House Of Lords
Thursday, 29th February 1996.
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield.
My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:
Humber Bridge (Debts) Act,
Hong Kong (Overseas Public Servants) Act, Wild Mammals (Protection) Act,
Edinburgh Assay Office Order Confirmation Act.
The Channel Tunnel Ltd: Funding
asked Her Majesty's Government:
Whether any and, if so, what amount of the total liabilities of the Channel Tunnel Ltd. could fall on the British taxpayer.
My Lords, the Channel Tunnel has been constructed, and is operated, entirely by the private sector. The Channel Tunnel Act 1987 specifically precludes the Government from any commitment of public funds, either directly or in the form of a guarantee.
My Lords, I thank my noble friend the Minister for the most reassuring Answer that I have ever received from him.
My Lords, you cannot say better than that.
My Lords, I live in hope—so far unrealised. However, can the Minister give the House some indication as to whether there is any truth in the reports that have appeared in the press today stating that the project which is to be undertaken in relation to the Channel Tunnel will in fact cost a great deal more than might have been the case if British Rail had been able to undertake a project in partnership with private finance in 1989? Is it likely that the cost of £ 1 billion then—the partnership being with Trafalgar House—is likely to be exceeded by some £ 2 billion as result of the Statement that is likely to be made elsewhere?
My Lords, the noble Lord, Lord Clinton-Davis, could not possibly expect me to pre-empt the Statement of my right honourable friend which is due to be made in another place reasonably shortly. Those issues will be raised during discussion on the Statement. Suffice it to say, I am sure that the well-known ability of the private sector to inject funds and expertise into large capital projects will be demonstrated.
My Lords, despite the Answer that he gave to his noble friend and bearing in mind the fact that Commissioner Kinnock voted against the Channel Tunnel whenever he could, can I have an assurance from the noble Viscount that there will not be a public subsidy paid for in part by British taxpayers through a subsidy given to the Channel Tunnel by the Commission?
My Lords, I have outlined the situation. Eurotunnel is a public limited company and there is no injection from Her Majesty's Government of funds. That is very clear within the Act. We fully expect that any financial negotiations will have to take place between the company itself and its own bankers. That is the end of the matter.
My Lords, in that case, is the Minister saying that the tunnel will close if the money is not forthcoming from the private sector?
No, my Lords; that is not what I am saying at all. The Channel Tunnel operates at an operating surplus. It is very clear to those who finance the Channel Tunnel that the only way that they will get moneys coming back to repay those debts is through the operation of the tunnel. Indeed, closure of the tunnel would not help in any way.
The European Union And Slovenia
asked Her Majesty's Government:
Whether they favour the establishment of an agreement between the European Union and Slovenia and, if so, what steps they are taking to achieve this.
My Lords, we are strongly in favour of Slovenia concluding an association agreement with the European Union. The agreement has been initialled; but not yet signed, because of outstanding differences between Slovenia and Italy. We have encouraged both governments to resolve their difficulties so that the agreement can be signed without further delay.
My Lords, I am grateful to my noble friend the Minister for that Answer. Does she agree with me that Slovenia has done well in recent years to establish itself as a democratic and prosperous young nation? Further, does my noble friend not think it a pity that relations between Slovenia and the European Union should be held up on such a matter as property rights by one member state? Can my noble friend use her influence with her Italian colleagues in the European Union to try to get the matter resolved?
My Lords, I certainly agree with my noble friend that Slovenia has done well. Indeed, she has become one of the most economically developed of the central and eastern European countries; she is politically stable; and she has a pluralist liberal democracy. We believe that Slovenia is entitled to look forward to the day when she will be a full member of the European Union. However, I also agree with my noble friend that it is tragic that Italy and Slovenia have not been able to resolve their bilateral property issue which is preventing this particular signature.I should stress that we have indeed encouraged a resolution of the issue, but the right is not all on one side. The Italians feel that this is a sensitive, domestic issue, but so do the Slovenians. We are trying our best behind the scenes to resolve the matter.
My Lords, will there be standard clauses in the agreement regarding human rights in Slovenia, and, if so, what enforcement mechanisms are written into those standard clauses in the event of default by the state concerned? I am not suggesting there is any reason for particular anxiety in the case of Slovenia. However, as I understand it, in all future association agreements there is provision for these clauses to be inserted.
My Lords, I am not sure because it would depend on the drafting date as to whether those clauses have been included in the association agreement. However, I will check that and write to the noble Lord. As he rightly says, I do not think there is any reason for anxiety over Slovenia's progress on human rights. I repeat, she is politically stable and has a pluralist liberal democracy. She is setting a good example to many of the countries around her.
My Lords, if the Italian Government's opposition to an association agreement continues, can the Minister comment on the implications for enlargement more generally, given the Government's commitment to unanimous voting in this area?
My Lords, it is important that this problem is kept within context. It is not a huge problem. It does not have anything to do with European membership per se. The problem is that the Slovenians have proposed some amendments to their property laws which the Italians do not like because those laws would not allow their citizens who have lived in Slovenia in the past to buy up property until they had fulfilled the new three years of continuous residence requirement. This matter ought to be capable of being resolved between the parties. Although right is not all on one side, as I have said, I do not believe that it is a matter of such import that it will result in more than hesitation.As to the wider question of enlargement and the requirement for unanimity on enlargement, I still believe, as a member of the Government, that it is important that we maintain that unanimity. The question how best to work for a resolution of the problem between Italy and the other 14 members who are in favour of this association agreement.
My Lords, will the noble Baroness give the House an undertaking that she will in due course provide particulars of the nature and extent of our involvement in the agreement referred to by the noble Lord, Lord Bethell?
My Lords, certainly if there is something further that the noble Lord, Lord Bruce of Donington, needs, he knows that he has only to ask. I always try to give him as much information as possible.
The Royal Naval College, Greenwich
asked Her Majesty's Government:
Whether they have received any support for the Secretary of State for Defence's proposal to lease the Royal Naval College, Greenwich, for unrestricted purposes for 150 years and, if so, from whom.
My Lords, nine proposals relating to the whole site, and three for part use, have been received. At this stage we regard such expressions of interest as commercial-in-confidence. It is for the interested parties to decide whether they wish publicly to declare their interest. Two have so chosen; namely, the University of Greenwich and the National Maritime Museum.
My Lords, will the Government consider enlarging the remit given to the advisory committee—I refer to the group of four, including Dame Jennifer Jenkins and Sir Jocelyn Stevens—which is at present confined to advising the Secretary of State on the desirability of those who come forward; that is, the nine applications? Will the Government consider enlarging that remit and charging that group with forming an opinion on what are desirable uses and what are desirable classes of persons to have Greenwich, so that the Secretary of State can then actively seek them instead of sitting back and waiting for anyone who comes along?
My Lords, I believe that the advisory group already has that remit very much in mind. The group was set up to advise my right honourable friend on the expressions of interest which we received in mid-November on the future use and management of the Royal Naval College. The members of the group have been asked to give particular attention to the extent to which the proposals are sympathetic to the status of the building and its wide enjoyment by the public. I believe that they will be conscientious in fulfilling that remit.
My Lords, how can anyone predict what circumstances will be like in 150 years' time and be absolutely sure that a letting of the building will be a safe thing to do, bearing in mind the ignorance of the circumstances in 150 years' time?
My Lords, we are proposing a lease of 150 years. It is necessary to have a long lease to give predictability to a future occupant who may need to invest considerable sums of money in the site. However, if no suitable non-defence use comes forward, we have a longstop. The Defence School of Languages has been identified as a suitable occupant. However, we are keen to find a non-defence use to enable much greater public access and enjoyment, not least the possibility of opening up the grand axis. That vision was very much in the mind of Dame Jennifer Jenkins when she prepared the Royal Parks Review.
My Lords, the noble Earl will be aware that the Government may propose, but Parliament in this matter will dispose. In view of the fact that your Lordships have not yet had a chance to debate the particular clause in the Armed Forces Bill, why are the Government forging ahead on something which may well not pass your Lordships?
My Lords, the final decision as to who: should occupy the Royal Naval College rests with my right honourable friend as sole trustee of the Greenwich Hospital Charity. However, I am well aware that, as the noble Lord stated, the Armed Forces Bill contains a clause to widen the scope for my right honourable friend to take that decision. I do not believe that any action that the Government have taken to date pre-empts parliamentary consideration of that clause.
My Lords, my noble friend said that the National Maritime Museum was one of the parties which had shown an interest. Wearing my DoE hat of a decade or so ago, I have seen what a wonderful museum that is. Do the Government agree that, if it is interested in doing so, the National Maritime Museum would be the ideal body to look after those buildings?
My Lords, I quite agree with my noble friend that the National Maritime Museum is to be congratulated on the way it has looked after the buildings in its care. However, I cannot give it any preferential treatment.
My Lords, for this reason. There are nine expressions of interest for the whole site and three for part of the site. It would be wrong for me to pre-empt the full and considered advice of the advisory group. However, I note my noble friend's remarks, and I am sure that they will find sympathy throughout the House.
My Lords, will the Minister confirm that the Government regard this group of buildings as one of the noblest and most historic of its kind in this country and possibly in Europe? Will be also confirm the Government's acceptance of the principle that its use must conform to their character and not merely be protected by planning legislation in future years?
My Lords, I am pleased to take this opportunity to emphasise that the Government are firmly committed to finding an occupancy for this magnificent site which is sensitive to its heritage status and which will allow public access.
My Lords, in that case, can the Minister reassure the House that the phrase "unrestricted purposes" on the Order Paper is not a fair reflection of what the Secretary of State has in mind?
My Lords, I am grateful to the noble and gallant Lord, because that is a point that I had not yet picked up. It would be quite wrong to suggest that the options for the use of the Royal Naval College are unrestricted. There are real constraints, such as those of Grade I listed building status and its status as an ancient monument, which will protect the fabric for the future. There will be major planning constraints on any future use. In addition, my right honourable friend, as trustee, would not hesitate to put appropriate constraints—such as the need for public access—in a lease. That, again, is a real restriction on the uses to which the site can he put.
My Lords, will the noble Earl agree that the Secretary of State has not yet placed any restrictions on the intended use beyond those of the law in general which apply to any development anywhere? Will be also agree, on reflection, that he did not answer my first supplementary question, which was not about whether the advisory group was likely to stick to its terms of reference but, on the contrary, whether those terms of reference could be changed and widened?
My Lords, I am sure that it is quite possible for my right honourable friend to request the advisory group to expand its remit. Of course I will ensure that my right honourable friend takes note of the noble Lord's comments. However, it is perfectly correct that to date no constraints have been placed on the advisory group in relation to the expressions of interest. Those expressions of interest are considered by the group pari passu, and we shall have to wait and see what the advice is at the end of the day.
asked Her Majesty's Government:
What is their reaction to recently published evidence of a decline in male fertility.
My Lords, several studies suggest that there may have been a decline in sperm count and sperm quality in men over the past few decades, but there is no evidence as to whether those changes have affected men's fertility.
My Lords, I thank the noble Baroness for that reply. Even allowing for exaggerations in recent reports, if there is a biological change of the type suggested, that raises all kinds of questions, as I am sure the noble Baroness will agree. It has been suggested that excessive amounts of chemicals are being released into the environment. Can the Minister say whether that is likely to have an effect on male fertility? Secondly, it has also been suggested that the large amounts of female hormones which are being released into the water supply have resulted in the creation of what are called hermaphroditic fish. Is that likely to extend to human beings?
My Lords, perhaps I may answer first the question concerning the excessive amounts of chemicals. At the moment we are very unsure about this issue. A great deal of research is being undertaken by the Department of the Environment, the Ministry of Agriculture, Fisheries and Food, the Medical Research Council and the Health and Safety Executive. In addition, a working group is exploring what more should be done in other areas. The answer that I have just given also applies to hormones in the water supply. Research is also going on in that field.
My Lords, I wish to support the Minister totally, on this occasion at least. Is she aware that while there is no evidence of a decline in human male fertility in this country, smoking, drinking, excessive sleep and sitting on leather benches for long periods of time—all of which are prevalent in your Lordships' House—are certainly causes of male infertility?
My Lords, as the noble Lord will be well aware because he is an expert in this field, this issue is partly age-related. I understand that those men horn before the 1960s have a much higher sperm count—and looking around at your Lordships—
My Lords, would not the last supplementary Question have come much better from a hereditary rather than a life Peer?
My Lords, your Lordships should be aware that today is 29th February. Noble Lords should be very careful that on this occasion noble Baronesses do not pick their Peer.
My Lords, is the Minister aware in relation to this subject that the EC is now in the process of trying to dictate what size of condom men in Europe should use? Can she tell us whether that will be advantageous or whether it will exacerbate the situation?
My Lords, we are dealing with the subject of fertility, not infertility.
My Lords, I have no wish to contribute to the levity of this debate, but there is solid medical evidence, of which I am sure the Minister is aware, to indicate that there is an inverse relationship between the temperature of the testes and the level of sperm count and consequent fertility. Because coldness of the testes contributes to an increased sperm count, that has been thought by some to favour the wearing of the kilt.Is it not also the case that there is increasing international evidence to suggest that the chemicals which may give rise to oestrogen-like substances in the environment have been one of the major factors leading to this decline in the human sperm count?
My Lords, there is an opportunity here for somebody to do a Ph.D on the fertility of Scottish Peers in particular.With regard to oestrogen, as I said, a great deal of research is being undertaken. The findings are contradictory and it is clear that this is an area which needs further study.
My Lords, is it not a fact that with the vast numbers of spermatozoa which are released in the orgasm of the normal male, there is no danger whatsoever for the future of the human race? Would it not be better for research to be directed to other more vital areas in this field?
My Lords, I understand that one sperm will suffice, so perhaps quality is more important.For many married couples, this issue is a cause for concern. While I appreciate the noble Lord's view that one should be careful when undertaking research to get value for money, I believe this is an area that ought to be considered, especially since strong environmental factors are concerned.
My Lords, is the Minister aware that there is growing demand for rather expensive therapies which may or not be efficacious in male infertility? Is there a question of these being available on the health service? I understand that the therapy most likely to succeed costs about £ 10,000.
My Lords, I think that the noble Baroness refers to ICSI, which is a very new treatment. It was licensed in 1993. It is only now becoming generally available. However, it is for health authorities to decide on their priorities and whether they feel that that specific treatment should have preference over others.
My Lords, are the Government aware that in 1967 there was evidence of an increase in oestrogen-like substances in rivers, and that the junior Minister responsible for water supplies (it was myself) caused certain primitive research to be done? It yielded the result that there was an increase but that a man would have to drink 80 pints of tap water a day for that increase to have any effect on his fertility. Might it not be worth while to go back over that ground to see whether the figure of 80 pints is now somewhat lower?
My Lords, much research is being undertaken in this field. As regards the amount of water that men should or should not drink, I shall wait for the result of the research.
Civil Aviation (Amendment) Bill Hl
My Lords, I beg to introduce a Bill to amend the Civil Aviation Act 1982 so as to provide for the prosecution of persons committing offences on foreign aircraft while in flight to the United Kingdom; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— ( Lord Brabazon of Tara.)
On Question, Bill read a first time, and to be printed.
Education (Scotland) Bill Hl
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the following Lords be named of the Scottish Select Committee on the Bill—
L. Carmichael of Kelvingrove,
B. Carnegy of Lour,
L. Goold ( Chairman),
That the Minutes of Evidence taken before the Committee shall be printed and, if the Committee think fit, delivered out;
That the Committee have power to adjourn from place to place; and
That the Committee do meet on Thursday, 21st March 1996 at a quarter-past four o'clock in Committee Room 3.—( The Chairman of Committees.)
On Question, Motion agreed to.
Family Law Bill Hl
My Lords, I beg to move that the Bill be now further considered on Report.Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
On Question, Motion agreed to.
Clause 4 [ Marital breakdown]:
moved Amendment No. 10:
Page 2, line 31, after ("statement") insert ("which, where the parties' arrangements for the future may include the division of pension assets under section 25B of the Matrimonial Causes Act 1973 or section 10 of the Family Law (Scotland) Act 1985, shall be made under the Statutory Declarations Act 1835 or under any statutory modification or re-enactment thereof,").
The noble Baroness said: My Lords, in moving Amendment No. 10, I shall speak to consequential amendments, Amendments Nos. 86A and 116A. Both deal with pension and divorce. I am sure that I speak for many noble Lords tonight when I say how sorry we are to be debating this issue in the shadow of a Royal divorce.
The first amendment standing in the names of my noble friend Lord Mishcon, the noble Baroness, Lady O'Cathain, the noble Baroness, Lady Seear, and myself requires a statutory declaration. That overcomes the problem of bogus divorces. The second amendment, in the name of the noble Baroness, Lady O'Cathain, the noble and learned Lord, Lord Simon of Glaisdale, the noble Baroness, Lady Seear, and myself, seeks to establish the principle that courts and couples should have the option of pension splitting on divorce.
Pensions are often the largest single asset in a marriage, especially if the couple have been married a long time. The pension usually belongs to the husband although the amendment is gender neutral. If the pension belonged to the wife, the provision would apply to her. The husband has earned the pension, but so has the wife in supporting him, bringing up their children, perhaps working in a part-time job, and perhaps helping to care for their mutual parents. She, in middle age, faces divorce. If husband and wife cannot share the pension, if it is ring-fenced and cannot be touched, how can you have a fair financial settlement at divorce'? If there is not a fair financial settlement, then it is likely to be the loyal wife and mother who suffers as she faces an old age without a pension of her own and without a share of her husband's pension. She faces poverty in old age.
Pensions professionals and the Law Society have long urged the option of pension splitting, culminating in the 1993 report of the Pensions Management Institute. The Government have stated in the past that such an option was neither wanted nor needed. However, the noble Baroness, Lady Young—I am sure that we all wish to pay a warm tribute to her on this matter—showed in the Pensions Bill last spring that pension splitting was wanted and needed. With support from all round the House, she established the principle of earmarked or deferred maintenance—in other words, that on retirement the former wife should share the pension income.
What the noble Baroness, Lady Young, did was a welcome step. None the less, pension income on retirement remains a lottery on the husband's life because when he dies his pension income dies with him. The former wife is, for example, 78. She receives a phone call one morning that her former husband who divorced her 25 years before has died. Her pension—let us say £ 7,000 a year—stops. At a time when her own financial needs, perhaps for increasing care, may begin to grow, she is reduced almost overnight to income support. If the pension had been split on divorce rather than at the point of retirement, she would receive the same sum, £ 7,000 a year, but it would not depend on his life, nor would it disappear on his death. It would be hers and she could face the rest of her life with dignity and not in fear.
The noble Baroness, Lady Young, established the principle last spring that there was a need for pension sharing. At that time we also proposed pension splitting. However, the argument of the Government against that was essentially financial. At the time the Government produced what I can only describe as banana republic figures which scared us all off. But when we drew out the information by a series of Questions for Written Answer, the huge losses that the Government forecast disappear. As the Government accept in a letter of 27th February, circulated to some noble Lords, including myself, who took part in the debate at Committee stage, the Government accept that one can avoid most of the losses—£ 500 million—by confining pension splitting to funded private occupational schemes. With unfunded pay-as-you-go schemes, whether the Civil Service or SERPS, for example, one does not take the money out. One keeps both fractions in the scheme and there is therefore no loss to the Exchequer. Everyone in industry and the Civil Service agrees that that is sensible. The Government concede that it can be done.
On the other aspect of financial loss, the Government conceded as late as Tuesday, in a Written Answer to a Question by the noble Lord, Lord Elton, that by the year 2020 a possible growth figure for the loss of tax revenue is £ 80 million, to be offset by £ 70 million savings in income support—the table refers to £ 20 million, and £ 50 million in the footnote—and £ 10 million in court costs. Eighty million pounds minus £ 8 million is cost-neutral.
In other words, on the two elements of the Government's figures, the first—keeping both fractions in the same scheme—can overcome the loss to the Government as employer; and on the second, the loss to government as revenue raiser, can be cost-neutral. Despite what the Government may perhaps later argue, pension splitting can cost the taxpayer nothing. The administrative costs will properly fall on couples themselves.
My Lords, I thank the noble Baroness for giving way. I am sure that she does not mean to mislead the House, but unless the answer was changed, in the year 2020, in relation to pension splitting, the tax costs are indeed £ 80 million, but the savings are not £ 70 million but £ 20 million from pension splitting. The other £ 50 million is a saving, so to speak, already in the bag from pension attachment. The noble Baroness cannot count that twice. She might also read out the line of figures for 2037, which is a little different.
My Lords, the figures in the table given yesterday to the noble Lord, Lord Elton, are exactly the same information as was given to myself and those in another place about a month ago. The Government have simply presented them differently. Those people who would save on income support by earmarking will almost certainly go on to pension splitting. In other words, the savings by having a fair division of pensions at divorce will be £ 70 million in income support—as the Government say in the document—set against £ 80 million in loss of tax revenue, together with £ 10 million which is not specified here in court costs. That is cost-neutral.
My Lords, since I asked the question, I think I might refer to the answer. The figure in the last line is not £ 70 million; it is £ 200 million.
My Lords, indeed. I gave the figures for 2020, as stated in the Written Answer. The Government have given figures for 2037. That is some 40 years and some seven governments away. Are we really assuming that tax law, income support and pension law will not have changed?The Government state:
The table shows an indication of the "possible" growth path. In other words, the figures for 2020 are 25 years away. Those show that the proposal can be cost-neutral. Secondly, the Government argue that there are a host of technical issues involved. I am sure that there are. No one ever said that pensions were easy. We all "glaze over" at the word. But in meetings on 2nd February between the Department of Social Security, the Inland Revenue and the Treasury and representatives of the pensions industry some 49 technical issues were raised. Notes from the pensions industry show that in relation to 40 of them a resolution was reached. Only nine required further consultation. The industry and the Government meet each other on 40 out of 49 of those issues. I am sure that the Minister will rehearse some of those 49 points tonight. He may let us off a few. As he rehearses them, I ask noble Lords to remember that the professionals at the sharp end, the Pensions Management Institute, state:"An indication of the possible growth path is shown in the following table"—[Official Report. 27/2/96; col. WA 98.]
Those at the sharp end say that most of the problems have already been thrashed out. Even if the Government repeat the problems tonight, the industry has already thrashed out most of the solutions. Why does the industry want this measure? They want it because it is simpler than the existing arrangement, namely earmarking. There are fewer technical difficulties to this proposal, and that is why they wish it. As the noble Baroness, Lady Young, showed, the need for pension splitting is there. It can be at no cost to the taxpayer over the next 25 years. I ask the House: is 25 years not a reasonable time over which to look forward as to the likely costs? The Government say that their figures beyond that are only "possible" indicative growth figures. Thirdly, the technical issues associated with pension splitting are fewer, according to those at the sharp end, than with earmarking. They believe that it is simpler. In Committee, some 13 speakers were unanimous. The noble and learned Lord the Lord Chancellor agreed to consider the proposal sympathetically. We had real hopes. What we are now being offered is a Green Paper, which means that there can be no possibility of addressing the issue of fairness in pensions at divorce this side of a general election, and probably for several years after a general election. Yet, if ever the time was ripe, it is now. We have a Family Law Bill, Clause 14 of which deals with financial settlement on divorce. If you ring-fence the largest single asset so that it cannot be split at divorce, you cannot have financial fairness at divorce. We have in place a large and highly skilled team of civil servants working on pension issues. To delay a decision for four or five years means that they will be disbanded and their skills will be lost. This is a matter of political will. It is not party political; some of the most effective speeches in Committee came from the Cross-Benches and the Conservative Benches. We ask the House to say today that we believe pension splitting is fair; that those at the sharp end of industry want it now; and women—particularly those loyal wives and mothers who face desertion—desperately need it now; and it can be done without cost to the taxpayer. Consultation can follow on the remaining technical issues. Accepting this amendment today would ensure that it happens and it is not left as an open question. The Government would determine the timetable. The measure would not have to be implemented until the Government were confident that they were ready. But this amendment would ensure that couples could have fairness on divorce. The proposal is decent, just, right and fair. I beg to move."Most of the problems with pension splitting have already been thrashed out in the Pensions Management Institute's original report and in subsequent discussions with officials".
My Lords, in Committee I spoke in support of pension splitting. I need not repeat the detail of the arguments I used. My sole motivation was, and still remains, that if there is complete breakdown in a marriage and that breakdown is irretrievable, justice and fairness should be paramount in any financial settlement that follows.It is only common sense to recognise that if such a devastating, demoralising and painful situation as divorce is the only possible outcome, the law should in all conscience be such that justice and fairness are the guiding principles, and there should be a clean break. In the aftermath of a divorce, who needs further uncertainty and recriminations? I suggest that the current method of dealing with the assets tied up in a pension leads to just that; whereas the amendment before the House would overcome that most undesirable continuing situation. The voice of business is not heard as often in this House as it should be. But business has a deep and continuing interest in the amendment. Business supports this amendment and is quite prepared to shoulder the burden of the one-off administrative cost. Indeed, it would be seen as a short-term cost to guarantee the disappearance of a long-term administrative nightmare. If these amendments were adopted by the Government, or indeed something like them, each partner in a divorce would have control over the asset in so far as each could elect to have the pension either earlier or later, or even at the same time as the erstwhile spouse. That is yet another advantage. It would restore dignity and self-worth to those who are shattered by the experience of divorce. Since Committee stage, there has been much discussion on the issue. Support for the principle of these amendments has been strengthened. But I fear that there is still some residual doubt about the principle within the Executive, particularly within the Treasury. I hope that I am regarded as a fair-minded person. I try to abide by the tenet that one should not make judgments about other people's actions or interpret at a distance the motivation behind such actions. But in this case, I have the strongest suspicion that the Treasury's objection is on cost grounds alone. We have already heard the arguments. Indeed, the noble Baroness, Lady Hollis, has already made the point. But I feel that it is not unfair of me to ask your Lordships to consider that the Treasury has benefited to the sum of around £ 660 million to date from the National Lottery. I can give a breakdown of that sum to my noble friend the Minister. The sums mentioned by the Treasury are nothing by comparison with what can be described truly as a windfall tax. That may not seem relevant to some people. But to many who are in dire distress it seems relevant and I have letters to prove it. We are supposed to listen to people, and some people are in appalling circumstances because of lack of pension splitting. We are told that there can only be pension splitting if it is done by primary legislation. Parliament must do it. These amendments or something like them will ensure that the objective of pension splitting is put on the face of the Bill. I am most grateful for the Government's proposal to publish a consultative paper. I hope that going out to consultation is not a deliberate delaying tactic. I submit that the amendments could be accepted and that consultation paper issued. They are absolutely not in conflict. Following the due process of consultation, the machinery will be in place to effect the principle, provided that this amendment is accepted. Let me ask as an aside whether it is possible for the financial implications to be dealt with in the annual finance Bill, as it certainly seems to me to be an appropriate theatre. The consultation period allows plenty of time to solve all the problems, imagined or real—problems that I may not have thought about and problems that the business community may not have fully grasped. Similarly, during the consultation period, the Government will have much more time to examine the whole issue and perhaps adopt some of the proposals from the professional bodies which have given us so much information over the past couple of months. I submit that this is not an unreasonable proposal. I support the amendment.
My Lords, I want briefly but warmly to support the amendment. I shall not go into the details. That has been done excellently by previous speakers. In many ways this seems to me to be quite a simple issue of justice, although it is easy to find all kinds of complexities in it. It is surely only simple justice that a woman who has been married to a man for 20 or 30 years, has looked after him while he built up his career, not having been able to build up her own career, and has thereby contributed to the salary and consequently the pension that he earns, should have a share of that pension. If she is to have a share of that pension, surely it should be arranged and finished with as an agreement at the time of the divorce.To wait until the ex-husband draws his pension brings into the matter a great deal of uncertainty. It also brings with it the likelihood that, at the time the pension becomes available, the ex-wife will have to deal with her former husband. That is not a satisfactory way to deal with the issue. I do not wish to sound frivolous about what is a very serious subject hut, as my noble friend Lord Meston said, if it is known to the second wife that the first wife is receiving payments direct from her then husband, it will prove enough to drive him into the arms of a third wife. I hope I have understood my noble friend correctly. The couple want a clean break. They want to be rid of all dealings with each other. To have to come hack at the time of the pension to establish and argue about the right to the pension is surely a most unseemly way of dealing with the matter. Of course, we shall be told by the Government—it is the only argument that they can put up against the proposal—that it will cost money. I have not done the arithmetic in the detailed way that it was done by the noble Baroness, Lady Hollis. I am sure that her arithmetic is better than mine. But that is not the point. This is a matter of decency, justice and honour. Is it too much to pay? Whatever the sum, it cannot be very large. Yes, I can tell exactly what the noble Lord opposite will say: that, if he had that money, he could think of many better ways of spending it. Maybe he can do that. But many people believe that an honourable settlement at this point is worth a certain amount of money.
My Lords, I support what the noble Baroness, Lady O'Cathain, said about the business community. I agree with her. I believe that most employers would support the amendment. Sadly, divorce is so prevalent nowadays that employers regularly come up against this matter. They become involved not only as employers but also as contributors to the pension scheme.They would prefer to see a clean break, for two practical reasons. First, it reduces the pressure of a divorce on the employee, pressure which undermines the performance of the employee. Employers have a natural interest in ensuring that performance is not reduced. Secondly, an employer does not want to become involved in any possible future dispute over the pension in the case of earmarking. Pension splitting satisfies both those points. It also satisfies the needs of both parties. There is little problem in calculating the split because the calculation and the administration are very similar to those used when dealing with leavers' benefits. Employers do it all the time. A formula is well established. People come and go in companies all the time. It is relatively easy and it can be taken care of by the company secretary or the firm which manages the company's pension scheme. I do not see any practical reason standing in the way of this proposal. I am sure that most employers would join me in supporting the amendment.
My Lords, my name is to the second amendment in this group but I spoke also to the first amendment in Committee. I need not repeat what I said.This provision is an act of simple justice. It was supported in all parts of the Committee, including two Ministers from the pensions department, one of whom had been head of that department. I said that it is an act of simple justice. In the ordinary way, a wife makes sacrifices during the early years of the marriage, freeing the husband to pursue his economic advancement. In the ordinary way, he shares the emoluments, as he should in justice, with the wife who has enabled him to earn them. But today, in many cases—perhaps the majority of cases—the emolument, or part of it, is postponed until either after the husband has retired or after the husband's death to be paid to his widow. It is utterly unjust to enable the husband to take that pension away from the wife who has enabled him to earn it and bestow it on some other woman who has found greater favour in his eyes. As I say, it is an act of simple justice. Since our debate in Committee, those of us who spoke in favour of the amendment received a three-page letter from the Department of Social Security. Those three pages could have been encapsulated into one sentence: "We prefer that this difficult problem be postponed until after the election and if possible to the Greek calends". Most of us, with shame, have at times signed stonewalling letters. I cannot remember ever having signed or received so palpable an example of stonewalling as the letter we have just received. It would do credit to the great stonewallers of the past like Barlow or J.W.H.T. Douglas. It is not pretended that the amendment will cost any money for a generation. However, it is now claimed that the matter must be postponed until it can be further considered. This matter arose clearly when the Divorce Reform Act 1969 was before Parliament. Nothing was then done about pensions, though the matter was raised. It was canvassed again last Session on the Pensions Bill. Again, nothing was done in the way of setting up a consultation process. Why not? Because on both occasions there was a majority for the Government which could be whipped. This time there is not. A free vote has been promised and therefore there is every incentive to try to push off a decision which justice demands until after the Bill is out of the way, and if possible forever. That brings me to my last point: the free vote. It was promised on any matter of conscience under the Bill. This is pre-eminently a matter of conscience. I trust that there has been no sort of Whip, even unofficially, on the amendment. Indeed, I trust that it has been made plain to every government supporter than he can exercise his conscience with perfect freedom and do what justice demands. I support the amendment.
My Lords, perhaps I can ask a question of those who are promoting the amendment. It is clear that everybody has spoken from the angle of the businessman, which presumably means that everyone is talking about occupational pensions. To split occupational pensions is something with which one has great sympathy and it is relatively simple. But if we are to have justice, it must be justice for all.Those who have personal pensions will be badly affected by the amendment. A young couple who will probably divorce in their 30s may only have started their pension plan a few years earlier. There will be nothing in the plan to split and the wife will receive no future benefit at all. That is a great injustice. There are 3 million personal pensions throughout the country and they too should be considered. For that reason I suggest that we take my noble friend's advice and wait for the Green Paper.
My Lords, I have great respect for my noble and learned friend Lord Simon of Glaisdale and I seldom challenge his judgment on anything. At this stage—I may well be proven wrong—if he believes that the Whips will not be involved in this amendment, I can only say mazeltov to him. The number of people in the building this afternoon at 1.15, in every conceivable eating spot available, amazed me and is a tribute to their concern for social issues.I too received a letter from the noble Lord and was grateful for it. It was a remarkable letter. It raises four pages of extremely serious issues. I read it with growing surprise and consternation. When I received it and read it yesterday morning—this is not intended to be churlish—I suddenly thought: "These are major issues. I am interested in this subject and there is not a cat's chance in hell of doing any research into any of the issues raised". I felt that the Government had made a mistake. They were obviously committing themselves to kicking this issue into touch on the basis of a whole pile of major arguments about which they had never thought before. The picture they give is of a number of serious issues—some more serious than others. One that is raised now and again is of the happily married couple, one of whom, at the conclusion of tonight's debate if we are successful, will go home and say to his spouse, "Fantastic. They have done it. We can split the pension later on. I have seen George and he said that he can get us a quick divorce and we can reduce the marginal tax rate by 10 per cent.". I am sure the eyes of the spouse will light up at the prospect. The fact is that that is a piece of fantasy. There are other areas also to be considered. It is said, for example, that there will be great anger among people who are married when they see those who divorce optimising their tax situation. There are many ways in which married couples can optimise their tax situation. If they have a portfolio of investments, they can optimise their tax situation; if they own a small holiday property which they can let out to rent, they can optimise their tax situation; if they have a small business and one of them (I have heard of MPs who do this) employs his wife as a secretary, they can optimise their tax position.
My Lords, they do.
My Lords, the noble Lord says that they do. That is exactly my point. There is nothing unusual about the situation at all.Something like a dozen areas of concern have been raised which we should consider, including transfer values and cost allocation. All pensions organisations have great experience of providing for situations of frozen pensions. Most pensions provide for widows and when a woman finds herself unfortunately widowed, the company is left to provide administration for her widow's pension. However, there are wider, deeper areas. The cost allocation is raised. Then there is the sheer scale of the legal implications. I am only working on what the letter says; I have not had the chance to ask anybody about it since receiving it. Those implications are far-reaching. As the letter points out, they affect family law, of course; property law; pensions' law, of course; taxation, and problems of Scottish and Irish jurisdiction. Those are weighty issues. The general picture which is painted is of a legislative ship at sea surrounded by obstacles hidden in the water. It has to stop, change course and find a safe haven where advice can be obtained on where to go next. This issue has been debated publicly for years and years. There is not a Member of Parliament who has not received a letter about it. There are few Members of this House who at the time of the last Pensions Bill did not receive letters on the subject. The Law Society, certainly since 1961, has been in favour of this legislation. The pension fund managers are in favour and they certainly know about the subject. They would be grossly professionally negligent if they did not. The actuaries are also in favour. After the previous debate I received letters of complaint from a number of actuaries who thought that I was being unnecessarily flip in suggesting that the noble and learned Lord the Lord Chancellor should cease listening to the actuaries. I wrote back and said that I was not talking about actuaries in general, because actuaries in general are, through their professional organisation, totally in support of the measure. Actuaries are very special people. The actuarial examinations are among the most difficult and the most exhaustive of any professional examinations. Their powers are almost unique in this area. The appointed actuary can shut down the company which employs him. I am sure that the Government took advice from actuaries. I am bound to say that their professional organisation is totally in favour of this measure. One of the ultimate oxymorons is common sense. There ain't a lot of it about. But I do not believe that common sense enables anyone to portray this situation as surrounded by unknown obstacles. It just cannot be so. If the noble Lord says that there are a number of things that are major problems which need to be thought through and considered for a period of time, that must be factual. I should like to know the answer to a simple question. Are the Government at this stage, on the knowledge at their disposal, inclined to be opposed to this measure in principle, or are they, like every other professional group involved in this issue, in a situation where they can accept the principle though, on the other hand, there may be other things with which they have to deal? There are a lot of unknown areas around this issue. One of my greatest worries is that people will exaggerate the benefits which this measure will bring to them. But for some it will bring benefits. What we are faced with is a possibility that the Government are seeking to kick the thing into touch. It will not work because too many people know too much about this subject. It is public knowledge. The Government are entitled to stand up and say, "We do not believe that the economy can face the costs of this"—whatever those costs arc, and those can be argued about. They are entitled to stand up and say, "We reject this. There are other things we want to spend the money on". But they are not entitled to stand up and expect a serious reception to the argument that they did not know what the problems were until 24 or 48 hours ago.
My Lords, many of your Lordships will have received, as I have, letters from elderly married women whose husbands had the anticipation of a substantial pension on retirement and who then go off with a so-called dolly bird and leave them stranded. The Pensions Act made some provision for what might happen when he retired. That, as has been said, is highly speculative. He may die before he reaches his pension age or even when he has his pension. I believe that we have some duty to see what we can do to deal with those problems. Some of the letters I have received have been extremely painful. I feel that I have a responsibility, as we all have, to try to meet the rightful demands of people who would otherwise suffer severely.The problems of splitting pensions are acute. I understand something of the difficulties. The problem of splitting a pension which is funded may not be very severe. I believe that the pensions industry can deal with those. It is possible for the industry to split it up to provide that on the divorce the wife and the husband each have a fund which will provide the pension. Splitting up things like SERPS and unfunded pensions is much more difficult. I make no plea for those in this Bill at the present time. With my noble friend, I do not believe it is essential to deal with the whole lot together. If we could in this Bill enable the courts to make proper provision out of funded pensions we would be going a long way to meet the need. No matter that the more difficult problems of the unfunded pension, SERPS and so on had to be dealt with at a later date, it would give a marker and would certainly help some of the hard cases. I shall hope that my noble friend will be able to give some encouragement here. I shall wait with keenness his reply. I would not accept, as the noble Lord, Lord Marsh, has said, that it is something we can kick into touch until the time comes round when we can look at it again and try to deal with the whole matter. This is an opportunity at any rate to give the courts power in the case and to give them that flexibility to grant some protection for the divorced wife.
My Lords, while there is considerable merit in the proposed amendment, I am not clear on several points. I should be grateful if the noble Baroness, Lady Hollis, could enlighten me further. I shall be brief, although the matters are complex.First, is the proposed percentage of the pension for the partner to be linked to the length of the marriage and the reasons for the divorce? Secondly, what arrangements are envisaged for subsequent marriage partners, which is a very important point? Thirdly, should not part of the pension sum be set aside for minor children at the sad time of the divorce? Finally, when would the recipient receive payment'? If a working partner were 45 or 50 at the time of the divorce and remained in his existing position—an unlikely event—it would be 15 or 20 years before the pension matured. How then would the partner benefit from that source in the interim? Is any differentiation contemplated between contributory and non-contributory pension schemes? Clearly, we all wish to see enacted legislation that is fair and equitable to all parties and avoids creating anomalies such as we have seen in many cases of legislation in recent years—and in this case including a disincentive to marriage itself. I hope that the Government's forthcoming Green Paper will comprehensively address these issues.
My Lords, I rise to make one point and one point only. During the many years of profit to this House that the noble and learned Lord the Lord Chancellor has graced the Woolsack there is only one occasion that I can remember when I detected real embarrassment when he made a point to your Lordships' House. He made it at the Committee stage of this Bill, and it was—this was touched on by the noble Lord, Lord Marsh—that one of the objections to this amendment was that a couple may decide to take advantage of the passing of the amendment by deciding to have a divorce which was a bogus divorce and then plan to remarry. However far-fetched the point may be, when the noble and learned Lord raises it I think we all feel that it must at least he answered and treated with some respect.I ventured on that occasion to rise in your Lordships' House and suggest that the noble and learned Lord might consider that it was an answer to his point if he saw to it, as he has power to do under the Bill, that the statement which originates the whole of the divorce proceedings by a belief that the marriage has irretrievably broken down should be a statutory declaration made under the Act of 1835, where there is a solemn pronouncement—"I conscientiously believe the same to be true"—that the marriage has in his or her belief irretrievably broken down. The noble and learned Lord did me the great courtesy of saying in reply that it was a thought that had occurred to him. Noble Lords will have noted that this amendment contains a provision that, where a pension may be involved, the information that will be given to anybody making that preliminary statement is that his or her statement that the marriage, it is believed, has irretrievably broken down shall be a statement hacked Pry a statutory declaration, which means that, if it is falsely made, perjury will have been committed. Quite frankly, it is my hope that whatever the circumstances, the original statement, because of its solemnity, shall be a statutory declaration. But that is not the amendment that I am pleading for today. It may be that if I hear that it meets with the general approval of those in charge of this Bill I shall take the liberty of moving it at Third Reading. I did want your Lordships to know that in my humble opinion—and it is the only point that I intend to make in this debate—bogus marriage and divorce are firmly dealt with within the wording of the amendment.
My Lords, the noble Lord addresses a point which I wanted to come to early, and he has considerably shortened what I need to say. However, I find it difficult to understand how he is so confident that the question of whether there shall be a split pension will always be clear at the beginning of the process. The statement to which the noble Lord referred comes at the beginning of the divorce process. Where there is a contested divorce, the availability or not of a split is likely to be one of the major bargaining counters. Therefore, it will not be open to the parties. I see that the noble Lord is about to rise. Perhaps I may finish this hit and then the noble Lord will be able to intervene. If it is to be a bargaining counter, it will not be known whether there is to be such a split at the time the statement must be made. The amendment says that where there is to be a split, then the statement shall be made. The noble Lord will explain.
My Lords, the noble Lord, with his usual courtesy, has allowed me to explain and I am grateful to him. The original statement which has to be made by the party or parties seeking a divorce is one which, under Clause 10 of the Bill, will be dealt with by rules. The answer to the noble Lord is that the statement will presumably include the question—if it does not, information will be given, and that has to be sought before the statement is made—"Is there a pension involved in your matrimonial dispute?" Answer: "There is a pension, yes".All I am saying is that where there is a pension—one does not have to go so far as to say whether it is going to be split —the statutory declaration has to be made and we have got rid of the bogus divorce point.
My Lords, I am most grateful to the noble Lord. Perhaps I may pass from the paving amendment to what is normally called the consequential amendment, Amendment No. 116A, which is in the group. It strikes at Clause 60 and waves a magic wand over the principal amendment, Amendment No. 86A, and converts it into something entirely different from any clause in the rest of the Bill.Unlike any other clause, it will have effect in Scotland. That is natural of course since that is where many pension funds are located. But it serves to remind your Lordships of the very great complexity of what is now in these few, simple words proposed. It makes one recall that Scotland has a separate statute book otherwise unaffected by the Bill and at the very least wonder at the effect of the importation of this single provision and whether it may have odd effects on divorces there, which will be unaffected by all the other 60 clauses in the Bill; or will they? The paving amendment, Amendment No. 10, that we are now discussing will extend the effects of Clause 4 to arrangements made under Section 10 of the Family Law (Scotland) Act 1985. Yet even if Amendment No. 1 16A to Clause 60 were to be accepted, Clause 160 would still prevent the operation of Clause 4 in Scotland. So we begin in confusing waters. That reflection in turn prompts another. The principal amendment, Amendment No. 86A, seeks to amend the Matrimonial Causes Act 1973—and raises doubts to which I referred earlier as regards the Family Law (Scotland) Act 1985—to empower the courts in most generally stated ways to distribute pension rights between the employed and the dependent spouse. There is no reference to any other principal or subordinate legislation and I have heard no reference to the host of fiscal provisions within which these schemes operate. The problem of how to treat the tax benefits accruing to a pension in relation to the earning level of the employed spouse when a proportion of the benefit is transferred to a spouse not in employment is not addressed, nor is the court given guidance on the age at which the split section of the benefit shall come into payment. I inquired, and I got a list of the primary legislation that will have to be amended to bring pension splitting into effect; I understand that it is incomplete—yet these are the rocks which lie in the sea which the noble Lord, Lord Marsh, with commendable lightness but not levity, referred to the ship of state as "bobbing" in, as though it were not at risk. It reminds me of the "Sea Empress" which was in very well-charted and very well-known waters but ran aground with disastrous results. The list starts with the Pension Schemes Act 1993, the Pensions Act 1995, the Social Security Contributions and Benefits Act 1992, the Social Security Administration Act 1992, the National Insurance Act 1965—that is the first statute I refer to which was passed before I had my short, short term of office in the post now held by my noble friend Lord Mackay—the Income and Corporation Taxes Act 1988 and the Finance Act 1989. Those Acts would require reviews of some 200 amendments on their own. But that is only the beginning of the list. There is the Pensions (Increase) Act 1971, the Parliamentary and other Pensions Act 1972—very interesting that—the Parliamentary and other Pensions Act 1987, the Lord Chancellor's Pensions Act 1832—he has had rather longer to wait—the Judicial Pensions and Retirement Act 1993. The list goes on for pages. It seems to me that this is a real and not an imaginary difficulty dreamed up by a government trying to kick things into touch. In fact, I believe that we have the wrong metaphor. I do not believe that it is a question of kicking into touch. I should have said at the beginning that I want to see fairness in pension arrangements and I share my noble friend's ambition that such arrangements should be in place—hut it should be done effectively. She who wills the end must will the means. We have discussed the financial means to some extent. I leave it to my noble friend Lord Mackay of Ardbrecknish to deal with what my noble friend said at the beginning. It spoils a fine peroration, but I give way.
My Lords, I take the point quite seriously that the noble Lord makes. But I cannot understand how these problems can appear at this stage in the debate without having been noticed earlier.
My Lords, I was about to come to that point. Of course it is open to the noble Lord, Lord Marsh, and many others, with varying degree of enthusiasm, to embarrass the Government with that question, but we are where we arc. There is that amount of legislation. I have not yet mentioned the wide-spreading intricate matrix of subordinate fiscal legislation among which all this operates.If we arc to put this desideratum—that is what it is, something we all want—into the Bill, we arc left with just two choices. One is to have all these issues addressed, agreed and incorporated into the Bill, and that I honestly think is beyond the power of Parliament between now and Royal Assent. The other is to leave them all unresolved to be resolved, as someone suggested, by the courts. There is a third. It is for the Minister to be left with powers by subordinate legislation to do all that is necessary to make this fit. We have much experience of that. We know all about giving Ministers power to amend primary legislation to make it fit subsequent primary legislation. It is called the Henry VIII clause. Noble Lords have been so exercised about it that your Lordships set up a special committee to prevent it being abused, and I have the honour and duty of serving on that committee. During my life on that committee I have never seen a Henry VIII power so sweeping as this would be for a Minister, or such wide discretion for a court. The unfortunate beneficiaries of your Lordships' intended generosity—if this were to be left to the courts—would never know what they would receive until the case law had developed. Every new departure would be tested by the courts. That is a delay and an expense which your Lordships would not want to wish upon any of your friends. If we are to include the matter in the Bill, we are—not so much in grave danger—certain to get it wrong. We should get it right. If my noble friend the Minister will commit himself to a review in terms from which be cannot resile, and with the intention of legislating as a result, I, for one, would go along my way rejoicing, if necessary into the Not-Content Lobby, because I believe that that is the only way we shall obtain what we want; otherwise we shall get what we do not want, and it will be disaster. I hope the noble Baroness will have that in mind and possibly not press the amendment.
My Lords, for those of your Lordships who are impressed by the practical difficulties and may be tempted by the idea of a Green Paper, perhaps I may reinforce a point made by the noble Lord, Lord Marsh: there have already been numerous reports on this topic over the past 25 years. They culminated in a clear report on pensions and divorce by the Pensions Management Institute in 1993. That was a report produced by a diverse body of experts, including experts from both England and Scotland.My second point is that this is not novel in this country. Pension splitting already operates in other countries and it operates satisfactorily. This is not, in other words, a problem which has just crept up on us requiring, as the noble Lord, Lord Marsh, said, to be kicked into touch. The only substantial argument against pension splitting seems to be fiscal. As far as I can understand, that was demolished comprehensively in Committee by the noble Baroness, Lady Hollis. The only other argument we heard advanced in Committee was that people might somehow be tempted into an artificial divorce to obtain the benefit of lower rates of tax. Perhaps I may remind your Lordships of the 1970s when tax at the higher rate was 90 per cent. One could obtain tax relief at the higher rate on maintenance ordered by a divorce court, and maintenance could be extended to cover private school fees. It was a tax regime which lasted until 1988. If ever there were a time for cynical millionaires to try to get bogus divorces, it was then. As a practitioner at the time, I was pretty irritated to see some of my clients receiving that level of tax relief, but I was never tempted to go through a divorce to get the housekeeping set against tax. In the Pensions Act we have earmarking which is very much half a loaf. It has serious consequences for the clean break principle in divorce. The great advantage of pension splitting is that it will facilitate the clean break which is especially important to avoid the hostility and animosity of divorce cases. Of course the timetabling needs to be looked at, but I suggest that the time has come now to enact this provision. It can come into operation later; otherwise there will not be pension splitting this side of the 21st century. I shall turn briefly to the point made by the noble Lord, Lord Mishcon, about the necessary formality for a divorce statement. I support what he said. There should be some formality in the statement required to initiate a divorce process. Whether it be by statutory declaration, affidavit, or affirmation, there must be some formality.
My Lords, I know that we want to press on with this matter. I do not intend to speak long. I am president of the Married Women's Association. Since I first became associated with that group I have been approached by many women who have suffered desperately from not having the pension split. I am reluctant at any time to vote against the Government, but I feel strongly on this issue. If this matter is divided upon, the principle is so important that I would have to support the amendment.
My Lords, it is important that we get this amendment written into the Bill. It will establish a principle. I say that having heard what the noble Lord, Lord Elton, had to say about the difficulties. If what he was proposing was what happened on the Telecommunications Bill with regard to telephone tapping, that might be something which my noble friend on the Front Bench might consider. What happened was that an amendment to the Telecommunications Bill was tabled to make telephone tapping illegal. It was withdrawn by my noble friend Lord Bruce of Donington on the promise from the Leader of the House that the Government would bring forward their own Bill to deal with telecommunications in the following Session or before. That is what happened.We had an undertaking from the Leader of the House that that would be done. If that is what the noble Lord proposes, I would recommend that my noble friend Lady Hollis give it consideration. But, if that is not forthcoming—I fear that it is not—I would stress that we need to write something into the Bill to establish the principle of pension splitting on divorce. I want to make one thing absolutely clear, because I have been challenged on it. My support for the amendments depends upon the fact that they are gender neutral. I must have an absolute assurance from my noble friend Lady Hollis when she winds up that I have made no mistake about that, because it is important. My support is also based on protecting the child-rearer and home-maker, usually but not always the wife, from being penalised on retirement for having sacrificed a career to cherish and care for the family. I believe that that is an important point. I too have received a letter from the noble Lord, Lord Mackay of Ardbrecknish, which has made pretty heavy reading in the short time available. I am afraid that I cannot comment on it in detail, but there is one sentence. the first line of the fourth paragraph, on which I should like to comment. It states:
"Perhaps our concerns can be illustrated by some examples.
I thank the noble Lord for taking the trouble to write to me. His letter was extremely useful, but I should like to point out that deferred pay is not only for the employee. It is also for the spouse because the spouse will have had to make the sacrifices in the housekeeping for the 6 per cent., 7 per cent., or whatever the reduction in salary arising from the superannuation contributions. So, we must remember that it is not only the employee who is affected. I know that the House wants to get on, so I merely repeat once again that we are concerned about the principle. I believe that unless we are given the assurance on which I opened—I am sure that the noble Lord, Lord Elton, would want the Government to give such an assurance—I hope that the House will vote for the amendment."The first is that a pension is deferred pay for an employee".
My Lords, much has been said already on the subject of pension splitting and in a much more witty and more knowledgable way than I am capable of. I am afraid that I belong to the "glazed eye brigade" to which the noble Baroness, Lady Hollis, referred. However, I hope that I can at least identify injustices where they are to be found—and I believe this area to be one of injustice. The present arrangements can undoubtedly lead to hardship, particularly and usually to ex-wives of a certain age. As has been said, it must be unfair that women who have played a major role in the success of their partner's career should be faced with the possibility of that contribution being to all intents and purposes set aside through his remarriage.I am afraid that it is a fact of life that governments and their advisers will always put up arguments against fundamental changes no matter how reasonable the proposals may be. One of the first knee-jerk reactions—and at first sight an eminently reasonable and democratic one—is to call for a period of consultation, with enough Green Papers to make even an environmentalist twitch nervously. That tactic appeals particularly to the present Government, as we have recently observed, but as I know to my cost in a quite different area from this, periods of discussion do not always take account of the opinions of the majority being consulted. However, on an issue such as this, which commands cross-party support and the total commitment of all the relevant professional bodies, we must go forward to establish the principle in law. Of course, we can have substantive discussions afterwards, and a Green Paper, but let them be set against a background of total commitment to the principle of pension splitting. That can be achieved by supporting the amendment.
My Lords, I sense that there is a need to press on with the debate. I believe that both my noble friend Lady Strange and my noble friend Lord Brentford wish to speak. Perhaps my noble friend Lady Strange could speak first, followed by my noble friend Lord Brentford, and we can then listen to the Minister's reply.
My Lords, I thank my noble friend. Without wishing to embarrass anybody, I should like to support the amendment on the ground of the principle of fairness. Without being a feminist, I believe in fair and equal treatment for men and women. If the wife has been the chief wage-earner and the chief supporter of the pension, it seems unfair that if the husband has been darning the socks and changing the nappies he should be left on the dissolution of the marriage without his share of the pension, and vice versa. Surely, if they can divide the wedding presents, they can divide the pension.
My Lords, I became convinced at Committee stage that it was right, fair and equitable for pension splitting following divorce to be incorporated into the law. I have no problem with that. In Committee I felt that it was right that the Bill should incorporate provisions to effect that. However, the more that I have thought about it since Committee stage and the more that I have talked to different people, the more the problems have mounted. If a divorced couple is to receive benefits which will include tax advantages, is it morally right that that couple should be put in a more favourable tax position than a married couple? I am sure that the pro-family lobby will argue once again that marriage is being penalised.Pension splitting is a major change in the law. It will affect many Pensions Acts and other legislation, as my noble friend Lord Elton summarised. I believe that such changes need to be made in primary legislation and should be carefully drafted. The Government have been hammered time and time again for introducing legislation which has not been carefully thought through and carefully drafted. We need more thoroughness in our legislation, even if that costs time. However long many outside organisations have been considering the matter, it is vital that we take whatever time is needed in order to produce the right legislation. In conclusion, I should be grateful if my noble friend could answer two questions for me. First, when will his department start to prepare the Green Paper? I believe that there is great pressure not only in the House but around the country for this principle to be adopted. That is why I ask when his department will start moving to produce the Green Paper. Secondly, in terms of the time that it will take to implement the pension-splitting legislation, what difference will it make if we pass the amendment now or act in, say, a year's time following the results of the Green Paper?
My Lords, this has been an interesting debate which has been understandably strong on principle and occasionally strong on emotion. I venture to say, as my noble friend Lord Brentford has just pointed out, that it has been a little short on detailed consideration. Unfortunately, it falls to me to bring the debate back to earth with a bump, a bit like the Chinese satellite that we discussed at Question Time the other day, and to look at the legislative, taxation and other issues involved in arriving at a well thought out and properly structured plan to deal with pensions and divorce.I start by acknowledging the problem and the emotional case of the ex-spouse, usually the ex-wife, who is left in old age without the pension which she thought that she would have either as the wife of a retired husband or as his widow. Indeed, at the request of my noble friend Lady Young and with my full support, the House included in last year's Pensions Act a provision stating that pensions should be taken into account by the courts. We made provision for pensions' attachments, so that when a pension comes into payment, part of it can be paid directly to the ex-wife. That is a simpler and, in my view, more attainable method. That remains my position—
My Lords, if the noble Lord will allow me to say so, that works all right so long as there are other means to balance against the loss of pension. The amendment poses the problem of where the pension is virtually the only matrimonial asset.
My Lords, I cannot agree with the noble and learned Lord, Lord Simon of Glaisdale, which is unusual. If the pension is the only asset, the attachment can be made to it. When the pension comes into the payment, the former wife can receive whatever the court has laid down as her share of it. I do not believe that that is the problem made out by the noble and learned Lord.Perhaps I may return to the issue before us. In the light of the debate in Committee and the commitment given by my noble and learned friend the Lord Chancellor to look sympathetically at the issue, I announced in answer to a Parliamentary Question last week that we would be consulting through a Green Paper. My noble friend Lord Brentford asked whether work had been started on that. I can tell him firmly that we have already started work on some of the detailed considerations which must go into that Green Paper. I hope that the work can be completed and the Green Paper produced in the summertime. That will enable all those involved in the issue to work with us in ensuring that we have a properly worked out plan on which we can make a measured and not an emotional judgment. The amendment before us today is a simple one. It expresses the principle but it gives no indication to the courts, or indeed to anyone else, as to how that power is to be realised. I hope that my noble friend Lord Boardman accepts the point that it gives no indication to the courts as to how they can realise their desire to split a pension. This is a wholly incomplete and unworkable way to deal with an extraordinarily complex and sensitive subject, affecting not only those divorcing but also employers, other employees in the pension scheme and the taxpayers. The amendment is silent on the necessary changes in pension, tax and trust legislation. No powers arc given to Ministers and the courts do not have powers to make those changes, either. My noble friend Lady O'Cathain seemed to believe that if the amendment were accepted, I would have all the powers I needed to make the necessary changes. I must tell her that she must read the amendment more carefully because it does not give me those powers. Indeed, the position of those proposing this course of action today would be at least logical if I were being handed a fistful of Henry VIII powers allowing me to amend primary legislation by secondary means. As my noble friend Lord Elton pointed out to the House, there would be a fair list of primary legislation that I would have to amend by secondary means. We have one-and-a-half pages in the department already and we have not yet looked at Scottish provisions. Yet if your Lordships pass this enabling clause today, in logic you ought to be prepared to give me extremely wide-ranging Henry VIII powers if you want your wishes on this matter to be translated into feasible action. I would be surprised if your Lordships would be prepared to do that. You certainly did not do so last year when my four Bills were scrutinised most carefully by the Delegated Powers Scrutiny Committee and by the House for unnecessarily wide secondary powers. I believe that the courts and the pensions industry would want a lot more flesh on this skeleton before it would come into life. Of course, work has been done on this issue by a number of groups. I can single out, for example, the National Association of Pension Funds for special mention. But much of the work has concentrated on the problems of special interest to the group concerned. What is needed is for all the issues to be brought together, looked at, worked upon and considered as a whole picture and not as individual sections. Perhaps I may turn to a few of the many problems, some of which were raised by my noble friend Lord Wolfson, which must be addressed if the issue is to be treated properly and resolved in a serious and responsible manner. The noble and learned Lord, Lord Simon of Glaisdale, said that my letter looked like stonewalling. I must tell him that as my middle name is Jackson perhaps that was not too wide of the mark. Be that as it may, it was not stonewalling but a genuine attempt to lay before noble Lords who took part in Committee the problems which I believe must be resolved. I admired the noble and learned Lord's courage in giving your Lordships an indication of the Whipping position on the House. I must tell him that I am expounding the Government's position on this matter and I expect my noble friends to support the Government. I suspect that the noble Baroness, with the numbers on her side, is expecting her noble friends to support her in the same way. The numbers have declined because several noble Lords have gone for tea, but I have been here before and I know that they will suddenly re-emerge. Perhaps I may tell the noble and learned Lord, Lord Simon of Glaisdale, that there are other parts of the Bill which are matters of conscience but this is not one of them.
My Lords, I thank the Minister for giving way. I and many other noble Lords recall that at the end of the Second Reading debate we were given an assurance that there would be no Whip on any matters of conscience. Why does the Minister now say that he expects his noble friends to be Whipped in favour of the Government's position?
My Lords, I do not believe that this is a matter of conscience, and that is the fact of the matter. In most cases—
My Lords, will the Minister say whether a matter of conscience is to be decided by the Government or by the owners of the conscience?
My Lords, I knew that I should not tangle with the noble and learned Lord. I expect that in all votes the same rule applies on the opposite side of the House. Indeed, I look at the noble Lord, Lord Graham of Edmonton, and I expect that if any of his noble friends feel that they cannot follow his party's guidance on the matter, they will have to make their own decision. I hope that few of my noble friends will decide that they cannot follow the guidance that I am giving on behalf of Her Majesty's Government and follow me into the other Lobby.The noble Lord, Lord Stoddart of Swindon, said the issue was gender-neutral. I hate such silly phrases; hut, yes, I believe that it is gender-neutral. In other words, if the woman had a large pension and she and her husband were divorced, the man would get his share of the pension. Therefore it is, in the noble Lord's words, gender-neutral. In most cases, the argument has been put in terms of the man being a member of the scheme and the former wife wanting to have a share of the pension capital. The man is a member of his employer's scheme, which is set up by the employer as a voluntary arrangement to benefit his employees. As I said in my letter, pension is essentially deferred pay and it is the employment relationship which governs the schemes, related tax reliefs and benefits. Your Lordships can see clearly that divorcing a part of the pension from the employee does not accord well with the basic principles on which schemes, their rules and tax arrangements, are based. If the pension is split, the former wife becomes a scheme member on a basis entirely different from any other scheme members. She has no employment relationship with the employer, yet he suddenly acquires responsibilities for someone in the pension scheme which has no direct relationship with the firm. So what are the obligations to this new but not qualified member of the scheme? What are the obligations of the trustees or the managers, and what rights and responsibilities does she have in relation to other scheme members? Can she vote for member nominated trustees? Can she pay in AVCs? Does she have survivor's and dependant's benefits? How would this new class of member affect the tax approval and the contracted out status of schemes? The amendment also allows for the former wife to transfer her share. But she may not have a suitable vehicle for such a transfer. She may not be in paid employment and may not be able to contribute to a pension scheme. So do we change the tax laws for such cases? That will be a particular issue in the case where the husband has a personal pension. The scheme will have to be wound up, the husband will have to start a new one and the wife will be confronted with what she can do if she is not entitled to start her own scheme. Or, rather, we arc confronted with solving that issue because in all honesty we cannot shuffle our responsibilities on to the wife or the courts. If we decide to allow a non-working divorced wife to pay into a new type of pension scheme with its inherent tax advantages, what do we say to the still married non-working wife who may rightly ask why she cannot have the same choice? Surely we must avoid appearing to treat more favourably those who divorce than those who remain married or arc widowed. I turn to that portion of those pensions represented by SERPS for those not contracted out, and by GMPs and protected rights for all those in occupational or personal pensions contracted out. Take my word for it, SERPS and GMPs are complicated, and splitting them will be even more complicated. They arc based on earnings on which national insurance contributions are paid over one's working life. The national insurance records system used to do this is a huge operation with records for every employee in the country. Splitting SERPS and GMPs will be complex and it will also mean a considerable increase in the administrative burden. We are currently setting out on a significant upgrading of the system to cope with the changes arising from the Pensions Act. Those changes have to be phased in over the next three years, and I must say to your Lordships in the straightest possible terms that it would be the turn of the century before we could contemplate phasing in the additional changes arising from pension splitting. And just to complete the picture on the state pension, the amendment appears to include the state retirement pension, which is already dealt with very fairly for divorced people, and it would be a nonsense if the courts could dictate changes in the payments of these pensions. At the heart of the amendment before us is an attempt to deal with one of the serious difficulties in pension splitting—that arising for unfunded schemes, especially those in the public sector. The schemes like that for the NHS, the teachers and the Civil Service are not funded; they, like the state scheme, work on a pay-as-you-go system. So there is no money in the kitty to draw on for transfers. If transfers out were allowed, the costs would fall directly on the taxpayer and could be up to £5(X) million a year. For unfunded schemes in the private sector, the costs would fall either on the employer or on the other scheme members. The amendment tries to ensure that the ex-wife cannot take a transfer out unless her ex-husband is taking a transfer, which he might do if he is leaving that employment for another. We would thus be treating ex-wives of members of unfunded schemes differently from those of funded schemes. Is that equitable? And some advocates of change see this proposal as only temporary—to get round my road block, so to speak. I do not see any government accepting a change like this which could immediately add half a billion pounds a year to public spending. Lastly, I turn to taxation. Pension splitting would give rise to three areas of extra costs to the Revenue. Some men, having seen their pension provision reduced, will take advantage of AVCs and free-standing AVCs to rebuild with costs to the Revenue. These extra invested funds will grow free of tax. Thirdly, when the pensions come into payment instead of being taxed as one against one allowance, a married couple's allowance, the 20 per cent. band and the 24 per cent. band they will be taxed as two, with two allowances—two 20 per cent. and two 24 per cent. bands. As I indicated in answers to parliamentary Questions, the long-term costs to the revenue are estimated to be in the region of £200 million per year, with only £20 million off-setting savings from those ex-wives no longer needing to claim income support, and, as I said in my intervention, not already covered by pension attachment. Many divorced couples will actually be paying less tax than those still married with the same pension. This would give a tax advantage to those who divorce. I wonder whether that is a message that some of my noble friends wish to give? Now to be fair to those who remain married, still happily the majority, if the same tax treatment were extended to them in order to make the playing field level (as the expression goes) the immediate costs could be of the order of £600 million, rising to £1.3 billion in the longer term. All these issues and more have to be addressed. They cannot be swept aside as of no consequence. It is important to face up to the additional costs to taxpayers, to employers, to pension schemes—and even to the divorcing couple themselves. To add a footnote mentioned by other noble Lords—now I should emphasise that I have no personal interest—I am not certain that either of the amendments achieve the desired aim of introducing pension splitting into Scotland because this Bill does not refer to the position in Scotland. This is an important and far-reaching issue. It deserves proper attention and proper legislation encompassing not just divorce law, but also pensions law and tax law, and probably trust law, inheritance and intestacy law. That is why I propose to your Lordships a Green Paper with proper consultation. As I have said already, my officials and I have started to discuss some of the problems which will need to be aired and some of the alternative solutions which will need to be addressed. As I said at the beginning, I very much hope and expect that that Green Paper can be published in the summer. To accept these amendments would ignore everything which a responsible Government and a responsible legislature cannot ignore. This House prides itself in the care with which it deals with legislation, and the control it exercises over the Executive's powers of secondary legislation. I urge your Lordships not to let your hearts rule your heads, but to exercise sound judgment; reject these amendments; and accept the wiser path which I am laying before you.
My Lords, the Minister has repeated most of the arguments that were made by the noble Earl, Lord Clanwilliam, the noble Lord, Lord Elton, and others. Perhaps your Lordships will forgive me if I concentrate instead on what the Minister said in his remarks.His basic argument is that he fears that this may be unworkable. I merely ask your Lordships to hear in mind that the pension industry, the lawyers, the professionals, those at the sharp end, have already discussed with the department every issue that the Minister has raised this afternoon, and they believe that they see ways forward. They welcome consultation; but, nevertheless, they believe that the amendment is workable and should be supported. They believe that within the framework of the principle, it is possible to deal with the remaining technical difficulties. Secondly, the Minister said that the amendment is technically flawed. I am willing to accept that. On this side of the House, as Opposition Members, we do not have the same resources as the Minister—for example, the 90 civil servants who helped the Minister on the previous Pensions Act. I remind the Minister that when last spring the House accepted the amendments of the noble Baroness, Lady Young, in relation to earmarking, by the time the Bill finally returned here from the other place, the Government had totally redrafted every aspect of it. If the political will exists to secure the amendment, the Government can do so, do so and do so all the time. Thirdly, the Minister went into a series of technical issues. Again, I do not wish to ask your Lordships to sit through a long debate about the minutiae, particularly when so many noble Lords, like the noble Lords, Lord Boardman and Lord Marsh, have much greater expertise in this matter than I do. Nevertheless, the Minister made three broad points which I wish to address. First he said that there is the problem of the ex-wife who has no relationship with the scheme because she has never been an employee. I am advised by the NAPF and the PMI—the pensions people at the sharp end—that she need he in no different position from deferred pensioners or the widow who has never been employed or, indeed, someone who is temporarily unemployed and therefore cannot pay into the scheme. There are already many different categories of attachment to a pension scheme, and that category can be fitted in with the others. Secondly, the Minister said that SERPS and GMPs are difficult and we cannot touch them. I agree; but the Minister is criticising us in relation to something that we did not ask for. Again, as the noble Lord, Lord Boardman, said, this amendment is restricted to occupational funded schemes where there is the largest asset and the greatest injustice occurs. The PMI has advised me this morning that GMPs represent on average about one quarter of the value of occupational pensions. Therefore, compensating adjustments—and I am glad that the Minister reminded me of this—can be made in the rest of the headspace. That is the position as of this morning. Also on technical issues, the Minister said that this could not apply to unfunded schemes without creating a bill of £500 million. Again, we did not ask for that. We accept that for unfunded schemes like SERPS and GMPs both fractions remain within the same scheme and so there is no leakage out and no cost to public funds. Therefore, of the three technical issues that the Government have offered us, the first can be resolved by approximating the position of the widow with that of the widow of the deferred pensioner. The other two technical objections of the Minister, we did not seek to cover. We therefore do not seek to include the categories of pensioner about whom the Minister is concerned. We do not seek to make the best the enemy of the good here: we seek to address where the largest injustice lies. These amendments restrict themselves to occupational funded schemes; and the issue of splitting the pension on divorce is no different at all from when a person moves from Boots to ICI and the transfer value has to be calculated so that he can either take the pension with him or leave it behind. It is exactly the same, and the Minister knows it.
My Lords, will the noble Baroness give way?
My Lords, I am in the hands of the House. On taxation, again we have repeated the argument that we had with the noble Lord, Lord Elton. The Government have not challenged the fact that, on the Treasury's own figures, in the year 2020 the loss to tax revenue of £80 million is precisely offset by the overall savings on income support and court costs. That is 25 years on. I honestly ask your Lordships whether it is reasonable to damn this amendment not by what it may be like in 25 years' time but by what it may be like in 40 years' or 50 years' time, as though the tax law and the benefits law have not changed.The Government said that this amendment would give privilege to divorce over marriage. I do not think any of us believes that this would produce bogus divorces. In any case I have to remind your Lordships that the Government have already accepted that justice. No one is saying that married couples should be treated as though they were not married. Let me remind your Lordships that as regards state old age pensions the husband gets £59 on his stamp. His wife gets a further £35 as his dependant. If they separate—let alone divorce—he still gets £59 on his stamp and she also gets £59 on his stamp. The Government have built into their pension the very principle of pension splitting that they are denying to occupational funded schemes. The Government do that—and they are quite right to do it—because they recognise that after divorce people are poorer and we all have a public policy interest in trying to make sure that people face old age with dignity. Finally, I want to quote a letter from the Mothers' Union. It says that the union expresses,
The Mothers' Union is urging us to accept this principle today. It is saying, "Please do not lose that opportunity". It is fair, it is decent. It need cost the taxpayer nothing at all, but it will enable wives and mothers to face old age with dignity. It is an amendment about justice and about honour and we can make that decision tonight. I hope that your Lordships will support this amendment and I should like to test the opinion of the House."support for the inclusion of pension splitting as part of the divorce settlements in family law. We believe strongly in the uniqueness and importance of marriage as a lifelong commitment and responsibility. Marriage breakdown and divorce must always be a tragic outcome. However, our objectives always include a deep commitment to helping those whose family life has met with adversity. In consequence, the creation of an equitable settlement, that is pension splitting, is a necessary principle in divorce".
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 178; Not-Contents, 150.
Division No. 1
|Acton, L.||Dixon-Smith. L.|
|Addington, L.||Donaldson of Kingsbridge. L.|
|Allenby of Megiddo, V.||Dormand of Easington, L.|
|Archer of Sandwell, L.||Dubs. L.|
|Ashley of Stoke, L.||Eatwell, L.|
|Attlee. E.||Elis-Thomas, L.|
|Bancroft, L.||Falkender, B.|
|Beaumont of Whitley, L.||Falkland, V.|
|Berkeley, L.||Farrington of Ribbleton, B.|
|Birk, B.||Fisher of Rednal, B.|
|Blackstone, B.||Fitt, L.|
|Boardman, L.||Freyberg, L.|
|Borrie, L.||Gainsborough, E.|
|Boyd-Carpenter, L.||Gallacher, L.|
|Brightman, L.||Gardner of Parkes, B.|
|Broadbridge, L.||Geraint L.|
|Bruce of Donington, L.||Gilmour of Craigmillar, L.|
|Butterfield, L.||Gladwin of Clee, L.|
|Callaghan of Cardiff, L.||Graham of Edmonton, L. [Teller.]|
|Carmichael of Kelvingrove, L.||Grey, E.|
|Carter, L.||Griffiths of Fforestfach, L.|
|Castle of Blackburn. B.||Habgood, L.|
|Chandos, V.||Halsbury, E.|
|Chapple, L.||Hamwee, B.|
|Cledwyn of Penrhos, L.||Hanworth, V.|
|Clinton-Davis, L.||Harris of Greenwich. L.|
|Cocks of Hartcliffe, L.||Harrowby, E.|
|Cornwallis, L.||Haskel, L.|
|Craig of Radley, L.||Hayhoe, L.|
|Craigavon, V.||Hayman, B.|
|Cuckney, L.||Hayter, L.|
|Darcy (de Knayth),B.||Healey, L.|
|David, B.||Henderson of Brompton, L.|
|Dean of Beswick, L.||Hilton of Eggardon, B.|
|Dean of Thornton-le-Fylde, B.||Hollick, L.|
|Denman, L.||Hollis of Heigham, B.|
|Derwent, L.||Howell. L.|
|Desai, L.||Hutchinson of Lullington, L.|
|Diamond. L.||Hylton, L.|
|Hylton-Foster, B.||Robertson of Oakridge, L.|
|Iddesleigh, E.||Robson of Kiddington, B.|
|Ilchester, E.||Rochester, L.|
|Irvine of Lairg, L.||Rodgers of Quarry Bank, L.|
|Jakobovits, L.||Roskill, L.|
|Jay of Paddington, B.||Runcie, L.|
|Jenkins of Putney, L.||Runciman of Doxford, V.|
|Judd, L.||Russell, E.|
|Kennet, L.||Ryder of Warsaw, B.|
|Kilbracken, L.||St. Davids, V.|
|Lawrence, L.||Sandwich, E.|
|Lester of Herne Hill, L.||Seear, B.|
|Lichfield, Bp.||Sefton of Garston, L.|
|Lockwood, B.||Serota, B.|
|Longford, E.||Sewel, L.|
|Lovell-Davis, L.||Shannon, E.|
|Macaulay of Bragar, L.||Shepherd, L.|
|McCarthy, L.||Simon, V.|
|McGregor of Durris, L.||Simon of Glaisdale, L.|
|McNair, L.||Smith of Gilmorehill, B.|
|McNally, L.||Stallard, L.|
|Mallalieu, B.||Stedman, B.|
|Mar and Kellie, E.||Stoddart of Swindon, L.|
|Marsh, L.||Strabolgi, L.|
|Mason of Barnsley, L.||Strafford, E.|
|Merlyn-Rees, L.||Strange, B.|
|Meston, L.||Taverne, L.|
|Methuen, L.||Taylor of Blackburn, L.|
|Milne, L.||Tebbit, L.|
|Milner of Leeds. L.||Tenby, V.|
|Mishcon, L.||Torrington, L.|
|Monckton of Brenchley, V.||Thomas of Walliswood, B.|
|Monkswell, L.||Thurlow, L.|
|Montgomery of Alamein, V.||Tope, L.|
|Moran, L.||Turner of Camden, B.|
|Morris of Castle Moms, L.||Walpole, L.|
|Napier and Ettrick, L.||Walton of Detchant, L.|
|Nicol, B.||Warnock, B.|
|Northbourne, L.||Weatherill, L.|
|O'Cathain, B.[Teller.]||Wedderburn of Charlton, L.|
|Oliver of Aylmerton, L.||Whaddon, L.|
|Oxford, Bp.||Wharton, B.|
|Park of Monmouth. B.||White, B.|
|Pearson of Rannoch, L.||Wigoder, L.|
|Pender, L.||Williams of Elvel, L.|
|Peston, L.||Williams of Mostyn, L.|
|Prys-Davies, L.||Wilson of Tillyorn, L.|
|Redesdale, L.||Winston, L.|
|Renwick, L.||Worcester, Bp.|
|Richard, L.||Young, B.|
|Aberdare, L.||Cadman, L.|
|Addison, V.||Campbell of Alloway, L.|
|Ailsa, M.||Campbell of Croy, L.|
|Aldenham, L.||Carnegy of Lour, B.|
|Aldington, L.||Carnock, L.|
|Ampthill, L.||Chalker of Wallasey, B.|
|Archer of Weston-Super-Mare, L.||Chelmsford, V.|
|Astor of Hever, L.||Chesham, L. [Teller.]|
|Barber, L.||Clanwilliam, E.|
|Belhaven and Stenton, L.||Clark of Kempston, L.|
|Bethell, L.||Clifford of Chudleigh, L.|
|Birdwood, L.||Cockfield, L.|
|Blake, L.||Coleraine, L.|
|Btaker, L.||Coleridge, L.|
|Blatch, B.||Colwyn, L.|
|Bowness, L.||Courtown, E.|
|Brabazon of Tara, L.||Cranborne, V. [Lord Privy Seal.]|
|Braine of Wheatley, L.||Crickhowell, L.|
|Brentford, V.||Cross, V.|
|Brougham and Vaux, L.||Cumberlege, B.|
|Burnham. L.||Darnley, E.|
|Butterworth, L.||Daventry, V.|
|De Freyne, L.||Mackay of Clashfem, L. [Lord Chancellor.]|
|De L'Isle, V.|
|Denham, L.||Mackay of Drumadoon, L.|
|Denton of Wakefield, B.||Macleod of Borve, B.|
|Eden of Winton, L.||Mancroft, L.|
|Ellenborough, L.||Merrivale, L.|
|Elliott of Morpeth, L.||Mersey, V.|
|Elton, L.||Miller of Hendon, B.|
|Erne, E.||Milverton, L.|
|Exmouth, V.||Monk Bretton, L.|
|Faithfull, B.||Montrose, D.|
|Feldman, L.||Mountevans, L.|
|Ferrers, E.||Mowbray and Stourton, L.|
|Finsberg, L.||Munster, E.|
|Fraser of Carmyllie, L.||Murton of Lindisfarne, L.|
|Gainford, L.||Nelson, E.|
|Geddes, L.||Newall, L.|
|Gisborough, L.||Norfolk, D.|
|Glenarthur, L.||Northesk, E.|
|Goschen, V.||Orkney, E.|
|Gowrie, E.||Orr-Ewing. L.|
|Gray of Contin, L.||Oxfuird, V.|
|Hailsham of Saint Marylebone, L.||Perth, E.|
|Hambro, L.||Pike, B.|
|Harding of Petherton, L.||Plummer of St. Marylebone, L.|
|Hardwicke, E.||Prentice, L.|
|Harlech, L.||Pym, L.|
|Harmar-Nicholls, L.||Quinton, L.|
|Hamsworth. L.||Rankeillour, L.|
|Harris of High Cross. L.||Rawlings, B.|
|Harris of Peckham, L.||Rennell, L.|
|Harvington, L.||Renton, L.|
|Henley, L.||Saltoun of Abernethy, Ly.|
|Holderness. L.||Sandford, L.|
|Hooper, B.||Shaw of Northstead, L.|
|Howe, E.||Strathclyde, L. [Teller.]|
|Inchcape, E.||Sudeley, L.|
|Inglewood, L.||Suffield, L.|
|Johnston of Rockport, L.||Swansea, L.|
|Kenilworth, L.||Swinfen, L.|
|Kenyon, L.||Teviot, L.|
|Killearn, L.||Thomas of Gwydir, L.|
|Kimball, L.||Torrington, V.|
|Kingsland, L.||Trefgarne, L.|
|Kinnoull, E.||Trumpington, B.|
|Lauderdale, E.||Tugendhat, L.|
|Lindsay, E.||Ullswater, V.|
|Lindsey and Abingdon, E.||Vivian, L.|
|Long, V.||Wakeham, L.|
|Lucas, L.||Westbury, L.|
|Lyell, L.||Wilcox, B.|
|McColl of Dulwich, L.||Wyatt of Weeford, L.|
|Mackay of Ardbrecknish, L.||Yarborough, E.|
Resolved in the affirmative, and amendment agreed to accordingly.
moved Amendment No. 11:
Page 2, line 33, at end insert—
("() in the case of a statement made by only one of the parties to the marriage, the requirements of subsection (1A) below are met:").
The noble Baroness said: My Lords, to me, and, I think, to many others like myself, this is one of the most important issues raised in Part I of the Bill for it introduces no-fault divorce and creates a new world of divorce on demand.
I should like to start by giving the apologies to the House of the right reverend Prelate the Bishop of Chester. I greatly regret—as I am sure all of us do—
that the right reverend Prelate is unable to be here, but be has sent me a copy of the speech that he would have made had he been able to attend and has asked me to quote from it. I should like to begin by reading two short paragraphs from that speech. The right reverend Prelate has written:
"How can it be just when two people have publicly and solemnly entered into marriage vows—with contractual responsibilities—for one party simply to decide to go off with another person. We hear such people say of the person with whom they are departing, 'I love him/I love her' as if that excuses the requirements of love, commitment, care, concern and responsibility for the partner and family to be so suddenly dumped.
"It wreaks of the old 'I divorce you' spoken three times which our Lord so strongly condemned. It reflects the growing self-first disease which is debasing our society. Emptying responsibility from any real meaning in the marriage contract devalues not only marriage but the standards of public and private life".
I turn to the particulars of the amendment. I believe it is quite clear that the amendment would reintroduce into the Bill the grounds for fault-based divorce taken directly from the 1969 Act. We are all, therefore, familiar with them and I shall not repeat arguments or go over familiar ground again. This afternoon, I should like to make one general point and then bring forward three pieces of evidence on the subject which have, at any rate, been brought vividly to my attention since we discussed the matter in Committee.
First, there is the general point, and I make no apology for repeating the argument. Law influences behaviour and it sends out a very clear message. There would be no point in legislating at all if law did not influence behaviour and, indeed, I believe that my noble and learned friend the Lord Chancellor expects the Bill to influence behaviour. However, this is not an academic argument. We know from recent experience in the fields of gender, of race and of disability where the law has made discrimination a fault— and it is—that it has not only influenced behaviour; it has also profoundly influenced the culture of our time.
The Bill, whether amended or not, will influence behaviour. It will send out a message and it will influence the cultural climate of our society. The message of no fault is clear. It is that breaking marriage vows, breaking a civil contract, does not matter. It undermines individual responsibility. It is an attack on decent behaviour and fidelity. It violates common sense and creates injustice for anyone who believes in guilt and innocence. I believe that it undermines the whole legal framework of marriage and makes marriage less than buying a television licence, or making a tenancy agreement. In the case of a television, if it is broken, there is a fault and that represents the breaking of a contract.
As I have said before, that is the message that is going out to young people in particular. The message is going out that it does not matter if, having made a promise, one does not keep it. Yet all of us who are parents can hear ourselves saying to our children, "If you make a promise, you should keep it. If you think you cannot keep it, you should not make the promise". As regards the most important decision we ever make in the course of our lives—that is, the decision to get married—it seems to me completely contradictory that breaking that promise should now carry no fault at all.
I have received three pieces of information since the Committee stage. First of all, we now know that the department of the noble and learned Lord the Lord Chancellor commissioned a MORI poll as part of the consultative exercise on the White Paper. That poll shows that 60 per cent. of the respondents reject the concept of divorce on demand, which this Bill introduces. What conclusions do we draw from that result? Whatever may be the result of your Lordships' deliberations this evening, the proverbial man or woman on the Clapham omnibus does not believe in no fault divorce. I believe they take that view because it is a matter of common sense and common experience. They should be listened to.
The second piece of information I have received concerns the results of a review undertaken by the Scottish Law Commission. My honourable friend Lord James Douglas-Hamilton was in correspondence with a Mr. Colchester. On 9th February this year a letter was sent to Mr. Colchester which stated,
"The Scottish Law Commission reported on the grounds of divorce in Scotland in 1989 … and did not recommend the abolition of fault as ground for divorce".
What are we poor politicians to do when one Law Commission recommends the abolition of fault and another Law Commission does not'? We have two groups of experts giving us completely contradictory advice. I am second to none in my admiration for lawyers hut, as we all know, the truth of the matter is that one can always find a lawyer to support any point of view that one cares to put forward. They do it well and cleverly, and the more one pays them, the better they do it. We all know that. However, those of us in public life have to make a judgment about these matters. I recall that when I was a Minister contradictory pieces of advice were put before me, not from within the same department but from people outside. At the end of the day one has to weigh the evidence and make a decision. I suggest to your Lordships that legal advice at least is completely divided on this subject.
Thirdly, we now have considerable evidence from America on this matter. My noble friend Lady Elles referred to this matter when we were discussing children. We now know that some American states have had no fault divorce since 1953—that is a long time—and others, notably California, have had no fault divorce since 1970. They have had lengthy experience of no fault divorce. In every single American state which has this measure the evidence is overwhelming that once no fault divorce is introduced, divorce increases, on average by 26 per cent. How ironic that at the very moment that we arc introducing no fault divorce in this Bill, there arc Bills pending in the states of Alabama, Idaho, Iowa, Michigan, Minnesota and Oklahoma to restore fault to divorce law because of their extensive experience of the disastrous effects of no fault divorce.
We also know of the experience in Australia where the introduction of no fault divorce has resulted in a doubling of the numbers of divorces. One should seriously consider that experience. Why should we imagine that somehow what will happen in this country will be quite unlike what has already happened in the United States—which it now bitterly regrets and is trying to change—and what is currently happening in Australia? This evidence must be taken seriously. If time would allow, I would give far more detail of what I have managed to find out.
Finally, I wish to discuss the arguments which my noble and learned friend the Lord Chancellor has used with great eloquence when he has spoken on this matter on a number of occasions. He has told the House that the concept of fault has enabled the so-called "quickie" divorce to take place. Couples use the concept of fault to obtain a quick divorce. But the fact of the matter is that the quickie divorce only became possible by the accelerated procedure which was introduced by statutory instrument in 1977. It was not part of the 1969 Act. It would be relatively easy—if the problem is speed of divorce—to repeal the statutory instrument without repealing the fault provisions. That, of course, is what my amendment is designed to do. As regards the speed of divorce, it is not the concept of fault that causes that but rather the legal procedures which enable people to obtain a divorce by post. The legal procedures have brought that about in a way which I do not believe Parliament has recognised, or ever wanted to see.
This amendment is quite straightforward. It retains the fault element in the present law. It must be read in conjunction with other amendments which I and my colleagues from all parts of the House have tabled in this Bill.
My Lords, I speak also to Amendments Nos. 12 and 13. We are not in favour of a quickie divorce. The amendment does not suggest that. Indeed, were it to be incorporated into the Bill, the one-year period would still remain, and therefore the question of the quickie divorce would not arise. Like all the amendments which we have tabled, this amendment is intended to buttress marriage. It is with dismay that I feel that I have to raise this point in your Lordships' House. The amendment is intended to buttress marriage by keeping, and not undermining, something which I regard as extremely important; namely, the moral basis of the law.I believe that the concept of no fault divorce sends out a bad signal to the young. It is my personal belief—strengthened by literally hundreds of letters and phone calls I have received—that there are many people today who arc looking for ideals. We know about ideals. Speaking for myself, I have them but I fail to live up to them. We all do that. However, not to have an ideal at all means that there is no light on the hill; there is nothing to look up to; and we are taking a completely pragmatic approach to difficulties. I, for one, am not prepared to settle for what I regard as very much a second best option. I hope, therefore, that the House will feel able to support me in what I regard as one of the most important issues arising from this Bill. I beg to move.
My Lords, in supporting the amendments I should like to express my appreciation of the part played by the noble Baroness, Lady Young, in relation to the Bill. Her commitment throughout to stable marriage has been a wonderful beacon for us to follow. Her leadership during the passage of the Bill so far has been superb. She has spent a great deal of time on it, and I should like to thank her for that leadership.I have said before, and I repeat, that no-fault divorce is the wrong message to send. There is no question in my mind that it will undermine marriage. It undermines the marriage contract and will encourage cheating, disloyalty and had behaviour in marriage. There is no doubt about that. I feel quite sure that noble Lords will understand that. Furthermore, the institution of marriage itself will be devalued. It will become meaningless, because there will be no responsibility attached to it. Under this Bill that marriage can be terminated by one party with no reason being given and with no sanction for breaking the marriage contract. No-fault divorce is hound to increase the divorce rate. We arc sliding towards disaster, as we have done so many times with other Bills. We do not seem to understand exactly what will be the result of what is proposed in this Bill. In this country we have a divorce rate which is already the highest in Europe. We were told that the 1969 Act would lead to a slowing down in divorce. Instead, it led to a galloping divorce rate. I fear that this Bill will exacerbate that position further. The noble Baroness, Lady Young, mentioned the position in the United States, where they abolished no-fault divorce. Apparently, in 1969 there was a Happy Divorce Movement. Whoever could have believed that divorce was ever happy? In 1969 that Happy Divorce Movement in California claimed that no-fault divorce would save marriages, exactly as is being claimed now. Instead, as the noble Baroness pointed out, in the United States there is divorce on demand. That has particularly hurt the interests of women, particularly those who gave priority to a home-making and child-rearing role and to the children themselves. As the noble Baroness also pointed out—hut it hears repeating—the United States is now reversing no-fault divorce because it has been a social disaster. Having experienced it for a period of 30 years the Americans arc moving in the opposite direction from ourselves. As we have heard, nine states are already legislating or proposing legislation to bring hack fault. It is crazy that at a time when the United States, which has experienced no-fault divorce, is going hack to the principle of fault we should now embark on an experiment which has failed there. It is absurd. I was a great admirer of Ancurin Bevan. He had many good and apt phrases. One was that you do not have to look into the crystal ball when you can read the open hook. The hook is there for us to read—in the experience of the United States and Australia. I hope that this House will heed the message from the United States that no-fault divorce has failed. The Americans want to go backwards. We are told we must go forwards to no-fault divorce. Let us not go forward, those of us who are in favour of marriage. I appeal to my noble friends, because this is such an important issue. It touches on so many social issues as well as on personal relationships and marriage itself. I understand from a reading of the press that my noble friends on the Front Bench made a pact with the Government to help push the Bill through. I hope that that is not the case. I believe that it is a mistaken policy. I remind my noble friends that they gave the same green light to the Child Support Bill, which some of us spent day after day, night after night, opposing in this House because we knew that it was not the right Bill for the circumstances which were supposed to be resolved by the Bill. The noble Earl, Lord Russell, was one of those who, in the watches of the night, tried to warn the Government that that was yet another poll tax disaster. And so it proved.
My Lords, I am most grateful to the noble Lord for those remarks. However, I speak and vote for what I believe in.
My Lords, I take this opportunity to rise and say that there is no foundation whatever in the insinuation made by my noble friend. The fact that the allegations appeared in the press may have given some credence to them. He said that he understood that a pact had been reached between the Government and the Opposition in order to get the Bill through. That is not the case.
My Lords, I understand that on this amendment there is a free vote on the basis of conscience.
My Lords, I thank my noble friend Lord Graham for that assurance. I am sincere about that. I am very glad that no pact has been agreed between the Front Benches on this issue and that there will be a free vote on both sides of the House. I am most obliged for that.Therefore, in conclusion I hope that noble Lords will vote according to their consciences. I believe that if they do so, the amendment will be passed.
My Lords, the purpose of the amendments is to introduce fault into the Bill, as my noble friend Lady Young argued so cogently. The amendments would ensure that one could not get divorced without fault—or without reason, as I prefer to call it. "No reason" seems to be more explicit and accurate than the "no-fault" label that we seem to be using.Thus the amendments would ensure that one could not get divorced without reason. As marriage involves the most important and solemn contract a man or woman ever enters into, does it not seem surprising that it can be abrogated for no reason? As the Bill stands, unilateral divorce on demand is available after one year, and the innocent party has no protection whatsoever, which can only lead to more injustice in divorce settlements. Notions of right or wrong are already rarely considered where a court decides the division of property and the custody, or residence (as it is now called), of the children. Abolishing fault or reason simply affirms that practice and denies marital responsibility. No fault, or no reason, divorce sends out a series of signals; namely, that marriage is only a temporary relationship and that fidelity in marriage is of no consequence. It signals that adultery does not matter; and I remind the House that that is the only scriptural reason for divorce. It signals that behaviour does not matter. It signals that desertion does not matter. In short, no one is responsible and no one is accountable. The noble and learned Lord on the Woolsack reminded us at Second Reading that marriage is a divine institution, but Christian ethos and doctrine teach us that we arc responsible for our behaviour and we are accountable for our actions both to our creator and to our fellow human beings. These are reasonable and just amendments, and I commend them to the House.
My Lords, I entirely sympathise with those who have spoken hitherto about their desire to stem the tide of divorce. I cannot imagine that there is anyone in this House who does not have that aim. I also accept that there is an clement of injustice in someone being divorced against their will; and I take that as the main point underlying the amendment.However, I firmly believe that if the amendment were passed, it would create equally great injustices and cannot achieve its main aim; namely, of decreasing the number of divorces. But because the issues raised by it are fundamental to the Bill, I hope that I may be allowed to take the discussion hack a little to first principles. I speak as an individual, although I speak from the position that was very firmly and fully agreed by the Church of England. Although the noble Baroness in her opening speech quoted the right reverend Prelate the Bishop of Chester, he was speaking as an individual; he was not speaking for the Church of England. I much regret having missed the Committee stage when 1 was convalescing from an operation. However, during my convalescence I read the whole account of the Committee stage and was much revived by it. I was impressed by the depth and quality of the discussion in your Lordships' House. But I noted that throughout that immensely long discussion there was scarcely any mention of why marriages break down. There was the frequently expressed anxiety that any change would simply increase the divorce rate. That point has been made very firmly by two speakers this afternoon. It is perfectly true that any change in the divorce law may release a backlog of those who have not been eligible for divorce because of the technicalities of the existing law. But if one looks at the underlying graph of the rise in the number of divorces, it is difficult to tell where specific legislation was passed because the curve is a smooth one. It is quite clear that the rise in divorce has been due more to social and cultural factors than to particular pieces of legislation. There was a high rate of divorce after both world wars for the obvious reasons that many people at those stages entered into unwise and hurried marriages. The start of the present steep rise in numbers began before the 1969 Act and continued smoothly up through it. There was a blip upwards for a short lime at that point because 40 per cent. of the new divorces in the years immediately following the 1969 Act were those who had been separated for five years or more, with 24 per cent. being those who had been separated for only two years. The rise after the 1937 Act was largely among those whose marriages were long standing. That is because at that stage the new cause of desertion came in, and one was dealing with couples who were separated anyway. The separation was now legalised through divorce. I was reading some statistics this morning of the effect of no-fault divorce law in Australia, New Zealand and America. I do not recognise what has been said in the debate so far from what I read this morning. I know that one can prove anything from statistics—and clearly people are trying to prove anything from statistics. However, from what I read—and those involved spoke from positions of responsibility and knowledge in those countries—although the introduction of no-fault divorce law had created a blip, the numbers have since fallen. Since the introduction of the new law, the divorce rates have remained steady and in some cases were falling. I would wish to know what had been happening in those states in the USA to which the noble Lord, Lord Stoddart, referred. They may have a quite different form of divorce. They may have a year's gap or mediation. If we are going to argue from statistics, we need to know a good deal more about them. Why has there been this underlying rise? I wish to suggest three perfectly familiar reasons. One is the increasing financial independence of women. That first became obvious after the 1923 Act when the proportion of divorces initiated by women rose to some 50 per cent. or 60 per cent. That high rate of women petitioners has continued to this day. The fact of independence makes the thought of divorce easier. It also diminishes the scope for passing restrictive legislation. If we insist on legislation which requires couples to stay together for, say, a minimum of five years, what will happen is that they will separate anyway. The vast majority of those divorces are through desertion. Couples have separated and consider divorce after the fact of separation. But if they arc simply kept waiting for five years without the benefit of the kind of help which this Bill could bring them, then none of the issues will be resolved. The amendment would not stop that desertion. It would not stop couples separating. But it could encourage a long period of conflict, frustration and recrimination. It could encourage vindictiveness in those who felt that they had been wronged and were jolly well going to punish those who had deserted them. A second underlying factor for the rise in divorce has been the massive cultural change in our society during this century. I shall refer to just one aspect, which I call the culture of immediacy. I refer to the shrinkage of space and time: what people want they want, immediately. We are all under pressure to make quick decisions. We know what is happening now, and in any part of the world; it is immediately in front of us. We are constantly oppressed by the importance of the present moment, the immediate desire, the ephemeral experience. That is not totally new. Carpe them—seize the moment—goes hack a long time. But what our culture has given us is fresh opportunities for seizing that moment and gratifying that desire. The moment seems to be everything. Coupled with that are high expectations about personal gratification. We are developing a throw-away society in which people all too easily throw away ideas, values, responsibilities and commitments—and in which they throw away people. We are, alas, in a period of religious decline, when increasing religious burdens are placed on religion substitutes, not least on marriage, and the kind of intense personal relationships that popular culture would have us believe go with marriage and the emotional satisfactions that marriage should bring. Many marriages are simply not able to carry the emotional burden placed upon them. How do we counter those pressures? Surely the Bill strikes at the right point by giving legal significance to the passage of time. It says, "Slow down. What is wrong is precisely that you do want everything immediately. Time itself is important". And time is important not just for what can be done in it—reflection, negotiation, mediation and all those things, although they are important. Time is important also as a public assertion that marriages arc not easily undone. I am afraid that those who talk about this as though anyone could just walk into a shop and get a divorce immediately misrepresent the whole basis of the Bill, which was properly described by the Law Commission as "a process in time". To take time over something is to take a measure of responsibility. I liked the graffiti which said: "Time is God's way of keeping things from happening all at once". In a society that wants things all at once, to say to people that they can divorce only through time seems exactly right. That is why, in relation to later amendments, I want to resist the notion of a shorter time for couples without children. That would undermine the main principle; namely, that the undoing of marriage itself, quite apart from children—although children are vitally important—is a serious business which takes time and reflection and requires the acceptance of responsibility for what is done. The hardship bar is an important safeguard to try to ensure that time is used significantly. In particular, as I said at Second Reading, it provides an opportunity for couples to come to terms with fault where there has been clear injustice. It allows fault to take a proper place in the terms of any settlement. But fault is also something with which a couple must come to terms between themselves. It is not so much a question of society at large pronouncing judgment on a couple, hut of a couple coming to terms with what they have done to each other and what they might do to their children. That is precisely what can happen in mediation. Indeed, one intention in the mediation process is to give a controlled opportunity by which people can express their feelings about each other outside the context of solicitors' letters and court appearances, outside a judgmental, external context, by which to face each other, and so reach more considered decisions. It is far better that couples should be offered a context in which they can blame each other in the presence of someone who can help them to move beyond that than that they are locked into a period of five years of conflict and recrimination. The Bill gives a couple the gift of time, and the help to use it. It gives them an opportunity to relate outside the pressures of having to maintain a marriage or prove that it has failed. It does not impose a single solution on different individuals, but enables them to discover the best solution for themselves in an unforced relationship. I cannot go along with those who dismiss that as an un-Christian betrayal of the ideals of marriage. It seems to me to express Christian ideals very precisely and properly. I am conscious that I have taken up a lot of your Lordships' time. Very briefly, there is the issue of "divorce-mindedness". It is true that familiarity breeds acceptability. Divorce breeds divorce. Therefore in a society where there is a lot of divorce, one would expect a kind of exponential growth. All that is fed by the media and by soaps in the media. Will it be fed by the law? What is vital is the way in which this Bill is presented or misrepresented. We are right to worry about how the Bill is perceived, and we need to be careful in our language when we describe it. The way in which it is handled by the courts when it comes into law will be crucial to public perceptions of it. I suggest that a few well-publicised applications of the hardship bar could work wonders on subsequent MORI polls. The length of the process is also significant. I vigorously oppose any period of less than a year. I am sure that five years, as proposed in this amendment for some, is far too long. I hope therefore that the House will firmly reject these amendments.
My Lords, I am very glad that my noble friend Lord Ashbourne used the word "reason" in relation to divorce. The word "fault" has become an emotional buzzword used, sadly, almost invariably to describe what is envisaged in the Bill and this amendment. There is always fault when a marriage fails. When a couple come down the aisle, having taken their vows one to the other, they will almost invariably be happy and looking forward to living together and making a success of their marriage. If that marriage fails there is fault on the part of one or the other, or both. It is always there. Therefore, to use the word "fault" in the context in which we use it today is entirely wrong. Within this House and so frequently within the media, it merely misleads.The Bill does not use the word, and there are a number of reasons why this amendment should be rejected. Is it better to be married unhappily or divorce amicably after 12 months—particularly when there are children whose lives will be affected by the squabbling and disagreements between their parents'? The noble Lord, Lord Stoddart, used the phrase, "happy divorce". It is indeed a grotesque concept. But is it not better to have a happy divorce than to have an unhappy marriage? This is not a no fault Bill. The Bill allows, and only allows, a couple to get divorced for what is described as—I am afraid I must use the phrase myself—no fault. But the guilty party, if guilty party there is (I am still using these wrong words) will suffer as a result of the property settlement that will take place under the Matrimonial Causes Act and to which reference will be made in the courts if the matter has to go to them for settlement. The party who has misbehaved—if that is the word—will come off the worse of the two. But in this amendment, most importantly, there is a strong inducement to behave badly. If one is good one has to wait five years; if one misbehaves, one can get out of the marriage within a year. That looks to me like a return to the bad old days when there was the arranged adultery. The respondent was placed in a bedroom with a tart; from stories that I have heard no misbehaviour ever took place, but the plaintiff's detectives would hurst in and find them in bed together and give evidence that adultery had taken place—or at least appeared to have taken place. Surely that cannot be what the proposers of the amendment wish. However, it looks to me as though that will happen if their amendment is accepted. Let us he realistic.
My Lords, perhaps my noble friend will give way. I think that he makes the mistake of assuming that divorce by consent—that is to say, the kind of arrangement that applied with "Brighton divorces" in the past—is in any way excluded by these amendments. The amendments leave entirely in place all the provisions of the Bill which allow parties to agree their own future and arrange their own divorces.
My Lords, I thank my noble friend for that comment. The fact remains that adultery is one of the main causes given whereby one may obtain a divorce within a year under this amendment. I may slightly have misplaced what my noble friend rightly calls the "Brighton divorces", but I do not believe that that changes the basis of my argument.
My Lords, may I ask the noble Lord whether he has seen a later amendment which would preclude any divorce within one year?
I have, my Lords, but we arc not yet dealing with that amendment. I wish to be realistic. All these provisions—the Bill and the amendment—are written down coldly on a piece of paper. I believe that most noble Lords arc happily married. But if their marriage has been a failure, they know of the personal distress which they and their former wife or husband have suffered. They know that it is not a simple matter of right or wrong and of dealing with that failure through the solicitor or through the courts. It causes immense personal distress. In those circumstances, surely it is better to get rid of the marriage, within reason as quickly as possible—not, I agree, within less than a year but within reason. Divorce, being as we know, in a way, a licence to remarry, the two people concerned may remarry if they wish; hut, in any case, they and their children are separated from the unhappiness of an unhappy couple living together.
My Lords, we have come to what is perhaps the main plank in the Bill. But, as I see it, it is a plank riddled with dry rot. Certainly, the Bill, as drafted at the moment and as it is understood outside this House, will provide no-fault divorce on demand after one year's notice with no requirement to give any reason at all, not even that you do not like the way your spouse makes the coffee. There does not have to be any reason given at all.It seems to me that that message, as the noble Lord, Lord Stoddart, said, given to people in the country as a whole, is deplorable. Inevitably, providing for that kind of divorce devalues marriage and makes it, as the noble Baroness, Lady Young, said, less in the way of a contract than something like a car hire agreement. At the moment, faced with the present situation in this country, with so many of our great institutions crumbling and all kinds of enormous social problems, with bands of people, mostly the result of broken marriages, roaming the streets and committing all sorts of terrible crimes, it seems to me entirely wrong that we should bring in such a provision, weakening marriage. As I said at Second Reading, I have the greatest difficulty in understanding why the Conservative Party, with all its traditions, should do so. It seems extraordinary. I strongly support everything that the noble Baroness, Lady Young, said and I support the amendment. Perhaps I may make one other point. In his amendment to Schedule 8, Amendment No. 137 (on page 24 of the Marshalled List), the noble and learned Lord the Lord Chancellor provides that:
That seems to me to be an immensely welcome amendment. When we come to deal with it, I personally shall want to support it very strongly. But the question of fault is evident there. The word "conduct" is simply another word for that."In considering whether the circumstances … [as there dealt with] the court shall have particular regard, on the evidence before it, to … the conduct of the parties in relation to the upbringing of the child".
My Lords, in that case, why does the noble Lord, with so many others, go on calling this a question of no-fault divorce?
I do so because essentially, as I understand it, that is the whole basis of the Bill. The later amendment seems to me to run counter to that and very satisfactorily. But the basis of the Bill is still that one does not need to give any reason for requiring a divorce. That is why I support the amendment proposed by the noble Baroness, Lady Young, and her colleagues. It seems to be a fundamental question and of enormous importance. At the present time we should not send out that message from the Government or Parliament to the country. On the contrary, we should, as I suggested at Second Reading, do everything possible to strengthen marriage.At Second Reading I quoted from the report of the Joseph Rowntree Foundation to the effect that this Government and others before them have been weakening marriage, mainly by fiscal and taxation measures, whereas they should be doing the contrary. So I support the amendment. It is one of the most important amendments that we have to consider. I hope that noble Lords will agree to accept it.
My Lords, I have been trying to speak for quite some time now. The noble Lord said that he did not understand why the party to which I belong supported the Bill. He also said that he understood that no-fault was—
My Lords, I hesitate to break into the discussion. I know that these are very weighty matters which excite great passions. I wonder whether the noble Lord, Lord Stallard, might speak first and perhaps my noble friend may be induced to come in after him.
My Lords, I am grateful to the noble Viscount. It was decided earlier that this side of the House would speak next. Having said that, I do not want to take up too much of the time of the House in domestic matters. I should like to reply to one or two comments that have been made.I find myself in a hit of a pickle. I have read the amendment tabled by the noble Baroness, Lady Young. At this point I want to join my noble friend Lord Stoddart in expressing admiration and respect for the way in which the noble Baroness carried out her campaign, for the way in which she has spoken and for the amount of effort that she has put into this difficult Bill. Then I saw the name of the right reverend Prelate the Bishop of Chester and I thought, "Good, we have got the Bishops on our side at last". Then I listened to the noble Lord, Lord Habgood, and thought, "Well, we arc hack where we started. I am as mixed up as I was before". As I see it, the first part of the amendment relates to adultery. And, simple-minded fellow that I am, I take that to mean the seventh Commandment. I find it strange therefore that yet another Bishop seems to be abolishing the seventh Commandment; it is one of the main tenets, according to the Scriptures, by which a man can put away his wife.
My Lords, will the noble Lord distinguish between the attempt to abolish sin, which would be absurd, and regarding a specific form of sin as a ground for divorce? We arc not talking about whether something is right or wrong. Adultery is clearly wrong, at least in my hook. The question at issue is whether the committing of adultery should be a ground for divorce as opposed to irretrievable breakdown.
My Lords, I am grateful for that intervention; but it only makes the matter worse. I am not arguing about abolishing sin; I am arguing about retaining the respect of the Scriptures. They state quite clearly that adultery is a sin and it is certainly one of the Commandments. Most of us were brought up on the Ten Commandments and therefore take it amiss when somebody who we think should be on our side appears to be trying to evade the issue by bringing in other extraneous matters, such as abolishing sin. We are not talking about abolishing sin per se; we are saying that we are quite happy to stick with the Scriptures on this and on many other issues.
My Lords, does the noble Lord accept the view of St. Thomas Aquinas that human law can neither punish nor even prohibit all that is evilly done?
My Lords, of course. I can also quote others. A man called Charles Gore, who gave the 1927 Halley Lecture St. Botolph's Church, Bishopsgate, took up that very point and said that, while we cannot change the act of sin by law, we can erect certain statutes, and by bringing in certain legislation create an atmosphere and environment which encourages the opposite. We can use a number of quotations to justify our point but none of us can unquote the seventh Commandment. That is quite clear and it is on that that the first part of the amendment rests.Somebody else said that emotion was a fault. Of course we have emotion; if it is a fault, I plead guilty. I cannot discuss this and other similar issues without experiencing a certain amount of emotion, and I pity the fellow who can. To me there is something wrong with him. There is no doubt that the Bill does away with fault. If one party to an agreement can give notice that the agreement is finished after 12 months, without consent and giving no other reason, argument or discussion—he simply says "12 months from now, that is it"—that is tantamount to divorce without fault, and those who place that interpretation on the Bill arc quite right to do so. It is unjust to the wronged party who wishes to remain married and also unjust to the children. The noble Baroness, Lady Young, has said on a number of occasions that business contracts which can be terminated by one party without reason or sanctions would be valueless. Yet marriage is the most important contract of all and that can be broken in just that way. That is where the emotion comes in. We feel strongly about that situation. If a quickie divorce can be obtained on the basis of fault, as at present, the answer is not to do away with the "fault" clement; it is to do away with the "quickie" clement. The Government have got it the wrong way round. It is true that the fault clement has been abused. But the answer is to improve it and not abolish it. That should not be outside our capabilities. We had the USA position quoted and queried. I believe it was the noble Lord, Lord Habgood, who queried the statistics. I can happily let him have a copy of the publication, Marriage in America: A Report to the Nation; Counselling Families in America, 1995. It cannot be any fresher than that; it is almost hot off the press. That is from where most of the statistics come—their experience of no-fault divorces and so forth. I shall be happy to let the noble Lord have a copy and he can judge for himself. President Clinton, at the National Prayer Breakfast on 1st February 1996 said, quoting his wife,
That is what the President said when speaking in a national capacity. That idea has been taken up in one state after another until we reach the position quoted by the noble Baroness, Lady Young, where a number of states are looking seriously at the issue and attempting to introduce legislation to reverse the situation that occurred when they went for quickie, no-fault divorces. That is now in the past. "No fault", to me, means no responsibility; no commitment and no security. It is a throwaway relationship, with children often the victims. Somebody said that it is an issue of conscience. Of course it is. But the previous legislation was not an issue of conscience and yet was introduced by the same people. We cannot mess about with our conscience in that way. The whole situation very much concerns the conscience and those of us who have a conscience should exercise it in the way in which the amendment suggests. The amendment is absolutely right and I hope that the House will support it."Hilary said in her hook that 'Till death do us part' has often become. 'Till the going gets tough'. It may be that it ought to be a little harder to get a divorce where children arc involved".
My Lords, the noble Lord, Lord Moran, a speech ago, said that he did not understand why the Government, supported by the party to which I belong, were introducing this Bill. In response to that I say that the party to which I belong hacked the Children Bill which had as its first clause that the interests of children will be paramount. If we adopt Amendment No. 11, it will not be in the interests of children.Of course it is in the interests of children that there are fewer divorces. There is no sign in this country that the fact that fault may be a ground for the breakdown of a marriage has reduced the number of divorces. In fact, 75 per cent. of divorces brought that element in as proof of the breakdown of the marriage. There is no sign that it would reduce the number of divorces. If it did, it might help children. One does not need to look beyond the daily newspapers, week by week, and one needs to use only a small amount of imagination, to understand that the worse thing for children is when their parents decide to break up. The next worse thing is when the parents are arguing about behaviour and adultery. The imagination boggles at what they must suffer when that is happening. I feel that we are forgetting Section I of the Children Act. It operates across everything we do. Whenever we legislate about children, that first section of the Children Act operates. I have enormous respect for my noble friend Lady Young. I understand totally her motivation in relentlessly pursuing this subject. But I believe she got the answer from the noble Lord, Lord Habgood, when he referred to the question of fault and where it comes in the Bill. This is not a "no-fault" Bill. The Bill puts fault in a different place. It puts it where the hardship lies. The noble Lord, Lord Hahgood, said that people have to come to terms with fault. He did not say that we have to come to terns with sin, but we know that that is what he was meaning. It puts it in a place where the children suffer much less because it is taken into account when the settlement is made, which is a much easier place for it to be. The headlines will be very different. Sometimes they are quite small headlines in one's local newspaper; sometimes they are much bigger. I ask noble Lords to use their imagination and think what it is like to be in the shoes of those children. I ask the House to reject the amendment.
My Lords, the noble Lord, Lord Stallard, is confused by the Bishops. I can understand that. The right reverend Prelate the Bishop of Chester is a long-standing opponent of irretrievable breakdown as the sole ground for divorce and it is very understandable that he wants to vote according to his conscience and support the noble Baroness, Lady Young. But I think it was the Church of England, as much as anyone else, which some 25 years ago first introduced the idea of irretrievable breakdown as the sole ground for divorce. The group of Bishops set up by the House of Bishops of the Church of England to follow this Bill through the Lords is broadly supportive of its main thrust; and certainly I am.In considering the strengths and weaknesses of the amendment before us we also have to take into account the adverse effects of the present divorce law. Just recently I had a letter from a friend of mine, which I have his permission to quote though he wishes to remain anonymous. His wife wanted a divorce. He writes:
The present law is very flawed, as we have heard from that moving testimony. Because the present law requires one of the divorcing couple to prove fault if they want a divorce in less than two years, this undermines any possibility there might be of saving the marriage. I agree entirely with the noble Baroness, Lady Young, that the law influences behaviour. The law is not neutral. There is indeed a moral basis of the law. I entirely agree also with the noble Lord, Lord Stallard, quoting one of my very distinguished predecessors, Bishop Charles Gore. That is common ground between us. The noble Baroness, Lady Young, poses the question: what is the message that the Bill will send out? That question needs to be considered most seriously. But what message is sent out by the present law? That includes fault as evidence for irretrievable breakdown, but we are all aware that that has not deterred divorce. The message sent out by the Bill is that before a divorce is granted there has to be a whole year of consideration and reflection and there is opportunity for marriage counselling and mediation. Everything in the Bill suggests that couples contemplating divorce have to stop and think very, very carefully. As the noble Lord, Lord Habgood, said, time is built into it for people to stop and think. That, I would suggest, is the message sent out by the Bill. I believe it is a message which underlines the seriousness of marriage and the vows taken in marriage. Therefore, I feel I must support the Bill as it stands and reject the amendment before us."The solicitor advised her that she could get a quick divorce if she went for unreasonable behaviour. This did not include adultery or violence. It did include her view of my failings vastly exaggerated by the solicitor for the purpose of proving that the marriage had irretrievably broken down … When my wife told me she wanted a divorce I had no idea what to expect from the law. I knew nothing about the law. I was devastated to receive the letter from the solicitor. The "faults" did not seem legally serious enough for divorce. An already strained relationship was all but destroyed by the legal process of fault finding for the purposes of the quick divorce which she said she wanted … I can accept that there was fault on both sides when our marriage broke down. I can even accept that I was more at fault than her. But I cannot accept that such an intimate and personal matter should become the subject of drafting by lawyers who are required by parliament to put the worst possible gloss against one spouse or the other … It is counterproductive if the goal is to save as many marriages as possible".
My Lords, at this late hour I desire to make just one short point in opposition to the amendment; and that is to address the interests of the children. A fault based system leads to protracted litigation. It is the adversarial system which, apart from being expensive in terms of public funds and in court time, increases acrimony to the detriment of the children. The children are very likely to feel compelled to take one side or another. Where divorce is not fault based I believe that there is a very much better prospect of the children at the end of the day having a good relationship with both their parents.
My Lords, I completely agree with every word that the noble Baroness, Lady Young, has said. She has the courage of her convictions and believes that marriage is a sacrament. She believes too that ideals and the law should be retained. I ask myself the question: where are we going? Do we just accept indifference to God and the secular society? I support the amendments because they will bring justice into the Bill where divorce on demand is available after one year. That is ludicrous injustice.I commend these amendments to the House, but I feel most strongly that the real solution to our problems can be found if Her Majesty's Government appoint a Royal Commission. That will bring groans and moans to many because, alas, haste seems to be all important in regard to this extremely difficult and serious problem. I support the noble Baroness, Lady Young, in her amendments.
My Lords, perhaps I may —
My Lords, I wish to —
My Lords, I know that many noble Lords want to speak. It only delays matters further if there is a kind of competition between noble Lords on both Benches. I am sure the House is anxious to hear both noble Lords. I wonder whether my noble friend Lord Aldington could for once take precedence and then I suggest we go to the Liberal Benches before coming hack to my noble friend Lady Elles.
My Lords, this amendment, if we come hack to the words, deals not with the general points that many of us have been discussing but with the one simple point that the noble Lord, Lord Stallard, and my noble friend Lady Young took up —that is, the one of the two parties who does not want a divorce. The Bill as it stands forces that one person who does not want a divorce to break his or her vow against his or her will. That is a most extraordinary thing for the noble Lord, Lord Habgood, and the right reverend Prelate the Bishop of Oxford to be in favour of. I cannot understand how that accords with the feeling of the Church towards the vows; nor can I understand how it accords with the principle, which I was so glad my noble and learned friend the Lord Chancellor put into the Bill, that the purpose of the Bill is to save the institution of marriage. That is what this is about.What the amendment seems to say is that a person who does not want a divorce shall not be put in the position of being divorced against his or her will one year after the application unless there is fault or until five years of separation have taken place. That seems to me to be entirely harmonious with the spirit of the Bill and with my understanding of the Christian attitude to marriage and that of this House to it. My noble friend Lady Carnegy asked, "Have you thought about the effect of this measure on the children?". I do not see how the children are going to suffer more by having one of their parents who does not want a divorce remaining married, albeit separated, for five years than they would suffer by the actual fact of divorce. One reason why I have risen to speak is that my parents were divorced when I was 13 years of age. I did suffer and so did my brother and sister. If they had been given time —and that is why I welcome many of the provisions of this Bill —I do not believe that they would have divorced, because when I left to go overseas to the war in 1940 they both told me that they wished that they had not divorced and they hoped that after the war they might get together again. Unfortunately, my father was killed. I feel strongly about the time element and that people should not be forced to break their vows, certainly not within one year of the application of this measure. That is why I fully support all that my noble friend Lady Young has put forward.
My Lords, I do not pretend to know whether the retention of fault as a basis for divorce will provide any effective control over the increase in divorce. I do not believe that these amendments will strengthen marriage. I do not believe that this Bill will make divorce easy. The great advantage of the procedures under this Bill is that the parties are to be formally confronted with the practical and emotional realities of what they are thinking of doing.The noble Baroness, Lady Young, did not tell us what she wanted to happen in practice. Her amendment properly requires the court to be satisfied of the relevant fault or faults, but to what standard is the fault to be proved? The amendment simply says that the party making the statement should satisfy the court of the particular fault. Fault-based divorce, as it presently operates and as it operated under the modern legislation before the special procedure, requires a fairly minimal standard of proof. If I were truly supporting the pecuniary interest of my profession I would have supported the noble Baroness in her disapproval of the special procedure. When work was thin, there was nothing better than going off to court with an armful of briefs for undefended divorces. It was a serious blow in 1977, not just to my pocket, when the special procedure was introduced, but that did not make the procedure that operated before any more dignified than the present procedure. The fact is that fault-based divorce, undefended by the other party, is largely untested by the court. Corroboration is not required, and it is only defective or weak divorce petitions which are held up or rejected. So what procedure is going to be required? Reference has been made by the noble Lord, Lord Burnham, to the old days of hotel evidence which supplemented the income of private detectives and hotel chambermaids. I do not know what is envisaged, but I suggest that it is important that we should understand what procedures are going to be in place; otherwise we do not improve in any way on the present procedure. One also has to hear in mind that what is proposed in this amendment is an alternative to consensual divorce. These are not going to be divorces in which the other party has agreed that the marriage has come to an end or agreed to a divorce after one year. So it may well be defended. There is nothing more inflammatory or acrimonious than a defended divorce, but facilities there will have to be for the recipient of a divorce petition to defend, which may involve legal aid and certainly will involve valuable court time. Under the present regime legal aid is seldom granted when it is not in issue that the marriage has irretrievably broken down. I say to the noble Lord, Lord Ashbourne, that it is wrong to suggest that under this Bill we are introducing "no reason" divorce. The reason for divorce under this Bill, as under the present law, is that the marriage has broken down and that that breakdown is established to have been irretrievable. I suggest that fault-based divorce, even under the present law, generates a great deal of heat (or it can do) but not a lot of light. It seldom illuminates the true cause of the breakdown of the marriage. Even adultery, which is so seldom the sole cause of the end of a marriage, is accurately reflected in this way. As one judge very wisely observed a long time ago, it takes three to commit adultery. The right reverend Prelate the Bishop of Oxford referred to the realities of the modern behaviour petition. It is a trick of the trade, if I may so describe it, to plead a behaviour petition in such a way that it says just enough to get past the eye of the judge but not so much that it provokes the other party into defending. I cannot help thinking that that practice may continue. Finally, perhaps I may reinforce very strongly the observations of the noble Lord, Lord Habgood, about the five-year requirement, which is to be preserved under this amendment. As I ventured to say at, I believe, Committee stage, there is perhaps nothing more unhappy than a five-year separation-based divorce. It causes enormous resentment and unhappiness if the parties are required to put their personal lives, and often their financial lives, on hold for five years, and the children truly suffer. Therefore, I ask your Lordships to think hard about the practical consequences of these amendments which, I suggest, need to be addressed. In the circumstances I would not support these amendments.
My Lords, I was very moved by much of what the noble Lord, Lord Habgood, said and I agree with much of it. I would just like to question the problem that he raised as regards statistics. The Australian, Canadian and American statistics show where no-fault divorce was brought in that there was a slight increase in the number of divorces because of the backlog. That is understandable. I believe that the noble Lord and the House know how dangerous statistics are. What he did not reveal is this.In the graph that I saw the number of divorces went up by a certain amount but what collapsed was the number of marriages. The graph came straight down. That can certainly he ascribed to the way in which people will view marriage when there is no-fault divorce. I know that we are using the phrase "no-fault divorce", but it is the fact of making divorce easier. It is not a question of what one is putting into the Bill at the moment; it is whether one is making it easier for people who do not want to stay with each other any more or even as regards one of the parties. That is one of the fundamental faults of the Bill. My noble and learned friend knows my views, so I am not expressing anything new to him. First, the fact is that, whereas the weight shifted from the wife to the husband if the husband had gone away, it is now the other way round. The person who is left at home is in the weaker position. I speak as a woman in this case. It is usually the woman who is left, often literally holding the baby, at home while the man goes off to have his affairs. There is no way in which she can defend herself under the Bill because although he or she may go to an information meeting and make a statement, there is no obligation on either party to go to mediation and, as the Bill stands, at the end of the year the husband can apply for his divorce. I know about the provisions of Clause 9 and the new amendment which my noble and learned friend has tabled, but, as the Bill stands, it has shifted the weight of responsibility for keeping the marriage together from the person who wants to stay in the home and in the marriage to someone who wants to be completely free to do as he likes. I accept that that party could be the woman. In the case outlined by the right reverend Prelate the Bishop of Oxford, it was the wife who wanted the divorce. This Bill allows the weight of responsibility for the marriage tie to be shifted. Secondly, those who think that the Bill will remove acrimony arc, frankly, living in a fool's paradise. Anybody who knows a couple who have divorced —whether or not there are children of the marriage —knows that the acrimony goes on and on and on. I know that there are many solid arguments for removing the concept of fault because of the case going through the courts, but feeling that one can discuss fault releases certain of the pressures of human life. We are talking about relationships between human beings, not about the effect of the law on individuals. Thirdly and finally, although I know that making divorce easier is not the wish or the objective of my noble and learned friend, the fact is that in the minds of the public the Bill makes divorce both easier and quicker to obtain than is the case with the courts at the moment. That brings an insecurity to the status of marriage, and, as has happened in other countries which have introduced no-fault divorces, that will undoubtedly increase not necessarily the number of divorces, but the number of cohabitations and of illegitimate children because marriage will no longer he respected and afforded a fundamental status in our society.
My Lords, I should like to salute and to express my admiration for the noble Baroness, Lady Young, for what I can only term her moral leadership in this debate. As she has said, the signal that she wishes to send out is nowhere more clear than in this amendment. I beg humbly to support it.I have just returned from a three-week lecture tour of the United States, travelling from coast to coast and visiting some half-dozen communities. Although I had very little time to spare for browsing through the newspapers, I saw enough, cast and west, to give substance to the comment made here that many states in the United States are now searching for ways to repeal their earlier shift towards the abolition of the fault clauses and are seeking to reintroduce them. I saw that both in reports and in leading articles in a number of newspapers. I can testify to that evidence from the United States as of the day before yesterday when I was still there. I find myself in the somewhat invidious position, having listened especially to my dear friends both the right reverend Prelate the Bishop of Oxford, and to the former Archbishop, in being on the other side in a peculiar way. After all, they belong to a tradition which until not so very recently objected to divorce altogether on the New Testament grounds,
That is a conviction which we Jews have never shared. For us, in a way divorce was the easiest thing in the world. If the two parties agreed that the marriage was incompatible, they could easily he divorced, yet divorces were exceedingly rare in Jewish society. What made them rare'? Above all, it was the stigma attaching to them. Divorce was unsocial. It went against the current and against the grain for people to get divorced and to expose their children to all the consequences of divorce; hence until very recent times, divorces virtually did not happen. I have listened to the debate with intense interest and have heard noble Lords searching for the reasons that have caused the divorce rate to rise so spectacularly to its present alarming proportions. I think that the simple and primary reason is the abolition of every form of stigma. There is no sense of shame. There is no sense of reserve. A society cannot maintain values without attaching some form of stigma to their violation. Therefore, I think that the amendment, even if only symbolically, restores a sense of stigma by introducing into divorce a concept of fault which might well go a long way towards at least stopping the present rise in divorce, especially at the moment when it affects both the highest and the ordinary. Divorce has become so commonplace that we no longer even feel the damage that is done to ourselves, to our children and to society in general. Therefore, I think that this amendment —there are others, but notably this amendment —may help to restore that sense of shudder before one enters into a divorce. People should think twice and feel that they owe something, if not to themselves or their partner, at least to their children, to society and perhaps even to the moral law. One should not easily enter into the breaking of the most solemn commitment that one can ever expect to enter in one's lifetime."Those whom God hath joined together let no man put asunder".
My Lords, the noble Lord, Lord Aldington, is a seasoned debater and recalled us to the real point at issue. What we are discussing is a situation where one party wants to be divorced and the other party does not. We have heard a great deal so far about the hardship and the suffering of being the party who is forced to divorce against their will. I do not disagree with any of that, but let us consider the alternative. The alternative is that the other party should be forced to be married against their will. To me, that appears not merely a hardship, but actually a contradiction in terms.I have listened carefully to the noble Baroness, Lady Young, and to those who have spoken with her. They have relied heavily on the concept of marriage as a contract in which one may require performance. The noble Lord, Lord Moran, took the parallel of a car hire agreement. You can require strict performance of a car hire agreement because it does not matter in what spirit the job is done. If I owe a car hire firm £400 and I am thoroughly fed up about it and my lawyer says that I do not have a case, it does not matter whether I pay with a good will or a had will. I can still pay. However, marriage is not like that. It is something a great deal more than that. Marriage is an agreement to love and to cherish. You cannot do that simply in response to a legal requirement. If you are forced to be married where you cannot love or cherish, you have something which is very different indeed. It is recorded that a 17th century couple were so unhappily married that nothing but the power of religion could force them to live as man and wife. I do not think that that is what the right reverend Prelate the Bishop of Oxford means by "the power of religion", and it is not what I mean. Indeed in a more comfortable case, King James VI of Scotland, who was also King James I of England, and his queen were said to live as well together as a couple who do not converse can do. I just do not see the point of preserving that sort of union. That is not for the preservation of marriage. I asked the noble Baroness, Lady Young, in Committee —I have not yet had an answer —whether the object of her amendment is to prevent divorce or to prevent separation. I do not see how we can prevent separation in unhappy marriages unless we attach a power of arrest to the marriage contract. But if we are to allow separation and not divorce, then we will have a steady increase in the number of people who are married to one person but living with another. I do not understand what that contributes to the preservation of marriage.
My Lords, —
My Lords, —
My Lords, I know that the debate has run for one hour 35 minutes, and I know that a number of speakers still want to contribute. I wonder whether it might be in order for me to hope that their contributions will be relatively brief. I saw that the noble and learned Lord, Lord Simon of Glaisdale, was on his feet. Perhaps he should speak, then one of my Back-Benchers, then a noble Lord from the Cross-Benches and then I rather hope that the noble and learned Lord the Lord Chancellor will have a chance to wind up the debate.
My Lords, I believe that I am the only Member who has confessed that at 88 he is the child of a broken marriage. No one can help marriages breaking down, certainly not a babe as I was. I never saw my father. My mother and my aunt brought me up. I have missed so much in life through not having a father, so whenever I hear of anyone getting married I look to see whether the man will make a good father, and that there is a decent age gap between them. There was only two years between my wife and myself. We had the usual problems through doing things rather quickly.The faith we have in the vow we took has always stood us in good stead. What we in the House should be trying to do, more than we are doing today, is to bring it home to everyone that it is the vow that counts. We make the vow, and we mean to keep it. People nowadays take vows, but they do not know what they are doing. We should be addressing ourselves to the philosophy and theology of marriage to make people realise that when they make a solemn vow before almighty God they will stay together:
they should try their best to keep that vow. No one wishes to be downright cruel to anyone. The law is not beyond being able to devise some way to make things fair for any children and for each one of the partners. We stress too much the break-up of a marriage, and the Bill will tend to make marriages even shorter. It grieves me greatly that I should find myself to be not in accord with my noble and learned friend the Lord Chancellor, whom no one admires more than I do from my humble position as a once briefed, once called barrister of about 50 years."for better for worse, for richer for poorer, in sickness and in health … till death us do part",
My Lords, I apologise if I caused some confusion by rising to ask the noble Earl a question before he sat down. I caused confusion because other noble Lords were rising to speak at that moment, and I apologise to them. The noble Earl said that if we, in effect, deny divorce to someone who wants to be divorced, the parties will merely live separately, with the undesirable result that they will be living in an irregular union and possibly producing illegitimate children. That is precisely what has happened.As we have loosened the ties of marriage and made divorce easier and easier, we have not reduced illegitimacy. As the rate of divorce has gone up, so the rate of marriage has gone down, so the rate of single parentage has gone up, so the rate of illegitimacy has gone up. For good measure, what has gone down is church-going in the established Churches. That is the first point I was going to put to the noble Earl. The second relates to the argument about fault on both sides. In any break-up of a marriage, indeed in any subsistence of a marriage, there is likely to be fault on both sides, because on both sides there are human beings and not saints. However, it does not follow from that that it is a case of six of one and half a dozen of the other. My experience as a matrimonial judge is that in the overwhelming majority of cases there was a preponderance of fault on one side even if the other side was not completely blameless. I have one final point. It has been put starkly that a good divorce is better than a had marriage. Once again, that is looking at the problem as if the only two people concerned are husband and wife. It leaves out of account the children to whom the parents should have a sense of responsibility. If they do, the flame of passion of the early years of marriage may subside to form a warm glow of companionship and a sense of responsibility in the parents one to the other and both to their children. As I have drawn upon personal experience, perhaps I may recall one of the things that made my parliamentary career delightful. It was in the small industrial town of Thornahy-on-Tees. An active supporter of mine was a widow in modest circumstances. She said to me, "Of course my husband and I used to quarrel from time to time like most married people, but we never went to sleep without having made it up". We discussed the sense of responsibility of the husband and wife to each other and to the promises that they made much too readily. The truth is that she was sustained partly by what she felt to be right, partly by the fact that she had made promises which she ought to keep and mostly because the focal atmosphere in that place, which was predominantly but not exclusively that of the dissenting Churches, was strongly in favour of the maintenance of marriage and against its facile divorce at the first sign of real trouble in the marriage. For those three reasons there is a great deal to be said for the noble Baroness's proposal. Some of the arguments that we have heard against it have been all too reminiscent of the facile optimism that we had during the 1969 debate. Happily, in respect of this Bill, nobody has committed the vulgarism that was then committed, of saying that it was a kiss-and-make-up Bill. But short of that, many of the speeches against the amendment tonight have given that impression.
My Lords, I hope —
The Lord Chancellor!
My Lords, I feel that I am interrupting this debate rather more than I should. I wonder whether my noble friend Lord Elton could speak and then the noble Lord, Lord Clifford of Chudleigh.
My Lords, in the light of that reception I shall be exceedingly brief. My noble friend Baroness Young said that law affects behaviour. The noble Lord, Lord Jakohovitz, nicely demonstrated that it is not secular but religious law which affects behaviour. If your Lordships believe that you will preserve real marriage by legislation you are mistaken. You may preserve marriages in which there is conflict.In Committee and on Second Reading much was made about the Exeter Report, which stated that beyond doubt it was better to be in a bad marriage than a good divorce. That report was based on a survey of 476 children. However, the report of Amato and Keith, published in 1991, dealt with 13,000 children and came to precisely the opposite conclusion. I hope that your Lordships will bear that in mind. I have the quotations in front of me but I shall not delay the House by quoting them. Five years is half the life experience of a 10 year-old child. I invite my noble friend Lady Young to consider half of her life and imagine how it must be for a child who is doing the same. A fortiori the noble and learned Lord, Lord Simon of Glaisdale, it must seem almost centuries for a child. It follows that the process of divorce, which is painful, should not be extended and that children should not be drawn into conflict. My noble friend's amendment is a recipe for promoting conflict by having fault proved in court. The children will become involved in that and will be damaged. I dislike taking part in such debates, having myself suffered a divorce. I have always said that there is no such thing as an "unguilty" party in a divorce but that there are measures of guilt. I am pleased to say that that is reflected in the amendment to Section 25 of the previous Act. I hope that when voting your Lordships will remember the children, because you have an opportunity either to extend or to reduce their suffering.
My Lords, I see the time and I shall be as brief as possible. The noble Baroness, Lady Young, has argued in favour of the retention of fault in divorce proceedings in its present form. I believe that she has raised an important point which Parliament has not hitherto debated in full.We have heard what those in the Church have had to say and we know what many of us who were married in church said in front of God. In the civil register office the words are repeated, "I do solemnly declare". As that declaration is made civilly, I wonder how solemnly the parties make that oath in their own eyes and in the eyes of the law, and how binding and long term is that commitment, that contract. Are these commitments to be regarded as genuinely and sincerely entered into, or are they to be regarded as empty phrases uttered without sincerity or honesty? A breach of these undertakings can be regarded as a serious matter or as a matter of little importance. If we wish to avoid the charge of encouraging dishonesty on the part of those who enter into the commitment of marriage we cannot but retain at least some notion of disapproval if these commitments are flagrantly dishonoured. That is the concept of fault, in effect. We have a responsibility to future generations. We must set an example. We will not achieve that by saying that the easiest way is the best. It is easy for us, most of whom enjoyed the benefit of having two married natural parents, to deny that to the next generation in a cavalier fashion by jettisoning any concepts of fault and responsibility. No-fault divorce has led to a rise in the divorce rate. In many cases it has resulted in the alienation of one of the parents from the children. It has led to greater post-divorce poverty for one party, often for both. It has led to greater litigation on financial matters. Tragically, it has been linked with an increase in teenage suicides and teenage psychiatric admissions. Those are not the observations of some jaundiced Jeremiah. That information comes from a leading feminist writer, Mrs. Weitzman, in her hook The Divorce Revolution, published in 1985. We have also heard similar sentiments expressed by Mrs. Hilary Clinton. What is more, in Northern Ireland the same law applies as in England and Wales. Yet there is only one-quarter of the divorce rate. A court appearance is still required and there is no special procedure. Fault-based divorce can be and is being made to work in the Province and there is no clamour for change. A well-known commentator, Janet Daley, stated recently in the Daily Telegraph:
She also stated that those who defend no fault say:"The reason that the State can require you to account for yourself when breaking up a marriage is precisely because you have made an undertaking not just to each other but to the rest of us as well".
Your Lordships have heard many facts and statistics and therefore I shall complete what I have to say as quickly as possible —"It will help to reduce recrimination and unpleasantness in the dissolving of marriages, as if recrimination —the casting of blame —was always a bad thing".
My Lords, children are damaged by marital conflict, as no one would deny. The Exeter Family Study showed that and clearly stated that children are damaged by the splitting up of the family home rather than by people being unpleasant to one another while staying in one particular place. Abolishing fault denies the existence of marital responsibility. It empties the marital promises of any value. It demolishes justice by saying, in effect, "We don't care that you have gone back on your obligations". We do not wish to do that in any other area of the law, and we should not do so in our divorce law.It is not the concept of fault which results in quickie divorces. It is the short time period in which they can be obtained. If we wish to eliminate quickie divorces, we should get rid of the quickie element. That is a matter of common logic. The introduction of a sacrosanct 12-month or 18-month period eliminates the danger of quickie divorces. The elimination of fault is irrelevant to the ending of quickie divorces. Fast infidelity is a quickie divorce. Infidelity to truth destroys dignity and destroys the divinity of marriage. I support the noble Baroness's amendment.
My Lords —
My Lords, I am in the hands of the House.
My Lords, we have had a full debate on these extremely important amendments which were moved so ably by my noble friend Lady Young. It is right for me to begin by saying that I believe that we share exactly the same objectives in relation to marriage. If we had our way, there would be no divorce at all, or no separations, because we must remember that there are separations and divorces. It is really when the household separates and the father and mother go their separate ways that damage is generally done to the children.I started life at the Bar at a time in Scotland when divorce was based entirely on fault. I must say that those divorces based entirely on fault did absolutely nothing for the institution of marriage. I must make the point also that from time to time the Bill has been described as a no-fault Bill. That does no justice to these proposals. I recognise —and I am sure everyone recognises —that there are situations in which the conduct of married people has relevance. That is particularly so in relation to the consequences of breakdown. The two principal areas where those matters are relevant are in relation to the distribution of property and the arrangements for children. I am grateful to the noble Lord, Lord Moran, for pointing out that I have made explicit the reference to conduct in relation to children as a result of your Lordships' discussions in Committee. But fundamental also to the distribution of property on divorce is the law that requires the court to take account of the conduct of the parties when it would be inequitable to disregard it. When there is a divorce, those elements are affected by the conduct of the parties. There is no question of seeking to eliminate those elements from the provisions. But those are situations in which it is necessary to have regard to conduct for the purpose of doing justice between the parties. Here we are dealing with a question of what the ground should be on which the divorce order itself is made. There is no connection whatever between the grounds on which the order is made and whether or not conduct may be relevant to questions in connection with children or the distribution of property. A person may be divorced on the ground of unreasonable behaviour and that unreasonable behaviour may be of no significance at all in the context of property distribution. Equally, persons may be divorced on the ground of a five-year separation but conduct may still be relevant in relation to the distribution of their property. In that connection, I wish to mention something that has been said about facing up to what has taken place in the marriage. I agree entirely that that is absolutely appropriate. Therefore, I was particularly interested in a joint statement issued this month by National Family Mediation and the Family Mediators Association which stated:
"Mediation offers couples an opportunity to communicate face-to-face at a time of stress and discontinuity in their personal relationship. Mediators are accustomed to meeting couples at the most bitter point in the divorce process. It is rare that both partners agree to the marriage being ended, and they often disagree about the circumstances leading to the breakdown. As a result they feel highly, and often justifiably, resentful and critical of each other.
I believe that the words "to each other" are quite important. It goes on:The focus in mediation is on the future, and thus disputes are explored with the aim of reaching consensual agreements. Nevertheless, mediators recognise that these disputes are likely to be influenced and shaped by the past: hurts, wrongs and 'faults' often need to be addressed. A parting couple can rarely move on to reach carefully considered decisions without doing so. Mediation is unique in giving the partners a controlled opportunity to state the underlying issues of fault and blame to each other".
The important matter that I wish to draw to your Lordships' attention is that under this amendment, fault, conduct, will be relevant for one purpose and one purpose only; that is, the length of time that must expire before the divorce is granted. If there is no fault and people have been living apart for five years with no allegations made against their conduct, they must wait for five years. They cannot remarry for five years if there is no fault. On the other hand, if you are at fault, you can remarry immediately. There is of course a year, but there is a year for everybody. But if the divorce is on the ground of separation, that involves a wait of one year plus five years, thus making six years. What kind of message does that send? What kind of stigma does that attach to fault? It says that a person in fault can remarry immediately whereas the person who is without fault and has had to wait for five years cannot marry until that period has expired. If there is a way of devaluing fault and destroying the stigma which might attach to it, I cannot think of a better way than that. It has been suggested that fault in some way has a restraining influence on the rise in divorce. We do not need to go to the United States or to propaganda issued on behalf of various groups within the United States because we can see what has happened here at home. Since 1972, the number of divorces relying on the grounds of two or five-year separations has remained fairly constant. In fact, it has fallen from over 47,000 in 1972 to under 44,000 in 1993. As we all know, the number of divorces has risen considerably in that period and the rise has come almost totally in cases where either adultery or behaviour is relied upon in order to obtain a speedy divorce. That is preserved by this amendment because one must wait five years unless there is fault. Allegations of fault which are exaggerated and generally uncorroborated lead to bitterness and resentment. The right reverend Prelate the Bishop of Oxford gave us a moving example of that. A missive of that kind coming to a husband is likely to destroy every vestige of the possibility of reconciliation or good feeling. I cannot think of a better way of annihilating completely the opportunity for reconciliation. As I said, every breakdown of marriage is sad and damaging. Everything that we can possibly do to prevent that should be done. I believe that in taking solemn vows the parties have that responsibility and nothing proposed in this Bill in any way undermines that. However, what I do say is that when a marriage has broken down and when it is to be determined by divorce it is of the utmost importance that everything we can do should be done to preserve the relationships between both parents and their children. My noble friend Lady Elles very movingly at the last day of the previous stage pointed out the experience that had been found in Newcastle where so many children had completely lost contact with their fathers as a result of divorce. The evidence is that that is more likely to happen where a divorce is founded on unreasonable behaviour than on any other ground. If we are anxious for our children and for the children who may be the victims of a divorce, we should do our best to eliminate unnecessary allegations one against the other, when the only purpose of the allegations is to get the divorce more quickly than otherwise would be the case. Noble Lords have referred to "quickie divorce", whatever that expression means; but in the context of this amendment it means that you can get a divorce in considerably less than five years if you allege fault. We have had a very full debate, and I believe the issues are very clearly before your Lordships. I should just mention, because it was mentioned by my noble friend in opening, the findings of the MORI poll which we conducted. It was of course referred to in the White Paper which I published in connection with the Second Reading of the Bill. One of the findings of the poll was of considerable importance to me: that 69 per cent. of the general public and 66 per cent. of the divorced public were in favour of a change in the law so that divorce could be obtained only on the basis of a period of time. Therefore, by definition, this cannot be regarded as being divorce on demand. I believe that when divorce on demand was referred to they were thinking of a consensual divorce which did not have any period laid down in it at all. These are difficult and important issues. They are issues which your Lordships have had laid fully before you. Conduct is relevant in divorce but it should not be relevant, in my submission, to obtaining the order. In this amendment, conduct is glorified by allowing divorce more quickly on those grounds. As I have said, in that sense a quickie divorce is enshrined in this amendment. The number of divorce proceedings have increased in recent years where they relate to conduct; in other words, the increase in divorce in recent years has been on the basis of fault and not on any other basis. Once allegations are forced to be made, as under this amendment, which would otherwise be unnecessary, in my submission any hope of salvaging the marriage is destroyed. Fault in divorce is not a restraining influence on misconduct, and certainly is not of benefit to the children. This is an entirely free vote. It is clearly a matter of conscience and I hope that your Lordships will feel, in the light of your individual consciences, that this amendment should not be supported."During mediation each partner can gain an understanding and appreciation of the other's feelings, anxieties and expectations".
My Lords, I should like to start by thanking all those who have supported me this evening. I am particularly grateful for the very kind remarks of the noble Lords, Lord Stoddart and Lord Stallard, for whose unstinting support throughout these long discussions I have been extremely thankful. I am also very grateful for the support I have received from the Cross-Benches.This is not an easy issue for me to take up. I find myself in the astonishing position, the surprising position, of arguing a case of morality against the bishops of the Church to which I belong, and I do not enjoy it. I find myself also having to take up legal issues with lawyers who are far better qualified than myself. I am in that unenviable position of fighting a battle on two fronts—
My Lords, I am so sorry to interrupt, but may I ask the noble Baroness, Lady Young, whether she thinks it is quite fair to suggest that she herself has the moral high ground in this debate?
My Lords, I think that that is a very unfair statement. I have never pretended, whether in your Lordships' House or outside it, that I have the moral high ground. But what I have tried to do is to stand up for what I believe, and I will stand up for it in this House and outside. Whatever the outcome of the vote tonight may be, I hope nobody will be under the illusion that the issue of fault will go away. This is the beginning of the argument; not the end.I now turn in detail to answer some of the very important points that have been raised, perhaps very well put by the noble Lord, Lord Habgood. He questioned the Australian figures, but I think this point was well answered by my noble friend Lady Elles. I can only say to the noble Lord, Lord Habgood, that the figures I quoted arrived only last week from a professor of law in the University of Sydney. They show quite conclusively that the number of divorces in Australia has doubled since "no fault" was introduced. No one — but no one —in favour of the present Bill has in any way answered the actual facts of what is happening in other countries, including Australia and America. I now turn to a very important point which was raised by the noble Baroness, Lady Ryder, who said that she thought marriage was a sacrament. When my husband and I married we thought it was a sacrament, and when my children married they believed it was a sacrament. How can you call marriage a sacrament if, when you break your vows, it is not a fault? I find that a most extraordinary statement, and one to which I have not had a satisfactory answer. The noble Lord, Lord Habgood, said that much hardship could be avoided by what is called the hardship bar, which is referred to in Clause 9. I hope that when we come to debate that my noble and learned friend the Lord Chancellor will explain how this will work. The fact is that it has not worked in regard to the 1969 Act. There has been only one case where it has been used and I hope very much that this will not be the case in the future. My noble and learned friend the Lord Chancellor has put down important amendments and they will be debated when the time arrives. However, to rely on it until we have those assurances seems to me to be very difficult. May I say how grateful I was for the intervention of the noble Lord, Lord Jakobovits. I was most moved by what he had to say and I would like to say to him that in the course of a great deal of consideration of this Bill over the last weeks I have been immensely strengthened by reading the moving book by Jonathan Sacks, Faith in the Future. I would recommend any of your Lordships who are interested in this subject just to read the chapter on the family, even if you do not read anything else. It is beautifully written, beautifully said, and it raises a very great ideal to put before us all. I am very sorry to have to disagree so completely with my noble friend Lady Carnegy, with whom I am nearly always in agreement. She is very fortunate: she lives in Scotland so this Bill will not apply to her at all. And of course the Scots are going to keep the concept of "fault", so perhaps she is doubly fortunate. May I say that when she spoke so movingly about the Children Act, that is just what does not apply under this Bill. We had a debate only last week on the very point that the needs of the children would be paramount. It was decided that that would not apply because it would put a veto by children on divorce. In fact, it is going to be changed. It is only by the strenuous efforts of my noble friend Lady Elles that we now have a number of amendments which take into consideration the needs of children. A great many legal arguments have been raised by those who are experienced in the divorce courts. I am thankful to say I have never had that experience and I do not pretend to be able to argue in terms of equality. However, I am reliably informed —and I have taken advice from a number of leading lawyers —that, on the question of acrimony, acrimony does not arise from the divorce but almost always from the endless conversations about the distribution of property, assets and all of that. That is what causes the acrimony. It is not the divorce at all. Indeed, it is quite wrong to suggest that. Two misleading arguments have been put forward about the amendment during the course of our debate. First, of course the Bill allows divorce by mutual consent after a year. One should make that point quite clear. But on the question of a five-year wait —that is, when one spouse does not want to divorce —why should the wife or the husband who may perhaps, unfortunately, still love the other spouse not be allowed to have plenty of time in the hope that the couple may get together again? It is quite wrong to say that that would just mean five years of acrimony. I believe that we should be greatly concerned about the person who is being divorced against his or her wishes. That is what can happen under the Bill at the end of a year without any reason being given at all. I turn now to deal with the arguments put forward by my noble and learned friend the Lord Chancellor. I like to believe that both of us share objectives about marriage. I would not have entered into the debate at all if I did not believe that the most serious fact of life today is the great breakdown of marriage and the damage that that is doing to the fabric of our society. Whatever the evidence may be, we know from research about the devastating consequences of divorce on children. It is quite extraordinary when we pride ourselves on our thought for children and on our good social legislation that we can accept the cruelty of divorce over and over again. Some of my noble friends have spoken of the effects of divorce which they carry with them still; indeed, I believe that that goes on throughout the lives of people whose parents have sadly divorced. We have come to accept that fact because we believe that the most important thing is the happiness of the parents. I do not think that that is a very good moral stand myself, but that is actually what has been said in the very pragmatic arguments that have been put forward today against no fault. In fact, what we are saying is, "This is what life is. If parents do not get on then they are free, in a free society, to live the lives that they want". However, they forget that they have obligations to their children which continue for the rest of their lives. That is not a very good message either. I realise that my noble and learned friend the Lord Chancellor believes that mediation will be very helpful. I have no doubt that, where people are prepared to go to mediation, it will be helpful. But no one can be made to go to those sessions. Therefore, we are still left with those who do not wish to go to mediation suffering. As a postscript, I should add that there is very considerable evidence to show that women come off worse in mediation than men. That, too, is something to be borne in mind. However, my noble and learned friend and I both believe in reconciliation. That is why I have also tabled an amendment on that very point. We have had a long debate. I shall not continue it today, save to say that we are discussing a most important issue for society. It will send out a signal. It is not true, as my noble friend Lord Elton said, that law does not affect behaviour; indeed, as I said earlier, we have endless instances of recently passed legislation on gender, race and disability to show that law does affect behaviour and the culture of society. We need to consider not the minutiae of what happens in court on the issue: we need to consider the message which we give out; namely, that breaking a promise does not matter. I believe that to be a bad message and I wish to test the opinion of the House on the issue.
On Question, Whether the said amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 65; Not-Contents, 118.
Division No. 2
|Ailesbury, M.||Holdemess, L.|
|Aldington. L.||Hooper. B.|
|Archer of Weston-Super-Mare.L.||Howell. L.|
|Ashboume. L.||Iddesleigh. E.|
|Belhaven and Stenton. L.||Jakobovits . L.|
|Blaker, L.||Kilhraeken, L.|
|Boardman. L.||Lauderdale, E.|
|Bridgeman. V.||London. Bp.|
|Broadbridge, L.||Longford. E.|
|Brougham and Vaux, L.||Massereene and Ferrard. V.|
|Butterfield. L.||Milner of Leeds. L.|
|Clanwilliam. E.||Monckton of Brenchley. V.|
|Clark of Kempston, L.||Monk Bretton. L.|
|Clifford of Chudleigh. L.||Monson. L.|
|Cocks of Hartcliffe. L.||Montrose. D.|
|Coleraine, L.||Moran, L.|
|Craigmyle. L.||Mowbray and Stourton. L.|
|Cross, V.||Napier and Ettnck. L.|
|Ellenborough, L.||O'Cathain. B.|
|Elles, B.||Pearson of Rannoch. L|
|Enroll. E.||Pender, L.|
|Fairfax of Cameron, L.||Pender, L.|
|Feversham, L.||Pender, L.|
|Fitt, L.||Platt of Wattle. B.|
|Gainstborough. E.||Rankeillour. L.|
|Gardner of Parkes, B.||Robertson of Oakridgc. L.|
|Griffiths of Frnrestfach. L.||Ryder of Warsaw. B.|
|Halsbury, E.||Saltoun of Abernethy. Ly.|
|Hamilton Of Dalzell. L.||Simon of Glaisdale. L.|
|Harding of Petherton. L.||Stallard, L. [Teller.].|
|Harris of High Cross, L.||Stoddart of Swindon. L.|
|Harvington, L.||Taylor of Blackburn. L.|
|Young. B. [Teller]|
|Acton. L.||Butterworth, L.|
|Addington, L.||Cannichacl of Kelvingrove. L.|
|Addison. V.||Carnegy of Lour, B.|
|Allenby of Megiddo, V.||Camock. L.|
|Ampthill. L.||Chesham. L.[Teller]|
|Archer of Sandwell. L.||Clinton-Davis, L.|
|Barber, L.||Coleridge, L.|
|Berkeley, L.||Courtown, E.|
|Birkett, L.||Craigavon, V.|
|Bowness, L.||Cranbome. V. [Lord Privy Seal.]|
|Braine of Wheatley. L.||Cumberlege, B.|
|Brentford, V.||Darcy (dc Knayth). B.|
|Brightman L.||David, B.|
|Browne-Wilkinson, L.||Dean of Thornton-le-Fylde, B.|
|Burnham. L.||Denham. L.|
|Denton of Wakefield, B.||McColl of Dulwich, L.|
|Dixon-Smith. L.||McGregor of Durres, L.|
|Dormand of Easington, L.||Mackay of Ardbrecknish, L.|
|Drogheda, E.||Mackay of Clashfem, L. [Lond Chancellor.]|
|Eden of Winton, L.|
|Elis-Thomas. L.||Mackay of Drumadoon, L.|
|Elton, L.||Macleod of Borve, B.|
|Faithfull, B.||McNair, L.|
|Falkland, V.||Marsh, L|
|Freyberg, L.||Meston, L.|
|Geraint, L.||Miller of Hendon, B.|
|Gilmour of Craigmillar, L.||Monkswell, L.|
|Gladwin of Clee. L.||Montgomery of Alamein. V.|
|Goschcn. V.||Mountevans, L.|
|Graham of Edmonton, L.||Nicol, B.|
|Gray of Contin, L.||Norfolk. D.|
|Grey. E.||Northesk. E.|
|Habgood, L.||Oxford, Bp.|
|Hamwce. B.||Park of Monmouth, B.|
|Hardwicke, E.||Rea. L.|
|Harlech, L.||Robson of Kiddington, B.|
|Hannsworth, L.||Runcie. L.|
|Harris of Greenwich. L.||Runciman of Doxford, V.|
|Harrowby, E.||Russell. E.|
|Henley, L.||Seear, B.|
|Hilton of Eggardon. B.||Scrota. B.|
|Hoffmann. L.||Shaw of Northstead. L.|
|Howe, E.||Smith of Gilmorehill, B.|
|Hylton. L.||Stedman, B.|
|Hylton-Foster. B.||Strafford, E.|
|Inglewood. L.||Strathclyde. L. [Teller.]|
|Irvine of Lairg. L.||Suffield. L.|
|Jay of Paddington, B.||Teviot. L.|
|Jeffreys, L.||Thomas of Gwydir. L.|
|Jenkin of Roding, L.||Thomas of Walliswood. B.|
|Jenkins of Putney. L.||Tope. L.|
|Lawrence. L.||Wallace of Saltaire. L.|
|Lester of Herne Hill. L.||Walpole, L.|
|Lichfield. Bp.||Warnock. B.|
|Lindsay, E.||Weddcrbum of Charlton, L|
|Long, V.||Wilcox, B.|
|Lucas. L.||Wolfson. L.|
|Lyell, L.||Worcester. Bp.|
|Young of Darlington, L.|
Resolved in the negative, and amendment disagreed to accordingly.
My Lords, I beg to move that consideration of the Report Stage of this Bill he adjourned until five minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
Health Service Commissioners (Amendment) Bill
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee. —( Baroness Cumberlege.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord Cocks of Hartcliffe in the Chair.]
Clause 1 [ Providers to be subject to investigation]:
moved Amendment No. 1:
Page 1, line 14, at end insert ("or to purchase or commission health services for the population of any Health Authority Area.").
The noble Baroness said: In moving this amendment I wish to speak also to Amendments Nos. 2 and 3. I welcome the Committee to the uncontroversial subject of the National Health Service!
The purpose of Amendment No. 1 is to fill a gap in the health service commissioners' remit so that the activities of local purchasers, or—as they are often called today—commissioners of health services, can be included. At the moment it appears that only providers of health services fall strictly under the commissioners' responsibility. As Members of the Committee will know only too well, in the new organisation of the NHS, a "provider" has a specific meaning. I hardly need tell the Committee that providers are those who directly give services to patients, whether the providers arc family doctors, community services or hospitals.
Those who purchase or commission the services may be GP fundholders, but are also important local health commissioning agencies, or—as they will be under the new arrangements from April 1996—unitary health authorities embracing both the old DHAs and the old FHSAs. They are, and will be, responsible for funding and assessing the health needs of populations. They were described in the original legislation as the "people's champions" and they arc the bodies with the ultimate responsibility for health in each area. This responsibility will become even more important once the statutory regional authorities—the next tier of health authorities which have existed—disappear at the end of next month. I hope the Minister will agree that it is therefore important that they are specifically and explicitly included in the extended powers of the health service commissioners proposed under this Bill.
Decisions about purchasing can have a profound effect on services and care. Purchasing is about choosing priorities for care within finite resources. If, for example, a local purchasing authority makes a decision only to have one MRI scanner within its statutory area, although it may have three provider trusts—three hospitals—that would affect the level of care on offer in that particular health authority's area. If a patient felt that he or she had suffered and wished to make a complaint because an MRI scan was not immediately available as a result of a purchasing decision that only one scanner would be available within that authority, in my opinion, that complaint would surely he more properly directed towards the purchasing authority rather than the provider health trust, which would house the scanner and directly provide care. Yet, as I understand it, the Bill does not explicitly allow for complaints against those purchasing authorities.
Further, as has happened recently, a purchasing authority may decide not to commission any services at all in a particular clinical field. The example is often given—I think correctly—of IVF treatment being limited to a few specific age groups and a few specific cycles of treatment. Presumably, in those circumstances, an aggrieved woman who sought this treatment should be able to make a complaint. This would be a complaint about a lack of care, rather than a failure of care and would fall—if this amendment were accepted—under the ombudsman's remit. It is important that the activities of purchasing authorities are specifically included on the face of the Bill, particularly as I believe they will increasingly have to take hard decisions about priorities and levels of treatment to be provided in their specific areas. I beg to move.
As I understand it, these amendments are aimed at ensuring that employees of health authorities are covered by the ombudsman's remit. We do not believe there is a need for this amendment. The existing legislation governing the ombudsman already ensures that any health authority employee, and any decision or action taken by or on behalf of a health authority, can fall within the commissioner's remit. Section 7 of the 1993 Act specifically provides that the commissioner may conduct an investigation into matters relating to either NHS contracts, or contracts with the independent sector made by health authorities, boards and trusts.I can understand that, despite assurances given by my honourable friend the Secretary of State in another place, the noble Baroness may still be concerned that the ombudsman is somehow prevented from investigating decisions by managers, and in particular purchasing decisions. I can assure her that the ombudsman can and does investigate such decisions, provided, of course, the complaint falls within his general remit. For example, he has upheld complaints against health authorities for failing to provide a service which it was the duty of the health authority to provide, such as failure to provide continuing care. The Bill will also enable the ombudsman to investigate any clinical decisions involved in purchasing services. It will also bring GP fundholders and their purchasing decisions within his remit for the first time. I can assure the noble Baroness, Lady Jay, that we have left no stone unturned in ensuring that the Bill, together with the existing legislation, allows the commissioner to investigate complaints about all NHS services and about purchasing decisions. Therefore, I hope that the noble Baroness will see fit to withdraw the amendment.
I am grateful to the Minister for that reply. It is an important form of reassurance. Nonetheless, although I understand that much of the commissioner's activities depends on case law and that complaints have been upheld in this area, my concern remains that where there is an amendment to the basic legislation, as intended with this Bill, it would be appropriate to try to make it as specific as possible.The anxiety that I tried to express in moving the amendment is that, as decisions about prioritising resources become more and more difficult and prioritisation in itself affects clinical provision and care at every level, there may well be difficulties about where the complainant should go with his or her complaint about what he or she may perceive as a rationing decision which has had an impact on the care and Treatment received. I would be happier if it were made specific on the face of the Bill that care and treatment under the NHS also include purchasing decisions by commissioning authorities. However, given the clear reassurances from the noble Baroness, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 2 and 3 not moved.]
Clause I agreed to.
Clauses 2 to 4 agreed to.
Clause 5 [ Availability of other remedy]:
moved Amendment No. 4:
Page 4. line 18, leave out from beginning to ("after) and insert—
("(1) Section 4 of the 1993 Act (availability of other remedy) shall be amended as follows.
(2) Subsection (1)(b) shall be omitted.
The noble Baroness said: The Minister will remember that at Second Reading the whole House welcomed the powers given to the Health Service Commissioner to inquire into clinical judgments. Amendment No. 4 removes Section 4(1) of the 1993 Act, which at present prevents the commissioner from conducting an investigation if the complainant has or had a remedy by way of proceedings in any court of law. Therefore, if the complainant has the possibility of taking legal proceedings, the commissioner will now face no statutory bar to undertaking an investigation. Particularly in cases concerning clinical judgments, there will often be more than one route for redress. However, there is a problem as the Bill stands at present.
I recognise that one of the main aims of extending the commissioner's powers to cover clinical judgment is to ensure that there is less litigation. We welcome the fact that complainants will no longer be forced to go to the courts through lack of options, or be denied access because of the cost of seeking that remedy. However, complainants who want an investigation by the commissioner and also want to seek damages should not be prevented from so doing. The commissioner himself, in his consultation on the extension of his powers, recognised that legal proceedings provide no assurance That any action will be taken to prevent a recurrence of the matter complained about, whereas his investigation can give such an assurance. On the other hand, he cannot award damages. Therefore, the outcome of those two routes is quite different, and often the complainant would like to sec them both implemented. In addition, the complainant may not be certain about the outcome he is seeking.
Research has shown that most patients, when they begin legal action or apply to the health service commissioner for an investigation, are mainly looking for an apology and want to find out what happened and why it happened and, above all, they want assurances that it will not happen again to any other patient. That may well have been their very first concern. Financial considerations can be a secondary concern. However, at present under the Bill the patient is in an either/or situation, because the commissioner cannot ensure that they receive compensation and the courts cannot ensure that there is redress and that the problem complained of will not happen again.
Secondly, on many occasions it will be difficult for the patient to know whether to opt for legal action in a court. In clinical judgment cases it may often take some time before it becomes clear that there is a case for compensation to be answered in court. Complications resulting from treatment can sometimes take six months or up to a year to manifest themselves. However, a complainant is expected to undertake not to pursue legal action after the commissioner has investigated. Therefore, the complainant has lost his opportunity to go to the courts. I believe that that is not fair.
I hope that the Minister will be able to meet my anxieties on this question and agree to the amendment. I beg to move.
I understand what the noble Baroness seeks to achieve with the amendment. However, we believe that the amendment goes far beyond the scope of the Bill. It also raises radical questions about the role of the ombudsman in relation to the courts, bringing his health service remit out of line with his parliamentary one. It would seriously undermine the whole objective of the reformed complaints system, which I know the noble Baroness strongly supports, to ensure that complainants are dealt with openly and honestly while being scrupulously fair to the professionals and staff concerned.The amendment would revoke the provision in the 1993 Act which ensures that the commissioner's role does not usurp the role of the courts. The commissioner is prevented from investigating a complaint where the person has a remedy which could be pursued through the courts, except if the commissioner is satisfied that it is unreasonable to expect the person to resort to the courts. The commissioner's role is not and never has been to determine questions of clinical negligence or to give complainants damages. That is for the courts to decide. His role is and always has been distinct from that of the courts. What the commissioner can offer is an investigation and explanation of the facts, recommendations for an apology to be made and for matters to be put right both for the complainant and for other patients. We know that that is what the vast majority of complainants warn to achieve, as the noble Baroness said. We hope that the Bill will help some people who otherwise might have felt that the only way to achieve that is through an expensive and stressful legal process. However, the Bill should help to reduce the incentive to resort to litigation. The commissioner's paper makes it clear that in deciding whether to investigate a case which could have gone to court, he will carefully consider what the complainant seeks to achieve. Where the complainant's primary concern is to obtain damages, or there is evidence that he is already seeking or considering a legal remedy, he will be unlikely to investigate. It would be quite wrong for people to embark on fishing expeditions and to use the process as a means of trying to build up a case for seeking damages in the courts. If complainants could have an ombudsman investigation at the same time as taking legal proceedings, the professionals and staff concerned could be put in the impossible position of having to respond to an ombudsman's investigation at the same time as defending themselves against legal proceedings. I hope that in the light of what I have said, the noble Baroness will not seek to press the amendment.
I understand the problem with my proposition. However, it seems to me such a tragedy because I know that in most cases, even when a case goes to court, the complainant desperately wants to prevent the same thing happening to someone else. We ought to be able to devise a system whereby that can be achieved. I may be mistaken in thinking that it can be achieved through the health service commissioner. Perhaps the system of judgment in a court case should include a remedy and recommendations to the institution. I am not quite sure which way to deal with the issue. However, for today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 5:
Page 4, line 32, at end insert (", or
( ) a complainant has elected to refer the action to a Commissioner with a request for investigation before the other procedure is exhausted.").
The noble Baroness said: The purpose of the amendment is to give health service complainants the opportunity to refer their concerns to the ombudsman before the earlier complaints procedure has been exhausted. I imagine, indeed I hope, that those would be in exceptional circumstances.
In his extremely helpful paper on his new responsibilities, the commissioner says that he will not normally investigate a complaint until NHS procedures have been exhausted. We all hope that those procedures will go smoothly, with everyone involved happy that the complaint is being considered at the first and second stages on the famous level playing field. Indeed, we would hope that most complaints would be satisfactorily resolved during those local proceedings and would never reach the ombudsman's desk.
However, it seems at least theoretically possible that there will be occasions when a complainant feels that his or her case is not being totally fairly treated: that perhaps because of a history of personal antagonism, the position is being distorted or inadequately represented. We perhaps can all think of situations in which a particularly had personal relationship, possibly between a doctor and a longstanding "difficult" patient, might lead to the difficult patient feeling that somehow his case was not being appropriately advocated. That potential suspicion is increased by the fact that in the early parts of the complaints procedure the whole process will be in the internal hands of some of the trusts and some of the health service managers who could, in the worst circumstances, be accused of possible collusion with local clinicians and their own colleagues.
The third possibility of concern for the complainant is a potentially difficult and longstanding delay in procedures which in the worst circumstances could be construed as deliberate, leading to a legitimate complaint and a wish on the part of the complainant to accelerate the procedures towards the ombudsman.
In his paper, the commissioner says that he is prepared to act on his own discretion where there are instances of what are described as "unreasonableness". However, as so often in the Bill, there is difficulty about precisely what constitutes "unreasonableness". The amendment gives the discretion, the choice, to the complainant, where I feel that it should surely lie. The amendment would not make it necessary for the ombudsman to investigate every case which might be referred earlier in the complaints procedure. It would simply allow the complainant to choose that route if or she so wished.
I remind the Committee that this proposal was included in the original Wilson Report on which the Government's reform of the complaints procedure has been based.
At Second Reading, I quoted from the 1993 report of the Select Committee for the Parliamentary Commissioner for Administration which stated:
"'The complaints system in the NHS seems designed for the convenience of providers of the service rather than complainants"'.—[Official Report. 12/2/96: col. 485.]
At Second Reading the Minister agreed with me that there were aspects of the present system which could be described as an unfriendly maze. Undoubtedly, as all sides of the House agreed at Second Reading, the proposals in the Bill are an important step towards making procedures more accessible and increasing the rights of NHS users when they wish to complain. The amendment simply improves their position still further. I beg to move.
8. 15 p.m.
I support the amendment. As the noble Baroness, Lady Jay, said, we all know of occasions when there is animosity between a member of the medical profession or staff and the patient going through the complaints procedure. We also know that on those occasions there can often be deliberate, excessive delay. The patient feels that however much we claim to have improved the complaints procedure it will not satisfy him.I support the amendment because it gives the complainant the right to refer to the commissioner. It does not force the commissioner to investigate, but I am sure that it would alleviate much of the frustration of some complainants who feel that they are not being properly looked after.
The amendment would have the effect of nullifying Clause 5 by allowing a complainant to choose whether or not he should exhaust the local NHS complaints procedures before investigation by the ombudsman. Clause 5 gives the ombudsman discretion to investigate a complaint without the local procedures having been invoked or exhausted. He has to be satisfied that it is not reasonable in the particular circumstances to expect the complainant to have invoked or exhausted them. The ombudsman believes, however, that complainants should normally seek first to resolve their concerns through the local complaints procedures. That is in line with accepted good practice in other parts of the public sector and, for example, in the case of complaints to regulators such as Oftel and Ofwat. In her Citizen's Charter Complaints Task Force report, Lady Wilcox recommended that public services should provide an opportunity for independent review of complaints before they reach the ombudsman. That is precisely what we are seeking to achieve through our reformed NHS complaints procedure. We must give the new system a chance to work properly.The amendment would remove the ombudsman's discretion and leave it entirely up to the complainant whether or not he exhausted the procedures. We do not believe that to be right or sensible, or indeed fair to NHS staff and professionals. It could cause the ombudsman's office additional operational difficulties. The ombudsman has given in his paper two examples of cases where he might consider it unreasonable to invoke or exhaust the local procedures: where there has been excessive delay in handling the complaint; or where, in very exceptional circumstances, the complainant's confidence in the local complaints arrangements has completely broken down. There may be other examples. The ombudsman will need to decide each case on its merits. In the light of my remarks I hope that the noble Baroness will not press the amendment.
I am grateful to the Minister for that reply. There is no potential controversy between us about the need, if possible, to resolve all complaints at the local level, or about our enthusiasm for the extended local procedures which will make that more likely. The concern is precisely that addressed by the noble Baroness, Lady Robson; namely, where the emphasis lies in terms of who can instigate the exceptional procedures when it is thought that the local situation is not satisfactory. As the Minister mentioned, the two specific examples given by the commissioner relate to excessive delay and to the area of the breaking down of confidence. But that again depends entirely on his judgment and initiative in taking the proposals into his own court.This amendment may not be in the right position in the Bill. I am sure that the noble Baroness will be able to find a more appropriate section for its inclusion so that it does not annul a provision which I agree with her is important. But the concern reflected in the amendment is that complainants should be given some rights in instigating those procedures, and some important role, to make them feel that they are at least equal partners in a decision about what may have been a very serious episode in their lives, rather than relying on what I am afraid will appear to be a somewhat remote and distant body, in the form of the health service commissioner's office, to determine precisely at what stage be and his office will enter the proceedings. I do not feel entirely satisfied with the Minister's reply. Although I understand precisely her points about the inadequacy of the present positioning of this amendment in relation to the Bill, I still feel that, given points raised by the noble Baroness, Lady Robson, and myself about the potential difficulty and powerlessness of a complainant faced with the procedures, even under the reformed system, I may need to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [ Exercise of clinical judgment]:
moved Amendment No. 6:
Page 4, line 44, at end insert ("in the course of—
The noble Baroness said: This is a probing amendment. It is designed to try to clarify and limit those areas that can legitimately be described as "clinical judgment" and be the subject of a complaint about clinical judgment under the extended powers of the ombudsman. I have no doubt in this instance that the wording, or indeed the concept and the placing in the Bill can certainly be improved. However, the purpose at this stage is to ask the Minister to consider the problem of identifying, as it were, ring-fencing the definition of "clinical judgment", which would enable both the complainant and the ombudsman's team to be precise.
I said at Second Reading that I feared it would be very difficult, on the ground, always to distinguish between matters of clinical judgment and maladministration, and difficult for everybody concerned to put complaints and consideration of complaints into the appropriate pigeonhole.
I return to the example of the ever-present—or perhaps never-present—scanning machine. If a doctor makes a diagnosis on the basis of an examination that does not include a scanner because a scanner is not available, and that diagnosis turns out to be disastrously wrong but would have been right had a scan been taken, is the patient to make a complaint about clinical judgment, maladministration, or both?
Equally—as happened in the recently very well publicised case involving the consultant who successfully sued the Daily Mirror for libel—if it is decided clinically that the patient needs an intensive care bed but intensive care is not immediately available, is it legitimate to complain that the clinical judgment about the treatment should have been altered so that the patient
could have been treated in a less intensive way in the local hospital where he was? On the other hand, is it more legitimate to complain about the administrative decisions which may have caused the initial lack of an ITU bed and which indeed subsequently caused the patient to be flown hundreds of miles to another hospital? I suspect that these kinds of case will arise very often. It is clear that many occasions arise when there is a medical emergency in which a very rapid clinical judgment is taken, often in circumstances of extreme stress both to the patient concerned and to the medical staff. In such circumstances clinical judgment will be involved but so also will other issues which could or could not be described as maladministration.
To be fair to the complainants, but also, very importantly, to be fair to the doctors, nurses and any other staff involved in such decisions, we must try at this stage to be more precise about what we call clinical judgment and what we describe as legitimate complaints that fall under that heading.
As the Committee knows, it is an extremely sensitive area of professional practice that the commissioner is entering. The whole area of clinical judgment has always been regarded almost as a matter of holy writ in the medical profession. It is significant that in his useful background paper, to which I have already referred, on his responsibilities, Mr. Reid, the present health service commissioner, does not elaborate at all on this area of what precisely will be deemed to be clinical judgment. He emphasises, rightly I am sure, that he will need significant professional advice to fulfil his new responsibilities in this area.
Certainly, peer group review of complaints of clinical judgment will give confidence to those whose judgment may be complained about and may need to be assessed. Mr. Reid also mentions that he will take account of the balance of judgment in cases where there is perhaps a conflict between those assessing clinical judgment on his behalf. Perhaps the Minister will tell the Committee whether the expectation is that a clearer picture will emerge from the evaluation of the early cases presented to the commissioner about clinical judgment. I feel that we have a parliamentary responsibility to try to give some clear statutory guidance on this new area. I beg to move.
I have considerable sympathy with the aim of this amendment. It seeks to clarify the meaning of the words "clinical judgment" by borrowing words that were used in the 1993 Act to prevent the commissioner from investigating complaints about clinical judgment.I assure the noble Baroness, Lady Jay, that there are no sinister intentions behind the fact that the parliamentary draftsman has not used those words to limit the meaning of the term "clinical judgment" in Clause 6 of the Bill. The drafting is in fact aimed at making the intention of the Bill clearer. In order to specify decisions that arise from the exercise of clinical judgment, it is not necessary to use all the words that were used in Section 5 of the 1993 Act. The words,
are quite sufficient to define what is meant. The amendment would bring us no nearer to a definition of the concept of clinical judgment. It would simply limit the circumstances in which clinical judgment could be said to be exercised. I assure the noble Baroness that the intention of Clause 6 is to cover clinical judgment when it is exercised in the course of a diagnosis of illness or the care and treatment of a patient. But the addition of those words to the drafting of the clause would risk confining, unhelpfully, the circumstances in which clinical judgment can be held to be exercised. For example, a complaint might be made about the refusal by a health professional to release a part of a person's health records because it contained information which, in the opinion of that professional, was likely to cause serious harm to the patient or any other individual. In such a case, the health professional would have exercised clinical judgment in deciding not to release that part of the record. But it could be argued by a person seeking to challenge the ombudsman's investigation that that judgment was not exercised in the course of the diagnosis of illness or the care or treatment of the patient. The concept of clinical judgment has not been defined in any of the legislation governing the powers of the health service commissioner. It is, rather like maladministration, a developing concept. It will be for the commissioner to decide, with advice from his professional advisers, whether and which aspects of any given complaint concern clinical judgment. However, a working definition which my honourable friend the Parliamentary Under-Secretary of State offered during the passage of the Bill in another place is a judgment which a member of one of the health care professions exercises by virtue of the particular expertise and training of his or her profession and which a lay person would not be able to make. The vast majority of complaints about the exercise of clinical judgment are likely to involve doctors and nurses. But, again, even the concept of the recognised health care professions is continually developing as new forms of therapy become accepted parts of clinical treatment in the NHS. It will be for the ombudsman to decide when he needs to seek particular professional advice for any given complaint. I know that that is not a satisfactory answer for the noble Baroness, but I hope that it has gone some way to allaying her fears."in consequence of the exercise of clinical judgment",
I am very grateful to the Minister for that reply. As I said in moving the amendment, I know that this is an extremely difficult area. It is almost one for which one needs some kind of university seminar rather than a piece of legislation. But I still feel that it is helpful to try to make these concepts as clear as possible.I appreciate that, in a way, what I put into my amendment unhelpfully limited the definition of clinical judgment, although, as the noble Baroness rightly said, it was drawn from the language of the previous Act. It is certainly not my intention to try to do it unhelpfully but rather to do it helpfully. I suspect that, as the noble Baroness said in her concluding remarks, this issue will have to depend on case law. I feel that there will be potential difficulties where the two areas of potential complaints—of maladministration and clinical judgment—may (if it is not an inappropriate metaphor) bleed into each other. Difficulties may arise. Given what the noble Baroness said about the ombudsman's determination to use peer group review and to work on the basis of experience and case law, I hope that we shall have another opportunity to discuss how Parliament may examine those reviews. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clauses 7 to 9 agreed to.
Clause 10 [ Reports]:
[ Amendments Nos. 7 and 8 not moved.]
Clause 10 agreed to.
Remaining clauses and schedules agreed to.
House resumed: Bill reported without amendment; Report received.
My Lords, I beg to move that the House do now adjourn during pleasure until five minutes to nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[ The Sitting was suspended front 8.35 to 8.55 p.m.]
Family Law Bill Hl
Consideration of amendments on Report resumed on Clause 4.
[ Amendments Nos. 12 and 3 not moved.]
moved Amendment No. 14:
Page 3, line 2, at end insert—
("( ) a statement made under this section has been made by one party and that party has given notice (in accordance with rules of court) withdrawing the statement;").
The noble Lord said: My Lords, this is a modest probing amendment which is perhaps appropriate for after dinner. Some noble Lords, and perhaps all, may have noticed that there is no provision in the Bill for a party to withdraw a statement if the statement is made by only one party. To put that another way, if one party makes a statement, it cannot are withdrawn unless both parties agree.
I can see that that would are a strong discouragement to the making of frivolous statements, and that may are the argument for the provision. On the other hand, it may leave a sword of Damocles hanging over the party who made the statement if, after looking into the matter during the 12-month period for consideration, that party came to the conclusion that an appalling mistake had been made. The other party who had not made the statement would then be able to use it as a threat, particularly during the period between the 12th and 24th month, when negotiating or obtaining agreement on matters of concern between the parties. Perhaps the noble and learned Lord can explain why that curious provision was introduced.
My Lords, is the noble Lord speaking also to Amendment No. 23?
My Lords, I apologise to the House. The noble Baroness is correct. I was speaking to both Amendments Nos. 14 and 23. I beg to move.
My Lords, under the current terms of the Bill, parties are required to give joint notice of withdrawal of a statement even where only one party has made the statement of marital breakdown. The reason for that is, where the period for reflection and consideration has run for some time, the party who did not make the initial statement may well come to the conclusion that a divorce or separation is the best course of action. That may be because of matters that have arisen during that time which convince the party that the marriage has broken down.If the party who made the statement of marital breakdown is able to halt the process by withdrawing that statement independently of the other party, then the latter party will be required to make a fresh statement and go through a further period of reflection and consideration before they can apply for an order. It should are emphasised that the initial party may well are with drawing the statement only because they have recognised some material disadvantage which they may suffer and not because the relationship has a real chance of being saved. In order for a reconciliation to be successful, both parties must be willing to attempt it. If the party who has not made the statement wishes to attempt a reconciliation, then joint notice can be made withdrawing the statement. There is no problem about that. If not, then the period for reflection and consideration already undertaken by the parties, which is likely to have been a very painful time, should not be perpetuated needlessly. Where one party can make a statement and withdraw it at will without the other party's involvement, there is a grave danger of the whole process being misused. Making a statement of marital breakdown ought to be a serious step, and that is my intention. It should not be used, for example, where one party wants to make a point in a fit of anger or to teach the other party a lesson. It is important, therefore, that a party who initiates the period does so with due consideration and in the knowledge that there is a risk that if they change their minds the other party by then may well have been stirred up into thinking that the marriage has indeed broken down and therefore that the best course is to continue with the period and make an application at the end of it. It is not right that one party should be permitted to play cat and mouse by withdrawing a statement unilaterally without regard to the wishes and feelings of the other party. It could then are reintroduced again, are taken back, and so on. One can imagine what might happen. Such a situation is bound to lead to hostility and to heightened conflict. I appreciate that Amendment No. 23, also tabled by the noble Lord, is designed to allow a party who has not made a statement and subsequently decides that they want to continue with the divorce process to join in with that initial statement. However, this would seem to are a rather hit and miss process, as the party who has not made the statement will not necessarily are aware of the intentions of the other party until after the latter has withdrawn the statement. It would then be too late for the party to join in the statement. In any case, it may well not be until the party who has not made a statement is required to consider whether or not they want to make joint notice of withdrawal of a statement that they will come to the conclusion that too much has happened for them to go hack, and that they do in fact wish to continue with the divorce or separation. The party who has not made the statement must are allowed to have some control over the process. It is important that we make the divorce process as non-adversarial as possible and that we stop the situation which exists at present where one party "owns" the divorce and gets his or her divorce against the other party. This is also why, where an application for a divorce order is made by one party, the current drafting of the Bill allows for the party to a divorce who has not made the application to join in that application. I hope that this explanation indicates to the noble Lord what we have had in mind in the way the Bill is drafted. It gives an importance to the statement which I think would be appropriate.
My Lords, I am grateful to the noble and learned Lord. I wanted to hear what are had to say and to get it on the official record. There is a matter of balance here. An unscrupulous husband might taunt his wife into making a statement which she would subsequently regret and are would then have a considerable power over her during the subsequent 24 months. But I accept what the noble and learned Lord says. The balance is probably correct in the way are has it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.