Lords Sitting of 11 March 1996

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

Legal Aid Expenditure
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What was the expenditure on legal aid in the last year, and what was the largest individual item.
Lord Chancellor (Lord Mackay of Clashfern): My Lords, the net expenditure on legal aid in 1994–95 was £1.299 billion. The largest single item of expenditure identified in that year was a payment to solicitors of £4.57 million made in respect of a lead case in a childhood leukaemia multi-party action. However, the largest single item of expenditure relating to a single case was a payment of £1.02 million to solicitors acting on behalf of a defendant involved in a fraud trial which arose out of the investigation into the BCCI banking fraud.
Lord Boyd-Carpenter: My Lords, I thank my noble and learned friend for that extremely interesting, if depressing, Answer. Can he possibly tell the House whether steps are now being taken to reduce the expenditure on legal aid?
The Lord Chancellor: My Lords, steps are being taken to control further expenditure on legal aid. I have already indicated some of those to your Lordships. The most important is the possibility of taking into account the circumstances of those who may assist persons applying for legal aid to maintain a lifestyle which seems higher than the assets and income that they possess. The second aspect is a new unit to investigate in more detail the circumstances of those whose financial affairs seem to be complicated and who are applying for legal aid.
Lord Irvine of Lairg: My Lords, can the noble and learned Lord confirm that his department's latest estimate is of an underspend of £65 million this year on the legal aid budget? Can he further confirm that that is the third consecutive substantial underspend against the estimate's provision and therefore any assertion that the legal aid budget is out of control is without foundation?
The Lord Chancellor: My Lords, legal aid expenditure is rising. However, it is true that the forecast that we made to date this year indicates an underspend on this year's figure. That is a sign that the controls are effective; it does not mean that the budget itself is in any way being reduced. I believe that the efficacy of the control system is being demonstrated.
Lord Ironside: My Lords, can my noble and learned friend say what proportion of that total was spent on
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personal injury cases? Can he say also how much out of that amount of money was involved in successful litigation and whether any of that was recoverable as a result?
The Lord Chancellor: My Lords, I do not have the precise figures to mind. But quite a high proportion of the expenditure in personal injury actions is recovered by the Legal Aid Board because success is normally attended by an order for costs. As I mentioned in my original Answer, the largest single item of expenditure was in respect of a childhood leukaemia multi-party action which is in the nature of a personal injury action of a special type. However, that case was unsuccessful and therefore would not have given rise to a costs order and recovery.
Lord Cledwyn of Penrhos: My Lords, does the noble and learned Lord agree that when legal aid was introduced over 40 years ago the object was to help the poorer sections of the community? Now that objective has completely vanished and in many cases it is helping extremely dubious people.
The Lord Chancellor: My Lords, the intention of the scheme is still to help those from the poorer sections of the community. The same rules are applied to everyone. However, experience has shown that in some circumstances a fuller investigation of some people's financial affairs is required before a final determination is made. The object of the scheme remains very much as the noble Lord described it.
Lord Strabolgi: My Lords, in view of the noble and learned Lord's proposal that legal aid should be denied to people who own a house worth more than £100,000, does that figure include the mortgaged element? Also, will the noble and learned Lord reconsider that figure since in relation to house property in southern England it appears to be quite unrealistic?
The Lord Chancellor: My Lords, it is a question of whether it is right across the country to have a figure of that sort. The £100,000 refers to the equity in the house. I should have thought that a figure of £100,000 as a disregard is reasonable as a way of trying to ensure that the legal aid scheme serves the interests of those who need assistance.
Lord Boardman: My Lords, is not the main sufferer in the legal aid system the successful defendant who all too often is unable to recover any part of his costs?
The Lord Chancellor: My Lords, this is a matter that I have addressed in the Green Paper because it is seen as a cause of injustice that a successful defendant may not be able to recover his costs. The normal way in which this is applied means that, where there is no contribution, on the whole there is no cost. Yet the person in question might have a house of substantial size. This issue requires to be re-examined and the consultation on the Green Paper will enable that to be done.

Economic Growth
2.43 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What are their latest estimates of economic growth in 1996.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, the Government's latest forecast is set out in the November Financial Statement and Budget Report, and shows the economy growing by 3 per cent. in 1996.
Lord Ezra: My Lords, I note the optimistic tone of the noble Lord's response. However, will he accept that the present rate of growth is not at that level, and if this rate is to be achieved over the year as a whole, there will have to be a surge in growth in the latter part of the year? Will he also accept that it is unlikely to be export-led, as our main export markets, particularly on the Continent, are going through a difficult economic period? Moreover, will he accept it is unlikely to be investment-led because of cut-backs in government capital investment and manufacturing and construction investment, and therefore it is likely to be consumer-led? Will the noble Lord accept that in those circumstances, we will be running the risk of once more seeing some overheating in the economy?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord will have to decide whether we shall hit the 3 per cent. growth target or whether we shall overheat the economy. Of course our GDP growth has slowed down, as it has done elsewhere in Europe; but the fundamentals are in place to ensure that good growth will continue. I am sure the noble Lord read Saturday's newspapers where he would have seen the very encouraging headline in the Guardian:
"'Bumper year' spells poll gloom for Labour.
Most economists back Clarke's forecast of strong growth, lower inflation and higher prosperity in 1996".
Viscount Chandos: My Lords, does the Minister not also recall a headline from today's Financial Times in which the Government are referred to as having apparently abandoned their safety first policy on inflation in their interest rate reduction in order to achieve the projected rates of growth about which so many noble Lords on this side of the House are sceptical?
Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure how one satisfies the Opposition or indeed the Shadow Chancellor. Week by week they call for lower interest rates; but the moment my right honourable friend the Chancellor lowers interest rates, they then complain. We are in no doubt that the level of inflation is set to continue its current trend which is well within the targets set out by my right honourable friend the Chancellor. The cut in interest rates on Friday is a sensible way to help everyone in the economy, particularly house owners.
Baroness O'Cathain: My Lords, can my noble friend confirm that growth can indeed be led by both investment and consumer expenditure through this prudent, managed and consistent reduction in interest rates?
Lord Mackay of Ardbrecknish: My Lords, my noble friend is quite right. A number of factors will help this year, including the reduction in taxes which will come into play in April and the fact that TESSAs will be maturing. In particular, as a result of the three interest rate cuts by the Chancellor and the Governor of the Bank of England, the payment for an average mortgage of £33,000 will have fallen by £150 a month since the high point in October 1990. That represents a great deal of extra consumer spending.
Lord Brabazon of Tara: My Lords, as well as having the lowest interest rates, and particularly mortgage rates, for very many years, can my noble friend tell me how unemployment in this country compares with unemployment in the countries of some of our European Union colleagues?
Lord Mackay of Ardbrecknish: My Lords, as I have explained from the Dispatch Box before, we have seen unemployment fall by around 750,000 as we have come out of this recession and our unemployment is still falling in contrast to many of our friends in the European Union—using the EUROSTAT standardised unemployment rates, just in case the Opposition demand to know whether the rates I quote are standardised, as indeed they always are. In December, the last month for which we have these standardised figures, ourselves and Germany were both at 8.6 per cent. The Germans will now be above us. The French were at 11.6 per cent.; Italy at 12.6 per cent.; and the European Union average was 10.9 per cent. So we seem to be doing rather well.
Lord Bruce of Donington: My Lords, is the noble Lord aware that regarding unemployment figures he is living in cloud-cuckoo-land? The unemployment figures, which are now renamed "claimant unemployment", are about 1.25 million lower than the actual figure at the present time. If unemployment were calculated and reported on the same basis as in 1979, it would today be standing at 4 million. Sooner or later, the country will become aware of that, and then the noble Lord will be smiling on the other side of his face.
Lord Mackay of Ardbrecknish: My Lords, it is rather a pity that the noble Lord, who is always very careful in these matters, did not listen carefully to what I said before I explained the figures. The figures I used were not the figures we collect monthly; they were the EUROSTAT standardised unemployment figures which are collected and put on a standard rate. That is why, at 8.6 per cent., they are higher than the figures we produce every month.

Sierra Leone: Elections
2.50 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
What assessment they have made of the outcome of the elections in Sierra Leone, and the initiation of a dialogue between the government and the Revolutionary United Front.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we welcome the favourable judgment of the international observer missions on the elections on 26th-27th February and look forward to the run-off vote for the presidency on 15th March. We also welcome the opening of talks between the Revolutionary United Front and the Sierra Leone authorities. Political progress is essential if there is to be lasting peace in Sierra Leone.
Lord Avebury: My Lords, will the noble Baroness join me in congratulating Brigadier Bio on his commitment to democracy and express the hope that the second round of elections, which are to be held, I believe, on Friday, will be as peaceful as the first, although they were marred by a certain amount of violence? Can the Minister explain why the observers have been withdrawn and will not be present to witness the run-off of the presidential election on 15th March? Will she also join me in congratulating President Bedie and Foreign Minister Essy on their successful diplomacy which brought the RUF to the conference table? Does she agree that it is best to leave further measures of negotiation to the Côte d'Ivoire and not to muddy the waters by interfering through the Commonwealth or the United Nations?
Baroness Chalker of Wallasey: My Lords, Brigadier Bio and the council are to be congratulated on the elections. We hope that the run-off will be free and fair. We are very grateful that the Cote d'Ivoire has been positively helpful. It is now critical that the RUF continues in discussions with the National Provincial Ruling Council. That is one of the things that we hope to see happening.
Baroness Blackstone: My Lords, accepting what the Minister has said about the election, as I do, can she tell the House what the Government intend to do to support the new government in Sierra Leone? Does she agree that resources from the international community to support a good governance programme are vital and that the disarming of the rebels and the demobilisation of the Sierra Leone army are now absolutely vital as a first priority, preferably with a jobs programme for former soldiers?
Baroness Chalker of Wallasey: My Lords, I agree with the noble Baroness. It is a little early to go into this in some detail. We have obviously helped with the elections to the tune of £3 million to make sure that they
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were properly run. We are now looking at what happens afterwards. I shall bring the results to the House as soon as that is completed.
Lord Avebury: My Lords, can the noble Baroness say how she believes that the peace process can be continued in the interim period between now and the handover to the incoming president on 27th April? Will those negotiations be conducted as heretofore by Brigadier Bio or will there be some way of associating the winning candidate on 15th March with any further talks that take place?
Baroness Chalker of Wallasey: My Lords, it must be for the successful candidate and Brigadier Bio to make sure that there is a successful handover. We shall do our best to help.

European Court of Auditors: Coopers & Lybrand Report
2.53 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether they will make available to Parliament the report of the Coopers & Lybrand audit of the accounts of the European Court of Auditors; what is their view of its findings and what action they propose to take.
Lord Mackay of Ardbrecknish: My Lords, the report of the external auditors on the accounts of the Court of Auditors for the financial year 1994 was published in the Official Journal of the European Communities OJ C 298 dated 11th November 1995. A copy is available in the Library and the Government are content with these findings.
Lord Bruce of Donington: My Lords, is the noble Lord aware that he will probably regret his endorsement of Coopers & Lybrand's audit report on the Court of Auditors because in Brussels at present there is very little talk of anything other than the gross extravagance which the Court of Auditors, which should be the guardians of expenditure, has incurred in the year in question and is likely to incur in 1996, with the approval of the Government? Will the Government give an undertaking that they will examine this matter a little further and thus avoid a rather more detailed ventilation of the matter, which they will surely get unless they do so?
Lord Mackay of Ardbrecknish: My Lords, I believe that the noble Lord, Lord Bruce of Donington, is putting far too much faith in a recent press article in the Observer. Perhaps I can recommend that he reads the Official Journal and the conclusion of the Coopers & Lybrand report which says:
"Our detailed examination, which was carried out in accordance with the approach described above, enables us to conclude that the reliability of the accounts was of a high standard; this was reflected in the fact that we proposed no corrections or amendments, [and]

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the information systems functioned in compliance with the rules of internal control as we understand them, … and as they are laid down in the aforesaid regulatory framework".
Lord Bruce of Donington: My Lords, is the noble Lord aware that nobody is questioning the accuracy or reliability of the accounts that have been prepared? The question relates to what the accounts themselves truthfully disclose. Does the Minister agree that they disclose an extravagance which, in modem times, ought to be entirely denounced by a government that are bent on achieving the utmost economy in public expenditure?
Lord Mackay of Ardbrecknish: My Lords, we are dedicated to achieving the utmost economy in public expenditure. I am a bit disappointed that the noble Lord has gone very quickly from the Court of Auditors being a collection of heroes when it comes to criticising other parts of the European budget, to today being, so to speak, the villains of the piece. I do not believe that the noble Lord's generalised remarks bear any resemblance to the actual truth. As I said in my answer, they are taken heavily from an article in the Observer. I commend the noble Lord not to believe everything that he reads in newspapers.
Lord Shaw of Northstead: My Lords, does my noble friend agree that the Government's efforts to increase the powers of the Court of Auditors have been fully justified?
Lord Mackay of Ardbrecknish: My Lords, yes indeed, and my noble friend is quite right about that. The Court of Auditors undertakes a very important function, normally backed by the noble Lord, Lord Bruce of Donington. Its members have to do quite a bit of travelling as the money is spent and has to be checked in the member states and, in many cases, outside the European Union where we spend money as a community. That is right and proper. I believe that the Court of Auditors and its officials would be attacked if they did not go to the places where the money is spent to check the audit trail right through to the final user.
Lord Monkswell: My Lords, as I understand it, the Court of Auditors audits the expenditure of the European Union centrally. Coopers & Lybrand seems to have audited the Court of Auditors' accounts. Can the Minister say who audits Coopers & Lybrand's accounts?
Lord Mackay of Ardbrecknish: My Lords, not me, anyway.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that I take very much to heart his strictures on not believing everything one reads in the press? Under those circumstances, is it right for us to believe the reports we have seen in the press about the new ambassadorial service initiated by the EC, where it has representatives in various parts of the world posing as ambassadors and called "Your Excellency", which is costing about £100 million a year?
Lord Mackay of Ardbrecknish: My Lords, we have ranged a little wide of the Court of Auditors and the audit of its accounts by Coopers & Lybrand. The
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European Union is represented in many parts of the world and it is important that it should be, because it represents Europe collectively when it comes to important matters like trade.

Sexual Offences (Amendment) Bill [H.L.]
2.58 p.m.
Lord Hylton: 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.—(Lord Hylton.)
On Question, Motion agreed to.

Family Law Bill [H.L.]
2.59 p.m.
Read a third time.
Clause 1 [The general principles underlying Parts II and III]
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 1, line 16, after ("affected;") insert—
("(ii) 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;").
The noble and learned Lord said: My Lords, this amendment, which adds a new paragraph to Clause 1, requires that one of the principles to which the court should have regard when exercising its functions under Parts II and III is that marriages which are to be brought to an end should have questions dealt with in a way which is intended to promote as good a continuing relationship between the parties and any children affected as possible.
I have tabled this amendment as a result of a most helpful point made by the noble Lord, Lord Robertson of Oakridge, at Report stage. The noble Lord drew attention to the continuing needs of children. I am entirely sympathetic to his point that the current draft of the Bill, without this amendment, might be seen to imply that children's needs and problems can be disposed of when the marriage is brought to an end. I have therefore brought forward this amendment which indicates that, when exercising functions under Parts II and III, the court or any person concerned in these matters should have regard to the principle that where a marriage must be brought to an end, questions should be dealt with in such a way as to promote the best possible relationship now and in the future between the parties and, crucially in my view, any children affected, as the circumstances allow.
I am grateful to the noble Lord, Lord Robertson of Oakridge, for drawing attention to this point, which enables us to put early and fundamentally into the Bill

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a matter which has concerned your Lordships again and again during our discussions. Your Lordships will remember that my noble friend Lady Elles drew attention to the fact that in many cases these days fathers completely lose contact with their children after divorce. That is extremely bad for the children. Therefore, it is important that attention should be focused on this issue when the divorce is being considered. I beg to move.
Lord Robertson of Oakridge: My Lords, I thank the noble and learned Lord for moving this amendment and for his kind words. The amendment deals with a point that I raised at Report stage and means that all who are concerned with children who are affected by divorce will have to look beyond the divorce settlement. I hope that your Lordships will accept the amendment.
Baroness Elles: My Lords, I join the noble Lord, Lord Robertson, in thanking my noble and learned friend for picking up this point which is a theme that has run through all our debates on the Bill. On behalf of all of those children who will be affected by divorce, I thank my noble and learned friend for including this provision in the Bill.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 1, line 18, leave out ("it") and insert ("the marriage").
The noble and learned Lord said: My Lords, this amendment is consequential on Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Clause 2 [Divorce and Separation]:
Baroness Young Baroness Young moved Amendment No. 3:
Page 2, line 4, at beginning insert ("Subject to the requirements of section 7(3)(a) and (b)").
The noble Baroness said: My Lords, in moving this amendment, I should like to speak also to Amendment No. 5. Amendment No. 3 is a paving amendment to Amendment No. 5. I am conscious that we are returning to one of the central proposals in the Bill. The amendment would have the effect of extending from one year to 18 months the period for reflection and consideration where there are children in the marriage or where one spouse does not wish to divorce. It will leave the period at a year for couples both of whom consent to the divorce and where there are no children of the marriage. I should make it clear that in this case by "children" I am using the definition that applies in all other parts of the Bill.
As I said on Report, the amendment is a compromise. I hope that my noble and learned friend will agree that it does not in any way go against the principle of what he is seeking to do in the Bill. It is a compromise because I recognise that by extending the year to 18 months in particular circumstances it goes further than some would like, but, on the other hand, it does not go as far as I know that quite a lot of other people would like. The principal aim of the amendment is to buttress marriage, which is what I believe fundamentally that we should be doing in this Bill because it is so important for the whole fabric of society.
I have said before that my great concern about the Bill is the message that it sends out. Divorce at the end of one year, even against the wishes of one spouse who may not want it, is not in my view a good message to send out. Now that your Lordships have voted for the abolition of the concept of fault, the period of time before divorce is even more important than it was originally.
I believe that this amendment has the support of a number of people whose opinion I value. Perhaps I may start by quoting from what Cardinal Hume said in his article in the Tablet on 20th January, in which he wrote:
"Whatever the truth of this"—
referring to fault—
"it is necessary to find effective ways of underlining the seriousness of the marriage contract. One obvious possibility is to lengthen the so-called waiting period. The Bill, as I understand it, proposes that either or both parties should be able to apply for a divorce after a 12-month period for reflection providing that they declare that the marriage has irretrievably broken down … here again there are a number of factors to be considered—not least the effect of prolonged uncertainty on children, but I do myself wonder whether a period as short as a year is sufficient to establish that a marriage has irretrievably broken down".
It is only right to say that my amendment also has the support of the right reverend Prelate the Bishop of London. In addition, I have today received a letter of support from the right reverend Prelate the Bishop of Chichester and from the right reverend Prelate the Bishop of Chester. I believe that the right reverend Primate the Archbishop of York also supports the amendment.
If there is one thing on which we are all agreed, it is that there are too many divorces. When deciding on the length of time for reflection and consideration it is very much a matter of judgment as to how the arguments fall between having a period of one year or a period of 18 months. I believe that an 18-month period is important for one reason above all others: it provides a longer opportunity for reconciliation. Noble Lords on all sides of the House have stressed the importance of reconciliation and of the opportunity for reconciliation. Extending the period to 18 months in those cases where one spouse does not want a divorce or where children are involved provides a longer opportunity for reconciliation to take place.
We know that 27 per cent. of divorces in England and Wales are based on separation and take between three and six years. Some 16.3 per cent. of all fault-based divorces take more than a year. Therefore, some 43 per cent. of all divorces now take more than a year. In dealing with the so-called "quickie" divorce, we are in fact speeding up divorce for a very large proportion of all couples who seek divorce in England and Wales. The situation in Scotland is different. Some 60 per cent. of divorces take place on the basis of separation and take some two years, and in Northern Ireland 73 per cent. of divorces take place on the basis of separation and take at least two years. By definition, therefore, the length of time in at least two parts of the United Kingdom is considerably longer. I believe that it is not without significance that the divorce rate is lower in both Scotland and Northern Ireland.
We also know that between 20,000 and 30,000 couples each year draw back from divorce before it is granted. Surely we should encourage more to do so. At any rate, according to Relate, the organisation concerned with marriage guidance, 50 per cent. of divorced men regret the fact that they ever divorced. Should we not be helping those people by offering them more opportunity for reconciliation?
The Lord Chancellor's MORI poll showed that 60 per cent. of the respondents who answered the question about the time limits supported a period of 20 months, which is approximately what I have said.
Since Report, I have been able to obtain some information from countries within the EU. We have often been quoted—I believe it to be true—that we have in England and Wales the highest divorce rate in the EU—a rather doubtful distinction. It is clear from the table I have that the difference between divorces where there is mutual consent and where there is no consent is considerable. In Germany, for instance, with mutual consent it is one year's separation, and without consent it is three years' separation. In Spain, with mutual consent it is one year's separation, and with no consent two years' separation, or it could be up to five years' separation. I shall not read out the entire table, but I can assure noble Lords that a considerable degree of difference is set out as between couples who consent to a divorce and those who do not. As we all know, their divorce rates are lower. We should look at some of those figures and ask why that should be the case.
When we debated this matter previously, a great deal of emphasis was placed on children. Much of the argument centred on the fact that it was said that a year of uncertainty in a child's life is a long time, and that it is better to end the uncertainty—to have the divorce—rather than to continue the uncertainty for up to 18 months.
The more I have reflected upon that argument, the more I have wondered whether it is as true as it appears. What we know for certain is that there are few children for whom divorce is positively beneficial. Indeed, we know that 30 per cent. to 40 per cent. of fathers lose contact with their children two years after the divorce. Only this morning I was at a conference where I was told by a headmaster of a school of 500 pupils in the north that only 10 per cent. of the children had fathers. That is a terrible situation in which to find ourselves. Is it surprising that we worry about the state of the fabric of society when one sees those children growing up without the influence of a father? What is hardly surprising—I am sure we have all read it—is the report, which was widely noted in the press, of Mr. Chris Woodhead, the Chief Inspector of Schools, which shows how badly a great many white, working class, as they are described, boys are doing in terms of examination results. If we looked into it I am sure that we would find that they are the children of divorced parents and are without fathers. Those are facts which we must consider.
When noble Lords consider the amendment they must weigh up the balance of interests of many people: the husband, the wife, and the children. We must determine
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how much time we should give that extra chance of reconciliation to see whether we can bring together the husband and the wife.
We have to determine what is the effect of divorce on children. The pain of the child does not end with the divorce, it goes on. If we can prevent the divorce, we can ameliorate at least some of the pain. It is the divorce itself, not the procedures, which affects children. It is often the acrimony involved. There are later amendments which try to buttress marriage and do something which I believe my noble and learned friend the Lord Chancellor wishes to achieve, as I do—less acrimony than there is at present.
I believe that it is right to extend the period of one year to 18 months for reflection and consideration. That would apply where there are children. It would provide a greater opportunity for reconciliation. It would help those couples who are uncertain. It would, in particular, help those couples where one spouse does not want the divorce, to see whether they cannot find some way of coming together.
I accept that where both parties consent to a divorce and where there are no children, a year is the right time. I am content to go along with that, but where other people are to be considered, especially the children, a year is a short period in which to consider whether to take the extremely important step of divorce—of ending a marriage—with all the consequences that that entails, not just to the two people who are divorcing but to the children.
In weighing up this matter, we must consider the effect that all this will have on the fabric of our society. I said at the beginning of the Second Reading of the Bill that I regarded it as the most important piece of legislation this Session. Its effects are profound and far-reaching. I can speak only for myself, but I have never weighed so carefully all the arguments and considered so hard and so long about anything because the effects for us all are profound. That applies wherever we may live.
The amendment gives us an extra six months, which is not a long time. It offers a better chance to hold more marriages together. That is something which I believe to be right in the Bill; it is right for the couple concerned and the children; and it is right for society as a whole. I beg to move.
3.15 p.m.
Lord Irvine of Lairg: My Lords, I ask of these amendments the same question that I have asked of other amendments designed to make divorce more difficult to obtain: what sensible purpose is being sought to be achieved? The noble Baroness describes the amendments as a compromise. Compromise is only sensible if it serves a sensible purpose. Apparently it is accepted that a year for reflection and consideration is sufficient where there are no children, but 18 months is said to be necessary where there are children.
I start from the basic position that it can make no sense to compel parties to remain married if the marriage is dead. The law cannot compel parties to
—

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remain together. Even if it could, which it cannot, compelling them to live together against their will would cause greater harm to the innocent children.
The law can deny divorce; it cannot compel people to live together. Once that is recognised, I ask: what is the point of denying divorce where there are children until 18 months has elapsed? I believe, as I believe the noble and learned Lord believes, that one year is sufficient for the state to be satisfied that a marriage has broken down irretrievably. I believe that to be equally so where there are children and where there are not.
To deny divorce does not prevent breakdown. Therefore, where there are children of marriages and where there may be innocent children of new relationships outside lawful marriages, I see no point in denying the regularisation of these new relationships after lawful marriages have broken down irretrievably.
I know, and I acknowledge, that these amendments are well meaning but I believe them not to be well judged. Therefore, I oppose them.
The Earl of Clanwilliam: My Lords, before the noble Lord sits down, does he consider that a marriage has irretrievably broken down when one of the parties to the marriage does not wish it to be broken down?
Lord Irvine of Lairg: My Lords, I fear that the answer to that question is yes: I believe that, sadly, the same arguments as I have addressed in relation to the children apply where one party alone is determined that the marriage has broken down. Only the consent of the two parties can prevent that.
Baroness Elles: My Lords, the noble Lord, Lord Irvine of Lairg, asked what sensible purpose there is in prolonging what he considers to be the agony of having a marriage that has broken down to go on for another six months. The fact is that we are dealing with thousands of different complex cases. We are dealing not only with the cases in which two people have decided that they do not get on and imagine that they would both be happier if they were divorced. When one marries and has children there is another party to the consideration, even if two people are unhappy together. I know of many couples of my children's and grandchildren's generations who prefer to stay together than to leave their family and to suffer the agonies of not seeing their children any more.
That is one of the reasons why I strongly support my noble friend's amendment. What has not been taken into account is that a year in the life of a child is a short time, in particular if the child is at school. My noble and learned friend may say that hard cases make bad law, but the fact is that many marriages have been saved by the long school holidays during which the father will suffer the horror and the agony when he realises that next year he will not have that holiday with his children if he divorces.
I believe that the period of six months is a most reasonable and modest demand. I understand my noble and learned friend's principle that a year is a year is a year, but life is not like that. There are cases in which 18 months is of great value. I think in particular of the
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case that I raised during our discussions on Report and in Committee. In cases in which one is allowed to make a statement after only one year, many wives must be left literally holding the baby. Is it fair on a woman who does not want a divorce to live through a whole year imagining that the marriage must come to an end regardless of whether or not she wants that? Is it not reasonable, fair and just for a woman in that situation to have an extra six months to be able to consider the matter and to take the necessary measures to protect her interests and those of the child? I speak only on one side but we know of many cases in which the husband is equally unwilling to divorce his wife who has gone away.
My noble friend mentioned education. It was clear from the report as well as from the headmasters' conference that divorce is one of the three major factors in the lowering of standards, the lack of self-esteem and of discipline and the vandalism with which so many schools now have to deal.
We are not babies in this House and we must know what is going on around us. Some of us may pretend that we do not know and lead lives in ivory towers, but we have only to read the press to know of the horrors that are affecting young children and their standards, education and chances in life. If we do not protect the children of today who will be the adult society of tomorrow, is it not the duty of this House to ensure that every opportunity is given to defend the lives of those children within a sure and stable family life?
It is with the greatest pleasure that I support my noble friend Lady Young. I pay tribute to the stand that she has taken throughout the Bill to see that fairness as well as justice is given to people who do not want a divorce and, above all, to protect the lives of children who suffer not only on divorce but often for the rest of their lives.
Lord Irvine of Lairg: My Lords, it appeared that the noble Baroness, Lady Elles, was asking a question in my direction and therefore, with the leave of the House, perhaps I may make one short observation. Delay means uncertainty and uncertainty is always bad for children. Surely it is the quality and not the absolute length of the consideration that matters. Surely one year is always enough.
Lord Stoddart of Swindon: My Lords, I was pleased to sign the amendment so ably moved by the noble Baroness, Lady Young. She has left us little to say. My noble friend Lord Irvine of Lairg believes that the amendments are ill judged and unnecessary. However, I would say to him and to the noble and learned Lord that those who are concerned that the Bill will send the wrong messages to people who are married or about to be married have greatly shifted their ground. Even though they still hold their original beliefs they, through these amendments, are making the compromises.
Let us not forget that in Committee and on Report we came forward with amendments which would have retained fault and the waiting period at two and five years. Neither the noble and learned Lord the Lord Chancellor nor my noble friend Lord Irvine have moved towards that position. They have been rigid in

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their opposition. They have not been prepared to make any concession at all. Here are we, the people who wanted to keep the 1969 Act virtually intact, coming forward with a very mild amendment. I should have thought that at this stage of the Bill the noble and learned Lord the Lord Chancellor and my noble friend Lord Irvine would have said, "All right, that seems a fair compromise. There are good reasons for the compromise and let us go along with it". Unfortunately, they have not done so.
Arguments have been adduced in favour of the amendments. Perhaps we may go through the two major arguments again. The first proposition is that there should be a further delay of six months in cases in which the parties are not agreed. I refer to cases in which one party has said that there is no irretrievable breakdown of the marriage. It is very different because one party obviously believes that the marriage has not irretrievably broken down. In those circumstances, and in order to take into account both points of view, is it not fair and just that there should be an additional period of six months for further reflection and perhaps further reconciliation and mediation? Is that too much to ask when one of the parties says, "I do not believe that this marriage has irretrievably broken down"? Is it not just that that person should have as much, if not a little more, consideration than the person .who says that it has?
The other major point raised in these amendments is the position of children. The special position of children has already been recognised in the Bill—and I compliment the noble and learned Lord on that. And, indeed, there are amendments which go rather further along that line.
These amendments propose that where there are children, it is surely right that the parties who are to divorce should take a little more time to consider whether that is the right course to take. After all, we are saying, and the noble and learned Lord is saying, that although children obviously should not be a bar to the divorce, at least they have interests and they may be able to express some sort of view. Therefore, do we not need a little more time to see that the interests of children are expressed and are taken into account by the divorcing couples, bearing in mind the expression of those opinions? Is an extra six months for the sake of the children too much to ask? Surely it cannot be. Surely we must consider that that extra six months will certainly do no harm. What harm can it do? It may do a lot of good.
For those reasons, I hope that noble Lords will vote for these amendments this afternoon. They are important. They are the minimum which are needed to make the Bill at least somewhat acceptable throughout the country. Therefore, I commend them to the House.
3.30 p.m.
Lord Peyton of Yeovil: My Lords, the noble Lord, Lord Stoddart, described this amendment as extremely mild. I do not think that one would disagree with him. But the question that we must answer today is whether it would be useful and to whom.
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There are two reasons why I have not sought to intervene so far in the debates on this Bill. The first is because I think that it poses very difficult questions to which I personally have no absolutely certain answers. Once you embark on the road of divorce, it is very difficult to know where you can call an acceptable and enduring halt to the process. There are those who wish to protect the cause of sustaining the institution of marriage. My noble friend Lady Young, with whom I am very sorry indeed to differ this afternoon, is championing that cause. Against her are those who wish to limit the anguish which may follow a relationship which has irrevocably broken down.
The second reason on which I should not wish to dwell, although it still seems to me to be relevant, is that 30 years ago I was divorced and the fault was mine. Therefore, during the passage of the Bill I felt in no position to preach to or advise others. But this issue is one on which I do venture an opinion.
The wrenching apart of a relationship as fundamental as marriage must cause distress and anguish for all those who are close to it, not just the two principally concerned but very particularly the children. I quite see that this is a very difficult question. However, once one accepts that a year's period for reflection is enough where there are no children, I cannot for the life of me see why the presence of children should be allowed to change that view. What would that extra six months be likely to achieve?
I recognise that this is very much a matter of opinion and no one can prove to everyone else's satisfaction that either side is right. But I still find it very difficult to believe that a further six months would do anything other than prolong the anguish and uncertainty and postpone even the possibility of recovery.
In moving the amendment with her usual skill and sincerity, as she did, my noble friend referred to the jeopardy in which the fabric of our society is placed today. I do not disagree with her about that. But once the point has been reached in the history of divorce that we accept that a year is a sufficient period for reflection for those facing the breakdown of a relationship, I believe sincerely, after a good deal of reflection, that the extra six months would not really achieve very much, although I realise that it would afford a measure of satisfaction to those who are desperately concerned about what is to happen to the fabric of our society.
Lord Ackner: My Lords, like the noble Lord, Lord Peyton, I too have not intervened in the debates. I have not intervened for the first reason that he mentioned but not yet for the second. One hopes that the 50th anniversary will be achieved this year.
I agree entirely with the noble Lord, Lord Stoddart, that this is a mild amendment. It seems to have been overlooked that once the one year has expired, it does not provide an entitlement to a divorce. A year must pass and the ancillaries must be completed. The necessary arrangements and decisions must be made as to the children; that is, as regards custody, care or control, access, maintenance, education and so on.

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In regard to the party who is resisting the divorce, arrangements have to be made for maintenance, division of property and so on.
Where there are children and where there is resistance to divorce, I believe that it will be a very rare case indeed where the ancillaries are completed within the 12 months. I do not think that the noble and learned Lord the Lord Chancellor would be giving away anything in practice if he were to accept the amendment because the 18 months is necessary to deal with those cases in relation to the ancillaries.
I have three further points to make. First, I believe that there is a marked difference which ought to be signified in the legislation between the divorce which involves children and the one that does not. In the latter case, when the parties marry they take on a responsibility to each other which, after the year, they can get rid of without doing any harm to anyone else other than themselves. But where a couple have brought children into the world they have extended their range of responsibility beyond themselves. I believe that that fact ought to be recognised. The recognition of six months is a small recognition. The difference between a consensual parting where both parties agree to a divorce and one where the other party says, "No, I want six further months for this to be sorted out if possible and if that is not possible it must be sorted out amicably in regard to the ancillaries", should also be recognised.
My final point relates to the proposition put forward by the noble Lord, Lord Irvine, that this suggestion would serve no sensible purpose. The noble Lord is intensely busy and will not have seen a "Panorama" programme that I switched on by mistake and continued to watch. It involved a young couple. They were shown on the programme as having met, become very enthusiastic about one another, married and continued that marriage very happily. But when a child arrived the marriage deteriorated and there was a divorce.
To my surprise, both parties in that programme were utterly perplexed as to why the marriage had broken down. It seemed to me that it had broken down quite simply for one reason; namely, that they were unable to adapt themselves to the enormous change which is made to a matrimonial relationship with the arrival of a child. It is a particularly radical change nowadays and it arose in regard to that couple. There was no child and they both worked. They returned home at the end of the day having had an interesting time. They were tired from their occupations and swapped stories about how they had spent the day, and so on.
However, with the arrival of a child, the wife has to give up her work. She stays in all day faced with the rather unsatisfactory occupation of putting food into one end of the child and dealing with the complications at the other. When the husband returns from work she expects that the stimulus which she has lacked throughout the day will be made up by him. But he is tired and has not spent the day having a jolly game of golf: he has been working. He comes home tired and expects to be able to relax by watching the television or reading the paper. But not a bit of it. He is expected to cope with the child to some extent—something which
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he has never been taught to do and which, in the case to which I referred, the husband was clearly quite incompetent in doing. So the marriage begins to break down. The couple are angry and disappointed with one another and it ends. It ends so obviously because no one told them in advance about the extent to which they had to adapt.
With that type of situation, an extra six months when attempts at reconciliation would be made might make some couples realise that there has to be a great deal more adaptation; in other words, something must be done to enable the wife to get out of an evening with some adult company. Something will have to be done to take the child off her shoulders for 24 hours, which is often the case. Because of the consequence to the father of a divorce—who, in this case, was utterly devoted—with the difficulties of access, the obsession which descends on the frustrated father in that way, the opportunity to explain the consequences of at least not trying a little harder would be a heaven-sent opportunity. Therefore, 18 months in order to cope with that task is not long. It seems to me that it is a very granite-like approach to refuse to accept this very mild compromise. I support it.
3.45 p.m.
Lord Hylton: My Lords, before my noble and learned friend sits down, can we just be clear about what he has described as the "ancillaries". When the Bill becomes law, will they begin to operate from the beginning or the end of the 12-month reflection period? To my mind, that makes a very big difference and has a strong bearing on the thrust of the amendment.
Lord Ackner: My Lords, as it understand it—subject to correction—the ancillaries are available to be dealt from the moment that the 12-month period begins. The mediation proposals in the Bill were designed to take the friction out of coping with settling those ancillaries. My proposition was that if you had the complication of children, or the resistance of one spouse who does not want a divorce, you would not in the ordinary course of events complete those ancillaries within a year; indeed, the process would go on for a good 18 months. Therefore, the amendment seeks no concession of any significance.
Baroness David: My Lords, to accede to the argument put forward by the noble and learned Lord, Lord Ackner—that the ancillaries would take longer than a year so why not require an 18-month waiting period where there are children which would, therefore, make no difference in practice—is to impose a delay. If there is no delay, the ancillaries are completed in under the year. It seems to me that it would be sensible to accept that. Where there is no delay, the arrangements should continue and a year would be ample in that case.
Baroness Faithfull: My Lords, I do not support the amendment. I greatly admire the speakers who have spoken for it, but I believe that they have overlooked one aspect; namely, that there is a time before this period—the time of reconciliation. We have had long debates on the difference between mediation and reconciliation.

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Many of the couples whom I know and with whom I work have been to Relate, which gives marriage guidance. They have gone there for perhaps a year or two years, so there has been a period of uncertainty for the children before mediation started. The process has, therefore, been going on for more than a year. That is not good for children. The period of one year is not the only time when the couple have considered the matter. Indeed, they considered it for a long time beforehand. I have to say that children cannot bear such long periods of uncertainty.
I absolutely agree with my noble friends Lady Young and Lady Elles that the children of divorcing parents suffer. But it is much better for them to suffer for less, not more, time because they have already been suffering. Relate's figures show that a number of couples do not go forward with their divorce. However, if the couple have reached the point of going through with a divorce, then they have already had a long time for consideration before reaching that decision. Therefore, for the sake of the children, I believe that a year for consideration is enough.
Lord Stallard: My Lords, I shall be brief because the noble Baroness and the noble Lord, Lord Stoddart, have covered most of the points that we have tried to make throughout the Bill on Second Reading, at Committee stage and today. We are still saying much the same thing. We have achieved some minor successes and there have been changes. The noble and learned Lord the Lord Chancellor has responded positively to many of the suggestions that we made, and we are grateful for that. Nevertheless, there is still a great difference between us regarding the matter we are discussing. However, the difference between 18 months and two years is not so great. It is only six months.
I believe that the noble Baroness, Lady Faithfull, was quite wrong to try to pretend that there is a definite period for reconciliation. I wish to God there was! Ever since November I have been asking for a definite period for reconciliation. As yet we have not achieved that. There is no definite period for reconciliation in the Bill. Therefore, it is not quite true to suggest that there is. I believe it was the noble Lord, Lord Peyton, who asked for whom the extended period would be useful. It is obvious that it would be useful for the partner who does not wish to end the marriage.
As the noble Baroness, Lady Elles, said, it is only just that we should try to be as fair as possible to the partner who in the first instance does not want the marriage to break up. Why should she be told that it has to break up whether she likes it or not? The extended period would also be useful to the children of a marriage. At least it would postpone the damage and misery caused to children by divorce. In Committee we heard all about the damage caused to children when parents decide to part. It is not true that more damage is caused to children when an unhappy couple stays together than when such a couple divorces. There is an element of doubt regarding the reasoning of some people on the matter.
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This whole matter is based on the White Paper which in turn is based on a false premise; namely, that 75 per cent. of people seek a quickie divorce, and that this Bill will do away with the quickie divorce. However, that figure is wrong. The true figure is between 27 and 32 per cent. Therefore, the White Paper is based on a false assumption to begin with. Had we started with correct statistics, the period of 18 months might already have been included in the Bill.
My noble friend Lord Irvine said that the law cannot force people to remain married; in other words, one cannot influence people's morals by means of laws. There are umpteen examples of where that argument has been turned on its head. I refer to laws countering sexual discrimination, racial discrimination or, more recently, the movement to introduce laws countering age discrimination. Those are all attempts to change people's morals and conduct through the introduction of legislation. I believe it was at the Committee stage that I quoted the words of Dr. Johnson who said, using much the same argument as my noble friend,
"How small of all that human hearts endure,
That part which laws or kings can make or cure".
Benjamin Jowett—whom I have quoted many times—replied,
"It is of course true 'that you cannot make men moral by Act of Parliament'; yet the laws and institutions of a country do make it, to a degree, which it is difficult to exaggerate, either easier or harder for men to walk in the right way".
It is more accurate to espouse the latter theory than simply to say one cannot change people's minds by introducing certain laws. People can be guided in the right direction through the introduction of legislation. I believe we are justified in seeking this modest extension of six months. I only hope that the extended period would be used for reconciliation. Then it would be worthwhile. I support the amendment.
The Lord Bishop of Ripon: My Lords, like others in your Lordships' House, I am speaking in a debate on this Bill for the first time. Others of my colleagues have spoken at previous stages of the Bill. It will not have escaped your Lordships' notice that they have not spoken with united voice. That illustrates the immense complexity of the matter before us and the great difficulty of reaching decisions on these matters. All of us in your Lordships' House are concerned to buttress the institution of marriage—or rather, I would say, to give it respect—and to encourage the expectation that marriage is something that has to be worked hard at—as the noble and learned Lord, Lord Ackner, said—not just in practical ways, but also in more profound ways. It is a partnership within which we have to grow and within which we learn a great deal about our own faults and how to live with the faults of others. What we are concerned about is how best to enable that partnership to be reinforced and to continue. However, we are also aware that there are times when relationships break down.
I wish to pay tribute to the noble Baroness, Lady Young, for her tremendous persistence in bringing this matter before your Lordships' House. I wish to make three simple points. The first is to underline the point that

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has already been made about the signal which the Bill will send out. I was particularly taken by the point made by the noble and learned Lord, Lord Ackner; namely, that within the signal that is sent out there needs to be a distinction made between those marriages where there are no children and those marriages where there are children. Clearly, the damage done to children by divorce is immense. It needs to be made clear that those who are married with children bear an additional responsibility than simply the responsibility of two people to each other. I believe that this simple amendment would send that signal.
As regards cases where one partner contests a divorce, I have found in my experience that there is frequently considerable bitterness on the part of a person who opposes a divorce, even with the present regulations. That bitterness is likely to be increased with the shortened period of time that is proposed. As the noble Baroness, Lady Elles, said, it is just that the partner who contests a divorce should be allowed a period in which to make representation, and indeed perhaps to come to terms with what is happening to him or her as a result of a course of action which he or she does not approve of. Therefore I believe that the extended period would be of help in that regard.
In relation to children, I should have thought that the moment that most disturbed children was the moment of separation which is not necessarily the moment of divorce. Indeed the moment of separation can sometimes take place before—as I understand it—proceedings under this Bill could ever begin. Therefore the uncertainty is created in the period leading up to the separation. I should have thought that any measure which resulted in one or two marriages where there were children being reconciled was worth considering. The damage done to children by divorce is enormous. If this modest increase of six months were included in the Bill and saved even a limited number of marriages, it would achieve a great deal.
Lord Boyd-Carpenter: My Lords, I have not spoken so far during the debates on this Bill but I have listened carefully, particularly to this important debate. I must confess to a considerable bias in favour of marriage having had 59 years of happy married life. The point is a perfectly straightforward one. What the amendment seeks to do is to specify that where there are children to the marriage, the situation is somewhat different from cases where there are not, and that therefore there is a strong argument, it seems to me, for having a slightly longer period—it is only a six-month increase that is sought—for reflection, or possibly for reconciliation, where there are children than in the case where there are not.
Therefore my noble friend Lady Young is right in urging that where there are children, 18 months is a reasonable period. I appreciate that it is essentially a compromise. There are many people who would think it should be a longer period. There are others who doubt whether it would be of any great value. However, a small increase of six months in the cases where there are children to consider seems of the greatest importance. The presence of children makes a real
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difference. I urge that that difference be reflected in the length of time required for the dissolution of the marriage.
4 p.m.
The Earl of Perth: My Lords, I rise to give strong support to the amendment moved by the noble Baroness, Lady Young.
Before I give my reasons I should like to thank the noble and learned Lord the Lord Chancellor for the two amendments which he moved after listening to your Lordships during earlier stages of the Bill. I refer to the amendment which lists the general principles on which the Bill should be considered and, secondly, to the important amendment to Clause 20 relating to marriage support services, which opens the door for reconciliation or counselling. Those amendments improve the Bill enormously.
It is that second aspect which leads me to believe that we should have the longer period before divorce. If we accept the amendment, that will achieve two things. First, it will make clear the very real difference between a marriage which is not blessed with children and one that is and the special responsibilities that are involved in that case. Secondly, it gives longer for counselling which, with the recent changes to the Bill, we recognise as being so appropriate. That is the main thrust of what I want to say to your Lordships.
If the amendments are accepted, at least two of the cardinal's wishes have been carried out; namely, a longer period of time and recognition of the responsibilities to children. Many noble Lords would prefer an even longer period, but we must try to reach agreement.
At an earlier stage the noble and learned Lord the Lord Chancellor said that the period is a matter of judgment. He recognised that there are two views. However, he went on to ask whether it can be right to require that, just because there are children, those children should be subjected to a longer period of distress. That is the nub of the issue. I am quite clear in my own mind that if, as a result of providing for an extra six months where there are children, there is a chance of reconciliation, although some others may suffer, on balance there is no question which is the right approach.
There was a remarkable article in The Times on Saturday, which might have been written in the knowledge that this debate was to take place. It was on the subject of marriage counselling and was written by a lady called Theresa Buck. I beg your Lordships to read it. The thrust of the article was the need for proper training in counselling and the importance of counselling in saving marriages. She made the point, which has already been made today, that the divorce rate in this country is twice that of the rest of Europe. She also felt that this country should jettison its muddled attitude towards marriage guidance. The Bill would he very much better if marriage guidance were regarded as at least as important as mediation. However, marriage guidance takes time, and if there are children it should necessarily take longer.

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One of the problems in relation to marriage guidance is the shortage of money. The eminent and excellent bodies which provide marriage counselling between them receive £3 million a year, whereas legal aid for divorce amounts to over £300 million. That is wrong. It reinforces the need to provide greater opportunity for marriage guidance or reconciliation, especially where there are children. Therefore, we should support the longer period that is proposed.
The 1969 marriage Bill did not achieve its purpose. As we all know, it resulted in a great increase in the number of divorces. Let that not happen again with this Bill. None of us wants that. The signal that goes out should be that children matter, and that in those cases where children are involved a year is too short a time and the reconciliation and mediation will have a better chance of success if the period is 18 months.
Earl Russell: My Lords, first, I should like to congratulate the noble Baroness, Lady Young, on the integrity, determination and persistence with which she has fought her corner on this Bill. It is never easy to go out into the road and stand in front of the legislative juggernaut and signal it to stop. I admire the way in which she has done that. However, having said that, I do not understand her reasons for doing so any better than I did at Second Reading.
The noble Baroness has said that her objective is to buttress marriage. That objective is shared in every quarter of this Chamber. I do not see how she can pursue that objective by making divorce more difficult. It is so self-evident to the noble Baroness that that link holds that she has not entirely taken on board that many of us in this Chamber not only do not accept it but cannot understand why others do accept it.
A legal marriage is an outward and visible sign of an inward and personal relationship between two parties. I do not understand how, by keeping the outward and legal relationship going, you can invigorate the inward and personal relationship between two parties. I cannot understand how the prevention of divorce can make two people love each other when they have ceased to do so.
The noble Baroness said that many people draw back from divorce. She is quite right about that. However, I have yet to hear of cases where they draw back simply because the legal procedures of divorce are too difficult. Some of your Lordships may remember a film of some time ago called "The Sheep has Five Legs", all five of them being played by Fernandel. At one moment in the film the wife of one of Fernandel's characters had decided to leave him, packed her suitcase, shoved in everything in a hurry and a rage and filled it too full. She could not shut it. He had to sit on the suitcase beside her to help to shut it, at which moment they both burst out laughing and the thought of divorce went out of the window. I believe that that is the kind of way in which couples draw back from divorce. I believe that the state of the divorce laws, difficult or easy, has nothing to contribute to it. The divorce laws contribute to the number of broken relationships which end up in
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separation and in divorce. Whichever way that goes, I do not think that it contributes anything to the buttressing of marriage.
As we are at Third Reading, perhaps I may ask the noble Baroness this question. When she refers to children under 18, does that mean under 18 at the beginning of the period of reflection and consideration or at the end? At what moment do they have to be under 18? If we do not decide that now, and the amendment is carried, some court will do so at considerable public expense. I believe that that should be made clear at some stage.
We have again heard statistics that we have heard many times since Second Reading about divorced men regretting that they were divorced. But what exactly does that mean? I doubt whether a professional opinion pollster would be entirely confident in using such a question. It may mean that one regrets one's marriage broke down: that many people do without believing that it could be saved. It may mean something very different: that one wishes one could have made a go of it. But it may only mean wishing that one's misguided spouse had done something different. We have all heard people in negotiations talking like that and getting nowhere. Until I understand what that information means, I shall not give it that much weight.
The noble Earl, Lord Clanwilliam, raised the question of the unwilling party to a divorce. But it is a personal relationship. You cannot have a relationship of one. Therefore I would say to the noble Earl that by no endeavour can a magnet ever attract a silver churn. That is why, however sad it may be, one unwilling party cannot be used to defer divorce unduly, because the spouse cannot keep the marriage going on his or her own.
The noble Lord, Lord Stallard, raised the parallel of anti-discrimination legislation, but I do not think that the cases are quite on all fours. In anti-discrimination legislation we ask people to refrain from performing or to perform an action. One may do that with a good or an ill heart. I may appoint a woman, a black man, a homosexual, or whoever, against my own inclination that it is still a perfectly good appointment, but I cannot be required by the law to love somebody. However determined you are to obey the law, you cannot do so simply because the law says so. If you cannot do that, I do not see how you can save the marriage. That seems to me to be a very big distinction between anti-discrimination legislation and the legislation required in the Bill.
I listened with great interest to the noble and learned Lord, Lord Ackner. So much of what he said was so vivid that I think we shall all remember it when much of the remainder of the debate is forgotten. But the noble and learned Lord illustrated to me why I believe that the introduction of paternity leave would do more to preserve marriage than anything we can do or refrain from doing in the whole of the Bill. The noble and learned Lord was proposing to lock the door, but I fear that his horse was already stolen.
4.15 p.m.
Lord Elton: My Lords, my noble friend Lady Young stated that we are not introducing a matter of principle but of degree; and that is perfectly true. We are properly treating the provision as though it were a matter of principle. As the amendment is drafted, it is a matter of two principles, paragraphs (a) and (b). I for one regret that they are tied together because I am not sure that I have the same feelings about the two. The first deals with marriages where one of the partners does not consent to a divorce. The right reverend Prelate reminded us that a principle of justice applies. The noble and learned Lord, Lord Ackner, applied his formidable intellect to producing intellectual arguments which support one's instinct in the matter.
However, there is a second leg to the amendment: that which deals with children. That is a principle not of justice but of compassion. In my book that must always prevail. Therefore, in order to judge how to conduct myself on this amendment—I hope that your Lordships will feel the same—it is the effect on the children and not the effect on the partners which must take primacy. The children, after all, were no part of the contract from which they sprang into existence. They are innocent parties and are almost certain to be damaged in some degree by what is happening. As my noble friend Lady Faithfull said earlier, what is happening begins long before the order is applied for. That is not the beginning of the process; it is the culmination.
My noble friend Lady Young said that the process of divorce takes more than a year in 43 per cent. of cases. The amendment, presumably, will not bite too much on them. But the Bill bites on the remaining 57 per cent. I suspect—I think that your Lordships will share my suspicion—that the cases in which children are involved will largely fall in the 43 per cent. because of the intricacy and importance of making arrangements for them. If that were not the case now, it would be provided under the Bill not only because of the welcome amendment that my noble and learned friend has put into Clause 1 at the instigation of the noble Lord, Lord Robertson of Oakridge, but also because Clause 3(1)(c) states that,
"the court shall make the order applied for if (but only if)—the requirements of section 9 about the parties' arrangements for the future are satisfied".
Clause 9(3) states:
"The requirements of section 41 of the 1973 Act (duty of court to consider whether there are children of the family and, if there are, the arrangements to be made for them) must have been satisfied".
If that were not enough, Schedule 8 amends Section 41 of the Matrimonial Causes Act to ensure that the minutiae of the Act are applied as regards children. I refer to paragraph 23 on page 71.
There is a whole range of protection for children and a requirement that their interests shall be fully attended to before the order can be given. Again, once there is a dispute, the whole process is caught by the Children Act. So there is no question of a quickie divorce so far as concerns children.
We come now to the question of whether, where there are cases involving children, the process of divorce should he extended from a minimum of one year to a
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minimum of 18 months in order to prolong the period for reflection. I listened to my noble friend Lady Elles with the close attention that I always give her. It worries me greatly to be sitting and speaking between two ladies of your Lordships' House whom I so greatly admire, if I may say so, and in whose opinions in almost everything I so greatly concur. Indeed, I concur in the opinion that the institution of marriage is central to the fabric of our society and that children are the most important feature of it. I concur that decline in the stability of marriage is one of the principal contributing factors to a decline in the strength of the fabric of our society.
If my noble friend Lady Young were to go to school in the north of England, she would find—and she will correct me if I am wrong—that the majority of the horrifying 90 per cent. of children in that school with no known father are not the product of broken marriages but, I fear, are the product of what is now a quite common feature: liaisons which produce children without marriage; and I think that they are outwith the terms of this debate.
We come back to the question of the interests of the children. I have studied this issue painfully and at close hand. It seems to me that the only good that can come from a divorce is the protection of the children from damage. That protection is intensely difficult for parents to achieve.
Your Lordships have, in my view mercifully and rightly, agreed to remove the issue of fault and therefore litigation in court over the heads of children as an inevitable part of this Bill, and for that I am profoundly grateful on their behalf. But one comes back to what is left, and that is the period which started long before the application to the court and will last until it is over. I can tell your Lordships that the really difficult time in which to maintain a relationship with an estranged party which protects the children is the period while the matter is in the hands of the lawyers. That is the time that your Lordships are speaking about. I hope your Lordships will not extend it.
Lord Simon of Glaisdale: My Lords, I support this amendment. Much of the discourse about divorce treats the question as if it concerned only husband and wife. There have been signs of that in today's debate. The great value of the amendment moved by the noble Baroness, Lady Young, and her splendid speech in support of it, is that it focuses clearly on the fact that as soon as a child is born the marriage is concerned with more than husband and wife. That point was made by the noble Lord, Lord Boyd-Carpenter, the right reverend Prelate and many others.
There is a focus as if there were only husband and wife. We have heard today of a dead marriage. If there is a living child, the marriage is not dead. Earlier in our deliberations there was talk of the parties being locked in a loveless marriage. How many marriages are there where parents do not love their children? By focusing exclusively on husband and wife one loses sight of the fact that the first of the purposes for which marriage is ordained is the procreation of children. That is also the first purpose that a sociologist will accept. Even today

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the noble Earl, Lord Russell, whose clarity of mind on these matters has been so valuable to us, spoke of marriage as a relationship between two people. It is not. As soon as there is a child, it is a relationship with more than two people. It is for that reason that the amendment is valuable.
The noble Earl, Lord Russell, wishes to say something, which I shall not hear but I shall read.
Earl Russell: My Lords, I merely wish to say to the noble and learned Lord that I have spoken of the interest of children in these amendments at such length at earlier stages of the Bill that I chose not to do it again.
Lord Elton: My Lords, and I spoke of almost nothing else!
Lord Simon of Glaisdale: My Lords, the noble Lord, Lord Irvine of Lairg, said, and said truly, that uncertainty is bad for a child, and that was echoed by the noble Baroness, Lady Faithfull. So it is. But there are two things to say. The first is that responsible parents can shield the child from uncertainty to a large extent during these painful processes, and wise counselling can help them to do so. The second is that, although there is uncertainty, we now know for certain that divorce is very bad for a child. The statistics have been mulled over in the course of our deliberations but, in the end, one comes down to this. When there is a divorce, there are two families to be supported. Remarkably few people in this country can afford more than one family. More often than not the result is that both families go down to subsistence level; income support level. After the divorce, which is a licence to remarry, there is the gravely damaging conflict of loyalty in the mind of a child between two families, with probably a surrogate parent being substituted for the natural parent.
It is not much to ask that, where a child is involved, the parties should consider the matter for an extra six months and be helped to have regard to their responsibilities to the child as well as to each other.
Lord Eden of Winton: My Lords, I hope I may briefly trespass upon your time. I suppose in some way I have a double interest in this amendment which I should declare. The first lies in the fact that I have been through the divorce courts myself; the second is that I am the father of four grown-up children and, through a second marriage, I have inherited two grown-up stepsons. I have therefore listened very closely to many of the proceedings on this Bill and have a great deal of sympathy with the purpose underlying the amendments which have been tabled and which have been so movingly addressed by many of your Lordships. However, I do not agree with them, for the following two reasons.
First, I think it is very often the case that the breakdown of a marriage is the product of a lengthy period of decline in the relationship between the partners to that marriage. That period sometimes lasts for years
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and can put very considerable strain upon the husband and wife; that strain frequently being reflected in the home and therefore impacting upon the children.
Secondly—I am not in a position to enumerate in how many instances—it is quite often the case that, where there are children of the marriage, the children themselves, assuming they are of a certain age, contribute to the continuing relationship between the father and the mother even when they find it difficult to continue to live together. The influence of the children helps to continue the marriage, very often in time bringing about a reconciliation, sometimes after a period of separation. I do not believe that formalising arrangements in the sense that is proposed will help in those processes, nor that protracting the processes through the introduction of a law will help to bring about greater contentment between the two people concerned or greater happiness for any children of that marriage.
I very much agree with the point that was made by my noble friend Lord Perth that there should be better guidance for marriage. However, guidance for marriage should come before marriage. That is where the emphasis is needed. It is where Churches of all denominations have a major responsibility and part to play in the advice they give to people before they marry.
It is not a question of making divorce easier or harder; divorce is usually hard. We should be considering how to make marriage more difficult, the result of a more thought-through process by the partners concerned. Then there would be less divorce because the product of that relationship, when marriage comes about, would be the result of careful thought and long drawn out consideration. I hope that we shall reject the amendments and concentrate on guidance before marriage.
4.30 p.m.
Lord Northbourne: My Lords, I support the amendment. I put one down at Report stage which would have had largely the same effect. However, it had one other feature: it provided that either party should be able to appeal to the court if they felt that the interests of the children would be disadvantaged by the extension of the period from 12 months to 18 months. If the court felt that to be the case, it could reduce the period from 18 months to 12 months, but no less.
The noble Lords, Lord Irvine of Lairg and Lord Peyton of Yeovil, the noble Baroness, Lady Faithful, and others, referred to the situation where a marriage was dead at the end of the 12-month period. They went on to suggest that it is important to limit the anguish of the parties and the children. That is a fatalistic approach; I do not believe that all marriages are dead at the end of that period. The evidence is to the contrary.
In the amendment we are trying to save marriages and a little extra anguish may be necessary in order to achieve that objective. If the anguish will be too great in relation to the children, then if noble Lords are minded to vote for the amendment this afternoon, a small additional amendment could be introduced in another place to cover the point which I made at Report stage.

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There are many reasons for your Lordships to vote for the amendment, but perhaps the most important is the message or signal that it gives. I have talked to many people—my friends, taxi drivers, bus drivers—and almost without exception they all had the impression that the Bill is intended to make divorce easier. I know that the noble and learned Lord will tell me that that is not the Bill's intention, but I am sorry to say that is the way it is being received. It is the way a message is received and not the way it is sent that matters. Noble Lords will remember the schoolboy story about the general who sent back a message: "Send reinforcements, we are going to advance". It arrived at headquarters: "Send three-and-four pence, we're going to a dance". The message received is what matters and if the message received is wrong, we must change the message that we are sending. By introducing the 18-month period on the face of the Bill, we would strengthen the Bill somewhat, though not much.
I was going to speak about the important difference between marriages with children and with no children, but the noble and learned Lord, Lord Simon, and the noble Lord, Lord Elton, said fluently everything that I had intended to say. They are right. Where there are children in a marriage it is essential to give the marriage a little extra chance of achieving reconciliation. As the right reverend Prelate said, some marriages might be saved. That is a tremendously worthwhile objective and I urge your Lordships to vote for the amendment.
Baroness Strange: My Lords, one of the most important and valuable things in the world is time, as noble Lords are aware. Everyone who has had the good fortune to be married for a short time, or even a considerable time, will know that occasionally we have the odd disagreement. But we manage to get over it. On his wedding anniversary my father used to say: "We've had only one argument during all our married life". Then he would add, "But every now and again we have an armistice". Probably his armistice was longer than the war. We all believe in the sanctity and value of marriage as the foundation of all proper civilisation. The most important thing we can give anyone to save their marriage is a little time to heal it.
Lord Jakobovits: My Lords, I have waited for an hour-and-a-half during the debate to make a contribution because, frankly, I came with an open mind on Amendment No. 3. To me it is not a matter of principle whether one waits 12 months or 18 months, or even whether one draws a distinction between children or no children, because every divorce, with or without children, is an infinite tragedy.
I waited because I wanted to listen. I have been richly rewarded because I am immensely moved by the contributions, and by the manner in which noble Lords have agonised over the subject. Having listened to both sides, I feel that those in favour of the amendment have persuaded me more than those who oppose it.
I wish to add one angle to the reasons which have been mentioned, and I was stirred by what I heard. My pastoral experience tells me, dealing with any number of unhappy marriages, threats of divorce, young couples
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and elderly couples coming to me, that a prime reason for the rise in the divorce rate is that people simply do not try hard enough. Divorce becomes the first alternative, instead of being the last. In many cases—though not all—I am persuaded that were people to give it another try, put more effort into it, they would succeed and the marriage would remain intact. But this is an age in which we want instant solutions, instant answers. We do not have the patience to work out a problem. The result is that many divorces occur simply because they are snap decisions, taken on the spur of the moment. There is not enough time to allow the decision to mature.
The noble Earl, Lord Russell, said that one cannot force people to love one another. I beg to differ. I think that necessity becomes the mother of invention; and a mother loves. Therefore, if people feel a necessity to live together, to make a success of their marriage for their own sake or their children's sake, if they try hard enough then many will find that, where a great effort is put in, the reward will come. It will be a mother of invention. That invention will lead to the capacity to generate love, to nurture love and eventually to have a perfectly happy marriage after a period of disturbance. Therefore, by increasing the time, particularly where children are concerned, to me the signal that will go out is, "Try harder".
Lord Archer of Weston-super-Mare: My Lords, I support my noble friend Lady Young and am proud to have my name on the amendment. I have listened to every stage of the debate and this is the first time I have spoken. I hope that noble Lords will forgive me if I say that, although I am fairly new to the House, I believe that my noble friend Lady Young has given the example to everyone of exactly how to fight a cause when you believe in it, at every single level. I am proud to be on her side.
At the same time, I am very grateful to the noble and learned Lord the Lord Chancellor. During the past few weeks he has given way on two or three matters on which I felt strongly. One thing has become obvious to me at every level. The sincerity of feeling in the debates is something I have rarely seen in any Chamber anywhere in the world. It is possibly because so many of us speak from personal experience. I cannot match the noble and learned Lord, Lord Ackner, who is coming up for 50 years of marriage; or indeed my noble friend Lord Boyd-Carpenter, at 59 years of marriage. But, at a mere 30 years, I have an opinion to give, and indeed look forward to joining them both.
I have two sons, one aged 21 and the other 23. I take up a point made by the noble Lord, Lord Jakobovits, on Report. The most important argument to emerge from this debate is surely that we should be working on the importance of how hard it is to get married, not how easy it is to get divorced.
As I am sure many noble Lords remember, at school the child of a divorced pair in the class was somehow a strange and rare object. Now my sons tell me that I am strange because I have been married for 30 years. That is where the message is wrong. That is what the noble Baroness, Lady Young, means by "the fabric of society"

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for which we should fight. Surely we should be fighting for our children to believe that you should think very carefully indeed before you get married.
Most of the arguments have been rehearsed very competently this afternoon. However, I should like to answer one or two of my noble friends and others who did not agree with our argument. We heard the noble Earl, Lord Russell, use the word "drawback". He told us the story of how sitting on a suitcase had made a couple realise they wanted to remain married. That might have happened in the 13th month, or the 14th, 15th, 16th, 17th or 18th month; and they might have spent the rest of their life regretting that they had made the wrong decision.
We heard the noble Lord, Lord Irvine, say, with all the brilliance that we hear from lawyers, that this is a compromise. Of course it is a compromise. Many of us on this side wanted something a damn sight tougher and knew we could not get it. This afternoon we are trying to get through the House a proposal not only in which we believe, but on which we think we might be able to carry people with us. I say to the noble Lord, Lord Irvine: do not kid yourself; the noble Baroness, Lady Young, and I would have liked to table an amendment that was a damn sight tougher, but we realised that we would never get it through the Chamber, and all we would win, among a few of us, was an academic moral argument. I say to the noble Lord: yes, the amendment is a compromise. But it is one in which we believe and on which we hope people will join us in the Lobby. We want to push the period from 12 to 18 months.
My noble friend Lord Peyton made a very sincere and moving speech. Whenever one talks at a personal level it rightly seems to capture the whole House. I say to my noble friend that if both sides agree that there should be a divorce, we are not standing in their way. We are saying: if one person still believes there is an outside chance, let us give them another six months to find out. That is our suggestion.
I say to my noble friend Lady Faithfull: has she never heard of marriages where one party is shocked to discover that the other wants to leave; and then that same person changes his or her mind at a later date? I agree with my noble friend that for a great percentage of people another six months is tiresome. But for those few for whom it is not, and whose marriage might be saved, this amendment is worthy of your Lordships' consideration.
For the children, and for that marvellous concept that comes up again and again, "the fabric of society", I say to noble Lords who are still considering the matter: perhaps 18 months will save a few thousand marriages. Perhaps it will help a few thousand children. It is not a large number. It will not change the whole world. But I ask those who have still not made up their minds: for those few thousand, I hope you will join the noble Baroness, Lady Young, in the Lobby.
4.45 p.m.
Lord Marsh: My Lords, I shall detain the House only briefly. I take up two points that the noble Baroness,
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Lady Elles, mentioned in passing. She said that all of us know many people who have had marriage troubles, but who have managed to get together and sort things out and have been reconciled. She also said, "We are not babies in this House". It is worth reminding ourselves that the vast majority of people who get divorced are not babies either. They are adults. They are a total cross-section, literally from princes to paupers. Another problem is that people in very happy marriages have difficulty in understanding just how bad a bad marriage can be.
So far as children are concerned, we have our convictions—and somebody else will tell us one day whether we are right or wrong. I believe that the consequences of this amendment could be for very many children an extension of misery. My noble and learned friend Lord Simon said that marriage cannot die while the children are alive. I can show him children who look back on the day the marriage finally died as a point of relief.
The only good thing about this amendment is the clarity of its objective. It seeks to force a couple to remain married when at least one partner finds life with the other intolerable. We cannot even say on that basis that it is to force them into a happy marriage. I say "at least one of them" because much has been made of one partner. In these circumstances an extra six months of compulsory matrimony—an attractive proposition!—is a devastating weapon in the hands of one party in a vicious and bitter divorce. Can Members of this House realise the extent to which the children will be prayed in aid when there is one partner who does not want the divorce? It is not because the marriage can be put together; they have already tried that. People do not come down to breakfast one morning and say: "You remember that row last night; I'm seeing the lawyers today". As the noble Lord, Lord Eden, said, it grows and festers to the point where people can take it no longer.
I ask the House to consider the situation of the typical family in those circumstances. They live in a very small house. They have a couple of children. The children do not go to boarding school; they are in the house seven days a week, and are there over the weekends when the family can have that "happy time" together from Friday night right through to Monday morning. It is not coincidence, as is well-known, that one of the great times for divorces and final breakdown of marriages is Christmas—because it is a time when they cannot stand each other any longer. The children are there. And what do noble Lords think in that circumstance Mummy and Daddy do in the evenings and over breakfast? What is the conversation? Do they chat about cricket, or the new exhibition at the Tate? No. They resurrect the argument, accusations and bitternesses that they have been resurrecting day in, day out for months before. They pick over the corpse of the marriage like a couple of crows with a dead rabbit. Is that what we want a further six months for?
I never claim to be particularly modest and remain regularly amazed that people do things in a different way than I would have done them but it has never occurred to me that I had a role to play in the marriages of my closest friends, let alone hundreds of thousands

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of people that I have never seen. The difference between a democracy and a totalitarian society is the way in which the family survives as a family. There are some things where politicians writ should not run and they have no real role in this particular case.
The Lord Chancellor: My Lords, this is an extremely important amendment. I recognise, as my noble friend Lady Young made clear, that there is a considerable element of compromise in this proposal. My feelings in favour of compromise will not entirely have escaped your Lordships over the years when I have had an opportunity of addressing the House on legislation. However, when it comes to a matter of this kind, I must try to examine the effects of that compromise on others. I have sought to do so.
This Bill did not come forward without a great deal of consultation. One of the questions, as those who read the consultation paper will recall, was whether the period for reflection and consideration should be longer where children are involved than otherwise. The result of that consultation was decisively against that proposition.
My noble friend Lady Young gave some figures, and I am not sure that they are central to this issue. However, I should perhaps place on record that in the 1993 OPCS statistics on page 79, your Lordships will find that the number of divorces that took place within six months was 52,852, and those that took place within six months to one year amounted to 78,408. When one adds those together It comes to 131,260 out of a total of 164,668 divorces. That means that 79.7 per cent.—or around 80 per cent. of divorces in round figures—were obtained within a year or less. The Bill, in proposing a minimum period of one year, is a considerable change in the divorce legislation in that respect.
We must bear in mind a second point when considering the amendments. The Bill proposes another fundamental change in the divorce law arrangements; namely, that the arrangements for children and property are, with a few exceptions in the relevant schedule, to be made generally speaking before the divorce is granted. That means that the year is a minimum because, depending on the circumstances, the arrangements may take longer than a year to finalise.
That led my noble and learned friend Lord Ackner to say that, in practice, this amendment may not make much difference. He anticipates that the arrangements for children particularly would take longer than a year in any event and therefore that the amendment does not lengthen the period unduly. My point is a point of principle. Where the arrangements require longer than a year to make, it is right that the divorce should be postponed until those arrangements are in place. That is the appropriate difference between a marriage where there are children and a marriage where there are no children. The arrangements may take longer; it is appropriate that those arrangements should be made and therefore the Bill, as presently drafted, takes account of that.
My second point is that, as a result of amendments made in respect of the hardship bar, hardship to children of the marriage is a relevant consideration in that
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connection. That is another reason that the court, in consideration of specific circumstances, might consider it right to postpone the divorce order. Those are geared to the needs of the specific family.
The third point relates to the question of whether the court wishes to invoke powers under the Children Act. If the court considers that the divorce should be postponed on that account, then it can do so. Therefore the Bill, as presently drafted and without the amendment, contains clear provisions which enable the court, in appropriate circumstances, to lengthen the period required for divorce to take account of the fact that there are children. The amendment seeks, irrespective of the circumstances, to lengthen the minimum period in all cases, whatever the circumstances may be, to a minimum of 18 months.
Reference was made to the article in the Tablet by Cardinal Hume. Your Lordships will remember that one of the considerations that he mentioned specifically, as a factor tending to reduce the length of the period, arose where he was talking about considering whether the period should be extended. He said,
"Here again there are a number of factors to be considered, not least the effect of prolonged uncertainty on children".
That was an important factor in the Cardinal's approach to this matter. I have given effect to certain of his views in relation particularly to the hardship bar when I proposed to your Lordships, and your Lordships passed on Report, considerable relaxation in that respect.
This is a difficult issue. However, your Lordships are not wise, as a matter of principle and judgment, to distinguish—from the point of view of irretrievable breakdown—between marriages involving children and marriages that do not involve children so long as there are appropriate arrangements for taking account of the existence of children and seeing that they are properly regarded before the divorce is granted in any event.
We have had a full debate on these matters. I want simply to refer your Lordships to two letters that I received recently. One is from the National Society for the Prevention of Cruelty to Children. That is a society with considerable experience, recognised in public general statutes, in this area. The letter is dated 11th March and is from the director and chief executive of the National Society for the Prevention of Cruelty to Children. I think it only fair to read it to your Lordships. It states:
"I am writing to express the NSPCC's concern that amendments to the Family Law Bill may result in the lengthening of the period for reflection between initial application and the granting of a divorce from twelve to eighteen months. The NSPCC welcomes the legislation's intention of reducing family breakdown and saving marriages. The Bill will provide an invaluable opportunity to couples to consider their difficulties and of saving their relationship. This can only be good for the children. We recognise that all families are different and that decisions about how long a period of reflection should be allowed is always going to be controversial and difficult. We do however take the view that on balance a twelve month period is appropriate.
We believe that twelve months should be sufficient for a couple to decide whether or not the marriage can be saved. We know that the disruption caused by divorce can severely limit the parents capacity to parent their children".

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That is an important issue. The distraction from the responsibility of parenting is a point to which the NSPCC draws attention. The letter continues:
"In our view a longer period than twelve months would unnecessarily extend the period of uncertainty and insecurity for the child. A year is a very long time in the life of a child both developmentally and psychologically.
We would therefore strongly urge you"—
it is a letter to me—
"to retain the twelve month period for reflection and consideration before a divorce is granted."
I have also received a letter on the notepaper of the Children's Society, which is a voluntary society of the Church of England and the Church in Wales. It is signed by the senior director of Barnados, the chief executive of the Children's Society and the chief executive of NCH Action for Children. I should say that my wife happens to be a member of the Council of Barnados, but so far as I know she had no part whatever in the letter which will probably come as much of a surprise to her as it did to me. The letter states:
"Dear Lord Chancellor
We write to express our concern at the possibility of lengthening the Family Law Bill's twelve month 'period for reflection and consideration' between initial application and the granting of a divorce. We understand that an amendment to this effect will be debated in the House of Lords today: we believe that it would run counter to the interests of children if agreed.
Clearly, for a young child, a period of twelve months is a very substantial proportion of his or her life. In the circumstances of divorce, this will be a time of continuing and fundamental insecurity. We hope that those debating this issue will consider this point very seriously and not take steps to lengthen the period. The welfare of children will not be well served if the Bill is changed in this way.
The Children Act already draws attention to the damaging effect of delay in reaching decisions about children's upbringing and care. The same principle must apply in the context of separation and divorce".
I do not think I can add to the force of those views, which come from groups with tremendous experience in relation to children.
I want to make two other points. I should like to revert to what my noble and learned friend Lord Ackner said about the "Panorama" programme because it draws attention to a very important area of possible family breakdown. That occurs before there is any question of divorce arising. The desire for divorce may come out of that, but it arises at an early stage. I believe that the clause that has been put into the Bill to provide for research into these matters and for grants in respect of marriage support services will do a great deal to try to deal with these matters.
It often happens that the young couple at that stage do not realise their need for help. The sooner help comes, the more likely it is to be effective. One does not want matters to fester on to a divorce if it is possible to avoid that. I should like to emphasise that the Bill seeks to put that matter at the very heart of the consideration of family law in this circumstance—that support should not be related only to divorce hut should be much more generally available. Your
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Lordships have had figures of comparison. I believe those figures are important, and possibly over the years the balance will be changed.
The second point I want to make is that I am firmly of the view that marriage is at the very heart of our society. I believe that the Bill has an important part to play in protecting that position and in increasing the beneficial effect of the precious ordinance of marriage in our nation. I believe that the Bill is important for that reason.
The precise matter that has been focused on very much in the Bill in relation to children is the point about relations with both parents following on divorce. Your Lordships will have to consider very carefully whether prolonging the period of uncertainty, when the parents may well be in positions in which they are seeking to advance their own particular situation, one against the other, is likely to increase the chance of that all-important relationship. This is a difficult issue. My own fundamental idea is always to try to seek as much consensus as possible but I believe that seeking to attain consensus by accepting the amendment would be, from my point of view anyway, a betrayal of the interests which have been brought to my attention as fundamental for those children who are affected by the sad phenomenon of marital breakdown. Therefore, I invite your Lordships not to support the amendments, much as I admire and share the objectives with which they have been moved by my noble friend Lady Young and those who have supported her.
Baroness Young: My Lords, after two hours of debate, it is very difficult to do justice in replying to it. But I should like to start by thanking all those who have supported me. I am particularly grateful to my noble friend Lady Elles, the noble Lords, Lord Stoddart and Lord Stallard, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Jakobovits, who have walked this very long path together since Second Reading and throughout all the stages of the Bill.
There are others, too, to whom I am most grateful. If I do not reply to every point that has been made, I think your Lordships will be grateful because I am sure we do not want to stay here for much longer. I should also like to thank the noble Earl, Lord Russell. Kind remarks from those who do not agree with what you have to say are all the more sincere. I very much respect his point of view, as I know he respects mine. I thank him for what he has said. I am also particularly grateful to the right reverend Prelate the Bishop of Ripon, and to the noble and learned Lord, Lord Ackner, both of whom have entered into the debate for the first time and have given me their support.
I am deeply disappointed that my noble and learned friend the Lord Chancellor feels unable to accept this amendment which was offered in the spirit of compromise. In replying to his remarks, I start by thanking him for the many amendments he has made to the Bill for which I am deeply appreciative—I know many others are as well. Those are

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amendments covering children and the hardship bar and there are other amendments with which we shall be dealing later this evening. I shall be glad to comment on them in due course. But perhaps I may deal with the arguments he has put up against the acceptance of Amendments Nos. 3 and 5.
First, he said that he had consulted widely. He has done so. He has consulted a great many people. I recognise that the Bill is based on the work of the Law Commission. A White Paper has been produced, and we have had the views of lawyers and a great many experts in the field. We all have our own experiences, but I can only say to the House that in my entire political experience, which now, I regret to say, extends almost 50 years, since I was a Young Conservative—that is a long time ago—I have never had such support for anything as I have had for the stand I have taken in this case. It has been quite extraordinary, extending from people stopping me in the street to people in shops where I normally shop coming up to me and saying, "We have seen you on television and we so agree with what you have had to say". I have been astonished. I believe that by raising the issues we have raised in the House, we have tapped into a very deep feeling of great anxiety in society that marriage is breaking down and we must do more to buttress it.
I know that every statistician will say that personal example does not prove anything at all. Before someone says so, I shall accept their argument. But all of us in public life know when something we are doing is popular; we know even more rapidly when something we are doing is not popular. The experience that I have had has been quite extraordinary.
The noble and learned Lord quoted statistics about divorce, which I wrote down at the time. He said that 80 per cent. of divorces take place within a year or less. I do not see how that can be the same. I am looking at the table from which the noble and learned Lord quoted. As, in fact, 26 per cent. of divorces take between two and five years, I do not see how 80 per cent. can take less than a year. No doubt we can argue about these figures afterwards.
The Lord Chancellor: My Lords, there may be confusion about the time before the divorce process starts, which in the two to five year period is the same, and the actual period of time that the process itself takes.
Baroness Young: My Lords, I know that it is a very dangerous thing to start arguing about figures with a mathematician. Were my husband here he would tell me to stop at once, and that advice is probably very sound. We might discuss this matter afterwards. The fact is that I am not entirely satisfied that the figures are quite as stated.
The noble and learned Lord said that there are many opportunities in the Bill for the postponement of the actual divorce itself, and those are greatly to he welcomed. I do not in any way wish to cast doubt on them or to say that I am anything but very grateful to my noble and learned friend for introducing these
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amendments into the Bill. The fact is that we depend on the courts. One has some slight hesitation—I realise that it is very difficult to know exactly what to say—in putting much faith in how the courts determine these matters because, as we all know, different courts have different views.
My noble and learned friend concluded by reading out two letters, one from the NSPCC and the other from the Children's Society. I accept what they have to say and their sincerity. What I find most extraordinary about the letters from the societies is that in Scotland, where 60 per cent. of divorces take at least two years, and in Northern Ireland, where 73 per cent. of divorces take two years or more, we have no outcry about the damage being done to children. There is no move to shorten the length of time. If we look further afield into Europe we find that there is a much longer period before couples with children can get a divorce and where one spouse does not consent. Those countries are always being held up to us as having fewer divorces. We do not hear about damage to children.
This debate has turned on the issue of damage to the children. In public life one of the first questions one asks about any change in practice is whether we have any examples where that has happened, either in this country or abroad. One of the most extraordinary features of this debate has been the refusal to look at the facts of other countries where these matters are now happening. In the whole of the argument about fault, the evidence is overwhelming in the United States that it increases the number of divorces.
I return to the issue of children. The evidence is perfectly clear. In countries where there are lower divorce rates—something which I believe we all want—there is a longer period of time. I do not believe that there is any evidence that the children suffer more there. They are going to suffer wherever it is. They are the innocent victims in all of these matters. I ask your Lordships to look at the evidence of other countries and to ask: if it works there, why would it not work here?
As the noble and learned Lord, Lord Ackner, rightly said, this is not an enormous amendment. It is a compromise and an opportunity for people to think again. I met someone over the weekend who said that they had been separated for four years, but before the divorce had come through they had got together again. Is that not the sort of thing that we want to encourage? I appreciate the sadness and tragedy of which the noble Lord, Lord Marsh, spoke and I try to understand his feelings. But surely for all of us we must try to do all we can to encourage reconciliation, to buttress marriage, to support the fabric of society and to help the children who are the innocent victims of divorce.
I ask your Lordships to support me in this amendment, which will extend from one year to 18 months the period where a couple with children, or where one spouse does not want a divorce, have to wait and to leave the period at a year for couples without children where both are agreed. I wish to test the opinion of the House on this matter.
5.15 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided* Contents, 109; Not-Contents, 157.

Division No. 1

CONTENTS

Ackner, L.

Laing of Dunphail, L.

Ailesbury, M.

Lauderdale, E.

Archer of Weston-Super-Mare, L.

Longford, E.

Ashbourne, L.

McFarlane of Llandaff, B.

Bauer, L.

Marlesford, L.

Belhaven and Stenton, L.

Mason of Barnsley, L.

Blake, L.

Massereene and Ferrard, V.

Blaker, L.

Mersey, V.

Boardman, L.

Milner of Leeds, L.

Boyd-Carpenter, L.

Monckton of Brenchley, V.

Broadbridge, L.

Monk Bretton, L.

Brookes, L.

Monson, L.

Brougham and Vaux, L.

Monteagle of Brandon, L.

Carlisle of Bucklow, L.

Moore of Wolvercote, L.

Carnock, L.

Moran, L.

Clanwilliam, E.

Mowbray and Stourton, L.

Clark of Kempston, L.

Northbourne, L.

Cledwyn of Penrhos, L.

Norton, L.

Clifford of Chudleigh, L.

O'Cathain, B.

Coleraine, L.

Ogmore, L.

Craig of Radley, L.

Oliver of Aylmerton, L.

De Freyne, L.

Orr-Ewing, L.

Donaldson of Kingsbridge, L.

Pender, L.

Donegall, M.

Perth, E.

Drogheda, E.

Pike, B.

Dundee, E.

Pilkington of Oxenford, L.

Ellenborough, L.

Platt of Writtle, B.

Elles, B.

Plummer of St. Marylebone, L

Erroll, E

Porter of Luddenham, L.

Fill, L.

Prys-Davies, L.

Rankeillour, L.

Fraser of Kilmorack, L.

Reading, M.

Gage, V.

Rees, L.

Gainsborough, E.

Rees-Mogg, L.

Gardner of Parkes, B.

Ripon, Bp.

Greenhill of Harrow, L.

Rippon of Hexham, L.

Griffiths of Fforestfach, L.

Robertson of Oakridge, L.

Halifax, E.

Ryder of Warsaw, B.

Halsbury, E.

St. Davids, V.

Hamilton of Dalzell, L.

Saint Oswald, L.

Hanworth, V.

Saltoun of Abernethy, Ly.

Harding of Petherton, L.

Simon of Glaisdale, L.

Harris of High Cross, L.

Stallard,L. [Teller]

Harvington, L.

Stewartby, L.

Haslam, L.

Stoddart of Swindon, L.

Hayhoe, L.

Strange, B.

Hayter, L.

Swinfen, L.

Hemphill, L.

Tebbit, L.

Holderness, L.

Tollemache, L.

Hooper, B.

Trefgarne, L.

Howell, L.

Walton of Detchant, L.

Iddesleigh, E.

Wilberforce, L.

Jakobovits, L.

Williams of Crosby, B.

Kinloss, Ly.

Young, B. [Teller.]

Kintore, E.

NOT-CONTENTS

Aberdare, L.

Ampthill, L.

Acton, L.

Astor of Hever, L.

Addington, L.

Barnett, L.

Addison, V.

Beaumont of Whitley, L.

Ailsa, M.

Beloff, L.

Alexander of Tunis, E.

Blyth, L.

650

Borrie, L.

Lyell, L.

Brabazon of Tara, L.

McConnell, L.

Brentford, V.

McIntosh of Haringey, L.

Bridge of Harwich, L.

Brightman, L.

Mackay of Ardbrecknish, L.

Brigstocke, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Browne-Wilkinson, L.

Burnham,L.

Mackay of Drumadoon, L.

Butterworth, L.

Mackie of Benshie, L.

Cadman, L.

Mar and Kellie, E

Caithness, E

Campbell of Alloway, L.

Marsh, L.

Campbell of Croy, L.

Merrivale, L.

Carmichael of Kelvingrove, L.

Meston, L.

Carnegy of Lour, B.

Miller of Hendon, B.

Chalker of Wallasey, B.

Charteris of Amisfield, L

Milverton, L.

Chelmer, L.

Monkswell, L.

Chelmsford, V.

Mottistone, L.

Cockfield, L.

Munster, E

Coleridge, L.

Courtown, E.

Murray of Epping Forest, L.

Craigavon, V.

Murton of Lindisfarne, L.

Cranborne, V. [Lord Privy Seal.]

Nelson, E

Crickhowell, L.

Noel-Buxton, L.

Cuckney, L.

Northesk, E.

Cumberlege, B.

Oppenheim-Barnes, B.

Darcy (de Knayth), B.

David, B.

Oxford, Bp.

Dean of Harptree, L.

Park of Monmouth, B.

Derwent, L.

Peyton of Yeovil, L.

Desai, L.

Phillimore, L.

Dixon-Smith, L.

Donoughue, L.

Rawlings, B.

Dormand of Easington, L.

Rea, L.

Eden of Winton, L.

Reay, L.

Elliott of Morpeth, L.

Redesdale, L.

Elton, L.

Renton, L.

Ewing of Kirkford, L.

Faithfull, B.

Renwick, L.

Falkland, V.

Richard, L.

Farrington of Ribbleton, B.

Rodgers of Quarry Bank, L.

Ferrers, E.

Runcie, L.

Finsberg, L.

Freyberg, L.

Russell, E

Graham of Edmonton, L.

Samuel, V.

Gray of Contin, L.

Seear, B.

Habgood, L.

Selborne, E.

Hacking, L.

Sharples, B.

Hamwee, B.

Harmar-Nicholls, L

Shaughnessy, L.

Harris of Greenwich, L.

Shaw of Northstead, L.

Harrowby, E.

Shepherd, L.

Haskel, L.

Skelmersdale, L.

Healey, L.

Slim, V.

Henley, L.

Hilton of Eggardon, B.

Smith of Gilmorehill, B.

Hoffmann, L.

Stedman, B.

HolmPatrick, L.

Strathclyde, L. [Teller.]

Howe, E.

Strathcona and Mount Royal, L

Hylton, L.

Sudeley, L.

Hylton-Foster, B.

Ilchester, E.

Taylor of Blackburn, L.

Irvine of Lairg, L.

Teviot, L.

Jenkin of Roding, L.

Thomas of Gwydir, L.

Jenkins of Hillhead, L.

Thurlow, L.

Jenkins of Putney, L.

Tope, L.

Johnston of Rockport, L.

Kimball, L.

Tordoff, L.

Kinnoull, E.

Trumpington, B.

Knollys, V.

Turner of Camden, B.

Lawrence, L.

Ullswater, V.

Leigh, L.

Vinson, L.

Lindsay, E

Long, V. [Teller.]

Vivian, L.

Lucas, L.

Wallace of Saltaire, L.

651

Weatherill, L.

Wise, L.

Wilcox, B.

Wolfson, L.

Winston, L.

Wynford, L

*Listed names: Contents 108;
Not-Contents, 156. A Lord voted in both lobbies and is counted in the recorded figures.
Resolved in the negative, and amendment disagreed to accordingly.
5.25 p.m.
Clause 7 [Period for reflection and consideration]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page 4, line 19, after ("saved") insert ("and to have an opportunity to effect a reconciliation").
The noble and learned Lord said: My Lords, in Committee the noble and learned Lord, Lord Simon of Glaisdale, tabled a number of amendments which sought to change the name of the period for reflection and consideration to the period for reconciliation, reflection and consideration. I indicated at the time that I supported the spirit in which these amendments were tabled, but foresaw some problems in accepting them and said that I would consider them further.
I have reached the conclusion that it would be inadvisable to rename the period in the way suggested. As I said in debate, reconciliation is an outcome, not a process, and the period of reflection and consideration a means of reaching that outcome.
I understand, however, my noble and learned friend's concerns that, as he said at Report stage, the year period should be used for opportunities of reconciliation. It is for that reason that I have tabled this amendment, the effect of which is to place an additional statement of purpose into Clause 7(1), which provides that the period which must pass before an application for a divorce or separation order can be made is for the parties to have the opportunity to effect a reconciliation. I beg to move.
On Question, amendment agreed to.
[Amendment No. 5 not moved.]
The Lord Chancellor: My Lords, before I call Amendment No. 6, I should point out that if that amendment is agreed to, an effect will be had on Amendment No. 7.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 6:
Page 4, line 27, at end insert ("except where subsection (10) applies").
The noble Lord said: My Lords, in moving Amendment No. 6, I should like to speak also to Amendment No. 8. These amendments are intended to be a narrower substitute for the amendments numbered 31 and 43 which my noble friend Lady David was good enough to move on my behalf on 11th March, the third day of Report stage.
I support, in principle, Amendments Nos. 7 and 9 which stand in the names of the noble Earl, Lord Russell, and the noble Baroness, Lady Elles. The reason for my preference for Amendments Nos. 6 and 8, which stand in my name and that of my noble friend Lady David, is that because they are narrower and are
652
focused exclusively on the interests of the children of the marriage they are most likely to attract the support of your Lordships' House.
Amendment No. 8 is the substantive amendment, which seeks to insert a new subsection at page 5, line 11, which would read:
"On application by a person authorised by order of the Lord Chancellor the court shall have the power to abridge the period for reflection and consideration if (but only if) the requirements of section 2(1)"—
that should read "section 3(1)"; I am grateful to the noble Lord, Lord Robertson of Oakridge, for pointing that out to me—
"are satisfied and the court is satisfied that it is necessary in the interests of any relevant children of the marriage, having regard to section 1(2) of the Children Act 1989, to dissolve the marriage before such period has elapsed.
(11) Where the court decides to exercise its powers under subsection (10), it shall specify when the marriage is to be dissolved".
That amendment is narrower because, if carried, the earlier Amendment No. 43 would have given the court the power to abridge the period for reflection and consideration if the court was satisfied that it was necessary either in the interests of the parties or of any relevant children to dissolve the marriage before expiry of the year.
Amendment No. 8 gives the court a discretion to dissolve a marriage before expiry of a year, if, and only if, the court is satisfied that it is in the interests of any relevant children of the marriage to do so. No such discretion is given under the amendment to dissolve a marriage before the expiry of the year in the interests of the parties.
The amendment therefore puts the interests of the children centre stage, and gives the court an exceptional jurisdiction to dissolve a marriage prior to the expiry of the year where that is necessary in the interests of the children of the marriage.
I know that the noble and learned Lord has before expressed the opinion that a year for reflection and consideration is the minimum period necessary to demonstrate that a marriage has irretrievably broken down. I accept that as a general principle, but it should be capable of exception. I agree with the noble Earl, Lord Russell, when he said on 4th March that there are limits to the extent to which one single legal principle may fit every individual case.
I agree with the noble Earl too that there are cases in which it is vital in the interests of the children for the marriage to be dissolved before the expiry of the year. I was heartened to read the qualified support that the noble Baroness, Lady Young, who sadly is not in her place for the amendment, felt able to give my noble friend Lady David on Report when she said:
"I can just see that there may be very limited cases where that might be necessary".—[Official Report, 4/3/96; col. 15.]
I appreciate that, on that occasion, the noble Baroness expressed her concern that any exception to the requirement of one year might open what she feared might be a floodgate. It is in recognition of her concern that I have drafted the amendment so narrowly.
First, the power to be vested in the court would not be exercised on the application of either of the parties to the marriage. An application could be made only by a person authorised by order of the Lord Chancellor. I have in mind court welfare officers or perhaps a guardian ad litem. Such a person would apply only where he or she thought that a court should be given the opportunity to decide whether an earlier dissolution was necessary in the interests of any relevant children of the marriage.
The noble and learned Lord the Lord Chancellor will, I imagine, confirm that the word "necessary" signifies a very high threshold that would have to be surmounted before the subsection could be invoked. "Necessary" means that which is indispensable; that which cannot be done without. It is the toughest of tests to satisfy. I know that the noble and learned Lord is of the opinion that the law should send out a clear signal that marriage is an important relationship and a year is required before it can be dissolved once one or both of the parties has initiated the necessary procedure.
I do not, however, believe that the amendment conflicts with that principle, because application may be made only by a person authorised by order of the Lord Chancellor, and not the parties, and because the discretion is so narrow. When we have regard to the paramount interest of the welfare of the children of a marriage, to which the noble Baroness, Lady Young, called attention in moving her previous amendments, I do not see why the court should be deprived of a discretion to dissolve a marriage prior to the expiry of the year where the court is satisfied that early dissolution is necessary in the interests of the children.
The amendment is designed to put children first, and it is the children who are so often the casualties of marital breakdown. I beg to move.
The Lord Chancellor: My Lords, since the noble Lord has referred to Amendment No. 8, I would draw attention not merely to the correction that he made expressly, but also point out that he read the amendment as if it said:
"relevant children of the marriage".
There is a misprint in the amendment as printed. What the noble Lord read out is what the amendment should be. I did not mention that earlier, because Amendment No. 8 has not been called formally, but as it forms part of the argument it is right that I should do so now.
Earl Russell: My Lords, I give my support to the amendment moved by the noble Lord, Lord Irvine of Lairg. I agree with pretty well everything that he said. This is a tightly drafted pair of amendments. They deal with cases which are, truly, in anyone's view, exceptional. I would like to speak also to Amendments Nos. 7 and 9 which are in my name and that of the noble Baroness, Lady Elles.
We had a particularly good debate on these issues on Report. The two amendments to which I wish to speak arise from that debate and are designed, so far as I can, to meet it. There was a general agreement in the House
654
on Report that we wanted there to be some cases where it was necessary, for reasons of physical safety, for there to be an abridgement of the one-year period. But the view was also strongly expressed—I listened to it—that that should not be drafted in any way which would open the floodgates to a much more general use of a limited period; that this was to be, it was felt, a provision simply for safety—a safety valve in the most literal sense of the phrase.
The amendments in my name and that of the noble Baroness, Lady Elles, are designed to achieve precisely that objective. First, they are confined to allowing the court to abridge the one-year period in cases of domestic violence only. Those situations are—thank God!—exceptional, but they can be very acute. But that is not the only restriction.
The second restriction in Amendment No. 9 is that the abridgement is possible only in cases involving the fear of significant physical harm to one of the parties or any relevant child. There is no loophole here for mental harm. That can be acute, but it is something which is very much harder to define than physical harm. So the restriction to physical harm is meant to meet the requirement that the amendment should be tight. I believe that it does so.
The next restriction is that it should apply only to cases where it appears to the court that the provisions of Part IV—that is what was once the Family Homes and Domestic Violence Bill—will not guarantee sufficient protection or access to safe accommodation.
The insertion of that provision is not meant in the least degree to diminish my gratitude to the noble and learned Lord the Lord Chancellor for all he has done in promoting Part IV. It is truly a valuable measure, but there are some men who are so ruthlessly determined to reclaim their property that practically none of these provisions seems to stand up against them. We have had murders committed by former partners inside women's refuges. If those are not safe, I do not know what on earth is.
In those cases usually the only way a women can achieve safety is by living in some different part of the country, changing her name, and probably changing her hairstyle as well. In those circumstances, there may be safety, but the ability to conceal completely what her whereabouts may be cannot be achieved while negotiations for divorce are still in progress. Where there are negotiations for a divorce, there must be correspondence with lawyers. It is not understood as widely as it should be, but in cases involving acute domestic violence, the withholding of information from the threatening party can be absolutely vital. I have known such information obtained in the most devious of ways from the most unsuspecting, innocent, and public spirited people. For that reason I believe that it is essential that in cases where life may he at stake it is better to allow an abridgement of the period of reflection and consideration than it is to force the noble and learned Lord, Lord Taylor of Gosforth, to further careful consideration of the law of provocation, no doubt at great expense to the Legal Aid Fund however well he would undoubtedly do it.

655
I hope that the amendments will meet with the approval of the House. I am extremely happy with the amendments moved by the noble Lord, Lord Irvine of Lairg. I shall listen most carefully to the noble and learned Lord on the Woolsack to see whether there is a different way in which the objective can be achieved. I hope that one way or another some safety valve will be left.
Baroness Elles: My Lords, I support the amendment tabled by the noble Earl, Lord Russell, as a consequence of a debate during the Report stage. I appreciate the rigidity with which my noble and learned friend sticks to a minimum of a year. However, there must be a slight dent in that as regards exceptional cases. The noble Earl convinced me that there may he a case in which the court, without the amendment, will be deprived of taking action where a child or the other party to the marriage could be seriously harmed or murdered.
Reference has been made to such cases. My noble and learned friend will remember the debates that we had in relation to the Child Support Act. Many noble Lords from all sides were concerned that the party to the marriage who was due to pay maintenance would seek out and threaten violence to the other party or to the child. Therefore, the phenomenon is well-known and has not been fished out of the minds of noble Lords. I hope that my noble and learned friend will take seriously Amendment No. 9. It is most tightly drafted and can he used only in a limited number of cases.
Lord Robertson of Oakridge: My Lords, I appreciate the objectives behind the amendments, but I would caution your Lordships about agreeing to any exceptions to the basic rule. If we do so, we may see defences that are holed before they start. We should view the amendments with great caution.
5.45 p.m.
The Lord Chancellor: My Lords, I appreciate the spirit behind these amendments and the fact that they have been tightly drawn. I agree that the word "necessary" used in Amendment No. 8 is a strong requirement. Indeed, it is difficult to imagine what stronger requirement could be placed upon it. I also understand that the application is to be made by a person authorised by order of the Lord Chancellor. However, I urge your Lordships to be careful about reducing the period of one year. That is the period required between the date on which the statement becomes effective and the date on which an order of divorce can first be granted.
As your Lordships will know—I and one or two others have said so often enough—the purpose of that is to provide convincing proof that the breakdown of the marriage is irretrievable. The period is intended to provide a realistic time for the parties to decide whether they can he reconciled and their marriage saved and, if not, to resolve the practical problems relating to marital breakdown.
The amendments would have the effect of introducing powers of abridgement to the period where a court was satisfied that to do so would he necessary in the interests
656
of any children involved or that failure to do so would result in physical harm. I appreciate the narrowness with which the amendment is drawn, signified by the fact that, as the noble Earl mentioned, it is restricted to "significant physical harm". That is a tight description.
However, the other provisions of the Bill, in particular those in Part IV, are designed to deal with such a situation. I feel strongly that if one has a period required to demonstrate the irretrievable breakdown of the marriage, in principle that period should not be capable of abridgement. Unless and until the marriage has irretrievably broken down, it cannot be right to grant a decree of divorce, whatever else one may do by way of protective orders and so forth.
I shall be happy to see whether we can make improvements to the protective orders. However, as was pointed out by my noble friend Lady Elles, even after divorce there may well be obligations of maintenance. Merely granting a decree of divorce does not necessarily end the need for some kind of correspondence or exchange between, say, the father and someone representing the mother. Even divorce does not undercut that completely in every case. Therefore, while I appreciate the reason behind the proposal, I do not see that it is an effective way of providing a particular type of relief. To overcome the difficulty of, for example, the inadvertent disclosure of addresses and so forth, we have to take steps to prevent that happening and to tighten up the arrangements and so forth.
Earl Russell: My Lords, before relying on measures to discourage the disclosure of addresses, would the noble and learned Lord take the advice of his honourable friends Mr. Burt and Mr. Mitchell who have done their level best to achieve this?
The Lord Chancellor: My Lords, I am happy to receive advice on this matter from whatever quarter, especially if it happens to be helpful. I understand the difficulty, but the noble Earl is saying that granting a decree of divorce early is not likely to effect what has eluded Mr. Burt and Mr. Mitchell. The noble Earl is, in effect, claiming for this order that the labours of Mr. Burt and Mr. Mitchell are suddenly to come to a good end because we have discovered that a way of handling the whole situation is to grant a divorce early. The problem is that these matters do and can subsist after the granting of a divorce. I am anxious to provide in law as good a protection for the parties and the children as is possible but, for the reasons that I have explained, I am not at all keen to do that to the damage of the effective need for a period of a year to demonstrate that the marriage has irretrievably broken down. All the protection of Part IV is available whether or not a divorce proceeding is in place. Of course, it continues to be available when a divorce proceeding is in place and after a divorce order is granted. There is nothing in the present Bill which will prevent courts making any of these orders in respect of children under the Children Act during the period for reflection. As your Lordships know, the Bill gives an extra power in that respect in the removal of the abuser from the home in some circumstances.

657
I submit that a power to abridge is inconsistent with the principal aim of the one-year period, which is to establish beyond doubt that the breakdown of the marriage is irretrievable. In my submission, it is an unabridgeable period, making a clear and absolute statement about the importance of marriage and its obligations and of parenthood. It is on that basis that I sought to deal with the earlier amendments.
I believe that introducing extensions of any kind to that rule will weaken the way in which the period is perceived. After all, where one party is anxious for a quick divorce, such a provision could well lead to allegations being made against the other party in order to show that a quick divorce would be fair and just and there may be a consequent increase in hostility, bitterness and trauma for the children.
Baroness Elles: My Lords, my noble and learned friend spoke about the protection of children. Will he assure me that, for example, a mother who wishes to take her child out of the jurisdiction will be free to do so in order to escape the activities of her partner?
The Lord Chancellor: My Lords, it would be within the power of the court in some circumstances to allow that to happen. It would be a matter for the court to decide. I have the provisions of the Children Act reasonably well in mind and my impression is that where it is necessary and the court is prepared to grant such an order, then that will be possible. Of course, very strong undertakings are required in relation to the jurisdiction of the court because, as my noble friend knows only too well, once the child is out of the jurisdiction of the court in some situations the court loses all control. That may not always be for the benefit of the child. Therefore, it would have to be a very extreme case, but it would be possible.
I mentioned previously—and it was referred to again—that hard cases make bad law. I stand by that remark and remain firmly of the opinion that we need a principle which emphasises the importance of a year as a test of whether a ground for dissolution exists. I remain unconvinced that the existence of particularly difficult circumstances should alter our adherence to that principle. I do not wish to make any exceptions to the requirement that parties may apply for a divorce only after a 12-month period for reflection and consideration and, indeed, when the parties have been married for at least two years.
The Government wish to have a definite period which is clear and unequivocal for everyone, without any exceptions. If it were impossible to meet the problems raised except in this way, I should think the matter worthy of consideration. But the explanations of the noble Lord and the intervention of the noble Earl, Lord Russell, show that such problems may well subsist even where an order of divorce has been granted. I am anxious to protect children but I do not feel that this is the wisest way in which to do so in the context of this Bill.
Lord Irvine of Lairg: My Lords, I do not believe that the law should be so rigid as to deny the courts that
658
exceptional jurisdiction which, in the case of Amendments Nos. 6 and 8, would be exercised solely in the interests of the children.
With respect to the noble and learned Lord on the Woolsack, his last argument, that the amendments could lead to abuse by the parties, ignores the fact that the amendments provide that only an independent person authorised by him may apply to the court in the interests of the children. Therefore, I desire to test the opinion of the House.
5.54 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 128.

Division No. 2

CONTENTS

Holme of Cheltenham, L.

Addington, L.

Irvine of Lairg, L.

Barnett, L.

McIntosh of Haringey, L.

Borrie, L.

Mackie of Benshie, L.

Carmichael of Kelvingrove, L.

McNally, L.

Darcy (de Knayth), B.

Mar and Kellie, E

David, B.

Meston, L.

Donoughue, L.

Mishcon, L.

Dormand of Easington, L.

Monkswell, L.

Ewing of Kirkford, L.

Ogmore, L.

Falkland, V.

Rea, L.

Farrington of Ribbleton, B.

Richard, L.

Russell, E [Teller.]

Fitt, L.

Seear, B.

Gladwin of Clee, L.

Strabolgi, L.

Graham of Edmonton, L. [Teller.]

Taylor of Blackburn, L.

Halsbury, E

Tope, L.

Hamwee, B.

Turner of Camden, B.

Harris of Greenwich, L.

Wallace of Saltaire, L.

Haskel, L.

Williams of Elvel, L.

Hilton of Eggardon, B.

Winston, L.

NOT-CONTENTS

Addison, V.

Courtown, E.

Ailsa, M.

Craig of Radley, L.

Archer of Weston-Super-Mare, L.

Cranborne, V. [Lord Privy Seal.]

Astor of Hever, L.

Crickhowell, L.

Belhaven and Stenton, L.

Cuckney, L.

Blaker, L.

Cumberlege, B.

Blatch, B.

Dean of Harptree, L.

Boardman, L.

Dixon-Smith, L.

Boyd-Carpenter, L.

Donegall, M.

Brabazon of Tara, L.

Eden of Winton, L

Brentford, V.

Ellenborough, L.

Brookes, L.

Elton, L.

Brougham and Vaux, L.

Faithfull, B.

Burnham, L.

Ferrers, E.

Cadman, L.

Finsberg, L.

Caithness, E

Gardner of Parkes, B.

Carlisle of Bucklow, L.

Gray of Contin, L.

Carnegy of Lour, B.

Habgood, L.

Carnock, L.

Hacking, L.

Chalker of Wallasey, B.

Harding of Petherton, L.

Charteris of Amisfield, L.

Harmar-Nicholls, L.

Chelmsford, V.

Harrowby, E.

Clark of Kempston, L.

Haslam, L.

Cocks of Hartcliffe, L.

Hayhoe, L.

Coleraine, L.

Henley, L.

Coleridge, L.

Holderness, L.

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HolmPatrick, L.

Orkney, E.

Hooper, B.

Orr-Ewing, L.

Howe, E.

Oxford, Bp.

Hylton, L.

Park of Monmouth, B.

Hylton-Foster, B.

Parkinson, L.

Jeffreys, L.

Perth, E.

Kimball, L.

Peyton of Yeovil, L.

Kinloss, Ly.

Pilkington of Oxenford, L.

Kinnoull, E.

Platt of Writtle, B.

Lauderdale, E.

Plummer of St. Marylebone, L.

Layton, L.

Rankeillour, L.

Leigh, L.

Rawlings, B.

Lindsay, E.

Reay, L.

Liverpool, E.

Rees, L.

Long, V. [Teller.]

Renton, L.

Lucas, L. [Teller.]

Renwick, L.

Lyell, L.

Robertson of Oakridge, L.

Mackay of Ardbrecknish, L

St. Davids, V.

Mackay of Clashfern, L.

Saltoun of Abernethy, Ly.

(Lord Chancellor)

Shaw of Northstead, L.

Mackay of Drumadoon, L.

Shrewsbury, E.

Marlesford, L.

Simon of Glaisdale, L.

Marsh, L.

Skelmersdale, L.

Merrivale, L.

Stewartby, L.

Mersey, V.

Strange, B.

Miller of Hendon, B.

Strathclyde, L.

Milverton, L.

Strathcona and Mount Royal, L

Monteagle of Brandon, L.

Sudeley, L.

Moran, L.

Swinfen, L.

Mottistone, L.

Thomas of Gwydir, L.

Mowbray and Stourton, L.

Trefgarne, L.

Munster, E.

Trumpington, B.

Murton of Lindisfarne, L.

Ullswater, V.

Nelson, E.

Vinson, L.

Northbourne, L.

Vivian, L.

Northesk, E.

Wilcox, B.

O'Cathain, B.

Wyatt of Weeford, L.

Oppenheim-Barnes, B.

Wynford, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.2 p.m.
[Amendments Nos. 7 to 9 not moved.]
Clause 8 [Attendance at information meetings]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 10:
Page 5, line 35, at end insert—
("( ) Regulations made under subsection (5) must, in particular, make provision with respect to the giving of information about—

(a) marriage counselling and other marriage support services;

(b) the importance to be attached to the welfare, wishes and feelings of children;

(c) how the parties may acquire a better understanding of the ways in which children can be helped to cope with the breakdown of a marriage;

(d) the nature of the financial questions that may arise on divorce or separation, and services which are available to help the parties;

(e) mediation;

(f) the availability to each of the parties of independent legal advice;

(g) the divorce and separation process.

( ) Before making any regulations under subsection (5), the Lord Chancellor must consult such persons concerned with the provision of relevant information as he considers appropriate.").
The noble and learned Lord said: My Lords, the above amendment arises out of the earlier debates in which a number of your Lordships queried what kind of information the information meeting is designed to include. I have explained that it would not be wise to be too prescriptive on the face of the Bill regarding the content of the information meeting as this is a matter we wish to pilot extensively to ensure that we find a format and content which best meets the needs of couples at a very difficult and distressing time in their lives.
However, in the light of the debates that we have had, I have felt it right to bring forward such an amendment in which I have sought to achieve a balance between maintaining the flexibility that we need to ensure that the system works effectively into the future and giving your Lordships a clear indication as to the type of information which we intend to include and which, if I have understood noble Lords correctly, they most wish to see given. The list of information to be included is not intended to be exhaustive and the regulations could provide for other information if that was thought necessary following the pilot.
I intend to review the regulation-making power to ensure that regulations will be able to address the issue of those organisations and services about which it would be appropriate to provide information as a number of your Lordships have expressed concern that there should not be an obligation to provide information about any service regardless of its motives or standards of service. That is a sentiment with which I fully agree. I have also, in response to an amendment from the right reverend Prelate the Bishop of Oxford, specified on the face of the Bill that there will be consultation in framing the regulations which will support the information meetings.
I hope that my noble and learned friend Lord Simon of Glaisdale, whom I believe would prefer that such a commitment to consultation was not given on the face of the statute, will be able to accept that part of the amendment because of the pressure for it from some others. My noble and learned friend's point of view is that I would, in any case, certainly do it; but I believe it is comforting to have it on the face of the statute.
In formulating regulations which are likely to rely extensively on a practical testing of a number of models of information giving, I believe it is right to make clear that this is an exercise in which the expertise of those involved in the field will be sought. I believe that noble Lords know from what I said earlier that I attach a great deal of importance to the information meeting, not only as regards its content but also as regards ensuring that such information is given effectively so that people know what is available to them in the way of assistance.
I have also emphasised that I should wish for assistance to be available earlier than that in those areas where it seems to be wise to have it—indeed, we have already discussed that aspect—but these are

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the regulations intended to deal with the situation where people first come into contact with a process of a legal kind to seek dissolution of a marriage. I beg to move.
The Lord Bishop of Oxford: My Lords, I thank the noble and learned Lord the Lord Chancellor for bringing forward the amendment. I know that a wide range of marriage support organisations will be most grateful for the fact that the regulations will now include a reference to,
"marriage counselling and other marriage support services",
and also for the fact that there is now a requirement for the Lord Chancellor to consult. I believe that that is a way in which the services offered can be kept properly under review and also ensure that only properly authorised and trained people from properly authorised organisations will be able to offer their services. I am most grateful to the noble and learned Lord.
Baroness David: My Lords, I, too, should like to thank the noble and learned Lord for introducing the amendment, which I believe is partly in response to Amendment No. 75 which I tabled on Report. On that occasion the noble and learned Lord said that he would bring forward an amendment on Third Reading. I am very pleased to see the paragraph which incorporates,
"the importance to be attached the welfare, wishes and feelings of children",
in the amendment. I know that the children's organisations will also be very pleased to see the amendment.
Baroness Elles: My Lords, I should like to join the noble Baroness, Lady David, in welcoming the amendment. I also thank my noble and learned friend for paragraph (b) as regards the,
"welfare, wishes and feelings of children".
That issue was debated during earlier stages of the Bill. We are most grateful for the fact that my noble and learned friend has recognised the importance of that particular aspect of the problem.
The Earl of Perth: My Lords, I, too, thank the noble and learned Lord for tabling the amendment. I do so especially because I see that,
"marriage counselling and other marriage support services",
arc set out in paragraph (a) in the list of requirements.
Lord Elton: My Lords, I should like to join in the chorus of welcome for the amendment. However, can my noble and learned friend the Lord Chancellor give me reassurance in one particular? Whenever we introduce a catalogue or criteria or contents into a subsection of a Bill, we are reminded of the legal dictum, expressio unius est exclusion alterius— the inference being that paragraphs (a) to (g) are really very important and that nothing else much matters. That is advanced if one puts forward a package amendment, given that the words "in particular" are
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mentioned in the prolegomenon, if that is what it is, of the subsection. I merely ask my noble and learned friend whether, on reflection, he feels that this shuts the door on anything else. Might he, perhaps, put in something a little stronger than "in particular" in case changing circumstances make it desirable for a further item—for example, under paragraph (h)—to be included?
Baroness Seear: My Lords, the fact that we have nothing to say from these Benches does not mean that we do not entirely agree with it; because we do.
Lord Stoddart of Swindon: My Lords, the amendment refers to "Regulations". I am not quite sure whether those regulations will be brought forward by negative or affirmative orders. Can the noble and learned Lord clarify the situation?
The Lord Chancellor: My Lords, I believe that I am right in saying that the Delegated Powers Scrutiny Committee suggested only one change in connection with the period where it was thought that an affirmative resolution procedure was appropriate. My noble and learned friend Lord Simon of Glaisdale took up the matter and I have given effect to that, but, obviously, I would want to consult pretty widely. I hope that your Lordships will have no reason to invoke any kind of procedure against regulations that I would make under that head.
I am extremely grateful for the support this measure has received. I do not think I have taken the point against a Back Bench amendment to which my noble friend Lord Elton referred. In the context of an amendment such as this, I do not think that would be a good point. Therefore, I hope I would not take it. This amendment seems to me to be perfectly adequate to allow for measures other than those listed here. The phrase,
"the importance to be attached to the welfare, wishes and feelings of children",
strikes me as an extremely effective way of raising these issues. We have considered various amendments during the period that the Bill has been before us. I am glad that the noble Baroness, Lady David, and my noble friends Lady Elles and Lady Faithful] and many others who have taken an interest in this aspect of the matter feel that this measure is effective.
I believe that we can make available effective information and that may be better than instituting formal legal requirements in the context of the Bill. I am also glad that marriage counselling and other marriage support services head this list of measures. My noble friend Lady Young has previously expressed concern about precisely what is covered. The fact that we have referred to marriage counselling and marriage support services at the head of the list of measures should underline the fact that they are covered. I am grateful to your Lordships for the support which has been given to this amendment.
On Question, amendment agreed to.
Clause 9 [Arrangements for the future]:
6.15 p.m.
Lord Meston Lord Meston moved Amendment No. 11:
Page 6, line 10, at end insert—
("(2A) If the parties—

(a) were married to each other in accordance with usages of a kind mentioned in section 26(1) of the Marriage Act 1949 (marriages which may be solemnized on authority of superintendent registrar's certificate), and

(b) are required to co-operate if the marriage is to be dissolved in accordance with those usages,

the court may, on the application of either party, direct that there must also be produced to the court a declaration by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages.
(2B) A direction under subsection (2A)—

(a) may be given only if the court is satisfied that in all the circumstances of the case it is just and reasonable to give it; and

(b) may be revoked by the court at any time.").

The noble Lord said: My Lords, the purpose of this amendment is to provide a mechanism whereby those who were married in accordance with the usages of a kind mentioned in Section 26 of the Marriage Act 1949, and who are required to co-operate in accordance with such usages in obtaining a divorce, can apply for a direction that they should have a declaration that they have taken all necessary steps to dissolve the marriage according to those usages. This is designed to meet the particular problem raised at earlier stages of the Bill of the marriage which, although capable of being dissolved in civil law, cannot be dissolved under the system of religious law under which the parties married because that religious divorce depends on the co-operation of the parties which may not be forthcoming.
It is a particular problem in the case of Jewish marriages for which the bill of divorcement, known as a get, is a consensual procedure, but one which has to he instigated by the husband. A stubborn husband can use his power to effect a religious divorce as an improper bargaining tool in negotiations relating to financial matters or to the children. Or, out of mere spite, he can withhold the religious divorce altogether so preventing the observant wife from remarrying according to her religion, causing the original marriage to limp on, dissolved in civil law but without a religious dissolution. This has long been recognised as a significant injustice and one which various other jurisdictions have already addressed by legislation.
Earlier in the course of debates on the Bill, it was thought that this matter could be dealt with under the hardship bar, although to do so would have depended on rather artificially deeming the situation described as a hardship deriving from the divorce. It seems better to allow the parties and the court to deal with the question at the stage when they are to satisfy the court that they have made appropriate arrangements for their future—that is, under Clause 9 as it now stands. It is to be hoped that the proposed procedure will, by its very presence in the legislation, limit the need for it to be invoked in all hut a few cases. It will be a procedure which requires an application to the court, and a direction by the court if the court is satisfied that it is just and reasonable. It also provides for a power of revocation in the court.
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There can in practice be even fewer cases in which the power of revocation might be invoked, but it is a safeguard.
I should add that the policy behind this amendment is not in any way the secular enforcement of a religious procedure, even though English law expressly provides recognition of Jewish and other religious divorces, but rather the prevention of abuse of the contractual release required particularly under Jewish law. Such abuse can affect the negotiating position of the wife, as well as her right to remarry. The policy which I have mentioned is consistent with other policies in civil law which try to end limping marriages and try to facilitate a clean break where practicable. It is also consistent with the requirement of Section 49 of the Supreme Court Act 1981 to secure, so far as possible, that all matters in dispute between the parties are completely determined. Finally, I suggest that it will facilitate remarriage and the recognition within the community concerned of any second family.
I am grateful for the assistance of those advising the noble and learned Lord the Lord Chancellor in the drafting of this amendment and I am grateful to the noble and learned Lord himself for pointing out the various pitfalls and problems in earlier amendments. Despite that help, I should emphasise that in no sense is this a government amendment, but nevertheless I hope that it is an amendment which will find support from all parts of the House. I beg to move.
Lord Jakobovits: My Lords, there is no need to rehearse once again the considerations leading to the presentation of this amendment which was so splendidly put before us by the noble Lord, Lord Meston. I would merely want to add two remarks on the significance of this amendment, which I hope will be accepted.
First, I dare say that of all the new clauses and new amendments now introduced into this Bill none will have more immediate significance as a source of relief to those affected than this particular amendment. It would mean, possibly, that they would not have to remain in a state of suspension, neither married under the previous marriage which has ended in a civil divorce, nor being able to contract a new one because of the commitments entered into at the time of the original bond between them. Therefore the amendment will come as an enormous relief to those in our community, and far beyond. In many foreign countries people have constantly watched the progress of this amendment with a view, possibly, to adopting it to resolve what has proved to be an agonising problem caused by the exploitation of one party. Usually it is the wife who is held to ransom by the husband but this can occur the opposite way around. I hail with profound appreciation on behalf of a grateful community all those who have contributed to this historic amendment. I hope that it will be passed and will be confirmed in another place.
Secondly, on most matters of policy there are deep divisions within the Jewish community. This is the one item on which all sections of our community are united, whether they be reform, liberal, orthodox or conservative. They are all united in supporting this

665
measure. If there has been a degree of opposition or questioning, it was solely by individuals who spoke for themselves—and said so—and who were concerned partly with matters of principle to them, but in greater measure with presentation of the problem which did not always reflect the complete realities of the situation.
Therefore, I join the noble Lord, Lord Meston, in expressing profound and abiding appreciation, above all to the noble and learned Lord the Lord Chancellor for his immense help and counsel in making the presentation of the amendment possible, and to the noble Lord, Lord Mishcon, who has been uniquely helpful. To use the Hebrew phrase, last but not least, I should like to thank the presenter of the amendment, the noble Lord, Lord Meston.
The Lord Chancellor: My Lords, your Lordships have heard a full explanation of the amendment. I have nothing to add to it. It is for your Lordships to decide whether the amendment should be passed. As the noble Lord, Lord Meston, explained, it is a matter that concerns primarily the problem to which he addressed himself. The technicalities have been dealt with fully in the amendment.
On Question, amendment agreed to.
Clause 10 [Hardship: orders preventing divorce]:
Baroness Young Baroness Young moved Amendment No. 12:
Page 6, line 27, leave out subsection (2) and insert—
("(2) Such an order (an "order preventing divorce") may be made if the court is satisfied that to grant a divorce order would be—

(a) unjust to the other party; or

(b) contrary to the interests of any child of the family.").

The noble Baroness said: My Lords, the amendment concerns what is known as the hardship bar. I appreciate that the situation under the Bill as presently drafted is a great improvement on the present situation. At present the hardship bar applies only in the case of a five-year separation without consent and would prevent a divorce application where there would be grave financial or other hardship. As only 6 per cent. of divorces at present are on the basis of a five-year separation, in 25 years the hardship bar has been accepted only once, based on grave hardship.
Therefore, it is a great improvement that the Bill extends the hardship bar to all divorces and that my noble and learned friend the Lord Chancellor has amended the wording to "substantial financial or other hardship"; the hardship bar is also extended to include consideration of the children as well as the spouse who does not want a divorce. At the beginning of my remarks I should like to acknowledge that fact. Those are welcome improvements to the hardship bar.
However, when we debated the matter previously I expressed my anxiety that the hardship bar, even with those changes, might not be used in the future. Therefore, even if it is improved, if it is not used it will have little effect. I have been further advised that the amendments, valuable though they are, will not make much difference in practice to the operation of the
666
hardship bar. Many of the people who have advised me have said that the changes are simply cosmetic and that the definition of hardship is not strong enough.
It is important to bear in mind the inherent problems with the hardship bar. The hardship bar only prevents the present application going through. Under Clause 10(5) it is possible for the court to impose conditions which must be satisfied before the bar on divorce is lifted. At the end of the day, the hardship bar is essentially a temporary bar. The previous bar failed because of the interpretation of the word "grave" by judges. Unless the hardship bar is absolutely clear—whether the word is "grave" or "substantial"—the same will happen again.
As we have said, divorce can lead to severe hardship for one spouse. No-fault divorce—which we now have—will mean that it will be impossible to defend or prevent a divorce. Divorce normally has serious economic and health consequences for both parties. We know that the existing bar is completely ineffective. I am therefore very anxious to see a strengthened hardship bar which will force people to face their responsibilities, both to their spouse and to their children. After all, a wife may have given up her entire career for the sake of bringing up children, and a financial settlement following a divorce would not be adequate compensation.
I put down the amendment because I am advised that it would strengthen the hardship bar. I do not in any way wish to undermine it. Far from it. When we have discussed the matter all of your Lordships have seen the value of the bar. Clause 10 is entitled "Hardship: orders preventing divorce". I understand that it is to be seen as a longstop, which is very valuable. However, it is of no value to anybody if it does not work. I have been advised that, valuable though the changes are, if they will not work, they are not of value. Many lawyers feel that the clause as it stands will suffer the same fate as the clause in the 1969 Act. The amendment is designed to strengthen the hardship bar. I beg to move.
Lord Ashbourne: My Lords, I rise to support my noble friend Lady Young, who moved the amendment so effectively.
The problem that the amendment addresses is that the press have unhelpfully characterised the amendments of the noble and learned Lord on the Woolsack as giving children a veto over their parents' divorce. In fact, far from doing that, the noble and learned Lord's amendments are likely to make little difference in practice. A number of lawyers have described the changes as cosmetic, as my noble friend said. The definition of hardship is neither strong enough nor precise enough.
It is important to bear in mind the inherent problems with the hardship bar; namely, that it only prevents the present application going through. Under Clause 10(5) it is possible for the court to impose conditions which must be satisfied before the bar on divorce is lifted. But the hardship bar is essentially temporary in nature, and under the present law it has failed because of the interpretations judges have given to the word "grave". Unless the hardship bar is crystal clear and quite unambiguous the same will happen again with this Bill.

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It is therefore important that the hardship bar is strengthened as the introduction of no-fault, or no-reason, divorce will mean that it will be impossible to defend or prevent a divorce.
Furthermore, divorce can lead to severe hardship for one spouse, and normally has serious economic and health consequences for both parties. The existing bar has proved completely ineffective, and a strengthened hardship bar will force couples to face their responsibilities both to their spouse and to their children.
For all those reasons I urge the House to support the amendment.
Lord Meston: My Lords, I have considerable concerns about the amendment. I understand the point of view that the hardship bar, even in its modified form following earlier amendments to the Bill, may not be strong enough. However, I have little doubt that the amendment, if enacted, would open up the floodgates, to the benefit of the lawyers and to no great benefit to the parties to the marriage.
At an earlier stage in the Bill, the noble and learned Lord, Lord Simon of Glaisdale, questioned the justiciability of the concept of the irretrievable breakdown of marriage. In the context of the amendment, I would question the justiciability of the various concepts which a court would be required to consider in any litigation under the amendment: as regards whether a marriage had irretrievably broken down and whether it was unjust to grant a divorce or contrary to the interests of any child of the marriage.
As the clause stands, unamended, substantial hardship is an issue with which the court could grapple. But I question whether it is necessary or desirable to allow in considerations of fault by the back door. It will greatly increase acrimony between the parties. Consideration of the interests of the children is of course important. But as has been said several times in debates on the Bill, the disservice which the parties do to their children is in separating not necessarily in divorcing. It is difficult to see how a court can consider objectively whether or not it is contrary to the interests of the child to allow a divorce to go forward. As was said in the earlier debate, I can see the temptation to pray in aid the interests of children in an improper way.
The main point I wish to emphasise is that litigation will undoubtedly be generated. That litigation will almost certainly emphasise beyond any doubt that the marriage has irretrievably broken down. I doubt whether an amendment along these lines could save any marriage in reality, although in certain circumstances it might preserve for an indefinite period the legal status of marriage. An application under this amendment may fail, in which case it will be costly both emotionally and financially to the parties, or it will succeed. It is hard to decide which is worse. If it succeeds, it will create immense bitterness, preserving the status of marriage and storing up further litigation for the future because the frustrated party will be tempted to apply under the provisions of the Bill to cancel the order in due course. Meanwhile, the marriage will limp on indefinitely.
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There may be a few cases where the compensation (to use that phrase perhaps inappropriately) awarded to a wife under the financial and property adjustment provisions of the legislation may not be adequate. But that in itself is not always a reason for preventing the divorce and for not recognising the reality of the position which the parties have reached. I therefore advise your Lordships to be very careful about the amendment, at least in this form.
6.30 p.m.
Lord Renton: My Lords, quite frankly, I do not see the need for Amendments Nos. 13 and 14. I agree with the noble Lord, Lord Meston, in the reasons that he has given against them. As it stands, Clause 10 ensures that the interests of the children of the marriage are well cared for.
However, I wish to say a few words about Amendment No. 15. It proposes to leave out subsection (6) which states:
"In this section 'hardship' includes the loss of a chance to obtain a future benefit (as well as the loss of an existing benefit)".
I cannot see the need for leaving that out. I believe that it would be best to let it stand. However, the proposed subsection (6) on the burden of proof requires serious consideration. I should be grateful if, when my noble and learned friend the Lord Chancellor replies, he could either say that new subsection (6) in Amendment No. 15 is necessary and acceptable to him or that it is unnecessary because the burden of proof is dealt with satisfactorily.
Lord Clifford of Chudleigh: My Lords, I support the whole argument put forward by the noble Baroness. I specifically wish to bring to mind paragraph (d) of Amendment No. 13. It refers to,
"the social, cultural and ethnic background of the parties, and their religious beliefs if any".
I am a little surprised at the noble Lord, Lord Meston. I was going to speak in support of the most recently approved amendment, Amendment No. 11, which is closely associated with the wording that I have just read. In England—the argument does not apply only in Israel and in other countries—we have religious beliefs. We have the Roman Catholic Church. Often the senior member of the family is the father. The family are baptised as Roman Catholics. The mother divorces the father. Noble Lords can probably understand—and, if not, allow me to educate your Lordships—that the Roman Catholic Church then has the Catholic father on trial. I am assuming that the female spouse, the wife, is not a Roman Catholic. Those trials are not just civil trials; they are also Church trials, and they can go on and on.
The most important point to remember is that we are talking about the children. If they are brought up initially as Roman Catholics, they cannot understand why their father is not receiving that most holy Sacrament, the Body of Christ. They ask dad, "Why are you not going to communion when you have had me brought up as a Catholic, and I can take communion? What is the trouble?".

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I do not believe that enough consideration has been given by the noble Lord, Lord Meston. The provision is closely associated with Amendment No. 11, to which all noble Lords agreed. I request that your Lordships consider the provision seriously.
Lord Elton: My Lords, while the noble Lord, Lord Meston, is considering his answer, perhaps I may seek to reassure my noble friend Lord Ashbourne, on one small point. He stated that the hardship bar, in such form as it previously existed, had foundered on the term "grave". We have changed that. The word is now "substantial". It has been changed for the very reason that he adduced. Therefore one of the four or five reasons that he advanced has been dealt with.
On the remainder, I do not wish to recapitulate what I said on an earlier amendment about the protections which already exist for a child as a result of Amendment No. 1, with Clause 3 bringing in Clause 9 and hence Section 41 of the Matrimonial Causes Act, and paragraph 23 of Schedule 8 strengthening that clause. I believe that those are sufficient reassurances as regards children even if the Children Act which overarches them were not.
I had hoped that the noble Lord, Lord Clifford of Chudleigh, would illuminate me on paragraph (d) of Amendment No. 13. I am not entirely sure that he has done so. In any case, he has addressed himself only to religious beliefs. I find it difficult to understand how ethnic background can contribute to the situation. I begin to wonder whether the Bill is trying to embrace the Mormon or Moslem faiths, where it is perfectly proper to have what in British statute law is a bigamous marriage. We have to be careful about the interrelationship between statute and religious law. Where a religious divorce is required, that is a matter for the officials of the religious faith. I can see the noble Lord teetering on the edge of his seat. Perhaps I might conclude by saying that I believe that as much as needs to be done in that direction was done by Amendment No. 11 and therefore, while I am not passionately against this amendment, I am certainly not enthusiastically for it.
Lord Clifford of Chudleigh: My Lords, if Amendment No. 11 will cover that particular part of the clause, I totally agree, and there is no need for it to be included in Amendment No. 13 as paragraph (d). As long as it is included somewhere, that is fine. I was trying to emphasise the interests of children.
Lord Burnham: My Lords, the hardships we are considering under this group of amendments relate both to the children of the marriage and to the other party. As far as the children are concerned, is this not yet another case where an amendment is totally unnecessary by reason of the provisions of the Children Act? The court has discretion to apply the whole panoply of the powers of that Act to cure any problems which may arise on behalf of the children.
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With regard to the other party, there are so many conditions which apply before a divorce can be granted that it is surely not necessary on this rather smaller point to apply the hardship bar in this case.
I assume my noble friend Lady Young was speaking to this whole group of Amendments Nos. 12 to 15. Is not the provision that,
"the burden of showing that dissolution of the marriage will not adversely affect the interests of any child of the family shall rest on the party seeking the divorce"
a little unjust to the other party, who has a very considerable interest in the matter?
As a final point I note that that amendment proposes that subsection (6) should be omitted. That subsection provides:
"In this section 'hardship' includes the loss of a chance to obtain a future benefit (as well as the loss of an existing benefit)".
Am I right in thinking that my noble friend Lady Young has dropped any claim that on divorce a future pension should be shared between the two parties to a marriage?
Viscount Brentford: My Lords, I too was slightly disappointed that my noble friend Lady Young did not explain more clearly the differences between her amendment and the existing Bill. For instance, in Amendment No. 13 reference to health is imported in subsection (b), which I should have thought was probably covered by the interests of children. I wonder why she has specifically incorporated that.
I should also have liked my noble friend to explain the significance of subsection (d), which the noble Lord, Lord Clifford of Chudleigh, asked about, and what it is meant to cover that is not covered by the Bill at present.
In addition, I cannot see why in this group of amendments she has removed part of the existing subsection (2) and put it into the new subsection. It seems to me not to make an enormous difference overall except for these new additions. I question whether it is worth making Clause 10 this much more cumbersome and complicated. I am not clear where it is leading us. I am very happy with the revised Clause 10 as it now stands in the Bill after the amendments which have already been agreed. It seems to me to be clear.
I have too many questions as to what this amendment means. I believe it is important that we should be satisfied that Clause 10 is clear in what it says so that the courts can interpret it as clearly as possible. I should certainly need a lot more explanation before I was happy with this amendment.
6.45 p.m.
Lord Hylton: My Lords, I do not know whether my noble friend Lord Clifford of Chudleigh was referring to the Roman Catholic system for annulling marriages. That system starts from totally different premises from divorce law and I think it would be a great mistake to try to import it into this Bill. Nor do I think that parties should be allowed to plead their religious beliefs as a way of preventing a divorce from taking place.
Lord Irvine of Lairg: My Lords, I have to confess that I am somewhat puzzled and I should welcome an

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explanation from the noble Baroness, Lady Young, as to why she considers it right to drop the existing subsection (6) of Clause 10. However, the purpose of my rising to my feet is to demonstrate my even-handedness and to support the suggestion which she makes in Amendment No. 15, essentially for the reason given by the noble Lord, Lord Renton. From a reading of Clause 10, it appears to me that a burden would be imposed on the other party—that is, the party other than the applicant for a divorce—to satisfy the court that the marriage should not be dissolved on one of the hardship grounds. That is how it appears to me, as I think it appears to the noble Lord, Lord Renton. If that is so, I think there is much merit in making it express that the burden of showing that dissolution of the marriage will not adversely affect the interests of any child of the family should rest upon the party seeking the divorce and not upon the other party.
Baroness Seear: My Lords, to my great surprise, I find that on this occasion I do not agree with the noble Lord, Lord Irvine of Lairg. On this Bill I have so far agreed with everything he has said. Only on this Bill!
When it comes to proving that divorce does not affect the interests of a child, I should have thought one could show that any divorce would adversely affect the interests of the child. We have agreed all the way through that the main sufferers are the children. If this were taken literally, I should have thought a great many divorces could have been stopped. However, we accept that, regrettably, the interests of children are damaged by divorce. That is why we have been so careful to highlight the position of children all the way through. This seems to me to be negating what we have supported all along.
The Lord Chancellor: My Lords, I think I am right in saying that in proposing these amendments both my noble friend Lady Young and my noble friend Lord Ashbourne indicated that in their view hardship could be caused to the spouse or children by a dissolution of marriage. That is recognised in Clause 10 of the Bill, where the focus is on hardship.
I am grateful to my noble friend Lady Young for pointing out that the hardship bar has been extended under this Bill to all divorces whereas previously it applied only to five-year separation cases. That is a very considerable extension of the scope of the hardship bar.
In the amendments which were introduced with your Lordships' concurrence on Report the word "grave", which both my noble friends referred to as the foundation of the judicial interpretation that they found difficult or unacceptable, has been taken out and I have put in place the word "substantial", which, as my noble and learned friend Lord Simon of Glaisdale pointed out at Report stage, would in any event be understood to be there. Of course, the courts would only take account of substantial hardship.
My noble friends went on to say that they had been advised that my amendments were cosmetic. I am not absolutely certain that I know exactly what that means in the context of this particular Bill. I intend them to be effective in reducing the burden that is required to be
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proved from "grave" to "substantial". I believe that that is quite a considerable change. Noble Lords' basic concerns are with hardship, as they said in moving the amendments. Surely it is right to keep an anchor on what one seeks to aim at. If we become involved in justice and injustice, we are into litigation in a big way.
I do not believe that the institution of marriage or actual marriages will be helped in this country by tremendous litigation in connection with divorce. As I explained earlier to your Lordships, in my former career I had experience of both undefended divorces and defended divorces. At least one of the defended divorces attained great national notoriety which did nothing for the marriage, although it did a good deal for the deprivation of resources of those who were involved as parties to the litigation. It would be much better for such resources as are available to be concentrated on trying to help people at the stage where they get into difficulties.
I would be in favour of a reasonably precise hardship bar which is, nevertheless, effective to deal with the problems that my noble friend enunciated. That is the hardship to the person who does not want the divorce. Having carefully considered the arguments put forward in Committee and at Report stage, I have reached the conclusion that that is the way to handle the problem of the person who is disturbed by the fact that the marriage has irretrievably broken down and who wants it to continue because he or she does not accept the position. I do not believe that it is possible to do that in a more practical way than by basing it on hardship. That is what we have done.
The group of amendments would lead us into considerable litigation and the opportunity for malicious delay by a party who would seek to use the children as pawns in the fight. The amendments would significantly change the current hardship bar under Section 5 of the Matrimonial Causes Act 1973 and under the current draft of Clause 10. The hardship which is properly to be dealt with is hardship which has resulted or is thought to be likely to result from the dissolution of the marriage. That is the important focus of Clause 10. I venture to think that it is lost in the amendment.
It has been said more than once that I seek to introduce a no-fault divorce. Any telegraphic description of such a Bill is likely to be misleading. That description is particularly so. From the beginning I have understood that where conduct is important it should be taken into account. I have made that clear. What I disagree with is the idea that fault should be used as a basis for a dissolution order itself in some circumstance which enables it to be obtained more quickly because of the had behaviour on which it is based than if there were no such behaviour. That is what I have been talking about. I am not and I do not think anyone who has taken part in the debates should be under any illusion that conduct in relation to the children and conduct in relation to the property are matters which the court can take into account where it is equitable and proper to do so.
I understand well the reason the amendments have been put forward, but they do not take adequately into account the point which I have sought to make. The amendments which I proposed to Clause 10 which were

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accepted by your Lordships deal with the hardship which may be caused, to which my noble friends referred. I have no doubt that the courts will direct attention to the new clause, if and when it becomes law and in force, in a way that will recognise that the clause is different from what it was before. The courts will recognise that "grave" has been dropped and instead "substantial" has been used. I would therefore expect them to give effect to what the House has so far decided in their consideration of any future case.
I do not see why subsection (6) in Clause 10 should disappear. It strikes me as important. All the problems of pensions may some day be solved, but I would not guarantee it at the moment. It seems to me right to keep subsection (6) in place. I would not wish to alter the onus of proof without a good deal of further consideration. The whole purpose of the arrangements is to do everything possible to minimise the effect of what has happened on children. Dissolution of the marriage is something which one would wish to prevent. But I agree with those who take the view that the greatest damage is done by the breakdown of the relationship of marriage which leads to its dissolution. One has only to see the practical circumstances of people to realise that.
I hope that my noble friends will feel that Clause 10, as amended on Report by the. House, deals sufficiently with their concerns. The amendments would introduce an area which is completely uncharted and likely to lead to substantial litigation, with no or very little, likelihood of benefit to the parties to the litigation.
Lord Renton: My Lords, before my noble and learned friend sits down, would he clarify further the question of the burden of proof to which the noble Lord, Lord Irvine, and I referred? Listening to my noble and learned friend carefully, I assume that he takes the view that, under Clause 10 as it stands, whoever is the petitioner will, as at present in the courts, have the burden of proof placed upon him. Therefore, there is no need to add anything else in the way that Amendment No. 15 does. Is that the position?
The Lord Chancellor: Yes, my Lords. I also take the view that the hardship to the children will be pretty easy to recognise once it is brought to the court's attention. Therefore, it is not an issue on which the precise onus of proof has much effect. My noble friend will remember that the courts have often said that the question of which way the onus goes is seldom of real importance. Normally the facts are capable of being ascertained. That is true in relation to hardship, particularly to children. Therefore, I see no reason to alter the ordinary rules. All it would do, if one tried to alter the rules, would be to introduce unnecessary and impractical complexity.
Baroness Young: My Lords, I start by thanking my noble and learned friend for the further explanation about Clause 10 and the operation of the hardship bar. It comes into operation on the dissolution of marriage and particularly concerns the spouse who does not want the dissolution of the marriage at all.
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I was slightly surprised to hear the noble Lord, Lord Meston, say, if I heard him correctly, that there are few cases where compensation may not be adequate. He said that in any case that is not always a reason for preventing divorce. The kind of case one has in mind is women who have devoted the whole of their lives to bringing up children, who have never done a job but who find themselves dumped at the end of their days for someone else. They may feel strongly that the hardship they suffer is not properly compensated for. That is a real case which one should not overlook; nor should one write it off as of no account. We have had enough debate on the matter to know that it is not an altogether uncommon experience.
I was particularly pleased to hear my noble and learned friend say that the hardship bar was intended to be effective. No doubt that is exactly what was said in 1969. Let us hope that this time it is effective. Changing the word "grave" to "substantial" will presumably lead to less litigation and will be effective in what it says. It is always very difficult when one is not a lawyer to know quite how such matters will operate. The amendments of my noble and learned friend, though welcome, will certainly do no good at all unless Clause 10 proves effective. That of course we do not know.
Perhaps I might answer a number of smaller points that were raised. The noble Viscount, Lord Brentford, asked why we should introduce the health of the parties. Quite often, on divorce, one of the parties, if not both, suffers considerable ill-health. That is often so in the case of the spouse who does not want the divorce and in the particular circumstances I described. It is a consideration that ought to be taken into account. There is all this talk about the children, and so on. We might take into account the wife (who is almost certain to be the person in question) who has looked after the children and who is perhaps being divorced against her will.
I realise that my next point may be contentious. However, since I have raised many contentious points before and have not been afraid to say so, I shall risk putting my head over the parapet once again. Religious beliefs do come into this consideration. Some people actually believe what they say they believe, and carry it out—odd as it may seem in this House—and they think that it should be carried out in marriage as well as at any other time. I make no apology for including this idea. It is very desirable that the matter should at least be raised and that some of us believe it matters. I do not see any need at all to apologise for it or to explain it further.
I listened very carefully to the remarks of the noble Baroness, Lady Seear. Knowing her concern for the position of women, I was surprised that she was not more sympathetic to this amendment. I shall read her remarks about children very carefully in Hansard. The debate that we have just had about extending the one-year period to 18 months hinged on the fact that it was better for children to have a divorce. It is not a view to which I personally subscribe. I think it is wrong. But I do not see why we should turn this matter round. I am completely consistent in all this. I believe the interests of the child should be taken into account. There are still a lot of unanswered questions in relation to this Bill.

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However, I shall read the remarks of my noble and learned friend; and the Bill will go to another place, where no doubt these matters will be taken up. At this time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: My Lords, as this seems a convenient moment, I beg to move that the further proceedings after Third Reading be now adjourned until five past eight.
Moved accordingly, and, on Question, Motion agreed to.

Secretary of State's Trunk Road Functions (Contracting Out) (Scotland) Order 1996
7.3 p.m.
The Earl of Courtown The Earl of Courtown rose to move, That the draft order laid before the House on 13th February be approved [10th Report front the Joint Committee].
The noble Earl said: My Lords, we are today considering a draft order which will enable the Secretary of State for Scotland to contract out certain of his statutory functions as roads authority for the trunk road and motorway network. Noble Lords may recall that similar provision has already been made for England and Wales under the terms of the Contracting Out (Highways Functions) Order 1995.
The powers are needed for two purposes. The first is our intention, under the private finance initiative, to procure a comprehensive construction and road management service to private contractors—commonly known as DBFO (Design, Build, Finance and Operate) contracts. Three such DBFO projects are in the current Scottish trunk road programme. The second is for the new arrangements for the management and maintenance of the trunk road network which replace the present agency agreements between the Secretary of State and local roads authorities and will come into effect in April this year.
Before I go into the detail of the order, it may be helpful if I say a few words about the underlying policy. Most of the design, major construction work and capital maintenance for the trunk road network is already done by private sector consultants and contractors. We wish to widen the scope for competition to ensure value for money in the more day-to-day management activities. I should stress that this is not deregulation or privatisation. The Secretary of State will remain as the roads authority.
DBFOs form a prominent part of the Government's private finance initiative and will play an increasingly important role in the financing of major road schemes. Essentially, companies, or consortia, formed for the purpose are being invited to compete for DBFO contracts which would deliver a major section of new road construction and then manage and maintain what they have built. The revenue the DBFO companies receive will he significantly influenced by the amount of traffic using the new or improved road. This will
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provide a major incentive for the operator to build in quality and ensure that necessary repair work is carried out quickly and efficiently.
A principal feature of such contracts is that the company managing the road should have overall responsibility for keeping the road in service, under contract to the Secretary of State. Without this order it would be necessary for the Secretary of State to act for the DBFO company in a variety of circumstances where his formal functions are involved. That is not sensible given that the object is to unify responsibility with the DBFO operator under the commercial contract. Operators themselves will want to take as much control as possible to fulfil their obligations without reliance on third parties, including government.
DBFO companies want the freedom to have access to services such as winter and routine maintenance which they feel would be best procured from local roads authorities. Likewise, local roads authorities have indicated that they wish to have the opportunity to bid for sub-contracts let by DBFO companies. We believe that this is sensible and the order will enable this.
At present, trunk road management and maintenance is carried out by the regional councils under broadly based agency agreements on behalf of the Secretary of State. Local government reorganisation means that new arrangements will have to be in place for April this year. The opportunity was taken therefore to review the way in which these services are delivered.
The main thrust of the new arrangements which are set out in the consultation paper, Competing for Better Roads, is to introduce a formal contractual basis on which trunk roads should be managed and maintained, together with open competition for the provision of these services —the key objectives being to improve customer service, secure the best value for money and promote the use of the most effective management resources. The first round of term contracts have been tendered for and won by local authority consortia. The first of these contracts in the all-purpose network will be re-tendered in three years' time.
A related proposal set out in Competing for Better Roads is to establish a new traffic controller organisation. This is to act as agent for the Secretary of State to operate and manage the new traffic control and driver information systems that are currently being installed and developed on the motorway and trunk road network in the central belt. It is our intention that the appointment of a traffic controller should be subject to competitive tender. At present the powers to operate these systems are confined to the Secretary of State and local roads authorities. That severely limits our ability to test value by competition.
The draft order sets out a series of statutory functions from which the Secretary of State may select those to be contracted out. In short, the power is intended to be permissive and selective according to the particular circumstances of the case.
As I said earlier the underlying purpose is to widen the range of choice in contracting and management arrangements for the strategically important trunk road and motorway network. The Secretary of State remains

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the responsible authority and nothing in the draft order reduces the range of those responsibilities. We recognise that a great deal of effort goes into the present management of the network. What we are now seeking is the ability to provide for a better service to the travelling public through the ability to choose from a wider selection of management arrangements. The draft order under consideration today would help this process forward, and I commend it to the House. I beg to move.
Moved, That the draft order laid before the House on 13th February be approved [10th Report from the Joint Committee]—(The Earl of Courtown.)
7.10 p.m.
Lord Ewing of Kirkford: My Lords, before my noble friend Lord Carmichael replies for the Opposition, perhaps I can ask the Minister one or two questions.
First, when the noble Earl introduced the draft order he was careful to point out that it was required in order to facilitate the design, finance, build and operate policy of the Scottish Office. Where, therefore, does the Skye Bridge fit into that?
We already have a design, build, finance and operate road in Scotland. The approach roads and bridge to the River Skye were built under such a provision. The company that built the Skye Bridge also assumed to itself the powers to impose and collect tolls. I am the first to accept that that matter has been decided in recent days by the Scottish courts; but does the order mean that any company that is granted the right to design, finance, build and operate a road—for example, a bypass or, even more pertinent, the proposal to construct a new bridge over the River Forth at Kincardine—will automatically be given the right to levy tolls? Since the Kincardine Bridge was built and opened in 1936, no tolls have ever been charged on that crossing of the River Forth.
It must be of deep concern to the travelling public, particularly commercial operators in Scotland, if one of the implications of the order is that those companies, those consortia, that are given the right to design, finance, build and operate roads in Scotland are ipso facto given the right to charge tolls as well. It is a serious issue that was not addressed in the noble Earl's comments and for the record we must get that clear.
Perhaps I can delay my noble friend for a few seconds more. I cannot for the life of me see how, if the Secretary of State contracts out the operation of traffic signalling and the various information systems that are being constructed throughout central Scotland, that can be cheaper than if the Scottish Office does it. As I was driving this morning from my home in Fife to the airport at Edinburgh those systems were in operation. All they were saying was: "Watch your speed"; "Please drive carefully". For goodness' sake, how will any private operator be able to provide that kind of information or advice cheaper than the Scottish Office? We need much more information than we have been given on what is behind the order. I have to say, in a critical fashion, that I was somewhat disappointed by the inadequate debate
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in another place on the order. In my view this order is much more serious than a number of people seem to have grasped.
7.13 p.m.
Lord Carmichael of Kelvingrove: My Lords, I am glad that my noble friend spoke in this debate. Scotland is buzzing and the people are not happy about what happened in relation to the Skye Bridge. In Scotland generally people feel that they have been cheated on the whole question of that bridge. If the Kincardine Bridge is replaced—I have travelled on it frequently—and if that is tolled, the tolls will be extremely heavy, which will be a great detriment to the industrial and social life of east-central Scotland.
The whole question of the need to set up the bodies about which the noble Earl spoke seems to me to be an afterthought to the reorganisation of Scottish local government. The local authorities, particularly the regional authorities, were already responsible for the roads, the lighting and all the other matters required to keep them in good condition. Now we hear that a rather complicated system is to be established by the Scottish Office.
I have no great worries. I know that local authorities cannot themselves build roads. They can do minor work, but they cannot build roads. As was said in another place and the Minister repeated tonight, most of the design work is handed out to private consultants and contractors are then asked to tender. That is a point that was not properly handled by the Minster of State in the other place.
The Member for Dumbarton, my honourable friend Mr. John McFall, spoke of the burden that would be placed on contractors who bid for those long lengths of road. It was estimated that for a big project the burden could be extremely heavy and there would be no compensation if contractors were unsuccessful. I agree that that is part of the risk of contracting, but the cost to the nation generally, however it is done, must be summed up in total.
When the Minister replied in the other House he hinted—he did not actually say—that there would probably be a cutting down of the numbers of contractors asked to tender for each job. Although competitive tendering for a large project is acceptable, it is extremely expensive. If there is a selection of tenderers for the various large jobs, how will we ensure that one comfy little group do not do it all the time? How will other contractors be able to break in and make known their desire to tender? Also, as was raised by another Member in the other place, how far will they go? The example given was whether or not a contractor from Milan would be acceptable. I know the Italian roads and they are beautiful. The Italians are skilled road engineers. I do not know whether or not they inherited that skill from the Romans, but the roads are exceptional.
Those are questions that have not yet been answered and the Minister should be willing to answer them, if not tonight, then at least to write to us. I worry about the fact that if we are too chummy with those we ask to

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take on certain jobs, the contracting list could become static. That would be detrimental and unfair to other contractors.
A number of important points arise with which members of the public will be concerned. The schedule to the order is most illuminating when one looks at the powers that people will be expected to handle. For instance, at one time, when anything went wrong with a road—for example, the lighting—the public knew, regardless of which part of the road they were on (whether it was Fife, Lanarkshire or in a Highland area) who to telephone to have it put right. If the road is a design, finance, build and operate scheme, how will the public know who to contact'? There may be a skip in the road which is allowed for in the schedule to the Bill; the powers of the roads authority with respect to doors and so forth opening outwards; in relation to all those minor points at one time the public knew who to contact. If the contractor is doing the managing and all the other operations that were previously done by the local authority, who does the member of the public contact now? That is an important point and something with which people are concerned.
I can assure the Minister that my next point is not a small one. I had a number of problems in another place over the question of cattle on roads. Presumably the trunk roads will be going through difficult terrain where there may be cattle on either side. I should like to know whether there will be continuous fencing or what will happen when a fence breaks down. There have been many cases in which much damage has been done and claimed for because cattle stray onto a road. Again, at one time the local authority could be notified very quickly, but now it may take a long time before an outside contractor can be contacted.
My other point concerns reinstatement. The Minister said—I can see that there is a certain validity in the point—that if someone has built the road and is responsible for maintaining it, he will make sure that the road is kept in good fettle. However, sometimes these things do not work out quite like that. Who will be liable if there is damage to vehicles or injuries to people because of a badly maintained road? At present the local authority or the regional authority is able to be contacted and if necessary—it happens frequently—sued; whereas if it is a contractor a good deal of time may be taken and wasted and a good deal of court time may be involved in trying to deal with these matters. The order has some good points but there are a great many questions which need to be answered.
7.20 p.m.
The Earl of Mar and Kellie: My Lords, this order deals with the possible transfer to private contractors of the lesser functions which the Secretary of State for Scotland holds with regard to the trunk roads—the so called all-purpose roads. I must draw your Lordships' attention to the risks, as I see them, implicit in this order. The first is the likely loss of uniformity in the appearance of roads in such matters as road signing, layout and design and indeed the colour of the road materials. The second risk concerns safety standards, in particular regarding the treatment of snow and ice,
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lighting, footpaths and the removal of unplanned or unapproved obstructions, including skips. When dealing with winter conditions, the Minister does not need to be told that only completely uniform standards of gritting and salting on a 24-hour basis can lead to public confidence in the use of a trunk road—or indeed any road—in the extremes of winter.
I want to draw out this question. If the trunk roads are to he maintained by private contractors—my question has been asked before—how will the motoring public know whom to contact about a problem with the road? Will there be adequate signposting of this information? Currently the motoring public are aware that roads are maintained by the nine regional road authorities, with the premier and trunk roads being looked after by the local authorities on an agency basis. If I want to report a fault, I can visit my community information point in Clackmannan or I can phone the central regional council. I acknowledge that some citizens of Scotland have been confused over the past 19 years by the functions of the district and regional councils. That confusion with regard to roads could have ended on 1st April this year when the new unitary authorities take over. But, no, the trunk roads will be maintained by an even wider group of undertakings—the local authority, a consortium of local authorities, local authorities bidding for this work from afar, or private contractors. That will not promote clarity in responsibility for the trunk roads. I think I can safely say that in Scotland we broadly resent the loss of local democratic control of roads in any form. I would say that compulsory competitive tendering has already had its effect in sharpening up local authority management costs.
Before concluding, I have some questions about bridges which carry trunk roads over water. I have given prior notice of these questions. I understand that the Forth Road bridge on the A.90 has now paid off its costs and is running at a profit at the tolls. At Kyle of Lochalsh, on the A.87 the Skye bridge is most unpopular for its high tolls, and in consequence Dingwall Sheriff Court is choked with not guilty pleas. I also understand that a part of the new A.74(M) is owned by its builder, who is in receipt of shadow tolls, paid on a usage basis by the Scottish Office. There is also, as has been mentioned, an active consultation out at the present moment about a new bridge at Kincardine-on-Forth on the A.876. Indeed, that was the bridge I crossed this morning in order to get to your Lordships' House.
Will the noble Earl consider transferring surplus cash from the Forth Bridge to the Skye Bridge, or imposing a shadow toll, or arranging payment from the National Lottery for the Skye Bridge? With regard to the new bridge at Kincardine-on-Forth, can the noble Earl please tell me how the bridge will be financed? Will it be a cash toll bridge, or what? That will be of considerable interest to both myself and my neighbours in Fife and Clackmannanshire.
7.25 p.m.
The Earl of Courtown: My Lords, I have listened with interest to what noble Lords have had to say about the draft order. Its purpose is straightforward. It is to allow us to continue to bring efficiencies to bear on the provision, management and maintenance of trunk roads. A number

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of points have been made by noble Lords. Some have been duplicated but I shall do my best to answer them now. If I cannot, I shall write to the noble Lords involved.
The noble Lord, Lord Ewing, mentioned the Skye Bridge, as did the noble Lord, Lord Carmichael, and the noble Earl, Lord Mar and Kellie. This order has nothing to do with toll bridges such as the Skye Bridge. This is promoted under the New Roads and Street Works Act 1991, which gives the Secretary of State the necessary powers to assign his right to charge and collect tolls. The noble Earl, Lord Mar and Kellie, said that the Skye Bridge tolls are excessive. I believe that they are at just the same level as are charged for those going across on the ferry.
Lord Ewing of Kirkford: No.
The Earl of Courtown: My Lords, that is the information I have. The noble Lord, Lord Ewing, made a point concerning traffic controllers. This system is still being installed. When it becomes fully operational later this year, many more messages to assist drivers will be able to be displayed. If local authorities can operate this system cheaper than the private sector they will win their tenders for that operation.
The Kincardine Bridge was mentioned by the noble Lord, Lord Ewing, and the noble Earl, Lord Mar and Kellie. No decision has yet been made on how a possible new bridge at Kincardine might be financed or how the position will be progressed. A decision will be taken in due course.
Lord Ewing of Kirkford: My Lords, before the noble Earl leaves that point, may I have on the record an absolute guarantee that, no tolls ever having been charged over the past 60 years that the present Kincardine bridge has been in operation, on any new bridge there will also be no tolls charged? May I have a guarantee that it will be a toll-free crossing?
The Earl of Courtown: My Lords, I cannot give the noble Lord that guarantee. I am sorry that I cannot be any more helpful.
The noble Lord, Lord Carmichael of Kelvingrove, mentioned the problem of cattle straying on to trunk roads. The terms of the DBFO contracts will include provisions for such occurrences.
A number of other matters were raised. Thenoble Lord, Lord Carmichael, and the noble Earl, Lord Mar and Kellie, referred to a complicated system in terms of the premium areas and the all-purpose network. I believe that the new system will be a great deal simpler than the present one. The existing system is managed under 32 different authorities but for the trunk road network we shall now have three premium networks and five all-purpose networks.
The noble Lord, Lord Carmichael, referred to the cost of tendering. We are not talking about peanuts. The extension of the A.74 from Carlisle to Glasgow, which will eventually he designated the M.6, is a £200 million
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contract. Therefore the businesses that tender for these operations realise that there is expense involved in such work.
Lord Carmichael of Kelvingrove: My Lords, how wide will be the tendering list? It is quite important. Will there be selected lists which were half-promised by the Minister of State in another place? He said that there would be a selection because too many contractors estimated or put in a bid for the particular roads. Somehow or other the contractors need to be repaid in the next contract. Therefore the total cost to the country will be considerably higher. We are talking about millions of pounds for an estimate on a contract.
The Earl of Courtown: My Lords, we realise that costs are involved. Initially, when we come to the new system and the DBFOs, the actual tendering process might be more complicated and expensive. After the first successful DBFO contract there will not be the repetition of costs incurred by some contractors in the first instance. The tendering lists are being restricted to three or four, which keeps the total costs down. I believe that I have covered all the questions which have been raised. If I have not, I shall write to noble Lords.
The delegation of functions to the private sector which would become possible under this order is important, as otherwise it would not be possible for the private sector to show properly what it can do. The private sector would have to revert to government to carry out a range of maintenance improvement functions. Our local authority agents are not constrained in this way as existing statutes provide for delegation to them. This draft order will allow a level playing field, in that the private sector will have the same degree of control over its operations. It will be more efficient for private sector operators. I expect these efficiencies to be reflected in pricing.
In future, private sector bidders for DBFO and management and maintenance contracts will be able to submit their proposals in the knowledge that they will have as much control over their operations as is practical. Delegation to them of functions which otherwise would be for government will provide reassurance that they will not be subject to delay and unnecessary administration over matters of importance to them in the management of the roads.
We are continually working to ensure that we are able to meet ever-increasing demands on the trunk road network in ways that will provide value for money and are efficient for the road user. This order will allow us to extend the range of options which we have for managing the network. It will allow us, from a broad spread of functions, to select which functions are suitable to delegate in the particular circumstances. With traffic volumes continuing to increase, we need to be flexible to best meet the challenges which lie ahead and he responsive to changing circumstances. I believe that this order will play a vital role in helping us to achieve this.
On Question, Motion agreed to.

Life Prisoners: Prison Regime
7.33 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey rose to ask Her Majesty's Government whether they plan to introduce a prison regime for life prisoners who have been told that they can never expect to be released which will be consistent with their social, mental and physical needs as they grow older.
The noble Lord said: My Lords, at the risk of causing shock and horror to those few Members of your Lordships' House who are going to stay for this brief debate, perhaps I may start by saying that my purpose in putting down this Question is to get information. It is an old-fashioned way of using Unstarred Questions. I know that they are very often used as a basis for party political debate, but that is not my intention this evening. I want sincerely to probe the Government in more detail than they have been able to give in answer to Questions in the past about the conditions under which full-term prisoners—that is to say, prisoners who have been told that they can expect never to be released—are going to serve their sentence; in other words, to spend the rest of their lives.
Perhaps I may say at the outset two things which this Question is not about. It is not about the issue of whether there should be full-term sentences for anybody. I say that with some feeling because when I asked a Question in July last year, to which I shall refer in a moment, about the conditions under which full-term prisoners should be treated, I received while I was on holiday soon afterwards a telephone call from the Sunday Express. I told them the nature of my Question and of my interest. I told them specifically that they were not entitled to say, as a result of what I told them, that I or the Labour Party were in favour of releasing specifically—because they asked me—Myra Hindley. So what happened? The whole of the front page of the Sunday Express on the first Sunday in August was taken up with a headline saying, "Labour bid to free Myra Hindley". That was an absolute untruth, which had to be, and was, corrected. It was a lesson to me on how innocent questions can be distorted by the press. I have to repeat the nature of my concern this evening in order to make that position clear.
The second matter this Question is not about is whether the Home Secretary should make decisions. That is an issue on which the Labour Party has a view. We have come to the view that the judges, the Parole Board and the prison system as a whole are responsible for the tariff for mandatory life prisoners rather than a politician, the Home Secretary. Again, that is not something about which I am seeking information this evening, because it is not within the terms of the Question I am asking.
In June 1993, the Judicial Committee of your Lordships' House decided that mandatory life prisoners should be told of the tariff imposed on them. They should he told of any change in that tariff and given the opportunity to appeal against it as well as against the original sentence. After a considerable gap, I followed that up with a series of Questions for
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Written Answer on 19th July 1995. The helpful Answers that I was given by the Minister who is to reply tonight were that there were 16 mandatory life sentence prisoners who had been informed that previous Ministers had set a whole life tariff in their case and that those prisoners had the right to make representations.
The noble Baroness went on to say, as regards the conditions and in response to my third Question,
"The Prison Service already provides a variety of regimes suited to the needs of different types of prisoner. These regimes are kept under review. In allocating mandatory life sentence prisoners, individual circumstances, including the need to facilitate visits from family and friends, are always taken into account subject of course to the overriding consideration of security".—[Official Report, 19/7/95; WA31.]
It is that Answer which I seek to have extended by the Minister when she replies to this Question this evening.
Two things have happened since then; one to me and one much more publicly. What happened to me is that representations were made on behalf of Roy Hall, a prisoner in Full Sutton Prison. He is 72 years old. He has been imprisoned for multiple murders. I hasten to say that, as I understand it, all the prisoners who have been told that they are never going to be released are multiple murderers and probably sadistic murderers as well. Therefore, there is no question of sympathy for the crimes or lack of sympathy for the victims of the crimes concerned.
Roy Hall is in Full Sutton Prison. He is 72 years old. He has been told that he cannot have a television set, radio or tape recorder in his room because those are the prison rules. He has been deprived of the work that he had been doing for a number of years in the prison kitchens. His letter to me was written in despair because he does not see how he is going to have any sort of self-respect or decent life for the rest of his life. He is an old man. Surely he is not a danger to the public at his age. That was the first and perhaps the more private concern which prompted me to table this Unstarred Question.
The second is somewhat fortuitous in the sense that on Friday the report of the full inspection by Her Majesty's Chief Inspector of Prisons into conditions at Durham Prison was published. It is generally a favourable report, recognising that substantial improvements have been made at Durham Prison between the previous inspection in 1992 and the inspection in 1995 which was the subject of this report as a result of refurbishment and changes of policy. I am the first to recognise that.
The report was written under the then chief inspectorship of Judge Tumim, but is now published in the name of Sir David Ramsbotham, Her Majesty's new Chief Inspector of Prisons. The inspectors make points about Myra Hindley, who is a female prisoner in the hospital there following a serious fall. At paragraph 4.31 the report records the fact that after 30 years in prison she was past the point where she felt that she could mix in normal association with other prisoners whose attention was focused on their own eventual release dates.
The inspectors make a number of specific recommendations and outline some principles which they say should govern the treatment of that small group of prisoners, the 20 or so men and women who have been formally told that they will never be released. I think that we can all agree with the first recommendation which states that security should be sufficient to prevent escape. Secondly, such prisoners should he given as much autonomy over their lives as possible; for example, they should be able, if they wish, to cook for themselves. Thirdly, they should be afforded as much privacy as possible, consonant with the need to prevent escape. Fourthly, they should have suitable occupations, including the use of a typewriter or computer. Fifthly, as they are never to be released, they should have as many opportunities to receive visits as possible away from the normal visiting area. They should also have additional access to telephones. Finally, providing that their behaviour merits these privileges, they should have as much freedom as possible to make decisions for themselves about the way in which they lead their lives in prison.
The inspectors couched the report in general terms although in the press release issued by the chief inspector those recommendations are related to a particular prisoner rather than in general terms. The question that I am asking the Government is: how far do they agree with the inspectors' policy recommendations?. I was very disappointed to see the Prison Service press release which accompanied the report on Friday, which stated:
"The report also recommended that long term female prisoners should receive special privileges. That has been rejected by the Prison Service as conditions at Durham are considered suitable for all female prisoners".
My question is: is that the case? Is that the view of the Government as well as of the Prison Service? Is that the Government's view about the other full-term prisoners to whom the report does not refer, but to whom all the considerations which Judge Tumim and his colleagues felt were appropriate in the case in question should presumably also apply?
I do not ask those questions in any spirit of antagonism. I apologise if in referring to the case of Roy Hall I have caused the Minister any difficulty since I did not give her warning. If the noble Baroness cannot reply on that example, I shall fully understand; indeed, I do not expect it. However, generalising to a very limited extent, he is a man of 72; is there any plan for a special regime for people who are, let us say, over the age of 70—that is, over retirement age—who will never be released?
In the more general case, looking at Judge Tumim's recommendations for Durham Prison, what is the Government's view of those recommendations? How do the Government feel about the Prison Service's response to the report? To what extent do they feel, as I do, that there should be separate and special provision—not perks, but simply a recognition of their circumstances—for those prisoners who will never be released?
7.46 p.m.
The Earl of Longford: My Lords, I am always quick to support any Motion introduced by my noble friend Lord McIntosh of Haringey, partly out of party loyalty to my esteemed deputy leader, and partly because he is a convinced penal reformer who may not always be free to speak his mind or from his heart as he would wish. Nevertheless, he remains a convinced penal reformer in the eyes of all of us.
My noble friend interpreted his Unstarred Question in narrow terms. Over the years I have introduced a good many Unstarred Questions and noble Lords have spoken to them widely, interpreting them as they wished. I beg leave to do the same tonight. I agree with all that my noble friend said about the need to treat prisoners who have been told that they are to serve a life-long sentence in the way suggested by Judge Tumim in his report.
I return to Myra Hindley, but she is not the only prisoner known to me in that category. Dennis Nilsen is another example. There is no question of him coming out for many years. He has been forbidden to have his music published outside the prison even for charitable purposes. That case bears directly on the Unstarred Question. Why should Dennis Nilsen not be able to have his music published outside the prison, even for charitable purposes and when there is no question of personal profit? He has been told—I believe that this is true of other prisoners in Whitemoor also—that in future he must not have both a typewriter and a keyboard in his cell. He has to choose one or the other. The man has done terrible things, but he is a creative man. He has written an essay on how he became a murderer, which has been published by Ruth Rendell in an anthology on murder. I take him as an example to show that Myra Hindley is not the only person I have in mind.
To be quite frank, discussing whether prisoners who have been told that they will never be released should be treated a little better is rather like discussing whether those who are to be hanged should be entitled to a silken rope. I believe that that was once accorded to an ancestor of the noble Earl, Lord Ferrers. I am afraid that in my view the whole idea of one man or woman who happens to be the Home Secretary saying to another human being, "You will never come out; you will die in prison", is obscene, or even worse if such words were in your Lordships' vocabulary.
I do not want to blame Mr. Howard for this. I am afraid that I blame him for many things, but I am not entitled to blame him for this. For quite a while, like most of the public, I had assumed that this was some new ploy by Mr. Howard—not so; this was introduced secretly, slyly, covertly, by Mr. Waddington, now the noble Lord, Lord Waddington, in 1990.
It was an unprecedented move in British history to say that someone should never come out of prison. It was introduced in 1990 without the public being told. As far as I am aware, Mr. Howard has not confirmed to the prisoners that they will never come out. No prisoner has been told finally by Mr. Howard that he will not come out. I hope and pray that in humanity and justice, in this case at least, he will bring himself not to do so.

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My noble friend mentioned the case of Myra Hindley, so I cannot help but mention it. The press has been quick to mention it in all sorts of ways in the past few days. Let us take the way that woman has been treated. We know that as an infatuated young woman she did terrible things 30 years ago. The Lord Chief Justice gave her a tariff of 25 years. Then secretly, the Home Secretary, the then Mr. Waddington—because in those days it was all kept secret—gave her 30 years. Then still secretly, the then Mr. Waddington increased the sentence to life, meaning life. What possible justification did he have?
If the tariff is supposed to reflect the iniquity of the crime, which is one way of looking at it, how can the crime become worse as the years pass? It is balderdash even to suggest that. Eventually under pressure the tariffs have been published. We have now been told that a number of prisoners will serve life, meaning life, so far as one Home Secretary can say that. Mr. Waddington laid it down, but the present Home Secretary has not yet committed that enormity.
What is the solution? It is one that my noble friend mentioned. It has the party's approval. It is that the Home Secretary should be removed altogether from the process of deciding how long a mandatory life prisoner spends in prison. That is not a way-out doctrine. It applies already to discretionary life prisoners. It is only a question of applying to mandatory life prisoners the same solution as is applied to discretionary life prisoners.
It is a terrible responsibility to cast upon a politician who is anxious, not unnaturally, to secure election or re-election. He or she has the terrible responsibility of deciding whether a fellow human will rot and die in gaol. That is a terrible thought. The solution is obvious. The Penal Affairs Consortium, which includes not just penal reform organisations but prison governors and the Probation Service, has recently come out with that solution.
When people talk about prisoners who have done terrible things many years previously, do they ever think what that person may be like now? No one who knows what a prisoner is like now ever talks in that way.
I call the Conservative Evening Standard and the Daily Telegraph, which I enjoy reading, enlightened newspapers. The Evening Standard had a leading article which claimed that whatever the state of Myra Hindley's soul, she should stay in prison until she dies. The Daily Telegraph published an article in a different connection asking whether the present Lord Chief Justice compared well with the late Lord Goddard. The mention of Lord Goddard reminds some of the old-timers in the House of a speech he made 40 years ago in favour of retaining capital punishment. Referring to a man convicted of murder, he said that such a man should be destroyed.
When we say that a man or woman must remain in prison until they die, we are saying that that human being is to be destroyed, as far as it is in human power to do so. It is a detestable doctrine. I only hope that in this case at least Mr. Howard will draw back before he commits that mortal sin.
7.55 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I listened with interest to both speakers. I should like to begin by congratulating the noble Lord, Lord McIntosh of Haringey, on initiating this useful debate. If his quest is to obtain information, and if he is saying that it is an act of desperation to use the Unstarred Question system to obtain information, he has not written to me asking for the information, because had he done so I would have provided answers to his questions by letter.
Lord McIntosh of Haringey: My Lords, I did not say it was in desperation. I did not say I had any difficulty in obtaining information. I wanted information to be in the public sphere. This is an effective way of achieving that. I should have thought that the Government would have wished Starred Questions and Unstarred Questions to be in accordance with the Companion to Standing Orders of the House which says that we should be seeking information.
Baroness Blatch: My Lords, I was not querying that this is not a proper process to use. I am delighted to come to the Dispatch Box to use it. If the noble Lord were to see a video re-run of the debate he would see that he appeared to make the point—I was receiving it rather than that he was saying it—that the reason he was putting down this Unstarred Question was to seek information. Information is something that can be ascertained in a number of different ways.
I started by saying that I congratulated the noble Lord, because this has been a useful debate to hold publicly. The subject of the debate has been prisoners with what I will refer to as whole life tariffs. They are the prisoners told by the Secretary of State that they will not be released from prison.
Before referring to them specifically I should like to remind the House that this is not a new problem. The prison service has long experience of dealing with a small number of prisoners who face spending their lives in prison.
The whole life tariff prisoners form a very small group—18 in all. My right honourable friend the Home Secretary has set only one of these tariffs. The other 17 were set by previous Secretaries of State. As a result of the decision by your Lordships' House in the case of Doody and others those 17 have had their tariffs disclosed to them retrospectively and have been given the opportunity to make representations. Those who make representations will have their tariffs considered afresh. In the meantime I do not propose to disclose their names.
The 18 whole life tariff prisoners are at present dispersed among 10 prison establishments; 15 of the individuals are Category A prisoners. One of them is aged over 70 and another one is over 60.
Given the small numbers and the range of ages it is neither practical nor desirable for the prison service to provide a special regime for these prisoners. Following the Doody judgment, to which I have just referred, all mandatory life sentence prisoners are now told of the judicial recommendation on the period to he served and

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the tariff set by Ministers. So whole life tariff prisoners now know exactly where they stand. But their life in prison continues to reflect their particular circumstances and needs.
Like all life sentence prisoners they have a life sentence plan which is updated every year. They take part in the regimes of the establishments where they are held. Those regimes will aim to provide a balanced programme of work, education and training activities to cater for the physical and mental well-being of the prisoners. The work element is an option for prisoners reaching retirement age. If they decide not to work they will be paid as unemployed prisoners, with an additional allowance if they are willing to undertake light work.
Whole life tariff prisoners come within the incentives and earned privileges schemes operating in prisons in the same way as any other prisoner, although community visits are not available to them. They have the same arrangements for visits, telephone calls and letters as other prisoners, to help them maintain family links, which are considered to be important. And where possible they will be located sufficiently close for their families to visit.
The prison service does nevertheless recognise that there is a group, small but growing, of elderly life sentence prisoners, not just those with whole life tariffs. At the end of last year there were 157 life sentence prisoners aged over 60; 151 of them were male and six were female. Of the total number, three were over 80 and another 25 were over 70. The oldest male life sentence prisoner is aged 84 and oldest female life sentence prisoner is 69.
Governors, healthcare staff and prison officers all play their part in providing for the particular needs that go with old age as part of their overall responsibility of care. Sentenced prisoners are offered a full health assessment at least every three years. All prisoners are seen by medical staff when a health problem arises and those in receipt of regular medication will have regular reviews.
The prison service's directorate of healthcare is currently compiling a health strategy for prisoners and staff and has particularly identified the needs of older prisoners among its topics, including a target for women prisoners of cervical and breast screening in line with the NHS. The prisons board should be considering it this May after a period of internal and external consultation and the strategy will contain guidance on particular health needs and on good practice.
Elderly life sentence prisoners have available to them the full range of prison healthcare services. Some prisoners who are ill or infirm may need to be looked after in a prison healthcare centre; or, if an older prisoner has a medical problem which fails to respond to primary medical care within the prison, specialist care can be obtained in NHS hospitals as it would if the prisoner were living in the community. Alternatively, some establishments hold general medical and other specialist clinics run by local NHS consultants at which the prisoner's medical management is reviewed in conjunction with prison healthcare staff.
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If a prisoner's condition deteriorates or a new problem occurs, such as a heart attack, the prisoner can be transferred to a local NHS hospital for assessment and treatment. In other cases, where there are problems of mobility, the prison healthcare staff will advise on the most suitable location in the establishment and on any limitations on work or activity. Prisoners over retirement age, as I have said, have the choice of not working in any case.
Governors and prison staff can help by providing wheelchairs, by locating elderly or infirm prisoners at ground level, by giving help in writing letters and so on. A development of particular interest is the special unit at present being commissioned at Kingston Prison, Portsmouth, for male life sentence prisoners aged 60 years and over. An existing accommodation block is being refurbished and will include specialist facilities for older prisoners. Its aim is to help elderly prisoners progress towards eventual release. The unit has 25 places and should receive its first prisoners this May.
The refurbished accommodation will have lavatory and shower facilities suitable for disabled prisoners with poor mobility. It will also provide a degree of separation for any elderly prisoners who are liable to be bullied by other inmates. It is a low-cost scheme and, in my view, a very imaginative one.
The prison service is at present reviewing its policy and guidance to governors on managing prisoners with physical disabilities. All types of physical disability will be taken into account, including problems such as reduced mobility and dexterity arising particularly among the elderly. As part of this, governors will be completing questionnaires on the numbers of physically disabled prisoners, where they are located and what facilities are provided for them. As part of this also the prison service will be working with the Royal National Institute for the Deaf, the Royal National Institute for the Blind, the British Deaf Association and the Royal Association of Disability and Rehabilitation.
The noble Lord, Lord McIntosh, made an interesting comment about the powers of the Home Secretary as regards whole life tariffs. He made clear his position and that of his colleagues. It disagrees with the view of his Front Bench Shadow Home Secretary who believes that, on balance, the Home Secretary should retain the power to determine tariffs for mandatory life sentences.
The noble Lord also referred to Roy Hall, or Roy Fontaine, as he is often called. As the noble Lord said, Roy Hall is at Full Sutton Prison and a possible transfer to Kingston Prison, Portsmouth, was considered last year but refused. According to the noble Lord, Roy Hall was refused a piece of equipment; I believe that it was a word processor or a typewriter—
Lord McIntosh of Haringey: My Lords, it was a television.
Baroness Blatch: My Lords, I understand that, first, he must be treated consistently with the rules of the prison. He is also party to the privileges system. In the case of Myra Hindley, who has a word processor, that is earnt but bought at her expense. That is one of the conditions of having other equipment in the prison.

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Kingston Prison is a Category B establishment wholly for life sentence prisoners and it is where the planned older prisoner unit, which I have already mentioned, is being developed. Kingston Prison is currently being refurbished and the prison service intends to reconsider Mr. Hall's case when that work is completed. Its decision will have to take account, among other matters, of security considerations, of the prisoner's individual needs and, as regards the older prison unit, of the particular purpose and regime there.
I wish to make one comment because there is no one else speaking in the debate to make it. As I have outlined during the course of my response to the Question, as regards the pleading for more comfortable arrangements for older prisoners, in particular for those serving long sentences, someone somewhere must say on behalf of the victim—in the case of Mr. Hall we are talking about four deaths and possibly a fifth which was not put before the court—that they did not see middle age and they will not see old age. There is no question of considering conditions for them in their old age. The noble Earl, Lord Longford, said that it was obscene that a man or a woman should never come out of prison. What is obscene is the way in which so many lives were brought to a cruel end by those very people. The victims had no chances for any kind of reconsideration of their conditions—
The Earl of Longford: My Lords, the noble Baroness is aware that any pretence of speaking in favour of victims comes badly from that Bench. The Home Secretary was roundly condemned by the law courts for the way in which he was attempting to treat victims.
Baroness Blatch: My Lords, I work closely with the Home Secretary and I know no Home Secretary who has devoted so much time and energy to concern himself with the plight of the victims. This Government have put in place Victim Support, active programmes to support and counsel victims and positive consideration of victims when tariffs are being considered. That is absolutely right.
In the course of the debate much has been said about making life more comfortable for prisoners. I believe that we are honouring our obligation to those prisoners. We have made a considerable effort to concern ourselves with people who grow old in prison. I am simply countering that point by saying that there are many people who will never grow old—indeed, many of them did not see young adulthood—because of the crimes of the very people about whom we are talking.
The noble Lord, Lord McIntosh, referred to the report of Her Majesty's Chief Inspector of Prisons on Durham, which was published last week. Myra Hindley is subject to the earned privileges and incentives scheme applying to all prisoners and introduced since the inspection took place. She is on the enhanced level of privileges. As such, while on normal location she and other prisoners who have earned the same level of privileges have access to cooking facilities during association time for food which they have purchased. She is currently in the healthcare centre but while on normal location she had
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the privacy of an individual cell and was able to have additional visits, although those were in the normal visiting area. As I said a moment ago, she has access to a word processor.
The Home Secretary will consider the advice that was given as a result of Myra Hindley's representations about her tariff. They were recently received in the department. The Parole Board has provided the Home Secretary with advice about her case. All that will be considered and when the Home Secretary has reached a decision the prisoner will be told. It is not the practice of the Home Secretary to disclose or to comment upon any advice given to him by the Parole Board before he has reached his decision. The prisoner is aware of the final outcome of the review. The prisoner is also aware of the history of the case, what the judges have said, what the Lord Chief Justice recommends and what previous Home Secretaries have recommended. However, the Home Secretary is not prepared to say when his decision will be made.
I repeat that it is the aim of the prison service to deal with the very small number of whole life tariff prisoners on the basis of an assessment of individual needs, both present and future, but grounded in the individual regimes of the prisons in which they are held. There would not be merit in any attempt to introduce a single regime for those individuals as they grow older. The prison service will meet their particular needs in the same way.
Lord Hylton: My Lords, before the noble Baroness sits down, perhaps I may say that she has obviously tried to give a helpful reply and has given a great deal of detail. Nevertheless, I urge her to ask her colleagues to reflect on the kind of despair which is likely to be induced in people when they are told that they will never be released from prison and how that despair is likely to be even greater when they appeal and are unsuccessful.
Baroness Blatch: My Lords, I acknowledge readily that there must be a feeling of despair. But I invite the noble Lord to consider along with me the despair of the husbands, wives, mothers, fathers, sisters and brothers of the people whose lives have been snuffed out by those people.

Family Law Bill [H.L.]
8.11 p.m.
Proceedings after Third Reading resumed on Clause 10.
[Amendments Nos. 13 to 15 not moved.]
Clause 11 [Lord Chancellor's rules]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 7, line 8, at end insert ("and what information must accompany it").
The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 17. Amendments were tabled on Report by my noble friend Lady Elles and by the noble

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and learned Lords, Lord Simon of Glaisdale and Lord Archer of Sandwell, which sought to place a requirement on the face of the Bill for the statement of marital breakdown to state the attempts made to promote reconciliation between the two parties.
I have been giving this matter some consideration since Report. I believe that a requirement of this kind would be a valuable addition to the Bill as it will draw the attention of parties making a statement to the issue of reconciliation and perhaps make them question their own efforts in this regard. However, I believe very strongly that the provision should be one which requires the parties simply to state whether or not they have attempted reconciliation. It should not be assumed that attempts at reconciliation will have been appropriate in every case and there should be no punitive result in cases where parties have not attempted reconciliation. Its appropriateness depends on the circumstances of the individual case.
For the reasons which I gave at Report stage—namely, that I do not wish to tempt people into giving a history of their marital difficulties which the other party may wish to refute and which may then have the effect of increasing the hostility between the parties—I have drafted the amendment to enable rules made by the Lord Chancellor to require parties to state whether or not they have attempted reconciliation since they attended an information meeting. The information meeting is intended to give parties information on the divorce process itself and on the facilities available to them if they wish to seek help in saving their marriage, and it is therefore of relevance to ask parties whether or not they have attempted reconciliation since receiving this information and before taking the serious step of making a statement of marital breakdown.
I have taken advice on how best to incorporate a provision of this kind into the Bill, as a result of which I have tabled Amendment No. 17 to Clause 11 to empower the Lord Chancellor to make rules to this effect. I have also tabled Amendment No. 16 to ensure that the Lord Chancellor is able to make rules specifying the information which should accompany a statement of marital breakdown, as well as the form in which that statement is to be made.
As appeared from the discussion on Report, there is also merit in the information about reconciliation referring to the period after the information meeting because that may give a good impression of the extent to which the information meeting is successful in transmitting information to the parties. I beg to move.
Baroness Elles: My Lords, I thank my noble and learned friend for incorporating the amendment which we tabled on Report in this new form into the Bill. It makes a good addition to the role of the information meeting. As my noble and learned friend said, it will help also to assess the value of the information meeting and as to whether the parties concerned are encouraged
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to embark on reconciliation before taking what I consider to be the final step of making a statement. I am extremely grateful to my noble and learned friend.
Lord Irvine of Lairg: My Lords, I welcome the amendment. Primarily it provides that the parties should be required to say whether they have attempted reconciliation but they are not placed under any obligation to do so and there are not adverse consequences if they do not do so. That must be right. Attempting reconciliation can only be voluntary. Therefore, I support the amendments.
The Lord Chancellor: My Lords, I am grateful for the support which the amendments have received. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 17:
Page 7, line 8, at end insert—
("(aa) requiring the person making the statement to state whether or not, since satisfying the requirements of section 8, he has made any attempt at reconciliation;").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 18:
Page 7, line 28, leave out ("or has been").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 19 to 21. I have tabled Amendment No. 19 partly in response to an amendment tabled by the noble Baroness, Lady David, and the noble Lord, Lord Northbourne, at Report stage and partly to bring the duty of legal representatives into line with that placed on mediators by Clause 24 of the Bill as amended on Report. The amendment will empower the Lord Chancellor to make rules which impose a duty on legal representatives to inform a client who is initiating, or proposes to initiate, the divorce process of the availability of marriage support services and mediation; and where there are children of the family, to inform the party that in relation to the arrangements to be made for any such child the party should consider the child's welfare, wishes and feelings. Under the terms of the amendment, any rules made by the Lord Chancellor will also require legal representatives to provide the party with names and addresses of persons qualified to assist them to effect a reconciliation and in connection with mediation.
Your Lordships will see from the Marshalled List that I have tabled an amendment to Clause 24 to require mediators to have arrangements in place to ensure that parties are informed about the availability of independent legal advice, in addition to those matters specified in the new Section 13B(6) of the Legal Aid Act 1988 inserted by Clause 24.
Under Amendment No. 21, any rules made by the Lord Chancellor will require the legal representative to certify whether he has complied with the provisions of the paragraphs introduced by Amendment No. 19, and also to certify whether he has discussed with the party any of the matters mentioned in the first of those paragraphs or the possibility of reconciliation and, if so,

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which of those matters he has discussed. The form of that is intended to elicit reasonably detailed answers rather than a rubber-stamped form.
Amendment No. 18 restricts the provisions to legal representatives currently acting for parties making or proposing to make a statement.
Your Lordships will see that Amendment No. 20 removes the reference to counselling from Clause 11 (2)(c). I have considered carefully the arguments put forward by the right reverend Prelate the Bishop of Oxford on Report and your Lordships will note that I have changed the references from "counselling" to "marriage support services". I know that the right reverend Prelate and others in the House were concerned that the requirements of this clause should be focused on the issue of reconciliation, and I believe that that is achieved by the changes. In addition, the amendments I am proposing enable rules to impose a duty on legal representatives to inform their clients of certain matters. While I am sure that the usual practice of legal representatives is to inform their clients of many services which may be of assistance to them, I believe that, in the context of the Bill, it is only appropriate for the Lord Chancellor to impose a duty on legal representatives in relation to the matters raised in the amendment. I beg to move.
Baroness David: My Lords, I thank the noble and learned Lord for Amendment No. 19 and for Amendment No. 25, which amends Clause 24. I believe that these amendments are responses to the amendments that I moved at earlier stages. I thank the noble and learned Lord very much for his amendments.
I wonder whether I may ask the noble and learned Lord a question which is not exactly directly related. On Report I moved Amendment No. 63 for my noble and learned friend Lord Archer. The noble and learned Lord said that he would not accept that amendment but would bring forward an amendment, probably on Third Reading. I have not yet found that amendment, although that may be due to my stupidity. However, when the noble and learned Lord responds, I would be most grateful if he could tell me whether I have just missed it or whether, perhaps, that will be an amendment tabled in another place at a later stage. Nevertheless, I thank the noble and learned Lord for what has been done.
The Lord Bishop of Ripon: My Lords, the right reverend Prelate the Bishop of Oxford is unable to be present at this stage but he has asked me to express his thanks to the noble and learned Lord the Lord Chancellor for the amendments and in particular for the inclusion of "marriage support services" in Amendment No. 19. On his behalf, I am glad to express my support for the amendments.
The Lord Chancellor: My Lords, I am grateful for that support. If the noble Baroness, Lady David, could tell me the subject matter of her Amendment No. 63, I might well he able to answer her question, although I may be able to answer it in due course. I cannot
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recollect at this moment the precise subject matter of the amendment, but I will probably remember it if it turns out that I have dealt with it.
Baroness David: My Lords, I must apologise to the noble and learned Lord. I have just been reproved by my noble friend for not having mentioned the subject matter of the amendment. It related to divorces which were agreed to on bogus evidence, where false information had been accepted. Is that enough information to trigger the noble and learned Lord's memory?
The Lord Chancellor: Yes, my Lords; my impression at the minute is that it is a little removed from the subject matter now under discussion.
Baroness David: My Lords, it is.
The Lord Chancellor: My Lords, I do not wish to incur a further rebuke from the noble Baroness and I am sympathetic to the amendment that she moved on Report. However, I have to ascertain whether it is necessary to do something along the lines suggested and, if so, on precisely what terms. Therefore, the answer is that I have not yet been able to deal with the subject matter of the noble Baroness's amendment. If it turns out that something is required, then I shall seek to promote it in another place.
Baroness David: My Lords, will the noble an learned Lord allow me to write a letter to him in order to explain the position a little further? I regret that I have been so inadequate in explaining what I wanted.
The Lord Chancellor: My Lords, the noble Baroness wishes to write me a letter. I must say that I am always extremely glad to receive communications from Members of your Lordships' House. I believe that I have the point in mind now. Once we got away from the number of the amendment to the subject matter I remembered the position quite well. As I said, I must ascertain what is required, if anything, to deal with the point that the noble Baroness and her noble and learned friend raised.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 19, 20 and 21:
Page 7, line 30, leave out from ("made") to ("names") in line 38 and insert—
("(aa) to inform that party, at such time or times as may be specified—

(i) about the availability to the parties of marriage support services;

(ii) about the availability to them of mediation; and

(iii) where there are children of the family, that in relation to the arrangements to be made for any child the parties should consider the child's welfare, wishes and feelings;

(ab) to give that party, at such time or times as may be specified,").
Page 7, line 41, leave out ("(ii) by counselling").
Page 7, line 42, at end insert ("; and
(ac) to certify, at such time or times as may be specified—

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(i) whether he has complied with the provision made in the rules by virtue of paragraphs (aa) and (ab);

(ii) whether he has discussed with that party any of the matters mentioned in paragraph (aa) or the possibility of reconciliation; and

(iii) which, if any, of those matters they have discussed.").

On Question, amendments agreed to.
Clause 14 [Financial arrangements]:
Lord Coleraine Lord Coleraine moved Amendment No. 22:
Page 9, line 10, at end insert—
("(aa) to provide that such orders are not to be made, except in cases of special and immediate need, during the first six months of the period for reflection and consideration, in order to promote reconciliation and, where reconciliation is not possible, the settlement of arrangements for the future by negotiation or mediation; and").
The noble Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 55 and 57. Amendment No. 22 is a paving amendment for the latter and it is supported by my noble friends Lady Young, Lord Ashbourne and Lord Archer of Weston-Super-Mare and the noble Earl, Lord Perth. The intention behind the amendments is to provide a period in which the parties to a divorce can attempt to resolve their financial arrangements for the future by agreement with the aid of mediators or their lawyers and without the threat of an immediate order by the court hanging over them.
The amendments would provide that no court order for financial provision of property adjustment may be made in the first six months after the statement, except where there are shown to be special circumstances of "urgent need". That provision takes account of points made by my noble and learned friend on Report. The sort of circumstances which are intended to be covered by reference to "urgent need" are cases where, shall we say, a wasting asset needs to be sold such as where there is a negative equity situation, where one or both of the parties requires to be housed when they are both living together and it is impossible to house them, or for an occupation order under Part IV of the Bill to be made. In that sort of case, one would readily agree that it would probably be necessary for an immediate order to be made.
The amendments would apply to immediate orders as well as to the orders taking effect on the divorce only, which are the orders presently favoured by my noble and learned friend. I would preclude those. Allowing a court order of whatever sort to be made immediately the statement has been made will inevitably result in increased acrimony as solicitors' letters are exchanged, bargaining goes on, positions are jockeyed for and the solicitor for one party or the other attempts to get on top in the battle of finance straight away. In many cases, the early settlement or financial arrangements made under duress will produce de facto an early, irretrievable breakdown of marriage and give no opportunity for mediation to work or even to be tried.
The amendments do not preclude applications to the court during the six-month period. They do not preclude the procedures leading up to the hearing and the need to
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make financial disclosures and the like. The intention is merely that the order should not be made in the first six months so that, if a party feels that nothing is being achieved by mediation or attempting to reach agreement, that party will still be able to apply for an order. The fact that the hearing of the application may be delayed until the end of the six-month period will provide the incentive for both parties to negotiate.
It is a very modest amendment. When my noble and learned friend dealt with the matter at earlier stages in a different form he was fairly lukewarm in his opposition to my amendment or to what we proposed. That did not surprise me because I know that my noble and learned friend has no wish for the court to be tried in preference to mediation or negotiated agreement elsewhere. However, I hope that my noble and learned friend will be able to say that the thoughts behind the amendments are now agreed, that they may need redrafting and that he will bring forward something in another place. In the meantime, I beg to move.
Baroness Young: My Lords, I should like to express my support for my noble friend Lord Coleraine. As the House will recall, my noble friend introduced amendments along similar lines both in Committee and on Report. The point that he has raised is an extremely important one in that, if such orders are made at any time after the first statement, the whole idea of reconciliation, reflection, consideration, and so on, is pointless because the situation is decided by those circumstances.
We are concerned with two orders here and, as I understand it—although it is quite possible that I have not got it quite correct—the Bill permits lump sum orders to be made at any time after the first statement and provides for property transfers to be made in special circumstances before the divorce. I believe that my noble and learned friend has gone some way towards meeting one of those points and that is most welcome. That will certainly help the situation. The provision would mean that either the husband or the wife could obtain a court order during the reflection period which would settle who would own the house at the divorce and how much would be paid in a lump sum on divorce. Therefore, although my noble and learned friend's provision goes part of the way, it does not go as far as we would wish.
Having gone part of the way, I hope that my noble and learned friend will feel able to go all the way with my noble friend Lord Coleraine on this most important series of amendments. I believe that that would be in keeping with what my noble and learned friend wants; namely, to have such a period for reflection and consideration. It would not in any way be damaged by the fact that a party could make a settlement of their assets right at the beginning before anything else had been considered.
8.30 p.m.
Lord Ashbourne: My Lords, I rise to support these amendments because they establish a six month period when the court may not make property or financial provision orders so that reconciliation can be

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concentrated on. If the Government are really saying that this Bill is supportive of the family and buttresses marriage, then surely reconciliation needs to be the central focus of the Bill.
Many people take the view that one of the more pressing problems we face in this country today is the breakdown of the traditional family leading to widespread social misery and great distress among children who frequently suffer from loss of status, loss of identity, loss of self-esteem, and in many cases loss of one parent altogether. Of course I realise that one cannot legislate against human nature and that whatever laws are passed in Westminster may have little effect on human relations within a family; but I believe that it is the responsibility of the Government to create an atmosphere within which marriage and the traditional family can flourish. In fact the 1969 Act did exactly the opposite with the result that we now have the highest divorce rate in Europe. By putting more emphasis on reconciliation, more marriages will be saved. It is for that reason that I commend these amendments to the House.
Lord Northbourne: My Lords, I rise to say briefly how much I support the noble Lord, Lord Coleraine. It seems to me quite inimical to the objectives of the Bill to allow the courts to make what appear to be permanent settlements in regard to lump sum payments and property transfers before the parties have had an opportunity to attempt reconciliation and before the parties have had an opportunity to attempt mediation and to arrive at an agreed solution. Surely, it should be possible to make temporary arrangements for sufficient capital or income to be available to the spouse, or, alternatively, for occupation of the property, without actually making a property transfer.
Lord Elton: My Lords, I do not know what my noble friend intends to do with the amendment after he has heard my noble and learned friend's reply but if, as I imagine, the matter may be left open to go to another place, I wonder whether that opportunity will he taken to look at it again in a slightly different light. I think we have all accepted that the divorce proceedings are not the start but the conclusion of a process, and we need to consider whether any additional time or slack water is to be introduced in the light of that. There will have been great turbulence before this passage of time—the 12 months—begins.
That said, surely the difference that strikes the parties to the marriage and the divorce at the moment divorce proceedings begin, is the crystallisation into reality of what they had merely imagined to be the arrangements that will result. Many of your Lordships feel—I rather think that I feel this way too—that it is that crystallisation that makes people seriously have a second look. Merely beginning the argument about the arrangements, or beginning the process, does not. It is arguable—this is probably a persuasive argument—that it is when they see what the position will be at the end of the process that they think, "Good heavens! Is this really what we meant?" I should have thought that an amendment which made the order of the court in some way provisional after it had been made, and left the six
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months for reflection at the end of the process, so that people would know what they were reflecting about, would have much more attraction than what is now proposed. That is what I would say if my noble friend was leaving it to be discussed in another place.
Earl Russell: My Lords, the logic behind this amendment is, I think, impeccable. The points made in its support are serious, but I also listened with a great deal of interest to the points made by the noble Lord, Lord Elton. I can see a great deal of force in those points. The other point that occurred to me is one about the tempo of negotiation. I think most of us find that in negotiation there is usually one moment at which the parties may be induced to reach agreement. It may come sooner or later when moods coincide.
If that moment is attained, it is a matter of a tide in the affairs of men which is not taken at the flood, especially in cases involving matrimonial breakdown. It is not unknown after matrimonial breakdown for hostility between the parties to go on growing which may mean there could be some cases where a settlement might have been accessible early on but there may be bitter contests later if it is not taken when it is accessible. I hope that all those points on both sides will be taken into account. However, I recognise the case that has been made in favour of the amendment is a serious one; I just think that it probably is not quite the whole story.
The Lord Chancellor: My Lords, I have indicated on previous occasions what my noble friend Lord Coleraine has described as a rather lukewarm antagonism to these amendments. That just about accurately reflects my attitude to them. There is a great deal to be said in the ordinary case for an order being made in the first six months. I think as a practical matter it is highly unlikely that a contested order would in any event be made in the first six months. However, there may be situations in which agreement is required on the basis of which some further understanding can be built. There is also the point that under the European Convention on Human Rights there is the question of conducting a hearing within a reasonable time. What amounts to "reasonable time" depends very much on the circumstances.
It is important to think about these amendments against the background of what I am proposing both in the Bill and in amendments to be discussed later; namely, that any order that is made for property adjustment or for financial provision will not take effect until the divorce order is granted unless there are exceptional circumstances and it is just and reasonable to do so. I have added the term "exceptional circumstances" out of concern to meet the points that my noble friends have made to me before.
I am endeavouring to see whether reforms of the ancillary relief procedure can be put in place to reduce the cost and delay involved. My inclination at the moment is to think that this sort of matter is best dealt with in rules of court which take account of the various circumstances. However, I think that the present rules of court may not be sufficient to enable this particular

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type of obstacle to become effective. If your Lordships would be kind enough to allow me further time on this matter, I should like to consider whether a degree of flexibility, taking account of this desire, could be built into the rule-making procedure in such a way as to give effect, generally speaking, to the wishes expressed in this amendment by my noble friend Lord Coleraine and those who have supported him.
Lord Coleraine: My Lords, I am grateful to all noble Lords who have spoken and for the general understanding around the House of the purpose of these amendments. At the moment I find it difficult to see what rules of court can do when the thrust of the Bill, as it is at the moment, is that at any time after the statement is made one party can go to court and obtain a financial provision order or a property adjustment order. That will effectively ruin any chances of reconciliation or mediation on other aspects of the arrangements for the future.
The Bill ought to be aimed at ensuring that as far as possible mediation and negotiated agreements are favoured rather than court applications. Taking up a point which my noble and learned friend made when discussing his disagreement with his advisory group, my noble friend Lord Elton made the point that if the order was made the parties would then realise that that was not what they wanted. I believe that in fact when the order is made one party will realise that it is not what he or she wanted but the other party will be extremely satisfied with what he or she has, and the divorce will continue in an acrimonious manner.
As regards the tempo of negotiations, I understand that the early stages are possibly not the time when one will achieve an easy agreement. On the other hand, if agreement is not achieved in the early stages I very much doubt whether it will be possible to reach agreement in the later stages.
Nevertheless, I am very grateful to my noble and learned friend for what he said about looking into ways in which those points can be met. I know that he will do so because he said that his opposition to the amendments was lukewarm. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Legal aid for mediation in family matters]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 23:
Page 13, line 16, leave out ("Part") and insert ("Parts II and").
The noble and learned Lord said: My Lords, the amendment provides that legal aid for mediation will be available for questions arising under Part H of the Act as well as those arising under Part IV. It is desirable to ensure that if any issues arise under any part of the Bill which are appropriate for mediation then funding for publicly supported mediation will be available. I beg to move.
On Question, amendment agreed to.
Clause 24 [Provision and availability of mediation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 24:
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Page 14, line 20, leave out ("and").
The noble and learned Lord said: My Lords, in moving Amendment No. 24, I shall speak also to Amendment No. 25. The amendments amend subsection (6)(a) of Section 13B of the Legal Aid Act 1988, introduced by Clause 24. They provide that where the Legal Aid Board enters into a contract for the provision of mediation the contract must include provision requiring the mediator to have in place arrangements to ensure that each party is informed about the availability of independent legal advice.
I have put down the amendments in response to an amendment tabled at Report stage by the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Irvine of Lairg. I am grateful to them for drawing this matter to my attention, and have pleasure in moving Amendment No. 24. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 25:
Page 14, line 23, at end insert—
("(iii) that each party is informed about the availability of independent legal advice; and").
On Question, amendment agreed to.
Clause 25 [Payment for mediation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 26:
Page 15, line 4, after ("is") insert (", except so far as the regulations otherwise provide,").
The noble and learned Lord said: My Lords, at Report stage I indicated my gratitude to the noble Earl, Lord Russell, for drawing my attention to a lacuna in the Bill as a result of which the statutory charge disregard did not apply in respect of legal aid for mediation. The amendment rectifies that.
The amendment extends the regulation-making power of the Lord Chancellor in respect of the statutory charge for mediation to mirror the current provisions in the Legal Aid Act 1988 which allow regulations to be made in respect of advice, assistance and representation in matrimonial matters where the statutory charge applies, to disregard the first £2,500 of property recovered or preserved in the calculation of the statutory charge.
As I indicated at Report stage, it would not be appropriate for that provision to appear on the face of the Bill: first, because that would make any changes which were necessary regarding the level of the disregard more difficult; and, secondly, because I believe that details such as this are appropriately left to regulations, as they are in relation to the disregard under the present provisions of the 1988 Act.
I reiterate that my intention has always been that, when the statutory charge is applied, through regulations, to mediation in family matters, there should be some replication of the statutory disregard which applies in matrimonial matters for advice, assistance and representation. I should like to express my thanks once again to the noble Earl, Lord Russell, for drawing this oversight to my attention. I beg to move.
Earl Russell: My Lords, I should like to thank the noble and learned Lord very warmly indeed for the

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amendment. To be able to make a concession to me in the form of a new regulation-making power must have afforded the noble and learned Lord considerable amusement, in which I share.
On Question, amendment agreed to.
8.45 p.m.
Clause 26 [Mediation and civil legal aid]:
Lord Irvine of Lairg Lord Irvine of Lairg had given notice of his intention to move Amendment No. 27:
Page 16, line 22, after ("matters") insert ("except where either party to the proceedings does not agree to take part in mediation").
The noble Lord said: My Lords, I have reflected on the assurances given by the noble and learned Lord at Report stage on 4th March in relation to the amendment, and shall not move the amendment at Third Reading.
[Amendment No. 27 not moved.]
Clause 30 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:
Baroness Young Baroness Young moved Amendment No. 28:
Page 20, line 34, after ("parties;") insert—
("( ) the conduct of the parties;").
The noble Baroness said: My Lords, in moving Amendment No. 28 I shall speak also to Amendment No. 31.
I am in some difficulty, as I am sure my noble and learned friend will appreciate, because I understand that his Amendment No. 30 to a large extent meets the purpose of Amendment No. 28. If that understanding is correct, I am very grateful. That is of value. There was anxiety that it might be possible for one spouse to turn the other out of the house without conduct being taken into account. I beg to move.
Lord Simon of Glaisdale: My Lords, I supported a similar amendment at Report stage, both on general grounds and invoking a technical canon of construction—the ejusdem generic rule—which I thought prevented the general rule, on which my noble and learned friend relied, covering the case of conduct.
I was remiss in not having given my noble and learned friend notice that I would raise that point. Therefore, understandably, he did not deal with it. As a result I wrote to him after the debate. As I understand it, my noble and learned friend has now completely met our point, and I join the noble Baroness in expressing thanks for that.
The Lord Chancellor: My Lords, I am grateful to my noble friend Lady Young and my noble and learned friend Lord Simon of Glaisdale for what they have said.
Reviewing what was said at Report stage, having regard to the pre-existing law, and looking at the most recent decision in this area, I came to the conclusion that the result of leaving out the reference to the conduct of the parties was probably to change the appearance of the law without changing its substance, and therefore it was wise simply to restore the phraseology of the existing law. I have therefore met the thrust of the amendments of my noble friend Lady Young and
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the technical point of my noble and learned friend Lord Simon of Glaisdale, which I would have met in more detail even without notice had I not thought, after hearing so much of the debate on the previous occasion, that I should be wise to go ahead on this basis. That is what I have done. I am grateful.
Baroness Young: My Lords, I am anxious to be constitutionally in order on this matter. I wonder whether I should be right now to withdraw my amendment in order that my noble and learned friend can move his. I am happy to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 29:
Page 20, line 34, leave out ("and").
The noble and learned Lord said: My Lords, Amendment No. 29 is the first of a rather large number of amendments that I wish to propose. The amendments in my name grouped between Amendments Nos. 28 to 38 and Amendments Nos. 40, 41, 43 to 46, and 48 to 50 are on this point generally.
The amendments are intended to emphasise the need for the court to take into account the conduct of the parties when making occupation orders under Part IV of the Bill. They also ensure that the balance of harm test or questions should apply where significant harm to an applicant or a relevant child is harm attributable to the conduct of the respondent.
As I said a little while ago, I have reflected further on the amendments tabled at Report stage by my noble friend Lady Young and have tabled these amendments to ensure that when the court is considering whether to make an occupation order under Clauses 30(3), 32, 33, 34 and 35 of the Bill it must take into account, in addition to the factors already specified in those clauses, the conduct of the parties in relation to each other and otherwise. I believe that in the previous wording they included notwithstanding the general point. But I think that it is quite wise to make it explicit. The amendments enable the Bill so far as possible to reflect the existing law on this point in the Matrimonial Homes Act 1983.
At Report stage I made amendments to the definition of harm in Clause 59 in respect of an adult applicant to provide that the harm in question would have to be the result of the conduct of the respondent. Your Lordships will remember that that arose out of an amendment proposed by the noble Lord, Lord Irvine of Lairg, which focused on the distinction between the harm as described for children, which included harm other than physical harm, and the adults where we did not have that introduction. In looking at that, it brought me to consider this question. After further consideration, I have decided that harm to children should be treated in a similar way. The later amendments therefore provide that where significant harm to an applicant or a relevant child is referred to in the Bill, it is significant harm attributable to the conduct of the respondent. However, where reference is made to harm to the respondent or a relevant child in the balance of harm test to be applied in relation to occupation orders, the harm will be harm as a consequence of the respondent's occupation being

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regulated by the occupation order. The later amendments therefore dealing with this matter amend the definition of harm in Clause 59 accordingly.
In the light of that explanation, I beg to move Amendment No. 29.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 30:
Page 20, line 37, at end insert ("and
( ) the conduct of the parties in relation to each other and otherwise.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Baroness Young Baroness Young had given notice of her intention to move Amendment No. 31:
Page 20, line 38, leave out subsection (7).
The noble Baroness said: My Lords, I should like to say how grateful I am to my noble and learned friend for the series of amendments which he has just moved which meets at least one of the points that I raised at Report stage and I am sure will be regarded as a great improvement to the Bill.
I am a little concerned that he has not dealt fully with the whole question of the balance of harm test which was one of the other issues raised. He says that he has amended the definition of harm in, I think, Clause 59 which includes a child as well as others.
At this late stage of the proceedings, I shall not repeat the arguments that I put forward at Report stage. It is very valuable that my noble and learned friend has moved the amendments which meet a considerable part of my concern. As regards the balance of harm test, I shall read carefully what my noble and learned friend said. The matter may well be taken up in another place.
It is important that definitions should be sufficiently tight so that it is not possible to argue a case of harm which in effect is bogus, in the serious event that someone asked to be removed from the occupation of a house should be brought before the court on the matter.
I do not wish to pursue the matter on this occasion, but to thank my noble and learned friend for the point to which he has agreed.
[Amendment No. 31 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 32 and 33:
Page 20, line 39, after ("harm") insert ("attributable to conduct of the respondent").
Page 20, line 45, after ("harm") insert ("attributable to conduct of the respondent which is").
The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 32 to 39 with Amendment No. 29. I beg to move.
On Question, amendments agreed to.
Clause 32 [One former spouse with no existing right to occupy]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 34 to 37:
Page 22, line 19, at end insert—
( ) the conduct of the parties in relation to each other and otherwise;"),
Page 22, line 36, leave out ("(b) and (c)") and insert ("to (d)").
Page 22, line 39, after ("harm") insert ("attributable to conduct of the respondent").
Page 22, line 44, after ("harm") insert ("attributable to conduct of the respondent which is").
On Question, amendments agreed to.
Clause 33 [One cohabitant or former cohabitant with no existing right to occupy]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 38 and 39:
Page 24, line 15, at end insert—
( ) the conduct of the parties in relation to each other and otherwise;").
Page 24, line 34, leave out ("(b) and (c)") and insert ("to (d)").
On Question, amendments agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 40:
Page 24, line 34, leave out from ("(c)") to end of line 43 and insert—
("(8) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm if an order under this section containing one or more of the provisions mentioned in subsection (4) is not made, the court shall make the order unless it appears to it that—

(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and

(b) the harm likely to be suffered by the respondent or the child in that event is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.").

The noble Lord said: My Lords, I beg to move Amendment No. 40 and speak to Amendment No. 43 which I also moved on Report.
The amendments are designed to restore the full force of the previous Bill before concessions were made to appease what I previously described, and would continue to describe, as the uninformed minority in the other place.
I yield to no one in my acceptance of the need sometimes for political compromise. What I cannot accept is that such a need existed where there was a clear majority in every party, including that of the noble and learned Lord, for the Family Homes and Domestic Violence Bill in the form in which it left your Lordships' House. At this hour of the night, and because these amendments were fully argued on Report on 4th March, I shall express myself shortly.
The first amendment is to ensure that the balance of harm test is equally applicable in cases where the victims of violence have no strict legal right to occupy the property as it applies to cases where the victims of violence do have such a right. I believe that the Law Commission's view should prevail: that is, that the courts should make an order in favour of the non-entitled applicant when the courts are satisfied that

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more harm would be caused to that applicant or any child than would be caused by not making the order. The plain fact is that under the Bill the courts are being given a discretion to withhold a protection from non-entitled partners even though the balance of harm test is satisfied in their cases.
I welcome the support which the noble and learned Lord, Lord Brightman, felt able to give these amendments on Report on 4th March. He chaired our Jellicoe Committee into the Family Homes and Domestic Violence Bill of the last Session with great distinction. His support on Report, however, was perhaps not in political terms the most cogent for which I could have wished when he was commending these amendments to your Lordships' House. He said that he felt the courts would ensure that justice was done whether or not the amendments were carried. Perhaps I may say to him, with great respect, that that is a lawyer speaking rather than a politician. For my part, I do not feel so sanguine. If the noble and learned Lord on the Woolsack feels that there will be no difference in practice in the court's decisions on his watered-down proposals, then he would be as well to reinstate his first thoughts on the subject for the avoidance of any doubt.
The second of the amendments is likewise aimed at restoring the previous provisions in the Family Homes and Domestic Violence Bill. Under that Bill, ouster orders in favour of non-owners, the victims of domestic violence, could continue for as long as the court thought necessary. Ouster orders in favour of non-owners may now be for six months only, with the possibility of one single extension of six months but no further extension in whatever circumstances.
I believe—as the noble and learned Lord, Lord Brightman, believes, and as the noble and learned Lord on the Woolsack once believed, and perhaps still believes—that judges should have the same discretion as they had under the previous Bill so that the hands of the court should not be tied to arbitrary time limits.
As I said on Report, rare cases will arise in which acute difficulty will be found in rehousing the abused and in particular where couples may be elderly, ill or even terminally ill. If alternative accommodation does not become available within 12 months, under the Bill in its present form the courts are powerless to prevent the individual being turned out into the street. I really do not know what the answer to that point can be and I believe that the present Bill must therefore be wrong in principle.
I submit that this gap in the courts' protective powers leaves the abused and uniquely vulnerable at risk of homelessness. These amendments will fill that gap and I therefore beg to move.
Lord Brightman: My Lords, I am sorry I did not give satisfaction to the noble Lord, Lord Irvine of Lairg, on the last occasion and I will try to do better this time.
May I begin, as I began at the Report stage, by emphasising that the Family Homes and Domestic Violence Bill of the last Session, upon which this part of the Family Law Bill is based, had nothing whatever to do with the saving of the institution of marriage and
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nothing to do with the buttressing of marriage. It was concerned only with the avoidance of anti-social behaviour and violence after a marriage, after a family home, had come to an end. Part III of this Bill has exactly the same purpose. I therefore turn to these amendments.
For convenience I will refer to the earlier Bill simply as the domestic violence Bill, which I think is expressive of the basis of that Bill. All that I respectfully ask now, and all that these amendments are designed to do, is to restore a part of the domestic violence Bill to the form which it took when it was before your Lordships' House on the previous occasion—that is, the part that deals with occupation orders affecting, co-habitants who have no legal right to occupy the family home. An occupation order is a purely temporary order for regulating the temporary occupation of the family home after the breakdown of the relationship between the parties. Under the domestic violence Bill a man and a woman cohabiting were equated with a married couple for the purposes of this temporary order.
I wish to submit only two points for consideration. My first point is this. If a couple have set up a family home together and the relationship comes to grief, it is just as necessary to regulate the temporary occupation of the family home whether that home was based on a marriage in church, a marriage in a registry office or an informal relationship. The same stresses, the same risk of anti-social behaviour, the same risk of violence, the same risk to any child, will arise whatever the origin of the family home. Therefore, the court ought to have the same jurisdiction, exercisable to the same extent, in the same way, on the same principles, whatever the origins of the family home. This result will be achieved if Amendments Nos. 40 and 43 are accepted by your Lordships. The jurisdiction of the court will be restored to the form it took in the domestic violence Bill. That will not be achieved if these amendments are rejected.
My second point is this. This House decided in the last Session what form your Lordships wished the occupation order jurisdiction to take. I suggest, with the greatest possible respect to my noble and learned friend the Lord Chancellor, that there is no reason for this House to change its mind at this stage.
Perhaps I may say a brief word in order to record the unusual history of the domestic violence Bill upon which Part III of this Bill is based. A Committee of this House considered the domestic violence Bill over several days in the last Session. It received written evidence from almost 50 witnesses. It heard oral evidence at six meetings. This House considered the Bill at the Report stage in May of last year. There was no Division. The Bill had its Third Reading in June and again there was no Division. The Bill went to the other place. After a Second Reading debate the Bill went to the Select Committee on Home Affairs. It then came before Standing Committee B. The Parliamentary Secretary to the Lord Chancellor's Department told Standing Committee B, according to the Official Report, that the Bill had been "intensively scrutinised" by the Select Committee on Home Affairs. No change was made by Standing Committee B to the provisions affecting occupation orders. No amendment to those

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provisions was even tabled. The Bill was then dropped, for reasons which I would not presume to question. I ask myself: why should we now take it upon ourselves to alter our considered opinion on occupation orders? It was an opinion with which the other place has so far shown no disagreement whatever. Let us therefore send the Bill back to the other place in the form, in relation to temporary occupation orders, which in our considered opinion of last year we thought to be right. That will happen if the amendments are accepted. Let us see what the other place thinks. In my submission, it is far too early to change our minds. I therefore support the amendments.
Earl Russell: My Lords, I too wish to add my support for the amendments. First, I do so because I believe that in the last Session, in the Select Committee—of which I regret I was not able to be a member—the Bill received a far more careful scrutiny than we in full House have been able to give it now.
Part IV of the Bill is highly technical. We have been through it concentrating on the "headline" points. For all the effort I have put into trying to get it right, I do not understand it nearly so well as those who were members of the Select Committee in the previous Session. I therefore think that, if we disagree with the Select Committee, the balance of probability is that the Select Committee got it right. All Her Majesty's subjects are entitled to equal protection against physical violence and may suffer from an equal need for it. That point appears to me to be capable of carrying great weight.
The balance of harm test is a good one. So far as I can see, it is what we need to know in order to decide what should be done. That test enables the court to take all relevant influences into consideration. It enables the court to weigh conflicting interests, conflicting needs and conflicting dangers against each other. Since cases are extremely individual, it can be difficult to fetter the consideration of the court in such matters. At present, the noble and learned Lord, Lord Brightman, is probably right that it will not make much difference in practice. However, we must hope that the Bill will remain on the statute book for a long time. I do not believe that we can foresee how judges in 30 or 50 years might interpret the clauses. Therefore, the fact that it may make little difference at present does not obviate the need to give ourselves security for the future.
Also I see no answer to this question: if the changes did not make much difference, why were they worth introducing? They set the mark of Cain upon some of Her Majesty's subjects. Why was that worth doing, unless it made a difference to how the Bill operated in practice? If it is useless, then it should go out because it is a provoking and, in many quarters, extremely unpopular set of changes. They could only have been justified by showing that they met a genuine practical need. I have not heard that case demonstrated; I have not even heard it argued.
On Amendment No. 43, the case made by the noble Lord, Lord Irvine, about terminal illness is powerful. If someone is in a state of terminal illness and may live
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another three months, it seems gratuitously cruel to have to move them out, with all the disruption that that entails, in the last few weeks of their life. It might also entail a considerable cost to public funds. There is the further possibility that the accommodation might be purpose-built for a disabled person. In those circumstances, if the court were entirely free to consider the issue, it might appear to be sensible to continue the order. I wish to see the court given back that discretion. I would trust the court not to use it in any reckless or unadvised way. I too very much hope that the amendments will be accepted.
Baroness Darcy (de Knayth): My Lords, as a member of the committee which was chaired with such skill by my noble and learned friend Lord Brightman, I wish to add my strong support for the amendments, for the reasons which have been stated so clearly and convincingly. I have in mind something which the noble Earl, Lord Russell, said on a different amendment at Report stage. It was that there was a difference between marriage and cohabitation but it is simply not relevant in this context. Both families are equally in need of protection.
Baroness Young: My Lords, I had not intended to enter into this debate at all. However, I have listened to the arguments, and my noble and learned friend will perhaps be astonished to hear that I very much support the stand that he has taken over this matter.
I was quite concerned at the speech by the noble and learned Lord, Lord Brightman, and that by the noble Baroness, Lady Darcy (de Knayth). There is a very real distinction between marriage and cohabitation. One of the great dangers now is that we are going down the path of making that distinction less and less. This is one such case. I accept that there are hard cases. But after all, if you are living together, you can always leave. That is one of the points about living together as opposed to marriage, where you are in an entirely different legal situation.
I regret very much that I did not follow the intricacies of this debate when it came before the House last year. I apologise for that. I realise that I should have done so, but other matters intervened. I am one of those who feel that there is a very real danger—signalled, I may say, by the Law Commission—that we shall be pushed into a situation where there is not a distinction between marriage and cohabitation; and this bit of the Bill is a classic example. We need to think very carefully before accepting these amendments.
Earl Russell: My Lords, before the noble Baroness sits down, I ask her to read tomorrow in the Official Report what the noble Baroness, Lady Darcy (de Knayth) actually said. She did not say that there was no distinction between marriage and cohabiting; she said that it was not relevant to this Bill.
Baroness Young: Yes, my Lords, of course I shall read tomorrow in Hansard the remarks of the noble Baroness, Lady Darcy (de Knayth), with whose views

711
on most matters I am in agreement. I do not agree with her on this point. I believe that the distinction is relevant to the Bill.
Baroness David: My Lords, as another member of the Jellicoe Committee, I believe that the noble Baroness, Lady Young, is wrong about this. I do not think it is a question of whether people are married or not. It is a case of domestic violence. I very much support the remarks of the noble Baroness, Lady Darcy (de Knayth). That particular argument is irrelevant to this small part of the Bill.
The Lord Chancellor: My Lords, I, too, was a member of the committee over which my noble and learned friend Lord Brightman presided with such distinction. In some of these issues one has to take account of perceptions and the way in which matters are dealt with.
As I mentioned before, Part IV of the Bill recognises in relation to occupation a distinction between those who are married and those who are not, in the respect that those who are married have rights of occupation in the matrimonial home, whereas those who are not married do not. They may get an order from the court for occupation, but they are not entitled as of right to occupy the family home. So that distinction is recognised in this part of the Bill, and was recognised in the Bill as it emerged from the committee last time and also from this House last time.
The question is how far that distinction should go. In this particular situation, in consideration—I shall be quite frank about it—of the views of my colleagues in another place, I proposed amendments to the Bill that emerged from this House and had gone through a considerable part of its passage in the other place when difficulties arose in relation to it. It is reasonable to take account of those in the way in which this Bill as now drafted does.
As I mentioned before, Amendment No. 40 is not appropriate. It refers to subsection (4) rather than subsection (5). Reading the whole thing together does not make sense. Therefore it is not a particularly happy amendment to insert at Third Reading on that account. I mention that again only because this is Third Reading.
Turning to Amendment No. 43, it seems reasonable when this question is raised and people are concerned about it, to recognise the distinction between those who are married and those who are not in the respect that the person who is unmarried has no right in the family home. It is not a question of people being "second-class" but of recognising all the circumstances. If one wants a right in the family home, the law says that people have that by being married. Surely the law can recognise that. If you do not have a right in that way, this clause as presently drafted limits, and not particularly narrowly, the power of the court to grant an occupation order twice, up to a total of two with six-month periods as the periods of the order.
I certainly see the arguments on both sides of this question. Earlier I saw more forcefully the argument on one side and I am now proposing the argument on the other, having regard to the views expressed by my
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colleagues in another place. This point having been raised in the other place, I invite your Lordships to agree that the Bill goes forward as it is presently drafted. In any event, there is a technical obstacle in the path of Amendment No. 40.
Lord Irvine of Lairg: My Lords, I am completely unconvinced by the Lord Chancellor's response. If the noble and learned Lord respected intellectual consistency, he would not even convince himself.
I am disappointed but unsurprised by the response. That is a condition which I often experience when listening to the noble and learned Lord, though I can assure him that I have the identical experience when listening, from time to time, to others from the Government Front Benches.
Despite the hour; despite the small number of your Lordships in the Chamber—though I dare say that there will be many more on hand who will vote who have not listened to the debate—I desire to test the opinion of the House. I do that not least because it will show the other place the concern that some in this House feel for this subject. I commend the amendment to your Lordships.
9.20 p.m.
On Question, Whether the said amendment (No. 40) shall be agreed to?
Their Lordships divided: Contents, 13; Not-Contents, 58.

Division No. 3

CONTENTS

Attlee, E.

Hylton, L.

Barnett, L.

Irvine of Lairg, L.

Brightman, L.

Lawrence, L.

Darcy (de Knayth), B.

Mackie of Benshie, L.

David, B.

Meston, L.

Graham of Edmonton, L.

Monkswell, L.

Russell, E. [Teller.]

NOT-CONTENTS

Addison, V.

Henley, L.

Blatch, B.

Hooper, B.

Boardman, L.

Howe, E.

Brentford, V.

Inglewood, L.

Brigstocke, B.

Leigh, L.

Burnham, L.

Lindsay, E.

Carnock, L.

Long, V. [Teller.]

Chalker of Wallasey, B.

Lucas, L.

Clark of Kempston, L.

McConnell, L.

Clifford of Chudleigh, L.

Mackay of Ardbrecknish, L.

Coleraine, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Courtown, E.

Dean of Harptree, L.

Mackay of Drumadoon, L.

Elles, B.

Miller of Hendon, B.

Elton, L.

Montgomery of Alamein, V.

Faithfull, B.

Mountevans, L.

Ferrers, E.

Northbouene, L.

Gilmour of Craigmillar, L.

Northesk, E.

Habgood, L.

Park of Monmouth, B.

Hamilton of Dalze11, L.

Perth, E.

Harmar-Nicholls, L.

Ripon, Bp.

Harmsworth, L

St. John of Bletso, L.

Harvington, L.

Shaw of Northstead, L.

713

Shrewsbury, E.

Trumpington, B.

Simon of Glaisdale, L.

Tugendhat, L.

Skelmersdale, L.

Vinson, L.

Stoddart of Swindon, L.

Wade or Chorlton, L.

Strange, B.

Wilcox, B.

Strathclyde, L. [Teller.]

Wynford, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
9.29 p.m.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 41 and 42:
Page 24, line 38, after ("harm") insert ("attributable to conduct of the respondent").
Page 24, line 41, at end insert ("attributable to conduct of the respondent which is").
The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 28. I beg to move.
On Question, amendments agreed to.
[Amendment No. 43 not moved.]
Clause 35 [Neither cohabitant or former cohabitant entitled to occupy]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 44 to 46:
Page 26, line 25, after ("child;") insert-—
( ) the conduct of the parties in relation to each other and otherwise;").
Page 26, line 29, after ("harm") insert ("attributable to conduct of the respondent").
Page 26, line 32, at end insert ("attributable to conduct of the respondent which is").
The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 28. I beg to move.
On Question, amendments agreed to.
Clause 42 [Ex-parte orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 47:
Page 29, line 14, after ("child") insert (", attributable to conduct of the respondent,").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 28. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 48:
Page 29, line 26, leave out ("initial order") and insert ("order by virtue of subsection (1)").
The noble and learned Lord said: My Lords, Amendments Nos. 48 and 59 are drafting amendments. The first concerns an amendment to Clause 42(3) made at Report stage in relation to ex-parte orders. As drafted, this would have the effect of preventing the provision that the respondent should be given an opportunity to make representations in relation to an ex-parte order as soon as is just and convenient at a full hearing from applying to non-molestation orders. That was certainly not my intention. The first amendment corrects the position.
Amendment No. 59 is a drafting alteration to Schedule 7 arising from a renumbering of subsections following earlier amendments. I beg to move.
On Question, amendment agreed to.
Clause 44 [Arrest for breach of order]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 49:
Page 30, line 24, after ("child") insert (", attributable to conduct of the respondent,").
The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 49, 50 and 51 with Amendment No. 28. I beg to move.
On Question, amendment agreed to.
Clause 59 [Interpretation of Part IV]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 50 and 51:
Page 38, line 6, leave out ("an applicant") and insert ("a person").
Page 38, leave out lines 8 to 10.
On Question, amendments agreed to.
Schedule 1 [Arrangements for the Future]:
Lord Coleraine Lord Coleraine moved Amendment No. 52:
Page 41, line 13, after ("has") insert ("wilfully").
The noble Lord said: My Lords, in moving this amendment, I speak also to Amendment No. 53, which is also in my name. My purpose in speaking on these amendments is to question my noble and learned friend on the drafting of a peculiarly sensitive part of the Bill. As noble Lords will recall, the requirements concerning the arrangements for the future have to be satisfied before a divorce can be obtained. I shall read from Clause 9(5) so far as is relevant:
"If the court is satisfied, on an application made by one of the parties after the end of the period for reflection and consideration, that the circumstances of the case are—
"(a) those set out in paragraph 1 of Schedule 1,
"it may make a divorce order or a separation order even though the requirements of subsection (2) have not been satisfied"
as regards the arrangements for the future.
Again, as far as relevant, the first exemption in Schedule 1 is that,
"The circumstances referred to in section 9(5) [include that] the applicant has made an application to the court for financial relief and has complied with all requirements of the court in relation to proceedings for financial relief, but—
(i) the other party has delayed in complying with the requirements of the court or has otherwise been obstructive".
Dealing with the first amendment, that puts the word "wilfully" before "delay". It seems to me that the delay may be outside the control of the party and therefore an element of culpability ought to be imported into the Bill. I go a bit further and ask my noble and learned friend exactly what he has in mind. The normal requirement of a court will be to do something within a certain time. The failure to do something within a certain time does not come within the heading of "delay". If that is what my noble and learned friend has in mind, I would have thought the words would have been "the other party has failed to comply with the requirements of the court".
The other point raised by Amendment No. 53 is to inquire as to the meaning in this context of "obstructive". What sort of things does my noble and learned friend consider that the word would cover? I have provided that the other party has been obstructive "of the court process". The word "obstructive" is a very vague one and seems capable of being used in a number of ways. I shall be grateful if my noble and learned friend can explain what is in mind here. I beg to move.
The Lord Chancellor: My Lords, my noble friend has drawn to our attention Amendments Nos. 52 and 53. It might be useful if I turn first to Amendment No. 53, which sets the scene. There are circumstances—for example, not responding to correspondence from the applicant's solicitors or refusing to instruct his or her solicitor so that matters may progress—where one party is being obstructive to the applicant without necessarily being obstructive of the court's process. I believe that the court, which will have before it all the papers relevant to the case, should be entitled to make its own judgment, taking into account all the circumstances of the case, as to whether behaviour has been obstructive or not. I am also concerned that, by requiring the court to make a judgment as to whether behaviour has been obstructive "of the court's process" rather than other aspects of obstruction, another proposition is introduced which the delaying party could use to create further delay.
The object is to try to ensure that that party does not without proper reason drag out the process of having the arrangements made. The idea behind the exemption is therefore reasonably clear. Any form of obstruction, which the court regards as simply obstruction, could be taken into account.
In relation to Amendment No. 52, the court is likely to have to undertake lengthy investigations into the state of mind of those parties who have delayed in complying with the directions of the court to establish whether that delay was wilful. Your Lordships will be aware that questions which relate to the state of mind of a person are always difficult to determine. I heard recently of a case where one party to a marriage had avoided paying maintenance to his wife for some five years because he happened to be on business trips every time the court was to have a hearing to set the level of his maintenance obligations or he was due to file relevant papers in order to comply with directions. I am sure that your Lordships have come across such cases—perhaps not involving a delay of five years, because that is exceptional, but I thought that it might therefore be of particular interest. The only time when the business trips did not interfere with the husband's appearance in court or prompt compliance with court directions was the day before the time available for him to appeal against orders made in his absence was due to expire. He then seemed miraculously to be at home. On the face of it, that may appear to be wilful delay, but how is the court to prove or judge wilfulness against coincidence? It may just have happened that his employers arranged their business in that extraordinarily coincidental way.
It must be remembered that, when considering questions in relation to the application of Schedule 1, the court will have before it all the papers relevant to
716
the case. It will be able to see when and where delay has arisen and whether there was a good reason for delay and so judge the merits of the application for exemption on the basis of the facts before it. I do not believe that a test of wilfulness is necessary, as this may lead to many protracted appeals to the detriment of the parties and the children when the court will have available to it the sort of information which would enable it to make a fair and just decision on the issue of delay.
I think that it is reasonably plain that the purpose of the schedule and the provisions connected with it is to ensure that, unless there are really exceptional circumstances, the arrangements are complete before the divorce order is pronounced. That is the common sense of the matter. What is being attempted in this part of the schedule is to make sure that, if the reason why the arrangements have not been made is simply because of a delay without good reason—that is, obstruction—that will not be allowed to delay the process indefinitely. That seems a sensible balance in a difficult area. I hope that that has sufficiently answered the probes which my noble friend directed to me and that he will feel able to withdraw the amendment.
Lord Coleraine: My Lords, I am grateful to my noble and learned friend for his reply. It is helpful to have that on the record. Beyond saying that I find it difficult to see how the passivity of failing to respond to correspondence can be called "obstruction", I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 53 not moved.]
Schedule 2 [Financial Provision]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 54:
Page 45, line 7, leave out from ("satisfied") to end of line 8 and insert—
("( ) that the circumstances of the case are exceptional; and
( ) that it would be just and reasonable for the order to be so made.").
The noble and learned Lord said: My Lords, with this amendment I shall speak also to Amendments Nos. 56 and 60. The amendments ensure that financial provision orders and property adjustment orders, except interim orders, cannot take effect before the divorce order or the separation order is made, unless the court is satisfied that there are exceptional circumstances and that it would be just and reasonable for the order to take effect before that time.
Your Lordships will remember that on Report I mentioned that I was advised by the Ancillary Relief Advisory Group that the phrase "just and reasonable" was stronger than the phrase proposed in the amendment tabled by my noble friends Lady Young and Lord Coleraine. I of course accepted that advice. But looking back over the debate, I am entirely supportive of the principle lying behind my noble friends' amendment. I thought that it might add a degree of security if I added "exceptional circumstances" as well. So we have "exceptional circumstances" and that it would be "just and reasonable", in order to make it as clear as we can that the ordinary rule is that these orders

717
should not take effect until the divorce itself is pronounced. I hope that your Lordships will feel that that is an emphasis which is worth making and which the amendment underlines.
Your Lordships will remember that in the previous amendments there was a specification of circumstances. I have taken the view that that might make it easier to make the orders take effect earlier, so I have not incorporated that. I believe that the general words that we have now used send the message plainly. I beg to move.
Baroness Young: My Lords, I thank my noble and learned friend for tabling the amendment which entirely meets the points raised at Report. I am grateful to him.
On Question, amendment agreed to.
[Amendment No. 55 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 56:
Page 47, line 36, leave out from ("satisfied") to end of line 37 and insert—
("( ) that the circumstances of the case are exceptional; and
( ) that it would be just and reasonable for the order to be so made.").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 54. I beg to move.
On Question, amendment agreed to.
[Amendment No. 57 not moved.]
Baroness Young Baroness Young moved Amendment No. 58:
Page 48, line 26, at end insert—
("( ) For section 25, substitute—
"Principles which the court is to apply.
25.—(1) The principles which the court shall apply in deciding what, if any, order to make under any of sections 22A to 24 above, are that—

(a) the net value of matrimonial property should be shared fairly between the parties to the marriage;

(b) fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;

(c) any economic burden of caring, after the marriage breakdown, for a child of the family under the age of 16 years should be shared fairly between the parties;

(d) a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years, to the loss of that support after the marriage is dissolved or annulled;

(e) a party who seems likely to suffer serious financial hardship as a result of the marriage breakdown should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

(2) In subsection (1)(b) above—
"economic advantage" means advantage gained whether before or during the marriage and includes gains in capital, in income and in earning capacity, and 'economic disadvantage' shall be construed accordingly;
718
"contributions" means contributions made whether before or during the marriage; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family.
(3) In applying the principles set out in subsection (1)(a) above, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances.
(4) The net value of the matrimonial property shall be the value of the property at the time the court deals with the matter in exercise of its powers under this Part, save that any appreciation or depreciation in value since the parties' separation which is primarily attributable to the acts of one party may be disregarded.
(5) Subject to subsection (6) below, in this Part of this Act "matrimonial property" means all the property belonging to the parties or either of them which was acquired by them (otherwise than by way of gift or inheritance from a third party)—

(a) during the marriage; or

(b) before the marriage for use by them as a family home or as furniture and effects for such home.

(6) The proportion of any rights or interests of either party—

(a) under a life policy or similar arrangement; and

(b) in any benefits under a pension scheme which either party has or may have (including such benefits payable in respect of the death of either party),

which is referable to the period beginning with the marriage and ending with the date of the parties' final separation, shall be taken to form part of the matrimonial property, subject to any discounts which the court thinks fit to apply (for example, for the chance of receiving less than the quoted benefits).
(7) In subsection (3) above "special circumstances", without prejudice to the generality of the words, may include—

(a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property or maintenance;

(b) the source of funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage;

(c) any destruction, dissipation or alienation of property by either party;

(d) the nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realised or divided or used as security."

( ) For section 25A, substitute—
"Matters which the court is w take into account.
25A.—(1) In applying the principles set out in section 25 of this Act, the following provisions of this section shall have effect.
(2) For the purposes of section 25(1(b) of this Act, the court shall have regard to the extent to which—

(a) the economic advantages or disadvantages sustained by either party have been balanced by the economic advantages or disadvantages sustained by the other party, and

(b) any resulting imbalance has been or will be corrected by a sharing of the matrimonial property or otherwise.

(3) For the purposes of section 25(1)(c) of this Act, the court shall have regard to—

(a) any maintenance being paid to or on behalf of the child;

(b) any expenditure or loss of earning capacity caused by the need to care for the child;

(c) the need to provide suitable accommodation for the child;

719

(d) the age and health of the child;

(e) the educational, financial and other circumstances of the child;

(f) the availability and cost of suitable child-care facilities or services;

(g) the needs and resources of the parties; and

(h) all the other circumstances of the case.

(4) For the purposes of section 25(1)(d) of this Act, the court shall have regard to—

(a) the age, health and earning capacity of the party who is claiming the financial provision;

(b) the duration and extent of the dependence of that party prior to divorce;

(c) any intention of that party to undertake a course of education or training;

(d) the needs and resources of the parties; and

(e) all the other circumstances of the case.

(5) For the purposes of section 25(1)(c) of this Act, the court shall have regard to—

(a) the age, health and earning capacity of the party who is claiming the financial provision;

(b) the duration of the marriage;

(c) the standard of living of the parties during the marriage;

(d) the needs and resources of the parties; and

(e) all the other circumstances of the case.

(6) In having regard under subsections (3) to (5) above to all the other circumstances of the case, the court may, if it thinks fit, take account of—

(a) any legal or moral duty of support owed to a third party by the party against whom the claim is made;

(b) the conduct of the parties both during and since the marriage (including the way in which they deal with any contact arrangements for a child of the family).".").

The noble Baroness said: My Lords, I moved this amendment briefly at the end of the Report stage. It was at such a late hour that I did not feel it appropriate to go into any detail. I am sure that my noble and learned friend the Lord Chancellor will recall that he kindly offered to arrange a meeting on this matter, which we had last week.
As a result of that meeting, I retabled the amendment. It may be helpful to the House if I say clearly that this is not an amendment upon which I would wish to divide the House, because that would be inappropriate. It opens up a new principle which would be helpful to the principles which my noble and learned friend wishes to have behind this piece of legislation.
The amendment is based on Scottish law and what happens now in Scotland. It may surprise your Lordships, as it did me, to discover that English law is devoid of any principle of sharing assets on divorce. The ruling section (Section 25 of the Matrimonial Causes Act 1973) leaves everything to the court's discretion. There is a power to transfer assets from one spouse to another, or to settle property on one or both spouses and the children, but there is no guidance on how those powers are to be exercised.
Furthermore, the Court of Appeal has said repeatedly that previous decisions are no guide: every case turns on its own facts. The House had a long debate on pension splitting on Report, and an amendment was
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carried which opens up the principle of splitting, assets. I believe that amendments must be made to the Bill in order to meet that decision of your Lordships' House.
I understand that most systems of law treat marriage as a partnership of equals. Systems of law, in particular in Europe, go on to provide what most people would accept as fair; namely, that property and savings which will come into being during the marriage as a result of joint efforts of the parties should be divided equally. It matters not whether one goes out to work while the other stays at home looking after the children. The corollary is that assets brought into the marriage by one spouse or come from outside by way of a gift or inheritance remain the separate property of that spouse. That is broadly the position in Austria, Belgium, Denmark, Finland, France, Germany, Italy, Norway, Spain, Sweden, Switzerland and, last but not least, Scotland. Therefore, there is extensive experience of the working of the provision. As I said, in every one of those countries the divorce rate is lower.
Therefore, it shows that the English system of making such settlements raises a number of problems. In the first place, on entering divorce people do not know what their rights are. Lawyers cannot advise on the likely outcome of court proceedings because a court may award this or it may award something else. Furthermore, practice may vary in different parts of the country. It appears to be the case that, proportionately speaking, wives in the south east tend to do better than in the Midlands or the north. Whether or not that is the case it is certainly a perceived case.
Since the outcome of such cases is so unpredictable, lawyers are reluctant to commit themselves to a quoted fee in advance and therefore they quote on an hourly rate. The client is then sucked into a spiral which he or she often cannot control and costs increase. I understand that my noble and learned friend is looking for savings and this appears to be an area in which savings might be made. I believe that we would all agree that it would be to our advantage if savings could be made on legal aid in this way. It would appear that Scottish law is fairer than ours and there is no sound reason why England and Wales should operate a different system.
One of the reasons why I have tabled the amendment is that we need to ask ourselves whether the different system has any influence on the divorce rate. In the absence of clear statistics it is difficult to make such judgments. Nevertheless, it is observable that 75 per cent. of divorce petitions are presented by wives. It is just possible that the majority of men have behaved badly and that this is a restoration of some kind of balance of power over the ages. What seems to be a more likely explanation is that women are now cushioned economically from the effects of divorce. That arises in two ways; there are state benefits in the Child Support Act and the courts frequently award 75, 80 or even 100 per cent. of the family home to the custodial parent, who is usually the mother.
It appears that as a consequence divorce may be a much more attractive option for many women than struggling to make the marriage work. I regret to have to say that because I do not like to speak in such a way

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about my own sex. However, there is considerable evidence to show that for no good reason many men appear to be turned out of the house and divorce follows. It would be unrealistic to suppose that all those factors have no effect on the divorce rate because, in a way, our system offers incentives to divorce rather than the reverse.
This is a wide subject and I do not wish to take up more time at this late hour. I believe that it shows that there are serious weaknesses in the English system. It generates anxiety; it certainly generates uncertainty; and I believe that it generates acrimony.
It seems to me that if there were clearer ground rules, more cases would be settled which would contribute to the saving of public funds. It seems strange that we are alone among European powers and quite distinct from Scotland in what we do. If the Scottish system has the great merits of clarity, fairness and providing much greater certainty so that you know much more clearly when you go into divorce what the consequences will be, and if it leads to less acrimony, they would be merits which make the amendment well worth very serious consideration.
It is for those reasons that I have tabled the amendment. My attention has been drawn to what is currently happening in Scotland where the system appears to work well. It works well in a great many countries in Europe. We should consider having something similar if it has all those beneficial advantages which other countries appear to enjoy coupled with a lower divorce rate, which I believe we all wish to see. I do not wish to push that argument too far because I am not sufficiently familiar with all the details of it, but I hope that my noble and learned friend will take away the amendment and consider and consult upon the matter. If at the end of all that, it were thought to be a good idea, perhaps we should incorporate it into our legislation. I beg to move.
Lord Meston: My Lords, the noble Baroness said very realistically that this is an important amendment. Indeed it is. It proposes to replace the existing provisions of Section 25 of the Matrimonial Causes Act, which is familiar to family lawyers in England and Wales, with a set of guidelines based on Scottish law and relating to matrimonial property.
At earlier stages of the Bill, reference was made to the differences between English and Scottish divorce law. Indeed, a long time ago, one of the factors which contributed to the Matrimonial Causes Act 1857 was protracted conflict between English and Scottish law. Scotland was then the place where divorce was much easier.
English law on property and financial matters has been in its present form since 1970, with some modification in 1984. It is the product of the Law Commission and detailed parliamentary consideration before each enactment.
This Bill is primarily concerned with the substantive law of divorce rather than with any attempt to make major policy changes in the property and financial law
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of England and Wales. In no way would I wish to say that Scottish law in this area, of which I have little knowledge and less experience, is in any way inferior. The Scottish legislation was of course the result of parliamentary consideration, and indeed, it could be said that it is more recent than that for the English law.
The general perception among English lawyers is that Scottish law is rather less generous to wives and perhaps less flexible. That perception may or may not be correct. I think that it can be said that where the marriage of an English wife and a Scottish husband breaks up, the Scottish husband tends to head north of the Border and he goes to see his lawyers in the hope that they can get in first.
The amendment is important. It is really too important for the Third Reading of this Bill. What is required for any serious consideration of this important point is a full comparative analysis of the strengths and weaknesses of the law in each jurisdiction. I would be very reluctant to accept anything which drives a coach and horses through 25 years of English law without very careful and full debate. We must be sure of the merits of anything which will replace English law.
Without clear evidence, I would question whether English law as it presently stands could in any sense be described as an incentive to divorce. The noble Baroness suggested that Scottish law appears to be fairer. There is certainly more emphasis on an equal division, but, even in Scotland, that does not always happen. As I understand it, a 50:50 split is not always a fair split; indeed, it is not always a practical split, especially when there are children involved.
English law concentrates rather more on other discretionary factors—for example, the length of the marriage, the contributions of the parties, the loss of pension rights and other disparities. It might he said that the discretion is a little more subtle. Even pension splitting, which may well come into effect and to which reference has been made, I do not understand necessarily to be the equal splitting of pensions but rather a provision designed, if it is enacted eventually, to enable a split either equally or in some other proportion.
The noble Baroness also suggested that Scottish law was more certain and, indeed, that English law was undesirably uncertain. I am not able to say whether a Scottish lawyer is better able to state with any confidence or accuracy the likely result of court proceedings. However, I do know that English law is not so wide in its discretion that cases cannot be settled with a reasonable expectation of what a court would do. The noble Baroness further suggested that lawyers found it difficult to give advice, so vague and discretionary was the English system. Well, some of us have to try to give firm advice. I do not know about fixing the cost of that advice, but I know somewhere where the noble Baroness can obtain cheap and cheerful advice should it be required.
There are of course differences as between court and court, even within a relatively small jurisdiction. That is not simply applicable to divorce law; indeed, it can apply to the quantification of damages for a broken leg. One can have two different judges looking at the same

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set of medical reports and producing different figures, but not producing such a wide disparity in the awards that either award could be said to be wrong or unfair. I respect the motives behind the amendment, and I ask your Lordships to accept the spirit in which it was moved. However, as I said, it is really too important a topic to be considered in detail at this stage and at this late hour.
Lord Stoddart of Swindon: My Lords, I was very pleased to attach my name to the amendment. I agree with the two former speakers that perhaps we ought not to discuss such a matter in great depth at this time of night in relation to this Bill. I understand that the noble and learned Lord the Lord Chancellor has had discussions with the noble Baroness, Lady Young, and has expressed his interest in giving the matter further consideration. I sincerely hope that he will do so.
The noble and learned Lord will remember that we discussed the matter during the proceedings on the Child Support Act. A good deal of praise was heaped on the Scottish system at that time, which the noble and learned Lord gladly accepted with alacrity. After the Bill has been passed, I sincerely hope that action will be taken to try to clear what many people believe are grave anomalies in the present law in relation to the distribution of assets on divorce.
There is great resentment, particularly among men who believe that they are badly treated and that on divorce the splitting of assets goes very much in favour of wives, and often unfairly so. That resentment has expressed itself in all sorts of ways throughout the country—for example, in letters to Members of both Houses of Parliament and in demonstrations up and down the land. I accept that many of those demonstrations were occasioned by the Child Support Act, but nevertheless there is clearly a grave problem here which ought to be investigated and which ought to he addressed by Parliament in the near future. That is all I want to say, except to ask the noble and learned Lord the Lord Chancellor if he can give an assurance that this matter will be attended to and will be addressed at an early moment.
10 p.m.
Lord Northbourne: My Lords, first I wish to congratulate the noble Baroness on bringing this issue forward. I want to draw attention to an aspect of the matter which, if I have correctly understood the situation, is important and makes the amendment relevant to this particular Bill. If Spouse A is seeking to obtain a divorce, and Spouse B does not wish to have a divorce, and Spouse B has not committed any fault, under the law as it exists at the moment, Spouse A would have to wait five years. Under the Bill which we have before us, Spouse A will only have to wait one year. Therefore that means that this Bill gives an enormous opportunity for gold-diggers and for injustice if an unscrupulous spouse enters into marriage with a view to gaining financial advantage.
As a result, the issues that are raised by this proposal are of extreme importance and relevance to this Bill. I marginally disagree with the noble Lord, Lord Stoddart
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of Swindon, in saying that I think this issue should be dealt with under this Bill. I know of a number of cases where I believe gross injustice has occurred, usually to men who are fairly newly married with a young wife who has a child, and those men have lost a high proportion of their assets as a result of a divorce precipitated by the wife. That situation could become much worse under the terms of this Bill when it is enacted.
My other point, which has also been mentioned, is that it can be argued that the English system as it stands at present can offer incentives to divorce to young women with children. I believe that courts frequently award 75 to 80, and even sometimes 100 per cent., of the family home to the custodial parent, who is usually the mother. State benefits and child support are also tailored to support the lone parent. On the other hand, at a later stage in the marital cycle the man may have the advantage when the children are grown up, and it may be more attractive financially for the man to divorce.
It seems to me from what I hear that the Scottish system is fairer than ours. It has the enormous advantage that people know roughly where they stand. Some sort of criteria for decision are laid out on the face of the Scottish legislation. If that were to be transposed into this Bill, that would surely give a sounder basis for mediation criteria; criteria to help enable sensible decisions to be made at mediation rather than leaving the matter completely open and vague. It seems to me that we have here a great opportunity to improve the law. I hope that the noble and learned Lord will seriously consider the ideas behind this amendment, and consider them for amendment in another place.
Lord Simon of Glaisdale: My Lords, the noble Baroness is greatly to be congratulated in bringing this amendment before the House. It is an important amendment. The noble Lord, Lord Meston, suggested that it was unsuitable for Third Reading but the alternative was to move it after midnight on the final day of the Report stage. The noble Baroness quite rightly withdrew it at that stage, when it would have been indecent to discuss a proposal of such importance.
This is a divorce Bill, although it parades under the name of a family law Bill. It is a divorce Bill with a domestic violence Bill left over from last Session attached to it. However, the law can intervene in support of marriage as well as in its destruction. One of the ways in which it can intervene in support of marriage is in adjusting the law of family property so that it reflects the promise made at marriage of the sharing of worldly goods.
At the moment, for a married woman to acquire any interest in the matrimonial home she has either to become a widow or to be divorced. At an earlier stage of the Bill I proposed, as schedules to the Bill, two Law Commission Bills which are of long standing dealing precisely with matrimonial property during the subsistence of the marriage and not merely after divorce. My noble and learned friend was, I thought, fairly encouraging, but he has since written to me to suggest that that matter, which has been outstanding with Law

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Commission recommendations since 1980, cannot be considered now for another three years. That is shameful to the law. I very much hope that, although that is a matter of prime importance, a married woman who stands by her marriage should not have to be divorced in order to acquire any rights and should not be put at a disadvantage by the law compared with a woman who takes divorce proceedings.
In the meantime, I hope that my noble and learned friend will take the amendment away, consider it very carefully, and, if it so commends itself to him, table the necessary amendments in the other place.
Lord Hamilton of Dalzell: My Lords, I came to the Bill not liking it in principle, and took particular exception to it in that I felt that it created a gold-diggers' charter. I am extremely grateful to my noble and learned friend for taking me on board and putting me through the mill on this Bill, and for explaining that Schedule 10 of the Bill covered much of the ground by introducing the interests of children and protecting property. It will have the effect that if there is a child of the marriage it will not be in the interests of the child for the squabbling couple to split inherited property or businesses.
One of the interesting points that should be borne in mind is that Ireland very nearly defeated the right to divorce because of the effect it has on property. That is not only the prerogative of large landowners but also ordinary people affected by divorce, and also businesses. One of the challenges was to improve Section 25 of the Matrimonial Causes Act 1973. I have studied it. After a perfectly sensible collection of matters which the courts ought to bear in mind it ends by stating,
"and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other."
The fact is that that is an inducement to cut everything down the middle. The question then hinges on,
"having regard to their conduct, just to do so".
Lord Meston: My Lords, I hesitate to interrupt the noble Lord. However, the statutory objective of placing the parties in the position in which they would have been had the marriage not broken down has not been the law since 1984. That has gone.
Lord Hamilton of Dalzell: My Lords, I thank the noble Lord. I am grateful for that. In talking to people who have experienced divorce, the fact that that provision has gone does not seem to be apparent to them.
If one is not to have a gold digger's charter, how on earth does one decide who will get what out of the division after a divorce unless someone is prepared to consider what took place before the divorce?
My noble and learned friend wrote to me saying that in response to the amendment by the noble Lord, Lord Clifford, in Committee, the view of the ancillary relief advisory group—it consists of members of the
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judiciary and representatives of the Law Society, the Solicitors Family Law Association, and so on—was that the amendment should not be accepted. The letter states:
"It was the Group's view that the current provisions did not cause problems".
That is news to noble Lords who have people involved in divorce proceedings. The document continues:
"The court was not the appropriate forum to look into the causes of marital breakdown".
I know that the purpose of the Bill is that the courts should not have to look into the causes of marital breakdown. It is a pragmatic Bill which incorporates the existing situation. Does my noble and learned friend consider that the Scottish alternative to Section 25 is a more pragmatic solution to the problem than the present Section 25, if fault is not to be involved?
Lord Clifford of Chudleigh: My Lords, I thank the noble Baroness for moving the amendment. I wish to address subsection (6). The remainder has been addressed already.
The issue relates to pensions. I thank the noble and learned Lord the Lord Chancellor who has avowed to give much more attention to this part of the Bill despite what happened in Committee. It may be wise to listen to the advice that I have been given on certain matters relating to occupational pensions. My advisers tell me—I think that noble Lords will be interested to know it if they do not already know—that we should be concerned that the domestic law measure in 1981, the Transfer of Undertakings (Protection of Employment) Regulations, is, sadly, being undermined. It appears that future occupational pension rights are not protected by those regulations. I am grateful to the noble and learned Lord for saying that he will consider that point.
As we have heard, and as we were well aware, approximately 71 per cent. of couples today both have jobs. Should that be the case, it makes it that much fairer that each party contributes to a pension scheme, and that there should be a fairer share on a divorce.
I agree 100 per cent. with what the noble Baroness said. As I am sure noble Lords are aware, the Scottish law holds that whatever asset is brought into a marriage, it is retained by the party who brought it in. Any of the assets which are brought in after the marriage are shared by both parties. It is only fair to consider the mother in a marriage who has nurtured, cared for and looked after the social education of her children, that her contribution should be considered as equivalent to the premium paid to a pension and that that should therefore guarantee to her a due share. Apart from that, I agree with what the noble Baroness said. We must consider very seriously the ideas which have been practised in Scottish law.
10.15 p.m.
The Lord Chancellor: My Lords, I am very grateful to my noble friend Lady Young and the noble Lord, Lord Stoddart of Swindon, for tabling Amendment No. 58, which seeks to replace Section 25 of the Matrimonial Causes Act 1973 with Sections 9, 10 and 11 of the Family Law (Scotland) Act 1985 with some modifications, one of which is quite major.

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Section 25 is the provision of the 1973 Act which lists the factors which the court is to take into account when it is considering financial provisions on divorce, first consideration being given to the children of the family who are under 18.
The wide discretion which the 1973 Act gives to the court when it is considering financial provision on divorce would be restricted by this amendment. The court would instead be required to consider the five principles set out in subsection (1) of the amendment; for example, the principle that the net value of the matrimonial property should be shared fairly between the parties.
The ambit of matrimonial property would be more limited under the proposed amendment than at present. Gifts and inheritance are excluded and also pre-marriage property unless acquired for use as a family home or its furniture. In contrast, the 1973 Act permits the court to consider all the spouses' property.
Your Lordships will not be tremendously surprised to know that I am somewhat attracted to the Scottish system, although it came into force after I ceased to practise in that distinguished jurisdiction. It may well be that the application of the principles would form an effective starting point for negotiations. Parties would know better where they stood and perhaps there would be less acrimony than under a more discretionary system such as the current system here. On this aspect I attach a great deal of importance, as does my noble friend Lady Young, to reducing as far as possible acrimony at this stage of the matter where questions arise about distribution of property and the like.
However, the substitution of the amendment for the existing law in England and Wales would represent a major change in the law relating to financial provisions on divorce. I have taken the preliminary advice of the Ancillary Relief Advisory Group. It agrees that this is a complex area, the reform of which would require detailed consideration. The loss of a wealth of expertise and jurisprudence on Section 25 of the 1973 Act could only be contemplated after detailed review because it is in the light of the jurisprudence that exists on Section 25 that cheap and cheerful advice is available on the law of England, as the noble Lord, Lord Meston, said earlier. It is not just the statute, it is the jurisprudence that has followed from the statute which enables that to happen.
I do not for a moment accept that this Bill, as it bears on divorce, will enhance the prospects of a gold-digger. The courts are astute in taking account of conduct where it is inequitable not to do so in such a situation. The wide discretion which the courts have under Section 25 is an important factor. If one considers law across the world, opportunities for gold-digging are more apt to arise in jurisdictions where there is a set scheme than in cases where there is discretion. However, that is a subsidiary matter. A degree of precision in the prescription of the rules can help in negotiations and also in the forecasting of court decisions.
My noble friend's amendment contains a major difference between the amendment and Section 11 of the Family Law (Scotland) Act 1985. It is the reference in Clause 25 A(6) to the conduct of the parties, both
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during and since the marriage, including the way in which they deal with any contact arrangements for a child of the family. The 1985 provisions allow the court, in having regard to all the circumstances of the case, and if it thinks fit, to take into account the conduct of either party, unless the conduct has adversely affected the relevant financial resources or it would be manifestly inequitable to leave the conduct out of account. It is therefore similar to the 1973 Act in relation to conduct.
The purpose of the amendment is to draw attention to the important advantage that there might be in having a more prescriptive system than is set out in Clause 25. On the other hand, it is clear that that would be a major move from the present law, not to be contemplated without extensive consultation and consideration. I would wish to take it forward, but it is out of the question to do so within the timetable of the Bill. Therefore I confirm to my noble friend and the noble Lord, Lord Stoddart, that I wish the matter to be further considered and due consultation to take place upon it. However, I do not believe that we could properly deal with the problems in the course of this Bill.
I wish to make one other point. My noble and learned friend Lord Simon of Glaisdale mentioned that the Bill deals with divorce. But it also deals in an important way with the support services for marriage, as a result of the amendments which your Lordships have passed. I regard that as an extremely important part of the Bill and am glad to have been able to move the amendments to it. They show a way forward to concentrate on trying to prevent marital breakdown before any question of divorce arises. To concentrate on it only in relation to the divorce process is too close to pathology, whereas preventive medicine is a much better approach. I believe that the Bill encourages it. I hope that your Lordships will not lose sight of that aspect. The Bill gives a good opportunity to put the strength of the nation behind the institution of marriage in a way that has not been possible for some time.
In the light of what I have said about the amendment and what I feel as to how it should be taken forward, I hope that my noble friend will be able to withdraw it. It has served the purpose for which she put it down, as a result of our consultation.
Baroness Young: My Lords, I feel that we have had a short but useful debate on the matter. I have been interested in all the points that have been raised. I wish to assure the noble Lord, Lord Meston, that, even were I contemplating a divorce, I could not possibly afford his fees. My experience of lawyers does not quite bear out what he said. You can ask them for advice and you are fortunate if you receive a clear statement. Lawyers are always much too clever in covering themselves. You find that when you consider what they said, it was not as helpful as you thought at the beginning. One thing is for sure: it is certainly expensive. I agree with the noble Lord that this is not a big issue on which we should divide the House. Nevertheless, it is worth raising on this occasion.
I am grateful to the noble Lord, Lord Stoddart, for his support. The noble Lord is quite right on the point he drew to the attention of the House. There are two groups

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of people who are particularly affected by divorce. One is older women who are left by their husbands for younger women; and the other is men who seem to be left in increasing numbers by their wives effectively turning them out of the house. That is a very undesirable development. In that case, the wife is just as much at fault as the man is in the other case. It is a matter that we should consider.
The points made by the noble Lord, Lord Northbourne, were very valuable. It will be very interesting to see whether some of the dangers to which he pointed become evident in the Bill as it stands.
My noble and learned friend Lord Simon of Glaisdale has been assiduous in raising in particular issues of fairness towards the spouse who does not wish the divorce, or indeed the wife who remains at home to look after the children and does not earn a salary, qualify for a pension and so on, and to try to make quite sure that such people get an equal benefit.
I entirely agree with the noble and learned Lord the Lord Chancellor that to introduce this amendment would mean major change. Clearly it would be quite inappropriate to introduce such a measure at this stage. It would need extensive consultation and consideration. I recognise that at the end of that process we might feel that there was no benefit to be gained. However, it is right to consider the proposal. It clearly seems to work and is seen to be fair in Scotland. In this very complex world we are looking for fixed points, and it might well be helpful to parties to know much more accurately when they enter into a divorce what would be the result. That is one of the uncertainties. I am told repeatedly that one of the greatest causes of acrimony is the division of the assets and the fighting over them. It is bad for everybody, particularly for children. If that can be avoided in any way, it is certainly worth considering. I was very pleased to hear that the noble and learned Lord is considering taking this matter up with his advisory committee and consulting about it. It is certainly something that we should examine. As I said, it is not a
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matter that we could include in the Bill this evening. I am satisfied with my noble and learned friend's remarks and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 7 [Transfer of certain tenancies on divorce etc. or on separation of cohabitants]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 59:
Page 62, line 17, leave out (" 33(5)(d)") and insert (" 33(6)(d)").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 48. I beg to move.
On Question, amendment agreed to.
Schedule 8 [Minor and consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 60:
Page 69, line 29, leave out from ("satisfied") to end of line 30 and insertx2014;
("( ) that the circumstances of the case are exceptional; and
( ) that it would be just and reasonable for the variation to be so made.".").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 54. I beg to move.
On Question, amendment agreed to.
An amendment (privilege) made; Bill passed and sent to the Commons.
Lord Irvine of Lairg: My Lords, in our debates there have been sharp differences. I recognise that those who have opposed some of the central provisions of the Bill—
Lord Elton: My Lords, if the noble Lord will forgive me, I believe that the Bill has actually been passed. I do not know whether it was accidental or not, but it has been passed.
Lord Graham of Edmonton: That was speed!
The Lord Chancellor: My Lords, I am sorry. I did pause to see whether anyone wished to enlighten us at this hour. I then put the Question and I understood the House to agree.
House adjourned at half past ten o'clock.