WEDNESDAY 1 JULY 1998

RT HON LORD JUSTICE THORPE

  120.  I just want to say how much I enjoyed reading your paper. It rather broke one of my promises that I thought I would never ever have to talk about the rule against perpetuity again but you mention it in here. Can we turn to trust law. The Landau case worried me considerably for one reason. It concerned section 226 retirement and annuity policies. There used to be an assumption that trustees in bankruptcy could not actually get their hands on pensions. The Landau case tells us now that the trustees in bankruptcy in this case could. So we have got one group of people who acquire pension rights via one route which suddenly exposes them to trustees in bankruptcy and the 1995 Pensions Act specifically excludes occupational pensions and says that these rights cannot pass on to trustees in bankruptcy. I am slightly worried when we move into pension sharing whether we are starting with an uneven playing field, that the law has got itself in a little bit of a mess and that may need to be sorted out before we move further.
  (Lord Justice Thorpe)  I have to say that I do not feel competent to help you with this. I do not know anything about the problem, I have not encountered it, I have not researched it, I have not thought about it. I would not want to say anything off the cuff because I suspect it would not have any value.

  121.  Would the same response apply if I wanted to press you whether the Landau case now makes pensions `choses in action'?
  (Lord Justice Thorpe)  I am afraid you would get the same answer.

Ms Stuart:  Right, that is me finished.

Mr Wicks:  You rest your case.

Ms Stuart:  I rest my case, your honour.

Chairman:  Quite right, thank you very much. Can we now turn to an area of the inquiry that looks at the aspect of this inquiry that is part of the modernisation of the House. Edward Leigh has some questions on that subject.

Mr Leigh:  I was amused to hear you say just now "I would not want to say anything off the cuff because it would not be very valuable". That certainly does not apply to politicians. I will come to the modernisation of the House in a moment. I have always been very suspicious when all three political parties enthusiastically support something, such as the setting up of the Child Support Agency which has caused me more misery during my surgeries in the last five years than anything else. You may not want to comment on this, it is not a party political question, it is more a general interest question. I am also very suspicious about this. I think there is already a huge amount of disquiet, mainly by men— I am not making a sexist point I hope—they feel that they are hugely disadvantaged by the process and they lose their kids, they lose their wife, they lose their home and now they are going to lose their pension, or so they think. That will be the general thinking.

Ms Stuart:  They are free.

  122.  They might not want to be free. My personal view was that we in Parliament made a huge mistake in taking away the support of children decisions from the courts and nationalising it in effect, giving it to the Child Support Agency. Do you think we may be making a similar mistake here? Are there concerns that you have at the back of your mind about the process that we are embarking upon?
  (Lord Justice Thorpe)  No, I do not at all, because it seems to me that all you are doing is better arming the adjudicator to achieve his objective. Of course, one of the criticisms of the existing statute is that the objective originally legislated in 1970 was legislated out in 1984 and not replaced, so what is the objective? The assumed objective is do to fairness but then what is fair? There is no absolute quality of fairness. What is fair depends on where you approach it from. You mention as a sort of group fathers who feel that they have been totally emasculated by the system and their concept of fairness would be completely different from the concept of fairness of, say, the Family Rights Group. There is a number of associations that have a strong case in relation to ancillary relief for reform and they all start from very different positions and they have very different concepts of what is fair. So I do think that the case for putting an objective into the primary statute is that we need to be told by legislators what is the social policy. You have to strike a balance between the various interest groups as well as, I suppose, reflecting experience that comes through operating a constituency surgery.

  123.  I suppose that leads me on to my next question. You said that you as judges want to be given firm guidance by Parliament and by us legislating on what is social policy. When I first came into Parliament it was very clear that judges just interpreted what was on the face of the Bill. Since then we have had the Pepper v Hart case and I take part, as one of a diminished band of Conservative MPs, in quite a lot of report stages of Bills and speak obviously at length on them and not a report stage goes by now when somebody does not mention Pepper v Hart and say that "This is a very interesting discussion we are going to be having because judges pore over the Minister's words and what he is saying and that will help the judge interpret what it is in the statute". We use that as a device often to question. We were doing this last week with the Home Secretary on the Human Rights Bill [Lords]. What has been your experience of Pepper v Hart? Do you think it has been a useful judgment? Has it helped? Has it made life more complicated to have practitioners start producing Hansard in front of you?
  (Lord Justice Thorpe)  I want to declare my limitations. I remain a family law specialist, although I sit in a court that takes all manner of civil appeals. I have never known the case of Pepper v Hart cited in a family law case.

  124.  That is reassuring.
  (Lord Justice Thorpe)  Statutory construction may determine the outcome of a family case or a family appeal but it is very rare and generally only in the early years after the enactment of a major statute. Ninety per cent of family law adjudications are discretionary as opposed to other fields of civil law where the outcome both of trial and on appeal will often turn on the construction of a statute.

  125.  On the construction of the present statute have you been consulted on it in your position? From your reading of it are you satisfied that the courts will have no difficulty in interpreting it?
  (Lord Justice Thorpe)  The short answer is yes. The longer answer is that I am very grateful that during the consultative process the Lord Chancellor's Ancillary Relief Advisory Group was included and, therefore, had the opportunity to have its say on the development. The points that we urged have all been taken and by and large reflected so we are both grateful that we were consulted and particularly grateful that the points we urged have been recognised. We do not have any concerns.

  126.  You told us that Pepper v Hart is not normally needed in family matters and I understand that because it is discretionary and much more informal, although of course as Lord Justice of Appeal you can presumably share your experience with us of other aspects of the law. Are you satisfied that the legislation is so clear that Pepper v Hart is not needed?
  (Lord Justice Thorpe)  I have not. Sufficient unto the day really. I am afraid we work under great pressure and it is hard enough keeping abreast of what is on the Statute Book. What is on its way to the Statute Book you do your best to keep up with but always reassured by the knowledge that you will not actually have to deal with it until it arrives. I believe this to be a well drafted Bill and I would not have any criticism of it at all. I have to say that I have not pored over it.

  127.  It may be you cannot answer this question. As you know this is a novel procedure for us being consulted. I think the jury is out on this procedure myself, it rather depends on the degree to which civil servants are prepared to co-operate with Members of Parliament rather than simply briefing Ministers which has been the traditional role. Do you have any views on the process we are undertaking this morning having had the opportunity of speaking to us for an hour and a half and giving, if I may say so, very concise and interesting answers?
  (Lord Justice Thorpe)  I think anything I say about it will be necessarily rather superficial because I am not sufficiently informed but it seems to me superficially to be a very sensible system.

  128.  Coming back to some aspect of Pepper v Hart, the antecedence of that case was really should judges look at Hansard and Ministerial statements to derive some indication of what the intentions of Parliament were in case of ambiguity of statute. The pension splitting on divorce had its antecedence as a property splitting device, there was perceived to be inequality. If you look at the forward of the draft paper by the Secretary of State it becomes quite clear that an equal and paramount consideration of pension splitting on divorce is to provide both partners with a foundation of allowing them to provide for pension entitlement. That would mean if you as a judge were faced with a decision the pension or the house or should it be half of each, if Parliament's intention appeared quite clear to favour half, half each, because it would give them both a pension basis, would you consider going back to Hansard even if the statute is not very clear? I am just trying to construct an area where you would feel you would go back to the intentions of Parliament if you perceived an ambiguity in the statute.
  (Lord Justice Thorpe)  It is hypothetical but I suppose the hypothetical answer is yes. I can only say that the need to do so has yet to arise in the family law field as far as I know. I think it would be pretty unlikely as a hypothesis.

Chairman:  We as a Committee are quite interested in the way that cohabitation versus the state of marriage is evolving. You obviously have a lot of experience in this field. Malcolm Wicks has got one or two questions that he would like to ask.

  129.  It would be helpful if you could just briefly explain the present state of the law on cohabitation as it touches on the issues of concern to this Committee.
  (Lord Justice Thorpe)  The rights and obligations of cohabitees at the bust up stage are simply the ordinary property rights with no power of judicial intervention. Obviously there is a strong argument that there should be some special statutory provision to recognise the rights and obligations of those who have lived together for what may be a long time and have shared a lot together during that period. My understanding is that the Law Commission has been asked to report and that they are well on their way. It does seem to me to be a major issue that needs to be debated and decided within the legislature in the foreseeable future.