Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Peston: My Lords, I apologise for interrupting the noble and learned Lord. I hope that I understood him, in which case his remarks are reassuring. Is he saying that we would no longer rely on the code of conduct? That is what the Mail on Sunday was seeking to expose. Would there now be a genuine legal basis to prevent what happened occurring again? Would criminal penalties be involved if anything like that happened again?

Lord Fraser of Carmyllie: My Lords, in trying to get through quickly, I may have unnecessarily shortened my comments on the requirement with regard to the declaration and the quantities that can be held. I can expand on it at a later time, if it would be helpful. I was seeking to emphasise what seems to me to be important. It is that anyone who holds the chemicals for other than a permitted purpose would be committing an offence under the Bill. The penalty to which they would be subject is the most severe: namely, life imprisonment.

I would rather not name the chemicals because the Mail on Sunday responsibly declined to mention one of them. The chemicals are subject to strict trade controls. Trading Schedule 1 chemicals with non-state parties will be banned from the date the convention enters into force and after three years in the case of Schedule 2 chemicals. All the most toxic chemicals (those in Schedule 1) are subject to licensing.

A series of questions was raised with me by the noble Lord, Lord Jenkins. I have to deal with an important Bill relating to chemical weapons, but it is not appropriate for me to comment on whether the type of amendment that he wishes to put down is appropriate. That is not my remit. However, I welcome from the noble Lord, Lord Jenkins, and other noble Lords the unanimous indication of support for this important Bill. I therefore commend it to your Lordships.

On Question, Bill read a second time and committed to a Committee of the Whole House.

Family Law Bill [H.L.]

7.59 p.m.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(The Lord Chancellor.)

30 Jan 1996 : Column 1383

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord McColl of Dulwich) in the Chair.]

Clause 30 [One former spouse with no existing right to occupy]:

Earl Russell moved Amendment No. 184:

Page 19, line 14, leave out subsections (1) and (2) and insert--
(" .--(1) This section applies if--
(a) one cohabitant, former cohabitant, or former spouse is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving him the right to remain in occupation;
(b) the cohabitant, former cohabitant or former spouse is not so entitled; and
(c) the dwelling house--
(i) in the case of the cohabitants or former cohabitants, is the home in which they live together as husband and wife or a home in which they at any time so lived together or intended so to live together, or
(ii) in the case of former spouses, was at any time their matrimonial home or was at any time intended by them to be their matrimonial home.
(2) The cohabitant, former cohabitant or former spouse not so entitled may apply to the court for an order under this section against the other cohabitant, former cohabitant or former spouse ("the respondent").").

The noble Earl said: In speaking to this amendment, I shall also speak to this group of amendments standing in my name. We now enter on Part III of the Bill, which incorporates the former Family Homes and Domestic Violence Bill approved by this House last Session, having been given the most exhaustively careful scrutiny by a committee chaired by the noble and learned Lord, Lord Brightman. At Second Reading I studied the noble and learned Lord's speech with great care. I regret that he is unable to be present today. That is yet another reason why it is inappropriate to have a Division at the Committee stage of this Bill. I should not wish this matter to be resolved without the advice of the noble and learned Lord, Lord Brightman, if, by waiting until Report, we can have it resolved that way.

There are a string of small changes in this Part--changes introduced since the Bill went through this House last Session--and one large symbolic statement. The effect of these amendments is to cut out two clauses that were inserted to separate the status of cohabitants from that of married people, and in general to restore the Bill to its previous state. I have in front of me the noble and learned Lord's summary of the changes, so I hope that I shall not mislead the House. They are a little technical.

Where there is a cohabitant who does not have a clear legal title to occupy the House, the order to occupy can be renewed only for a period not exceeding six months. There will need to be a certain number of probing, Committee-type exchanges here. I need to understand exactly why it has appeared necessary to the Government to make this change. I need to know exactly what is the ground of the discrimination against the cohabitant--whether it is, as suggested by the

30 Jan 1996 : Column 1384

wording of Clause 36, a moral one, or whether it is a legal one concerning a doubt about the person's status as occupant of the house.

I also have a smaller question, which I hope may be practically addressed. Why can such an order be renewed only once? Let us suppose, for example, that the victim of domestic violence also happens to be disabled, as sometimes happens. Let us suppose that the accommodation is purpose-built. One wonders whether in such circumstances there might be a case for allowing the woman to remain permanently in occupation, as she would have the right to do if she were a spouse. I still need to understand the precise thinking which justifies this distinction. Only then will I be able to address the question as to how far I am, or am not, convinced by it.

The next change that has been introduced relates to where there is a test of balance of harm for the victim of domestic violence to occupy the property. What was previously a duty on the judge to follow the balance of harm test has now been changed into a discretion, allowing the judge to weigh the balance of harm test against a number of other matters, including the financial interests of the party and the interests of the children.

I admit that I speak as a layman and not a lawyer in these matters; but, prima facie, either that change was right, both for spouses and cohabitants, or it was right for neither. Again, I do not understand the basis of the Government's thinking in making the distinction. I shall want to hear an answer to that question before deciding, at a later stage of the Bill, what I want to do in regard to the amendments.

The other technical change is that cohabitants have been deprived of the right to use an accelerated procedure under the Married Women's Property Act. Again, I admit that I speak as a layman, but I have not heard any technical description of the accelerated procedure or of the advantages or disadvantages of using it. Again, I want to understand in a way in which at present I do not, why that procedure should be available to spouses and not to cohabitants.

The change that causes me the most anxiety is the new Clause 36 that has been inserted into the Bill. It states:

    "In deciding whether and (if so) how to exercise its power to make an occupation order, or its power under section 35, the court is to have regard to the fact that the parties have not given each other the commitment involved in marriage".

First, that strikes me as a mistaken sense of priorities. However deep an attachment people may have to the principle of lawful matrimony, it is the first duty of the state to ensure the preservation of the Queen's peace. I feel a certain anxiety about the idea that anybody's morals, however bad, should make them less entitled to the protection of the Queen's peace than are other people. After all, even in the old days when there were public executions, people in the custody of the state on the way to execution used to be accorded the protection of the Queen's peace. In 1612 there was an extraordinary case in Spain when a heretic who was being taken to be burnt was set upon by the crowd and suffered 500 stab wounds--but was rescued by the officers of the state before being burnt. It is a macabre

30 Jan 1996 : Column 1385

story, but I understand the interest of the state in doing that. The monopoly of the right to violence is one of the defining marks of the state. I cannot help feeling that in suggesting that there is a group of people with a lesser right to protection from violence, the state is in danger of abdicating that position.

Secondly, the noble Lord, Lord Habgood, whose absence I much regret and whose return to our debates I very much look forward to--I understand that the noble Lord has not been well and I hope that he is making a good and happy recovery--argued at Second Reading that we should make this distinction because marriage is a public status. But with respect, cohabiting is a public status, equal with marriage.

Yesterday, we approved the jobseeker's regulations. We approved a reference on page 8 of those regulations to benefits going to, "a married or unmarried couple". In social security law that is perfectly normal. It is a public status, recognised through shared finances, shared bank account, joint responsibility for the housekeeping, jointly visiting the children's school to see the teacher, and all the things that married people do together. It is now a recognised status.

The British Academy is generally regarded as a respectable institution. When, over Christmas, it sent out invitations to the presidential reception, it invited fellows to say whether they intended to bring "their spouse or partner". What is respectable enough to be recognised by the British Academy is respectable enough to be recognised by the law of the land. Cohabitation is a public status. Many of us have friends, close relatives and others whom we know extremely well who are cohabitants. For those of us in that position, to have them set aside like this and given a sort of lower status, entitled to less protection, appears offensive.

I perfectly understand, and respect, the view of the those who think that only those who are married in the sight of God are married. It is a perfectly proper view. Those who think that believe that those who, like me--and the noble Lord, Lord Marsh, as we discovered on Thursday--were not married in church, are living in sin. Although it is perfectly proper for them to hold that view, as a matter of normal social courtesy they do not normally impinge it upon me or the noble Lord, Lord Marsh. It seems to me that in handling co-habitants we ought to do it in just the same way as those who believe only in religious marriage treat those who have undertaken a civil marriage. When I look at the actual words of the clause, they have not given each other the commitment involved in marriage.

Thinking of some co-habitant couples I know extremely well, I believe these words to be false. What I mean about the commitment involved in marriage is that determined--indeed, I might almost say, bloody-minded--determination to keep the relationship going in the face of every obstacle, every quarrel and every confusion; that one is simply not going to let go. Its political equivalent is something I observed--to take a small example--in the television appearance of Mr. Stephen Dorrell on the night of the Dudley by-election. It was one of the most impressive television

30 Jan 1996 : Column 1386

performances by a politician that I have ever seen. He simply stuck to his last and was not letting go. That is what I understand by the commitment involved in marriage.

In my observation, co-habitants give just as much or as little as people who have been through the marriage ceremony. Indeed, what really amuses me, looking at my friends who decided to co-habit about 30 years ago, is that some of them believed that they were striking a blow for a new type of society. But in fact I have observed that they have become married couples, with their ups and downs, highs and lows, dull points and lively points, their strengths and weaknesses, exactly like any of the rest of us. It is because they live exactly like any of the rest of us that I believe that they deserve legal protection exactly as any of the rest of us. I beg to move.

8.15 p.m.

Lord Clifford of Chudleigh: I support the noble Earl, Lord Russell, in opposing the Question that Clauses 31 and 33 stand part of the Bill. I need not rehearse the circumstances of how Part III was introduced into the Bill. The Committee may well recall that the legislation fell during the last Session in its final consideration in another place as the Family Homes and Domestic Violence Bill. It fell two working days before it was due to become the law of the land. Its fall was swift and sudden. It fell because it was claimed that it was a consolidating measure but that claim proved to be false. That claim was maintained throughout the Bill's passage through this House under the Jellicoe fast-track procedure. That claim was maintained throughout its passage in the other place under the fast-track procedure. It was maintained right up to the point where the Bill was about to become law; yet that claim proved inaccurate.

It seems to me a pity that the unfortunate and ill-fated Family Homes and Domestic Violence Bill should have been presented to the House in such a manner. It cannot but reflect badly on the respective fast-track procedures and on the way in which they are used. I wonder whether it is not now an appropriate time for the noble and learned Lord the Lord Chancellor to give some assurance to the Committee that the Jellicoe procedure will be used with a little more circumspection in relation to future Bills of the kind just mentioned.

Clauses 31 and 33 of the Bill, as we have heard, make provision for a new type of order in the family court which is to be known as an occupation order. It subsumes the orders currently made by the court which are commonly known as ouster orders and exclusion orders. I am aware that occupation orders may do other things. They can enforce the applicant's right to remain in the home or to enter the home. They can regulate the occupation of the home. However, the most important power will be to oust or exclude a party from the home.

I venture to suggest that if there is domestic tension or strife, it is that order which will continue to be most commonly sought after by applicants and, I might add, most commonly granted. Orders specifying which rooms a party may or may not use are not, I am told,

30 Jan 1996 : Column 1387

very common and tend to be impractical. So it is with exclusion and ouster orders that we are mostly concerned.

In the case of Summers (1986) and additionally in the case of Tuck v. Nicholls (1988) the court made it clear that it viewed an ouster order as a "draconian" measure. That seems to me to be plain common sense. I suspect that it would be viewed as common sense by the vast majority of voters and citizens in the land. To throw a man or woman out of their own home by means of a court order must surely be a draconian action unless it involves a clear case of violence.

If there is to be any substantial change in the law in order to make such an order less than draconian, then clearly we need to be concerned. Part III of the Bill reproduces parts of the Matrimonial Homes Act 1983 and the Domestic Violence and Matrimonial Proceedings Act 1976 which specifically include co-habitants. Part III of the Bill, and these clauses, mark a change. The changes remove the requirement for the court to have regard to the conduct of the parties before making an order and instead there is an entirely new "balance of harm" test which will dictate when an order should or should not be made.

The test is this: an applicant must be suffering significant harm. That is defined in Clause 57 as,

    "ill-treatment or the impairment of health".

"Health" means "physical or mental health". The court may make an order unless the respondent is likely to suffer as much or more harm than the applicant when the order is made. Of course, the test applies equally to any child of the family.

At first sight that does not sound too bad does it? I remind the Committee of the case of Richard's (1984). The effect of that case was to arrest a tendency to grant injunctions on ever more flimsy grounds. Many courts would throw a man out of the home on the ground that one party said, "I refuse to live with that man". The noble and learned Lord, Lord Hailsham, occupying the office of Lord Chancellor, sought to ensure that a degree of blameworthy behaviour had to be proved against the man before he could be ousted from his own home. There the law now stands.

Enter Part III of the Family Law Bill 1996. Proof of such conduct will once again be unnecessary. The very words "conduct of the parties" are excised and in so doing we shall have taken a retrograde step. But that is not all. The Bill goes even further than that in defining "harm" so widely as to include impairment of health, including mental health, which goes well beyond what is considered sufficient in existing law to oust or exclude a party from the home. It is not even clear that the harm needs to be caused mainly or directly by the respondent. The harm suffered by the applicant may be attributable to other causes, for example, physical or mental disease, and the respondent's mere presence may do no more than to add to that harm, sufficient for it to become significant. No blame of any kind need be attached to the respondent; his mere presence may be sufficient.

30 Jan 1996 : Column 1388

If it is asserted that a child is being considered, one can readily see that it will be even easier to make out a case against a respondent. Indeed the definition of harm is even extended in the case of a child to include the impairment of development--a very different thing from domestic violence. What are we to say--that a child's low marks at school are a reason for ousting one of its parents from the matrimonial home? How can that be? one may ask. Yet low marks at school may well represent evidence of impairment of development. A child psychologist would not be asserting anything radical by giving evidence to that effect in a court of law. It would not be difficult in practice to secure a medical opinion that the presence of one party in the home is damaging the health of the other. Nor would it be difficult for one party to assert that the presence of the other is bad for the children. All that party need assert is that the presence of the other merely contributes to their ill health or any upset to the children. The harm test nowhere requires that the harm is mainly or directly caused by the respondent.

This is plainly a recipe for rapid and irrational domestic chaos and family break-up. It is also astonishingly unjust. Even apart from the intrinsic injustice of this clause, it is not difficult to see how easily such a provision could be abused by an unscrupulous party, a party interested in gaining most for themselves. One party will readily perceive that they can obtain de facto custody of the children by the simple expedient of ousting the other party. Once applications for custody are made, the court will be reluctant to overturn any situation of de facto custody, for fear of further upsetting the settled life of the children. In fact this can happen under the existing law, but it will be very much easier to achieve under the provisions of these clauses.

The harm test, at the very least, should go. If conduct is restored then the harm test adds nothing and can be removed. Part III would then begin to look very much more like the consolidating measure that it is claimed to be. Part III, and particularly these clauses, are not chiefly about domestic violence. In my reading of this part of the Bill I was unable to find even the word "violence" anywhere in it. Perhaps I have overlooked it and, if so, I should be very grateful if the noble and learned Lord would point it out. If not, then does he not agree with me that this lack is astonishing, in view of the fact that it is meant to make provision for domestic violence?

I trust that the noble and learned Lord will agree also that this part of the Bill is, in its current form, very far from satisfactory and requires substantial review and amendment. I hope that he will also be able to recognise and welcome efforts on the part of noble Lords to amend and restore this part of the Bill to a form where it can truly be said to be a consolidating measure, and not the radical departure from existing law which it clearly is in its present form.

I am aware that the noble and learned Lord has made some changes to this part of the Bill since it first appeared as the family homes Bill but, so far as I can see, they have not altered it very much except that for spouses the court has to make an order if the harm test

30 Jan 1996 : Column 1389

is satisfied. This appears to prejudice spouses and to benefit cohabitants. Is that what the noble and learned Lord intended, may I ask? I urge upon the Committee the need to reconsider this part of the Bill at Report stage, but for the present I support the noble Lord in opposing the Question that Clauses 31 and 33 stand part of the Bill.

Next Section Back to Table of Contents Lords Hansard Home Page