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Earl Russell: My Lords, I too wish to add my support for the amendments. First, I do so because I believe that in the last Session, in the Select Committee--of which I regret I was not able to be a member--the Bill received a far more careful scrutiny than we in full House have been able to give it now.
Part IV of the Bill is highly technical. We have been through it concentrating on the "headline" points. For all the effort I have put into trying to get it right, I do not understand it nearly so well as those who were members of the Select Committee in the previous Session. I therefore think that, if we disagree with the Select Committee, the balance of probability is that the Select Committee got it right. All Her Majesty's subjects are entitled to equal protection against physical violence and may suffer from an equal need for it. That point appears to me to be capable of carrying great weight.
The balance of harm test is a good one. So far as I can see, it is what we need to know in order to decide what should be done. That test enables the court to take all relevant influences into consideration. It enables the court to weigh conflicting interests, conflicting needs and conflicting dangers against each other. Since cases are extremely individual, it can be difficult to fetter the consideration of the court in such matters. At present, the noble and learned Lord, Lord Brightman, is probably right that it will not make much difference in practice. However, we must hope that the Bill will remain on the statute book for a long time. I do not believe that we can foresee how judges in 30 or 50 years might interpret the clauses. Therefore, the fact that it may make little difference at present does not obviate the need to give ourselves security for the future.
Also I see no answer to this question: if the changes did not make much difference, why were they worth introducing? They set the mark of Cain upon some of Her Majesty's subjects. Why was that worth doing, unless it made a difference to how the Bill operated in practice? If it is useless, then it should go out because it is a provoking and, in many quarters, extremely unpopular set of changes. They could only have been justified by showing that they met a genuine practical need. I have not heard that case demonstrated; I have not even heard it argued.
Baroness Darcy (de Knayth): My Lords, as a member of the committee which was chaired with such skill by my noble and learned friend Lord Brightman, I wish to add my strong support for the amendments, for the reasons which have been stated so clearly and convincingly. I have in mind something which the noble Earl, Lord Russell, said on a different amendment at Report stage. It was that there was a difference between marriage and cohabitation but it is simply not relevant in this context. Both families are equally in need of protection.
Baroness Young: My Lords, I had not intended to enter into this debate at all. However, I have listened to the arguments, and my noble and learned friend will perhaps be astonished to hear that I very much support the stand that he has taken over this matter.
I was quite concerned at the speech by the noble and learned Lord, Lord Brightman, and that by the noble Baroness, Lady Darcy (de Knayth). There is a very real distinction between marriage and cohabitation. One of the great dangers now is that we are going down the path of making that distinction less and less. This is one such case. I accept that there are hard cases. But after all, if you are living together, you can always leave. That is one of the points about living together as opposed to marriage, where you are in an entirely different legal situation.
I regret very much that I did not follow the intricacies of this debate when it came before the House last year. I apologise for that. I realise that I should have done so, but other matters intervened. I am one of those who feel that there is a very real danger--signalled, I may say, by the Law Commission--that we shall be pushed into a situation where there is not a distinction between marriage and cohabitation; and this bit of the Bill is a classic example. We need to think very carefully before accepting these amendments.
Earl Russell: My Lords, before the noble Baroness sits down, I ask her to read tomorrow in the Official Report what the noble Baroness, Lady Darcy (de Knayth) actually said. She did not say that there was no distinction between marriage and cohabiting; she said that it was not relevant to this Bill.
Baroness David: My Lords, as another member of the Jellicoe Committee, I believe that the noble Baroness, Lady Young, is wrong about this. I do not think it is a question of whether people are married or not. It is a case of domestic violence. I very much support the remarks of the noble Baroness, Lady Darcy (de Knayth). That particular argument is irrelevant to this small part of the Bill.
The Lord Chancellor: My Lords, I, too, was a member of the committee over which my noble and learned friend Lord Brightman presided with such distinction. In some of these issues one has to take account of perceptions and the way in which matters are dealt with.
As I mentioned before, Part IV of the Bill recognises in relation to occupation a distinction between those who are married and those who are not, in the respect that those who are married have rights of occupation in the matrimonial home, whereas those who are not married do not. They may get an order from the court for occupation, but they are not entitled as of right to occupy the family home. So that distinction is recognised in this part of the Bill, and was recognised in the Bill as it emerged from the committee last time and also from this House last time.
The question is how far that distinction should go. In this particular situation, in consideration--I shall be quite frank about it--of the views of my colleagues in another place, I proposed amendments to the Bill that emerged from this House and had gone through a considerable part of its passage in the other place when difficulties arose in relation to it. It is reasonable to take account of those in the way in which this Bill as now drafted does.
As I mentioned before, Amendment No. 40 is not appropriate. It refers to subsection (4) rather than subsection (5). Reading the whole thing together does not make sense. Therefore it is not a particularly happy amendment to insert at Third Reading on that account. I mention that again only because this is Third Reading.
Turning to Amendment No. 43, it seems reasonable when this question is raised and people are concerned about it, to recognise the distinction between those who are married and those who are not in the respect that the person who is unmarried has no right in the family home. It is not a question of people being "second-class" but of recognising all the circumstances. If one wants a right in the family home, the law says that people have that by being married. Surely the law can recognise that. If you do not have a right in that way, this clause as presently drafted limits, and not particularly narrowly, the power of the court to grant an occupation order twice, up to a total of two with six-month periods as the periods of the order.
I certainly see the arguments on both sides of this question. Earlier I saw more forcefully the argument on one side and I am now proposing the argument on the other, having regard to the views expressed by my
I am disappointed but unsurprised by the response. That is a condition which I often experience when listening to the noble and learned Lord, though I can assure him that I have the identical experience when listening, from time to time, to others from the Government Front Benches.
Despite the hour; despite the small number of your Lordships in the Chamber--though I dare say that there will be many more on hand who will vote who have not listened to the debate--I desire to test the opinion of the House. I do that not least because it will show the other place the concern that some in this House feel for this subject. I commend the amendment to your Lordships.