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"We welcome the fact that the Bill widens the list of categories of those who may apply for Orders. However, we very much regret the fact that two categories recommended by the Law Commission—those who at any time had agreed to marry each other and those who have or have had a sexual relationship with each other—were rejected. The reasons for our concerns are as follows"

and this applies to my amendment—

"Those who had agreed to marry:
We are concerned that this omission may disproportionately affect members of some ethnic minority groups where formal agreements to marry are customary and where co-habitation may not be involved."

That makes the case that I want to put. I beg to move.

The Lord Chancellor (Lord Mackay of Clashfern): As your Lordships know, I have taken the view that this amendment is not appropriate. I believe that it would

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introduce into the Bill a category of persons who could have considerable difficulties in relation to definition and proof as part of the domestic violence jurisdiction. I believe that the important point as regards that jurisdiction is that it may often be needed in emergency situations. If it is difficult for the court to establish a jurisdiction, it is likely to affect the speed with which a remedy may be granted. That would defeat an important object of the domestic violence legislation—a fast remedy for the protection of an applicant.

I believe that it is not necessary for those who have agreed to marry to be included as a separate category within the Bill. Many people who could fall under this category will already be included within the wide range of other applicants able to apply for remedies, particularly the categories of cohabitants or the parents of a child. Those who do not fall within the categories in the Bill are, of course, able to apply for remedies under the law of tort. In my view, the law of tort is more suitable in this context than the domestic violence jurisdiction. In particular, the parties would never have lived together and thus a potential applicant will have a separate residence so that the regulation of property rights is likely to be less relevant. There is also the consideration that parties may not be in such a vulnerable position as others who are resident in the same household as their attacker, and may have nowhere else to go. However, if they are in such a position, the law of tort will be available to them.

As the noble Baroness has mentioned, some of the witnesses spoke in favour of extending this, including Mrs. Justice Hale, who suggested that this would require careful consideration. Mrs. Justice Hale I think accepted that there would be circumstances in which this category would be quite difficult to prove, and that is the problem that I have in accepting the amendment. The amendment, in its present form anyway, cannot distinguish between cases where the proof is difficult and cases where it is not. I think it is particularly important that the Family Law Bar Association and Judge Fricker, who are extremely familiar with the day-to-day operation of this jurisdiction, were—as I understood their evidence—against this.

During the evidence, one witness—and I have Judge Fricker in mind here—argued very cogently that if family law remedies were stretched to cover wider issues, it was likely to have an adverse effect on family law, and I think that that is true.

I noticed that in moving her amendment the noble Baroness referred to a situation in which there was a formal agreement to marry. It seems to me that there may be seeds of a possible compromise in this if the amendment could make it clear that it applied only to cases in which the proof of the agreement was very easy. Formal agreement to marry would be one way of doing it, but I am not sure whether that would necessarily be the only way.

It would certainly help to solve my problem if the noble Baroness were able to propose an amendment which excluded the category of case which Mrs. Justice Hale freely accepted was involved—the category where it would be quite difficult to prove whether or not there has been an agreement to marry, and your Lordships

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will not require me to outline the sort of cases in which that might be very difficult to prove. In the case of quite a long relationship, the real question is: did it amount to an agreement to marry? If you have to try to analyse that over a lengthy relationship, I think that your Lordships will see what the problem is. If that is a preliminary to the jurisdiction, it could be very awkward for the nature of this jurisdiction.

My short answer to this amendment is that it involves introducing into the qualifications categories which may be very difficult to establish in fact in particular cases, and thus would destroy the summary nature of the remedy which is involved here.

Lord Archer of Sandwell: Before the noble and learned Lord sits down, I wonder whether he could assist me, at least—I cannot speak for other members of the Committee—in one respect.

Judge Fricker and, if I remember correctly, the Family Law Bar Association, said that they would prefer not to distort the law of domestic relations, but to rely instead on the development of a new branch of tort. Is it in the mind of the noble and learned Lord to develop that branch of tort in legislation or does he have it in mind to leave it to the judiciary?

The Lord Chancellor: I think it is important that that area should be developed. I have certain proposals in mind relating to privacy which could have an effect on some of this area if by any chance it were to progress by legislation. Even if it did not progress by that method, it might progress by other methods which would have some effect.

I think that the general area of tort that is in issue here may well be a matter for the Law Commission to look at more systematically, and I would certainly wish to consider that as a possibility because I think the judiciary may well develop this area. It is always difficult because it depends on the cases that they get and how suitable they are for making developments. But I certainly have in mind that this is an area of tort law which should not be neglected either by the judiciary, if that happens, or alternatively by promoting legislation after study by the Law Commission.

Lord Meston: I support the amendment proposed by the noble Baroness in view of the arguments that she advanced, although we came to recognise in the course of the evidence that the development of the law of tort so far has perhaps reduced the need for a specific statutory provision under the Bill. It seems clear that the courts have now arrived at a position where there is an enforceable right not to be molested, irrespective of one's marital status. The noble Baroness has identified the points at which somebody seeking relief based on an agreement to marry, who has not co-habited and therefore does not fall within the other provisions of this Bill, would be discriminated against.

It seems to me that the real disadvantage of someone in the position of the claimant that the noble Baroness seeks to introduce under the existing law is that unless they are brought within the provisions of this Bill they have no right to seek a power of arrest attached to any injunction, and that is certainly a considerable

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disadvantage. The noble and learned Lord the Lord Chancellor suggested a possible compromise which obviously we would need to think about. But if he were suggesting a distinction between those who have entered into a formal agreement to marry and those who rely on some informal agreement, I can see there will be separate and distinct problems of proof and definition thrown up by that categorisation, and it may well be that the very problems which the noble and learned Lord seeks to avoid would, in fact, be aggravated. Family practitioners under other areas of the law are well used to having to decide whether or not there has been an agreement to marry. Very often it turns on a question of whether the man concerned bought a ring, and that usually is decisive, but there are other occasions when a less formal agreement is relied upon.

I would be reluctant to support the idea of a compromise along the lines suggested and, for my part, I support the amendment.

Lord Butterworth: I wish to support this Amendment and I will not take up the time of the Committee but simply say that I was persuaded by the argument of Mrs. Justice Hale. It seems to me somewhat socially maladroit to offer the status of associated person to those who have lived together in the same household but to deny it to those who have done their best and have entered into a contract of marriage, and wrong not to recognise that point.

The Lord Chancellor: I am extremely sympathetic to this point of view if we could overcome the difficulty. As the noble Lord, Lord Meston, says, the Family Law Bar Association, the family law Bar of family practitioners, are accustomed to dealing with cases in which this sort of question is in issue. I do not dispute that. All I say is that my knowledge of these cases suggests that they are not all very short. This is the problem. If you want to have a summary remedy you cannot reasonably construct one in which the requirement is not essential to the real remedy being given. The remedy is against either molestation or in relation to some occupation; that is the real issue.

To have to adopt a long preliminary investigation in order to ascertain whether or not somebody is entitled seems to me to go against that grain, and it is in that spirit that I have suggested the possibility that this class of case could be sub-divided between those that are reasonably easy to prove and could be summarily established, and those that are not. If that can be done, I would be only too happy to go along with it. It is a fundamental difficulty about the way the thing will work, if the amendment opens the field to cases where it is very difficult to prove the agreement, where I am in trouble.

5.15 p.m.

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