15 Clause 7, page 5, line 14, at end insert—
'(10) Where an application for a divorce order is made by one party, subsection (13) applies if—

(a) the other party applies to the court, within the prescribed period, for time for further reflection; and

(b) the requirements of section 9 (except any imposed under section 9(3)) are satisfied.

(11) Where any application for a divorce order is made, subsection (13) also applies if there is a child of the family who is under the age of sixteen when the application is made.
(12) Subsection (13) does not apply if—

(a) at the time when the application for a divorce order is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family made against the other party; or

(b) the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family.

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(13) If this subsection applies, the period for reflection and consideration is extended by a period of six months, but—

(a) only in relation to the application for a divorce order in respect of which the application under subsection (10) was made; and

(b) without invalidating that application for a divorce order.

(14) A period for reflection and consideration which is extended under subsection (13) and which has not otherwise come to an end, comes to an end on there ceasing to be any children of the family to whom subsection (11) applied.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No.15. I spoke to this amendment when dealing with Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendment No. 15.—(The Lord Chancellor.)
8.45 p.m.
MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT No. 15
15A That this House do disagree with the Commons in their Amendment No. 15.
Earl Russell Earl Russell rose to move, That this House do disagree with the Commons in their Amendment No. 15.
The noble Earl said: My Lords, before attempting to give the noble and learned Lord on the Woolsack one last run for his money, I should like to pay tribute to the way that he has handled the Bill from the very beginning. First, I should like to pay tribute to the exhaustive—and I should imagine that the noble and learned Lord would wish to add the word "exhausting"—process of consultation that he has undertaken. As one who has many times complained of inadequate consultation, it really is incumbent upon me to pay tribute to more than adequate consultation where we find it.
Secondly, I should like to pay tribute to the noble and learned Lord's skill, good humour and, indeed, the patience of the blessed Job with which he has handled the business as it has gone through the House. If it should fall to anyone on this side of the House to bring in a major piece of legislation, I can think of no better model to follow for how it should be done. But, as the Bill went through its passage in both Houses, I have also come to the conclusion that the best Bill was the one which the noble and learned Lord first put before us. In relation to Part IV, I mean the part that went through the Jellicoe procedure last Session. I believe that that is a tribute to the noble and learned Lord's skill. My intention here is to restore the Bill to the state in which the noble and learned Lord first introduced it.
On all the other amendments that we have discussed tonight we have seen the extent of the noble and learned Lord's skill in producing consensus. When I say that the best Bill was the one that he first placed before us, I do not mean the Bill that I personally would have liked most. The job of a Bill on this subject is to secure the consent of as wide a group of people as possible. I believe that the noble and learned Lord got that right
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the first time and that the changes which have been introduced since then have diminished the range of consent. In particular, the Law Society's withdrawal of consent to the Bill was a hammer blow of which we must take considerable account.
When a piece of legislation of this sort is introduced, it must be necessary to hope that it will last for at least a generation. I believe that the Bill the noble and learned Lord first introduced met that criterion. The Bill as we have it now, after bitter battles in the course of its passage, falls short of meeting it.
The arguments on the matter are well rehearsed. Your Lordships may be relieved to hear that I shall not go through them at length; indeed, I believe that most of us know them. The noble Baroness, Lady Young—to whose conduct during the passage of the Bill I must also pay tribute—has always argued that one preserves marriage by making divorce more difficult. However, on the other hand, I have argued that by making divorce more difficult all one achieves is making break-up more painful. I do not think that we shall reach agreement. I believe that everyone knows where they stand in that respect. Therefore, I shall not pursue the matter further.
However, people tend to come out of marriage suffering from centrifugal force, very much in the way that certain people come out of a political party when they leave it. I believe that we risk having a large number of messy and disorderly separations where people are living with one person while married to another. Further, I think that we shall see a considerable fall in the number of couples who choose to go through the ceremony of marriage.
A decline in the number of couples who choose to go through the marriage ceremony may not dismay me as much as it may dismay some of your Lordships. But, if there are couples who wish to go through that ceremony, then, to deter them from so doing when they would wish to do so, would, on good liberal principles, be something that I mind very much indeed. I believe that that will be the effect of leaving the Bill in its current form. Therefore, if we are to gain consent, especially from younger people whose attitudes to such matters are changing steadily—and it is a change which we all must in one way or another accommodate—we would do better to put the Bill back to where it was when the noble and learned Lord first presented it to us. It is to put down a marker for that position that I have decided to place the amendment before your Lordships tonight.
Moved, That this House do disagree with the Commons in their Amendment No. 15.—(Earl Russell.)
The Lord Chancellor: My Lords, as I said, so far as I am concerned, the way that one makes progress on such an issue is by free votes and then by embracing the result of that vote in carrying it forward. Of course the noble Earl is perfectly entitled to say—as, indeed, he did earlier—that the same principle of a free vote applies here. However, in the circumstances in which we are placed, and taking into account the way that the matter has developed, I humbly suggest that your Lordships would be wise to embrace the decision which the other place has taken on a free vote.

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In relation to the previous amendment moved by the noble Lord, Lord Habgood, I said that, in practice, there is not likely to be such a tremendous difference as in theory might appear to be the case. The same is to some extent true in this case. If one has a situation where the parties are not in agreement so far as concerns divorce, it is likely that the making of arrangements between them will also take quite a considerable time. One of the features of this Bill to which I attach great importance is that, before divorce is granted, those arrangements must be made. Therefore, in practice—and it is the practical rather than the theoretical effect of the law that we should look at—I believe that the results would not be very different.
For my part, as I said, it is a free matter and your Lordships must deal with it on that basis. However, I personally suggest to your Lordships that it would be wise to accept the judgment of the other place and reject the Motion to disagree with Commons Amendment No. 15.
Earl Russell: My Lords, perhaps I may reply briefly. I respect the arguments about the practical issues. However, I am not quite so impressed by the arguments about the other place. I believe that this place is free to take its own view on any matter. It is free to disagree with another place when it sees fit. I do not sense among your Lordships any great appetite tonight to take the matter further, though it is a matter to which we shall return in the next Parliament. It may return in a rather more laborious form than it would have done tonight. However, I sense the mood of the House and, in the circumstances, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
AMENDMENT TO COMMONS AMENDMENT No. 15
15B Clause 7, in subsection (10), leave out paragraph (a) and insert—

"(a) the other party objects (whether or not because of deeply held religious beliefs)—

(i) to being divorced, or

(ii) to being divorced without time for further reflection,

and applies to the court before the end of such period as may be prescribed by rules of court for time for further reflection;

(b) the application under paragraph (a) states that objection; and".).

Baroness Young: My Lords, I beg to move Amendment No. 15B as an amendment to Commons Amendment No. 15. I shall speak briefly on this matter. I have tabled this amendment because it is my understanding that a number of Members in another place wished to have this amendment but time did not allow it to be debated. I hope I am correct in saying that an understanding was given by the parliamentary Under-Secretary, my honourable friend Mr. Streeter, that the Government would look on this matter favourably.
As it is set out, this is quite a simple amendment. It signals to the court that an objection to a divorce is implicit in Amendment No. 15. However, my Amendments Nos. 15B and 15D allow this objection to
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be recorded on the divorce order. The party objecting to the divorce is free to decide whether or not the objection is recorded. This is not a matter which I would think of pressing to a Division. It is quite straightforward. I hope that my noble and learned friend will say that when he considers regulations under the Bill this point may be considered. I beg to move.
Moved, That Amendment No. 15B, as an amendment to Commons Amendment No. 15, be agreed to.—(Baroness Young.)
The Lord Chancellor: My Lords, this amendment was in the "free vote territory" in which the Government did not express a view. My honourable friend the Parliamentary Secretary—the Lord Chancellor is different from others in that he has a Parliamentary Secretary rather than a Parliamentary Under-Secretary, as the Lord Chancellor is not himself a Secretary, at least not technically—Mr. Streeter, indicated that he would be prepared to support this amendment if it were moved, but it was never moved.
The precise form of this amendment is open to question. I do not think I need to delay your Lordships by discussion of that in view of the way my noble friend has presented the matter. The question of the form of orders and so on is a matter that may be within the competence of the relevant rule committee; that is, a body which would have authority to deal with matters of practice and procedure. I am willing to draw the attention of that body to the matter that my noble friend has raised and await the outcome of its deliberations on that. I hope that, with that indication of the way in which I would handle this matter, my noble friend may feel that the purpose of her amendment has been sufficiently served.
Baroness Young: My Lords, I thank my noble and learned friend for that practical suggestion. I think that is the way to proceed. As I am on my feet, I must apologise to him for describing the Parliamentary Secretary in another place incorrectly. I hope I have it right now and I trust I shall not make that mistake again. I am grateful for what my noble and learned friend has suggested. I beg leave to withdraw Amendment No. 15B.
Amendment No. 15B, as an amendment to Commons Amendment No. 15, by leave, withdrawn.
[Amendments Nos. 15C and 15D not moved.]
On Question, Motion agreed to.
COMMONS AMENDMENT
16 Clause 8, page 5, line 17, after 'meeting', insert 'not less than three months'.
The Lord Chancellor: My Lords, I have spoken to this with Amendment No. 13. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 16.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
17 Page 5, line 17, at end insert
'(2A) Different information meetings must be arranged with respect to different marriages.'
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17. With this amendment I wish to speak also to Amendments Nos. 18, 19 and 21 to 26 inclusive.
I am pleased to present this group of amendments to the House. I recall some of the concerns which were expressed by some of your Lordships during the Bill's passage through this House, and I believe that this group of amendments addresses those concerns. In particular, the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Archer of Sandwell, expressed concern about the privacy of information meetings. Amendment No. 17 provides for meetings to be held not as group meetings but with parties attending individually, although it is drafted in such a way as to allow both spouses to attend together or with a third party to accompany them if they so wish. The noble Baroness also expressed concern about the identification and qualification of information providers. I believe that Amendments Nos. 19, 21 and 23 satisfy this concern.
Finally, Amendments Nos. 24, 25 and 26 extend the list of matters set out in Clause 8 of the Bill, about which regulations must make provision for information to be given at the information meeting. The additional points are protection against domestic violence and how to obtain support and assistance, legal representation, and the principles of the legal aid scheme and how the parties can get advice about obtaining legal aid. I would emphasise that the list now contained within Clause 8 is not exhaustive. It is still intended to pilot the information meetings extensively, and to develop the exact format and content accordingly. Amendments Nos. 18 and 22 are simply drafting amendments. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 17.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
18 Page 5, line 28, after 'purpose', insert '—(a)'.
19 Page 5, line 28, leave out 'the party or parties attending with relevant information' and insert ', in accordance with prescribed provisions, relevant information to the party or parties attending'.
20 Page 5, line 30, at end insert- '; and
(b) of giving the party or parties attending the information meeting the opportunity of having a meeting with a marriage counsellor and of encouraging that party or those parties to attend that meeting'.
21 Page 5, line 30, at end insert—
'( ) An information meeting must be conducted by a person who—

(a) is qualified and appointed in accordance with prescribed provisions; and

(b) will have no financial or other interest in any marital proceedings between the parties.'.

22 Page 5, line 35, leave out 'and'.
23 Page 5, line 38, at end insert—
'(d) for information of a prescribed kind to be given only with the approval of the Lord Chancellor or only by a person or by persons approved by him; and
(e) for information to be given, in prescribed circumstances, only with the approval of the Lord Chancellor or only by a person or by persons approved by him.'.
24 Page 6, line 2, at end insert—
'( ) protection available against violence, and how to obtain support and assistance;'.
25 Page 6, line 4, at end insert 'and representation'.
26 Page 6, line 4, at end insert—
'( ) the principles of legal aid and where the parties can get advice about obtaining legal aid;'.
27 Page 6, line 8, at end insert—
'( ) A meeting with a marriage counsellor arranged under this section—

(a) must be held in accordance with prescribed provisions; and

(b) must be with a person qualified and appointed in accordance with prescribed provisions.'.

28 Page 6, line 8, at end insert—
'( ) A person who would not be required to make any contribution towards mediation provided for him under Part IIIA of the Legal Aid Act 1988 shall not be required to make any contribution towards the cost of a meeting with a marriage counsellor arranged for him under this section.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 to 28 en bloc. I have spoken to Amendments Nos. 18 and 19 with Amendment No. 17; to Amendment No. 20 with Amendment No. 1; to Amendments Nos. 21 and 22 with Amendment No. 17; to Amendments Nos. 23, 24, 25 and 26 with Amendment No. 17; to Amendment No. 27 with Amendment No. 1; to Amendment No. 28 with Amendment No. 1; to Amendment No. 29 with Amendment No. 6; to Amendments Nos. 30 and 31 with Amendment No. 2 and to Amendment No. 32 with Amendment No.8.
Moved, That the House do agree with the Commons in their Amendments Nos. 18 to 28. —(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
29 Clause 9, page 6, line 42, leave out from 'section' to 'must' in line 44 and insert '(Welfare of children)'.
30 Page 7, line 6, leave out 'or'.
31 Page 7, line 7, at end insert', or
(d) those set out in paragraph 3A of that Schedule,'.
32 Page 7, line 9, at end insert—
'(8) If the parties' arrangements for the future include a division of pension assets or rights under section 25B of the 1973 Act or section 10 of the Family Law (Scotland) Act 1985, any declaration under subsection (2) must be a statutory declaration.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 29 to 32 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 29 to 32.—(The Lord Chancellor.)
On Question, Motion agreed to.
The Lord Chancellor: My Lords, I am asked at the next convenient break in Business—what more convenient break can there be than this?—to make the following announcement: in the second Division, on the Security Service Bill, the figure for the Not-Contents was announced as 107. This figure should have been 109.
COMMONS AMENDMENT
33 Clause 10, page 7, line 31, leave out from 'if' to 'after' in line 32 and insert 'an application is made under section 3 or 4(3)'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 33.
This amendment simply rectifies an earlier omission in the Bill. Under Clause 10(4), after cancellation of an order preventing divorce, a divorce order can be made if an application is made under Clause 3 or Clause 4(3) of the Bill. The provision had previously failed to refer to the possibility of an application for a divorce order being made under Section 4(3), hence this amendment. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 33.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
34 After Clause 10, insert the following new clause—
WELFARE OF CHILDREN
'.—(1) In any proceedings for a divorce order or a separation order, the court shall consider—

(a) whether there are any children of the family to whom this section applies; and

(b) where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children Act 1989 with respect to any of them.

(2) Where, in any case to which this section applies, it appears to the court that—

(a) the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989 with respect to any such child;

(b) it is not in a position to exercise the power, or (as the case may be) those powers, without giving further consideration to the case; and

(c) there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,

it may direct that the divorce order or separation order is not to be made until the court orders otherwise.
(3) In deciding whether the circumstances are as mentioned in subsection (2)(a), the court shall treat the welfare of the child as paramount.
(4) In making that decision, the court shall also have particular regard, on the evidence before it, to—
1100

(a) the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those wishes were expressed;

(b) the conduct of the parties in relation to the upbringing of the child;

(c) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—

(i) his having regular contact with those who have parental responsibility for him and with other members of his family; and

(ii) the maintenance of as good a continuing relationship with his parents as is possible; and

(d) any risk to the child attributable to—

(i) where the person with whom the child will reside is living or proposes to live;

(ii) any person with whom that person is living or with whom he proposes to live; or

(iii) any other arrangements for his care and upbringing.

(5) This section applies to—

(a) any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and

(b) any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.'.

35 After Clause 14, insert the following new clause—
DIVISION OF PENSION RIGHTS
'.—(1) The Matrimonial Causes Act 1973 is amended as follows.
(2) In section 25B (benefits under a pension scheme on divorce, etc.), in subsection (2), after paragraph (b), by inserting—
"(c) in particular, where the court determines to make such an order, whether the order should provide for the accrued rights of the party with pension rights ("the pension rights") to be divided between that party and the other party in such a way as to reduce the pension rights of the party with those rights and to create pension rights for the other party.".
(3) After subsection (7) of that section, by adding—
"(8) If a pensions adjustment order under subsection (2)(c) above is made, the pension rights shall be reduced and pension rights of the other party shall be created in the prescribed manner with benefits payable on prescribed conditions, except that the court shall not have the power—

(a) to require the trustees or managers of the scheme to provide benefits under their own scheme if they are able and willing to create the rights for the other party by making a transfer payment to another scheme and the trustees and managers of that other scheme are able and willing to accept such a payment and to create those rights; or

(b) to require the trustees or managers of the scheme to make a transfer to another scheme—

(i) if the scheme is an unfunded scheme (unless the trustees or managers are able and willing to make such a transfer payment); or

(ii) in prescribed circumstances.

(9) No pensions adjustment order may be made under subsection (2)(c) above—

(a) if the scheme is a scheme of a prescribed type, or

(b) in prescribed circumstances, or

1101

(c) insofar as it would affect benefits of a prescribed type.".

(4) In section 25D (pensions: supplementary), by inserting—
(a) in subsection (2) —

(i) at the end of paragraph (a), the words "or prescribe the rights of the other party under the pension scheme,"; and

(ii) after paragraph (a), the following paragraph—

"(aa) make such consequential modifications of any enactment or subordinate legislation as appear to the Lord Chancellor necessary or expedient to give effect to the provisions of section 25B; and an order under this paragraph may make provision applying generally in relation to enactments and subordinate legislation of a description specified in the order,";
(b) in subsection (4), in the appropriate place in alphabetical order, the following entries—
"funded scheme' means a scheme under which the benefits are provided for by setting aside resources related to the value of the members' rights as they accrue (and 'unfunded scheme' shall be construed accordingly);
'subordinate legislation' has the same meaning as in the Interpretation Act 1978;"; and.
(c) after subsection (4), the following subsection—
"(4A) Other expressions used in section 25B above shall be construed in accordance with section 124 (interpretation of Part I) of the Pensions Act 1995.".'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 34 and 35 en bloc. I have spoken to Amendment No. 34 with Amendment No. 6 and to Amendment No. 35 with Amendment No. 8. I have spoken to Amendment No. 36 with Amendment No. 8.
Moved, that the House do agree with the Commons in their Amendments Nos. 34 and 35.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
36 Clause 15, page 10, leave out lines 12 to 29.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36.
Moved, That the House do agree with the Commons in their Amendment No. 36.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
37 Clause 18, page 12, line 9, leave out from 'time' to end of line 10 and insert 'when no application by reference to the statement, either for a divorce order or for a separation order, is outstanding.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37. Together with this amendment, I wish to speak to Amendments Nos. 38 and 39. Amendment No. 37 clarifies the fact that marital
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proceedings are to be treated as being both divorce and separation proceedings unless there is an application pending for a particular order, in which case proceedings will be treated as either divorce or separation proceedings depending upon the type of order applied for. Therefore, in a situation where a party had applied for either a divorce or separation order, and the application had then been withdrawn, the proceedings would revert to being proceedings of both types until a further application was made.
Amendment No. 39 makes it clear that marital proceedings come to an end once the lapse period has passed, only when there are no applications outstanding at that time, or after any such outstanding applications are withdrawn.
Amendment No. 38 is a minor amendment, consequential upon the amendment made in the other place, which introduced the possibility of applying for an extension to the period for reflection and consideration. Clause 4 now refers to two types of application: that for an extension and that for conversion of the separation order and it is necessary therefore to identify the appropriate type of application being referred to in this clause. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 37.—(The Lord Chancellor.)
On Question, Motion agreed to.
9 p.m.
COMMONS AMENDMENTS
38 Clause 18, page 12, line 12, after '4', insert '(3)'.
39 Page 12, leave out lines 18 to 20 and insert—
'( ) at the end of the specified period mentioned in section 5(3)(b), if no application under section 3 by reference to the statement is outstanding;
( ) on the withdrawal of all such applications which are outstanding at the end of that period;
( ) on the withdrawal of an application under section 4(3).'
40 Clause 20, page 12, line 34, at end insert—
'(3) In exercising his power to make grants in connection with the provision of marriage support services, the Lord Chancellor is to have regard, in particular, to the desirability of services of that kind being available when they are first needed.'.
41 After Clause 20, insert the following new clause—
PROVISION OF MARRIAGE COUNSELLING
'.—(1) The Lord Chancellor or a person appointed by him may secure the provision, in accordance with regulations made by the Lord Chancellor, of marriage counselling.
(2) Marriage counselling may only be provided under this section at a time when a period for reflection and consideration—

(a) is running in relation to the marriage; or

(b) is interrupted under section 7(8) (but not for a continuous period of more than 18 months).

(3) Marriage counselling may only be provided under this section for persons who would not be required to make any contribution towards the cost of mediation provided for them under Part IIIA of the Legal Aid Act 1988.
(4) Persons for whom marriage counselling is provided under this section are not to be required to make any contribution towards the cost of the counselling.

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(5) Marriage counselling is only to be provided under this section if it appears to the marriage counsellor to be suitable in all the circumstances.
(6) Regulations under subsection (1) may—

(a) make provision about the way in which marriage counselling is to be provided; and

(b) prescribe circumstances in which the provision of marriage counselling is to be subject to the approval of the Lord Chancellor.

(7) A contract entered into for the purposes of subsection (1) by a person appointed under that subsection must include such provision as the Lord Chancellor may direct.
(8) If the person appointed under subsection (1) is the Legal Aid Board, the powers conferred on the Board by or under the Legal Aid Act 1988 shall be exercisable for the purposes of this section as they are exercisable for the purposes of that Act.
(9) In section 15 of the Legal Aid Act 1988 (availability of, and payment for, representation under Part IV of the Act), after subsection (3H) insert—
"(3I) A person may be refused representation for the purposes of any proceedings if—

(a) the proceedings are marital proceedings within the meaning of Part II of the Family Law Act 1996; and

(b) he is being provided with marriage counselling under section (Provision of marriage counseling) of that Act in relation to the marriage."'.

42 Clause 21, page 13, line 1, at end insert—
""non-molestation order" has the meaning given by section 39(1);
"occupation order" has the meaning given by section 36;'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 to 42. I spoke to Amendments Nos. 38 and 39 with Amendment No. 37, I spoke to Amendment No. 40 with Amendment No. 1 and I spoke to Amendment No. 42 with Amendment No. 2. With your Lordships' leave, I shall move them en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 38 to 42.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
43 Clause 24, page 15, line 13, leave out from beginning to 'the' in line 17 and insert—
'(6) Any contract entered into by the Board for the provision of mediation under this Part must require the mediator to comply with a code of practice.
(6A) The code must require'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. With that amendment, I should also like to speak to Amendments Nos. 44 to 47 inclusive.
Amendments Nos. 43 to 46 amend Clause 24 and provide a number of important safeguards and a strengthening of the provisions in relation to the provision of publicly funded mediation. In particular they stress: the voluntary nature of mediation; that where parties are influenced by fear of violence or harm, the mediator should be in a position to identify this at
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an early stage and mediation should not continue; that mediators should encourage the parties to consider whether their children should have an opportunity to express their views during mediation regarding their own wishes and feelings.
These are in addition to the requirements that mediators must have arrangements in place to ensure that the possibility of reconciliation is kept alive throughout mediation and to keep the parties informed about the availability of independent legal advice.
Amendment No. 47 provides for the removal of the presumption in favour of mediation. The Government still believe that it is vital to the successful introduction of mediation into the divorce process that parties are required to attend a meeting with a mediator before they can receive legally aided representation in order to be in a better position to make an informed choice. Amendment No. 54 provides for this. This meeting will allow the mediator to help the client decide whether the case and they are suitable for mediation. This will take into account the willingness of the parties to participate in the process by virtue of the provisions of Clause 24. It is also so that the mediator may ensure so far as possible that mediation does not take place if the parties are fearful of violence or harm. Experience indicates that where parties are offered a choice between an old established service and a new service, the old service will generally be favoured, and that is because of the view, "better the devil you know". Meetings with mediators will allow parties to make an informed decision on the basis of the facts, and in the process learn of the considerable benefits of mediation for the parties and the children.
During the Bill's earlier stages a number of your Lordships expressed concern that appropriate protection be afforded to victims of domestic violence in the mediation process. Concern was also expressed that Clause 26 would result in parties being forced into mediation. In particular I recall concerns expressed by the noble Lord, Lord Irvine of Lairg, the noble and learned Lord, Lord Archer of Sandwell, the noble Earl, Lord Russell and the noble Baroness, Lady Hamwee. I believe that the amendments address these concerns by providing the necessary protection for vulnerable parties and those for whom mediation is not suitable while also safeguarding public funds from the expense of unnecessary litigation, and demonstrating the Government's commitment to the development of mediation in family matters in this country.
Moved, That the House do agree with the Commons in their Amendment No. 43. — (The Lord Chancellor.)
Lord Irvine of Lairg: My Lords, I am grateful to the noble and learned Lord for recalling that in our consideration of the Bill in your Lordships' House I, along with other noble Lords, expressed serious concern that the effect of Clause 26 might be to force parties into mediation so that mediation would not be truly voluntary. I therefore welcome these amendments because they emphasise the voluntary nature of mediation. Thus, Amendment No. 47 substitutes a new Clause 26 with the effect of removing the former presumption in favour of mediation.

1105
I should make plain that my concern did not arise out of any hostility to mediation. Quite the contrary. It was born out of a concern that for mediation to be fair and to succeed it should be truly voluntary. I have no objection to Amendment No. 54 which provides that attendance at a meeting with a mediator is in effect a precondition of the grant of legally-aided representation. As the noble and learned Lord said, the parties should be free to make an informed choice between mediation and the courts; that requires such a meeting. I hope that in a large number of cases they will prefer mediation. But what is important is that where mediation has been found to be unsuitable in a particular case, the Legal Aid Board is not entitled to take account of the existence of mediation in deciding whether to grant applications for court representation.
I also welcome the amendments which are designed to ensure greater professionalisation in mediation, just as I have welcomed the amendments which we have already discussed which should lead to greater professionalism in the information meetings.
In pinning so much faith on mediation, we must appreciate that we are entering substantially uncharted seas. Amendments Nos. 43 to 46, which provide that contracts made between the Legal Aid Board with mediators must require mediators to comply with a code of practice, are particularly welcome. They enhance the quality of publicly funded mediation. For those reasons, we support the amendments.
On Question, Motion agreed to.
COMMONS AMENDMENTS
44 Clause 24, page 15, line 18, at end insert—
'( ) that parties participate in mediation only if willing and not influenced by fear of violence or other harm;
( ) that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible;'.
45 Page 15, line 21, leave out from beginning to 'and' in line 23.
46 Page 15, line 25, leave out 'and' and insert—
'(6B) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider—

(a) the welfare, wishes and feelings of each child; and

(b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.

(6C) A contract entered into by the Board for the provision of mediation under this Part must also include'.
47 Clause 26, page 17, leave out lines 21 to 28 and insert—
"'(3F) A person shall not be granted representation for the purposes of proceedings relating to family matters, unless he has attended a meeting with a mediator—
1106

(a) to determine—

(i) whether mediation appears suitable to the dispute and the parties and all the circumstances, and

(ii) in particular, whether mediation could take place without either party being influenced by fear of violence or other harm; and

(b) if mediation does appear suitable, to help the person applying for representation to decide whether instead to apply for mediation.

(3G) Subsection (3F) does not apply—

(a) in relation to proceedings under—

(i) Part IV of the Family Law Act 1996;

(ii) section 37 of the Matrimonial Causes Act 1973;

(iii) Part IV or V of the Children Act 1989;

(b) in relation to proceedings of any other description that may be prescribed; or

(c) in such circumstances as may be prescribed.

(3H) So far as proceedings relate to family matters, the Board, in determining under subsection (3)(a) whether, in relation to the proceedings, it is reasonable that a person should be granted representation under this Part—

(a) must have regard to whether and to what extent recourse to mediation would be a suitable alternative to taking the proceedings; and

(b) must for that purpose have regard to the outcome of the meeting held under subsection (3F) and to any assessment made for the purposes of section 13B(3)."'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 44 to 47. I spoke to these amendments with Amendment No. 43.
Moved, That the House do agree with the Commons in their Amendments Nos. 44 to 47.—(The Lord Chancellor.)
Question, Motion agreed to.
COMMONS AMENDMENT
48 Clause 33, page 25, line 38, leave out '(e)' and insert '(d)'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 48. With this amendment I should also like to speak to Amendments Nos. 49 to 52.
This group of amendments relates to Part IV of the Bill which deals with occupation of the family home and protection against domestic violence. The practical situation which Clause 38 was intended to address was the kind of case where a cohabitant without any right to occupy the home of his or her partner or former partner seeks to obtain an occupation order against the partner with the right to occupy. A graphic example of this would be where a girlfriend of a few months sought to obtain the right to occupy her boyfriend's home, over which she had no pre-existing right to occupy.
This situation is covered by Clause 33. In Clause 33(6) the court is required, in considering whether to make such an order, to consider all the circumstances, and nine specific circumstances are then mentioned. One of these—Clause 33(6)(e)is,
"the nature of the parties' relationship".

1107
and it is at this point in particular that the court should be required to take into account the fact that cohabitants or former cohabitants have not seen fit to make the same degree of commitment involved in marriage. Amendments Nos. 49 and 50 seek to focus the impact of Clause 38 on this element of the court's deliberations—in other words, making clear that Clause 38 is somewhat of an elaboration on what is already provided for in Clause 33(6)(e).
The Government hope that, where an applicant who is a cohabitant or former cohabitant without pre-existing property rights seeks an occupation order against his or her partner, the courts in practice will have regard to the fact that cohabitants have not made the same commitment as the parties to a marriage as directed by Clause 38 as amended. However, the courts will also wish to distinguish between a short-lived relationship between cohabitants and a stable and long-term relationship where a couple have lived as man and wife for a number of years. These amendments are intended to clarify this by focusing the impact of Clause 38 on the court's consideration of the nature of the parties' relationship under Clause 33(6)(e). The length of time the couple lived as man and wife is a separate consideration for the courts to which they must have regard at Clause 33(6)(f).
Amendments Nos. 48 and 51 are drafting amendments.
Turning to Amendment No. 52, the proposal to grant the police powers to obtain civil remedies on behalf of those suffering under the threat of domestic violence has its origin in the Law Commission report of 1992. However, the Home Affairs Select Committee's inquiry into domestic violence in 1993 rejected the proposal, as did the Special Public Bill Committee of your Lordships' House on the Family Homes and Domestic Violence Bill.
There was, and remains, concern that the police have neither the resources nor the expertise to take on this role. Interest groups were also divided on the issue, some fearing the further disempowerment of women already trapped in situations over which they had little control.
In the light of these considerations, I decided not to include such a provision in the Bill. Whatever the pros and cons of the third party approach to tackling domestic violence, it is clear that we are not yet in a position where it would be wise to embark immediately on this course.
The Government readily accept, however, that knowledge and experience in this area is growing all the time and that, for example, police domestic violence units are now much more developed and expert in this field than they once were. At this point it would be appropriate for me to pay tribute to their efforts. This is a very important matter, and it has developed well over the years. The co-ordination of local services is also improving.
There is still some way to go, all will admit. And the Government remain of the view that there may need to be a good deal more thought, discussion and research before any rules are made under this new clause.
1108
However, the new clause is purely permissive and is drawn widely. For example, it does not prescribe that it is the police who shall act as the representatives; there may be others who could more appropriately do so in consultation with the police. It also makes provision in a very special and appropriate way for the piloting of any rules made. The provision enabling piloting to take place is a quite unusual but very useful one.
It may well be that a measure of agreement will emerge amongst those concerned with the prevention of domestic violence as to the need for the provision of third party action in the way envisaged by the new clause, and for suitable pilot schemes to be devised. It would not seem sensible then to have to await a further legislative opportunity in order to provide for this rule-making power. I am grateful for the suggestion of this particular clause. As I have said, it has many advantages. It came from the Opposition Front Bench in the other place. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 48.—(The Lord Chancellor.)
Lord Irvine of Lairg: My Lords, I wish to say only a few words about the great importance we attach to Amendment No. 52. It enables rules of court to be made authorising representatives to act on behalf of another in domestic violence proceedings. For example, the police could be authorised to seek occupation orders or non-molestation orders on behalf of those entitled to do so themselves. As the noble and learned Lord was good enough to observe, this provision arose out of a new clause tabled by the Opposition at Report stage in the Commons, the principle of which was accepted by the Government. It is the Government's redraft, however, that constitutes this amendment, which we are happy to accept.
I accept that a good deal more thought and consultation will be needed before these rules can be framed. I welcome and agree with the Government's acknowledgement that thinking on this subject is moving ahead and that police domestic violence units are now much more developed than they were. In my reference to the police I should not be taken to exclude any persons other than the police from acting as representatives in these cases. As the noble and learned Lord indicated, there may be others who could more appropriately do so, perhaps in consultation with the police. I hope that consultation with the police and other interested bodies can proceed with all speed towards the drafting of rules and the introduction of pilot schemes.
I believe such consultation to be pressing and urgent. We are addressing the possibility of third parties taking action in the courts on behalf of victims of domestic violence rather than leaving it to a terrified spouse to face the awful dilemma of deciding whether to seek respite from domestic violence, invoking the wrath of the abusing partner, or to stay silent and put up with continuing assault. In most cases the third party who would take that action would be the police, but that need not always be the case. The probation service, the local authority, social services and other welfare organisations may have a part to play.

1109
The progress of the Bill through your Lordships' House and another place was highlighted by an appreciation of the widespread and appalling nature of violence in the home. It cuts across class, age and ethnic groups. It simply cannot be tolerated in a society calling itself civilised. It is estimated that upwards of 750,000 children are affected by domestic violence. That is one reason why we were so horrified by the hijacking of the original Family Homes and Domestic Violence Bill in the other place for no sensible reason. What is the prospect for children who are victims of domestic violence in regard to parenting of their children? What role model will they follow with their own children?
There are women who are all too often even murdered by the their husbands. That necessarily means children who have lost their mother, and those children will also suffer while their father spends long years in prison. Any measure that enables the courts to come to grips with the problem before it gets out of hand, to warn the assaulting party that such conduct will simply not be tolerated, will reap a very rich harvest and save public cost as well as protecting the vulnerable.
I emphasise that consultation on developing the rules envisaged by Amendment No. 52 is an urgent necessity and we will desire to monitor progress closely.
The Lord Chancellor: My Lords, it is right that we should have regard to the developments mentioned by the noble Lord, Lord Irvine of Lairg, in considering the extent to which this clause could be put into operation. It will be useful in dealing with this very important, distressing and difficult situation.
On Question, Motion agreed to.
COMMONS AMENDMENTS
49 Clause 38, page 29, line 3, leave out from beginning to 'have', in line 5, and insert—
'(2) Where the court is required to consider the nature of the parties' relationship, it is to have regard to the fact that they'.
50 Page 29, leave out line 7.
51 Clause 45, page 33, line 5, leave out from 'issued' to end and insert 'on an application made under section 44(8)'.
52 After Clause 56, insert the following new clause—
PROVISION FOR THIRD PARTIES TO ACT ON BEHALF OF VICTIMS OF DOMESTIC VIOLENCE
'.—(1) Rules of court may provide for a prescribed person, or any person in a prescribed category, ("a representative") to act on behalf of another in relation to proceedings to which this Part applies.
(2) Rules made under this section may, in particular, authorise a representative to apply for an occupation order or for a non-molestation order for which the person on whose behalf the representative is acting could have applied.
(3) Rules made under this section may prescribe—

(a) conditions to be satisfied before a representative may make an application to the court on behalf of another; and

(b) considerations to be taken into account by the court in determining whether, and if so how, to exercise any of its powers under this Part when a representative is acting on behalf of another.

1110
(4) Any rules made under this section may be made so as to have effect for a specified period and may make consequential or transitional provision with respect to the expiry of the specified period.
(5) Any such rules may be replaced by further rules made under this section.'.
53 Before Clause 60, insert the following new clause—
PROVISION FOR SEPARATE REPRESENTATION FOR CHILDREN
4.—(1) The Lord Chancellor may by regulations provide for the separate representation of children in proceedings in England and Wales which relate to any matter in respect of which a question has arisen, or may arise, under—

(a) Part II;

(b) Part IV;

(c) the 1973 Act; or

(d) the Domestic Proceedings and Magistrates' Courts Act 1978.

(2) The regulations may provide for such representation only in specified circumstances.'.
54 Clause 60, page 41, line 3, at end insert—
'( ) This section does not apply to rules of court made, or any power to make rules of court, for the purposes of this Act.'.
55 Clause 62, page 41, line 15, after `that' insert 4—
(a)".
56 Page 41, line 17, leave out 'and'.
57 Page 41, line 19, at end insert '; and
(iii) the amendments of the Maintenance Orders Act 1950, the Civil Jurisdiction and Judgments Act 1982, the Finance Act 1985 and sections 42 and 51 of the Family Law Act 1986 extend also to both Northern Ireland and Scotland; and
(b) in Schedule 10, the repeal of section 2(1)(b) of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 extends also to Scotland.'.
58 Page 41, leave out lines 20 to 23.
59 Schedule 1, page 42, line 6, leave out '41 of the 1973 Act' and insert '(Welfare of children)'.
60 Page 42, line 21, leave out '41 of the 1973 Act' and insert '(Welfare of children)'.
61 Page 42, line 39, leave out '41 of the 1973 Act' and insert '(Welfare of children)'.
62 Page 42, line 42, at end insert—
`The fourth exemption
3A. The circumstances referred to in section 9(7)(d) are that—

(a) the requirements of section (Welfare of children) have been satisfied;

(b) an occupation order or a non-molestation order is in force in favour of the applicant or a child of the family, made against the other party;

(c) the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements;

(d) the applicant has not been able to reach agreement with the other party about those arrangements and is unlikely to be able to do so in the foreseeable future; and

(e) a delay in making the order applied for under section 3—

1111

(i) would be significantly detrimental to the welfare of any child of the family; or

(ii) would be seriously prejudicial to the applicant.'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 49 to 62 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 49 to 62.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
63 Schedule 1, page 43, line 17, leave out `(2)'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in Amendment No. 63. I should also like to speak to Amendments Nos. 64 to 66.
Amendment No. 63 extends the application of paragraph 7 of Schedule 1 so that it covers Clause 9(3) in addition to Clause 9(2). Paragraph 7 sets out the nature of declarations made under Clause 9 and there is no reason why these requirements should not apply equally to Clause 9(3).
Because of the extension of this application, Amendments Nos. 64 and 65 ensure flexibility to prescribe the particular circumstances in which requirements must be met under this section.
Amendment No. 66 was made to ensure that no one is able to challenge the validity of a divorce order simply on the grounds that information contained within the declaration made under Clause 9 is incorrect.
The amendment addresses a concern put forward by the noble and learned Lord, Lord Archer of Sandwell, in an amendment at Report stage in this House, when he sought to clarify whether the Government intended that false declarations would invalidate any subsequent divorce order.
Moved, That the House do agree with the Commons in their Amendment No. 63—(The Lord Chancellor.)
Lord Meston: My Lords, I wish to raise a question in regard to Amendment No. 66. Having spent probably too long over the years looking at suspect divorces, I have always had a concern about the potential misuse of Clause 9(2)(d) of the Bill which provides that one of the parties may declare that,
"he has no significant assets and does not intend to make an application for financial provision [and] believes that the other party has no significant assets and does not intend to make an application for financial provision".
It has always struck me that there is potential for misuse and misrepresentation in that clause. I have taken some comfort from the fact that the Bill properly preserves a role for the Queen's Proctor. However, Amendment No. 66 provides that,
"The validity of a divorce order … is not to be affected by any inaccuracy in the declaration".
That raises in my mind a question as to what degree of inaccuracy there must be for the divorce process to be wholly undermined. For example, if a party who ought
1112
to disclose substantial assets declares inaccurately that he has none, and moreover he ought to declare that the other party intends to make an application, but declares the opposite, why should such an inaccurate declaration not affect the validity of the divorce?
One can see that there may be situations in which the inaccuracy is trivial or innocent, though it is difficult to see, in the context of Clause 9(2)(d), how an inaccuracy could be other than substantial. It would mean that there were significant assets on one side or the other and that there was in fact an intention to make an application on the part of the other spouse. That is the only possible type of inaccuracy that could arise under that clause. It further begs the question therefore: what effect, if any, does an inaccuracy have if it is not trivial or innocent, but is a complete misrepresentation by the party making the declaration who is trying to hoodwink the court and the other party?
The Lord Chancellor: My Lords, the intention is that these declarations should be statutory declarations and therefore any falsity contained in them will carry sanctions under the Statutory Declarations Act. In relation to the consequences of a false declaration, other remedies are available.
The point of this amendment is that it should not affect the validity of the divorce order itself. One can see that once a divorce order is granted rights may accrue as a result of that which may be awkward. That is why we made that provision.
On Question, Motion agreed to.
COMMONS AMENDMENTS
64 Schedule 1, page 43, line 19, after 'must' insert ', in prescribed cases,'.
65 Page 43, line 20, after 'must' insert `, in prescribed cases,'.
66 Page 43, line 20, at end insert—
'( ) The validity of a divorce order or separation order made by reference to such a declaration is not to be affected by any inaccuracy in the declaration.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 64, 65 and 66 en bloc. I spoke to these amendments with Amendment No. 63.
Moved, That the House do agree with the Commons in their Amendments Nos. 64, 65 and 66.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
67 Schedule 2, page 45, leave out lines 7 to 10.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 67. In moving this amendment I shall speak also to Amendments Nos. 68 to 77, 79 to 82, 93 and 94, 96 to 102 and 105 to 107 inclusive. This group of amendments relates to financial provision on divorce. Amendments Nos. 67 to 69, 72 to 77, 79 to 82, 94, 101, 105 to 107 are of a technical drafting nature and effect no policy change.

1113
Amendments Nos. 70 and 71 give the court power to make orders for interim lump sum payments on nullity. During the Report stage in this House the Government tabled amendments giving the court a statutory power to make interim lump sum orders in favour of a party to the marriage and a child of the family when an application for a financial provision order under the new Section 22A of the Matrimonial Causes Act 1973 on divorce and separation is made. The Government had it in mind to give the court similar powers in relation to nullity in this House but were concerned not to come forward with amendments on nullity which would risk being beyond the scope of the Bill. I was delighted to see that the amendments were made in the other place and that they did not go beyond the scope of the Bill.
Amendment No. 93 was moved by the Government at the Committee stage of the Bill in the other place. It emphasises that it is conduct of whatever nature which it would be inequitable to disregard which is to be taken into account when the court is considering financial provision on divorce. The amendment also clarifies that the conduct to be taken into account is conduct whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage. The amendment does not make any significant change to the existing law. The role of conduct in ancillary relief proceedings has not changed and there is therefore no question, as has been suggested in some quarters, of conduct being introduced through the "backdoor".
The purpose of the amendment is to emphasise what the law is at present on this aspect because it was misrepresented or, at least, some people were under the impression that only particular types of financial conduct, for example, were relevant in this connection. It is right that we should make it clear on the face of the Bill what is the present law on this matter in order to avoid misrepresentation.
The noble Lord, Lord Clifford of Chudleigh, tabled amendments to Section 25(2)(g) of the Matrimonial Causes Act 1973 during the passage of the Bill through this House. I was unable to accept those amendments as they sought substantially to increase the role of conduct in ancillary relief proceedings, and the advice of my Ancillary Relief Advisory Group on that matter was that the role of conduct should not be increased. During the passage of the Bill in the other place, concern was expressed by my then Parliamentary Secretary that in practice there was a perception that it is only conduct of a financial nature to which the court is to have regard. I am pleased to say that the Government moved this amendment to clarify the position, as I have sought to explain. My Ancillary Relief Advisory Group is content that the amendment does not increase the role of conduct in this matter.
Amendment No. 96 was moved by the Government in the other place and extends the court's powers to make orders between parties to a marriage where one spouse has failed to provide reasonable maintenance to the other or to a child of the family (subject to the Child Support Act 1991) by giving the court a statutory power to make interim lump sum orders by way of
1114
maintenance. This extension strengthens the remedies available for financial relief during marriage and may be particularly useful to a spouse who has attended an information session during the three months from this time to the time when a statement of marital breakdown is received by the court.
Amendments Nos. 97 and 102 are consequential to the alternations to Section 27 of the 1973 Act in Schedule 8.
Amendments Nos. 98, 99 and 100 were also moved by the Government in the other place and give the court power to vary all types of property adjustment orders made before a divorce order or separation order is made and also lump sum orders made before this time. It should only be possible to apply for this power of variation to be exercised before the divorce or separation order is made and before the order takes effect. The amendment was moved to alleviate concern that the final nature of these orders may prevent reconciliation between the parties. The amendment was in addition to the powers of variation on reconciliation which were already included in the Schedule 2 to the Bill.
Moved, that the House do agree with the Commons in their Amendment No. 67.—(The Lord Chancellor.)
On Question, Motion agreed to.
9.30 p.m.
COMMONS AMENDMENTS
68 Schedule 2, page 46, line 14, leave out from 'consideration' to end of line 15 and insert 'is interrupted under section 7(8) of the 1996 Act.'.
69 Page 46, line 30, at end insert—
'(5) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act." '.
70 Page 46, line 42, after 'order', insert 'an interim order for the payment of a lump sum,'.
71 Page 46, line 44, after 'order', insert 'an interim order for the payment of a lump sum'.
72 Page 48, line 45, leave out from 'consideration' to end of line 46 and insert 'is interrupted under section 7(8) of the 1996 Act.'.
73 Page 49, line 7, leave out '22A' and insert '23A'.
74 Page 49, line 12, at end insert—
'(5) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act." '.
75 Page 49, line 40, after '(b)' insert 'above, unless sub-paragraph (ia) below applies,'.
76 Page 49, line 41, at end insert—
'(ia) where the order is made by virtue of section 22A(2)(b) above and the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, than the date of the making of that application;'.
77 Page 49, line 42, leave out 'or (d)' and insert 'above'.
78 Page 50, line 3, leave out 'an order of divorce' and insert 'a divorce order'.
79 Page 50, line 12, after 'above' insert ', except where paragraph (aa) below applies,'.
80 Page 50, line 13, at end insert—
'(aa) in the case of an order made by virtue of section

1115
22A(2)(b) above where the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, the date of the making of that application;'.
81 Page 50, line 14, leave out 'such'.
82 Page 50, line 14, leave out 'or (d)'.
83 Schedule 3, page 51, line 37, after 'means' insert '—
(a)".
84 Page 51, line 38, at end insert 'or
(b) if the proceedings are for the conversion of a separation order into a divorce order under section 4 of the Family Law Act 1996, the statement of marital breakdown by reference to which the separation order was made.'.
85 Schedule 8, page 66, line 37, leave out from 'In' to 'section'.
86 Page 66, line 38, after 'applies)' insert '—
(a) in subsection (2)(a)(i),'.
87 Page 66, line 39, leave out 'and'.
88 Page 66, line 39, at end insert'; and
(b) in subsection (2)(c)(v), after "Matrimonial Causes Act 1973" insert "(as that Act had effect immediately before the passing of the Family Law Act 1996)".'.
89 Page 67, leave out lines 4 to 13.
90 Page 67, line 46, at end insert—
'Proceedings after decree nisi: general powers of court.
15B. —(1) Where a decree of nullity of marriage has been granted under this Act but not made absolute, then, without prejudice to section 15A above, any person (excluding a party to the proceedings other than the Queen's Proctor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may—

(a) notwithstanding anything in section 15 above (but subject to section 41 below) make the decree absolute; or

(b) rescind the decree; or

(c) require further inquiry; or

(d) otherwise deal with the case as it thinks fit.

(2) Where a decree of nullity of marriage has been granted under this Act and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in paragraphs (a) to (d) of subsection (1) above.'.
91 Page 67, line 47, after 'divorce' insert `to'.
92 Page 67, line 48, leave out from '19)' to end of line 6 on page 68 and insert'—

(a) for "1(5), 8 and 9" substitute "15, 15A and 15B"; and

(b) for "divorce" in both places substitute "nullity of marriage".'.

93 Page 68, line 16, after '23A":' insert—
'( ) in paragraph (g), after "parties" insert ", whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage,";'.
94 Page 69, line 6, at end insert 'and, if the first party has already applied to the court for the making of such an order, it may dismiss the application.'.
95 Page 69, line 14, after '25C(1) and (3)', insert 'and'.
1116
96 Page 69, line 21, leave out from beginning to 'substitute' in line 22 and insert—
'—(1) Section 27 (financial provision orders etc. in case of failure to provide proper maintenance) is amended as follows.
(2) In subsection (5) —
(a) after "an order requiring the respondent" insert "—
(a)"; and.
(b) at the end insert ", or
(b) to pay to the applicant such lump sum or sums as the court thinks reasonable."
(3) For subsection (6)'.
97 age 69, line 27, at end insert—
'(4) In subsection (7), for "(6)(c) or (f)" substitute "(6)".
98 age 70, line 13, at end insert—
'( ) after paragraph (dd) insert—
"(de) any other order for the payment of a lump sum, if it is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage;";'.
99 age 70, line 17, at end insert—
'(ea) any order under section 23A which is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage;".'.
100 Page 70, line 24, after '(4A)' insert—
'In relation to an order which falls within subsection (2)(de) or (ea) above ("the subsection (2) order")—

(a) the powers conferred by this section may be exercised—

(i) only on an application made before the subsection (2) order has or, but for paragraph (b) below, would have taken effect; and

(ii) only if, at the time when the application is made, no divorce order has been made in relation to the marriage and no separation order has been so made since the subsection (2) order was made; and

(b) an application made in accordance with paragraph (a) above prevents the subsection (2) order from taking effect before the application has been dealt with.

(4B) '.
101 Page 71, line 23, leave out '(9) and (10)' and insert '(7) and (8)'.
102 Page 71, line 40, at end insert ', so far as it requires the making of periodical payments."'.
103 Page 72, leave out lines 9 to 28.
104 Page 72, line 31, leave out 'Family Law Act 1996' and insert '1996 Act'.
105 Page 73, line 4, after '22A', insert 'or 23'.
106 Page 75, leave out lines 3 and 4 and insert—
"'(a) section 22A(5) (provisions about lump sums in relation to divorce or separation);
(aa) section 23(4), (5) and (6) (provisions about lump sums in relation to annulment);".'.
107 Page 75, line 17, leave out from 'etc.)' to end of line 27 and insert '—
(a) after paragraph (b), insert—
"(bb) is executed in pursuance of an order of a court which is made at any time under section 22A, 23A or 24A of the Matrimonial Causes Act 1973, or"; and.
(b) in paragraph (c), for "or their judicial separation" substitute ", their judicial separation or the making of a separation order in respect of them".'.

1117
108 Page 76, line 53, leave out first 'is' and insert 'has been'.
109 Page 82, line 24, at end insert—
'( ) In Schedule 11 to that Act, in paragraph 6(a) (amendment of the Domestic Proceedings and Magistrates' Courts Act 1978), for "sections 16(5)(c) and" substitute "section".'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 68 to 109 en bloc. I spoke to Amendments Nos. 68 to 77 with Amendment No. 67; to Amendment No. 78 with Amendment No. 14; to Amendments Nos. 79 to 82 with Amendment No. 67; to Amendments Nos. 83 to 92 with Amendment No. 14; to Amendments Nos. 93 and 94 with Amendment No. 67; to Amendment No. 95 with Amendment No. 14; and to Amendments Nos. 96 to 98 with Amendment No. 67. I spoke to Amendments Nos. 99 to 102 with Amendment No. 26, I think, but I am not certain—
Lord Meston: With Amendment No. 67.
The Lord Chancellor: I am much obliged. I spoke to Amendments Nos. 99 to 102 with Amendment No. 67. I spoke to Amendment No. 103 with Amendment No. 6; to Amendment No. 104 with Amendment No. 14; to Amendments Nos. 105 to 107 with Amendment No. 67 and to Amendments Nos. 108 and 109 with Amendment No. 14.
Moved, That the House do agree with the House in their Amendments Nos. 68 to 109.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENT
110 Schedule 9, page 82, line 31, at end insert—
'Transitional arrangements for those who have been living apart
.—(1) The Lord Chancellor may by order provide for the application of Part II to marital proceedings which—

(a) are begun during the transitional period, and

(b) relate to parties to a marriage who immediately before the beginning of that period were living apart,

subject to such modifications (which may include omissions) as may be prescribed.
(2) An order made under this paragraph may, in particular, make provision as to the evidence which a party who claims to have been living apart from the other party immediately before the beginning of the transitional period must produce to the court.
(3) In this paragraph—
"marital proceedings" has the same meaning as in section 21;
"prescribed" means prescribed by the order; and
"transitional period" means the period of two years beginning with the day on which section 3 is brought into force.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 110, which is an amendment of some importance. With this amendment, I should like to speak also to Amendments Nos. 111 and 112 and to Amendments Nos. 114 to 116 inclusive.
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Amendment No. 110 provides for those couples who have been living apart immediately prior to the new provisions of this legislation coming into force. It seeks to address the situation where parties are in the process of a two or five-year separation period, and have therefore not actually commenced divorce proceedings.
When the Bill went to the other place it provided that parties in such a position would be required to undergo the full process under the new system, with no account being taken of any prior period of separation. Following this amendment the Lord Chancellor may modify the requirements of Part II of the Bill in relation to people who have previously been living apart upon proof of such separation being produced to the court, for a transitional period of two years. I believe that the Bill with the inclusion of this provision will now avoid the difficulties which may have otherwise arisen in some cases, especially where there are children involved and further delay may be detrimental to their welfare.
The other amendments in this group are technical amendments. Amendments Nos. 111 and 112 extend the Lord Chancellor's powers to make consequential amendments to include references in other legislation to enactments amended or repealed by the Bill. Amendments Nos. 114, 115 and 116 make some technical corrections to the transitional provisions in Schedule 9. They provide that other statutes, amended in Schedule 8, shall apply in their unamended form in relation to decrees of divorce or separation granted either before the new law comes into force or under transitional provisions.
Moved, That the House do agree with the Commons in their Amendment No. 110.—(The Lord Chancellor.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
111 Schedule 9, page 83, line 9, at end insert—
' 1A. If an Act or subordinate legislation—

(a) refers to an enactment repealed or amended by or under this Act, and

(b) was passed or made before the repeal or amendment came into force,

the Lord Chancellor may by order make such consequential modifications of any provision contained in the Act or subordinate legislation as appears to him necessary or expedient in respect of the reference.'.
112 Page 83, line 11, leave out 'paragraph 1' and insert 'paragraphs 1 and 1A'.
113 Page 83, line 20, after 'Part II' insert ', Part I of Schedule 8 or Schedule 10'.
114 Page 83, line 21, leave out from 'affects' to end of line 22 and insert '—
( ) any decree granted before the coming into force of the provision;
( ) any proceedings begun, by petition or otherwise, before that time; or
( ) any decree granted in any such proceedings;'.
115 Page 83, line 27, after first 'proceedings' insert 'or decree'.
116 Page 83, line 28, leave out from 'any' to third 'or' and insert 'such proceedings or decree;'.
117 Page 83, line 30, at end insert—
'( ) In this paragraph, "subordinate legislation" has the same meaning as in the Interpretation Act 1978.'
118 Page 83, line 45, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.
119 Page 84, line 2, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.
120 Page 84, line 12, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.
121 Page 84, line 15, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.
122 Page 84, line 17, leave out 'this Act' and insert 'Part IV'.
123 Page 84, line 18, leave out 'this Act' and insert 'Part IV'.
124 Page 84, line 26, leave out 'this Act' and insert 'Part IV'.
125 Page 84, line 29, leave out 'this Act' and insert 'Part IV'.
126 Page 85, line 8, leave out 'Paragraphs 9 to 12 shall not' and insert 'Nothing in this Schedule is to'.
127 Schedule 10, page 85, column 3, leave out line 21 and insert—
'Sections 9 and 10'.
128 Page 85, column 3, leave out lines 46 and 47 and insert—
'In section 41, in subsection (1) the words "divorce or" and "or a decree of judicial separation" and in subsection (2) the words "divorce or" and "or that the decree of judicial separation is not to be granted.".'.
129 Page 86, line 2, at end insert 'and",'
130 Page 86, line 4, column 3, at end insert—
'In Schedule 1, paragraph 8.'
131 Page 86, line 6, column 3, leave out '(1)(a), the words' and insert '(1), the words "subject to section 6(3) and (4) of this Act" and, in paragraph (a),'.
132 Page 86, line 9, column 3, at end insert 'and (4).'.
133 Page 86, line 31, at end insert—

'1980 c. 43

The Magistrates' Courts Act 1980.

In Schedule 7, paragraph 159.'

134 Page 87, line 4, at end insert—

'1986 c. 53.

The Building Societies Act 1986.

In Schedule 21, paragraph 9(f).'.

135 Page 87, line 4, at end insert—

'1986 c. 55.

The Family Law Act 1986.

In Schedule 1, paragraph 27.'.

136 Page 87, line 4, at end insert—

'1988 c. 34.

The Legal Aid Act 1988.

In section 16(9), the word "and" at the end of paragraph (a).'

137 Page 87, line 7, column 3, at end insert—
'In Schedule 11, paragraph 6(b).'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 111 to 137 en bloc. I spoke to Amendments Nos. 111 and 112 with Amendment No. 110; to Amendment No. 113 with Amendment No. 14; to Amendments Nos. 114 to 116 with Amendment No. 110; to Amendments Nos. 117 to 127 with Amendment No. 14; to Amendment No. 128 with Amendment No. 6 and to Amendments Nos. 129 to 137 with Amendment No. 14.
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Your Lordships will be glad to know that once I have moved, with your Lordships' leave, that the amendments be taken en bloc, I shall have completed the Motions that I wish to place before your Lordships on this matter and we now come to the last Question on this Bill.
Moved, That the House do agree with the Commons in their Amendments Nos. 111 to 137. —(The Lord Chancellor.)
On Question, Motion agreed to.

Maximum Number of Stipendiary Magistrates Order 1996
9.34 p.m.
The Lord Chancellor The Lord Chancellor rose to move, That the draft order laid before the House on 4th June be approved [22nd Report from the Joint Committee].
The noble and learned Lord said: My Lords, this order is made under Section 13(4) of the Justices of the Peace Act 1979. That Act set the maximum number of stipendiary magistrates outside Inner London and the City of London Commission areas at 40. This draft order seeks to increase the number to 50. No one in this House is a more ardent supporter of the lay magistracy than I am. Its role is pivotal to the administration of justice, both criminal and civil, and to the fabric of society. Its continued good health depends essentially on sufficient numbers of suitable people from all walks of life being willing to put forward their names for consideration. To aid both recruitment and achieving a balance of people from all sections of the community, I need to be aware that people should not be asked to sit too many times. For about 15 per cent. of benches where sittings are too high for comfort and where other measures are not sufficient, the deployment of a full-time stipendiary magistrate may assist in my view.
I turn to another aspect of my approach to considering whether a stipendiary magistrate appointment to a bench may be made. I use as a yardstick the view of the Magistrates' Association. Once a bench reaches a situation in which it is not possible to function without the assistance of a stipendiary magistrate I have to consider the matter. Thereafter, the issues to be considered include the structure of the bench, the maintenance of effective links among the lay magistracy, the spread of experience and how often a bench is manned by two justices instead of three, as should be the general rule. It may be that a large bench can manage perfectly well. On the other hand, it may be that it cannot.
It is my duty to ensure that justice is administered effectively and efficiently. That entails cases being disposed of with reasonable promptness and there being no build up of unacceptable delays. If there are and there appears to be no other realistic prospect of overcoming the difficulty such as recruiting more justices or temporary stipendiary assistance, clearly it would be prudent to consider bringing in a stipendiary magistrate.
The responsibility for considering whether or not it is right to bid for a full-time stipendiary rests with my local advisory committee, after consultation with the Magistrates' Courts Committee and benches in the area. I have said before, and am glad to repeat it now, that I believe in and rely upon the common sense of the magistracy. They have given their service voluntarily and they will know what is in the best interests of the administration of justice in their areas. Since 1988 the number of authorised provincial stipendiary magistrate posts has grown from 17 to 40. At no time have I had to impose a stipendiary magistrate against local wishes. There is no reason why this good sense should not continue to prevail. I hope that the House will agree to this order.
There can be no doubt that the idea of stipendiary magistrates arouses apprehensions from time to time within the lay magistracy. The theory is that there is a hidden plot to replace them, or that other options have not been pursued vigorously enough. Alternatively, the idea may be based on the belief that it is wrong for one person to be both judge and jury. I shall deal briefly with those points. There is absolutely no plot to replace the lay magistracy. It is too important for that to be even a remote possibility. The whole point of local consultations is to ensure that there is a good case for a full-time stipendiary magistrate appointment. I would wish to be assured on that point as well before authorising any full-time appointment. While I understand the worries about a single person sitting, it has to be remembered that stipendiary magistrates have played a significant role in the administration of justice since the middle of the last century, and Parliament in its wisdom has endorsed that approach.
Nevertheless, it is important to establish an understanding of the respective roles of lay and stipendiary magistrates—a point recognised by the Royal Commission on Criminal Justice which reported in 1993. I therefore established a working party drawn from the lay and stipendiary magistracy, the Justices' Clerks' Society and my department to examine those roles. The working party has informed me of various steps which, if not already in existence, soon will be to build on the good relationships which generally exist. Therefore, there is a sound base on which to build for the future. A copy of the report of the working party is in the Library of the House.
I have no plans to abolish the lay magistracy, and no one in my department would advise me to do so. Outside Inner London there are nearly 30,000 lay magistrates and at present 40 authorised stipendiary posts. The strength of the lay magistracy has grown year by year from 28,667 at the end of 1989 to 30,326 at the end of 1995.
In conclusion, your Lordships will, I hope, agree that the effect of the order will be to help maintain the lay magistracy and benefit the administration of justice. Without it, it would not be possible to provide full-time stipendiary support where it now appears to be needed. I beg to move.
Moved, That the draft order laid before the House on 4th June be approved [22nd Report from the Joint Committee].—(The Lord Chancellor.)
Lord Irvine of Lairg: My Lords, we support the order. I take this opportunity to put on record our appreciation of the lay magistracy, both in its civil and criminal jurisdictions, and for the enormous contribution that it makes to the due administration of justice throughout the country. Just as service as a juror provides education in citizenship and makes a major contribution to citizenship, so also does membership of the bench. It is a tribute to the public spiritedness of lay magistrates throughout the country that they are willing to volunteer so much of their free time, and sometimes time made free only with great difficulty, for the administration of justice in their areas.
It is important that lay justices are a microcosm of the communities they serve and so should reflect all groups and all ages in society. So, while magistrates may be retired, so also they may be in employment, which makes it the more difficult for them to offer the time required. I believe that it would be sound policy to allow those with good reason to confine their sittings to a minimum of 26 half days. But, where targets for annual average sittings have proved to be incapable of achievement, then the case for the additional deployment of a full-time stipendiary magistrate must be considered on a case by case basis.
I agree with the noble and learned Lord that the appointment of additional stipendiary magistrates in no way calls into question the high quality of local benches. On the contrary, the issue is simply this: have the demands on the magistrates' courts in particular areas become so pressing that a serious question arises as to whether a stipendiary magistrate is needed as, as it were, an additional bolt-on resource to ensure the efficient administration of justice?
I believe the opinion of the Magistrates' Association to be that that question arises once a bench attains 250 in number. That principle seems to be right. Beyond that, we do not believe that any hard and fast rules can be laid down. All depends upon local circumstances. Where any particular court or area falls materially behind the national average delay times between first listing and completion, then clearly the question acutely arises as to whether a stipendiary magistrate in addition is required.
We therefore believe it obviously right that the statutory ceiling of 40 should be increased to 50 so as to give the necessary flexibility to make further appointments when local need demands it.
I desire to associate myself and my party with the noble and learned Lord's assurances that this additional flexibility implies no lack of confidence in, still less hostility to, the lay magistracy throughout the country. The lay magistracy is, and will remain, the backbone of the delivery and administration of justice at local level.
Baroness Gardner of Parkes: My Lords, as a lay magistrate now on the supplemental list, I should like to query a statement made by the noble Lord, Lord Irvine. He talked about 26 half-day sittings. When I was appointed, which I believe was in 1971, we were told

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that the figure was 26 half days. Some years later we were told we had to do 26 full days. I was never able to do that and I wonder what the position is now.
I remember applying to the noble and learned Lord's department to do fewer days and I would like to know what the ruling is. On the Bench on which I sat there were a number of stipendiary magistrates and there was no clash whatever. The lay members greatly valued the work done by the stipendiaries and we worked very well together.
Lord Irvine of Lairg: My Lords, it may be that my information is out of date. I had certainly thought that current policy was to allow those with good reason to confine their sittings to a minimum of 26 half days. If I am wrong about that the noble and learned Lord will correct me.
The Lord Chancellor: My Lords, in a sense, both are right. It is not easy to see why that should be. The minimum for which we ask is 26 half days but, of course, different benches may have different requirements. Depending on where one is one may find oneself on a bench which has an average higher than the minimum. Accordingly, it may well be that my noble friend found herself in circumstances where the talent was scarce and the bench felt that it needed to require a larger number of half days than the national minimum. I believe that could be the only basis on which my noble friend was on the supplemental list.
I am grateful to the noble Lord, Lord Irvine of Lairg, for his support of the Motion which I have sought to move.
On Question, Motion agreed to.

Noise Bill
9.47 p.m.
Report received.
Clause 11 [Interpretation and subordinate legislation]:
Baroness Gardner of Parkes Baroness Gardner of Parkes moved the amendment:
Page 7, line 19, leave out subsection (3).
The noble Baroness said: My Lords, this amendment seeks to rectify a problem brought to our attention by the Select Committee on the Scrutiny of Delegated Powers. It questioned the need for Clause 11(3).
As currently drafted, this subsection allows the Secretary of State to vary the amount or form of the fixed penalty under Clause 9 by different orders for different purposes. This is clearly not required.
The reason why this subsection was originally included was to allow the Secretary of State to make different statutory instruments for different purposes when there was a regulation-making power in the schedule to the Bill. When the schedule was substantially amended in another place, this regulation-making power was removed. This subsection should also have been removed rather than amended to apply only to orders under Clause 9.
At the Committee stage, I stated that on reflection we agreed with the Select Committee's view that this clause was unnecessary and undertook to amend it at Report stage. This amendment honours that undertaking. I beg to move.
Lord Lucas: My Lords, I am grateful to my noble friend for explaining the amendment and also to the Select Committee for noticing this point. We are content that the amendment should be made.
Lord Morris of Castle Morris: My Lords, we on these Benches have looked at the Bill as it has come back to us from Committee and we welcome it in its present form. It was not unduly troublesome to us in any of its earlier stages and it is a necessary piece of legislation which we commend to your Lordships' House.
Noise is, by definition, undesirable. The permitted level of noise as defined in Clause 5 appears to us to be sensible and acceptable. It can be enforced properly because it can be easily understood.
The Bill comes to us on Report and, as we have neither question, nor comment, nor amendments to propose we are content to give the Bill our complete approval.
On Question, amendment agreed to.
House adjourned at ten minutes before ten o'clock.