Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Darcy (de Knayth): My Lords, as very much a lay member of the committee so skilfully chaired by my noble and learned friend Lord Brightman, I should like warmly to support the amendments. Surely when dealing with cases of domestic violence what matters is the level of protection that you give to those involved, not whether they have been married or cohabiting. As my noble and learned friend said, the children of all parties need equal protection. Therefore, if the noble Lord, Lord Irvine, decides to divide the House, I shall go through the Lobby after him, because I feel that the committee got it right.

I should like also to associate myself strongly with the sentiments of my noble and learned friend, Lord Brightman. I have the utmost respect for the noble and learned Lord the Lord Chancellor, and I see that it is very important to get the Bill through.

The Lord Chancellor: My Lords, my noble and learned friend Lord Brightman summarised the situation in a way that, like the noble Earl, Lord Russell, I cannot improve on. However, I should point out, as I did in Committee, that the amendment appears to refer to subsection (4) rather than subsection (5). Perhaps that is a correction that the noble Lord, Lord Irvine, would wish to make at some stage, if by any chance this amendment were to survive.

The noble Lord took to me to task, in a rather gentle way, for having come forward with a Bill which is not exactly the same as the one that left this House in the previous Session. But, fortunately for the country, I am not a dictator and I require to get Bills through Parliament. Strong views were expressed in the other place about aspects of this matter, views of which, as a responsible Minister, I have to take some account.

My noble and learned friend Lord Brightman said that there was a bias against the unmarried--I paraphrase, of course--which there ought not to be. There is a distinction between the married and the unmarried in respect of rights in the matrimonial home, in that the married person has a right in the matrimonial home whereas the unmarried person does not. That distinction is in this Bill, just as it was in the law before.

It is not for me to articulate the worries of my friends in another place about this Bill. However, I think that they were concerned that the Bill might give the impression that we were seeking in all respects relevant

4 Mar 1996 : Column 114

to the measure to equate the unmarried with the married. The Bill does not do that, and never has. But I was obliged to address those concerns. The Bill has always recognised a clear distinction between the unmarried and the married in that the married have rights in the matrimonial home which the unmarried do not.

This series of amendments deals with the unentitled cohabitant--that is, one who has no property right in the home in question. Looking at the matter in the light of the examples in case law, it seemed to me that the distinction between the two classes could be reasonably reflected in the way that I have done by giving effect in this way to the amendment which these amendments are designed to retract, without damaging the real protection that the Bill affords.

I suggest that providing for a maximum period is consistent with the fact that the unmarried do not have rights in the matrimonial home in this specific situation. I think it also right that the courts should have a discretion in the matter which they do not have in the case where the person in question has a right in the matrimonial home. After all, you would expect rights to have some effect.

I am not saying that the courts should be told precisely what to do by reason of the absence of right. What I am saying is that, where there is an absence of rights, the court should have complete discretion. I have no doubt that the court will do justice taking account of all the circumstances. In my submission, it is right to take some account of the distinction which exists between the married and the unmarried. I have sought to do so in a way which I am glad to think is considered by my noble and learned friend, who knows this Bill well, as one which will not have a very significant effect in practice in diminution of protection.

On any view, orders under this jurisdiction are draconian in character, and, where the person has no right whatsoever apart from the order in the matrimonial home, it seems right that there should be a limit on the extent to which the court can take such a serious step as to remove someone who would otherwise be entitled to occupy the home for the benefit of someone who had no such entitlement.

I therefore believe that it is appropriate, having regard to the progress of the provisions through Parliament, that such orders should be finite and subject to the restrictions which the amendments are designed to remove. Discretion in relation to the balance of harm test appears to me to be appropriate. A reasonable limit on the orders that may be made where there is no other entitlement seems to me also to be appropriate. I therefore do not feel able to accept the amendments.

Lord Irvine of Lairg: My Lords, it is a truism that no one is entitled to be a dictator in a democracy. I can think of no one less qualified by character and attitude of mind for that position than the noble and learned Lord on the Woolsack. However, the irony is that it is the uninformed minority whom the noble and learned Lord has permitted to be the dictators in the matter. I shall return to the amendments on Third Reading with some confidence on the basis that the noble and learned Lord truly--if I may put it this way--continues to agree with

4 Mar 1996 : Column 115

himself the first time round rather than agreeing with himself the second time round. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 111 and 112 not moved.]

Clause 36 [Additional considerations if parties are cohabitants or former cohabitants]:

Earl Russell moved Amendment No. 112A:

Leave out Clause 36.

The noble Earl said: My Lords, it would not be right for me to challenge anything in Part III of the Bill without first paying tribute to the noble and learned Lord on the Woolsack for the amount of care, thought, effort and sheer intelligence that he has devoted to what is now Part III of the Bill, both in this Session and in the last. Anything I say is not meant to cast the least doubt on the proposition that he has done a good job of work.

I also wish to say how much we owe to the Special Public Bills Committee, under the Jellicoe procedure, chaired by the noble and learned Lord, Lord Brightman. I have looked at the minutes of the committee and it gave a far more exhaustive consideration to the Bill than any we have managed in the Whole House. I believe the procedure to be a good one. As regards these Benches, this is a free vote Bill. As I understand it, this is an issue of conscience and I hope that the point is taken all round.

In the debate on the humble Address, the noble and learned Lord said that the changes were a matter of achieving consensus. I understand the need to achieve consensus. The question is whether the changes have achieved it. They have conciliated some people, at the price of causing--to use language in the euphemistic way appropriate to this Chamber--extreme distaste to a large number of other people. If I am asked whether the changes have achieved consensus, the words which come to mind and which I shall not repeat are those of Eliza Doolittle.

I am not aware of a single person of my acquaintance who does not regard the changes, especially Clause 36 which I now address, with extreme distaste, to put it no higher. If the noble and learned Lord wishes to get a flavour of the way many outside this Chamber feel about the changes, he might look at the discussion on the Rory Bremner show after the Bill was abandoned in the last Session. I should not like to be on the receiving end of such comments.

The clause to which our attention is directed here is Clause 36 which instructs the court, in deciding whether to make an occupation order,

    "to have regard to the fact that the parties have not given each other the commitment involved in marriage".

That clause is on a fork with which we in this Chamber are perhaps familiar: either it is useless or it is pernicious. The question is: does the clause actually diminish the physical safety of people in cohabiting couples who have been subjected to assault? If it does, it is pernicious. It lowers the duty to preserve the Queen's peace below a series of abstract principles

4 Mar 1996 : Column 116

which, in any country that puts the Queen's peace first, have to come second. But if the clause does not have immense practical effect, what is the point of putting it there?

At present, 20 per cent. of live births are to cohabiting couples. Assuming that they have roughly average fertility, that means that approximately 20 per cent. of couples are cohabiting. That is one in every five couples we might meet at a party. So, if we start holding forth to five couples about the evil of cohabiting, it is very likely that one of those couples will be among the people we are denouncing. Those are the sort of circumstances in which it is wise to mind one's manners. Speaking in this way of large bodies of one's fellow citizens is neither good politics nor good form.

You can, now, if you are filling in an entry for Who's Who, appear in the volume along with your partner instead of your spouse. Invitations to presidential receptions in the British Academy--which is not an entirely unreflectable body--say that you may bring your spouse or your partner. It is in fact a recognised status. Those who hold that status, and those who, like me, have many close relatives and friends in that position, are liable to take offence at any suggestion that they should be treated as second-class citizens.

Why should they be so treated? One could argue a perfectly logical case on grounds of the religious sanctity of marriage. One must respect the view of those who think that only marriage in the sight of God is legitimate. I make no argument with that. But the Bill has already abandoned that ground by extending its protection to those who, like myself, are married in the sight of the state but not in the sight of God. So I do not see how this distinction can possibly rest on that view of the sanctity of marriage.

The next possible ground is that which was advanced by the noble Lord, Lord Habgood, at Second Reading: the ground that marriage is a public status and cohabiting is not. That would be a sound ground in principle on which to make this distinction. But I believe it to be unsound in fact.

Since the National Assistance Act 1948, the law has increasingly come to recognise cohabiting as a status. The jobseekers' regulations that we passed last month referred, without any apparent second thought, to "a married or unmarried couple". I was most grateful to the noble and learned Lord, Lord Simon of Glaisdale, for conceding in Committee that the view that cohabiting is a public status in law is a valid one. That recognition, made against his own inclination, is an outstanding example of the courtesy and integrity which make the noble and learned Lord one of the most valued Members of this House. I am deeply grateful to him for it.

Cohabitants are clearly identifiable. So, if they in fact hold public status--and I will listen to what the noble and learned Lord says about that--that is not a reason for discriminating against them.

The reason given in the Bill is that they have not given each other the commitment involved in marriage. That, also, I believe to be false in fact. What I take to be the commitment involved in marriage is that sheer gritty determination which makes you, when things go

4 Mar 1996 : Column 117

wrong, buckle down and decide that you are going to make it work, come hell or high water. Among those people I know well who set out to cohabit some 30 years ago, perhaps believing that they were bringing in a new order, that commitment has been as present and as absent as among the married couples that I know. In fact, there has been no difference. That is one of the things that amuse me most about the whole debate. They simply behave like any married couples that I know.

The noble and learned Lord the Lord Chancellor, and indeed the noble and learned Lord, Lord Simon of Glaisdale, argued that the law may, in certain circumstances, discriminate between the married and the cohabiting. That I grant, but there must be certain conditions precedent. First, the discrimination must be relevant to the purpose of the enactment; and secondly, the discrimination must not override something of greater importance. I believe that this clause fails both those tests. The preservation of physical safety is, I believe, more important than plain sentiment. I do not see why the test of cohabiting is relevant to the purpose of this Bill, which is physical safety.

A moment ago, the noble and learned Lord on the Woolsack tried to rest a distinction on the ground of rights in the home. But that point, however sound it may be in general, is not here material. We are dealing with couples, whether married or cohabiting, where the spouse does not have a secure right to occupation in the home. One couple married is treated differently from another couple cohabiting, who in all other legal particulars are identical. That gives offence to 20 per cent. of couples for no good reason that I can see. Either it is a folly or it is a gratuitous offence. Either way, I do not see what useful purpose this clause serves. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page