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So either risk, so far as is reasonably practicable, should be removed or diminished. The noble and learned Lord will recall that there are some decisions of the courts where the courts have been ready to read "and" as "or" if the purpose of the clause so requires. For my own part I think that there is no risk in leaving the clause as currently expressed.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I wish to speak also to Amendments Nos. 4, 5, 7 and 15. Amendments have been tabled to Amendments Nos. 7 and 15 and we shall return to those in a little more detail when they are moved. However, I wish to deal with the group now.
This group of amendments deals with the period for reflection and consideration. Noble Lords, in particular my noble friend Lady Young, the noble Lords, Lord Stallard and Lord Stoddart of Swindon, and my noble and learned friend Lord Simon of Glaisdale, expressed the view that the period as set at 12 months was not long enough. It was felt that this was especially the case where children were involved or if one of the parties did not consent to the divorce. However, other noble Lords had expressed equal concern that lengthening the period would be detrimental to the welfare of children by increasing uncertainty, or that it might be considered as a system of two-tier marriage.
Amendment No. 15 provides that, where there are children or one of the parties objects to the divorce, the period for reflection and consideration shall be extended by six months. However, it provides safeguards, meaning that the extension may not be made in cases where remedies against domestic violence have been obtained--that is automatic; such remedies have been obtained, the extension does not take place--or where the court is satisfied that further delay would be significantly detrimental to the welfare of children.
That is a very important safeguard. During our discussion of the amendment moved by my noble friend Lady Young and carried to a Division at Third Reading in this House, I expressed concern about the effect that it might have on children. I mentioned a number of children's charities, and that those concerned with these matters had expressed that anxiety to me.
I emphasise strongly that Members of the other place, in their consideration of this matter, took very full account of that concern. They put into this amendment the proviso that, where the court is satisfied that further delay would be significantly detrimental to the welfare of the children, the extension does not apply. That gives the court a very clear and full authority in this matter to have proper regard to the effect on the children. "Welfare" is the general word used.
Some have not fully taken on board this important exception. The noble Lord, Lord Habgood, has tabled an amendment, with which we shall deal in a little more detail. But in substance, this point is provided for very clearly.
This is the area in which a free vote was contemplated, both here and in the House of Commons. I regard it as extremely important that, on matters involving important issues of conscience, Parliament should be prepared to legislate. We ought not to shy away from important matters of that kind simply because issues of conscience are involved. Not long ago, two of my noble friends wrote to a newspaper to raise questions concerning life support systems for people in a persistent vegetative state. They asked whether that sort of subject should be referred to Parliament. I express no view about that. I wish merely to point out the need for the mechanism of free votes to be used to resolve matters involving issues of conscience. That is the proper mechanism by which Parliament can legislate on such matters.
In a Committee of the whole House the other place, on a completely free vote, resolved in favour of this formulation. This would be a matter for a free vote in this place, were any of these amendments to be put to a Division. However, I wish to express very strongly my own view that if we are to be able to legislate satisfactorily in this area, unless there is a very strong reason to differ, it would be right for this House to consider as very important the result of a free vote in the other place.
Naturally enough, next morning I was asked about the matter. My express opinion then was that the only way in which this kind of issue could be satisfactorily addressed was by my accepting wholeheartedly the result on the free vote in the House of Commons. That I have done, consistently, since. I believe that is wise.
This is a matter for a free vote. Your Lordships are all free and utterly independent. However, I suggest that if matters of this kind are to be legislated for properly in government time as they should be when they are central to our national life, we must do what we can to respect the result arrived at by a democratic free vote in the other place.
The other amendments in this group are consequential on Amendment No. 15. Amendment No. 3 provides that, where the court has both an application for a divorce order and a separation order before it under Clause 3 and the period for reflection is extended, the court is entitled to proceed with the separation order rather than only the divorce order. Amendments Nos. 4, 5 and 7 amend Clause 4 to prevent parties circumventing the extra six-month time period set out in Clause 7 by obtaining a separation order after 12 months and immediately applying to convert it into a divorce order. Obviously that would be to subvert the purpose of Clause 7. This provision was inserted in consequence of the passing of Clause 7 in its present form. The amendments will make the time period in Clauses 4 and 7 consistent. I beg to move.
Lord Irvine of Lairg: My Lords, in some respects the Bill was a better Bill when it left this House. In many other respects it has been improved by amendments that have been promoted by my party in the other place.
I adhere to my view that a year for reflection and consideration is generally sufficient. Therefore, I appreciate the reasons for the amendment proposed by the noble Earl, Lord Russell, Amendment No. 15A, which he will move shortly, although for reasons that I will explain I do not feel able to offer my support to that amendment.
The other place took the view on a free vote that if one of the parties wants 18 months, then 18 months it shall be; or where there are children, 18 months it shall be, regardless of the wishes even of both parties, but subject to a discretion in the court to take the further six months out where the court is satisfied that further delay would be significantly detrimental to the welfare of the children.
That provides a satisfactory means of dealing with my concern which, in common with other noble Lords, I have expressed a number of times during our consideration of the Bill: that unnecessary delay and uncertainty would be in many cases detrimental to the interests of the children. I have confidence that the courts will be well able to identify the very many cases where that concern would be justified, so that the further six months should come out in those cases.
On the whole, I am content with this aspect of the amendments. Under the amendments one of the parties is able to insist on 18 months--and I do not doubt that this point will be the burden of the argument of the noble Earl, Lord Russell, when he moves Amendment No. 15A--even where no sensible purpose can be achieved by withholding a divorce for the further period of six months. That is why I was persuaded by the noble and learned Lord in the first instance that 12 months was right in the generality of cases.
We should remember that under the present law there can only be a divorce on the grounds of separation after two years if the parties consent and five years if they do not, in separation cases only, so 18 months is better than five years.
It is true that the quickie divorce on grounds of adultery is these days the rapid line of exit from a failed marriage, but, as many of your Lordships, including myself, argued in our consideration of the Bill, the quickie divorce disfigures the institution of marriage. We must therefore bear in mind that the quickie divorce has gone under the Bill. I believe that the abolition of the quickie divorce and the fault principle is in the interests of the institution of marriage and of the development of sensible agreed arrangements for the future for the benefit of both the parties and their children.
The position that I adopt is that the totality of the provisions governing the delay period and the Bill as a whole are a package which noble Lords should accept.
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