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Lord Rawlinson of Ewell: It is because the noble Lord, Lord Irvine of Lairg, ranged so broadly over the Bill when speaking to this amendment that I shall attitudinise now. I think that was the expression he used. I do that because of the general review that seems to be taking place about the Bill as it is at present. I believe it was Lord Palmerston who said that when a government do not have much of a programme they go in for a little law reform. We must acknowledge the courage of the present Administration to have decided to tackle such a controversial subject. Obviously they are not in the least concerned by exaggerated media reports about divisions among their supporters. They are brave to tackle this matter at this particular time in what may be the final Session of this Parliament. My noble and learned friend has shown great courage and, with great respect, I pay tribute to him for that. However, he must appreciate how controversial this matter is. It is a controversial matter to those of us who would normally support him in other things.
It is said that this Bill originated with the Law Commission which produced a document entitled, Family Law The Ground for Divorce. To me, that is not a recommendation. Law Commissioners are technocrats. They have no role in making or recommending decisions on ethical and moral judgments. They are an unrepresentative quango and exist to make technical improvements in branches of the law and to put into law what Parliament has decided in principle. That they are unqualified can be demonstrated by the fact that one of them, now a member of the High Court Bench, made that extraordinary statement about marriage.
It is not for people such as Law Commissioners to decide how marriage should be ended. The law of marriage affects status as well as contract. It affects position as well as rights. It is ignorant of some commentators to regard it as a matter which applies purely between individuals. A noble Lord opposite spoke about hardship in particular cases. One has to look beyond that when dealing with the law of marriage. It affects the principles which govern not only relationships between individuals but also the whole basis of society and thus the interests of the state.
There is an ancient aphorism which everyone in this House will know: hard cases make bad law. That is where the elimination of fault becomes so important. The ending of marriage alters status. The tearing up of a contract freely entered into at the suit of one party is only acceptable if that person has suffered due to the fault of another. Above all, the law has to ensure that any party who has not flagrantly broken a contract receives justice.
I only make these comments now because of the wide range which was introduced into the debate on this amendment by the noble Lord on the Front Bench opposite who, with a certain degree of hauteur, seemed to regard those of us who do not agree with him as attitudinising. Every attempt to change the law in this field has been marked by total error in prognostication. Everyone has got it wrong, the Divorce Act 1969 with its quickie divorces worst of all. However, many of us believe that the flagrant fault principle, although at times it involves an element of charade and of deceit, has the merit of ensuring in principle that the offender cannot get what he or she desires against the wishes of the other party to the contract. Nor do I understand how one party can state that a marriage has irretrievably broken down unless that party can establish a flagrant breach by the other.
It is therefore with some regret that I believe that this piece of legislation in its present form does not do what my noble and learned friend on the Woolsack hopes, intends and believes that it will do. It is governed by no principle. One must have that principle of fault. That is what distresses me about the legislation as presently drafted. Therefore I believe that it is baleful in its effect.
The Lord Bishop of St. Edmundsbury and Ipswich: This Bench has suffered some attack, in a lighthearted way, in the course of the debate. Perhaps I may say that the Book of Common Prayer is well known to us all. Indeed, I was married by it 40 years ago, as was my wife, to whom I am still married. It expresses the theology of Christian marriage extremely well. I should add that the alternative service, which is in far greater demand now although both are available, copes with the second reason for matrimony better, speaking of it not simply as a remedy for sin but speaking of sexual relationships as a means of expressing love. However, that point is on one side.
Nobody in the Church would wish to see marriage or family life in any sense undermined. It is one of our steady criticisms that the amount of support which is given to marriage and the amount of work that goes into preparation for marriage is far less on the side of the state than it is on the side of the Church. Over the years we have put immense resources into preparation for marriage and supporting marriages when they are entered into.
I do not believe that the Bill is about that. It is not a Bill which attacks marriage. It tries to make sense of situations in which marriage breakdown has taken place. I do not think that anyone believes, and certainly no one on this Bench believes, that the present law is adequate to make sense of that.
Perhaps I may concentrate for a moment on the issue of no fault. Of course there is fault in the breakdown of marriage, but is the fault only on the part of one partner? That appears to be what is indicated in the present law. Clearly, none of us believes that that is true. Marriages always break down by the fault of both. The fault may be, and often is, adultery. It may be adultery on both parts or on the part of one partner, but that adultery may itself have been caused by earlier failure to listen or to communicate.
Baroness Gardner of Parkes: I thank the right reverend Prelate for giving way. I believe that it is time to remind the Committee that this is not Second Reading. We are speaking to Amendment No. 1 on the Marshalled List. I understood that the debate went far wider than is usually the case at Committee stage in view of what the noble Lord said from the Front Bench opposite, and therefore I sat quietly while we had a Second Reading speech on the grounds that it was in response to what was said. However, now we have another Second Reading speech.
The purpose of our presence in the Chamber today is to consider the amendments on the Marshalled List. We are not discussing the no fault issue at this time. There will be plenty of opportunity to do so later when the appropriate amendments are dealt with. I thought that
The Lord Bishop of St. Edmundsbury and Ipswich: I thank the noble Baroness for that intervention. I understand the intention behind it. I simply sought to answer the point raised on the Benches opposite on the matter of no fault. Perhaps I may say simply that fault clearly exists on both sides, but to define one particular fault as the reason for the breakdown of a marriage without giving an opportunity for mediation to take place, as under the present law, is not in my view a way of supporting marriage.
The Earl of Perth: I want to apologise for not being present at the moving of the amendment. Having said that, I recall that at Second Reading when the noble and learned Lord the Lord Chancellor introduced the Bill, he said, first, that he believed that marriage was divinely appointed; and secondly, that the Government would do nothing to undermine it. I support him wholly on the first of his beliefs. How could I do otherwise when I have had the great good fortune of having been married for more than 60 years--and long may it continue!
However, on the second point that the Government want to do nothing which will undermine marriage, it is my fear--and many of those who have spoken have expressed the same fear--that that is exactly what will happen. I am deeply grateful to the noble Baroness, Lady Young, for having drawn attention at Second Reading to the fact that the 1969 Act was introduced with the intention of making divorce more difficult, except in certain circumstances where it would be less painful. What has been the outcome? We well know that numbers have increased from 50,000 at that time to 160,000 at present. In other words, while the intention was good, the result was disastrous.
It is my fear and belief that unless we consider all the amendments with this new clause guiding us, the same will happen again. Therefore, I wholly agree with the proposed new clause. It gives us the opportunity to stress reconciliation rather than mediation.
I recognise how difficult it is not to make a Second Reading speech; I seek to avoid that. I support the objectives of the amendment and I believe that they are valuable because they will enable us to refer to them again and again in the changes we seek. That is not to make divorce easier, but somehow to make it less painful. I fear that as the Bill stands it does not achieve these things.
I did not intend to intervene on this debate. I do so to recall the real purpose and value of this kind of amendment; and in response to the two main points made by the noble Lord, Lord Irvine of Lairg. In a perfect legislative world every provision of a statute would be immediately plain and could not be disputed. It would be in no way obscure or ambiguous. But we do not live in a perfect legislative world. In fact, although I
The noble Lord, Lord Irvine, made two points. First, he manifested his clear dislike of the present law. That was taken up by the right reverend Prelate. Those of us who dislike the present Bill have no liking for the present law. Most of those who oppose the Bill opposed the 1969 Act. Many of those who now support this Bill were supporters of the 1969 Act. It is that which is objected to, and rightly so. Moreover, the quickie divorce on which the noble Lord, Lord Irvine, spent some time, and on which he spoke cogently, was purely and solely the invention of the government department which is now issuing a Green Paper denouncing it and denouncing the 1969 Act. The quickie divorce does not depend for its abolition on the passing of this Bill. The measure can be got rid of in exactly the way that it was brought into existence; namely, by regulation and direction of the Lord Chancellor's Department.
Secondly, the noble Lord put down a strong marker, apparently in view of reports in this morning's press, about the lengthening of the period of one year to possibly 18 months. He was thereby anticipating an important debate which is still to come and on which there is much to be said. At this stage I say only this. If the present period of a year is what is required for mediation, then if we are to have reconciliation procedures--as most of us want, and as the noble Lord, Lord Irvine, wants--then presumably some extra time is needed to accommodate those reconciliation procedures. That being so, in view of those two matters and of the proper purpose of the amendment, I venture to support it.
Lord Meston: I restate the support from these Benches for the Bill. I agree completely with the remarks of the noble Lord, Lord Irvine of Lairg, and the noble Earl, Lord Onslow. It is by reference to the amendment helpful to have a statement of objectives at the beginning of any legislation, and this Bill is no exception. I comment only that the amendment does not address the objectives of Part III of the Bill. That is the important part dealing with the rationalisation of the law relating to domestic violence.
As a practitioner in the field, I can only endorse the clear description of the existing procedures for divorce given by the noble Lord, Lord Irvine. Present divorce procedure is a paperwork exercise. It can be a very quick exercise and, frankly, sometimes an undignified exercise. The only point at which I question what he said is that I am not entirely sure that nowadays any attendance at the court for consideration of the
Quick divorce does not seem to be possible under this Bill--let there be no mistake about it. I suggest that it is arguable, and indeed doubtful, whether an easier divorce process, if there is to be one, would encourage cohabitation outside marriage. Leaving that question aside, what is certain, I suggest, is that making divorce more difficult will not encourage marriage.
I regard the Bill as supportive of marriage, as the Law Commission intended. I question the description of the Law Commission as mere technocrats. Its report in this area was thoughtful, thorough, and began in this way: