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Earl Russell: I am most grateful to the noble and learned Lord for that very full and careful reply. Before I leave the amendments, perhaps he will forgive me for raising just one point on which I should like to hear a little more. I have not heard--I may have missed the explanation, and, if so, I am sorry--why he decided that he should not use the expedited procedure under the Married Women's Property Act for cohabitants. I should be very grateful to hear that before we leave the matter.

The Lord Chancellor: The reason that I did not mention the point is that I do not feel that it is expressly covered in these amendments. In any case, the answer is simply that the way in which it was expressed in the Bill suggested perhaps an unnecessary equivalence with married women. It uses the Title of the Bill. It is a purely procedural matter. One way of doing it is to express the procedure, which is the procedure of the Married Women's Property Act, without in fact using the name of the Act to describe procedure that would be open in appropriate cases to people who might not be married. It is purely a procedural provision. It is certainly possible to reach that result in a number of other ways without, as it were, by reference incorporating provisions from an Act of Parliament. In

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other words, the court itself has plenty of powers to regulate its procedure without the necessity of that express provision.

Originally, I thought that it was a good idea. But, having looked at the matter, I concluded that it was not necessary to do it that way. The consequence of doing it that way was that some, at least, who read the Bill took the meaning from it that I have just suggested. That was an unnecessary confusion. I believe that I have been able to remove that confusion. In due course, the procedures which, in any case, are subject to change, might well be appropriate procedures for those cases and may well be introduced as soon as we can do it.

Earl Russell: I am most grateful to the noble and learned Lord and indeed for the whole of that very careful reply. I entirely agree with what he said about the Jellicoe procedures. I was not able to be a Member of that Committee. I have read the Minutes of Proceedings and Evidence which indicated that very careful consideration indeed had been given to that Bill.

With regard to the ouster orders, the noble and learned Lord made a very serious case. Anything that I say this evening is, of course, provisional, because I must read very carefully in Hansard what the noble and learned Lord said. But if I understood him correctly, he said that the discrimination between the married person and the cohabitee was not on any moral ground but because there was a difficulty in establishing any title to the house in those particular cases and that he was allowing marriage to create a presumption which was not being given to cohabitees simply because the situation was clear. If that is a fair paraphrase of what the noble and learned Lord said, although I would not necessarily have written the Bill that way myself, I can understand why he did it and I take that argument seriously.

The question of the Married Women's Property Act and Clause 36 raises the issue of equivalence. Here I think that there is a deeper disagreement between us. I entirely understand that it is proper for anyone in a ministerial position to give way to representations that are made--after all, I am asking the noble and learned Lord to do that, so I can hardly say that it is improper that he should do so--but I ask him to bear in mind that on this matter he is receiving pressure from both sides and therefore has a certain degree of discretion about to which side he gives way, on which points, in which ways and on what principles.

Of course, I accept what the noble and learned Lord, Lord Simon of Glaisdale, said and that marriage and cohabitation are not the same thing. I am extremely grateful to the noble and learned Lord for his recognition that cohabitation is becoming, or has become, a status in law. However, if one is to distinguish between them, a further question arises of whether the distinction should be made in matters concerning the Queen's peace and protection from physical violence. I might have a good deal less objection to a distinction being made in, for example, testamentary dispositions. My argument in this case is that the duty of protecting people's physical safety is a

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higher duty than that of having recognition of any particular form of legal status. In fact, it is a matter of priorities.

We shall have to discuss this matter further--probably outside the Chamber as well as within it. Meanwhile, I thank the noble and learned Lord the Lord Chancellor very warmly for the care that he has taken and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clause 31 [One cohabitant or former cohabitant with no existing right to occupy]:

9 p.m.

Lord Irvine of Lairg moved Amendment No. 184A:

Page 22, leave out line 24.

The noble Lord said: In moving Amendment No. 184A, I should like to speak also to Amendments Nos. 184B and 184C which also stand in my name. All have a common purpose, which is to protect the victims of violence.

Before explaining the purpose of the amendments, I desire to make a number of observations of a more general character. This is a time, even as late at night as this, for some straight talking. An important issue is at stake in relation to these domestic violence provisions which transcends the particular provisions. It is how to secure that appropriate Law Commission Bills are put through our Jellicoe procedure, a fast-track procedure, with all-party agreement and with all the salutary co-operation--

Lord Simon of Glaisdale: I hope that the noble Lord will cast a benevolent eye on the schedules that we discussed last week which were based on Law Commission Bills.

Lord Irvine of Lairg: Law Commission Bills naturally find their proper place in legislation which is brought before your Lordships' House and the other place. However, I have to say that the noble and learned Lord's propositions, which may have had a great deal of merit, did not find a natural place in this Bill.

My point is this: an important issue is at stake when we are seeking to use our fast-track procedure, the Jellicoe procedure, with all-party agreement and with all the salutary co-operation that that involves between the parties. I am sure that the noble and learned Lord will confirm that that co-operation extends to smoothing the passage of such Bills through the other place which is perhaps a rather more political place, perhaps I should say a rather more "partisan" place, than this House. That co-operation is put at risk for the future when the Government allow an agreement between the parties, reflecting not a party agreement but the actual agreement of the overwhelming majority of all the relevant parties in both Houses, to be blown off course by an irrational reaction on the part of a tiny unrepresentative minority of the governing party in the other place. In this case, it was a tiny and unrepresentative minority which was trying to claim a spurious moral high ground for party political reasons.

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If that kind of unrepresentative minority is yielded to, I have to say that that is the way to imperil the making of agreements which will allow such Bills to go through the Jellicoe procedure in the future. Assuaging uninformed minorities does not facilitate all-party agreements which alone can be the foundation for utilising the Jellicoe procedure in the future.

My three amendments are designed to restore the full force of the previous Bill, before concessions were made to appease the uninformed minority in the other place. I can only suppose that the attitude of that uninformed minority was based upon what a tabloid newspaper, the Daily Mail, claimed about the Bill and not on what the noble and learned Lord's Bill provided. That minority obviously thought, because that is what they said, that the Bill for the first time would afford legal protection to mistresses and somehow, as a result, undermine the institution of marriage. Quite how a freedom to be violent to one's partner upholds the institution of marriage remains unexplained.

Anyway, that uninformed minority was 20 years out of date. The Domestic Violence and Matrimonial Proceedings Act 1976, as the noble and learned Lord is well aware, gave protection both to spouses and to unmarried partners against domestic violence. That protection was underpinned by a power in the court to make an ouster order against the violent party.

In fact, that power is used very rarely by the judges up and down the country, but the existence of the power, and the threat of its use, is a potent weapon in the hands of the courts to calm the domestic scene, to make it plain that our courts will not tolerate domestic hooliganism. That hooliganism damages victims, inflicts misery on children, and, if unpunished, feeds in the perpetrators an appetite for further violence.

Before I move the amendment, it may be of interest to the Committee to know how the law at present works in practice. A partner complains of molestation and the court is asked to consider the complaint. The usual upshot of the first court hearing before the district judge in the county court will be an adjournment of the application on the basis that each party will give undertakings not to molest the other in the future, usually without an admission of any previous molestation.

In the great majority of cases that is the end of the matter, but in a small number of cases the parties come before the court again, breaches of undertaking are alleged and, once established, the court will impose an injunction against violence. If that is disobeyed, then the court will either make an ouster order if co-habitation is continuing or, if the violent partner has already left, the court could commit to prison. In practice, the court will usually suspend the order on condition of future good behaviour. It is only when all those remedies have been tried and failed that the violent partner is at risk of imprisonment.

I take a minute or two to say that so as to make what is my point, which is to call attention to the fact that great latitude is already given to the persistent aggressor. From these Benches we see no reason why those aggressors should be indulged further.

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Amendments Nos. 184A and 184B are designed to restore the Bill to its original form, with which the noble and learned Lord previously agreed, in one very important respect: to restore the balance of harm test in all cases. Under Clause 28(7) the test for making an ouster order in favour of a partner with a right of occupation against a partner without any such right--for example, against a partner with no legal interest in the property--is to make the order if the order will protect the applicant or a child from significant harm, but not to make that order if as great or greater harm will be caused to the other partner or a child from the making of the order. That is what called the balance of harm test, to which the noble and learned Lord has already referred. What it requires is for the court to make a detailed appraisal of the consequences of making or abstaining from making the order.

Neither the Law Commission nor this place in its previous deliberations suggested that there was anything wrong with the balance of harm test or that it should not equally be applicable in cases where the victim of violence had no strict legal right to occupy the property.

The new provisions in Clause 31(8) draw a distinction between orders made in favour of those with an entitlement to occupy and orders made in favour of those with no such entitlement. Thus, the balance-of-harm test, if satisfied, must result in orders in favour of those with rights in the property. But even if the balance-of-harm test is satisfied in favour of those without any legal rights in the property, the matter is purely within the discretion of the court.

Under the Law Commission's proposals, if the court were of the view that the balance-of-harm test was satisfied, the court had to make an order in favour of the non-entitled applicant--that is, if more harm would be caused to that applicant or any child than would be caused by not making the order.

Despite what the noble and learned Lord said in his response to the previous amendment, the plain fact is that the test for non-entitled applicants is being deliberately changed to their disadvantage. The courts will be bound to give effect to the different test in their case and to hold that they have a discretion to withhold protection from a non-entitled partner, even though the balance-of-harm test is satisfied.

That severely weakens protection for the abused because it consigns those already vulnerable, because they lack property rights, to a second-class protection. It cannot be said--and I ask the noble and learned Lord to declare whether he says--that the two different tests will make no difference in practice. If that is what is to be said, why make the difference? The purpose of Amendments Nos. 184A and 184B is to give a quality of court protection for all victims of domestic violence.

Amendment No. 184C deals with a related but distinct subject. It is aimed at restoring the provisions in the previous Bill which here too have been altered as a sop to the objectors but in a way that I say opens up the dangerous gap in the protection that the court may confer on victims of domestic violence. The previous provisions gave the flexibility of renewing protection for

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as long as was necessary--I repeat, as long as was necessary. Of course the court would need to be satisfied that the continuance of its ouster order was necessary to protect the victim and any children. Typically, the court might make an ouster order for, say, three months. The reasoning would be that in a domestic crisis parties need time to reflect on and to take steps to deal with their situation. If for good reason the three months were not enough, under the old provisions--the provisions which first appealed to the noble and learned Lord--the court had the flexibility to continue its protection as long as it was needed.

Ouster orders in favour of non-owners may be for six months only with the possibility of one further extension of six months but no further extension whatever the circumstances. It may be that in many cases 12 months would be adequate; but I say that in this sensitive jurisdiction, where the facts of every case vary so infinitely, it is unhelpful to tie the court's hands to arbitrary time limits. The judges should be trusted.

I have no doubt that cases will arise in which acute difficulty will be found in rehousing the abused party or where the couple may be elderly, ill or even terminally ill. If alternative accommodation does not become available to the abused partner within the 12 months under the Bill in its present form, the court is literally powerless to prevent that individual being turned out on the street.

I dare say that there can be sops to the uninformed which may not much matter in practice, but I have to say that this one does matter: it is repugnant to justice. Those who are in favour of the changes as regards the previous provisions--as the noble and learned Lord recommended them and, indeed, believed in them--which are brought about, so we are told, to strengthen the family, have a duty to explain how that object can conceivably be arrived at by insisting on this gap in the court's protective powers. I suggest that that gap would leave the abused, and the uniquely vulnerable, homeless. I beg to move.

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