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The Lord Chancellor moved Amendment No. 186:

Page 24, line 13, after ("parties;") insert--
("( ) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child;").

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

Clauses 34 to 55 agreed to.

Clause 56 [Meaning of "cohabitants", "relevant child" and "associated persons"]:

The Lord Chancellor moved Amendment No. 187:

Page 34, line 43, leave out ("(1)(f)") and insert ("(3)(f)").

On Question, amendment agreed to.

Clause 56, as amended, agreed to.

Clause 57 [Interpretation of Part III]:

Lord Irvine of Lairg moved Amendment No. 187A:

Page 35, line 26, leave out ("in relation to a child").

The noble Lord said: The purpose of the amendment is to draw attention to what I hope is a sensible question in relation to the drafting part of the Bill on which I desire the assistance of the noble and learned Lord. My basic objective is to ensure that victims are protected against all aspects of domestic harassment.

A distinction is drawn in the interpretation clause between the harm which must be established as having been suffered by an adult partner and that suffered by a child. Perhaps Members of the Committee would turn to page 35, lines 19 to 24. In the cases of both an adult and a child "harm" means "ill-treatment". However, a few lines further down the page, "ill-treatment" does not mean the same for both. In the case of a child "ill-treatment" means,

but not so in the case of an adult. The issue that I desire to put before the Committee, and on which I invite the assistance of the noble and learned Lord, is that it appears that non-physical ill-treatment does not qualify as "harm" in the case of adults.

If I am right in that interpretation, surely the Bill has to be wrong. Why should a partner be entitled to switch off the central heating, leave on the lights all night, send hate mail or, as in one case about which I was told, keep revving up the motor car in the driveway all night to rob his partner of sleep. Another fairly typical type of harassment, sadly, is stalking one's partner, or making nuisance, or abusive phone calls to the partner's place of work.

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If I am right in my reading of this interpretation clause--and I shall be happy to be told that I am wrong--I find it hard to understand why it is that non-physical ill-treatment is automatically excluded from the court's protection for adults but not for children. That exclusion does not foster good family relations or good family life. On the contrary, if I am right about it, it will be seen as signalling a parliamentary lack of concern for the plight of those who are subjected to any of the many forms of mental torture that human beings, sadly, from time to time devise for one another. I beg to move.

The Lord Chancellor: The effect of this amendment is to define "ill-treatment" in Part III of the Bill in relation to adults. Currently a definition is given only in respect of children. It was suggested by the noble Lord that a possible construction of the clause as drafted would be to exclude ill-treatment that was not physical from the definition in relation to adults, and in that respect would afford less protection than the current law.

I do not accept that that is the case. We made the decision to define "ill-treatment" in relation to children specifically because of the question of sexual abuse. I wanted to put beyond doubt the fact that sexual abuse was ill-treatment. Sexual abuse is widely understood in relation to children. It can include any form of sexual contact. That is of course not the case with adults. It could also include non-physical abuse at times; for example, adults exposing themselves to children could be abuse. The decision not to define "ill-treatment" generally was made because there are many things that could constitute ill-treatment. To attempt to define them could result in an unnecessary and unwarranted fetter on the court's discretion. What will be ill-treatment will vary from case to case, but it is not my intention that some form of physical ill-treatment should be a pre-requisite. I hope that approach commends itself to the noble Lord.

9.45 p.m.

Lord Irvine of Lairg: I shall read with care the brief answer which the noble and learned Lord has given. It appears to me, leaving aside the words "includes sexual abuse" in the definition of ill-treatment in relation to a child, that the Bill, on its proper construction, includes, other than sexual abuse, forms of ill-treatment which are not physical. If that is expressly ill-treatment for a child, but not for an adult, it appears to me that forms of ill-treatment which are not physical would be held by a court not to qualify as ill-treatment in relation to an adult.

If that is not the noble and learned Lord's intention, for the life of me I cannot see why he is unwilling to yield on that point. At the very lowest he must regard that as an ambiguity because of the contrast in treatment of adults and children, and make it plain. I invite him to reflect on that. Meanwhile, in the spirit of this Committee, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

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Clause 58 [Rules, regulations and orders]:

Lord Simon of Glaisdale moved Amendment No. 188:

Page 36, line 36, after ("under") insert ("section 4(5) and").

The noble and learned Lord said: In moving this amendment, I shall speak to Amendment No. 189, the two being linked. We are concerned with parliamentary control of subordinate legislation. Clause 58(3) proposes that all statutory instruments, rules and regulations under this Bill shall be subject to the negative procedure only. I am very glad that the noble Earl, Lord Russell, has put his name to this amendment because I very much prefer marching shoulder to shoulder with him rather than be at horns locked.

We propose that orders made under Clause 4(5) shall be subject to the affirmative procedure. The Delegated Powers Scrutiny Committee, in its first report of this year, accepted the negative procedure as appropriate generally, but signalled an exception in its significant way to orders under Clause 4(5). Rather than take the Committee right through Clause 4, and the Delegated Powers Scrutiny Committee having put the matter so succinctly, I shall read what it says:

    "Clause 4(3)(b) imposes a time limit on applications for a divorce or separation order. The time limit is six months from the earliest time when an application for a divorce order could have been made by reference to the statement on marital breakdown. Clause 4(5) allows the Lord Chancellor to amend Clause 4(3)(b) by varying the time limit, and Clause 58 provides for this to be done by negative procedure. Clearly this is a Henry VIII provision and"--

This is in bold type--

    "the Committee will wish to consider whether this provision is so important to the scheme of the Bill that affirmative resolution procedure is required."

That is what the Scrutiny Committee had to say.

The reason for the time limit, as I understand from the debates we had on Clause 4, is, on the one hand, that there should be enough time for the parties thoroughly to consider their position, including, we think, time for reconciliation. On the other hand, stale statements, possibly quite outdated, should not be left hanging over the proceedings to the detriment of the parties and their children. When we debated this matter, different periods were suggested and argued over. I am not going to read the whole debate. What it amounts to is that the Bill proposed six months, the noble Lord, Lord Meston, proposed 12 months and the noble Baroness, Lady Young, proposed 18 months.

I think my noble and learned friend, reviewing these three contentions, thought that probably there was much to be said for 12 months, and he said he would consider an amendment on those lines to be brought forward by him on Report. It is a matter of considerable importance and your Lordships may well think that it should be on the face of the Bill that Clause 4(5) gives a Henry VIII power to alter that figure in the light of experience. In my submission, if it is not to be primary legislation, it should clearly be under the affirmative procedure. Your Lordships know well the advantages of that affirmative over negative procedure: principally that the Minister comes forward himself and lets Parliament know what are his reasons for making the order. There is also the

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serious question in another place that negative orders are often not reached, and I imagine that would be worse under the Jopling proposals which are now in force. I think the noble and learned Lord the Lord Chancellor went a long way to meet that view.

In relation to the three periods which are to go on the face of the Bill, my noble and learned friend said that it was suggested that that should be done by an instrument in a slightly different form from the one that he proposed. I take it that the one which my noble and learned friend proposed is the form in the Bill; in other words, the negative procedure. By "a slightly different form" I hope that he meant the affirmative procedure. At any rate, being perennially optimistic, it is in that spirit that I beg to move.

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