§ 11.6 a.m.
§ Lord Grabiner
My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to remove a serious injustice which currently arises because of the interplay between established Jewish religious law on the one hand and our own civil law rules on the other; in particular the rules concerning the grant of a divorce in the Matrimonial Causes Act 1973.
The Bill would introduce a simple but highly effective corrective measure for the future which would enable a court exercising matrimonial jurisdiction not to make a decree of divorce absolute until the necessary formalities for dissolving the religious marriage have been fully and properly complied with.
In Jewish law, divorce, like marriage, is consensual and contractual and requires the co-operation of both parties. The process for obtaining a religious divorce is initiated by the husband. He secures from the religious court, or Beth Din, a one-page document called a get which, by himself or through the agency of the Beth Din, is then delivered to the wife. Both parties are obliged to attend in person. If, however, either of the parties fails or refuses to participate on a voluntary basis, there can be no religious divorce.
Supposing that the husband refuses to give the get—and I use the male example because it is the most likely scenario—what happens then? The wife is still entitled to a civil divorce, but because she is still married to her husband in the eyes of Jewish law, she is not entitled subsequently to remarry in an orthodox ceremony. If she is devout, that inhibition will be a source of distress and unhappiness for her and her family. There is also a nasty sting in the tail: if she is still of child-bearing age, any children she may have in the future will be 1402 illegitimate in the eyes of Jewish law. That rule operates throughout the generations which are descended from her.
The status of the wife in that example is that of a married person in Jewish law, but that of a single person in the civil law. The lawyers' shorthand description of that state of affairs is graphically captured in the expression "the limping marriage". In Jewish law, the wife is known as the agunah, which appropriately translates as "the chained wife".
The religious law is biblical in origin and therefore immutable. There are no mechanics for changing the law. There is no parliament. Rabbis are teachers and interpreters of the law; they are not legislators. They may be able to encourage or persuade the husband voluntarily to deliver the get to his wife. But they cannot force him to do so because the process would then lose its consensual quality and the get would be ineffective for its purpose.
Unfortunately, these established rules of religious law sometimes bring out the worst in people. The giving of the get on these occasions may be used as a tactical devise or blackmailing weapon in relation to the ancillary arrangements for the children of the marriage and for the financial settlement in connection with the civil divorce. Alternatively, the refusal to deliver the get may be motivated simply my malice or spite,driven in turn by jealousy or some other perhaps understandable but nevertheless objectively unreasonable purpose.
That is the background. I want now to comment on the admirably succinct Bill which we have before us. Clause I would amend the Matrimonial Causes Act 1973. It would give a discretion to the court to order that the decree of divorce should not be made absolute until both parties have satisfied the court that—and I paraphrase—they have taken the steps which are necessary to dissolve the religious marriage.
The clause will specifically apply to those who,were married in accordance with—the usages of the Jews".I quote from Section 10A(1)(a)(i), as it would be if the Bill were passed. However, it also has the potential to apply to other religions which could be prescribed by an order made by the Lord Chancellor. Your Lordships can see that by reading the combination of Section 10A(1)(a)(ii) together with Section 10A(6) of what the 1973 Act would look like.
My understanding is that it is unlikely to he necessary for such orders to be made. That is because, as I understand the position, no other religious group has made representations on the point. The power is there on a just-in-case basis. I understand that the issue does not give rise to a problem in English Muslim law, but having little or no expertise on the subject I stand ready to be corrected about that. However, it seems that where informal mediation has failed the United Kingdom Islamic Sharia Council may grant what is called a khula to the wife, which immediately dissolves the marriage and is effective in Islamic religious law. For unsurprising reasons, there are clear analogies 1403 between the two religions. So a satisfactory solution has been found to deal with the problem so far as concerns UK Muslims.
Clause 1(2) of the Bill would repeal Sections 9(3) and (4) of the Family Law Act 1996. The reason for that is that this Bill does everything that those provisions would have done if they had been brought into force. It is not necessary for me to go into the history of this part of the story, save to say that the principle enshrined in this Bill passed satisfactorily through the legislative process some years ago. However, for reasons which are bound up with other complex provisions in Part II of the 1996 Act, those provisions have never been brought into force. If this Bill were to become law, then those provisions would be otiose and could simply be repealed.
Perhaps I may make a few additional miscellaneous points. First, I can tell noble Lords that a similar approach to the one we are now examining has been adopted in New York State, South Africa and Canada, so there are good, directly applicable precedents drawn from very respectable jurisdictions elsewhere in the world.
Secondly, as can be seen from Clause 2(3), the Bill applies only to England and Wales. It is not intended to apply to Scotland. The reason for that is that I understand that this is a devolved subject and thus is the responsibility of the Scottish Parliament.
Thirdly, and in anticipation of a point which may be made in the course of our debate today, I hope that I have made it plain that nothing in this Bill could impact on or is in any way designed to alter or offend against Jewish religious law. The Bill is a neat procedural mechanism which would improve the inter-relationship between the operation of the civil law and the religious law to the benefit of all concerned. It is supported by the leading rabbinical figures in the Orthodox, Ashkenazi and Sephardi communities, including the Chief Rabbi, Dr Jonathan Sacks; Dayan Ehrentreu and Dayan Toledano, who are respectively the presiding judges of the two principal courts with authority in the United Kingdom. They each give their complete support to the Bill. I am also able to say from my personal knowledge that the late Lord Jakobovits, the previous Chief Rabbi, was of the same view.
I am pleased to say that the Bill is supported by the Government and that my noble friend Lady Scotland of Asthal will be speaking in response to explain the Government's position. Finally, I should like to pay a special tribute to my honourable friend Andrew Dismore, who is the Member of Parliament for Hendon. The Bill began its life under the 10-minute rule in another place and was introduced there by him. On 12th April, it was read a third time and passed in another place. We would not be holding this debate today were it not for the fact that Andrew Dismore has given a great deal of time and effort which will, I hope, result in the permanent improvement of people's lives and get rid of a great deal of unnecessary personal distress.
1404 I commend the Bill to your Lordships and hope that it will be supported by the whole House.
Moved, That the Bill be now read a second time.—(Lord Grabiner.)
§ 11.16 a.m.
§ Lord Mackay of Clashfern
My Lords, this Bill contains a provision repealing two subsections of the Family Law Act 1996. Since I was responsible for taking that Bill through your Lordships' House, it might be thought that I would object to this particular provision. On the contrary, the problem dealt with by this Bill has been admirably and succinctly described by the noble Lord, Lord Grabiner. It is a problem with which those of us who are concerned with the civil law have been familiar for some time. The subsections in the Family Law Act referred to in this Bill were designed to deal with it. Therefore I had thought that we had solved the problem in 1996.
For reasons into which I need not go, that has not so far produced the fruit that I had hoped for in 1996. Noble Lords will know that legislators are often disappointed when the results of their labours do not bring forth the fruit they had expected. However, better late than never. As the noble Lord, Lord Grabiner, has already pointed out, now that the Bill in its present form has passed through the House of Commons, I hope that it will now pass swiftly through this House. I hope then that finally the problem will be resolved.
I should like to add that I too had personal knowledge of the support of the late Lord Jakobovits in this matter, along with those who were in authority in the various rabbinical and courtly bodies of the time. I am glad to know that that position still obtains. So I wish the Bill every success and hope that it will pass into law very quickly.
§ 11.18 a.m.
§ Lord Mishcon
My Lords, first, if I have learnt anything over the 25 happy years that I have been privileged to spend in your Lordships' House, it is that noble Lords do not look with disfavour on short speeches.
Secondly, your Lordships do not approve of speakers who repeat arguments and thoughts that have been expressed previously in far better language by the second Peer to address the House.
If I may, I want to say only this. The advantages of the Bill in relieving suffering—I use that word advisedly—have been so succinctly expressed by my noble friend Lord Grabiner—the noble and learned Lord Mackay of Clashfern pointed that out—that it is quite unnecessary for me to repeat them.
I sit down with these words only: how pleasant it is for members of one faith to be able to assist members of another faith without in any way giving up one iota of their own beliefs.
§ 11.20 a.m.
§ Lord Jacobs
My Lords, I was about to begin by saying that I shall not detain your Lordships long, but having heard the noble Lord, Lord Mishcon, speak for only one minute, I am afraid that I shall exceed that time by a little.
I am deeply in sympathy with the objectives of the Bill and strongly support anything that can be done to assist those unfortunate women to secure relief from husbands who can legally divorce them, yet refuse to allow them to remarry under Jewish religious law.
This is the second Private Member's Bill on the subject that the House has considered. The first was piloted through the House by my noble friend Lord Lester pretty successfully, with the support of many of your Lordships. However, that Bill was objected to in the other place for no good reason whatever. The claimed reason was that the Bill had not received adequate consideration or debate. That was palpably untrue. It is a pity that the Government cannot do anything to prevent such a frivolous objection, which was a total waste of your Lordships' time. I hope that this second Bill will be successfully passed in due course.
However, as a member of the Jewish faith, I am concerned that the learned rabbis in this country and elsewhere have failed to find a way to resolve the issue. As I understand it, the argument has always been that the Sanhedrinthe religious governing body for Jews, which could change laws—ceased to exist about 2.000 years ago. Nothing has apparently replaced it. I find that explanation almost unbelievable. I therefore have a question for the Chief Rabbi, Dr Jonathan Sacks: if, for example, there had been an ancient law that when Jews died they had to be cremated and, furthermore, if a wife predeceased her husband, her husband would be cremated at the same time, are we seriously to believe that because the Sanhedrin no longer existed, the rabbis would have been unable to find a way to resolve that problem? I venture to suggest—I am sure that your Lordships will agree—that they would have resolved that issue very quickly, notwithstanding the fact that the Sanhedrin no longer exists.
There seems to be a wilful resistance by the religious authorities in Jewish communities of all countries to resolve the issue. It is for men to make the decision. If men were the sufferers, they would have found a solution. It is only because the problem does not affect men that they rely on numerous religious objections to resolve the issue. I know that Jewish religious leaders will strongly resist this explanation, but I find their explanations for being unable to do anything simply pathetic.
I am pleased that, with the Government's help, the British Parliament can pass a Bill that will, in a small way, alleviate the problem that prevents Jewish women divorced under the law remarrying without their husbands' permission. This is not a complete solution to the problem and the responsibility remains with the Jewish religious authorities to find a complete solution. They should get their act together and find one.
§ 11.23 a.m.
§ The Lord Bishop of Guildford
My Lords, I, too, shall be brief. I hope that it will not be considered an impertinence for someone from these Benches to comment on the Bill. I thought it might be valuable to give our support for it.
I have two brief general points to make. First, when there is an experience of human need in a particular community and when the leaders of those faith communities come to Parliament to seek some assistance, we have an obligation to respond constructively. I say to the noble Lord, Lord Jacobs, that we should be careful not to intrude on the internal theological and legal debates of different religious traditions. I do not think that Parliament would be wise to enter into that area.
When we have such strong representation from our Jewish brothers, sisters and friends, we should seek to be sympathetic and helpful to help them fulfil their pastoral responsibility to their members. That is what we are being asked to do and it seems to me a proper principle for parliamentary action.
Secondly, the passing of the Bill would be timely. I support the comments of the noble and learned Lord, Lord Mackay, about the need for the issue to be addressed, given what has happened to the legislation that he steered through Parliament. Moreover, at a moment when unpleasant forces are raising their ugly heads in European politics and in some of our own communities, causing harm and anxiety to minority communities, including our Jewish friends, a clear signal from Parliament that we are here to defend their interests and encourage their life in the community would be very welcome. I support the Bill.
§ 11.26 a.m.
§ Lord Clinton-Davis
My Lords, I congratulate my noble friend Lord Grabiner for ensuring that we debate the issue today. It would be unkind if I were to omit to mention my honourable friend Andrew Dismore, Member of Parliament, who has undertaken an enormous amount of research on the Bill. I remember meeting him in his constituency at the time of the last election. Amid all the problems he had, he mentioned the possibility of introducing this Bill. I also thank the noble Lord, Lord Lester, for what he has done, particularly on the Bill that he introduced some time ago, which was along much the same lines.
To my certain knowledge, the Bill rectifies a serious wrong inflicted on partners of the Jewish faith who, in the case of marital breakdown, are unable to remarry under their religious law because their spouses refuse to grant a religious divorce, known in Jewish law as a get. As I understand it, the husband is obliged to serve the get on the wife. In the absence of its delivery, she is obliged to remained chained in a union which may long have ceased practically to exist or meet her needs and which may have caused her undue suffering. A husband is able to withhold the get if bitterness, anger and jealousy have come to dominate his feelings. That refusal can become for him a potent form of emotional blackmail and can be used to impose intolerable 1407 conditions on the wife relating to finance or, even worse, to matters concerning the children of the union. That is a most important issue, although it has not been mentioned specifically today.
I underline the profoundly unfair position that women in particular have to endure. Of course a wife can remarry in a civil ceremony, but the ancient Jewish law—which, save for the enactment of this Bill, is immutable—will be unable to recognise her new status. For observant Jews, this will not be an option which is open to them. Marriage for them is a sacrament. In any event, the status of children born of the new marriage would be considered illegitimate because the marriage would be disregarded and the relationship considered adulterous.
The withholding of a get puts a recalcitrant husband in an impossibly superior position. He may not be strictly observant, but he can use the situation to his advantage and even seek to impose conditions, which he lays down, relating to finance or, possibly worse still, matters concerning their children. In this day and age women should not be placed in this predicament. That is something that the Bill recognises. In future, under the Bill a religious marriage would first have to be dissolved before a decree absolute was granted by a civil court.
As my noble friend pointed out, the Bill is welcomed by most members of the Jewish religion. In my view, it is long overdue. My noble friend is trying to equalise standards and rights, and the Bill has been specifically drafted to comply with human rights legislation. As he said, it is supported by the Chief Rabbi, the Board of Deputies of British Jews and the Jewish Marriage Council. They are not inviting the civil law to solve a Jewish problem but to end a serious anomaly whereby a Jewish faith marriage is also a civil one but a civil divorce may not be accompanied by a religious divorce.
I hope that a way can be found for a similar Bill to be enacted in Scotland where family law has been devolved to the Scottish Parliament. I understand that Jim Murphy, a Member of Parliament, is seeking to introduce procedures which could extend the provisions of this Bill over the Border. Although that is essentially for another day, I invite the Minister or my noble friend to say something about that.
Concerns have also been raised about the exclusivity of the Bill. The hope is that other faiths which may encounter similar problems for which redress is sought could use the provisions in the Bill to seek a remedy. At present, it seems that this particular difficulty applies only in the Jewish religion, where the supreme jurisdiction, the Sanhedrin, which has been referred to by many of my noble friends, was destroyed nearly 2,000 years ago. The Jewish religious laws have remained set in stone to this day.
Understandably, the Bill is not a complete cure-all—it will not be retrospective—but it will vastly ameliorate the plight of potential victims of this situation. I believe that it will be profoundly welcomed by our Jewish women citizens and the community at large.
§ 11.35 a.m.
§ Lord Simon of Glaisdale
My Lords, I was raised outside the Jewish religious community. I venture to intervene in support of the Bill by reason of the responsibility I formerly had in the jurisdiction to which the procedures under the Bill are vouchsafed.
In the course of those responsibilities one came across what the noble Lord, Lord Grabiner, described rightly as "limping marriages". Though not in the context of the Bill, they were always liable to cause hardship and they frequently did cause hardship. In the context of this Bill they are particularly objectionable because, as the noble Lord explained in his marvellously lucid exposition, it can lead to a blackmail of the wife.
The other matter that arises from such experience that I had is the question of whether the jurisdiction is manageable. It was rightly said on the previous occasion that it would not be an easy jurisdiction to exercise. But High Court judges are not appointed to exercise easy jurisdiction. I have little doubt, particularly in these days when the judges of the Family Court have to deal with the interplay of law and ethics so frequently, that it is manageable. But it is really for the noble Baroness who is to reply, who has had more recent experience of that jurisdiction than I—and who has no doubt consulted the learned president—to say whether it is manageable. I have little doubt that it is.
A question raised by the noble Baroness, Lady Miller, on the previous occasion was whether it is desirable. Certainly it is in general undesirable that a secular tribunal should interfere to enforce sanctions on religious procedures. But this is a peculiar case. The court is not intervening to sanction religious procedures; it is asked to intervene to correct an injustice.
I submit that in general it is undesirable, even under our constitution which does not have the rigid division between Church and state that the United States has—its constitution is based on the division of power whereas ours is based on the balance of power. But it is notable that the State of New York has introduced legislation similar to that which is proposed here, as has Canada; and Israel has taken a measure which promotes the same end in a different way.
In this case, there is an overwhelming invitation from the religious authorities to Parliament to intervene. This is purely procedural, and there is a model that has already been established in Pakistan. Pakistan, like orthodox Jewry, is bound in its matrimonial law by scriptural authority. That cannot be altered. However, a procedural step was introduced to prevent that authority being harshly and unfairly operated.
Therefore, whatever the general position, I strongly support the Bill.
§ 11.41 a.m.
§ Lord Haskel
My Lords, I congratulate my noble friend on piloting the Bill through this House. He is performing an important service for the Jewish 1409 community and we are all grateful to him. I also thank the noble Lord, Lord Lester, and Mr Dismore in another place, who have both been involved in this attempt, and in earlier attempts, to pass this legislation. This is the third time that the introduction of such a measure has been attempted. It was attempted twice previously in the form of a Private Member's Bill. I hope that this will be a case of third time lucky.
As the noble Lord, Lord Jacobs, reminded us, the previous attempt failed because, in another place, the matter of divorce was considered to be an inappropriate use of the Private Member's Bill route. I agree with the noble Lord: I do not believe that it is. I supported the Private Member's Bill that came before this House about two years ago. It dealt with a specific problem relating to Jewish divorce. It was tightly drawn—the noble Lord, Lord Grabiner, described it as "succinct"—but in such a way as to include other religious faiths if necessary. The argument that it deals with one faith in favour of another does not stand.
As my noble friend explained, the Bill deals with divorce within the Jewish faith. As the noble Lord, Lord Jacobs, said, the argument for using the civil law to solve a religious problem is that religious law can be changed only by the Sanhedrin and, as it can meet only at the Temple, it has not met since the destruction of the Temple some 2,000 years ago. I must confess that, like the noble Lord, Lord Jacobs, I, too, am slightly sceptical about this.
To carry the noble Lord's argument further, I understand that other religious laws have been modified by virtue of a dictum by a rabbi who lived in Mainz, in Germany, from 960 to 1028. His dictum said that when there was a conflict between religious law and civil law, the law of the land was the law. Its original purpose, interestingly, was to deal with the number of wives that Jewish men could have, depending on whether they lived in an Islamic country or in a Christian country. That dictum still applies.
That is why, since then, Jews have been able to live within their faith and within the law in many countries. It was a clever thing to do all those years ago. That is why chained women are entitled to ask: if the law of the land is the law, and equal rights became law in 1976 and the European Convention on Human Rights was incorporated into British law in 1999, why are they still chained? Perhaps one of the eminent lawyers present can explain that point.
Happily, the Bill is not being foisted on the Jewish community. It has the support of the religious authorities, not only from the orthodox community but also from the liberal and representative organisations in the community. As my noble friend Lord Clinton-Davis, reminded us, it has the support of the Jewish Marriage Council, which does excellent work in resolving difficulties in marriage and has tried to resolve disputes over the get.
Furthermore, I welcome the Bill because it puts right a wrong which applies equally to men and to women. Women are wronged because they cannot 1410 remarry within the faith without a get and the men who wish to marry such women are, of course, also wronged.
However, I have two regrets in relation to the Bill. The first is that no way could be found of making its provision retrospective. I should declare that I have attended demonstrations and other events calling on the Chief Rabbi to deal with the matter of the tied women—sometimes, I must add, in the company of the noble Baroness, Lady Miller, and her sister. I regret that the Bill will not put right the injustices done to the existing chained women. They fought for this legislation, and they deserve our thanks. I hope that they will get some satisfaction from the knowledge that they will be the last of the chained women in Britain. But, sadly, they will remain chained.
I also congratulate those more liberal rabbis, particularly in the United States, who have found it possible to move with the times and to gram religious annulments to chained women, enabling them to remarry within the Jewish faith. These rabbis obviously shared my second regret, which is a feeling of discomfort that the Jewish faith has had to involve the civil courts to solve a religious problem. Judaism is such a humane and practical faith that I cannot help feeling awkward that rabbis have had to resort to the civil law to resolve a matter of equal rights between men and women. It is such a basic matter.
However, these are only regrets, not objections. I welcome the Bill and wish it every success.
§ 11.47 a.m.
§ Lord Lester of Herne Hill
My Lords, we on these Benches support the Bill as a necessary measure to mitigate the rigours of Jewish religious divorce law.
I am Jewish, but I am not a practising religious Jew, nor am I an expert in Jewish law. I am glad that, this time, the Bill is being steered through this House by the noble Lord, Lord Grabiner, whose credentials for doing so are rather better than mine.
The Bill is of significant symbolic value and it may work successfully in some cases in mitigating the harsh effects of the archaic and unjust features of Jewish divorce law by persuading unreasonable parties that they must act reasonably when their marriages have failed.
I pay tribute, as other speakers have done, to the noble and learned Lord, Lord Mackay of Clashfern, who first introduced liberating legislation on this subject, which, unfortunately, was not able to be brought into force.
As the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Simon of Glaisdale, among others, have explained, the mischief arises from the fact that a refusal by one spouse, usually the husband, to give or accept a get creates a form of "limping marriage" where there has been a civil divorce. The woman is chained to her husband; she is what is known as an agunah, aptly described by Professor Michael Freeman, a member of the Law 1411 Faculty of University College, London, as being "a hostage to a dead marriage" who can be held to ransom to secure her release.
Ever since the Marriage Act of 1836, the civil law has recognised a synagogue marriage as legally valid, and no separate civil marriage is needed. Yet in dissolving that dual bond of divorce, English law requires only the civil marriage to be revoked while leaving the religious bond intact. If one of the parties remarries, content with only a civil divorce, the other party, who may regard the religious marriage as still valid, cannot remarry until a religious divorce has been obtained.
The prevailing orthodox view is that a husband cannot be compelled to grant his wife a get, even if she finds life with husband impossible and is justified in wishing to obtain a divorce. The relevant religious law derives from Chapter 24 of the Book of Deuteronomy, which reads:And he shall write for her a deed of divorcement and give it in her hand".The view of the great Jewish scholar and philosopher, Maimonides, the most influential Jewish scholar of the Middle Ages, to whom the noble Lord, Lord Haskel, has referred, was that the husband can be compelled in such a case to grant his wife a get since, in his words,she is not like a prisoner who has to submit to a sexual relationship with a person she finds repugnant".But, most unfortunately, Maimonides' humane and practical view was not and is not shared by many leading orthodox Jewish jurists who adopt a literal rather than a purposive interpretation of this part of the Bible. Despite his immense authority, Maimonides' view is considered unacceptable by many orthodox rabbis. As Professor Freeman has aptly commented,it is a sad reflection of our times that Jewish law was interpreted more liberally in the 12th century than it is today".I share that view.
For 1,500 years, as the noble Lord, Lord Jacobs, has explained, ever since the destruction of the Temple in Jerusalem and the abolition of the Sanhedrin, there has been no supreme judicial authority with power to interpret Jewish law and to enact ordinances binding on the entire Jewish world. This is a major impediment to the reform of the law. But it is also true that the male orthodox rabbinate around the world has not been conspicuous in seeking to reform Jewish marriage and divorce law, praying in aid what the noble Lord, Lord Grabiner, referred to as its "immutability". I—speaking for myself; I speak personally, of course—have great sympathy with the views expressed by my noble friend Lord Jacobs and the noble Lord, Lord Haskel. However, I agree with the right reverend Prelate the Bishop of Guildford that it is a matter not for Parliament but for the Jewish religious community and its leaders and, for that matter, any other religious community with similar problems.
On 26th April a fine obituary was published in The Times about the great Deputy President of the Israeli Supreme Court, Justice Haim Cohen, who was 1412 instrumental in implementing the transition of the legal system from British Mandate Palestine to the independent state of Israel in 1948. The obituary recalled Justice Cohen's clashes with the rabbinate which, under the dispensation reached with David Ben Gurion, Israel's first and highly secular Prime Minister, governed marriage. Justice Cohen challenged their rigid categorisation, calling for civil marriage, which would allow cross-religion marriages. Justice Cohen lost that important battle.
In this country, there is no such problem, because Lord Hardwicke's retrograde Marriage Act has long since been amended to allow civil and non-Christian marriages and divorces, alongside recognition of religious marriages and divorces. Like others who have spoken in this debate, as I hope I have made clear, I regret that it should be necessary for the religious and secular leaders of the orthodox Jewish community to seek the aid of Parliament to enact legislation enabling our civil courts to alleviate the injustice and misery resulting from a literal interpretation of the Bible. I hope that the enactment of this Bill will not encourage anyone to think that the underlying problems have been solved. This is a mitigating Bill, but it does not solve those problems. They will be solved if and only if the necessary leadership is found, here and elsewhere, in the orthodox community. However, as all noble Lords have said, Parliament can and should do its best to respect religious freedom and diversity in a manner compatible with fundamental human rights. The Bill goes some way in that direction, and it deserves our support.
I should like to say a few words about the position of other religions. As has been explained, the Bill provides a facility not only for orthodox Jews but for what are described as,any other prescribed religious usages".That was inserted into the Bill that I introduced because the Government had obtained an opinion from Mr Rabinder Singh QC pointing out that my Bill discriminated against other religions by singling out the Jewish religion. I was given a taste of my own human rights medicine, and Mr Singh was perfectly right. That is why the option is put into this Bill to remove that inequality of treatment. The option does, however, depend on the religious community itself— whether it be Jewish. Muslim or any other religious minority—wishing to take advantage of the Bill and then asking the Lord Chancellor to prescribe the religion for that purpose.
I mention that because the noble Lord, Lord Grabiner, and I have both been under the impression that there is no similar problem under British Muslim divorce law. However, as a result of a conversation that I have had with a Muslim Member of this House who may wish to take part in later debates, I simply would like to say that it is not wholly clear now that there are not similar problems for British Muslim wives who may, for example, be under great pressure to return their dowries before they can obtain a satisfactory divorce. It is not a matter for me or for any other noble Lord who has spoken because none of us is an expert or member of that great community. But 1413 I thought it right to mention that, as it has been mentioned specifically to me by the noble Lord, Lord Ahmed, who regretted the fact that he could not take part in t his debate.
Finally, I am glad to say that the Joint Select Commit tee on Human Rights, on which I serve, found nothing in this Bill to draw to the attention of either House as being in any way incompatible with human rights. I hope that the House will agree that the Bill is not only compatible with but advances human rights.
§ 11.57 a.m.
§ Baroness Miller of Hendon
My Lords, I rise to support this Bill which has passed through the other place with support from all sides. As the noble Lord, Lord Grabiner, said in introducing it so well, the Bill also has the support of the Jewish religious authorities, from the most orthodox to the most liberal, including the Chief Rabbis, the Board of Deputies and the Jewish Marriage Council.
As noble Lords may well remember—the noble Lord, Lord Grabiner, certainly will—on 30th June 2000, a similar Bill received its Second Reading in this Chamber, introduced equally admirably by the noble Lord, Lord Lester of Herne Hill. In the intervening period, I have carefully reread all the speeches made in that debate. I know that noble Lords will forgive me when I say that I have particularly scrutinised, with extra special care, my own contribution on that occasion.
I supported the aims of that Bill and certainly did not oppose its Second Reading, although I was very concerned that the orthodox Jewish religious authorities were unable to find their own solution to this problem. It is very interesting that the noble Lords, Lord Jacobs, Lord Haskel and, indeed, Lord Lester, have made that point today. I would also say to the right reverend Prelate the Bishop of Guildford that I doubt there is any Jew anywhere who is not grateful for the stand he is taking and that the Christian authorities are hopeful that we can now get this right.
We were not suggesting that Parliament should not interfere. We were simply saying that it is a pity that we have had to go to Parliament to find a solution when we truly believe that the religious authorities could have found one if they had truly wanted and put their minds to it. As noble Lords have said, if Maimonides thought that such a solution was okay, that solution could have been accepted. It is a question of how the authorities want to interpret matters. Nevertheless, in June 2000—I ask noble Lords again to excuse me for quoting myself—I concluded my speech by saying,I ask noble Lords to give the Bill a Second Reading so that we can at least take one small step in the right direction".—[Official Report, 30/06/02; col. 1255.]Today, on behalf of these Benches, I urge noble Lords to do the same.
In opening, the noble Lord, Lord Grabiner, explained the Bill's details with great clarity, and there would be absolutely no purpose in my trying to add anything more. As we know, the Bill was introduced 1414 on 23rd October 2001 by the honourable Member for Hendon, passed through all its stages in the other place, and has now arrived here. The present Bill that we are considering also replicates subsections (3) and (4) of Section 9 of the Family Law Act 1996 which were contained in Part II of that Act which, of course, has not yet been brought into effect. My noble and learned friend Lord Mackay of Clashfern may remember that at the time that Act proceeded through the House I explained my views to him and told him what a shame it was that our religion could not sort out those matters.
This is the third time that these provisions have been brought before Parliament. There is no way that anyone can say that they have not, been properly discussed. Two noble Lords mentioned the views of Lord Jakobovits. About three or four months before Lord Jakobovits died, I had coffee with him in his lounge. I believe that this subject also came up when the noble Lord, Lord Mishcon, and I dined at the house of Lord Jakobovits. However, on the occasion I took coffee with Lord Jakobovits he told me that when his father was dying he told him that the only regret he had was that he had not been able to deal with this matter. Lord Jakobovits said how pleased he was that he had been able to work with my noble and learned friend and that they had got as far as they had even though the relevant measure had not been implemented.
As I said earlier, the Bill is supported on all sides of both Houses. I hope that it will be well received once again and that it will be speedily enacted.
§ 12.1 p.m.
§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
My Lords, I say straight away what a great pleasure it is for me to respond to the debate on behalf of the Government and to find myself in such uniquely august and good company.
The noble and learned Lord, Lord Mackay of Clashfern, among others, described the speech of my noble friend Lord Grabiner as admirable and succinct. I can do no more than agree with him. I also applaud the brevity and content of the speech of the noble Lord, Lord Mishcon. He gave voice to the pleasure that this debate has given and the comity which it has revealed between religions. I should very much like to follow his lead and sit down but I fear that it may be necessary to say a little more. I find myself in charity with all that has been said so well by all noble Lords.
I add my voice to those who have congratulated my honourable friend the Member for Hendon, Andrew Dismore, and the noble Lord, Lord Lester, and others for all the efforts they have historically made in this regard. Their efforts have not been in vain. I say to the noble and learned Lord, Lord Mackay of Clashfern, that I hope that this Bill will be the salve to the legislator's grief at not having his Bill implemented.
The Government's policy on irretrievable family breakdown is to try to reduce acrimony and conflict to a minimum, especially where children are involved. It 1415 is hard to imagine a situation where there is more acrimony and conflict than in a "limping" marriage. The Government are acutely aware of the distressing consequences for the women and children caught in those circumstances. That is why the Government wholeheartedly support this Bill.
As your Lordships will be aware, the provisions of the Bill reflect those in Section 9(3) and (4) of Part II of the Family Law Act 1996 which was incorporated into the Family Law Act following an amendment tabled in your Lordships' House by Lord Meston who now graces the Circuit Bench and, alas, no longer sits in this House. His contribution should be recognised. He is missed by the Liberal Democrat Benches and, indeed, by this House.
On 16th January last year, my noble and learned friend the Lord Chancellor announced that—based on the evidence from pilots and concerns expressed by the judiciary and others—the Government regrettably did not intend to proceed with the implementation of Part II. I say "regrettably" because noble Lords will know that it was not possible to implement Section 9(3) and (4) independently because its provisions are procedurally linked with the other provisions of Part II.
The noble and learned Lord the Lord Chancellor further announced that he proposed to invite Parliament to repeal the relevant sections of the Family Law Act when a suitable legislative opportunity was available. We remain committed to the principles set out in Part I of the Act; namely, saving saveable marriages and bringing marriages which have broken down to an end with the minimum distress to the parties and children affected. It is our belief that the Bill will greatly assist that end.
The Bill before your Lordships' House today is, therefore, a little unusual in that it seeks to re-enact provisions already passed by Parliament. However, I hope that your Lordships will agree that it is right and proper that we now make this attempt so to do.
The loss of the opportunity to bring these provisions into force was an unwanted but unavoidable consequence of the decision not to proceed with Part II. My noble friend's Bill is, therefore, the vehicle by which those sections can be implemented without the rest of Part II and takes the opportunity to repeal those sections in the Family Law Act. I hope that at least part of that will give noble Lords a great deal of pleasure.
Many have said—I should like to echo this—that leading representatives of the Jewish community, including the Chief Rabbi Dr Jonathan Sacks and members of the Board of Deputies of British Jews, have put a compelling case to the Government on the need to provide a remedy for those Jewish women who face difficulties in seeking a religious divorce. I pay particular tribute to Her Honour Judge Myrella Cohen QC and Eleanor Platt QC of the Board of Deputies of British Jews who have worked so hard for so long on behalf of "chained" women. I should also 1416 like to express my thanks to them for their help in assisting the Government to understand the complex issues involved in this difficult area.
As other noble Lords have explained, the Bill would enable the court, where it considers it appropriate, to order that a decree of divorce is not to be made absolute until a declaration is made by both parties that they have taken the necessary steps to obtain a religious divorce. This would mean that the legal divorce would not be finalised until the religious divorce had been provided. The effect of the Bill, therefore, is to place the parties on an equal footing —neither would be able to remarry until both agreed to a religious divorce. After a religious divorce both would be free to remarry in a synagogue in a religious ceremony. I very much echo what was said by my noble friend Lord Haskel; namely, that that would give real benefit and relief not just to the women who are so "chained" but also to the men who wish to marry them. I reassure the noble and learned Lord, Lord Simon of Glaisdale, that we are confident that Her Majesty's judges will be able to deal effectively with this issue if it is entrusted to them. We do not see that that would be a difficulty.
Some have expressed concern that my noble friend's Bill seeks to legislate in what are essentially matters of religious doctrine and custom. However, I believe that the tone of the contributions made by other noble Lords has graphically illustrated that that is not the case. The Government are satisfied that my noble friend's Bill does not seek to involve the civil courts in questions of Jewish religious law. The Bill seeks only to enable the court, when dealing with an application for a civil divorce, to withhold the decree absolute until the parties have taken the necessary steps to acquire a religious divorce from a Beth Din. The Bill will apply to Jewish religious marriages because the Jewish community has asked Parliament's help to address the problem of "limping" marriages. However, as the noble Lord, Lord Lester, said, the Bill also contains provision for the Lord Chancellor to extend its provisions to other religious groups should they so wish. There is, of course, no question of the Government seeking to extend these provisions to other faith groups in the absence of any demand from them to do so.
I should like briefly to respond to the observations of my noble friend Lord Clinton-Davis on the position in Scotland. Family law, as noble Lords will know, is devolved to the Scottish Parliament. We understand that the Scottish Executive is drafting a family law Bill, which will include the same provisions as this Bill. Officials in our department spoke last week to Scottish Executive officials, who informed us that their Bill was unlikely to be introduced before next year's Session of the Scottish Parliament. However, the matter has been within their contemplation.
The Bill has rightly been welcomed by all of us. I wish it Godspeed and hope that it will pass swiftly into law, so that those women who currently are chained can be set free.
§ 12.10 p.m.
§ Lord Grabiner
My Lords, this has been a most excellent debate in every respect. Its succinctness is high on the list of elements about it that I strongly commend. There is one downside to such a debate; that is, that we must not continue being too much in agreement with each other because we should swiftly talk ourselves out of a job.
I thank all noble Lords for their contributions, which have been extremely well informed. There has been unanimity on all of the matters with which we are essentially concerned. I want to pick up a point made by the noble Lords, Lord Jacobs and Lord Lester, and by my noble friend Lord Haskel. Essentially, their point was that there are grounds for criticising rabbis for not taking a grip of the problem and dealing with it, so to speak, in a man-made way; for leaving the law set in concrete when it might well have been possible or should have been possible—there are varying degrees of view—for them to have acted. I respectfully agree with and adopt the response of the right reverend Prelate the Bishop of Guildford. It is not appropriate to get involved in an internecine debate on matters that give rise to genuine differences of view in relation to religious matters about which there is a great deal of debate.
It may also be worth bearing in mind the fact that the essential distinction, as I have always understood it. between Christianity and Judaism is that Christians believe that the Messiah has been and that Jews still await that day. If we have to wait for the messianic appearance of a Maimonides-type character to resolve this problem, it could take another 2,000 years. That would be a deeply unsatisfactory way of dealing with a current and practical problem. I am sure that all noble Lords, including the noble Lords, Lord Jacobs and Lord Lester, and my noble friend Lord Haskel, will agree that there is every practical justification for the proposed legislation.
§ Lord Lester of Herne Hill
My Lords, since I brought in an identical Bill, I could hardly do other than support this Bill. Does the noble Lord agree that one of the attractive features of the Jewish community is that for every 100 Jews there are 100 different opinions?
§ Lord Grabiner
My Lords, I was going to make much the same point. I recollect an ancient story with which all noble Lords will be familiar. Two Jews on a desert island agree that the immediate solution to their problem is to build three synagogues because there has to be one that neither of them will go to. There is more truth in that than noble Lords may imagine.
I want to deal with one other point, which was raised by my noble friend Lord Haskel. He was concerned that the Bill did not deal with his point about "retrospectivity"; in other words, it is not possible now to do anything about cases that occurred in the past. There are two problems with that, as I am sure all 1418 noble Lords realise. One is a natural inclination—rightly so—against the introduction of retrospective legislation. The other is that it would produce a direct conflict between civil and religious law. The beauty of the Bill is that it does no such thing. Although I agree with the sentiments that my noble friend expressed, I am afraid that, for practical purposes, it is simply not possible to deal with that problem. There is no point in delaying matters any longer. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.