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The noble Earl, Lord Howe, raised a variety of issues about healthcare, public health targets and the various programmes that we are undertaking. The health and equalities targets were deliberately set to be ambitious and some progress has been made, although there is a great deal more to be done. We believe that there is a lot of headroom within the system for improvement. Our focus now is to provide tailored, intensive support to deal with issues such as high infant mortality, new GP practices in the most deprived areas, additional support for the early presentation of cancer and CVD, the take-up of vascular checks in disadvantaged areas and programmes to support communities, such as the improvement development agencies, healthy communities and communities for health.

One of the noble Earl’s colleagues in another place criticised Change4Life as a campaign that was an attack on the video games industry. Would the Conservatives spend more or less than Labour on public health information campaigns and do they support the Change4Life campaign, or does the noble Earl agree with his honourable friend that this is just a campaign against video games and that they are bad for you?

Finally, some time ago my right honourable friend Alan Johnson, the Secretary of State for Health, said that we are committed to examining what the future of public health policy should look like. We have a good record of success. We continually try to improve. Throughout my response I have highlighted some obvious examples of how we are making a difference to people’s health and well-being. We are investing in health; we are concerned about what health means and what public health is all about. I am grateful that we are able to continue this shared debate and look forward to hearing from colleagues in the future about this matter.

5.14 pm

Baroness Knight of Collingtree: My Lords, this has been an interesting debate. Although we have not had many speakers—perhaps that is not surprising on the last day before a bank holiday weekend—all the points made have been varied and very interesting.

The point of the noble Lord, Lord Addington, that aspirations must be achieved, was a good one. He asked whether they will be achieved and whether we

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are sure that they can be achieved. There are doubts in many places about that matter. The House was most interested to hear from the noble Lord, Lord Ramsbotham. From his great experience he made a strong case for some fundamental changes in the way that sick prisoners are treated and under whose ambit they should come. I hope that his remarks will be taken on board, because they were thoughtful. Springing as they did from experience, they were worthy of great concentration and thought.

The right reverend Prelate the Bishop of Ripon and Leeds drew attention to something that no one has mentioned until now: the work and the willingness of faith groups. That is an important point that we often miss. I hope that the Minister will bear in mind the amount of good will and good intentions to help difficult areas in the health service. The noble Baroness, Lady Masham, talked not only about the pandemic but about the education that was necessary. I thought that that was a different and important point in the area of healthcare.

I listened with great interest, as I always do, to the noble Baroness, Lady Barker, who made some wise suggestions about the importance of directing finance. I hope that those comments will be listened to.

My noble friend Lord Howe talked about health inequalities. That is a subject on which he or I could speak for a very long time. It concerns us, and I hope that the Government have taken on board the worrying statistics that he gave us.

The Minister talked about mixed wards. I hope that we shall not be put off in the way that we have been in the past by saying that mixed wards have changed. At one point the Minister told me that 92 per cent or 93 per cent of all patients were not in mixed wards. I found out that the truth was that they were not in mixed wards because the name of the ward had been changed to an assessment ward. So one could say that they were not in mixed wards, but the wards were mixed: men and women were there together. They were not intensive care wards.

I thank most warmly everyone who has taken part in the debate, and I beg leave to withdraw the Motion for Papers.

Motion withdrawn.

Cohabitation Bill [HL]

Bill Main Page
Copy of the Bill

Committee (1st Day)

5.18 pm

Clause 1 agreed to.

Clause 2: “Cohabitant”

Amendment 1

Moved by Lord Lester of Herne Hill

1: Clause 2, page 2, line 3, leave out “two” and insert “five”

Lord Lester of Herne Hill: In moving Amendment 1 I shall speak also to Amendment 4, with which it is grouped. I am happy to report that there is common agreement on this across the Committee: between us and the noble Baroness, Lady Deech, the noble Lord, Lord Henley, and the noble and learned Baroness, Lady Butler-Sloss.

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The purpose of Amendment 1 is to increase the minimum period of cohabitation required before cohabitants without children will be able to make a claim for a financial settlement order. A discretion to waive the qualifying period is dealt with by Amendment 4. As noble Lords know, the Bill is designed to protect cohabitants who demonstrate a certain level of commitment and likely interdependency. Where existing law recognises the rights and responsibilities of those living together, a minimum period of time is usually required before cohabitation is established. Schemes in other countries take this approach and it reflects the proposals made by the Law Commission. It also avoids the use of less definitive eligibility criteria which may cause uncertainty and complexity, and does not open the floodgates to people in very short-term relationships.

Lord Henley: I wonder whether I may intervene in the fascinating opening speech of the noble Lord, Lord Lester. My understanding is that Amendment 1, grouped with Amendment 4 in the name of the noble Lord and the noble and learned Baroness, Lady Butler-Sloss, is tabled in the name of the noble Baroness, Lady Deech, then myself, and then the noble Lord. I do not know whether the noble Lord has spoken to the Lord Chairman, but for some inexplicable reason the noble Lord has been asked to move it. Would it not have been right for the noble Baroness, Lady Deech, to move it, since her name appears first on the Marshalled List, followed by mine, then his, and lastly that of the noble and learned Baroness, Lady Butler-Sloss?

Lord Lester of Herne Hill: It is entirely in the hands of the Committee. However, having begun to explain the main purposes of the amendment, and as the controller of the Bill, I would have thought that this was always what we wished to do. I would have thought that it would be more efficient and less wasteful of time if I completed my speech. If the noble Lord feels hurt by that, the last thing that I would want to do is to cause such hurt, and I shall sit down. However, in terms of understanding our purpose and for the debate, it would be more courteous to the Committee if I spoke. If the noble Lord, Lord Henley, disagrees, I shall sit down. Does he disagree?

Lord Henley: No. I just find it extraordinary that the noble Lord did not bother to speak beforehand to either myself or the noble Baroness, Lady Deech. I can only speak for myself, but I am sure that we will leave the noble Lord to explain this amendment and in due course we will speak to it. We shall also speak to his Amendment 4 which is grouped with it, and about which we have some considerable concern. No doubt the Government will respond in due course. We will then have to work through all the other amendments on this Thursday evening and see how we get on with the Bill. I shall leave the noble Lord to speak, but it would have been polite of him, to say the least, if he had spoken beforehand either to myself or the noble Baroness, Lady Deech.

Lord Lester of Herne Hill: I certainly did not intend to be rude and I apologise if I seem to have been impolite. I shall therefore proceed as quickly as possible so that there is ample opportunity for others across

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the Committee who support the amendment to speak. We can then deal with the later amendments as speedily as possible.

I think I have explained that the Law Commission has suggested that a period of two to five years would be appropriate. A five-year period would protect those in longer-term relationships, and it is arguable that there is more likely to be a financial imbalance in such a relationship. There are arguments in favour of the two-year period because there can still be significant unfairness and hardship where people have lived together for less than five years. We would support this amendment, but alongside Amendment 4 which provides a discretion to waive the five-year qualifying period in cases of exceptional hardship.

It is important to be clear that the Bill also protects cohabitants with children. Under the Bill, a child’s primary carer can apply for financial support whether or not they have lived with the child’s other parent for five years. That is vital for the following reasons. First, the number of people cohabiting is continuing to increase, as is the number of children being born to cohabiting couples. Cohabiting is now the fastest-growing family type, and by the second quarter of 2008 the proportion of dependent children living with cohabiting couples had increased to 13 per cent from 8 per cent in the same period during 1997.

Secondly, the existence of children makes it more likely that one partner will suffer the economic disadvantage if he or she is the primary carer of the children. The current law affecting cohabiting couples takes no account of their relationship and does not aim to achieve a fair outcome between former partners. The vast majority of unmarried primary carer parents cannot secure provision for childcare costs from the child’s other parent to enable them to work. Thirdly, children’s financial wellbeing is dependent on that of their parents. The risk of poverty is exacerbated for children of separated cohabitants because of the current lack of financial protection for dependent partners.

So, that is why we originally put in the two years. We seek to increase it to five years because we are very anxious that this Bill should be as cost-effective as possible and there should not be any unnecessary public expenditure incurred. We well understand the Government’s dilemma because of the current economic recession. That is why, subject to the discretion in the other amendment with which this is grouped, we are strongly in favour of adopting a more conservative approach of extending the period from two years to five years with the discretion. I beg to move.

Baroness Deech: I say what I do about this amendment with certain principles behind me which also apply to all the amendments in the name of myself and the noble Lord, Lord Henley. I have tabled this amendment and many others in order to reduce litigation. This is for the sake of our daughters, and sometimes our sons, and for the sake of our grandchildren and their stability. This is against the background of the bitterness always engendered in family proceedings between two people who once had a good relationship. It is against a background of an industry of mediators who may not have had as much success as was promised 10 years

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ago, and against a background highlighted again only today in newspapers that fathers simply will not pay for their children. We know about the organisations that fathers support and the inexplicable refusal of men to take care of the families that they have left behind and the inability of the state to get that money out of them. We have to be realistic.

I speak to this amendment also against the background of the change, only this week, of family proceedings being heard in open court. The details that come up later on in the Bill, those in Clause 9—indeed, the whole situation—will be heard in open court. The judges may throw out the journalists, but every couple caught up in this situation will have to say to themselves that the details of their commitment, the details of their relationship or non-relationship, may be all over the press. They will have to recite all of that in front of a courtroom full of journalists. I also say this against the background of Article 8 of the European Convention on Human Rights, on the right to respect for private life, and the fact that we all have a human right to follow a path of relationships that suits us. This is sometimes outside the law. There is no disapproval of that. If we wish to stay outside the law and to have a private life, we have that human right.

Professor Stephen Cretney, former Law Commissioner with responsibility for family law some years ago, brought his mind to bear on this situation, in particular the length of time as set out in this amendment. He said that his approach was strongly influenced by the belief that litigation in the context of intimate relationships is very frequently if not always destructive. Of course it is right to provide a remedy for injustice, but care must be taken that the cure is not provided at too great a cost. I do not believe that it is the function of the legal system to provide a remedy for every situation in which someone could plausibly argue that he or she has suffered loss. Certainly, the legal system should not provide an opportunity for what can easily become a form of harassment. That is the problem with both the amendments in this group. The question is not so much whether in the end a claim would succeed but whether it could plausibly be put forward, and the cost is financial and emotional.

5.30 pm

Surrounded as I am by noble and learned Lords, I still feel that I should point out that the cases that appear in court are only the tip of the iceberg. The power of the Bill, were it to be passed, would lie in the possibility of one of two people who had spent a short time together being able to say to the other, “Unless you pay me x, I am going to court”. Those are the negotiations and the blackmail that the judges will not see, in the end. No doubt they will make sensible decisions in court, but they will not see what is going on beneath the surface and how this could be used as a weapon and a threat.

It will emerge in discussion about later amendments that there is already an amplitude of law to meet the needs of a former cohabitant who falls on hard times. Schedule 1 to the Children Act exists and is underused. The only gap I have been able to find is the example of a polygamous wife who never really got married in this country and who has no children. It has been argued

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in this House that there is no help for such a woman. Only the other day, the noble Lord, Lord Bach, said in response to an Oral Question that this nation does not approve of polygamous marriages. I would find it hard to believe that the House would pass a Bill that would have the effect only of supporting this narrow range of women who may have believed themselves to be married but in fact were married polygamously and left destitute.

It is right that the number of years goes up to five. In fact, had I thought about it longer, I might have said 10. Only 5 per cent of cohabitation lasts more than 10 years. Too often, to open the floodgates at two years, or even five, would have the bad effects that I have mentioned, quite apart from the ill effects of cohabitation law in general.

There are two groups of cohabitants, research shows us. There are young couples, often just beginning their working lives and not committed. Over half the cohabitants in recent years until 2007 were under 35. They are capable of sorting out their own affairs, they are unsure about commitment and we should not penalise them for trying out a relationship. The other half are older and perhaps underprivileged. They will be hallmarked by children, early breakdown and lack of resources, and there is no point in passing a law to effect the transfer of resources where there are none and where people will end up living on social security.

This is not the Law Commission Bill. I remind your Lordships that the Law Commission report did not, as in this clause, suggest automatic eligibility just because two people lived together; there needed to be evidence of qualifying contributions, and long cohabitation, however long, was insufficient. The Law Commission wanted a situation quite different from marriage. In fact, the problem with this clause is that if it is amended, the period will not even be five years because periods of separation will be allowed to count. If a couple live together for a year, separate for a year and come back together, that will still count. Indeed, in the Bill as it stands, almost any short period of cohabitation will be enough to send the deserted cohabitant to a lawyer or Citizens Advice to start a period of argument and hassle that can ill be afforded in this era of economic downturn. We must take account of how this will affect potential litigants as they separate. Many of the qualifications are impossible, such as the nature of commitment, but we will come on to that. This is an attempt to get some sort of cohabitation law on to the books in a way that will set back the cause of working women by many decades.

A period of two years would have promoted a walkout at one year and 11 months. I fear that a period of five years will stimulate men into walking out after four years. If, heaven forfend, the next amendment were to be passed, it would mean a complete collapse in stability because a man might well know, given the publicity that would no doubt attend this, that any short period of living with a woman may well lead to a claim for money. What we all want is stability for our children and grandchildren. Giving these rights promotes instability, as much research shows. In other words, it will be detrimental to children.

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The median duration of cohabitations now is just under two years. Less than one-fifth survive five years. Many go on to get married. These figures were given by Ermisch and Francesconi in 2000 and in the Cabinet Office’s own paper by the Strategy Unit in December 2008 called, Families in Britain. The Office for National Statistics says that a first cohabitation lasts for 39 months. That is the mean length. In other words, anything less than five years would be wrong and too short in my opinion.

In the end, it is not a good idea to encourage cohabitation, let alone when it is followed by break-up. A great deal has been written about high rates of abuse by men living with women who have children who are not his. The Law Commission said that it did not want to entertain trivial or farfetched claims. I fear very much that the amendments in the names of the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss, which cover anyone who had lived together for the shortest possible period, will certainly open the door to farfetched claims.

Baroness Thomas of Walliswood: I am extremely sorry to interrupt the noble Baroness. She is speaking to the amendments—hers is the leading name of the group who have tabled them—but she seems to be ranging over the whole purpose of the Bill and a lot of other things that are not directly connected with her amendments. We had an interesting Second Reading debate for which I was present throughout, and many people made extremely interesting speeches, including the noble Baroness. Should we not perhaps get back to the amendment?

Lord Henley: Before the noble Baroness, Lady Deech, responds, perhaps I may remind the noble Baroness, Lady Thomas, that quite often the discussion ranges a little wide on the first amendment to a Bill. I am not sure that it has ranged wider than Amendments 1 and 4. The noble Baroness, Lady Thomas, has been here for some time; it is not unusual for that to happen on the first amendment to a Bill as we clear the air before getting on to the issues. I am sure that every word that the noble Baroness has said on Amendments 1 and 4 has been on the subject. No doubt every word she still has to say will be on the subject, and no doubt others will want to speak.

Baroness Deech: I thank the noble Baroness for her helpful intervention. I wish to explain that by saying some of these things now we will save time on later amendments. In essence I want to say that five years is quite short enough and that Amendment 4 would simply open the door to litigation as soon as two people had lived together. We must realise that cohabitation tends to be a very short event, followed by marriage or separation. There are likely to be children with older couples who are already taken care of under Schedule 1 to the Children Act 1989.

The children’s plight was well described by the late family court judge, Mrs Justice Bracewell, in a lecture to Gresham College. She said that cohabitation with different fathers of children does not provide stability,

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but stability is what I am seeking to promote by having a longer time, as in the first amendment. Stabilility is what children need.

Amendment 4 is in the same group, but it is fundamentally different. It undermines the period of five years. It virtually sweeps that aside and says that for any two people who claim to have lived together for only a short period—note that there is no definition of living together, as the Bill does not even refer to living together in one household—one of them could go to court and say, “Well, this is an exceptional case and I want this right”. It would extend the possibilities of harassment and blackmail as pointed out by Professor Cretney. Indeed, any cohabitants excluded under any definition will complain. Amendment 4 might provide something for polygamous wives; though very many of them will be taken care of by the provisions that already exist to give financial provision for “wives” of void marriages. It is not the policy of this country to provide for such situations and there will be extra, expensive litigation over whether or not this new clause, were Amendment 4 to be passed, should apply.

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