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Lord Elton: The noble Lord, Lord Meston, has demonstrated that the exclusion of Part III of the Bill from the list of the objectives in the amendment renders it defective. I rise to ask the Committee from the heart to stop behaving as though the law alone will determine the divorce rate. If Members of the Committee think that by passing legislation of any kind they will improve matters significantly, they delude themselves. There is far more to be done in our society to rescue it from what is happening than mere legislation. So can we not make that a principal argument?

The Lord Chancellor: I wish to take the opportunity not to make a Second Reading speech--which I shall try to avoid--but to answer two questions put to me about matters that were in the public domain this morning.

My position as regards the Bill is that I have brought it forward because I regarded it as important to do so in the discharge of the responsibilities of the office which I presently hold. The reason I brought it forward is that it has been brought to my attention by many of those who work in the field that the present law of divorce has a very detrimental effect on the children affected by it. I regard it as vitally important in the discharge of my responsibilities that I should put before Parliament the best law that I can suggest as a Bill, in order that those matters may be addressed. The ultimate responsibility for what goes on the statute book will, of course, be that of Parliament as a whole.

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My second point is this. My attitude to the discussions in Parliament is that the Government's policy was reached after careful consideration, after the Law Commission report. I would not wish to describe the law commissioners as technocrats. I regard those who are selected for that important office as having wide experience which is valuable to Parliament. It has been the subject of many compliments by distinguished Members of your Lordships' House over the years since I have been here. The Law Commission report came after consultations and after the Law Commission put out a working paper in 1988. The Law Commission report was in 1990.

As my noble and learned friend Lord Rawlinson said, I appreciated fully that this is a controversial matter. Frankly, it was controversial for myself. I found it extremely difficult to know what to do. The noble Lord, Lord Stoddart of Swindon, kindly referred to my background and paid other compliments which are too generous. I found it extremely difficult to know what to do, but I thought the right action was to issue a Green Paper and consult generally on the basis of what the Law Commission had proposed, with a good deal of flexibility in the Green Paper about, for example, the period for reflection. It was not immediately self-evident to me what the period should be and the Law Commission itself pointed out that different people had different views on it. So the Green Paper reflected that kind of consideration.

We consulted widely and all noble Lords had an opportunity to respond. Members of the Committee individually will know to what extent they responded. In the light of the consultation, the Government, reviewing all the responses that had come in, concluded the policy which is in the White Paper. That policy attempts to achieve the general objectives which are set out in the amendment of the noble Lord, Lord Stallard.

So far as I am concerned, the position is that the Government's policy as regards the period remains at one year. I have indicated that I shall listen carefully to all that is said in Parliament, not only on this subject but on every other aspect of the matter which I regard as of essential importance to the social fabric of our society.

The other point I wish to make is in a way subsidiary. I should like to attain the greatest possible consensus on these matters consistent with the principles that I have enunciated. For that reason I will give the closest attention to everything that comes from Members of the Committee.

As regards the proposals in the amendment, in my view the statements, so far as they go, are unexceptionable. The noble Lord, Lord Irvine of Lairg, suggested to me earlier that I might agree with myself--as if that was a good thing to do. On this matter, the objectives were set out in the Government's White Paper and therefore I agree with them wholeheartedly. It is possible to improve matters and in other respects I am content to disagree with

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myself where I have seen that an earlier view of mine was not substantially correct and can be improved upon. That is the purpose of these debates at Committee stage.

I do not wish to go into all the matters raised by Members of the Committee. So far as they reflect on the earlier parts of the Bill, I entirely agree with the objectives. By reference to them, I shall be happy to test all the subsequent amendments.

As the noble Lord, Lord Meston, pointed out in his observations, the amendment does not include a reference to Part III of the Bill. For obvious reasons, the White Paper did not deal with that and therefore change is required. I noticed that the noble Lord, Lord Stallard, departing from the earlier form of his amendment, dropped the final objective which was in the White Paper. It concerned minimising costs to parties and to the taxpayer. I regard that also as an important objective because unnecessary costs spent on the divorce will mean resources being unavailable for the support of the family unit affected or of subsequent relationships. Those are important additions which might be made.

The noble Lord, Lord Irvine of Lairg, mentioned that there is sometimes difficulty about the incorporation of such a clause because of its effect. I have taken preliminary advice about it but the Committee would wish it to be considered more fully in relation to the final formulation. Apart from anything else, Part III has to be taken into account.

So far as they go, the general objectives as stated are entirely correct in my view and I endorse them. I have no difficulty whatever in incorporating them in the Bill, assuming that I am advised that it is wise to do so in the full context of the Bill. Whether or not that is advisable, I am greatly obliged to the noble Lord, Lord Stallard, and others who put their names to the amendment for putting forward the objectives. I am content that all the later amendments to the Bill should be judged by those objectives.

It would be quite wrong for me to go into the detail of points raised in what have been described as "Second Reading speeches". We shall come to all that in due course. I simply indicate my view about matters at the moment. If the noble Lord, Lord Stallard, is prepared to withdraw the amendment, I have no doubt that we can return to whether or not it should be altered or formally incorporated into the Bill at a later stage.

Lord Stallard: I am grateful to the noble and learned Lord for his response. I fully appreciate that he cannot be expected to deal with everything on the hoof and, if he has second thoughts on anything, I look forward to his further agreement on Report.

He referred to paragraph (e) of the original amendment which I believed would be covered by other amendments and dealt with in far more detail than we could apply to it now. I therefore left that matter for future amendment. I hope that we shall then be able to discuss it constructively. In the meantime, I thank the noble and learned Lord very much for his reply. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

6 p.m.

Clause 1 [Divorce and separation]:

Lord Simon of Glaisdale moved Amendment No. 2:


Page 1, leave out lines 11 and 12.

The noble and learned Lord said: Before moving this amendment perhaps I may make two observations. First, how convenient it was that a preliminary Marshalled List was prepared for us yesterday by the Public Bill Office. Secondly, I should like to indicate the main classes of amendment that I have presumed to table. The first are purely probing, as indeed all are in a sense, in that I wanted to raise some novel points and hear the views of the Committee in relation to them. On none do I intend to ask the Committee to divide. Some are more strictly probing, and seek to discover exactly what is in the mind of my noble and learned friend.

The second group of amendments is designed to mitigate the injustice and hardship inherent in a measure that provides for unilateral repudiation of the other spouse, particularly hardship and injustice in relation to married women.

The third group is particularly directed to the words "have consideration of the welfare of children" considered at the stage of divorce, not postponed until after the parties have declared that their marriage is irrevocably over.

The fourth class is designed to take some positive action to affirm a marriage, partly by the contract, but partly by improving our regime of matrimonial property, so that it reflects more truly the sharing that is promised at the marriage and is inherent to the marriage, whereas at present our law of property goes against that.

This amendment is purely probing. It seeks to delete the reference to separation orders. I was not quite clear, although no doubt I should have been, exactly what is in the mind of the Government. I can think of two circumstances where a separation order is very much needed. The first is within a year of the marriage. It is supported in parliamentary divorce, in the ecclesiastical courts, and in lay courts since 1857, that occasionally there is treatment so evil from the outset of the marriage that the parties cannot be expected to live together. Perhaps the most striking is the communication of a venereal disease, of which there are several reports. That seems to me to be a case where the parties are precluded, as I read the Bill, from seeking a divorce order. I ask my noble and learned friend whether he can assure us that there would be no obstacle to seeking, and indeed securing, a separation order in those circumstances.

The second instance that comes to mind is where a number of people still have a conscientious objection to divorce. They stand by the promises they made at marriage, particularly those made at the altar. Those people are willing to be separated if the conduct of the other spouse renders the continued cohabitation virtually impossible. They are willing to be separated but not finally to have the marriage dissolved because it is subsisting in their eyes and, so long as it does subsist,

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there is always the chance of reconciliation, contrition, and resumption of cohabitation. There may be other circumstances. If so, I should be grateful if my noble and learned friend could help us, particularly on the two circumstances to which I referred.

This amendment is grouped with Amendment No. 15 in the name of the noble Lord, Lord Meston. I do not know whether he wishes to move it separately. It is also grouped with my Amendment No. 16. I think it would be for the convenience of the Committee if I moved that separately. In the meantime, I beg to move Amendment No. 2.


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