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Lord Archer of Sandwell: I am most grateful to the right reverend Prelate the Bishop of Oxford for saying what was in my mind even if I had not expressed it—that those of us who have tabled the amendments regard the information sessions as of great importance to the whole scheme of the Bill. As the right reverend Prelate said, one of the points that might emerge from the information sessions is the availability of marriage guidance and conciliation so that divorce may not proceed. I am grateful to the noble Duke, the Duke of Norfolk, for having pointed out the importance of that aspect among the various kinds of information we are discussing.
Clearly, I misled my noble friend Lord Stoddart. When he and I disagree it is always important that we look carefully at where we are disagreeing. I suspect that in many cases it is that I did not express myself very well and I misled him. Believing as I do in the importance of the information sessions, it was no part of my intention to propose that they should be dealt with in a cavalier way and that the information should be given in a perfunctory manner. Quite the reverse. I had hoped that the Committee would wish to be satisfied that the information sessions would be in a form which would not deter any of the parties from wishing to attend, would not intimidate them before they arrived and would ensure confidentiality, if that was in their minds. That was the purpose of our initiating this debate.
I suspect that the noble Baroness, Lady Hamwee, put her finger on the point when she said that the word "session" could be misleading in this context. Perhaps if anything has emerged from the debate about the actual form of the Bill it is that we could all direct our minds more carefully to the use of that word. It conjures up the kind of public procedure that will ensure that some people will not avail themselves of it.
Another matter emerged largely from the comments made by my noble friend Lady David, and I am grateful to her for her amendment. We wished to know the kind of information that would be placed before the parties at these sessions. The noble and learned Lord the Lord Chancellor has been extremely helpful in sharing his thinking with us. Clearly, all the various kinds of information of which people may wish to avail themselves will be made known to them, including the possibility of seeking legal advice where that is appropriate. I am grateful that the noble and learned Lord shares our view on that.
As for the pilot schemes, I am heartened to learn that many flowers will be encouraged to bloom. Perhaps afterwards we can assess the results. My question as to whether at the moment the noble and learned Lord was thinking of implementing the Bill before the pilot schemes have taken place has been answered. I am relieved to hear that at the moment that is not his thinking. It may be helpful if the noble
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and learned Lord can tell us the kind of time schedule that he has in mind as regards the schemes. Perhaps he is unable to tell us off the cuff now—
The Lord Chancellor: I am grateful to the noble and learned Lord for giving way. I believe that something in the order of two years is reasonable for testing out the information-giving methods which we wish to use. It will take some time to set up the pilot schemes and, as I said in my letter to the noble Baroness, Lady David, we shall wish to take account of all the views. We have already received some views, but there are so many issues in the Bill that I am sure there will be more detailed views about the form that the information-giving technique should take. I should like to set up the pilot schemes in the light of that advice and information and test them out. We would wish to give the pilot schemes a reasonable chance to work before we try to assess which we should adopt. Therefore, two years seems to me to be a reasonable estimate at the moment. As Members of the Committee know, estimates are apt to vary, but I would not wish to hurry the implementation of the Bill to the prejudice of effective information-giving arrangements. They are at the heart of the Bill as I see it. They are an aspect of the Bill which is not so obviously helpful on first reading. I believe that underlying this is an important consideration and I would be inclined to take time over the matter.
Lord Archer of Sandwell: I am most grateful to the noble and learned Lord for again sharing his thinking with us. Getting the balance right is difficult. I fully understand that it may take a little time to put the pilot schemes in place, then to pursue them and then to evaluate them. As a lawyer—and I am sure that the noble and learned Lord will understand my thinking— I am always reluctant to legislate by having a statute in limbo for too long a period of time. However, achieving the right balance may be a matter to which we all need to give our minds.
No doubt in due course my noble friend Lady David will decide whether to move her amendment. Having ascertained from the noble and learned Lord the substance of his thinking, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee moved Amendment No. 11:
Page 2, leave out lines 4 and 5.
The noble Baroness said: Amendment No. 11 is grouped with Amendments Nos. 85, 87, 88, 92 to 95 and 190 to 196. It is a preliminary to the debate on Clause 9. I have tabled it in order that the Committee might spend a little time considering a matter on which the Government disagreed with the Law Commission. It is whether a divorce should be granted before all the arrangements relating to children, finances and property have been made, where the balance should lie between the finalisation of those arrangements and divorce and whether it is appropriate to provide that in most cases those arrangements should be completed with exceptions to the position. In the debate on Second Reading, the Lord Chancellor commented that it was an important and "significant" change from
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the Law Commission's recommendation. Perhaps I may apologise to the Committee but my speech will consist largely of selected quotations from the Law Commission's report because it seems to me that that is the most helpful basis on which to proceed.
At paragraph 5.56, the Law Commission reported that a number of respondents had argued that divorce should not be granted until the arrangements had actually been made but that the major objection to requiring that in every case was that it played into the hands of an unreasonable, spiteful or malicious spouse who could delay the resolution of issues for a very long time and thus deny the protection of divorce to, usually, the weaker spouse and to the children and create a formidable bargaining chip for the more powerful party.
"A new system must obviously try to balance the injustice which would be caused by allowing an unreasonable, irresponsible or vindictive spouse to delay matters indefinitely against, on the other side, the injustice of allowing a spouse to escape the marriage without making a serious attempt to consider how to discharge responsibilities towards the children and the other spouse".
"The court should have a discretion to postpone the granting of a divorce or separation but only where this is desirable to safeguard the interests of those who would be prejudiced if the divorce were to go ahead before proper arrangements were made and that it would rarely be in the interests of anybody to prolong the uncertainty".
At paragraph 5.60, the Law Commission said that it,
"recognised that ability to apply for postponement could be a powerful weapon in the hands of an obstructive or vindictive party".
It recommended that where one party applied for postponement on the basis that proper financial arrangements had not been made, the court should direct its mind specifically to whether there were any circumstances making it appropriate for the arrangements to be made before the divorce and separation took place and referred to the conduct of the parties and any prejudice that either party or the children would suffer in the event of delay. The report stated:
"One party should not be allowed to take advantage of his or her deliberate failure to make or contribute to the making of financial arrangements to the prejudice of the other party or children".
That is the nub of it—whether one party, by his or her own action, can use his or her own deliberate failure.
The Government have chosen the other course; namely, to provide for arrangements to be required with the specific exceptions set out in Schedule 1. I well understand the view that it must be best to have everything agreed before the divorce takes place. I hope that in the new arrangements that are being made the mediation process will very frequently achieve that, especially because the new procedures should ensure that financial and other arrangements, particularly regarding the children, should not be used as a bargaining chip. It was not only the view of the
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Law Commission that the balance should be the other way round. It was also the view of the Solicitors Family Law Association which represents some 3,500 family law practitioners. I appreciate that many amendments in this group have a completely different thrust from my amendment. Nevertheless it may be helpful to spend a little time on the question of that balance as well as on the question of whether the bar should be made more difficult. I beg to move.
6 p.m.
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