Examination of witnesses (Questions 290
- 299)
WEDNESDAY 15 JULY 1998
MRS
HILARY
SIDDLE,
MR
ROBIN
ELLISON
and MRS
DIANE
BURLEIGH
Chairman
290. Good morning, ladies and gentlemen.
Can I open the morning's session of public evidence and welcome
the delegation from the Law Society? Mrs Hilary Siddle, who is
chairman of the Law Society Family Law Committee, Mr Robin Ellison
from Eversheds in London and Mrs Diane Burleigh, who is a deputy
director of the policy directorate. We are very grateful for your
attendance this morning. We are grateful to you for the note that
you have submitted to us, but I think, Hilary, you said you have
a bit more work to do and you might be able to take advantage
of some more substantive consideration of the issue of transfer
of pensions on divorce at a later stage. Maybe you could tell
us a bit more about that? There are one or two areas of interest
to us that we would like to pursue with you in what is, after
all, a 45 minute but all too short a period this morning. Could
you just say a word about what you are doing in the future?
(Mrs Siddle) Yes, indeed. I will be very brief.
The Family Law Committee has a role which includes looking at
law reform and also developing practice for family solicitors.
The Family Law Committee looked at this Bill and the issues raised
by the Bill only last week. We also have a pension subcommittee
which also looked at it last week. There were a number of specific
points which I do not want to spend time on this morning, which
we are going to put in written submissions and we will bring them
to you as soon as ever we can. There were some specific points
that we had concerns about. Robin may touch on them briefly but
I do not want to waste time this morning on the detail. I would
like to say two things. Firstly, we are very pleased to be invited
before this Committee and to have a role in the process because
we have had concerns in the past, where legislation has come in
and people have not actually asked the people who are going to
have to make it work whether or not it will work beforehand. We
really do applaud the process and we are very grateful for the
opportunity. The second thing is I have had the opportunity of
seeing some of the transcripts of some of the evidence you have
already heard and I do have a concern on behalf of family lawyers
that there appears to be a movement away from what I thought and
what the Family Law Committee thought was the original intention
of this Bill, which was to be able to divide pensions on divorce
to assist in the fair division of matrimonial assets. I have seen
a number of comments which have indicated that possibly government
is looking to use this Bill to provide pensions for women or to
redress the pensions imbalance between men and women. That I think
is a different issue and I do not think that should be the prime
purpose of this Bill. Our understanding is that this Bill comes
in as a result of the Family Law Act and the issue of inequality
of pension provision for all women I think is a different issue.
I would not like to see this Act in any way being watered down
or changed by there being certain presumptions which will affect
the whole question of the division of assets on divorce.
291. It is a very important issue. It is
our purpose as a select committee doing a prelegislative inquiry
to make sure that everybody is absolutely clear about the fundamental
purpose, but you are right. There has been some discussion in
earlier evidence sessions where we have been testing just exactly
what people have in their minds. If you have a strong view about
that, that is extremely valuable for us to know. We look forward
to continuing the dialogue on that particular issue. I wonder
if I can start by asking some fairly fundamental questions initially
about training. Do you think that the profession will respond
to these new, quite technical complex provisions that are in this
piece of draft legislation by establishing training procedures
that do not exist? I understand that there are some discussions
going on about kite marking or accrediting practitioners. Could
you say a bit about that, if it is true, and whether you think
it will be adequate for the purpose?
(Mrs Siddle) When I leave this meeting, I am going
back to the Law Society to attend a meeting which is specifically
about our family law accreditation scheme, which has been set
up. It becomes operative on 1 January next year, but we are developing
it at the moment. It is for family law practitioners. It is to
accredit family law practitioners.
292. Across the whole gamut of family law?
(Mrs Siddle) Across the whole gamut of family
law, apart from public law children's work which is covered by
a separate panel.
293. Will that have a section that will
deal in particular with the new challenges of trying to make sense
of the provisions of this Bill?
(Mrs Siddle) It does not at the moment. In fact,
one of the things I am going to do is discuss the criteria. At
the moment, we have a specific condition that people have to have
specific training for the Family Law Act 1996, which of course
has not yet been implemented. I am going to go back at lunch time
and say that I think we need to widen this, not just to cover
this Pensions Bill, which actually flows from the Family Law Act,
but also to cover future legislation. Yes, we will. That is absolutely
certain.
294. In your consideration of that question,
will you contemplate, although it is technically nothing to do
with you, how you would deal with mediators in any mediation system
that developed in the area of divorce counselling, in terms of
advice about this Bill? If you had a system that was good and
worked for your own members, could you devise or suggest a system
that might cover that eventuality: mediators who are not necessarily
signed up members of the Law Society as well?
(Mrs Burleigh) We are also at the very early stages
of developing an accreditation panel for solicitor family mediators.
Part of the standards for that is particular training and knowledge
of the law and this will include this pensions law. In developing
those standards, we have worked all the time with the other mediation
organisations, both lawyer mediators and non-lawyer mediators.
As yet, there is a broad consensus about the kind of knowledge
that people should have. It is a broad consensus as opposed to
a detailed consensus. My own view of dealing with mediators is
that there is still some work to be done on agreeing the detail.
You do have to remember however that, within a mediation, the
mediators do not give people advice. What they will need to have
is a knowledge of the framework of all ancillary relief and how
the different tools can be used which will include pensions.
295. You are pretty confident that, at the
end of this process, it will actually weed out incompetent practitioners?
(Mrs Burleigh) Yes, we are. As the Law Society,
we would not be embarking on setting up panel schemes unless we
thought it would weed out the incompetents. They would not be
able to get on our scheme.
Chairman: Can we turn
to the area of fees and charges?
Mr Leigh
296. Before I ask that question, I want
to make one point as I have the Law Society in my sights at the
moment. When we had the Crime Disorder Bill coming through Parliament,
I made repeated requests to the Law Society for briefing and amendments
and we got really a pitiful amount of briefing on a Bill of acute
concern to hundreds of thousands of solicitors around the country.
I do hope that when this Bill comes to a Standing Committee we
will have somebody from such a large organisation as the Law Society
permanently based on the Standing Committee, briefing them and
all backbench Members so that the government can be questioned,
so that we can question properly, with proper research and we
actually get a good Bill coming out of it. Can I make that point?
(Mrs Siddle) You can indeed and in fact I am delighted
to take it on board. Criminal law is not my area.
297. I know, but we are now going to get
a massive Bill going through Parliament of huge complexity and
it is important that people like you and the people sitting at
the back of the room also have the particular expertise to brief
us properly. I am very worried about fees and charges for obvious
reasons. I will start with the poorer families. You say in the
letter to us under (b)(iii): "... it is important that the
Government makes it clear to the public that pensions sharing
may not be as available or effective in practice as many people
hope that it will be." I am very worried about this because
I think that already, if you are on a modest income and self-employed,
there is currently no incentive to take out a private pension
anyway because, when you retire, if you simply fell back on the
state, you would get income support and, if you have made modest
provision for yourself, you are paying while you are working.
What we are doing is possibly dividing up very small sums of money
which will be totally inadequate. Have you any comment to make?
Perhaps this is an impasse and there is no way out of it except
to make this clear to the public.
(Mrs Siddle) I do have a comment to make because
I think the perception is important and the reality is a different
matter altogether. My practice is in the north of England. I deal
with very ordinary people of very modest means, so I understand
people who have very modest means, people who cannot afford to
provide a second pension because they do not have the income to
provide it, and people also who may not have a continuous record
of employment with one employer who provides a pension. There
are still a lot of employers, especially small firms, who do not
have an occupational pension scheme. I think, at the end of the
day, what we are looking at here is the division of assets which
exist. What I am concerned about is we must not let people think
that we are somehow going to divide non-existent assets, or give
them the illusion that they are going to get some pension benefits
which they have not provided for themselves. That is what we are
concerned about, that there may be a public perception that this
will give a divorced wife a pension when in fact there is no fund
there anyway, or the fund is so small that dividing it will not
provide her with anything very much. That is my concern.
298. Or could just take, for instance, people
above the level of income support. Do you want to say anything
about legal aid, the statutory charge? How will legal aid be involved
in this? Do you know?
(Mrs Siddle) If people can reach agreement themselves,
obviously there will not be any need to apply for legal aid. Legal
aid is only available in connection with proceedings if they cannot
reach agreement. It will be available for ancillary relief proceedings.
That means an application generally in the divorce with regard
to all the matrimonial assets. The division of the pension will
only be one factor within that, but legal aid will be available.
The statutory charge, the legal aid costs, attach to anything
which is recovered in those proceedings over £2,500. The
pension will be an asset which is recovered, so the statutory
charge will attach to some assets or can be deferred in certain
circumstances, but only at the moment in connection with the matrimonial
home.
299. Is there any way in which we can try
and reduce the costs by having stamped forms procedures? Have
you done any work on this to try and reduce the costs to the public?
(Mrs Siddle) I am sorry; you mean so far as pension
funds are concerned?
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