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Lord Goodhart moved Amendment No. 263:

Page 85, line 20, leave out from (“day") to end of line and insert (“specified in regulations")

The noble Lord said: My Lords, the amendment deals with a short and simple point and, as it is late, I hope to move it quickly. I certainly have no intention of dividing the House on it. I believe that your Lordships have had enough for today.

Clause 81(3) now provides that pension sharing orders cannot be made in proceedings which start before Clause 19 of the Bill comes into force. I agree that pension sharing orders should not be made where the divorce proceedings have been started a substantial time previously. However, once the Bill has been enacted and it is clear that the power to order pension sharing will come into force, people are likely to hold up the start of their divorce proceedings until the pension sharing provisions come into force. That will create a log jam and, indeed, I suspect that that may already be happening.

My proposal is modest. I suggest that when the Government decide on the date on which they are going to bring into force Clause 19--which I assume is likely to be some time after this Bill is enacted--they should make a commencement order for Clause 19. At the same time they should make an order directing that Clause 19 applies to divorce proceedings begun after a date which is, say, three months earlier than the date on which it is intended that Clause 19 itself should come into force. Therefore, if a commencement order is made in, let us say, April bringing Clause 19 into force on 1st October next year, the power to make pension sharing orders should apply to any proceedings started after, say, 1st July next year.

That would enable the courts to start making orders as soon as Clause 19 comes into force. The courts will have in front of them divorce proceedings waiting to be dealt with and the proposal in the amendment would reduce what would, I fear, be a serious log jam

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problem in divorce proceedings. Otherwise, I believe that from now on, wherever there is a prospect of a pension sharing order, divorce proceedings will simply be held up and there could be cases where a husband who is confident that there is a possibility of divorce on the basis of a five-year separation may decide to bring forward his divorce proceedings simply in order to avoid the risk of a pension sharing order being made.

That is a simple point. If the Government are not willing to accept it, so be it. I beg to move.

Baroness Hollis of Heigham: My Lords, the simple answer is that the Government are not willing to accept the amendment. The amendments return to an important issue raised by the noble Lord at Second Reading: the Government's intention that pension sharing should apply only to divorce proceedings that commence on or after the day on which the pension sharing provisions come into force.

At Second Reading the noble Lord, Lord Goodhart, suggested that it would be reasonable to extend pension sharing to those cases where divorce proceedings begin after the Bill has received Royal Assent, as opposed to its implementation, which we are expecting at around the end of the year 2000. I disagree. It is a general principle of English and Scottish law that retrospective legislation should be avoided wherever possible. Many of those who gave evidence to the Social Security Select Committee on this issue shared that view. For example, the Solicitors' Family Law Association, in its evidence to the committee, were adamant that the Bill should forbid retrospection even in those cases where hardship was claimed. That is why the committee recommended that the Bill should make it absolutely clear that pension sharing may be used only in cases where the application for divorce is made after the pension sharing provisions come into force.

I accept that some cases of hardship may arise. I understand that there is a risk that some couples will choose to defer divorce proceedings until pension sharing becomes available and the extra distress that deferment may cause. However, on balance, the Government agree with the Select Committee that the case against retrospection is more persuasive. That is why we acted upon it. I understand that the overwhelming consensus in the legal profession is that the policy is right. It is easy for people to understand. It will spare pension schemes from having to deal with a surge of work immediately after implementation.

In the light of that and the fact that we are responding to the position endorsed by the vast majority of the legal profession, I hope that the noble Lord will withdraw his amendment.

Lord Goodhart: My Lords, before I do so, I should like to say that I believe that the Minister and her advisers have got it entirely wrong. I simply do not see how saying that pension sharing arrangements should

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apply to divorce proceedings which commence after the Bill itself has been enacted could possibly be retrospective. Quite plainly they are not. Of course in an entirely different sense pension sharing will be retrospective in that it will apply to pension rights which have accrued before the date on which the Bill is passed. I have no objection to that.

I believe that what I am proposing here cannot possibly be regarded--

Baroness Hollis of Heigham: I thank the noble Lord. I do not challenge him on the definition of retrospection as it applies to pensions that have accrued in the past. I should like to make that clear. However, there is often a difference between the date of Royal Assent and the date of implementation. The noble Lord knows that perfectly well. Many Bills are passed, but implementation is set for some later date because of the need for regulations to be passed, IT systems to be set up and so forth. That often happens when new benefit legislation is introduced, and that was certainly the case with JSA.

I do not know of any case in social security where, having passed a Bill with implementation coming in at a later date, some cases have been allowed to take effect before implementation. For this measure, by definition, the date of implementation is not Royal Assent. At that point the legal profession will not necessarily be ready to go.

Lord Goodhart: My Lords, I am unable to accept that pension sharing applying to divorce proceedings commenced after the Bill has been enacted is in any sense, as it is usually understood, retrospective. Be that as it may, this is simply a practical point and there is no great point of principle here. However, I believe that the courts will find themselves with a serious practical problem. So far as I can see, from now until the Bill is implemented--we have been told that that may happen towards the end of the year 2000--divorce proceedings are going to be delayed, and there will be a serious logjam. But it is not my intention to press the amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 264 and 265 not moved.]

Baroness Hollis of Heigham moved Amendment No. 266:

After Clause 82, insert the following new clause--


(“. An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it is made only for purposes corresponding to those of this Act--
(a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament), but

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(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.")

On Question, amendment agreed to.

Schedule 13 [Repeals]:

Baroness Hollis of Heigham moved Amendments Nos. 267 to 269:

Page 167, line 4, column 3, at end insert--

(“Section 12A(8)(b).")

Page 167, line 18, column 3, at end insert--
(“In Schedule 3, paragraph 45(a).")

Page 168, line 53, at end insert--
(“1999 c.10.Tax Credits Act 1999.In Schedule 1, paragraph 2(d).")

On Question, amendments agreed to.

Clause 84 [Commencement]:

[Amendment No. 270 not moved.]

Baroness Hollis of Heigham moved Amendment No. 271:

Page 86, line 21, at end insert--
(“( ) The following provisions shall not come into force until such day as the Treasury may by order appoint--
(a) sections 69 to 74;
(b) section 80(1) so far as relating to paragraphs 72, 74 to 76 and 78 to 80 of Schedule 12; and
(c) section 83 so far as relating to Parts VI and VII of Schedule 13.")

On Question, amendment agreed to.

[Amendments Nos. 272 and 273 not moved.]

Baroness Hollis of Heigham moved Amendments Nos. 274 and 275:

Page 86, line 28, leave out (“paragraph 77") and insert (“paragraphs 12A, 77 to 77B and 81")
Page 86, line 31, leave out (“section 82,") and insert (“sections 82 and (Corresponding provisions for Northern Ireland),")

On Question, amendments agreed to.

[Amendment No. 276 not moved.]

Clause 85 [Extent]:

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