My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, the Prime Minister has asked me to take responsibility for co-ordinating the presentation of Government policy in addition to my duties in this House. My aim is to support the already substantial co-ordination effort at official level. My work in this House has not been, and will not be, affected.

My Lords, I am most grateful to the noble Viscount for that Answer; and I take particular notice of the part that he, as it were, underlined vocally. May I start by asking him whether he is aware that, as regards his duties as Leader of this House, we on these Benches have nothing but praise for the way in which he carries them out. I imagine that that goes for many others of your Lordships as well. But is there not a danger that the impartiality which he shows in carrying out those important tasks may be in conflict with the partiality which I believe is required to carry out the far less important task of trying to prevent the Government from getting a bad press whenever they are doing badly, as they are at the moment? Is it not vital that there should be no confusion between the noble Viscount and whitewash?

My Lords, I am extremely grateful for what the noble Lord has very kindly said in his all too kind references to my efforts, which will certainly continue; and I shall do my best to serve this House at all times. As for what he describes as a conflict, there is of course a dual role. Whether I like it or not from time to time, I am a member of the Cabinet and a member of the Government and I therefore defend all the Government's policies all the time. That is very proper and very right. At the same time as doing that, I am equally Leader of this House and, as such, am responsible to Members in all parts of this House. I do not think there is a conflict. If there is a conflict, I can promise this House that I will always remember my duties to this House.

My Lords, may I also say that we appreciate the manner in which the noble Viscount conducts his duties and wish him a happy tenure, but not a long one. First, may I ask the noble Viscount whether he agrees that open Government is preferable to closed Government? Secondly, will he say whether or not a central unit is to be set up in No. 10 Downing Street with responsibility for news management in the first place, and personnel matters in the second place? If that is so, does he agree with me that that could represent rather a dangerous development?

My Lords, I am equally grateful for what the noble Lord has said. As regards the question of open or closed Government, I think it is very important that Government are open. I think that the danger towards overmuch secrecy has, over the years, in many Governments gone a long way and I think that has to be watched. But there are certain things. After all, whether it is in a Government, whether it is in a family or whether it is anywhere else, we do not always want to parade to everybody else in the world everything that happens in our closed consultations. I think that the noble Lord will agree with me about that. But equally, I notice that, whether the Government like it or not, a great many things that the Government seem to be doing—whether or not they wish to let them out—get out, whether I can do anything about them or not, and I have to understand that.

As for the the question of a unit, I can assure the noble Lord that there will be no unit. I shall have no staff. I do not intend to set myself up as some marvellous figure, because I know perfectly well that if I did I would soon be knocked off that pedestal. I do not have the slightest intention of producing what might be described as a forward profile, because the lower my profile the less I have to fall, and that is what I intend to do.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, information about the number of such persons is not collected centrally. As I said in reply to the noble Lord's Question for Written Answer on 20th December, private security personnel have no rights or privileges beyond those possessed by ordinary citizens, who are not granted firearm certificates for security or protection purposes.

My Lords, I thank the noble Lord for that Answer. Is it not a fact, and has he not observed, that the increase in crime on a large scale has become of an extremely worrying nature? We have pictures of great value and we also have 5 cwt. of gold at large, and this is almost classified as ordinary theft. We had the fastest filly—using the word in the equine sense—in Ireland made to disappear with much more skill——

My Lords, it is not a filly; it is a stallion.

I am very sorry about that, my Lords, but I am not sure that I have not reached the age when I might not tell the difference between the two. I have certainly heard it described as a filly. As I was saying, it has disappeared completely from the earth. The enforcement of the Theft Act as passed in this House seems to have predicted the mess of pottage. We find now that the security of the citizen and of the citizen's property is less and less capable of being influenced, even by one of the finest police forces in the world.

My Lords, the noble Lord, Lord Hale, shares his concern about the increase in violent crime with many others, and he will be familiar with the very vigorous steps which my right honourable friend has taken to combat that rise. He will also be aware of the increasing numbers and efficiency of the police forces. We believe that the security of both the citizen and his property properly rests with our police force, which is not normally armed. Where there are private security forces we do not believe that they should be entrusted with weapons.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, as my noble friend Lord Gowrie explained in his recent letter to the noble Baroness, Ministers from the Departments of Employment, Education and Science, and Environment intend shortly to meet the local authority associations to discuss their concerns.

My Lords, I am very glad to hear that there is to be a meeting, but is the noble Viscount aware that the problems of over-commitment arose from the MSC's regional and area planning figures? A good many authorities took those figures as a firm basis on which to plan their own provisions. Is the noble Viscount aware of the fact that the additional expenditure which will be incurred because of this is extremely substantial? In Devon, it is £300,000; Berkshire, £200,000; Hampshire, £500,000; and Nottinghamshire, £700,000. Only one of these, I may say, is a Labour-controlled authority.

Is the noble Viscount also aware that there have been discussions in relation to the youth training scheme about compensating both private and public sector managing agents and sponsors who have suffered losses through no fault of their own? Will the noble Viscount support such compensation?

My Lords, I am grateful to the noble Baroness for what she has said. In the first place, as I think she would agree, many of these matters are properly to be discussed at the meeting which is being arranged. I will certainly see to it that my right honourable friend and my noble friend know about these matters so that they are properly represented, and that the noble Baroness's very proper points are put at that time.

As far as my support for any particular measure is concerned, the noble Baroness will realise that I am doing my best to answer for the Minister of State. Therefore, if I were to come in with full support for something which was not fully within my knowledge, I would be treading on dangerous ground. For the moment, I will say that I shall ensure that those representations are made.

My Lords, I wonder whether the noble Viscount will take note of a number of factors which contribute to the problems which local authorities are now facing? Like my noble friend, I welcome the statement that there are to be discussions on this matter. But would the noble Viscount not agree—or would he put it to his noble friend—that there are a number of factors involved? The first is that under the arrangements for Mode A places there can be reimbursement to companies where the take-up of places at the end of the day is not as was expected at the beginning of the day. But that does not apply to local authorities, even if they are sponsoring Mode A schemes.

Secondly, does the noble Viscount not agree that the proposed decrease in the number of Mode B schemes will exacerbate the problem of local authorities? Again may we ask the Minister responsible to look at this problem? We understand—and perhaps the noble Viscount can confirm this—that the guidance has come from the Secretary of State at the Department of Employment.

Thirdly, does the noble Viscount not agree that there is a very real danger—as Philip Merridale, the education chairman of the ACC, has implied—that local authorities will withdraw entirely from the scheme unless there is a different arrangement for funding? I believe that the noble Viscount would agree with me that that would be tragic.

My Lords, I am grateful to the noble Baroness. On the question of reimbursement to local authorities, I am sure she will agree that that is a matter for discussion at the talks, and I will certainly represent it. So, too, is the proposed decrease in Mode B schemes something that must be discussed and very carefully considered with the local authorities. I agree entirely with the noble Baroness that it would be tragic if there were to be any withdrawal from the scheme. It is important to remember that the guarantee of a place to all unemployed 16 year-olds has been substantially met, with just over 4,000 yet to take up places. That that guarantee has been met is a tribute to all that has been done in the scheme and to the work of the local authorities. That is why any withdrawal from the scheme would be disastrous.

My Lords, would the noble Viscount not agree that since there has not been full take-up (although we know that recently the take-up has somewhat increased) there is a very strong case for extending the offer of places to the 17 year-olds who are unemployed? Such an offer would not involve more money, since the money is not being fully utilised. This would help to fill the places and to reduce the number of unemployed in the 17 year-old age group.

My Lords, I am sure that the noble Baroness will agree that the first task was to make sure that the commitment to the 16 year-olds was fully met. As that commitment has been fully met, what the noble Baroness has said should certainly be considered. I shall bring the matter to the attention of my right honourable friend.

My Lords, is there not a danger of a conflict between the objectives of the Manpower Services Commission, which the Government support, and Government policy as represented by the noble Viscount's right honourable friend? Is the noble Viscount aware that the chairman of the Manpower Services Commission, Mr. David Young, has appealed to the Government to be generous? If the local authorities carry out the objectives of the Manpower Services Commission and the Government, are they not in danger of being penalised by the Government, in view of their very unsatisfactory policy in relation to spending by local authorities?

My Lords, with respect, that is very nearly, though not quite, a different question. However, I note exactly what the noble Lord has said.

My Lords, following the point made by my noble friend Lady Seear, will the noble Viscount also note that in Cheshire, where I live, there were 1,453 vacancies last month in youth training schemes and 2,729 unemployed people aged between 16 and 18 who were not eligible under the relevant regulations to fill those vacancies? Will the Government or the Manpower Services Commission consider what further action can therefore be taken to bridge the difference between those two figures, which no doubt reflect the position in the country as a whole?

My Lords, I am grateful to the noble Lord. As I said to the noble Baroness, Lady Seear, that is an important point. Because I accept that it is an important point, I shall make certain that it is put to my right honourable friend.

My Lords, may I make a final plea to the noble Viscount, as we are lucky enough to have him, in his very powerful position, answering this Question, to be generous to the local authorities? Their feelings have been ruffled by what has been going on.

It would be very helpful if he could use his influence to smooth things over in this area.

My Lords, I am grateful to the noble Baroness. Whatever may be my power, power backed by detailed knowledge is more valuable than power without it, and I have to admit that my power is without detailed knowledge. Nevertheless, I accept the point, and everything shall be done to enlist the support of the local authorities for a scheme which depends very considerably upon them.

My Lords, would the noble Viscount not agree that it is not only the local authorities which are in a bad way? They are making a great cri de coeur, but very many employers who are acting as management agents are suffering in exactly the same way.

My Lords, the noble Baroness's question emphasises one of the great dangers of politics. If you express sympathy for one group of people you nearly always leave out another. Therefore, I shall express sympathy to all those concerned and say that we need the support of them all in order to make the scheme work.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, the dangers of smoking to which the Royal College again draws attention in its report are already of great concern to the Government. We are committed to doing all we can to discourage smoking and so reduce the deaths, disease and illness associated with it. This can only be a gradual process and we shall continue with our existing policies, which are proving generally effective.

My Lords, I thank my noble friend for that promising Answer. May I ask him whether or not the Government are very concerned by the terms of this report from this influential body, with its reference to a "hidden holocaust of death and disease", and whether he is aware that the Royal College criticises the Government for not being sufficiently active in the discouragement of smoking among all sections of the population and all ages? Will my noble friend have a further look at the restrictions on tobacco advertising, and will he also pass on a suggestion to his right honourable friend the Chancellor of the Exchequer that if he is looking for money, the taxation of tobacco would reconcile additional revenue with social benefit?

My Lords, the figure of not less than 100,000 which was quoted by the fourth report refers to deaths at all ages and is specifically stated not to be comparable with the mortality figures in the college's previous reports, in which an estimate of at least 50,000 early deaths a year was given. Perhaps therefore that is not quite so bad as my noble friend might think. So far as advertising is concerned, my noble friend will be aware that the Government, like their predecessors, have preferred to proceed by voluntary agreement with the tobacco industry. This approach has been very successful in progressively reducing expenditure on cinema and poster advertising. The current voluntary agreement expires on 31st March, 1986. The reductions in that advertising to which I referred will have been respectively 50 per cent. and 40 per cent. by then.

My Lords, does not this Question require further clarification? Does it refer to smoking in general or specifically to smoking cigarettes? Is the noble Lord aware that I began to smoke a pipe in the year 1893 and that I have been smoking a pipe ever since, although off and on recently because of changed circumstances? Is the noble Lord also aware that on Thursday of this week the Pipe Council is holding a luncheon to which I am invited? So is the famous Henry Cooper, who is to be Pipe Man of the Year. It has been suggested, though not by me, that I might be made Pipe Man of the Century. In those circumstances, ought we not to be rather more specific, as I am sure the noble Lord, Lord Boyd-Carpenter, would agree, and say that this applies to a certain kind of smoking, to which some people object? I never indulge in smoking cigarettes myself. Let us have no misunderstanding about the matter. Apart from the financial implications, which are exceedingly important, as the noble Lord, Lord Boyd-Carpenter, declared, a vast number of people want to smoke a pipe. Who has the right to stop them?

My Lords, I should be the last person to try to prevent the noble Lord, Lord Shinwell, from smoking a pipe. He is the living proof—and he looks extremely well on it, too—that smoking does not kill everybody, by any manner of means. But there is no denying that cigarette smoking is the most damaging form of smoking. The last paragraph of the RCP report says:

"Finally, remember that changing to low tar brands is no substitute for not smoking. Even changing to a pipe or cigar is not without risk. It is best to be a non-smoker."

Nevertheless, I am quite sure that if the noble Lord becomes Pipe Smoker of the Century he will receive much acclaim from many people in this country.

My Lords, I wonder whether the noble Lord would make a request to those who produce these reports that they should take the trouble to parcel out the effect of exhaust fumes, which they have never done in any report which they have yet produced.

My Lords, that is a very good and interesting point. I shall certainly make sure that the noble Lord's views are brought to the attention of those who produced the report.

My Lords, the noble Lord has already said that he congratulates my noble friend on not smoking cigarettes for nearly 100 years. From the report, is he aware that among 1,000 young males in England and Wales one will be murdered, six will be killed on the roads and 250 will be killed before their time by tobacco smoking, mainly by smoking cigarettes, and that the National Health Service suffers to the tune of £170 million a year as a result of smoking-caused diseases? In view of the mounting evidence of the damaging effect of this addictive drug and the growing willingness of the public to see Government action, is it not now time for the Government to take determined action on the basis of the recommendations in this report, especially including the banning of all sales promotion for cigarettes?

My Lords, I cannot accept that all the criticisms that the report makes are necessarily justified. In recent years there has been a significant downward trend in cigarette sales and the numbers of people who smoke, so smoking is now a minority habit. The most recent figures show that between 1972 and 1982 the percentage of adult smokers fell from 52 per cent. to 38 per cent. in the case of men and from 42 per cent. to 33 per cent. in the case of women. I am sure the noble Lord will agree that this represents a very significant move in the right direction and demonstrates that Government policies, both of this Government and of the Government of which the noble Lord was a part, have had an effect.

So far as a ban on tobacco sales promotion is concerned, I think one has to be very careful about bans in a free society unless there is very firm evidence to support them. In this case there is no clear evidence that such a ban would directly affect overall consumption, and neither does there appear to be majority support for such a ban within the community.

My Lords, would not the noble Lord agree that the report does document the experience of other countries where they have in fact imposed such a ban, Norway in particular, showing that there has been a dramatic drop in the sales of cigarettes immediately following the banning of public advertising?

My Lords, that may be the case in some countries, but certainly there are other countries which show that the voluntary agreements we have had have been just as effective as in those countries which have introduced a ban.

My Lords, may I ask my noble friend whether he has any sympathy for the view that it is not the role of Government to wet-nurse the governed? Furthermore, does he not agree that it is rather more the business of the medical profession to propagate their own reports rather than for the Government to do so on their behalf?

My Lords, I agree to some extent, but only to a limited extent, with my noble friend. The fact remains that the Government—the noble Lord, Lord Ennals, brought this out—do realise that the cost to the NHS is quite colossal; £170 million is the figure the noble Lord quoted. This is caused by people who do smoke and as a result fall ill in various ways. We should like to try to cut it down wherever we can by the sort of voluntary agreement I have described.

My Lords, I am interested in the logic of both my noble friend on the Front Bench and the noble Lord in concluding that this is a formidable expense on the National Health. Surely, if they did not die of smoking they would die of something else, and that something else would be a charge on the National Health. And, on purely financial grounds, I should have thought that the sooner they died the greater would be the benefit to the National Health.

My Lords, the noble Lord is quite right that in the end we shall all die of something, but there are other financial facts which I think really are pertinent. For example, smoking accounts for nearly 50 million lost working days each year, and that certainly has an effect on the economy.

My Lords, would the Minister agree that the report demonstrates that the habit of smoking is 250 times more likely to lead to premature death than is the habit of driving a car without wearing a seat belt? Can he therefore explain why smoking remains legal—and quite rightly so—whereas driving without a seat belt has been made illegal?

My Lords, if I trespassed on that particular bit of ground I should be in very difficult trouble indeed, and therefore I do not propose to follow the noble Lord.

My Lords, may I ask the Minister whether he is aware that at the age of 17 I watched my father die prematurely at the age of 51? Would he agree with me that many young people under the age of 16 are smoking, and in schools. Would he try to promote television programmes to educate young people, and older people too? Very often it is only on television that the message will get through, because people take this as something useful and modern; young people do not read about it.

My Lords, I shall certainly take the suggestion of the noble Baroness away with me and see what can be done about television programmes. We are most concerned about the level of smoking among secondary school children and we are taking steps to combat it. The Government have over the past two or three years given the Health Education Council an extra £4 million to spend on educating the public, especially children, on the dangers of cigarettes, and we are encouraging the council to maintain its efforts.

My Lords, while not wishing to restrict anybody's liberty, can the noble Lord see whether anything more can be done to liberate those, like myself, who are compelled to consume other people's smoke through not being able to escape from it in public places?

My Lords, I entirely share the noble Viscount's view, as one who does not smoke myself, but public attitudes and Government prompting to those responsible for public places have led to a substantial increase in the provision of non-smoking facilities generally, and these trends will undoubtedly continue.

My Lords, is my noble friend aware that the fitness and agility with which he has fielded this very large number of questions is the best possible evidence of the value of being a non-smoker?

My Lords, will the noble Lord allow a question from the Alliance? Will Her Majesty's Government take to heart the final sentence of an article in the Economist of 3rd December:

"Would that Mr. Fowler could resist the tobacco lobby as firmly as he has resisted the opticians"?

My Lords, I think there is more to that question than meets the eye. I should like a minute or two to think about it. Perhaps I may write to the noble Lord and expand on it. But the point is that the voluntary agreement we have had has been proving effective and the Government do not propose to legislate against tobacco advertising or any other form of promotion in the way suggested by the noble Lord, Lord Ennals, and others.

My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lady Young will, with the leave of the House, repeat a Statement that is to be made in another place on European Disarmament.

It may also be for the convenience of the House if I announce that dinner will be available at the usual time of 7.30 this evening. If the Report stage of the Matrimonial and Family Proceedings Bill has not been concluded by then, it may be adjourned at approximately 7.30 p.m. for approximately an hour. The Committee stage of the Travel Concessions for the Unemployed Bill, which will otherwise follow it, would be taken during this break.

My Lords, I rise to move that this Bill be now read a second time. It is a straightforward consolidation Bill. It seeks to consolidate provisions from Schedule 4 to the Health and Social Services and Social Security Adjudications Act 1983, the Nursing Homes Act 1975, and certain related provisions. In order to produce a satisfactory consolidation it is necessary to make a number of recommendations, which are set out in the Law Commission Report on the Bill laid before the House on 13th December 1983. If your Lordships do give this Bill a Second Reading it will be referred in the usual way to the Joint Committee. I beg to move.

My Lords, this is a pure consolidation measure of the mental health legislation for Scotland. If your Lordships approve, it will be referred to the Joint Committee in the usual way. I beg to move.

rose to move that the Bill be now read a third time.

My Lords, the noble and learned Lord has, with his usual courtesy, thanked those who assisted him on this Bill, and I believe that the House would in turn wish to thank him for the, as usual, persuasive and very clear way in which he guided the House through a very difficult and complex but, nevertheless, extremely useful measure. I am sure that all your Lordships will wish this Bill success.

moved Amendment No. 1:

My Lords, it is with considerable diffidence that I address your Lordships at this stage of the Bill because, being abroad by long arrangement during the previous stages, I could not take any part in the debates. But having presided over the jurisdiction with which your Lordships are instantly concerned for a decade or so, I do not really feel that my previous absence absolves me at this stage.

I have great sympathy with the noble Lord's objectives in moving this amendment. Nevertheless, I hope that your Lordships will not accept it. Perhaps I may say, as the Bill will be going to another place, that I do not propose to revive the exhaustive discussion about a three-year bar, a two-year bar or a one-year bar that took place in Committee. But perhaps I can say summarily that I do not think that the present provision is satisfactory and I prefer the Scottish provision to the one in the Bill.

It is worth while considering for a moment how the present provision came to be in the legislation. In a way it is symptomatic of so much of the humbug which has vitiated so much of our matrimonial legislation. What happens is this. There is a substantial body of opinion that holds that facile divorce advances human felicity, and there are a substantial number who hold a contrary view. Those who hold the former view, when they endeavour to translate it into legislation, obviously try to propitiate their opponents either by some provision or by asserting some slogan. It was for that reason that we had the precursors of the 1969 Act which for the first time allowed divorce by repudiation—repudiation, say, of a substantially guiltless wife by a substantially guilty husband: the man who had substantially broken up the marriage. We had those measures absurdly described as "Strengthening of Marriage" Bills.

So again the 1969 Act was proposed and was subject to the propaganda that it was a "kiss and make up" Bill, whereas, as everybody now recognises, the conciliation procedures embodied in that Act were a mere futility and absurdity. So it was in the 1937 Act from which the present three-year bar dates. That was initiated by A. P. Herbert in another place. It extended the grounds for divorce from adultery—substantially the only ground—to include cruelty and desertion. That alarmed those who thought that there was danger and mischief in the extension of the grounds for divorce in increasing facilities. Therefore, Herbert proposed two stipulations in the Bill which would propitiate his opponents. One was the three-year bar on divorce, which has been so much—I think universally in your Lordships' House—criticised, a criticism in which I share.

We are in this position. That provision having been on the statute book for virtually half a century, to expunge it entirely (as I would wish), or to shorten the period to two years or one year, would understandably be viewed as if Parliament and society were shrugging off their concern with the stability of marriage.

Having said that, nevertheless it seems to me that this amendment is not a desirable one. In the first place, although it effectively puts a bar for two years on the dissolution of the marriage, that is only marginal on the consideration to which I have just referred. In the second place—and this is a drafting point—there is a reference to:

"the High Court by general order",

which I take it refers to the rule-making powers contained in Clause 34 of the Bill. It seems to me that this is a point which could no doubt be put right by amendment. It is unacceptable that a change of that sort should be made otherwise than by Parliament in full and solemn session.

Thirdly, and most importantly, the noble Lord, Lord Robertson of Oakridge, having declared the laudable objective of giving an opportunity for persons newly married and seeking a divorce to have second thoughts and to be reconciled, what the amendment does is to give that opportunity during the interval between decree nisi and decree absolute. Under the Bill no petition can be presented in less than one year. The amendment would say that the decree must not be made absolute until three years from the commencement of the marriage. I am bound to say that in the period between decree nisi and decree absolute the prospect of reconciliation, or indeed of conciliation, is virtually hopeless. That being so, I venture to think that the amendment is the wrong way to go about an important objective and that it is best approached by establishing proper conciliation procedures within the ambit of a family court, as I would advocate, and in fact as I have long advocated, and which seemed to appeal to so many of your Lordships in earlier discussions.

My Lords, I do not want to make another Second Reading speech or even a long Committee speech. We stand in debt to the noble Lord, Lord Robertson of Oakridge, at least for putting down a marker in this amendment, if only to draw final attention to the seriousness of what is before us this afternoon. If we are debating for a long time today, I have that unpleasant task of having to say that my diocesan duties mean that I have to return later tonight. I apologise in advance for that in case the debate lasts for a long time. I hope that it will not.

The amendment which the noble Lord, Lord Robertson, has put before us highlights what we are being asked to approve in Clause 1. After the length of debate and discussion on the matter in your Lordships' House, we now see quite openly the seriousness of Clause 1. This amendment highlights that. We have experienced all the gravity and publicity of the powerful advocacy of the noble and learned Lord on the Woolsack and the intellectual but cold advice—mistaken, in my judgment—of the Law Commission, but Clause 1 makes divorce possible after only 12 months of an ordinary marriage. We should think back to 24th January of last year. The eve of the Conversion of St. Paul's Day last year is not very long ago. As the noble and learned Lord, Lord Simon of Glaisdale, reminded us, special arrangements can always be made in the High Court if there have been grievous and serious activities. But we are dealing with ordinary marriages and asking for an ordinary divorce procedure, if one can use the phrase "ordinary divorce procedure". An attempt is being made to enable an ordinary marriage partner to begin to institute proceedings to break, after only 12 months, the solemn and life-long undertaking which he and his partner have made.

I would remind your Lordships that this is not simply a Church matter, even though nearly half the marriages that are solemnised in England are solemnised in church, because in fact in the registry office, as in the church, the ideal is set out quite plainly. If your Lordships have had the experience of going to, or even through, a registry office marriage, you will remember that in the registry office, as in the church, the ideal of life-long marriage is clearly set out as the English ideal.

Therefore, the amendment to which for these moments we speak is at least a last attempt to raise a final marker of dissent against Clause 1, which will allow the breaking of a new, a young and a still developing relationship of marriage by permitting proceedings to begin after 12 short months. I very much hope that whatever we do in regard to the amendment there will be many of us in all parts of the House who will feel it right as a matter of conscience, and not for any other cause, to vote that Clause 1 shall not stand part of the Bill. Having studied the matter with some care, I notice that if Clause 1 is not allowed to stand part it will make no difference to the rest of the Bill. The clause is so ectopic to the other parts of the Bill that if we do not allow it to stand part that will not affect other matters which are before your Lordships' House in the Bill.

I believe that if we allow the clause to stand part of the Bill the Christian and social view in England that marriage is an ideal and is life-long, and there are some exceptions which are dealt with by divorce, will be overthrown to the extent that divorce is the standard situation between married partners and life-long marriage is an exception. For that reason I believe that we are probably at one of the most solemn moments of your Lordships' debates. It seems that the stability of a nation depends upon the stability of home life, and the stability of home life depends upon the stability of marriage. Therefore, so that I can make one speech and not two, I would say that regardless of whether we accept or reject the amendment of the noble Lord, Lord Robertson of Oakridge, I very much hope that we shall be not-content to allow Clause 1 to stand part of the Bill.

My Lords, I am bound to say to your Lordships that to me the amendment is even less attractive than was the amendment which was rejected in Committee, and which I think was also in the name of the noble Lord, Lord Robertson of Oakridge. Despite the right reverend Prelate's plea, I shall once more try to rehearse the arguments which led the Law Commission, after a prolonged period of consultation, which proved virtually unanimous, to include the clause in its report, No. 116, and which led the Government to accept the commission's advice.

I start by saying that from hearing the right reverend Prelate a moment ago no one would have guessed that the law of Scotland had no bar at all, and that in Scotland proceedings for divorce can be brought on the same grounds as in England the day after the marriage is celebrated. To speak in violent terms of coming to the most solemn moment of our debates when, since time immemorial, since the present grounds of divorce were instituted, the Scots have operated the law which is now proposed in a more extreme form, is, if I may be forgiven for saying so, to say that which is fundamentally ridiculous.

That is the more so since if the right reverend Prelate had only troubled to read pages 55 and 56 of the report of the Law Commission on the matter, he would have seen that it was established beyond a peradventure that statistically not one single marriage would be saved if we adopted the Scottish practice. Therefore I adhere entirely to what my noble and learned friends say from the Cross-Benches: that if we were to adopt the Scottish practice we would suffer no social harm at all. As a concession to the points which my noble and learned friend put forward I can only add what he said about the reasons which led me to accept the Law Commission's modified report.

In the first place, throughout these debates I have been particularly anxious not to put the Bill forward as a kind of single-man crusade of my own. I have been putting forward the Law Commission's report after its proper methodology has been adopted, and I have not thought it right to impose any personal view of my own. Had I done so, I should have followed the noble and learned Lord, Lord Denning, and the noble and learned Lord who has spoken from the Cross-Benches this afternoon.

In the second place, it was because a large number of persons brought pressure on us to allow in England and Wales some kind of bar which does not exist in Scotland that I thought it right not to interpose my own view between the view of the House and the view of the Law Commission. To talk in dramatic and catastrophic terms of doom and gloom about the institution of marriage and the family when Scotland is getting on perfectly well without any bar at all is, frankly, to talk nonsense, and I hope that at last the right reverend Prelate will absorb that fact.

Next I want to rehearse, even at the expense of repeating some of the things that I said on Second Reading, the reasons which render the Bill rather important and necessary in the interest of the institution of marriage. It has always been recognised—from the very start, from 1857 onwards—that if there is to be divorce on any ground there will be a number of cases where the sooner the marriage is wound up, the better. That has always been recognised. Now the right reverend Prelate says that we must not do it at all, and the noble Lord, Lord Robertson of Oakridge, says that we must not do it at all. But what about the case where a person acquires a venereal disease after marriage? Are we really going to say that the couple must stay together in an unholy deadlock? What about the case where an unfaithful wife is bearing someone else's child? Are we really going to say that the husband and wife must stay together for two years and a bit before the marriage is wound up?

I must remind the House that from beginning to end of these debates not a single Law Lord, no one with any experience of the divorce court and of what actually goes on there, has supported this series of amendments. However, I would remind the House of something that Lord Atkin said when the original bar was being introduced in 1937. I must tell the right reverend Prelate that, like myself, Lord Atkin was a life-long communicant in the Anglican communion. He was every bit as good a Christian as anybody in this House—right reverend Prelate or layman. He sat, curiously enough, on the Liberal Benches. This was odd. One would have expected him to sit on the Cross-Benches. His Life quotes him as saying ominously:

"I venture to think that the supporters of this clause"—

that was the clause introducing the bar—

"have not realised what the real facts of divorce cases are", [Official Report, 24/6/37; col. 755.]

and proceeding to give some painful examples:

"Take the working-class husband who commits adultery with a woman or with women. Is he to return to a wife from the arms of his mistress and sleep with her in the wedding bed? Your Lordships will remember that among the working classes"—

they were called that in those days—

"there is no question of separate rooms or even of separate beds. That is an insult from which a working-class woman is entitled to be relieved, and that is a normal, ordinary divorce case.

"I do not know what the supporters of this clause"—

meaning supporters of the bar—

have in their minds when they talk of matrimonial difficulties in respect for which people should stop and think. What ought they to think about when that happens? What room is there for stopping and thinking? That woman is entitled to relief from the terrible position in which she has been placed; and she would have no remedy. She has a remedy now by divorce. She would have a remedy under a later clause of this"—

the A. P. Herbert—

"Bill by getting a separation; but I thought that the one thing that the promoters of this Bill wished to do was to diminish separations, because they all know of the terrible difficulty and the sad immorality which are the result of making young people who have been married, and in whom the flames of passion have been rightly kindled, live apart in separation.

"Take the case on the other side, the normal case, when a man discovers that his wife has commited adultery with another man. What is he to do? Why has he to stop and think? Think about what? Is he to have a spurious child brought into his family?…But in these circumstances he has either to stop and think or they have to adjust their personalities together while she is perhaps bearing the child of her paramour, and he is keeping her in his house and, I suppose, sleeping with her in his bed. It seems to me to be perfectly distressing." [Official Report, 7/7/37; cols. 88–89]

It is going back to that that the noble Lord, Lord Robertson of Oakridge, and the right reverend Prelate are asking us to do. Under the present law, you can get a divorce, even in England and Wales, in those circumstances if you go to the court and say that there has been an exceptional degree of depravity or exceptional hardship. If the right reverend Prelate or the noble Lord, Lord Robertson of Oakridge, have their own way, I suppose that we go right back to 1937.

This Bill has been introduced, I venture to remind your Lordships, because it has been found that the concept of it being necessary to prove a case of exceptional depravity or exceptional hardship is conceptually unacceptable and practically unworkable. It is conceptually unacceptable because it assumes an ordinary degree of depravity up with which you have to put or an ordinary degree of hardship which you have to suffer. There can be no such rational thought. It is practically unworkable because each judge has to decide what is exceptional according to his own notion of what is normal, and therefore there can be no consistency. It leads to the most disastrous social consequences because parties are encouraged to make the most unpleasant allegations in order to take advantage of the exceptional depravity clause, which renders reconciliation and conciliation, which is what the right reverend Prelate claims to want, practically impossible.

These are reasons that led the Law Commission, after consultation papers had been issued and after discussion, to decide that the escape clause of exceptional depravity and exceptional hardship was wholly wrong and ought to be withdrawn. The logical thing from that moment would have been to adopt the Scottish law. I still think so, but, as a concession to those who take the right reverend Prelate's point of view, the Law Commission said, "No. Let there he a one-year separation period but, if you are going to abolish a discretionary bar of three years, you must adopt a shorter period. If you are imposing an absolute bar, let it be one year, which will not impose undue hardship or encourage undue immorality." That was the basis of the clause. It is by that that I stand and by that that the House stood in Committee. I hope that it will stand by it again.

The only other thing that I have to say about this unpleasant subject is this. Whereas the two-year amendment in Committee was objectionable and was rejected, this is more objectionable and ought more readily to be rejected for the kind of reason that the noble and learned Lord on the Cross-Benches ventured to put forward. It uses the decree nisi for a purpose for which it was never intended—to prolong the shell of a marriage. It uses the decree nisi for a purpose that was never intended and for which it is totally inappropriate. It was used in the original law under which I was brought up as a means of allowing the King's Proctor to make inquiries as to whether there had been collusion at a time when collusion was a bar to divorce. It is now used for a very much shorter period—six weeks—in order to tie up the ancillary provisions about maintenance and custody before the marriage is formally dissolved. But it was never intended to hold the parties together. That would have always been rejected as wholly inhumane and wholly wrong.

I come back, therefore, to this proposition. What I want to bring home to the noble Lord, Lord Robertson of Oakridge, and what I hope will be brought home to the right reverend Prelate is this. If they had really studied the philosophy of this Bill they would realise that you do not get to first base at all in the divorce unless it has been proved that the marriage has irretrievably broken down. For the purposes of this amendment, although not generally, you cannot get to that base unless you prove either adultery or conduct on the part of the respondent that makes it intolerable for the two to go on living together.

The fallacy in the whole of this series of amendments and the fallacy in the speech of the right reverend Prelate and the speech of the noble Lord, Lord Robertson of Oakridge, is that they will not understand that before you can get a divorce at any time, whether two days after the marriage or 10 years after the marriage, or at the end of 50 years, you have to prove the irretrievable breakdown of the marriage. In addition for the purposes of the amendment, you have to prove it on one of two grounds—either adultery or conduct so intolerable that it is not right to ask the parties to live together any more.

What is being proposed is to misuse the conception of the decree nisi and to go right back to the old concept of holding the parties together for a period of two years by a legal device, a legal fiction, when the marriage has irretrievably broken down on the grounds of adultery or intolerable conduct and when it has been shown that it is wholly unnecessary to hold them together because of the Scottish experience. I hope that we shall hear no more of this nonsense. Nonsense it is. There is not a respectable lawyer, I believe, who would support it.

My Lords, before the noble and learned Lord sits down, may I raise one question? When, in the quietness of tomorrow, he reads Hansard, he will. I think, notice that I was very clear in my short speech in saying that there is always opportunity for divorce in desperate and grave cases. The noble and learned Lord on the Woolsack himself used the phrase, "grave cases and painful examples". I used the phrase "desperate and grave cases". Although I listened with the greatest care and will study word for word in Hansard tomorrow all that the noble and learned Lord has said, he will, I think, agree that the result of Clause 1 will still be that, as this House states it, after one year of marriage people can ask for an action to break it.

My Lords, I must make it absolutely plain that I do not agree with that. In the first place the test is when one can commence proceedings. In order to do that one has to get a hearing and then one has to clear up the ancillary proceedings. Secondly, as I understand it, the right reverend Prelate and the noble Lord, Lord Robertson of Oakridge, have always stood for an absolute bar of two years. Therefore, the first part of the right reverend Prelate's intervention is incorrect.

My Lords, let me say at once that I am only giving a personal point of view and the House knows that their are no Whips on so far as the Benches that I have the honour to sit upon are concerned. From my own personal point of view I do not think that this is a good amendment, but I approach my arguments in that connection on, I hope, a moderate path, on a polite path, and, I hope, on a path respectful to the Bishops' Benches.

First, it is very true that the whole question of exceptional depravity and undue hardship, debated in your Lordships' House in Committee, is unacceptable to any reasonable person who has had experience of the line of cases that were mentioned in Committee. I remember very well the noble and learned Lord, Lord Denning, dealing with that matter. Therefore, an amendment to the law has to take place. It would be wrong to accept that the question of having to prove that a marriage has irretrievably broken down is one which goes through the motions that the noble and learned Lord the Lord Chancellor indicated, possibly mistakenly, with respect. It is not a long procedure before the courts. There is a special procedure list. If the other party does not oppose the fact that the marriage has irretrievably broken down, the average time taken by the learned judge in pronouncing a decree is precisely one and a half minutes. Such is the examination of a marriage which has irretrievably broken down.

However, to say, when parties have got to the stage of a decree nisi, that they must be knit together in a completely unholy deadlock for a long period of time or that the decree absolute cannot be pronounced for a long period of time, is not the correct way, if I may say so respectfully, to deal with the problem. But I cannot laugh at, I cannot call absurd, I cannot call ridiculous or illogical those people who honestly believe, as a result of their experience, that in the ordinary type of case—not the dreadful case of the wife who is giving birth to another man's child, or the woman who is suffeirng from venereal disease or the man who is suffering from it—young people ought to be given an opportunity of considering their position and of listening to those who would say, "You cannot get a divorce for quite a period of time", be it one year or two years. Indeed, the Law Commission were not very sure about the period because they said that it could possibly be a longer one.

That opportunity will be missed; and all those who spoke of a longer period for consideration spoke with sincerity. Some of us also spoke with a knowledge of these matters and as practitioners. There is one statistic that can never be before this House, whatever the noble and learned Lord may say. I am referring to the statistic of those who manage to mend their marriages and who do not come before the courts at all. There are no such statistics. Therefore, to say that, because Scotland has had a law which says that there is no time at all necessary before a petition can be launched after a marriage, statistically we can show—because that has been their law—that no marriages have been saved as a result of our English law which provided for three years, is not something that can be substantiated at all.

I have said that I think that this is a bad amendment but I do not believe that the House ought to be led into the thought that those of us who supported a longer period than one year were doing something that was foolish, that showed a lack of experience, or were doing something that did not show indeed a degree of understanding, even if the noble and learned Lord did not agree with us.

Having been so serious let me end on a rather, I hope, lighter note. Hansard occasionally produces a rather amusing result. The noble and learned Lord when he was referring to me in the course of the Committee stage said—and said very correctly—that he had been himself quite well experienced in the old days in divorce matters. He said that he, too, looking at me with a very courteous but pointed gaze, had been a practitioner in the law. Hansard has reproduced this at col. 970 of 5th December as:

"I know less than the noble Lord, Lord Mishcon. Perhaps it has been forgotten, but many years ago he was actually a practitioner".

I hope, with that mutual feeling of respect for each other, which I hope we will always have, the noble and learned Lord will understand, possibly better, the points of view of those who, like the right reverend Prelate, have been trying to argue for a longer period of consideration than one year.

My Lords, your Lordships must not think that all of us on these Benches think the same. I agree with every word that the noble and learned Lord the Lord Chancellor said both last time and this time and also with the noble and learned Lord, Lord Simon. I hope that the noble Lord, Lord Robertson, will withdraw this amendment because it has the contrary effect to that which he intends.

I have one reservation about all this business of legislating on matrimony, and if there is any parallel with matrimony I do not know it—I could invent a few, but it would keep your Lordships too long from tea or the next Statement. The one part of me which always gets puzzled over this is the quarter Welsh in me. I can never understand the unverified assumption which all Englishmen make, and will certainly make as regards this Bill: if it is legal then they say immediately that it is right and, therefore, they must do it. I rather wish that there were no time delay at all; that we could go back to Scotland completely and be perfectly plain and straight. If we want to go back again to what was the law of divorce—and this is neither the occasion nor the time nor the means of doing it—it would be impossible unless there were a horrendous end to this world, which some of us seem to talk about a lot, and we could start again with our new genes about which the noble Lord, Lord Paget of Northampton, spoke yesterday.

However, I ask the noble Lord, Lord Robertson, whether he will not in the interests of commonsense and experience—and I have nearly 50 years of experience—withdraw the amendment and go along with the Bill which we can make to work as well or as ill as we made the last marriage Act work, because quite extraordinarily, by the grace of God, even nonsense can be made to look something like sense for as long as our lifetime.

My Lords, I, too, do not think that this is a good amendment and, therefore, I do not propose to support it. However, my noble and learned friend the Lord Chancellor said that he would not allow his personal views on this Bill to influence matters that were to be decided. Is he aware of the great distress caused to many women's groups in this country by his comments on this Bill on the radio? I should not be doing my duty as the United Kingdom representative on the United Nations Status of Women Commission if I did not draw this point to his attention and in particular the statement, which he repeatedly made, that those who oppose this Bill or who presumably wish to amend it are doing so purely from the motive of getting publicity for themselves. My noble and learned friend said that and he repeated it on this radio programme, and it has caused great distress. I should like to draw that matter to his attention and seek his assurance in this House that he believes the points put forward in this debate are presented conscientiously and sincerely, and for no other motive.

My Lords, by leave of the House, perhaps I may shortly reply to those comments. My remarks on the radio had nothing whatever to do with the subject about which we have been talking in this amendment.

My Lords, I was one who did not agree with my noble and learned friend the Lord Chancellor over this matter in Committee. Like the noble Lord opposite, I wanted to try to get a longer period. At that time I was not convinced by my noble and learned friend, with all his wisdom. As I recollect, he tried to convince a rather sparse Committee. However, I should like to put on record that today I am convinced by all that he has said and I shall be voting with him this afternoon.

My Lords, I greatly enjoy the speeches of the noble and learned Lord the Lord Chancellor when he gets into top gear, though I must say that I enjoy them more when I do not agree with them, and unfortunately this time I do. I believe that the noble Lord, Lord Mishcon, is right to point out that one or two of the adjectives used by the noble and learned Lord the Lord Chancellor in describing the speech of the right reverend Prelate were perhaps a little extreme.

In a way, I am some distance away from the whole of this problem. I have been concerned—as most of us have—with a number of happy marriages, some close, some far. From my point of view, it seems to be a question of only one thing: will the falling out of love of a couple, and the tendency which falling out of love has to lead to hatred, be more damaging for the children than the public break-up of that marriage? That is the only matter which I ever consider when I am consulted by friends or relations about divorce. I believe it is the only thing that matters. I do not believe in the sacrament of marriage as something which happens at marriage; I believe it is something which happens afterwards and which you grow into, but that is quite a different point.

That is all I want to say. I thought that the only matter that is important in this discussion had not been mentioned, and I thought that I would mention it. Meanwhile I am happy to agree—not only this time but reasonably often—with the noble and learned Lord on the Woolsack.

My Lords, I am most grateful to noble Lords who have taken part in this short debate and I am grateful to the noble and learned Lord on the Woolsack for the detailed and courteous way in which he dealt with my amendment. Perhaps I could just correct one point of fact in the speech of the noble and learned Lord, Lord Simon of Glaisdale. The idea of giving the High Court power to issue a general order to vary the period between a decree nisi and a decree absolute is already in the 1973 Act. I take no credit for that.

The idea behind this amendment, which I put forward after a certain amount of consultation with those who have a knowledge of, or who practice in, the family courts, was to slow down the process of divorce in order to provide more stability to marriage, but to do so in a way that would not hold the couple in a relationship which by then would be merely one of pain and grief. Therefore, it seemed to me to be worth exploring whether or not there was some way to get as far as a decree nisi and to get all the mechanical and important arrangements concerning finance and children settled and out of the way, and just to hold one thing back—the decree absolute. It was not my intention particularly to use the period between the decree nisi and the decree absolute as a period in which, if it were made longer, the couple could be brought together. I, too, do not think that that is realistic. I accept the advice given by the noble and learned Lord on the Woolsack and given by other noble Lords, and I beg leave to withdraw the amendment.

My Lords, with the leave of the House, I should like to repeat a Statement now being made in another place by my right honourable and learned friend the Secretary of State for Foreign and Commonwealth Affairs. The Statement is as follows:

"Last week I attended the opening meeting in Stockholm of the Conference on Confidence and Security Building Measures and Disarmament in Europe, known as the CDE. It is the first of the follow-up conferences agreed at the CSCE review meeting in Madrid last September, and the opening was attended by the Foreign Ministers or their equivalents of all 35 participating states. On Friday (20th January) I delivered an opening speech on behalf of the United Kingdom. A copy has been placed in the Library of the House.

"This is the first time that so many states have met together specifically to tackle some very basic questions affecting the security of Europe. The aim is to lower tension and reduce the risk of war, by finding practical ways of improving mutual confidence and trust.

"Together with our allies, we are today tabling proposals which, as the terms of reference of the conference require, are militarily significant, politically binding, verifiable and applicable to the whole of Europe. We are proposing measures designed:

• "firstly, to reduce secrecy by the exchange of information and by the observation and inspection of military activities;
• "secondly, to make clear provision for the advance notification and reporting of military activity;
• "thirdly, to promote stability and to inhibit the use or threat of force for political purposes;
• "and, fourthly, to facilitate crisis management in periods of tension and to reduce the risk of surprise attack.

"If we can secure agreement on measures of this kind, I have no doubt that Europe will be a safer place. We should then be in a position, as I told the conference, to consider moving to further stages of negotiation, providing for the restriction of military activities and for reductions in force levels. The first job must be to build a basis of confidence, by measures of the kind I have described.

"I emphasised that arms control negotiations alone cannot and should not have to bear the full weight of East/West relations. The dialogue between East and West needs to be broadened and given more substance.

"My meeting with Mr. Gromyko on Thursday (19th January) thus gave me the opportunity to discuss with him, not only arms control, but East/West relations more generally, as well as the Middle East. I also raised with him the question of Soviet fulfilment of its international commitments in the field of human rights. We agreed that arrangements should be made for a further meeting between us.

"The opening of the Stockholm conference came at a difficult time in East/West relations. The difficulties remain. But I hope that I shall be proved right in seeing in the events of last week signs of a new determination to tackle them. We must look to the causes of tension and try to reduce them. At Stockholm and elsewhere, that remains our purpose."

My Lords, that concludes the Statement.

My Lords, we are grateful to the noble Baroness for repeating the Statement and we welcome its constructive nature and the four proposals which she has just read out. Would the noble Baroness agree that, in spite of what one newspaper called the "angry rhetoric" of some of the speeches, notably Mr. Gromyko's, there are grounds for believing that both sides are, in fact, seeking a genuine dialogue? Yesterday the noble Lord, Lord Trefgarne, said that it was hoped that a date for the resumption of the START talks would soon be announced and that the date for the resumption of the MBFR talks in Vienna had already been set. We welcome both these causes for optimism.

However, can the noble Baroness give us any information about the INF talks? Would she not agree that a realistic nuclear disarmament programme must co-ordinate the reduction of all forms of nuclear weapons and that we cannot discuss the reduction of one type without discussions about the other types, especially given the differentiation between the Soviet and American stockpiles?

Is the noble Baroness aware that an article in a recent edition of the Sunday Times concluded:

"Unlikely though it may seem, there is at least a chance that by 1986, thanks to Stockholm, the world could be a marginally less dangerous place".

In the CSBM talks which are to follow, can the noble Baroness say which areas Her Majesty's Government intend to concentrate on so as to validate this conclusion by the newspaper?

Finally, is she aware that we warmly welcome the Foreign and Commonwealth Secretary's remark that the dialogue between East and West needs to be broadened and given more substance and also the announcement that the Foreign Secretary is to meet Mr. Gromyko again?

My Lords, I too should like to thank the noble Baroness for repeating this important Statement, but speaking, I hope, with the agreement of noble Lords on these Benches I am afraid that the general impression created by it, in my mind anyhow, is that Western Governments at the Stockholm Conference were, to some extent, whistling to keep up their spirits. Nothing in the statements by the Eastern bloc participants, more particularly the Soviet Union, seems to give rise to any particular hope that the admirable measures recommended by the allies are likely to be generally accepted in the foreseeable future. I hope that is not so, but I should like the noble Baroness to say whether this gloomy impression is at all justified.

Moreover, the Statement says, unless I misunderstood it, that these four excellent measures should be agreed before we can,

"consider moving to further stages of negotiation, providing for the restriction of military activities and for reductions in force levels".

As the noble Lord, Lord Cledwyn of Penrhos, said, the Soviet Government has, as I understand it, agreed to resume the long-drawn-out negotiations on the mutual and balanced force reductions. Do the Government therefore now believe, as the statement would lead us to suppose, that no progress can there be made until effect has been given to the proposals which have just been tabled in Stockholm?

My Lords, I should like to thank both the noble Lord, Lord Cledwyn of Penrhos, and the noble Lord, Lord Gladwyn, for their responses to this Statement. I was particularly pleased with the final remarks of the noble Lord, Lord Cledwyn, in which he welcomed the remarks of my right honourable friend the Secretary of State on the need for the dialogue between East and West to be broadened. Perhaps it might be helpful to say that my right honourable friend believes that his talks with Mr. Gromyko showed a wish on both sides for further contact. He has agreed that he will in any event meet Mr. Gromyko at the United Nations in September, but both agreed that it would be a good idea to see each other earlier if this can be arranged.

The noble Lord, Lord Cledwyn, also asked me where we are currently on the INF talks. The present position is that we stand ready to resume these talks at any time and we hope that the Russians will return to them. If we compare where they are in relation to the CDE (a point referred to by the noble Lord, Lord Gladwyn), I should make it clear that we see the discussions which follow under CDE as complementary to the other discussions which would go on under MBFR or the START talks when they are resumed. There is no reason why both lots should not continue concurrently because each set of talks is concerned with a different subject. I should perhaps expand that further. The CDE talks, as set out in general principles in the Statement, are designed to establish a pattern of verification which both sides would understand—I believe the technical term for it is known as military transparency. The INF talks are concerned with nuclear arms in Europe and the MBFR talks are concerned with reductions in conventional weapons. Each has a different function to fulfil and there is no reason why both should not continue at the same time.

The noble Lord also asked whether we feel there are any grounds for hope at the end of the introductory talks at CDE. We have welcomed the speech of President Reagan on 16th January which gave a reaffirmation of the need to:

"establish a constructive and realistic working relationship with the Soviet Union",

and we feel that this is a good basis for the conduct of super-power relations.

The Soviet reaction to President Reagan's speech and their initial response was cool. Mr. Gromyko's speech at CDE on 18th January had some harsh things to say, but we believe that probably this is not the Soviet's last word and we believe strongly that in all our interests we must work to reduce tension and so work for a safer world.

My Lords, I hope the noble Baroness will allow me to intervene on one further point of clarification. I will read what the Statement said:

"If we can secure agreement on measures of this kind, I have no doubt that Europe will be a safer place. We should then be in a position",

to go on with such discussions at MBFR. However, what she said just now makes clear that that is not so, and that we shall hope that there will be progress towards the achievement of these four measures at the same time as we resume negotiations at Vienna. Is that so?

My Lords, I am sorry if I have not made the position quite clear. I will try again. What is contained in the Statement is what has been tabled by ourselves and our allies at Stockholm as a negotiating stand. This will now be considered by officials. As I have indicated in further elaboration, it is designed to establish the patterns of military forces which both sides can understand. We believe that this is the first stage towards verification and it is a confidence-building measure. If it is successful and we build up confidence then we could move on to other matters. But, as the noble Lord, Lord Gladwyn, said, the Soviets have agreed a date to return to the MBFR talks and there is no reason why those talks should not be continuing at the same time as these talks are going on. We may make progress on one and progress on another. They are not mutually contradictory. What we really hope to see coming out of the CDE conference are these confidence-building measures.

My Lords, if nobody else wishes to intervene, may I ask the noble Baroness whether she would be good enough, perhaps tomorrow, to give further thought to the point which my noble friend Lord Gladwyn raised, because those of us who heard her comments can understand how the Statement should be interpreted. But those who read the Statement flat, without those comments, are much more than likely to come to the conclusion to which my noble friend Lord Gladwyn and I came by the Statement saying that if you do so-and-so, you can then move on to something else—meaning that if you cannot do so-and-so then you cannot move on to something else. The noble Baroness has been good enough to explain that that something else could be moved on to, indeed, is going to be moved on to; and it would be helpful, therefore, to those outside this place who take a great interest in statements of this kind that there should be the opportunity of the Statement being published in the press, or in some way like that, to make quite clear that the interpretation put on this important Statement is the one which the noble Baroness has expressed.

My Lords, I appreciate that the noble Lord, Lord Diamond, has made his intervention in order to get clarification and, I hope, to help what we all want to see achieved, which is some measure of advance in these confidence-building measures. If I may I will read tomorrow in Hansard what has been said, and if I feel that there is some misunderstanding as to what is the correct position I will undertake to write to the noble Lord, Lord Gladwyn, and of course to copy the letter to the noble Lord, Lord Gledwyn.

My Lords, cannot the Russian attitudes be explained only by ambition or fear? If they maintain that it is not ambition, could they be asked why they have this prolonged military occupation of Afghanistan against the wishes of the people? If it is fear, could they be assured that there is no Western country that has ambitions against them?

; My Lords, I do not think that it is for me to speak on what motivates the Soviet Union in foreign policy. As far as Afghanistan is concerned, we have made quite plain our view of the Russian intervention in Afghanistan. This has been raised on five occasions at the United Nations. We have always made it clear (and my right honourable friend the Prime Minister has made it clear on a number of occasions) that NATO is a defensive alliance, that it was formed as a defensive alliance and remains as a defensive alliance in Western Europe.

moved Amendment No. 2:

Before Clause 3, insert the following new clause:

My Lords, I desire to support as strongly as I can Amendment No. 2—at any rate, the principle of Amendment No. 2—and my attitude to it has been eloquently and vigorously expressed by the noble Lord, Lord Hatch of Lusby. I can therefore be brief. We are here considering an area of the law where there is a serious weakness, in practice and in principle, in the financial support available to a divorced woman. The basic weakness of the law has been described by the noble Lord, Lord Hatch of Lusby. It is that the courts have no power to order the trustees of a pension fund, when the moment comes for them to pay out benefits either by way of pension or lump sum, to apportion those benefits between the husband, his widow if he has married a second time and his first wife. The position therefore is that trustees of these pension funds pay out the benefits either to the man himself or to his widow, the second wife, and there is nothing directly available from the fund for the first wife.

One understands that it would be difficult to introduce into the Bill a provision which gave power to the courts to make such direct orders upon the trustees of funds, insurance companies or other institutions charged with the operation of an occupational pension scheme. Therefore, this amendment and Amendment No. 3 are put down so that the attention of the House and of the noble and learned Lord on the Woolsack and his department may be drawn to the crying need to strengthen the protection of women of the kind we are discussing.

I invite the attention of the House, in particular, to Amendment No. 2. This option was considered by the Law Commission when I was its chairman. In retrospect, I am very sad that we did not put it forward. It is a very ingenious provision. It deals with the all too common situation of a family which has an income, earned, let us say, by the husband from his job, but no capital worth speaking about, although there is the expectation (it may be more than that under an occupational pension scheme; it may be a right) on retirement or death of receiving a pension or capital sum benefit from an occupational pension fund. The ingenuity of this proposal is that it enables the court to require the husband, on divorce, to buy, by payment of monthly or annual premiums, a deferred annuity, or a life or other insurance policy which will mature very much later; namely, on the retirement or death of the husband.

Let us consider how serious that moment is for an ex-wife who, for one reason or another, has been unable during the years since her divorce to earn a substantial living and therefore a pension. That is the moment when the source of her financial support by periodical payments disappears. That is the moment when she must find a substitute. Under existing law she will be hard put to it to find a substitute if her ex-husband's only pension entitlement is to be found in an occupational pension scheme which is operated by trustees who do not recognise any rights in the divorced wife. The amendment secures that by regular payments, within the means of the ex-husband, there will be, when that dread moment arrives, some benefit, either by way of annuity or capital sum, available for the ex-wife who has, ex concessis, no rights against the fund.

Though, like the noble Lord, Lord Hatch of Lusby, I am certainly not pressing the House to divide on this amendment, I do ask the House and the noble and learned Lord on the Woolsack to give it, together with other proposals, most careful consideration. I blushed as the noble Lord, Lord Hatch of Lusby, indicated the apparent lack of success or lack of enterprise—I do not quite know which it was—of the Law Commission in not pursuing this matter, which we in 1967 plainly recognised was a serious weakness in the law. Let us hope that perhaps during the course of the Bill we may, late though it is, repair that injustice to women. And how appropriate it would be to do it in a Bill which is seeking to repair injustices to men! Let us add a little chivalry to the Bill.

My Lords, I, too, should like to support the principle underlying the two amendments which have been put forward by my noble friend Lord Hatch of Lusby. I should like to highlight the concern which is felt about the whole matter by giving the example of a particular category of wife who suffers from the quality of her husband's profession and who is therefore a target after divorce, as a result of his profession. I refer to the diplomatic service wife.

There can be no doubt that because of the unusual nature of the diplomatic profession the diplomatic service wife has to make more sacrifices than do women who are married to men in other professions. Not only does she suffer the very great inconvenience of perpetual moves from one country to another, with the consequent damaging effects on her own qualifications or her own job opportunities; she is also required to put a great deal more time and effort into supporting her husband in his particular profession. She has to do a great deal more entertaining and she has to devote a great deal more of her time to contributing to her husband's profession. So more than most wives she feels bitter about not qualifying for any part of the occupational pension.

In the event of a divorce, therefore, a diplomatic service wife will feel this injustice but will be in an even weaker position than most ex-wives to find employment. She will have been away from the employment market; and she will therefore be unable to earn her own occupational pension. After a long period of time she will find herself almost disqualified from her own employment field. To give your Lordships an example, I have been sent a letter which was received by the Diplomatic Service Wives' Association and which bears out this point. This elderly lady said:

"I have been most interested in the recent articles relating to divorce after retirement. I myself would have consented to a divorce some years ago but have not done so solely because of the civil service widow's pension problem. I hope this ruling may be changed some time. I feel that it is most unfair. I had to give up a perfectly good job when I married into the Foreign Office in 1949 and have since done a number of jobs which have been useful, but not a career. I have been doing a part-time catering job for six years, but I am now 63 and cannot go on much longer. I do have an old-age pension, so I will not be left with no income at all, but I will get no share of the civil service pension which, like many others, I feel I have earned.".

However, I would point out that American law recognises this particular injustice and provides special treatment for ex-foreign service wives in the United States. There, under the provisions of a public law which is apparently re-stated in a s section of the Foreign Service Act 1980, an appropriate distribution of a retirement benefit between a federal employee and a former or separated spouse can be determined. The paying officer is authorised to make payments directly to the previous or separated spouse in compliance with the terms of an express court determination providing for the apportionment of retirement benefits.

I realise that that provision was brought in under a foreign service Act, and indeed it is quite remote from any possibility within this particular Bill. But my reason for pointing it out to your Lordships is simply to stress that this injustice has been recognised by American law and it has been dealt with. The spirit and principle of these amendments are extremely important. They are trying to rectify this injustice, and for that reason I should like to support them very strongly indeed.

My Lords, your Lordships will feel indebted to the noble Lord, Lord Hatch of Lusby, for these two amendments, because they identify a problem which has been recognised as being part of the injustice to wives which was implicit in the 1969 legislation. Being so very near the heart, it is far from easy to be rectified.

The noble Lord has put us all in his debt by identifying the problem so clearly. He made it clear that these are probing amendments so it would be quite inappropriate to cavil at any matter of drafting or machinery, as to which I am far from convinced. But I venture to go behind even the noble Lord's very clear analysis and review the way in which maintenance of wives should be looked at, because that affects so many of the other matters which your Lordships have to consider.

Viewed economically, marriage involves a functional division of labour. The husband is free to go out and pursue his career and to make money. It is the wife who bears the children. She undergoes nine months of nausea, discomfort and fatigue. Even after the child is born, her earning capacity is impaired. I entirely agreed, if I may say so, with the noble Lord when he said that the very fact of divorce is an economic disadvantage to a wife. My noble and learned friend Lord Elwyn-Jones said virtually the same in general terms at Committee stage. It was spelt out in detail by the noble Baroness, Lady Lockwood, when she referred to recent research which suggests that the disparity in earnings between husband and wife, between men and women, is due at least significantly to the fact that women have family responsibilities.

If the wife's efforts in the home free the husband to be the breadwinner, that imposes on him the obligation—and vests in her the right—to share the loaf which he has earned. That does not end on divorce, because her economic impairment subsists long after the divorce. The noble Lord, Lord Hatch of Lusby, gave a striking example of the woman of 45—but I venture to believe that it is almost inevitably general throughout the working life of any woman; even the career woman, in the odd case, finds her earning capacity impaired through being away from work, if not because of housekeeping then because of child-bearing.

That being so, what is to be done about this particular problem? The problem is that, increasingly, emoluments for work are paid not immediately but deferred to be paid in the form of a pension. If the wife has a moral entitlement to current earnings, equally she has a moral entitlement to share in the pension or other benefit.

The Law Commission and Parliament in 1969 tried to deal with that problem—the general problem of the wife's disadvantage during marriage, and particularly after divorce—by stipulating that the court should, as far as possible, put the parties in the position that they would have enjoyed had the marriage subsisted. That has not worked, and it is corrected in this Bill. It has not worked because, as was pointed out at the time by my noble and learned friend Lord Hodson, that most experienced matrimonial judge of his generation, there is not enough money to go around for two families in other than an exceptional case. The result is that both families plummet down to subsistence level.

It is very difficult to deal with the problem of deferred earnings in the form of a pension. One method is not to hamper the court in any way in the variation of a maintenance order. There has been much talk on this Bill about a clean break. As my noble and learned friend Lord Elwyn-Jones pointed out, there can be no clean break when there are children. Nor, I venture to add, can there be any clean break when there is an entitlement to a pension.

My own preferred method of dealing with the matter would be within the purview of the family court; to let the court have before it the trustees of any pension fund or any occupational employer and impose a trust into the trust deed in favour of the wife if she had been in no way substantially responsible for the break-up of the marriage. I agree that the problem cannot be solved within the purview of this Bill; and I agree also with my noble and learned friend Lord Scarman. But it is a very real problem. This Bill does compound the inequities to married women—to wives—in the way that I have tried to indicate to your Lordships. That makes it more incumbent upon the legislature to deal with this particular problem.

My Lords, it is hardly necessary to add anything in giving strong support to these amendments beyond saying that the need for them is underlined by the steady increase in the occupation of women, and by the steady spread of occupational pension schemes.

My Lords, I spoke to an amendment concerning this matter of pensions at Committee stage and I should like again to confirm my support for this amendment. I was pleased to hear the noble and learned Lord, Lord Simon of Glaisdale, point out the inequities between men and women and that he considers this Bill will compound them. A point which has been made—but not very clearly I feel—is that the woman who gives up in any way, for marriage or for children, not only has the difficulty of going back but has lost her place on the ladder of promotion during the time that she has been away, and that is something that is quite significant when the time comes to return to work.

Many women who are divorced—and I have had a great many letters from different women's groups on this subject—feel that the second wife is an option, but the first wife in a divorce situation is no option, she is in that position and unable to change her status. They therefore feel that, although, as the noble and learned Lord, Lord Simon, has pointed out, there is not enough money for everyone, that is certainly no reason why the first wife would not have the assurance of whatever proportion of pension to which she had helped to contribute over the years in which she was the supportive partner. If recommendations of the type suggested in this amendment—I appreciate the point that this particular amendment may not cover it all—could be brought in as a possibility for the court, I think that this would answer the concerns of many women who have written to me on this matter.

My Lords, this amendment has exposed and highlighted an important omission in the Bill. The speeches of my noble friend Lord Hatch of Lusby and the noble Lords on the Cross-Benches, as well as those of the noble Baronesses who have spoken, have shown the power and the strength of the case that is put forward for bringing forward the recommendations in the amendments.

The Occupational Pensions Board considered in their 1976 report the issues that arise from the amendments and then, as I understand it, recommended that the court should have power to make orders against trustees of pension funds allocating a widow's or widower's pension. As my noble and learned friend Lord Scarman has indicated, the Law Commission looked at this problem; I am not being discourteous to them in dismissing their examination of it as lightly as that. But it may well be, bearing in mind that there are serious practical problems to be resolved in the implementation of these proposals—but not impossible difficulties I would have thought—of value if the matter could be referred back once more to the Law Commission, which is seized of the problem to a certain extent. I hesitate to mention that lest, owing to the pressure of work that the Law Commission may be under, this may be projecting the proposal back too remotely in time.

Therefore, I am a little nervous about making this suggestion and perhaps the noble and learned Lord will express some thoughts about it in his reply. But something ought to be done and needs to be done quickly to remedy the injustice that has been pointed out, the inequality of the treatment we are faced with. I hope that the noble and learned Lord will be able to give some encouragement to the proposals which have been, if I may say so, so authoritatively and admirably explained to your Lordships.

My Lords, before the noble and learned Lord replies. I wonder whether I may add one comment. If it should be that the Law Commission is too occupied to take up this matter, I wonder whether the noble and learned Lord the Lord Chancellor could give us an assurance that the recommendations of the Occupational Pensions Board could be looked at more closely, because that board looked very carefully at all the implications of pensions in relation to the divorced and separated woman and their recommendations were very specific. It would be possible for some of their recommendations to be taken up and even perhaps incorporated into this Bill. Many of the recommendations in the 1976 Report depended on fundamental changes in the social security system as administered by the Government; but this section dealing with divorced and separated people is something which stands on its own. I think it would be possible and practicable to take up some of their suggestions, perhaps without even a great deal of further consideration.

My Lords, the noble Lord, Lord Hatch of Lusby, in moving this amendment opened by referring to the amendment as being in his name and in the name of other noble Lords. When I looked at the names of the other noble Lords I could not help but think, "Some other noble Lords!", for the noble Baroness, Lady Ewart-Biggs, invariably talks with eminent commonsense; and the noble and learned Lord. Lord Scarman, always talks with eminent commonsense, wisdom, and—if I may say so—brilliance. There is no doubt in my mind that this has exposed a very serious gap in the law. I believe that this Bill is an extremely good vehicle whereby this matter could be dealt with. After all, there is a whole Part, Part II, which is devoted solely to the financial provisions upon divorce. I would have thought it a very good vehicle. As this is a House of Lords Bill (that is, a Bill initiated in your Lordships' House) there is absolutely nothing stopping noble and learned Lords—and indeed any other noble Lords who have the standing—influencing Members of another place and getting them to consider seriously this extremely important lacuna in the law of England and Wales—indeed of the United Kingdom.

My Lords, I think I can offer the noble Lord, Lord Hatch of Lusby, and his various supporters, at least modified rapture, but in one respect without agreeing with the noble and learned Lord. Lord Elwyn-Jones; I do not think that this is an important omission from the Bill. The Law Commission, at page 12 of the report which this Bill embodies, drew attention to this particular matter most specifically, and this is what they said:

"We, therefore, recommend that early consideration be given to the introduction of legislation empowering the courts to deal with the problem of occupational pensions. We do not think it necessary that the reforms which we propose"

—those are the reforms contained in this Bill—

"should, however, be delayed in the meantime."

I wholly agree with a very great deal of what the noble Lord, Lord Hatch of Lusby, said at the beginning of his speech. I think that I said it in my own way at Second Reading, and therefore I will not repeat it. Quite obviously a woman who has been married for any considerable length of time, particularly if there are children of the marriage, is affected financially most adversely by the fact of divorce. I would not go so far as to say that the second wife is an option and the first wife is not, because she usually is the person who brings the petition. But at the same time she is adversely affected financially by the fact of divorce. Her earning capacity is diminished.

I need not elaborate the matter further because it was spelled out in great detail and with admirable authority by my noble and learned friend on the Cross-Benches, Lord Simon of Glaisdale. The fact is that one can deal very easily on the whole with existing liabilities, earnings and possessions, but if you are talking about a deferred emolument, such as an occupational pension, many very much more difficult problems arise.

I think I can best deal with this matter by lumping these two amendments together. I absolutely agree with whoever it was—I forget who—who said there is nothing more boring than drawing attention to drafting deficiencies. There are two in the amendments, however, which I ought to mention. One is the absence of provision in the case of remarriage and the other is the absence of provision for variation. There are other more detailed drafting deficiencies with which I will not trouble the House.

I am, on the whole, rather sympathetic to the thinking behind these two amendments, and particularly with the second of the two. The first could probably be dealt with under the terms of the existing law—Section 23 of the principal Act—because, after all, under that section the court can order payment to the wife of either periodical payments or a lump sum and there is nothing to stop the wife from buying a pension or utilising part of that money to pay premiums. So I do not think that that presents anything like the problem suggested in the second of the two problems concerning deferred rights drawn to our attention by my noble and learned friend Lord Scarman, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Baroness, Lady Ewart-Biggs. Lady Ewart-Biggs cited the case of a diplomatic pension which, of course, is only one of a whole series of occupational pensions the advantages of which are lost on divorce by the wife of the marriage.

On Second Reading my noble and learned friend Lord Scarman, who otherwise gave me much needed and valued support, expressed his disappointment that the Bill contained no provision on the problem of occupational pensions and the right of the divorced wife to have some share of that pension. In Committee I made certain declarations about that which I think will, on the whole, be more satisfactory if pursued than the particular course suggested by the noble Baroness, Lady Lockwood, or the noble and learned Lord, Lord Elwyn-Jones. In the Committee debates, particularly on 12th December, I mentioned that my department was going to issue a consultation paper on the question of the allocation of pension rights on divorce. This paper will be one of a series of other papers—the others being produced by the Department of Health and Social Security.

It should also be mentioned that my right honourable friend the Secretary of State for Social Services announced on 23rd November that he would be chairing an inquiry into retirement pensions generally, including the portability of pensions—which, of course, is closely relevant to the subject we are now considering—in one of its special aspects; namely, the allocation and apportionment on divorce. These initiatives are relevant to the consideration of any change in the existing law which would have the effect of empowering courts, on divorce, to make orders in favour of one party to the marriage for the provision of annuities or life insurance. The inquiry hopes to reach conclusions by the autumn of this year, which I think is probably more promising than anything that could be arranged under the umbrella of the——

My Lords, I hope the noble and learned Lord will forgive me for intervening. He refers to the inquiry to be brought forward by the Secretary of State and he also used the word "portability". Surely "portability" means portability between employment and not between recipients of pensions.

Of course, my Lords, I said it was closely allied to the problem we are now considering. If the noble Lord will forgive me, I said that I am issuing a consultation paper which is one of a series of papers which will deal with the specific question we now have under consideration. My department is producing a paper on the options for reform on the allocation of pension rights on divorce, as I indicated earlier. A wider review of retirement pensions is that by the DHSS, and that has been announced by the Secretary of State for Social Services.

I was very grateful to the noble Lord, Lord Hatch of Lusby, for making clear in his opening remarks that this is a matter for debate rather than for Division. I do not think that it would be sensible to pursue the amendment in isolation from these two initiatives. I must tell your Lordships that this is a matter which I view with a great deal of sympathy. In the light of that sympathy, which I hope I have shown to the general approach especially in relation to the second amendment—the first I believe could be dealt with under existing legislation—I hope we can leave the matter there for the present.

I certainly promise the noble Lord that I will draw the attention of the Government machine to what has been said and express my sympathy with that. There is no doubt that we must deal with this problem and this is wholly in accord with the report of the Law Commission, which we are putting into effect. The only point is that I agree with the Law Commission that the present reforms ought not to be delayed while that is going on. Otherwise, I rather agree with what has been said.

My Lords, it only remains for me to thank those who have taken part in this debate and for the ideas that they have put forward to this House. In particular, I thank the noble and learned Lord on the Woolsack whose assurance I accept unreservedly. It is clear that there is widespread disturbance about this inequity, at least in the present practice if not in the present law. It is equally clear that there is unanimous agreement that a wife will have contributed to the pension which is paid to her husband during the time that she has been living with him, up to the time of divorce and, therefore, she has a right to a part of that pension. It is our responsibility to see that that right is put into law. I leave it to those with much greater legal experience than mine, and particularly to the noble and learned Lord on the Woolsack, to see that this is done. I beg leave to withdraw the amendment.

moved Amendment No. 3:

Before Clause 3, insert the following new clause:

(" . After section 24A of the 1973 Act the following section shall be inserted—

My Lords, this matter will be further considered. I desire only to express my agreement with what the noble Lord, Lord Hatch of Lusby, has said but to voice reservation about the restrictive provisions of subsection (2) in the amendment, whereby the wife can benefit only if the husband:

"is…entitled to benefits from a retirement pension…to which he or his employer contributed during the subsistence of the marriage".

My reason for the reservation is this. Many pension schemes allow entry only at a certain stage of seniority. Frequently in the functional division of labour the wife will have enabled the husband to achieve that seniority and to benefit from the pension scheme. Although in general I support what the noble Lord has said, I very much doubt whether that restriction is equitable.

My Lords, what I said in reply to Amendment No. 2 was intended to apply to both amendments. I think that Amendment No. 3 is the more important of the two. As I said, there are ways round the problem which Amendment No. 2 was designed to deal with, but there is no way round this one. As the noble and learned Lord, Lord Scarman, said, the court has no power to order the trustees of a pension fund, or whatever they are called, to apportion the value of the pension between husband and wife when they divorce.

I think that there are problems which have to be thought through. One was specified by the noble and learned Lord, Lord Simon of Glaisdale. I notice that the amendment, as drafted, covers the executors and administrators, obviously contemplating that money payable on a whole life insurance after death would be subject to the scheme. I think that we have to protect them in some way against a situation where the whole estate has been distributed before the application is made, assuming that it was distributed in good faith. The proposal has to be married a little to the Inheritance (Financial Provision for Family and Dependants) Act.

I think that a question will arise as to the time within which an application should be made. On the wife's side it could very well be said that she may not know of her former husband's death or retirement. Either may take place many years after the divorce. Again, I think that something has to be done about remarriage. The wife herself may remarry, and the rights of the second wife of the husband must also be taken into account. But I make it plain that I want to deal with this subject. I shall try to get on with that along the lines that I indicated in answer to Amendment No. 2. How far one will succeed in one's endeavours I fear that bitter experience of life sometimes leads me to doubt, but I shall do my best.

Again I thank noble Lords who have participated in this short debate and particularly the noble and learned Lord on the Woolsack. I wish him Godspeed in his promised endeavours. I beg leave to withdraw the amendment.

moved Amendment No. 4:

My Lords, I do not know whether the noble and learned Lord would like to speak to Amendment No. 6 at the same time?

My Lords, it would be a most convenient and sensible course to speak to Amendment No. 6 as well.

My Lords, I should like to say a few words, since I fear that I cannot agree with the amendment. Those of us in this country who try to follow the matrimonial law, and indeed some of the very sad divorce cases that we are told about, are conscious of the divorce judges and registrars who have always been gentle, perhaps in the rather old-fashioned sense, in that the wife has usually been given the benefit of the doubt. The judges have felt that they had to look after the woman and the husband had to pay. I am glad to say that the divorce judges still behave like gentlemen, even though during the last 10 years the social and matrimonial scene has changed considerably. The change has occurred partly as a result of the Sex Discrimination Act, and partly because many more women have had premarriage jobs, are now working, and can support themselves. To my certain knowledge the result of that situation is that by their behaviour wives are increasingly breaking up the family. This is happening far more often than it did 10 years ago, and in some cases wives are leaving their husbands and children to fend for themselves.

I know of many cases, but there is one particular tragic case that I should like, very briefly, to recount to your Lordships. The family was a happy one. The wife worked part time in a local bar. A man picked her up. She left the family—all her three teenage children—went off, and was able to earn her own living. The husband had to leave his job. In accordance with the old law they had to settle the home 50-50 between them. That meant that the husband and the three children had to leave their home because the financial circumstances did not permit the matter to be settled in any other way. The result was that the children suffered a very great lowering of standards and of income. That was the outcome when the conduct of the parties was not taken into consideration. Having instanced only that one case, which I know about very well, I feel that in such a context the conduct of each of the parties should be taken into consideration. In my view, that would be the only fair way of settling the problems facing both parties and the children.

My Lords, when we considered this question in Committee my noble and learned friend the Lord Chancellor said that it might turn out to be a matter of words; I would disagree. The object of the amendment is in a way to keep the position roughly as it is at present. Let me for a moment recall the position when it was necessary to prove a matrimonial offence. We took conduct into account, and we had all of those scandalous cases with days and days of argument about whether, for instance, the wife was guilty of cruelty when she had not mended her husband's socks, or whether the husband was guilty of cruelty or bad conduct when he stayed out and went to the club twice a night. All those trivial allegations by one against the other were gone into by the courts at great expense, usually with legal aid.

The Act made all the difference. In the Court of Appeal we had to consider—and we followed Lord Justice Ormrod—how far conduct should be taken into account in the new dispensation when it was only in regard to the irretrievable breakdown of marriage, irrespective of who was the cause. We used the phrase, "obvious and gross". I think that it has helped reasonably well. Conduct is still taken into account when it is obvious and gross.

It seems to me that as the Bill now stands the court will say to itself, "We have to have regard to the conduct of the parties if it would be inequitable to disregard it". The court will say, "We shall have to hear what the conduct is, we shall have to inquire into it before we can say whether or not it is equitable to disregard it". So the court would once more be going into all the questions of allegations about conduct. That would be the position as the Bill stands. The court would feel obliged to go into the conduct if the party made an allegation about it.

Under the amendment the position would be quite different. The starting point would be that the court would not go into the question of the conduct unless there were exceptional circumstances. I can see the judge saying to counsel, "You want to raise conduct in this case; what are the exceptional circumstances?"

I would agree with the instances which the noble Baroness mentioned; they are obvious exceptional circumstances. I have tried many cases where the wife has been grossly at fault and has gone off and left the husband to fend for the children. That is certainly a case when conduct would be taken into account. Those are exceptional circumstances. In all the instances that I can conceive of the phrase "exceptional circumstances" will meet the case when the conduct is so bad that it ought to be inquired into before provision is made for maintenance. In other words, I think that in a way the burden of proof is put the right way in the amendment, and it is the wrong way in the Bill as it stands. So I would support the amendment.

My Lords, I was not in any way questioning the sincerity or the instances given by the noble Baroness. I feel that she is being a little unfair to her gender—

Sex.

Gender. Take your pick. When she refers to the increasing number of women who leave their husbands and children because of the greater occupational mobility of women in recent years, one can understand this. I wonder, however, whether she has considered that even on the question of the allocation of the children, it is the woman who is normally most highly at risk. Let me explain briefly. If the judge decides that it is the husband who is to retain the care and control of the children, then it is also normal—I am not sure whether it is statutory—that it is the wife who has to leave the matrimonial home. It is much more difficult for a wife to leave a matrimonial home than it is for a husband. This is still in our social climate a matter of discrimination.

I take the case of a family with three children aged, say, between nine and 14. I remember particularly a comment that I think was made by my noble friend Lord Mishcon (if I am wrong, I am sure that he will correct me) either at Committee stage or Second Reading when he said that we all know that there are husbands' judges and wives' judges. There are many cases where a husband's judge will award the care and control of the children to the husband. Often, that leaves the wife, at least for a time, destitute and homeless. This arises once we have reintroduced the issue of conduct, of fault, of matrimonial offence. I agree with the noble Lord on the Cross-Benches that the amendment is designed to prevent the reintroduction of the concept of fault. That concept of fault is so liable to different interpretations by different judges that I believe that it should be taken out of the purview of the judge's interpretation.

I believe that there should be no risk of the reintroduction of the question of matrimonial fault that we have tried to remove, I think successfully, for many years. If it is reintroduced, then we are putting in the hands of judges decisions that should really not lie with them. The question of the responsibility for divorce should not be used to affect the care and control of the children, the control of the matrimonial home. This should not depend upon conduct. It should depend upon the interests of the children. It is only if it depends upon the interests of the children, irrespective of the conduct—unless it is really extreme conduct—of the spouses, that we are looking after the interests of those most damaged in a divorce case.

I venture to urge your Lordships to prefer the Bill and to reject the amendment for a number of reasons. In the first place, the Bill follows the final recommendation of the Law Commission, and that should prima facie weigh with your Lordships. Paragraph 39 of its report No. 112 states:

"We would accordingly propose to preserve a reference to the conduct of the parties as one of the specified list of circumstances to which the court should have regard in those cases where it would be inequitable to do otherwise. Any further elaboration can, in our view, best be left to case law development".

That is precisely what the Bill does. Secondly, it seems to be almost universally agreed that conduct cannot be disregarded. In committee, the noble Lord, Lord Foot, was the only one to recommend its entire disregard. I think that even the noble Lord, Lord Hatch, did not go so far in his speech today. Certainly the noble Baroness, Lady Macleod, gave a convincing example of where it would be utterly unjust to neglect conduct, and the noble and learned Lord on the Woolsack gave many examples in Committee. If conduct is not to be disregarded, there seems to be no answer to what was stated by the noble Lord, Lord Coleraine, in Committee; namely, that if it is equitable to take conduct into account, why should one take it into account only in exceptional circumstances? No answer was given to that. I cannot see that any answer could be given.

So the question arises: is it possible to apply the criterion of equity? I think it was the noble Lord, Lord Mishcon, who, in Committee, said that this was an impossible criterion. I venture to disagree. The law can often say that if X is proved and if Y is proved, then the result Z shall follow. But, as often as not, the law cannot say that. It can only say that if a certain standard is reached, result Z will follow, or that if a certain standard is not reached, result A will follow. In one case, I had to consider some of the examples where the law takes that approach. I was not purposely exhaustive. But, even so, trying to run the gamut of the law, it filled two pages of the Law Report.

I shall give only two examples because they use the very word "equitable". They will be well within the cognisance of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon. Is it just and equitable that a company shall be wound up? Is it just and equitable that a bankruptcy order shall be made? So far as I know, courts have no difficulty in applying that criterion. I have no doubt at all that they could apply it in the circumstances that your Lordships are discussing. There seems to be some fear that the form of words in the Bill will allow the resurrection of the minutiae of ancient matrimonial grievance. I regard that as utterly unreal. The judge will use his influence.

My noble and learned friend Lord Elwyn-Jones himself gave an example of a case in which he was engaged where he was discouraged from reviving ancient and minute grievances in that way, although one must remember that a stone can not only be smashed by a sledge-hammer; it can be worn away by the ceaseless dripping of rain upon it. So once you have conduct to be considered—and I think it is the universal view, with the exception of the noble Lord, Lord Foot, that conduct must be considered—you must consider the cumulative effect of conduct, any single instance of which in isolation might be derisory. So I would think that we should leave to the discretion of the judges to rule out of account and to discourage the completely trivial, such as my noble and learned friend mentioned. That is the fifth consideration.

Sixthly, it is said that divorce is now based on the breakdown of marriage and that we have banished the matrimonial offence and must not bring it in again. We have said no more than formally that divorce is based on breakdown, because the statute goes on to say that five matters shall be taken as conclusive proof of breakdown in the absence of proof that the marriage has not broken down. Of course, a petitioner has only to say, "I refuse to be reconciled"—and I have come across that myself in reconciliation proceedings in a foreign forum—and the marriage has unquestionably broken down irretrievably. One then looks to the five grounds. The first is adultery. Is that not a matrimonial offence? The second is what is compendiously called "intolerable conduct". That subsumes and in fact involves the former matrimonial offences of cruelty including, I would say, cumulative misconduct amounting to cruelty breaking the health of the other party—cruelty and constructive desertion. Are those not matrimonial offences? The third is desertion. Is that not a matrimonial offence? So it is quite unreal to say that, in any but a formal sense, we have banished the matrimonial offence and that we now have divorce based on the breakdown of marriage.

That that is so can be seen by looking at two schemes which did base divorce on the breakdown of marriage. One arose in the dissent of Lord Walker by himself in the Morton Royal Commission and the other was the scheme put forward by the committee under the Bishop of Exeter in the pamphlet Putting Asunder. Those were real schemes whereby divorce should be based on irretrievable breakdown.

Our present law is not so. There are subsisting matrimonial offences as I hope I have demonstrated to your Lordships.

My final reason is that the amendment reinstates the decision in Wachtel. My noble and learned friend Lord Denning said that in terms in Committee. What the Court of Appeal did in that case was to say that conduct was not to be considered unless it was gross and obvious. I say with all respect in his presence—respect for his eminence and because he is an old friend and I started in his chambers—that seems to me most improper judicial law-making. The question of conduct was exhaustively discussed in the 1969 legislation. The discussion went on for hours in Committee and if Parliament had wanted to say that conduct should only be considered if it were gross and obvious, then nothing was easier. It would be perfectly simple to devise the form of words. So in my respectful submission it was not for the Court of Appeal to insert those words in the legislation.

Finally, the courts have moved away from that. My noble and learned friend said today that this amendment keeps the position as it is. I venture to disagree. The present law was stated by my noble and learned friend on the Woolsack. He enumerated the cases which showed how far the courts have moved from Wachtel; and what this does, as my noble and learned friend said in committee, is to put the clock back to Wachtel and to disregard all that has been accomplished since. It is the Bill and not the amendment which preserves the law, as it is at present administered, so much more satisfactorily.

My Lords, with great trepidation I venture, in disagreeing with the noble and learned Lord, Lord Simon of Glaisdale, to attempt to answer his question about why conduct should only be taken into account when it is exceptional. My answer——

My Lords, I hope that the noble Lord will allow me to intervene because that was not quite the question that I asked. If it is equitable to take conduct into account, why is it only in those circumstances which are exceptional?

My Lords, I thank the noble and learned Lord. One reason why the word "exceptional" is in the amendment is that it is in line with ordinary people's experience. When one hears people talking about the collapse of a marriage of people they know or to whom they are related, they nowadays talk along the lines of saying, "Well, it is impossible to make any judgment; it is six of one and half a dozen of the other". That is the view that sensible outsiders generally take, except in circumstances where the behaviour of one or both of the spouses has been extreme or pathological. For ordinary people, for conduct to be taken into account it has to be exceptional because no one—and lay people are the same as lawyers in this regard—wants to go back to the squalid inquests on matrimonial behaviour. Given that fact, as the noble and learned Lord, Lord Simon of Glaisdale, rightly said, it is almost universally believed that conduct ought to be able to be taken into account when it is exceptional because otherwise people's sense of fairness and justice would be affronted. Hence the case for "exceptional". In support of this amendment, I am encouraged that this is the view which the Scottish Law Commission took. In its report on aliment and financial provisions I found its discussion of the significance of "conduct" and the circumstances in which it should be taken into account the most helpful of any that I have read, and its analysis provided the greatest clarification.

In its draft Bill it deals with conduct in terms of saying that the court shall not take account of the conduct of either party, except in two circumstances relating to what it calls a "transitional adjustment" to a new situation of one spouse who has been financially dependent upon the other, and in the circumstance in which divorce will cause grave financial hardship to a spouse who is elderly or ill. But the emphasis there is on not taking account of conduct unless it would be manifestly inequitable to leave that conduct out of account.

That seems to parallel very closely the terms in which this amendment is couched, and I think it is an amendment which will have more meaning for the husbands and wives who pass through the divorce courts than will the drafting of the present Bill.

My Lords, perhaps I may intervene at this stage without prejudice to some leave that I might have later. I believe that this debate has got off completely on the wrong foot. Before I elaborate my reasons for saying that, I ask only two questions. Why is conduct always assumed to be bad? It is not always bad. Secondly, what sort of conduct are we talking about? Are we talking about conduct which is relevant to the question of maintenance? The answer is: yes. Are we talking about who is responsible for the breakdown of the marriage? The answer is: no.

Having got that absolutely clear, let us try to get a proper legal analysis, because I must differ fundamentally from what my noble and learned friend Lord Denning says. I start with the existing law—I do not mean the Bill; I mean the words as they occur in the Act of 1973, which is the law which we are amending. At page 16 of that Act in Section 25 you will find that conduct is mentioned. Having enumerated the various factors to be taken into account which are relevant to maintenance, the section goes on to say:

"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".

That is the existing law; that is the law the amendment of which we are discussing.

Therefore, in so far as my noble and learned friend Lord Denning spoke as if Wachtel had removed conduct from the law, he was defying the Act of Parliament which he was supposed to be interpreting, whether in Wachtel or in the speech which he has just made. Conduct is in the Act. In so far as the noble Lord, Lord Hatch, said that we are reverting to conduct, he was entirely wrong because conduct is already there.

No doubt Wachtel was a very good decision in its day. It is now nine years old and it is hopelessly out of date with the modern jurisprudence which has developed since Wachtel. Wachtel was a very good decision because it defeated an attempt to reintroduce what I think everybody is agreed ought not to be in the present law—it defeated the attempt to reintroduce the old and degrading experience of what, in shorthand, we used to call the "defended cruelty". We did ask the question in cases of defended cruelty, because it was relevant under the old law: who has overturned the marriage? But when one is talking about maintenance, one is not talking about who overturned the marriage, although in certain circumstances it may be relevant. One is talking about how much money usually the wife, but not always, should be receiving on the dissolution of the marriage.

Just let me remind the House, because I must now do so, of the jurisprudence since Wachtel. It very soon became apparent that, with due respect to my noble and learned friend Lord Denning, the words "gross and obvious" were a piece of judicial rhetoric, and a piece of judical rhetoric is not always very helpful in solving matrimonial disputes. Over the last nine years—and Wachtel is getting very long in the tooth—the registrars have found that in a series of cases there are very many occasions when the conscience of the ordinary man in the street is offended by disregarding conduct. But the conduct which it is inequitable to disregard is not who broke down the marriage, but, as often as not, how have they behaved since?

Let me just give one example to show how entirely wide of the mark my noble and learned friend Lord Denning is. Let us take the case of Kokosinski v. Kokosinski, which was reported in 1980, some several years after Wachtel. It was the wife's good conduct which affected the amount of her maintenance. The wife's loving support of her husband, her role in building up the family business during their long period of cohabitation or marriage was conduct which was to be taken into account and justified the award of a substantial lump sum. The noble Lord, Lord Hatch, who has constituted himself with great chivalry as the advocate of the wife, will surely not complain of that. But it is not exceptional. It is an ordinary case of a loving, caring wife, and her conduct, despite Wachtel and because of the words in the Act—which my noble and learned friend Lord Denning chose to disregard—was rightly taken into account as being relevant to maintenance.

Let us take another case where the conduct was bad: the case of Jones v. Jones was reported in 1976. The husband attacked the wife with a razor, causing her permanent injury so that her future employment as a nurse was in serious jeopardy. The capital provision awarded to the wife was greater than it would otherwise have been. Why? Because it had affected her capacity to earn a living, not because it had broken down the marriage and not because it was exceptional in the least. That sort of thing is happening in the divorce courts every day of the week.

In the case of Underdown, the wife's share in the matrimonial home was reduced because she was committing adultery with the co-respondent at the same moment as agreeing to the husband's proposal to transfer a half share in the house to her, as the husband expected the marriage to be long-lasting. Again, nothing unusual or exceptional; nothing to do with who broke down the marriage: that is not the question. The question is: what is the wife—or occasionally the husband—to receive in maintenance having regard to the sitution which actually exists?

In Bateman (reported in 1979) a wife knifed her husband and he was thereby unable to make payments and her financial provision was reduced. This is not, I hope, an everyday occurrence, but this type of case does come before the Family Division. The point, again, is not who broke down the marriage. That has, to some extent, gone by the board although, as my noble and learned friend Lord Simon of Glaisdale rightly pointed out, it arises at an earlier stage in the proceedings in deciding whether or not the marriage has irretrievably broken down. But we are not talking about that: we are talking about maintenance and lump sums. The wife knifed her husband and her financial provision was reduced. In another case the wife killed the children.

In Martin (reported in 1976) the husband's conduct dissipated £30,000 worth of capital, but it had to be taken into account in deciding how to deal with the family farm which the wife had managed to save as a viable concern. Again, the wife got more out of it because the husband dissipated his assets.

Let me give another common example. The husband deliberately decides to go on the dole rather than pay his wife maintenance. It is not the most common case; the most common case is that the husband marries again, but it is not at all uncommon or exceptional for that to happen: or the wife deliberately lives with a rich man but harasses her former husband although her means are adequate.

Conduct cannot be disregarded, and since Wachtel it has been found in innumerable cases that in order to assess maintenance you have got to take into account conduct where it is inequitable not to do so. The only difference between the Act and what is proposed in the Bill is that we have used the phrase as used in the jurisprudence which has developed since Wachtel. The phrase recurrent in the cases I have been enumerating is:

"Where it is offensive to a reasonable person's sense of justice that such conduct should not be taken into account in assessing the financial consequences of divorce".

It has nothing whatever to do with the old defended cruelty or with who broke down the marriage. It is an inevitable consequence: if the wife harasses the husband and denies access, things of that kind have to be taken into account, so I do not think that as between me and the Front Bench opposite there is a moment of difference about policy. Nobody wants to return to defended cruelty and all those degrading episodes we saw in the past. As my noble and learned friend Lord Simon of Glaisdale said, in the light of the current jurisprudence of the Family Division that is simply not a starter; it will not happen. But the phrase which I have just read out and which is recurrent in the reported cases has been drafted into the Bill in slightly more legal language: conduct should be considered where it is inequitable to disregard it.

So far from the burden of proof being on those who would introduce conduct, the Bill—as the noble and learned Lord, Lord Denning, suggested—has been deliberately framed so that the burden of proof is against those who wish to introduce it; they have to show that it is inequitable not to do so. That is the Bill. I am sorry to have been at such pains to go through this exercise, but I felt I had to do so because the debate was getting into an utterly unrealistic state.

Now we come to the amendment and, as I say, I do not believe that there is an enormous difference of policy—if any—between the noble and learned Lord, Lord Elwyn-Jones, and myself; but there is a difference of words and of drafting about which I must stand fast. To begin with, the effect of his amendment is to take away from the conduct the essential factor which I have been trying to introduce into the debate: namely, the relevance of the nature of the conduct to the question of maintenance, and to put it on some exceptional circumstances outside the conduct altogether. The fact that it is exceptional is totally irrelevant to anything that I have been saying, and the effect of putting it as exceptional circumstances outside the conduct which I have been trying to discuss, has the effect not of going back to Wachtel—although that could conceivably be the result, although I do not think that is realistic—but of rendering totally obsolete the jurisprudence which has been carefully built up in the divorce courts in the series of cases to which I have been referring and which will continue to be cited by way of interpretation if the Bill is left as it stands; but which will become obsolete if it is amended in the way the noble Lord's amendment would achieve.

I had before me at the Committee stage an amendment very much to the same effect, if not in precisely the same words (I think it was in precisely the same words). I said that I would take it back because I think it is unreasonable when there is no difference in policy between us, as I believe, to take an intransigent attitude; but I went both to the judiciary, to my office and to the draftsman and they all came up with the same answer: that the Bill is better drafted as it is and the amendment would achieve undesirable results. I must therefore be firm about it.

I am sorry if I burst in on the debate but I thought I just had to say that because it seemed to me that we were indulging in a game of cross-purposes to such an extent that I had to intervene.

My Lords, what a treat the House has had in having such a learned argument between four eminent lawyers, and what a muddle the House must be in as a result! I promise the noble and learned Lord that I will not muddle my way through an argument; I will try if I may to be abundantly clear even if my arguments be wrong.

It is no part of the case for this amendment that it has anything to do with any matter other than financial provision. I concede at once, for the benefit of anyone who may have participated in this debate, that this has nothing to do with issues of custody, access or care and control, in all of which cases our law is abundantly clear: there is only one interest in the mind and heart of the court, and that is the interest of the children involved.

We get to the statement that the noble and learned Lord who sits on the Woolsack made in such deliberate and lucid terms, as to the existing law. Using that strength of voice that the Almighty has given him, he said that there is no doubt whatsoever that the present law—and the interpretation of it in this connection when one looks at conduct—has nothing to do with the responsibility of the parties for the breakdown of the marriage. He said that deliberately. He said it clearly and, with his usual co-operation, he is nodding his head.

I have before me the latest edition of Rayden on Divorce, which is known as the leading authority which guides all our judges in divorce in the Family Division. The edition is not only the latest edition but the learned editor makes it clear—and I quote him in his preface:

"The law is stated as at 22nd November 1982".

I then turn to page 747 of that tome. It is paragraph 18. It is post-Wachtel and it is headed "Conduct: both obvious and gross." I quote as follows:

"A finding that one party has significantly contributed to that breakdown must be relevant on the issue of financial provision: but that does not mean that the party whose conduct is so described loses her right to provision, or indeed even loses her right to ample provision: that must depend on all the circumstances of the case. If there is misconduct of an obvious and gross character, the conclusion is pretty clear; if it is less than that, then a difficult value judgment is required of the court, but that of course is the sort of judgment that the courts exist to make".

So the present law, according to Rayden, is undoubtedly that the question of contribution to the breakdown of marriage is the sort of conduct that the law has to consider in relation to financial provision: that there are aspects of that conduct less than gross and obvious that, on the present law, the court has to consider.

What happened with the Law Commission? One would have thought from the noble and learned Lord's remarks that the Law Commission, sitting upon this matter, had decided that the law was perfectly clear both in the existing Act of Parliament and in the judgments of Wachtel and post-Wachtel. Then all the Law Commission would have had to say—and the noble and learned Lord, Lord Simon of Glaisdale, almost implied that that was all it had to say—

My Lords, I said explicitly that that was the commission's final conclusion.

My Lords, I am helped by that remark that that was the commission's final conclusion. All it had to say was, "We agree with the existing law and we agree with the way in which conduct is now being treated in our courts". That is not what was said at all. Although the noble and learned Lord correctly and fairly quoted from the report of the Law Commission, I know he would be the first who would in frankness agree with me that he merely quoted one sentence. I shall have to ask your Lordships to bear with me because there are some rather relevant sentences which he did not quote and which did not even appear to be interpreting the present law, because that is not what the Law Commission said.

In referring not to the law but to a discussion paper, the Law Commission's report of 14th December 1981 at page 13 paragraph 37, says:

"We adhere to the view"—

not of existing law—

"expressed by us in the Discussion Paper that the courts as now constituted cannot reasonably be expected to apportion responsibility for breakdown in any save"—

I hope the noble and learned Lord will listen to this word—

"exceptional cases".

Again the commission uses the word "exceptional" without difficulty, although the noble and learned Lord who sits on the Woolsack found such difficulty on that word in the amendment. The commission goes on to say:

"This is because"—

it quotes the words of Mr. Justice Ormrod, as he then was, in the case of Wachtel v. Wachtel—

"the forensic process is reasonably well adapted to determining in broad terms the share of responsibility of each party for an accident on the road or at work because the issues are relatively confined in scope, but it is much too clumsy a tool for dissecting the complex inter-actions which go on all the time in a family. Shares in responsibility for breakdown cannot he properly assessed without a meticulous examination and understanding of the characters and personalities of the spouses concerned, and the more thorough the investigation the more the shares will, in most cases, approach equality".

In other words, what was the commission saying? It was saying as Rayden says, "That is what the present law requires a court to do. We do not recommend this. We say that, except in exceptional cases"—and it goes on to use words which it does not translate, as it normally does, into a draft clause in an Act. It merely says, to paraphrase, that, although it does, not want us to look into conduct on financial provisions, where it would be inequitable not to do so, then one has to do it.

My Lords, I do no want to interrupt this very interesting speech, but if the noble Lord reflects upon the passage he has read he will see that what is being said is what I was saying—namely, that of course there are cases where the relevance of conduct to the breakdown of marriage can be taken into account. But the commission goes on to recommend effectively what is in the Bill, namely that the only test of whether one takes it into account or not, whether it is in relation to the breakdown of the marriage or subsequent conduct, or continuing conduct, or apprehended conduct, is its relevance to maintenance.

That is what we are seeking to achieve. I think it is what the commission is saying, because there was the telling qualification in the passage which the noble Lord has read showing that in that passage the commission were relating themselves solely to the relatively unimportant case for this purpose of who is responsible for the breakdown of a marriage and not the point to which I was addressing myself.

My Lords, I do not intend, and I know the noble and learned Lord will not think me discourteous in saying it, to go down the very path that he warned us all not to go down—that is, to enter into tortuous arguments which are not absolutely material to the matter we have before us.

The simple point is not difficult for anyone to comprehend. The Law Commission was saying, "Except in exceptional cases, keep conduct out of financial provision". The commission was saying that in a phrase, to be absolutely precise, where it would be inequitable not to do so.

Now I go to the very point, if I may say so with deep deference, that the noble and learned Lord, Lord Denning, was making so effectively. I speak very humbly as a practising lawyer. I repeat what I said at Committee stage. If there are in an Act of Parliament words which say that conduct shall not be taken into account, except where one can show that there are exceptional circumstances. I shall need to advise my clients, and my colleagues will be able to advise clients, that we shall be met at the very outset of the case—without going into conduct at all—with the very point that the noble and learned Lord, Lord Denning, posed: "Before you start on the issue of conduct, make your submission to the court as to why these are exceptional circumstances. Unless you jump that hurdle, this court will not hear you on the issue of conduct". And I shall be able to say, and colleagues in my profession will be able to say, to clients, "There is nothing exceptional in your case, I can tell you, which would enable me to get over that barrier".

Leave conduct in as one of the grounds that the court has got to look at, other than on the basis that it would be inequitable to ignore it, and I in my duty to my clients, and my colleagues in duty to theirs, will have to say that there are in different courts different ideas of equity in these circumstances. It has nothing to do with the petition and with "just and equitable", with respect to the noble and learned Lord, where the court does have to go into all the facts before deciding whether it is just and equitable—and he knows the lengths to which petition cases can go in those circumstances and the arguments on what is just and equitable at the end of it.

If these words remain, in my duty to my client I shall have to take him through all of it and say that I suppose that counsel, if he were someone who lives in the tradition of the noble and learned Lord, Lord Hailsham, who when he was Quintin Hogg was able to persuade most judges to do things that they possibly ought not to have done—I shall hope that counsel has that eloquence and ability—counsel will be able to persuade the Family Division judge that it would be inequitable to ignore this conduct. As the noble and learned Lord, Lord Denning, said, there is no question of it being clear where the onus lies—not at all—of a normal submission by any practitioner doing his duty to his client. And that is what we want to avoid by this amendment; and that is why this amendment is better than the wording of the Bill. I say this, with due deference, in accordance with the recommendations of the commission, even if one does not slavishly follow the words that they have used and which they did not put into a draft clause of the Bill.

My Lords, it is very difficult to follow a speech of that kind; and it may well be thought by the House that this matter has already been discussed enough. But I should like to add a word or two for one reason. That is because, as the noble and learned Lord, Lord Simon of Glaisdale, remarked, in the Committee stage, as he said, I was the only person who recommended that conduct should be disregarded altogether. I think that inadvertently he does me a minor injustice because we never got round to my amendment when I was proposing that conduct should be disregarded altogether.

My Lords, if I did the noble Lord an injustice, I apologise but I was not present. I read his speech very carefully and I thought that he had made it quite plain that that was his preferred solution.

My Lords, that is quite right, but the noble and learned Lord has jumped in too soon because what I was about to say was that he had said that I was the only person who took that view and that that was carrying the matter too far because it was not a debate upon my amendment and therefore it was impossible to judge whether I had any support from other parts of the Committee; but that is a very minor matter.

I have listened, as no doubt has everybody, with the greatest possible interest to what has been said by the noble and learned Lord the Lord Chancellor and to what has been said in reply by the noble Lord, Lord Mishcon. As I understand what the Lord Chancellor was saying, it is that, since the 1973 Act, when the courts have been called upon to interpret the reference to conduct in the 1973 Act they have come to different conclusions. The court of first instance in Wachtel, who was Mr. Justice Ormrod, if I remember rightly, came to one conclusion as to what the reference to conduct should mean—that is, the reference as contained in the 1973 Act. It was he and not the noble and learned Lord, Lord Denning, who had lit upon the words "gross and obvious". Those words were invented by Mr. Justice Ormrod and they were approved of when the matter got up to the Court of Appeal.

As I understand it, the reason why Mr. Justice Ormrod, in the first instance, and the Court of Appeal subsequently, came to the conclusion that that is what the words ought to mean, and did mean, was that they looked back to the origins of the 1969 Act and said that the whole rationale of the Act is to try to eliminate once and for all the old conception of fault and blame and conduct and to try to put the matter, once and for all, upon the basis of the irretrievable breakdown of the marriage.

Therefore, trying to interpret the words about conduct in the 1973 Act was an attempt by Mr. Justice Ormrod—and then later by the Court of Appeal—to pronounce as to what the words meant, bearing in mind the whole history of the divorce law. They came to that conclusion, that the words must mean something like gross and obvious. It could not have been intended, they said to themselves, that the Legislature intended to restore the whole question of fault and blame—that could not have been their intention. Therefore, their intention must have been something different. Of course, the conclusion to which they came was the conclusion which has already been quoted by the noble Lord, Lord Mishcon: the words that were used by the Law Commission quoting the words of Mr. Justice Ormrod.

As I understand it from the noble and learned Lord the Lord Chancellor, subsequent to that other courts have been called upon to pronounce as to what they think those words in the 1973 Act mean. And they have come to a more modest conclusion (if I may put it like that) than did the Court of Appeal. The noble and learned Lord the Lord Chancellor said that if you look at the whole history of this matter, if you look at the jurisprudence—by which I understand him to mean decided cases since the Wachtel case—you will find that the courts have built up a jurisprudence which does not support the conclusions to which the Court of Appeal came.

I am not at all sure that I am not on the side of the Court of Appeal. Indeed, does not the very fact that the judiciary have differed so markedly on the interpretation of this matter arise from the fact that in the 1973 Act there was no proper definition of the conduct which the courts thought to take into account? It all arose from that, that the words in the original Act—that is to say, that, having considered all the guidelines, the court should then consider whether it was practical and whether it would be just to take conduct into consideration—were an inadequate definition of what the Legislature had in mind, because those words have been so variously interpreted by different authorities ever since.

What this amendment seeks to do, as I understand it, is to try in effect to restore the substance of the decision in Wachtel and to make that the law of the land from now on. I see no particular difficulty in doing that, and surely this amendment has this great virtue. May I say that I am no longer adhering, of course, to the position that we ought to eliminate conduct altogether. I am prepared to concede that there must be occasional cases where the conduct of one of the parties has been so scandalous or shameful that it cannot really be disregarded, even in the limited matter of ancillary relief.

But the proper course in this matter is to lay it down that, in considering whether conduct should be taken into account in an application for ancillary relief, for maintenance or financial provision, the proper starting point is to say, "No, disregard that. The presumption should be against conduct, so that we do not go down the slippery slope of discussing how the marriage broke up, and so on". That should be the presumption and it should be set aside only if there are exceptional circumstances in the case.

I should like to follow with two arguments which were put by the noble and learned Lord the Lord Chancellor in Committee. On that occasion, if I remember rightly, he opposed this very same amendment upon two grounds. First, he said that there was a particular difficulty about the words "exceptional circumstances", because the circumstances referred to appeared to be extraneous to the conduct. I hope that I have interpreted correctly what the noble and learned Lord said. I think that he is nodding his head which I am glad about—

My Lords, I said it again this time.

My Lords, I find it almost inconceivable that I should have missed any words that fell from the lips of the noble and learned Lord, but if I have done so I apologise. The other point he made was that if you were to ask the court to take into consideration exceptional circumstances, they would have to be circumstances which existed at the time when the court made its decision. That I do not think the noble and learned Lord said this evening, but I hope that I have interpreted him correctly.

May I say—and I say it with some diffidence—that those are two of the most esoteric arguments that I have listened to in recent times. Will any registrar or any court be in any sort of difficulty in trying to come to a decision as to the meaning of the words of this amendment, that they shall,

"not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded"?

If I may take the noble and learned Lord's points in reverse order, when he said that the court could only take into account exceptional circumstances existing at the time when it had to make the decision upon ancillary relief, I suggest that he was really and simply wrong. If you get an application by a wife for maintenance which goes before a registrar and there has been some exceptional conduct by one of the parties in the course of the marriage or soon after, is that not an exceptional circumstance in the whole case? Do the exceptional circumstances have to be something that happened precisely yesterday? Surely the court is entitled to look back and decide whether or not the conduct is indeed exceptional.

On the noble and learned Lord's first point, that the circumstances would be extraneous to the conduct, again I should have thought that this was a form of word bargaining. I cannot help thinking that any registrar, faced with the legislation in this amended form, will have no difficulty whatever in saying that what is being talked about here is conduct of an exceptional nature; in other words, linking the circumstances with the conduct as being the intention of the Act.

Finally—and I am sorry to have gone on for such a long time—unless we do something of this kind, and if we pass this Bill and this clause as they are now framed, will there not be the greatest difficulty in the courts, among registrars and among the people who have to deal with this sort of matter, in deciding the meaning of words which state that you should have regard to conduct only where it would be inequitable not to do so? Are we giving any satisfactory indication to the courts of the land as to what we intend by that?

The Law Commission stated that that was their recommendation, and went on to say:

"We would accordingly propose to preserve a reference to the conduct of the parties as one of the specified list of circumstances to which the court should have regard in those cases where it would be inequitable to do otherwise. Any further elaboration can, in our view, best be left to case law development.".

But how long will it be before we get a conclusion, possibly from the House of Lords itself, as to the proper meaning of those words? We shall quite possibly go through a long period of grave uncertainty as to what those words mean, with their being interpreted in a different sense by one court or another, and it may be many years before this important matter is brought to some kind of settled resolution. In my view, this debate this evening will possibly be as important a debate as we shall have had upon this Bill, and I certainly hope that we may find sufficiency of support throughout the House for this amendment.

My Lords, before the noble Lord sits down, perhaps he will allow me to say that every case that I cited was, I think, a decision of the Court of Appeal. I think he gave the impression that I was saying that the Court of Appeal was wrong. Every case that I cited with approval was a post-Wachtel decision of the Court of Appeal, so far as I know.

My Lords, if I may say so, using the words that Dr. Johnson used on one occasion, it was the result of pure ignorance.

My Lords, we have traversed this ground in depth and at length, and I think the time has come to make a decision. We who have supported the amendment are impenitent in our view that it is clear where the Bill would be unclear. It establishes quite clearly that conduct should be disregarded save in exceptional circumstances, and I venture to think that, for example, the illustration which the noble Baroness gave would clearly be caught as an exceptional circumstance. I also venture to think that the recently decided cases would all be caught, in practice, under the language of this amendment as indicating exceptional circumstances. I see no advantage in retraversing the ground. I hope that the noble and learned Lord, Lord Denning, is just as impenitent as I feel myself. He nods his head. If I may say so, he is not usually penitent. Accordingly, I invite the House to come to a decision upon this amendment.

moved Amendment No. 5:

My Lords, I must be totally honest to the noble Baroness at once; I was in New Zealand at the time, and I have not read the article.

My Lords, I am sorry that the noble and learned Lord has not read it, because I was just about to say I am sure he does not need me to protect him from scurrilous articles of this description; I am sure he is capable of looking after himself, and I hope he will look at it very carefully and take steps to reject it. It states that he is eating out of the hand of Campaign for Justice in Divorce. It is that kind of publicity which really has done much more than the activities of the women's groups to undermine confidence in this Bill.

What I am trying to do in this amendment is to remove what I now regard as an objectionable part of this clause, in an attempt to try to assuage the distrust that has arisen about the Bill, and also to make the Bill fairer and more effective in relation to women when they find themselves in this unfortunate situation. I beg to move.

My Lords, I should like to support the noble Baroness, Lady Lockwood, in this amendment, although my reasons for doing so are entirely different from the points she made. I have not at all viewed this amendment in the light in which she spoke about it. I have certainly not thought of it as a sexist point, because I have considered that it could apply equally well to a man and to a woman. After all, what is the man doing to become managing director of the firm, and why is he not doing it? Is he not doing it just to prevent the ex-wife getting more money? This is another way of looking at the point.

My reason for supporting the amendment is that I believe the wording up to the point "foreseeable future" really does cover every possibility and the wording thereafter is superfluous. In particular, I was concerned with the words "earning capacity". I sit very regularly as a member of an industrial tribunal, and one of our duties in many cases is to assess what people's future earning capacity is. I can assure your Lordships this is an almost impossible task. No one has any way of knowing how long it will be before someone gets a job, much less a promotion or a better earning prospect, as is suggested can be obtained by taking these steps to acquire it. If even in the industrial tribunals—and I am sure the courts must have similar experience—it is difficult enough for us to assess the foreseeable future, which is actually included in the part of the text to be retained, to assess anything beyond the foreseeable future is really nothing but asking for a bit of crystal ball gazing.

There are so many personal circumstances which could affect one's future. Who knows what one's health will be next week, next year? Who knows how we shall be able to carry on in any employment if we do get it, or who knows the future of the business in which we might find ourselves? We hear all the time of enterprises that break down. I am constantly meeting cases in the industrial tribunal of people being made redundant, people who had never envisaged redundancy, people who saw a goal and future ahead of them, and indeed might well have imagined themselves taking all sorts of steps to rise much higher in the company they were in. I do think that this latter part of this clause calls for an assessment of an item which is impossible to assess. Although I appreciate the points made by the noble Baroness, Lady Lockwood, it is really because of my industrial tribunal experience that I would support her in this amendment, and would hope that the noble and learned Lord will pay some heed to my comments.

My Lords, when the noble and learned Lord comes to reply, I wonder whether he could define "earning capacity", because people with a very good background who could earn a lot of money may find themselves living demographically in an area where, although they have high earning capacity, there is no job for them to do. I would be very grateful to know what the words "earning capacity" cover.

In this deafening silence, my Lords, I suppose I ought to say something. I am a little puzzled by the speeches which have been made. I just do not understand, nor did my noble friend Lady Gardner of Parkes understand, why the noble Baroness, Lady Lockwood, should think that this particular clause or these particular words which she proposes to omit are aimed at wives. It is a scattergun which applies equally to either sex.

My Lords, if I may interrupt the noble and learned Lord, I hope he will recall that I did say that I was referring to wives but it could equally apply to husbands.

Yes, my Lords, but the speech was entirely about wives, and so it was understood by my noble friend on the Back-Bench opposite. In fact, I should have thought that, as the normal payer of maintenance is more often a husband than a wife, husbands had more to fear than wives statistically, though wives are no doubt equally concerned with husbands to have justice done to them.

Suppose a husband has got a regular promotional increment, the court will have to take account of the fact that he is likely to go up from grade to grade as his career develops. It would be quite wrong and unjust to the wife for it not to do so. I agree, as I have said again and again and again—and I hope I do not have to say it very many more times—that wives who are divorced, especially after a marriage of some duration and especially where there are children, do suffer from a disadvantage of which the courts must always be aware.

But at the same time one would hope that, as the divorce recedes into the background—although some wives' earning capacity is completely destroyed by a long marriage, I have known that happen, and if they have to continue to look after young children it will continue to be impaired and to some extent possibly in extreme cases even destroyed—they will in fact be less disadvantaged (if that is the right word) than they were at the beginning.

There is nothing sexist in either direction about this. It is telling the court to take into account, among the other things, not merely the existing earning capacity but any increase in earning capacity which it would be in the opinion of the court reasonable to expect a party to the marriage to take steps to acquire. I would think it was also a warning to husbands, who are not always very eager to pay their ex-wives large sums by way of maintenance, that, if instead of earning money, they went off to the South Pole to enjoy an expedition rather than pay their wives maintenance, they might find it a more expensive expedition than they had hoped, if these words are left in the Bill.

My noble friend Lady Gardner of Parkes quite rightly drew attention to the fact that to some extent the future is a matter of speculation. I think she overestimated the difficulty. In most cases future earning capacity can, to a large extent, be assessed and it can be assessed with accuracy where there is a regular career structure inside the profession to which either party may belong. So I do not think there is a great deal of difficulty there. But I say to my noble friend, with respect, that if a mistake is made by the courts—and all courts will make mistakes from time to time; we have no pretence of being infallible—the right course is for the disadvantaged party of the mistake to apply immediately for a variation, which they can do. Therefore, that can be put right.

My noble friend Lady Faithfull asked me to define the words, "earning capacity". They are dictionary words which do not require a separate legal definition. I think I have said enough already to give examples of what is meant by earning capacity. It is what you can reasonably expect to earn in the future. I do not see what the objection is to those words which the amendment proposes should be omitted.

The noble Baroness, firing her first barrel before going on about wives, said the words were superfluous, but they did not appear to be superfluous to my noble friend, Lady Gardner of Parkes. On the contrary, she objected to them because they meant too much. I think they are just about right. On the whole I resist the amendment, without any disrespect to any of those who have taken part in the debate, because they have all been very friendly to me.

There is one other thing I should have said. I have no idea about this Spectator article. However, the noble Baroness ought to recognise that not only is it not in my character to eat out of other people's hands, but, as I said on Second Reading, there is nothing in the Bill which has not been recommended by the Law Commission. Even if I am eating out of anyone's hands, it is out of the Law Commission's hands.

My Lords, the noble and learned Lord the Lord Chancellor could not have been more remote from the scene when the offending article appeared, by going to the Antipodes.

My Lords, if the noble and learned Lord has not yet seen the article he has a surprise in store for him. Certainly it will make interesting reading for him tomorrow morning over breakfast.

I should like to make two comments on this matter before we move on. I proposed this same amendment in Committee but it did not achieve any greater success on that occasion than it has on this. Two points have been made by the noble and learned Lord on which I should like to say something. First, he again expressed surprise, as he did before, that the noble Baroness. Lady Lockwood, should have talked about wives when, as he says, these words are equally applicable to men and to women. There are two reasons why it is sensible to make special reference to wives. One is that that was the attitude taken by the Law Commission itself, because it discussed this matter—this appears on page 10, paragraph 26—under the heading:

"Greater weight to be given to a divorced wife's earnings capacity".

The reason why the words have been inserted in the Bill is that they were recommended by the Law Commission in order to give greater weight to the divorced wife's earnings. Nothing was said about husbands.

The second reason why it is perfectly reasonable to think that these words have a special application to women is that in the great majority of cases it is the woman who is the recipient of maintenance. Therefore, the implication of these additional words has a particular bearing upon the situation of former wives. This is one of the changes made in the law which has been the cause of considerable apprehension on the part of women and wives.

I listened on Second Reading and in Committee to the noble and learned Lord explaining that this Bill was even-handed as between husbands and wives and that the apprehensions which had been aroused were unfounded and often due to active misrepresentation, and so on. But, if one comes to think of it, there is good reason why there has been this considerable apprehension among women. It arises from the fact that in Part II of the Bill, which deals with financial provision, where one finds any changes from the previous law—bearing in mind that in matters of maintenance the great majority of recipients of maintenance are women—every change suggested and incorporated appears to be disadvantageous to the recipient of maintenance.

The first major change—that is, that the first priority shall be given to the welfare of children—is obviously, whatever else one may think of it, not noticeably to the advantage of the ex-wife. New Clause 25A does three things. It first of all directs that the court shall in considering the whole matter of maintenance have regard to the possibility of having a terminal date for any maintenance order. Secondly, it states that the court shall have regard to the possibility of making an order for maintenance only for so long as it may be necessary for the party receiving it to readjust. Thirdly, of course, it says that where an application is made for maintenance—again I point out that in the vast majority of cases it is an application by the wife—in those circumstances where the court decides against granting the application it shall be able to order that the wife shall not at any future date be able to resurrect the whole matter.

All those matters appear to potential ex-wives—if I may put it like that—to be disadvantageous to the woman. That is why I believe these apprehensions have been aroused. I suggest that precisely the same criticism can be made of these words which are now imported into the Act. I believe the noble and learned Lord said that there was complete disagreement between the noble Baroness, Lady Gardner of Parkes, and the noble Baroness, Lady Lockwood. I did not understand that to be so. I think the noble Baroness, Lady Gardner of Parkes, used the word "superfluous" about these words and the noble Baroness, Lady Lockwood, used the word "otiose", which is much the same. The reason why the words are unnecessary is that if one looks at the earlier words, which appeared in the preceding legislation, it states that the court shall have regard particularly to—among other things—the earning capacity of each of the parties to the marriage or the capacity which that person is likely to have in the foreseeable future. Is not that exactly the same as saying, as the new words say, that the court shall also have regard to

"any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire"?

It is because the words appear to the outside world to be to the disadvantage of the woman that they, among other words, have caused so much apprehension.

At an early stage of the Bill in the Second Reading debate I thought that many of the apprehensions that had been expressed before the Bill reached this House were unfounded. I came to that conclusion largely because of the speech that the noble and learned Lord the Lord Chancellor made and because of the speech that we had from the noble and learned Lord, Lord Scarman. I am sorry to say that in the debate which has taken place in the country since then in all sorts of ways these apprehensions are still being expressed. The insertion of those words only gives force and substance to those apprehensions.

My Lords, I am grateful to the noble Baroness, Lady Gardner of Parkes, for pointing out on the basis of her experience how difficult it is to assess future earning capacity. I am also grateful to the noble Lord, Lord Foot, for pointing out to the noble and learned Lord the Lord Chancellor that my remarks were not sexist or based on sexism. Indeed, as the noble Lord pointed out, the Law Commission made reference to the need to encourage women to move towards greater financial independence. I thought that one of the overriding principles behind the Bill was so that we could move to a situation where, if it were possible, there could be a clean break. Surely this clause has that in mind. It is preparing people for the clean break.

I was rather surprised at the speech of the noble and learned Lord the Lord Chancellor. In reality we are talking about the position of wives. They have less earning capacity. The purpose of the Bill is to encourage them to improve that capacity and to be financially independent. By and large, husbands are the ones who provide the maintenance. If we are talking about husbands, with few exceptions—and I do not think that there will be many who go on an expedition to the South Pole—their earning capacity and career pattern are much plainer than those of wives. If we consider the matter in the context of the whole Bill and of the Law Commission's report, I suggest that in this clause we are talking about the likely future earning capacity of wives.

My Lords, hunger is getting the better of us all. I beg to move that further consideration on Report be now adjourned. It is proposed that, for further consideration of the Matrimonial and Family Proceedings Bill, the House should resume again at 8.35 p.m.

The Question is, That the House do accordingly proceed to the next business.

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.

My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.

moved Amendment No. 7:

My Lords, may I voice two matters of disquiet? The first is raised indirectly by this amendment. I refer to the final words of subsection (1) of the new Section 25 on page 3 of the Bill, which read:

"consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen".

In my respectful submission, that provision is absolutely right but it means—I am not sure whether the Government intend it to mean—that after the age of 18, the child is not the first consideration. The first consideration, as I have always understood it, means outweighing any other consideration. It need not necessarily outweigh all considerations but if it is a first consideration, it must outweigh any. That matter is pointed by the reference to tertiary education in the amendment of the noble Baroness. I wonder whether the Government really intend a cut-off point at 18 for the child being made the first consideration. Maybe the Government do intend that, and have good reason for doing so. Otherwise, perhaps my noble and learned friend on the Woolsack would consider it.

The second point that I wanted to make is that I hope I may say with respect that I am not entirely happy either with the Bill or with the amendment. In the Bill, of subsection (3)(d) speaks of:

"the manner in which he was being and in which the parties to the marriage expected him to be educated or trained".

That looks solely to the past. One need not perhaps envisage the situation to which we all aspire of winning a premium bond or, better still, winning a football pool. But it does happen not infrequently that, say, a husband is the substantial owner of a private company which goes public and he is very much financially benefited thereby. It is reasonable, in such circumstances, say, for a public school or a university education to be envisaged. This does not seem to be covered by the words of paragraph (d).

On the other hand, I hope that I may say with respect to the noble Baroness that the style of legislation contained in Amendment No. 7 is liable to cause great difficulties of construction to courts. I should have felt much happier if she had stopped short at the educational needs of the child. If one starts enumerating, there is always the danger of leaving out something significant. My noble and learned friend on the Woolsack mentioned one in Committee—the special school. That is not mentioned, and there are other types of education. All I ask is that, as there will be another opportunity of examining the words both of the clause and of the noble Baroness's amendment, the matter should receive further consideration.

My Lords, I rise to support my noble friend's amendment. Much as I am tempted and greatly as I sympathise with what he was saying, I shall not follow the noble and learned Lord, Lord Simon of Glaisdale, down the path of the primary interest of a child beyond the age of 18, except to say that I think it is right to state that tertiary education could include someone between the ages of 16 and 18 in a college of further education, for example, where they were taking a qualification lower than a university qualification. My noble friend has pointed out that this amendment has taken aboard some of the comments that the noble and learned Lord, the Lord Chancellor, made on Second Reading. So the amendment does now include all aspects of education in the sense of the 1944 Act.

I should like to draw attention to two aspects of education which are important not only for parents but also for the courts to take into account when looking at this matter. Again, as my noble friend has said, if there is agreement between the parties about the way in which they would like the child or children to be educated, there are no problems. But, if there is disagreement, then problems may arise. I underline the inclusion of nursery education because this is one aspect of education to which sometimes parents, and indeed the courts, might not always attach priority. For example, the reason for the courts not attaching priority to nursery education is that consecutive Governments since 1944 have not attached priority to nursery education.

The final part of the amendment relates to training. Again, it is not always in the minds of parents, nor in the minds of the courts, that the training needs of a child might be taken into account. If the child was leaving school at the age of 16 and one of the parents wanted the child to take up some kind of formal training, it is important that that should be given due weight. It is for those reasons that the amendment relates to sections of education and ages within the educational span. I hope that the noble and learned Lord the Lord Chancellor, whose words have been taken seriously to heart by the noble Baroness, will look more kindly on this amendment than he did in Committee.

My Lords, with the leave of your Lordships and arising out of what the noble Baroness has said, I should like to say that I realise that I expressed myself clumsily in suggesting that the clause should end at "education". I certainly did not mean to eliminate "training", which I think is necessary.

My Lords, I would like to support my noble friends Lady Ewart-Biggs and Lady Lockwood on the importance that they have attached to the need for this amendment. On the breakup of a marriage and the occurrence of a divorce there is sometimes, alas! no type of agreement between the father and mother, or the husband and wife, as to the future care and upbringing of the child. A number of matters can be omitted and overlooked in that scene. As my noble friend Lady Lockwood has emphasised, matters can just be left out of consideration. My noble friend has identified in particular the opportunities and facilities for nursery education.

I must say that the suggestion of my noble and learned friend Lord Simon of Glaisdale that everything should be left out after "educational needs of the child" would at least bring home the necessity to consider that factor on the taking place of the breakdown of a marriage to the point of divorce. However, a useful purpose in the interests of the child would be served by including:

"nursery education, primary education, secondary education, tertiary education".

After all, the court would be doing no more than drawing attention to what is publicly available. I sympathise with the view that the state should not take too much upon itself and act in loco parentis in a direct sense. I know that that is a point that has influenced the mind of the noble and learned Lord the Lord Chancellor, but he may think that no harm at any rate is done by underlining the need for particular regard to be paid to the educational needs of the child and in particular to the aspects of it which are of very great importance and which are identified in the amendment.

My Lords, there is one aspect of this matter to which attention has not been drawn and which I venture to think is fundamental to the discussion of this amendment. Paragraph (d) is not an amendment of the law: it is a statement of the existing law—the law which has existed since 1971 and which has worked perfectly well during the 12 years which have passed. The law is that, although they may be divorced, it is still the duty of the parents—not of the court or of the state, except in so far as the parents make use of the state system—to provide for the education of the child.

This amendment alters that situation, and alters it for the worse. Of course, if the parents differ—and they sadly sometimes do so, as I think the noble and learned Lord has said—about what is the appropriate education of the child, then the court has to decide it. But the court has to decide it under the general law—and I am not talking about this amendment at the moment—in accordance with the welfare of the child viewed in the broadest possible terms.

I assure all of your Lordships who have taken part in this debate that the courts are perfectly well aware of the need of a child—every child—for education and of the importance of education in its welfare. Indeed, it is not the only factor in its welfare. Some people consider that the important factor is housing; some people think that it is material advantages; some people think it is religion; some people think one thing and others think another. My experience is that it varies indefinitely in accordance with the circumstances of the case. But I assure the noble Baroness that the courts have heard of nursery education—they know about it. They know about its importance or, if they do not, they will be reminded of it by counsel for one side or the other. They know about tertiary education. Let me say in passing to my noble and learned friend Lord Simon of Glaisdale that that is provided for under the principal Act by Section 29(3)—

My Lords, will my noble and learned friend allow me to intervene? When I voiced my difficulty about the paragraph and the amendment, my noble and learned friend very kindly directed my attention to Section 29. It does not at all meet my point about what is the primary consideration, which is the new provision in the Bill.

My Lords, no, it was necessary for me to remind the House of Section 29, because Section 29 is the general law which deals with tertiary education. It would of course be totally inappropriate to introduce Section 29, which already exists and which deals with tertiary education—and we went into this in considerable detail in Committee—into this particular subsection, except in so far as it affects children under the age of 18, because it is contrary to the general law to give priority to the interests of one adult over another. The law provides, whether in its unamended state or its amended state, that the children and their welfare (and this is given added importance by the Bill under consideration) are the first consideration.

However, once they become of age, they can decide for themselves. It is no good the court making orders about a child between the ages of 18 and 21. There are some people, including myself, who think that the age of 18 is too early an age for majority, but that is past praying for. The adult decides his own future, and it is no good putting things into the Bill which deal with children over the age of 18, except in so far as the court has power to make provision for them if it is considered right in relation to the other factors. That is why I referred to Section 29.

Once one accepts that the education of the children is the continuing responsibility of the parents, except when they disagree, the effect of the amendment is to remove the responsibility for the education of their children from the parents and to give it to an organ of the state; namely, the courts. Of course, the organ of the state, which is provided under my right honourable friend the Secretary of State—the state school system—has a certain responsibility for parents, whether they are married or divorced, and they must obey the law in that respect. But I assure the noble Baroness that, as a matter of everyday experience, the courts are perfectly familiar with the various kinds of education and with the need for training.

The weakness of starting to enumerate matters in which one is particularly interested—in this case nursery, primary, secondary and tertiary education and training—inevitably means that one omits other factors which enter into welfare and to which the parents may give a good deal of attention, if they agree. This particular amendment omits special education, which is one of the most important factors. However, the vice of introducing this enumeration of what happens—quite rightly—to interest individuals is that one always omits something.

The courts are perfectly familar with the problems relating to education. That is what registrars and judges in the Family Division and in the county courts are for. But, basically speaking, the noble Baroness is seeking not to alter the Bill in the sense that the Bill produces an amendment to the law, but to alter a provision of the general law which is reproduced in the Bill in order to avoid legislation by reference. That is a mistake. The parents retain their responsibilities and they retain their rights when they agree. When they do not agree, the welfare of the child—which of course includes education but it is not the only factor under consideration—is the test by which the courts must be governed. The mere enumeration of particular kinds of school or particular kinds of education or training only makes the task of the courts more difficult and not easier.

My Lords, I should very much like to thank noble Lords who have contributed to this short discussion. I still maintain that the wording in this amendment is based on trying to safeguard the welfare of the child and of the custodial parent, the mother. I still do not have the total confidence which the noble and learned Lord the Lord Chancellor has in courts always deciding the right way. I can still see the coincidence of a reactionary farther and a reactionary judge deciding between them that small children should stay at home with their mother when in fact it would be to the detriment of both the child and the mother.

However, I accept that our amendment would be a difficult one to maintain. The suggestion made by the noble and learned Lord, Lord Simon, is a second best. If the amendment could stop at the words, "the educational needs", that would be better than nothing. Certainly I do not wish to divide the House because I do not think that there are enough people here this evening. Therefore, I beg leave to withdraw the amendment.

moved Amendment No. 8:

My Lords, with the leave of the House—

No leave is needed, my Lords.

I see. What I hoped might be possible would be for us to withdraw the second part of the following amendment and to follow the noble and learned Lord, Lord Elwyn-Jones, by accepting what he has just said. I should like to make some comments on the general research that is proposed.

First of all, I am slightly less enthusiastic than the noble Lord, Lord Elwyn-Jones, who has just spoken about this piece of research. I think it is admirable that it should be done, and I welcome the initiative of the noble and learned Lord on the Woolsack in promoting it. It must be remembered, however, that what it will simply produce, if it is successful, is a photograph at a point in time on the maintenance situation in 1984–85. I am a little sceptical about the 18 months between start and finish, but no results will be available until 1986.

By this time I suspect that judicial policy in respect of the administration of this legislation will have crystallised and will probably not be open to change as a result of research findings. If the research in the suggestions made about using the general household survey produces a stream of information on an annual basis, that is greatly to be welcomed. My view is that, however valuable this type of research is, it is no substitute for a continuous flow of annual statistical intelligence, such as we receive in some areas from the civil judicial statistics. Though I welcome and accept what the noble and learned Lord, Lord Elwyn-Jones, said about this research, when we deal with one half of the following amendment, I hope—not in any divisive manner but simply as a subject for consideration—to argue the case for an improvement in regular statistical services relating to maintenance and other aspects of divorce.

My Lords, I was proposing to support this amendment for two reasons: first, because during the time that I had some responsibility for this sphere of jurisprudence I was continually conscious of how little we knew of the cumulative facts of the impact of our general decisions. The second reason was because the noble Lord, Lord McGregor of Durris, made a pioneering study—which I believe is unfortunately still a unique study—with Mr. Blom Cooper and, I think, Mr. Gibson, called Separated Spouses, of the matrimonial jurisdiction of magistrates' courts. The number of facts that the noble Lord turned up was surprising and most influential. Anything he says on this matter ought to be given the greatest weight.

I do not entirely share the despondency of the noble Lord, Lord McGregor, about the readiness of the judiciary to respond to new findings. The effect of Separated Spouses was beneficial and was significant, but I share with my noble and learned friend Lord Elwyn-Jones gratitude to my noble and learned friend on the Woolsack for what seems to be a very forthcoming gesture. As long as the research team bears in mind what the noble Lord, Lord McGregor has said, it seems to me to meet the situation very satisfactorily.

My Lords, the very friendly approach of the noble and learned Lord, Lord Elwyn-Jones, to my letter has relieved me of a considerable burden in expounding my general approach to these problems. The scope of the feasibility study which I have in mind was published in the legal press only the other day and it is to be found, therefore, in an accessible form.

The amendment itself is, for that purpose, hardly here nor there, because our discussions have now moved beyond it. The proposal that every five years my successor would have to publish a report on the working of the Act, as it then would be, amalgamated with the principal Act, does not appeal to me so much as the question of research. I imagine that such reports would be made in due course and that they would contain as much or as little information as Sir Humphrey Appleby would choose to put inside. I have very little faith in such reports. On the other hand, I accept the desirability (on the lines of my letter to the noble and learned Lord) of a stream of additional information. Too little is known and the only question really is in what form it should be provided and by whom. The Law Commission in paragraph 9 of their report pinpointed the need for research by way of a survey into the financial consequence of divorce.

There are two quite separate matters which I think I should like to add to this discussion. The first is, as I think I indicated at Committee stage, that the Lord Chancellor's Department has now appointed a research officer at principal level. She is about to commence a review of the department's research needs. This will include consultation with appropriate outside interests. The aim of the review is to produce a draft research programme covering what should be done over the next few years, funds permitting. It is too early to know whether we ourselves shall be justified in having a research unit in the near future. The size of the research budget will need to be determined after review.

There is a broader question to which I should like to revert, although I mentioned some of it when I was talking at Committee stage. Years ago I was responsible for research in a broader sense and I reached some rather positive conclusions about Government research which I should like to call in aid in connection with the present discussion. In the first place, I think that all research—and for this purpose I am talking as much about the physical sciences as about the social sciences—ought to be to some extent distanced from the user departments; and, from this point of view, my own department is a user department. We have done what I have just said in introducing a research officer into a user department. But research, if it is to be useful (and it is easier, I think, to waste money on research than on almost any other subject) has to carry with it certain characteristics.

In the first place, you are dealing with the unknown when you are dealing with research. You do not know what answers are going to come up and, therefore, you have to start not merely with the human requirement—say, a cure for cancer—but with a promising lead. There is no use in asking to spend more money on research into cancer unless you have a certain number of promising leads which it is desirable to pursue. Secondly, you have to find a first-class man to do the research. If you do not get both those characteristics, you are going to fail and you are going to waste money on a very difficult subject. And, of course, when you have identified the lead and you have found an available person, then, whether you find the lead inside the Government machine, or the university machine or whatever, for that particular thing, you have to relate to other competing requirements which may be outside your own domain.

It was for that reason that, if I was not actually the father, I was, I think, the godfather of what was then called the Social Sciences Research Council—it now has a slightly different name—which still continues. It carries the power to do exactly what I have been describing; that is, it is distanced from the user departments and from Government; it uses Government resources; it can deal with priorities, and with competing priorities, and it can evaluate promising leads and available research material.

I would be sorry to undertake that kind of research, apart from what I have described as that which I have introduced into my department, as a user department. I think that the appropriate body is the research council. I believe that one can and should, if one is conscious of one's needs, approach the research council for funds, for help and for support in particular projects. One is assisted thereby by a research officer in one's own department. But I should like to keep within the general approach that I have outlined, which I think is applicable to more departments than my own.

I am glad that the noble and learned Lord was good enough to treat my approach to him in a friendly spirit, because it was intended in a friendly spirit. Having made my letter available, as he has by quoting parts of it, I think it will be of value to other people besides this small gathering here tonight. So I thank him for his amendment and hope that it will not prove contentious.

My Lords, in the light of the contents of the letter and what the noble and learned Lord has said, certainly this will not be contentious. I confess that I am a trifle puzzled about the role of the research officer within the office of the Lord Chancellor, bearing in mind the infinity of subjects which would be worthy of research and which come within the ambit of the Lord Chancellor. The lady will be a busy lady, whoever she may be, and I am sure that she will be an admirably chosen person.

But what will be very important is that the outcome of the type of work and monitoring that is contemplated should be available to the public to see how the new procedures of the Bill are progressing. There is little doubt that there is a good deal of public concern about the whole of this operation in relation to the Bill, and still a good deal of anxiety. The noble and learned Lord may well say, "misunderstanding", but, whatever it may be called, a great deal of elucidation will still be required about the progress of this advance in a field where hundreds of thousands of families and individuals are affected. But, at any rate, at this stage I am grateful for the immediate undertakings that have been given and further elaborated by the noble and learned Lord. In these circumstances, I beg leave to withdraw the amendment.

moved Amendment No. 9:

My Lords, I rise to support the noble Lord, Lord McGregor of Durris, as one who has been a practitioner in the field of the social services and conciliation. I do not think that the setting up of a research and feasibility study is at variance with the collection of annual statistics. In fact, as the noble Lord, Lord McGregor of Durris, said, they are complementary. In every other field annual statistics are collected. The number of children in care is produced once a year. The number of children appearing before the juvenile courts is produced once a year. In all the social services—housing, health and education—annual statistics are collected in order that one can see the trends. I suggest that to collect these statistics in the civil judicial list would not cost anything. It would give very little work to people because the statistics in any case have to be collected in other areas and they would be useful to other departments—for example, the Department of Health and Social Security.

The cost of living index varies—I was going to say from year to year but it is almost from month to month—but it does vary from year to year and it is important to have statistics for other departments as well as for the Lord Chancellor's department. It is important to have them in Government departments. Therefore, I very much support this amendment as complementary to the previous amendment, which I know has been withdrawn. In fact, it is very difficult to carry out a research and feasibility study without having annual statistics. They are extremely important. They would, in any case, have to be kept.

My last point is on the question of policy. If one does not keep annual statistics it is difficult to see the trend. If one waits for five years the trend will have changed and one will not know what has gone on in the intervening period. Furthermore, in local government—as in central government, but I quote local government—all the departments have to keep their statistics annually in order to be able to fix their policy and their rates for the following year. With the greatest respect I beg the noble and learned Lord the Lord Chancellor to consider this as being a great practical asset both to the researchers on the feasibility study and those who are working in this field.

My Lords, I am sure the House is indebted to the noble Lord, Lord McGregor of Durris, and also to my noble friend for their contributions to this debate. However, there is one statistic to which I must draw the attention of the House and it is one of vital importance to me. This amendment was put down so late that, having been processed by my department, it arrived on my desk somewhere between 2 and 2.15 p.m. I have to change my clothes during that quarter of an hour, and in the nature of the case I have had to sit here almost continuously dealing with other amendments since 2.30 p.m. with only a brief interval. I should have liked to deal with this important amendment in rather greater detail and in a more constructive way than I am perhaps able to do. I hope that the noble Lord, Lord McGregor of Durris, and my noble friend Lady Faithfull will acquit me of any intentional discourtesy.

It should not be thought that I am in any way deriding the importance of collecting statistics. It is no less important in the field of judicial administration than in other fields of administration. The amount of work involved is staff intensive and it has to compete for available resources. That puts the administrator in a considerable difficulty, if it be true, and the extent to which it is true—and the noble Lord, Lord McGregor, has indicated that it is to a large extent true—that one starts very largely from scratch. The collection of statistics from the courts for the judicial statistics is now under review within the Lord Chancellor's Department with a view to improving the value of the information which can be obtained from them.

The old system of collecting magistrates' court domestic statistics—which is of course outside the field of my department and within the field of the Home Office—was recognised by the Home Office as defective, so a new data collection scheme to collect magistrates' court statistics of domestic proceedings was set up at the beginning of 1983. Publication of the first returns for January to June 1983 was made in a Home Office statistical bulletin published on 19th January 1984.

There are, I am told—although I shall not enumerate them at this hour—drafting defects in the amendment as proposed. I cannot of course undertake at short notice to impose undesirable burdens upon public funds and pre-empt decisions on priorities which I have not yet made and which can be made only in competition with and consultation with other departments.

The amendment is unnecessary to this extent. There is a feasibility study into research on the financial consequences of divorce, which is what the Law Commission recommended (as we saw in the previous amendment) in paragraph 9 of Law Commission report 112 and which has already started. It is being carried out by the social survey division of the Office of Population Censuses and Surveys. If the feasibility study proves viable—and the report on that will, I think, be available in June, at any rate to me—it is hoped to carry out a full study next autumn lasting about 18 months. Thereafter it may prove possible to undertake monitoring of financial provision on divorce by slightly extending the scope of the general household survey. Such other monitoring as is required can be achieved by improvements to the collection of statistics of orders made in ancillary proceedings which are now under consideration within my department, as I indicated a moment ago. These of course would be published annually in the judicial statistics.

I greatly regret that in the time available I have not been able to acquire a more constructive or positive approach to the amendment of the noble Lord, Lord McGregor. I hope that he will not think from that that I am deriding the business of collecting statistics and that he will pursue the matter from time to time. I shall be very happy to pursue it with him, but I cannot give him more information at the moment.

In the meantime, as it stands, the amendment would involve me in a commitment which I am not able to make this evening. It is, I believe, subject to the criticism of the defects in drafting which I have not enumerated, but which I am told exist. I am very grateful to the noble Lord, Lord McGregor, for having raised the subject and to my noble friend for having enlarged upon it, but I do not think that I can go further this evening.

My Lords, I am grateful to the noble and learned Lord on the Woolsack for his friendly response to the amendment which, we said at the beginning, we intended as a matter for consideration, not for division. I very much regret that the amendment invaded his dressing room. I think it is fair to point out that the amendment has been slightly reworded from the one that we originally put down for the Committee stage and that all the changes have been made to conform with what the noble and learned Lord on the Woolsack said in Committee. As now couched, the amendment carries some of his own phrases. Perhaps some of the further discussion that the noble and learned Lord mentioned can take place at Third Reading.

My Lords, it is of course always possible to put down amendments for Third Reading, though it is not for me to indicate to the House whether or not it is desirable to do so. But if an amendment is put down in good time, I shall try to deal with it, if that is the wish of the House.

My Lords, I beg leave to withdraw the amendment.

moved Amendment No. 10A:

My Lords, I would like to support my noble friend's amendment.

Oh!

My Lords, the noble Baroness most certainly is my most dear and noble friend, if I may add affectionate additions to the description of her. I am very happy indeed to support her amendment. The amendment raises the important principle that periodic index linking should be built into maintenance awards. My noble friend has already pointed out that this would have a very considerable advantage in a number of ways. It would eliminate the necessity for frequent variations which could be brought in with all the cost and expense and difficulty that that would cause. And of course there are, as she pointed out during the Committee stage, many precedents for index linking—namely, state pensions; various Department of Health and Social Security awards contain elements of index linking: and pensions have sometimes been linked to past increases and sometimes to anticipated future increases in the cost of living. Amendment No. 10B which follows links the matter to the changes in the retail price index.

I hope, therefore, that it will be possible for the Government to agree to this important proposal, which will, I venture to think, do justice to the needs of the parties concerned, and do so in a decent and time-saving way which will reduce unnecessary legal aid expenditure which would otherwise be involved. I therefore hope that we shall receive even at this late hour an indication of approval by the Government of the actual terms of the amendment. If I may say so, we have not had many acceptances in the course of this day. Fine words have come, but perhaps this time we may have actual undertakings.

My Lords, I am far from confident that I have got the point right, because it is only just by the courtesy of the noble Lord, Lord Underhill, that I have the right Marshalled List. I can see the attraction of this amendment in an inflationary situation, but we are not legislating purely for an inflationary situation. One must remember that during the 1930s there was, pretty steadily, a gradual deflation.

I have already indicated my view that the principal Act involved an injustice to wives and that that is compounded by this Bill. I am not sure that this amendment in a deflationary situation will not inure further to the detriment of wives. It will automatically decrease their maintenance, whereas it seems to me that the husband's emoluments will go further in that situation. As I have said, I may have got the point entirely wrong because I was working from the Marshalled List which was evidently current until today. However, I should like to be reassured on that point.

My Lords, I, too, have been considerably inconvenienced by the late hour at which this amendment was brought forward. I must begin by apologising to the noble Baroness and to the noble and learned Lord for not realising to the full the political friendship which existed between them. The noble Baroness lurks on the Mappin Terraces somewhere at a bearing of 270° from the Woolsack, and I had not normally associated that with ardent support of the Labour Party but rather with support of the other occupants of that block of Benches. However, that is a mistake for which I can only apologise. It is our business to know as much as we possibly can about as many as possible of our noble colleagues.

However, I am afraid that, in spite of the extremely urbane and attractive way in which the noble and learned Lord supported his noble friend, I cannot offer much comfort over this. As the noble Baroness pointed out, there are about 100,000 maintenance orders made in the divorce county courts which are subsequently registered in magistrates' courts, and one only has to consider the amount of work which that would involve on the part of staff to realise how difficult it would be.

The amendment provides that the variation shall apply to the retail price index—that is, of course, an average figure as regards any individual because none of us corresponds with the index—and that it shall take effect on each anniversary of the making of the order. Therefore, the effect of that is that in every one of those cases, on the anniversary of the making of 100,000 orders the magistrates' clerk would have to recalculate the amount of the particular order which had taken place on the anniversary of that day and then I suppose send notice of it to the payer; in the meantime—despite what the noble Baroness seems to have thought—computerisation would not assist in other orders not registered in the magistrates' courts, because in those cases the order is dealt with and enforced only by the parties. The recipient therefore would have to calculate and remind the payer—that is, the ex-husband—of the amount he must add to the payments on the anniversary of the making of the order in question. My mind at least boggles at the thought of the paper work which would emerge from this particular operation.

Of course, that is only the beginning of the trouble, because one then has to ask whether the noble Baroness is reasonably right in her prognostication that this would actually stop the number of applications for variation by the courts. I think that it would multiply it by about 100,000 per cent. None of our cases corresponds with the retail price index. The husband might have had promotion, demotion or unemployment; the wife might have had an increase in income; two of the children of the first marriage might have become of age; there may have been three children of the second marriage who had come into being—or six, if one reads the newspapers day by day. The number of applications for variation upwards or downwards would, I think, multiply absolutely exponentially. I simply cannot accept this as a means of saving money on legal aid or of reducing the amount of the burden of time imposed upon the courts.

I am told that the wife might wish to vary an order upwards; but it should be noted that even in times of high inflation an application for variation is quite likely to result in what, in real terms, is a decrease rather than an increase. This appears to have been established by Professor McGregor, as I think he then was, and Dr. Colin Gibson in their research for the Finer Committee on one person families. The whole effect therefore is that the principle upon which this amendment is based is an ineffective principle. One is well able to see that when circumstances change, either as a result of inflation or individual circumstances, either party to a maintenance order should be able to apply to the court for variation. This I objected to in its rather less refined form on Committee as a bed of Procrustes which bore no relation to the needs, requirements or the justice either of the payment or the recipient, and I can only say in its cruder form as it has been reproduced on Report at the last moment, I find it even less attractive.

My Lords, I am glad the amendment has thrown light on one situation even if it has not thrown light on the subject of the amendment itself. I must apologise to the noble and learned Lords, the Lord Chancellor and Lord Simon of Glaisdale, for the late submission of the amendment; it was due to a misunderstanding arising from the submission of the previous amendment, and certain subsections have not been put in for amendment. I apologise and I understand that it may have caused confusion.

I accept the point made by the noble and learned Lord. Lord Simon of Glaisdale, that in a highly inflationary situation this would be even more desirable than at the present time, but even in the deflationary situation in which we find ourselves today we do have a 5—plus per cent. increase in prices, and the intention behind the amendment was to build into the system a compensation for that increase in price; a compensation based on the assumption that the award had been given in accordance with the income of the spouse who was paying the maintenance award, and in accordance with the needs of the spouse who was receiving it. Even in the present deflationary economic situation therefore, there is this rise in prices which creates great concern.

I regret the fact that the noble and learned Lord the Lord Chancellor feels that he cannot look any more kindly on the previous amendment than he could on the present one. I cannot help but feel his assessment that applications to the court for variations would multiply 100,000 per cent. is a great exaggeration, perhaps due to the lateness of the hour. The fact is that there are very real difficulties for people who are caught up in price increases. I accept that there are other reasons and other causes—as the noble and learned Lord the Lord Chancellor has outlined—why people should apply for a variation in the order; but I think that this amendment would have the effect of cutting out some of the routine applications which come before the courts, and more of which would come before the courts if the recipients of the payments could only summon up their courage in order to apply for a variation.

At this late hour I will not press the amendment to a Division but regretfully ask leave of the House to withdraw it.