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Lord Wallace of Saltaire: My Lords, I thank the Minister for those extremely helpful assurances, which meet the committee's concerns very well. This has been a useful and worthwhile debate and I shall not detain the House for more than a few moments.
I wish to reinforce what the Minister said; namely, that this is not a question of the United Kingdom versus the rest of the European Union. There are religious schools elsewhere in the Community and, indeed, Catholic hospitals and universities. As a Protestant, I have lectured in two Catholic universities and I do not recall the roof falling in at either.
As a member of the Church of England, I would wish strong to resist the idea that secular society is a threat to religion. I used the term partly because my sense of religious societies and states is that they have, in the past, been sadly intolerant, and not only in the past. The most religious society in the United Kingdom is, after all, that of Ulster.
The societies of England in the 16th and 17th centuries, France in the 17th and 18th centuries, Iran and Pakistan in the late 20th century are societies which are much more religious than those that we have in Britain but I am not sure that they measure up to the degrees of tolerance and democracy that we wish to have. I remind the noble Baroness, Lady Young, that:
I make two other points. As regards national cultures and traditions, the Minister answered the point raised by the noble Baroness, Lady Howells, that we must accept that national myth and national memory in different countries are an inhibition in moving towards a common approach. There are good reasons why, in some other member states, statistical monitoring of racial, ethnic and religious orientation is resisted. One understands that and we must make way for it.
I underline the point made about third country nationals and visas, which a number of noble Lords made. Indeed, I hope that the committee may be able to return to that. This is part of the problem of the current state of the British opt out from the Schengen convention. As we have not yet opted into the visa conditions of the Schengen convention, I, as a university teacher, find, as do other university teachers, that our students cannot go to conferences in France, Italy or Belgium because it takes months to acquire the permission to go for just a day or two.
I was interested to hear that many noble Lords cited the recruitment of maths teachers as a particular problem in religious schools. The school that my children attended has just lost half of its entire maths department. If it could find a good maths teacher, I do not believe that it would care what religious or sexual orientation he or she had. He or she would be grabbed with open arms and dragged to the school.
It is a great privilege to be invited to introduce this Bill on behalf of the Anglo-Jewish religious community. I am Jewish, but I am not a religious Jew. Other noble Lords who will speak today are much better qualified by their religious faith and observance, their knowledge of Jewish law and practice and their personal experience. Nevertheless, I was approached by Eleanor Platt, QC, and Her Honour Judge Myrella Cohen, QC, the Chief Rabbi's special adviser, to introduce the Bill.
Eleanor Platt, QC, is a senior family law practitioner, who chairs the Get Committee of the Board of Deputies of British Jews. The members of the Get Committee are all family law practitioners, representing the views and interests of the various synagogue groupings: the Liberal and Progressive Movement, the Reform Synagogues of Great Britain, the Assembly of Masorti Synagogues, the Spanish and Portuguese Congregations, the United Synagogue, the Federation of Synagogues, the Union of Orthodox Hebrew Congregations and the Manchester Beth Din. The result of the work carried out by that alliance was complete agreement and unanimous support for an
It is because the Government feel unable to bring Part II of the 1996 Act, including Section 9(3), into force, that it was decided to introduce this Bill. It is designed to alleviate a real and pressing social injustice that inflicts acute distress and great hardship upon a small section of the Jewish community.
The Bill is strongly supported by the present Chief Rabbi, Dr Jonathan Sacks, as well as by several noble Lords who cannot be present today, including the noble and learned Lord, Lord Archer of Sandwell, the noble Baronesses, Lady Elles and Lady Hamwee, and the noble Lords, Lord Feldman, Lord Goldsmith and Lord Haskel.
The problem addressed by the Bill is that of so-called "limping" marriages experienced by some Jewish spouses. That arises when a Jewish spouse obtains a civil divorce while failing to terminate the Jewish marriage. As termination of marriage under Jewish law requires the agreement of both parties, the other spouse will effectively be unable to remarry according to Jewish religious law. In civil law that spouse may go through a ceremony of marriage with a new spouse in a register office without a get, but such a marriage will not be recognised as a valid Jewish marriage for the purposes of the Jewish law.
The children of such a union also suffer handicaps of status in the eyes of orthodox Jewish law. Where the wife is of an age to bear children, failure to receive the get makes any subsequent children born to her mamzerim--effectively, bastards--and they are treated as children born to a woman as the result of an adulterous or incestuous union. Those children suffer from a disability such that through no fault of their own, they and even their remote descendants acquire a taint that prevents them from marrying in accordance with Jewish law except in rare circumstances. A religious Jew trapped in a "limping" marriage is, in conscience, unable to marry even in a register office and, therefore, cannot enjoy the benefits accorded to married couples in civil law.
The refusal to give or accept a get, therefore, creates a grave form of "limping" marriage where there has been a civil divorce. The woman is chained to her husband; she is what is known as an agunah. In the words of Professor Michael Freeman of the Faculty of Law at University College, London,
During the Committee stage of the Family Law Bill in this House on 23rd January 1996, the late Lord Jakobovits, the then Chief Rabbi, explained the need for the amendment which became Section 9(3). For over a century and a half, since the Marriage Act 1836, the civil law has expressly recognised the synagogue marriage as legally valid and that no separate civil marriage is needed. Yet in dissolving that dual bond of divorce, English law requires only the civil marriage to be revoked while leaving the religious bond intact. If thereafter one of the parties remarries, content with only a civil divorce, the other party, who may regard the religious marriage as still valid, cannot remarry until a religious divorce is obtained.
Lord Jakobovits pointed out that if the first party refuses a religious divorce, the other party may remain "chained", as I explained, in a limping marriage, unable to be released until the religious bond is severed. That can lead to either lifelong loneliness or to blackmail or extortion. This unjust situation can affect either spouse since the ending of the religious bond requires the consent of both spouses. But about two-thirds of the "chained" spouses are women. The consequences of violating Jewish law and remarrying without first complying with the get requirement are much more severe for women than for men.
There are formidable obstacles to the reform of this area of the Jewish law. As Rabbi Berkovitz, Registrar of the Court of the Chief Rabbi, explained in a scholarly paper for the Law Commission of England and Wales, written in 1989 at the suggestion of Judge Israel Finestein, the prevailing orthodox view is that a husband cannot be compelled to grant his wife a get, even if she finds life with her husband impossible.
In ancient Palestine, at the head of the Jewish legal system, was the Supreme Sanhedrin, a court of 71 judges sitting in Jerusalem. The Sanhedrin had the power to interpret Jewish law and to enact ordinances in a manner binding on the entire Jewish world; it could even override the application in certain proscribed circumstances of Jewish law that was biblical in nature.
With the destruction of the Temple and of the ancient Jewish state, the Sanhedrin ceased to exist. For the past 1,500 years there has been no supreme judicial authority in Jewish life, and no body exercising legislative powers. This is a major impediment to the reform of Jewish law. In the absence of such a body, it is difficult to see how any alteration to Jewish divorce law can be made acceptable to the entire Jewish community across the world.
There have been many suggestions designed to deal with the problem of recalcitrant spouses, none of which is satisfactory in overcoming the basic difficulty that, where either party to the marriage opposes the get procedure, there is no possibility of effecting a get in disregard of such opposition. It is because the problem cannot be remedied by means of the internal mechanics of Jewish law that a solution has been sought in terms of civil legislation.
The religious and secular leaders of the Anglo-Jewish community seek the aid of Parliament and the civil divorce law to alleviate the injustice and misery resulting from the inability to reform Jewish divorce law, by empowering the courts, on the application of one of the spouses, to exercise a broad discretion to achieve justice in the circumstances of the particular case.
I turn to the contents of the Bill. It applies if, and only if, the parties to proceedings were (a) married to each other in accordance with usages of the kind mentioned in Section 26(1) of the Marriage Act 1949 and (b) were required to co-operate if the marriage is to be dissolved in accordance with those usages.
Upon the application of either party to the marriage, the court will be empowered to order that a decree of divorce will not be made absolute until a declaration has been made by both parties if they have taken such steps as are required to dissolve the marriage in accordance with those usages. Such an order can be made only if the court is satisfied that, in all the circumstances of the case, it is just and reasonable to do so. To enable the court to be able to deal with any change in circumstances, the order can be revoked at any time.
Let us suppose, for example, that a husband petitioner refuses to give a get. The wife may seek an order from the civil court preventing him from obtaining a civil divorce until he has granted a get. The court may take account of all relevant circumstances--for example, any attempt by the husband to extort money as the price of the wife's liberation. If the court's order withholding a decree absolute causes unnecessary delay and the wife changes her mind and decides that she will after all be satisfied with a simple divorce alone, she may apply to the court to revoke its order. The remedy is flexible and based on what is just and reasonable.
The fact that the Bill is supported by orthodox Jewry shows that it does not amount, in the view of orthodox Jewry, to undue coercion of a kind that would violate Jewish law. Like Section 9(3), the Bill is more flexible than the narrow discretionary powers conferred on the courts by the Matrimonial Causes Act 1973. The Government are unwilling to bring Section 9(3) of the 1996 Act into force for reasons that have nothing to do with this debate but are bound up with the complex provisions elsewhere in Part II of that Act. That is why we have introduced the present Bill.
The Government have obtained counsel's opinion from Mr Rabinder Singh, a competent expert in human rights law, as to the compatibility of this Bill, and of Section 9(3) of the 1996 Act, with the European Convention on Human Rights. Mr Singh's view is that the Bill and Section 9(3) are compatible with Articles 6, 9 and 12 of the convention, but that, on balance, they are incompatible with the non-discrimination guarantee in Article 14 of the convention.
Mr Singh was apparently not asked to consider whether the present situation could give rise to breaches of the human rights and fundamental freedoms of "chained spouses". In my view, not only are Section 9(3) of the 1996 Act and my Bill compatible with the convention rights, but it is strongly arguable
In order to give effect to these rights, the Government are fully entitled--and arguably obliged--to interfere with one spouse's right to re-marry as proposed in this Bill. Contracting states to the convention may impose proportionate restrictions on the general right to marry in order to pursue legitimate aims and to protect the rights of others. Mr Singh's Opinion acknowledges this, and he rightly observes that the concept of a democratic society in the convention is a society characterised by tolerance, pluralism and broadmindedness in which the rights and freedoms of women in religious marriages are protected by the state.
In 1994, the UN Committee on the Elimination of Discrimination Against Women in its General Recommendation No 21 on Equality in Marriage emphasised that a woman's right to choose a spouse and enter freely into marriage is central to her life and to her dignity as a human being (paragraph 16) and that states parties should resolutely discourage any notions of inequality of women and men which are affirmed by religious law or custom (paragraph 44). Section 9(3) of the 1996 Act and the present Bill are designed to enable those important human rights and freedoms to be respected.
Mr Singh's only doubt about the compatibility of this Bill with the European Convention on Human Rights is that Section 9(3) and this Bill may be discriminatory in requiring that a religious divorce is granted before a civil one is obtained for Jewish spouses but not for Muslim spouses. He argues that this may involve treating a Jewish husband less favourably than a Muslim husband, because only the former will be subject to Section 9(3) or this Bill, and that it may involve treating a Muslim wife less favourably than a Jewish wife, because a Jewish wife but not a Muslim wife will have the benefit of the civil court's discretionary powers.
I take my knowledge from a recent textbook on Muslim family law by Judge David Pearl (former President of the Immigration Appeal Tribunal) and Werner Menski (Senior Lecturer in South Asian Law at the School of Oriental and African Studies)
However, the key difference in circumstances between Jewish and Muslim spouses is, apparently, that the angrezi shariat--that is, English Muslim law--recognises that, where informal mediation via Muslim dispute settlement fora has failed, the UK Islamic Shari'a Council may grant a khula to the wife, which is an immediate dissolution of the marriage recognised in Islamic law (paragraph 3-100, p.79).
Therefore, unlike Jewish women, a Muslim woman in a "limping marriage" can obtain a valid religious divorce against the wishes of her husband, though there may still be some real abuse where it involves the wife in having to return any dower or mahr given to her on marriage.
Comparing Jews and Muslims for the purposes of the non-discrimination guarantee in the convention may, for the most part, be inappropriate where there is no comparison of like with like. The circumstances of a Jewish husband whose right to re-marry is restricted until he agrees to seek a religious divorce is not comparable with the circumstances of a Muslim husband. Ultimately, the Muslim husband may be divorced in Islamic law against his will, while the Jewish husband cannot be divorced under Jewish law against his will. Similarly, Muslim women may obtain a non-consensual divorce under Muslim law, whereas Jewish women cannot obtain a non-consensual divorce under Jewish law.
The Islamic community has sought to resolve problems of "chained" marriages by developing its own solutions and a mechanism for a non-consensual divorce, and British Muslims argue, according to the books I have read, that traditionally the sphere of family law has not been a matter for state law. The Jewish community is not able to deal with the problem without assistance from Parliament because of the biblical nature of the get requirements and the absence of any rabbinical authority to override those requirements in most circumstances. This reinforces the reasons why legislation is needed and justified with reference to religious members of the Jewish community.
However, it is important to avoid any unfair discrimination against the adherents of any religion in our multicultural, plural and democratic society. If there are similar problems in relation to other religions, the victims should have access to the courts for appropriate relief. I have not yet had the chance to read the important report of the Home Office working group, chaired by the noble Baroness, Lady Uddin, and the noble Lord, Lord Ahmed, A Choice by Right, which touches on some not irrelevant aspects of this. As Mr Singh indicates in his Opinion, the Bill could be amended to deal with any gap in protection for other
Alternatively, the Bill could be amended along the lines of Section 5A of the South African Divorce Amendment Act No. 95 of 1996. That applies to members of any religion and could readily be included in this Bill if religious groups other than the synagogue organisations so wished. However, this option has the drawback that it would require full consultation with all religious organisations, including Jewish organisations, and so would delay effective redress for the urgent problem addressed by the Bill.
I am sorry to have taken so long to explain the background but, as your Lordships will appreciate, there is a pressing social need as regards Jewish divorce to give effect to Parliament's intention in enacting Section 9(3) of the 1996 Act without further delay. The needs of other religions can readily be accommodated by amending the Bill. I commend the Bill to the House.
Lord Mishcon: My Lords, if on a Monday, Tuesday, Wednesday or Thursday a Member of your Lordships' House were to address the House and merely repeat points which have been made by his predecessors--and possibly not as well--your Lordships would normally regard it as an uncivil act. If he did so on a Friday afternoon at this time, I think it would be regarded as a criminal act. In those circumstances, and in my anxiety to avoid a conviction on those grounds, I say to the noble Lord, Lord Lester, so far as concerns his speech and his clear explanation of this Bill--Amen. Your Lordships may think that that is an appropriate comment.
I have one point to make and three names to mention, and then I shall sit down in accordance with my opening remarks. The one point is that your Lordships may think it rather strange that this House should be dealing with a matter of Jewish civil law. I remind the House that under the Marriage Act 1949 specific reference is made to marriages according to the Jewish usage. Such marriages and such contracts of marriage are validated, if I may use that phrase, by that Act. If that contract of marriage is to be terminated according to the usage of Jewish religious rights, is it not appropriate that Parliament should also have some concern with that matter? Therefore, it is not by any means irrelevant that the matter comes before your Lordships' House.
I shall, if I may, mention three names. First, the former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who is known for his deep religious convictions, was so generous in the assistance that he gave some of us when the amendment was passed at the Third Reading of the Bill to which the noble Lord, Lord Lester, referred. Secondly, reference was made by the noble Lord, Lord Lester, to Lord Meston. Lord Meston, moved the amendment. If I may express a personal view, which I believe is shared
My final reference, if I may make it, is to the former Chief Rabbi, the late Lord Jakobovits, who expressed in very eloquent terms--he was, I believe, very much respected in this House for his views on spiritual and ethical matters--his appreciation of the understanding of the government at that time and of Parliament in dealing with a matter that was of such urgent necessity to Jewish women. I do hope that the Bill will have its Second Reading and will go speedily through Parliament.
Baroness Miller of Hendon: My Lords, when, with great pride, I took my seat in your Lordships' House almost seven years ago, it was my intention that every contribution I made in what I believe to be the finest debating chamber in the world would be a positive and constructive one even when, in the normal course of politics, I would be disagreeing with noble Lords sitting in another part of the House. However, I must tell your Lordships that today is the most difficult and, for me, the saddest occasion on which I have risen to my feet to address the House.
It is with considerable regret that I have to tell your Lordships that I do not approve of the Bill, although, as the noble Lord, Lord Lester of Herne Hill, is aware, I shall most certainly not oppose it. Nor would I ask your Lordships to do so, because for all its faults it may be better than the nothing at all which is the present position. I say straightaway that I accept that the noble Lord, Lord Lester, who entered this House in the same group as I and who has an unparalleled reputation for promoting human rights, has brought forward the Bill for the best of motives.
There are several reasons for my objections to the Bill. First, I fervently believe that putting right the dreadful injustice to Jewish women perpetrated and perpetuated by Jewish ecclesiastical law is a matter for Jewish law to resolve. Unlike the noble Lord, Lord Mishcon, I believe that it is totally inappropriate that English statute law and English civil courts should be called on to try to remedy this injustice. Simply put, I do not believe the Bill should be before the House.
I say that even though I have better reason than probably most of your Lordships to know first hand the hardship suffered by an orthodox--that is to say observant--Jewish woman whose husband maliciously refuses to grant her a religious divorce after she has obtained a civil divorce from the ordinary court. My sister divorced her husband after 19 years of--to put it uncontroversially and unemotionally is difficult--a very difficult marriage. She was then only 38 years of age. She was denied a Jewish religious divorce for 20 years. She was, as a woman who adheres to the Jewish law, denied the opportunity of making a fresh start in life. My sister was not the only victim. Her children, our parents, our brother and, indeed, all our family were caught up in her seemingly never-ending sadness.
As the noble Lord, Lord Lester, explained, the problem arises in the fact that according to Jewish religious law, only the husband can initiate the divorce proceedings. That is based on Deuteronomy, Chapter 24, verse 1, quoted in part by the noble Lord. I believe that the full quotation is significant:
To do them credit, rabbis have spent considerable time trying to resolve this problem, not only comparatively recently, but over hundreds of years. However, they have indulged in a great deal of thought and debate with not only one but both hands tied behind their backs. The law is not contained only in the five Books of Moses but includes the interpretation of it contained in the Talmud, which might be described as the forerunner of our common law.
Without troubling noble Lords with too much detail that is not directly relevant, it is sufficient to say that the Talmud, in its various forms, has existed for between 1,500 and 1,800 years; in other words, it has been known since far back into the millennium before last. The interpretation of Jewish law is further reinforced by what is called halacha, which literally means "guidance" or "usage". The reason why I said that the rabbis had their hands tied behind their backs is because, over the ages and still to this day, they have insisted that halacha is immutable and, subject to one exception, no one can alter it, however much it might be agreed that it needs re-interpretation. This, in fact, is not correct.
The law has been altered by rabbinical interpretation whenever a rabbi was brave enough to do what was right. In the 10th century, Rabbi Gershom rendered a judgment prohibiting a husband from divorcing his wife arbitrarily and against her will. Polygamy was simultaneously rendered unlawful, even though it had been practised since biblical times. The one exception to which our current rabbis would admit is if a new Sanhedrin were to be assembled.
As the noble Lord, Lord Lester, reminded the House, the Sanhedrin was the highest court in Palestine and dealt with the most serious cases, including capital criminal cases. The first time such a court is mentioned is around 57 BC. It ceased to exist with the destruction of the Second Temple by the Romans under Emperor Titus in 70 AD. No new Sanhedrin can be constituted because, according to some of our present rabbis, there
The real truth is that I suspect that it would be impossible to assemble 72 rabbis (the figure may be 71) to constitute the quorum of the Sanhedrin because it would be impossible for the rabbis around the world to agree who they might be. Furthermore, if one were assembled, the chances of them reaching a consensus might be quite close to zero--especially among the many who are still unshakeably frozen in the doctrine that nothing can and nothing should change. That is one of those pieces of wry, self-deprecating Jewish humour: if you put two rabbis together you will get at least three opinions.
In Britain we have several religious courts, each called a Beth Din--House of the Law--attached to different Jewish communities. It is to be regretted that they often find it difficult to agree among themselves, sometimes on comparatively minor matters, let alone the vital problem of Orthodox Jewish women being chained to marriages that have ceased in the eyes of this country as the result of a civil divorce.
So there we are: we have religious courts administering ancient religious law, which they say cannot be altered in the interests of justice, even though the world has changed out of all recognition since the law was first interpreted.
Where else in the civilised world is it suggested that one legislature can pass laws that can never be altered--for ever and ever? But there is one matter on which they do agree--namely, that nothing can be done. I believe, as do many others who work in this area, that where there is a will, there is a way.
Recently, an entirely fictional device has been approved whereby stringing a wire around Golders Green has enabled Jewish mothers to take their children to the synagogue on the sabbath in push-chairs, which they would otherwise, according to them, be prohibited from doing. No such ingenious device is forthcoming to resolve the more important problem of freeing wives from their marriages--hence the Bill that is before the House.
Members of the Jewish faith have been given a great and special privilege to solemnise marriages on the authority of a registrar's certificate. That privilege is otherwise reserved for the Church of England or for religions whose separate premises have been specially registered.
The noble Lord, Lord Lester, mentioned similar problems suffered by the Muslim community. I regret that I have no knowledge of those, but I am confident that its religious leaders have a more vigorous and less supine attitude towards resolving them.
I should have thought that the least that would have been required in return for the privilege of solemnising religious marriages would be that those marriages should be dissolvable according to the standards of this country and not to some hopelessly outdated, unacceptable and chauvinistic concept.
Having used the word "chauvinism", perhaps I ought to mention a disgusting article which appeared in a recent edition of Tribune in which campaigners for reform of the religious law, including my sister, Judge Myrella Cohen, whose work the noble Lord, Lord Lester, praised in his speech, and another worker, Mrs June Jacobs, were attacked--my sister as a mere feminist and the other two ladies as hard-line activists.
Now I do not regard the term "feminist" as something to be ashamed of; but what I do object to is a man who is cowardly enough to hide behind a nom de plume--although we all know who he is--complaining about a campaign against a matter which is acknowledged by everyone, including all the rabbis in the world, as a gross injustice. This person begins his morning prayers, if he says them at all,
As some of your Lordships may know, my husband is a lawyer. Since I have found myself on the Opposition Front Bench without any staff, he has been press-ganged many times into being my parliamentary draftsman. He prepared an alternative to the predictably ineffective pre-nuptial agreement. It was simply a power of attorney in favour of the Chief Rabbi or some other, similar official authorising him to enter into and complete the formalities relating to a
I should mention here, as I think the noble Lord, Lord Lester, did, that a wife on being proffered a religious divorce is allowed to refuse it, although there is a way around that for the husband, which I may refer to in a few moments.
The suggestion was rejected by Dyan Berkovitz. A dyan is a judge of one of the Jewish religious courts. He expressed the opinion that a religious divorce granted by the exercise of the power of attorney would not be voluntary on the part of the husband, even though the granting of the power of attorney would have been a voluntary act. That is what I meant by saying earlier "Where there's a will, there's a way", because Dyan Berkovitz could just as easily not have adopted such a negative stance.
That he did so I found surprising, because he has undoubtedly taken a lead and spent a great deal of his time in trying to find a solution to this serious problem. However, he, like his colleagues, considers his hands tied by the unalterable halacha. He, like anybody else trying to adopt a more liberal approach, also runs the risk of being accused of virtual heresy by his more fundamentalist colleagues.
I should like briefly to mention the so-called voluntariness of the religious divorce. In the case of Brett v. Brett, decided in 1969, the Court of Appeal imposed sanctions on a recalcitrant husband until he granted a religious divorce. The rabbinical authorities briefly welcomed this as a possible solution to the problem. However, in no time at all they reversed their decision and held that a religious divorce granted under those circumstances would not be valid, as it would not be voluntary.
What hopes are there that when this Bill is enacted, as, despite its shortcomings, I very much hope it will be, some obstructive rabbi will not rule that any religious divorce granted as a result of the sanctions proposed in the Bill is not valid because it is not voluntary? Depending on his status, most other rabbis will follow suit, whatever their personal views.
I find this ironic. In Israel, which is a theocracy, the problem is resolved by the jailing of the husband until he signs. How "voluntary" is that? In one notorious case an obstinate husband endured 35 years in prison rather than give his wife a get--a religious divorce. He died in prison, and to add insult to injury his widow was told by the religious authorities that she should observe the seven days of ritual mourning for him. Another Israeli sanction is to confiscate the husband's driving licence. How voluntary is that?
In the United States of America physical violence, in the form of the use of baseball bats, has been applied to persuade recalcitrant husbands to voluntarily grant the divorce--voluntarily after they have been bashed around! So has moral pressure, such as boycotts and social ostracism and denial of a right to read from the sacred scrolls in the synagogue.
My sister, who, as I have told your Lordships, endured 20 years of being refused a religious divorce by her former husband, is the co-founder of a pressure group that has been campaigning on behalf of these women. It has had some success in some cases, including one where the family business of a recalcitrant husband was picketed until he gave in without his receiving the huge sum that he had demanded as the price of the religious divorce.
That is a serious part of the problem. A husband having virtually complete control is in a position to demand cash, modification of maintenance, property rights and access rights in return for a religious divorce. The Jewish Chronicle of 2nd June reported several cases of wives being asked for between £15,000 and £30,000 to grant such a divorce, and I know of larger demands. An unnamed orthodox rabbi was stated in that report to have said that the get was being abused more than ever before.
I said a few moments ago that if it is the wife who refuses to accept a religious divorce there is a way out for the husband. If he can persuade 100 rabbis to sign an order, he is freed of his religious marriage.
In fact, there are even more horrendous sanctions for a wife. The noble Lord, Lord Lester, mentioned those, too. With or without a religious divorce, a husband may, inside or outside a new marriage, have children by another woman, and they may be accepted as full members of the Jewish community. But if the wife should form a liaison or relationship with another man and have children by him, those children are, as the noble Lord said, called mamzers. They and their children and their children's children for 10 generations are debarred from entering the Jewish congregation. That may be the law, but it is not justice.
By this Bill the promoters and the Jewish orthodox authorities ask Parliament to pull their irons out of the fire, which they claim they cannot do themselves because of adherence to the views of their predecessors almost 2000 years ago. The noble Lord, Lord Lester, told your Lordships that this Bill simply repeated Section 9(3) of the Family Law Act 1996 which has not yet been brought into effect. He claimed that this measure had support from across the Jewish community and mentioned all the different sections involved. It is right to say--I am sure the noble Lord agrees--that there are others who do not agree with it but have kept quiet. They think that if there is one way to help one woman they will just keep quiet, even if they do not believe in it. It is also objected to by others for the reason that it will help in only one highly specialised set of conditions; namely, where a spouse who wants a civil divorce also refuses to co-operate over a religious one.
I, and many others who agree with me, do not oppose this Bill, because for the sake of the rare instance where a spouse will be helped we cannot, and will not, deny her this escape. I explained this both to the former Lord Chancellor and to the late Chief Rabbi Lord Jakobovits when the Family Law Act 1996 was before Parliament. They were kind enough to
I do not believe that it is morally right for Parliament to be asked to rescue the ecclesiastical authorities in this way. Equally, the so-called solution is hardly a solution at all, as I shall explain. The authorities cannot be allowed to say that they have done all they can and wash their hands of it. The Bill suffers from one, or perhaps two, serious defects. The words "either party to the marriage" in new Section 10A(2) means that even the person who causes the problem by refusing to grant a religious divorce, if it is the husband, or by refusing to accept it, if it is the wife, can prevent the other spouse from getting a decree absolute, or at least severely delay it. The noble Lord, Lord Lester, told me that he did not believe that that was possible, but it can be delayed. Therefore, the spouse who wants to re-marry, even in a register office, can still be prevented from doing so, while a vindictive partner deliberately delays matters and conducts a series of appeals through the courts, and the Court of Human Rights, or holds the other party to ransom over money, property or custody. That must be looked at in Committee, and following today I shall discuss it constructively with the noble Lord, Lord Lester.
I shall table an amendment to the Bill which provides something in addition to, not instead of, what is on offer. Perhaps that will enable spouses to get the justice for which they have been waiting, and have been denied, for 2,000 years or more by the law. I feel very strongly about this because I know what it would have meant to my sister. Not only was she chained in the religious sense, but if she had been chained for one day, one week or one month longer while all of this went through it would have placed her in a most terrible position. For the moment, and despite my reservations and misgivings, like the noble Lord, Lord Mishcon, I ask noble Lords to give the Bill a Second Reading so that we can at least take one small step in the right direction.
Lord Winston: My Lords, we owe a great debt to the noble Lord, Lord Lester. I am grateful that he raises the matter in this short Bill which is of great significance. I do not intend to speak for 21 minutes, not least because the Jewish Sabbath approaches and I want to be home in time for it.
I feel as strongly about this matter as does the noble Baroness, Lady Miller. My mother, grandmother and great-grandmother have all worked very hard for a very long time on behalf of chained women and have made many representations on their behalf in the Jewish community. There is no doubt that all three
I was sad to hear the speech of the noble Baroness, Lady Miller. I think she has forgotten something very important. I understand that she is deeply disturbed about this issue. In many ways her speech is a wonderful support for the Bill. Her remarks in opposition indicate exactly why the Bill is needed. I need not go into that. However, I think that her speech--I have never said this before about any speech in this House--was a little irrational. She has forgotten a key aspect: the religious values to which many of us subscribe, whether we be Christians, Muslims or Jews. Jewish marriage is central to the Jewish religion. It has been a model for values in many ways to many people, as has Jewish family life. People who refuse to give a religious divorce, a get, break that cardinal principle in Jewish marriage: the protection of the family.
If such an injustice is done, it does not matter whether it is British, Australian, American or Israeli law, it is correct for the law of that country to seek to put that injustice right. That is what this Bill is about. It is foolish to suggest that that should not be the case. That precedent is familiar to noble Lords. Indeed, it is not the first time that British courts have interfered with Jewish divorce. Noble Lords will be aware of the case of Goldsmidt v. Bromer in the 1790s in which a British judge intervened. Under Jewish law it is possible to declare yourself married provided that you declare it in front of two witnesses who are practising Jews. The British judge in a British court found that at least one of the witnesses was probably not a practising Jew and he allowed that divorce.
Lord Jacobs: My Lords, this is in some ways a sad debate. We have been exposed to the nature of a real problem which affects many Jewish women who seek a divorce. I am grateful to my noble friend Lord Lester for explaining the Bill in an accurate and careful way. I am equally grateful to the noble Baroness, Lady Miller. She agrees that the problem has to be resolved. She has a close, personal and (one might say) vested interest in why it has to be resolved, but comes at the situation from a different point of view. If 500 Rabbis had been sitting in the Chamber today, she would probably have convinced a significant number that, yet again, something more has to be done. We have to try to advance the situation to help these people.
I deal briefly with the main objections, not necessarily raised in this House but also outside. The first objection is that many people in the Jewish community feel that it is wrong to expose a problem
Secondly, it has been suggested that the Bill has been introduced to discredit the rabbinical authorities. I believe that to be an extreme and ludicrous point of view. Last night, I happened by accident to be sitting next to the Chief Rabbi and took the opportunity to discuss the matter with him. He assured me that he strenuously supports the Bill. He has been doing everything possible--I agree with the noble Baroness, Lady Miller, not entirely successfully--to try to improve the situation.
The Chief Rabbi has five rabbinical courts around the country arranging prenuptial agreements--and about 70 per cent of marriages have such agreements. However, even if all those prenuptial agreements enable a get to be given in the event of a divorce and they are valid, one can be sure that the 30 per cent of marriages which do not have such agreements will involve the most difficult of partners.
I want to deal with an issue raised by the noble Baroness, Lady Miller; that is, one party refusing the get because he or she wants to prevent the decree absolute in a civil divorce being granted. One party, notwithstanding the fact that he or she will not receive the get, can ask the judge to use his discretion to allow a civil divorce to go through. Therefore, there is not a total restriction.
Finally, the big criticism of the Bill is that it does not solve all the problems. It has been suggested that perhaps it will solve the problems of a few women--it affects mostly women--who suffer. However, the fact that it cannot solve all the problems is no reason for us not to advance the situation. We must take into account the effect of exposure of the problem in a public court. We have seen public pressure being brought on husbands who have refused to give a get. In one case, a group of people paraded up and down outside the retail shop of the husband. That action had a sanction on the business being conducted and it was not long before the husband agreed to give a get.
If in court a judge ruled that someone should give a get otherwise there would be a failure of public duty, and if he accompanied that ruling with strong words spoken in public, the case might be reported in various newspapers. Such public exposure would have an effect. The matter would not be kept quiet and dealt with behind closed doors. I believe that we shall be surprised by how much such exposure will help the situation.
I cannot say whether the rabbinical authorities will be encouraged to do more, but they have been trying hard to resolve the problem not only in this country but all over the world. One cannot say that the rabbinical authorities in Britain have not done enough unless one agrees that such authorities have not done enough in every other country. I hope that exposure of
Lord Grabiner: My Lords, the Bill is commendably concise and to the point. That makes a welcome change from much of the recent and current business of the House where we have been looking at lengthy and complex draft legislation. I know that my noble friend Lord McIntosh will agree with at least that element of what I have just said.
However, the succinctness of the document must not be allowed to conceal its importance. The Bill is designed to relieve people, especially women, of a great deal of personal distress and hardship. We had a very vivid example displayed to us in the course of this debate by the noble Baroness, Lady Miller of Hendon. The Bill is designed to ensure, so far as possible, that that kind of distress is done away with. That is why the Bill is of such critical importance.
If the Bill became law, a judge exercising matrimonial jurisdiction would be given a discretion as to whether or not to make a divorce decree absolute. In an appropriate case he would be able to exercise that discretion so that one spouse provided a get to the other. If the get were duly given, the decree absolute would be effective and the marriage would come to an end, both as a matter of English civil law and Jewish religious law.
Under the present system--it is a scandalous system--the husband's reason for refusing the get might be purely malicious or spiteful, driven by jealousy or some other, perhaps understandable but nevertheless objectively unreasonable, motive. Unfortunately, there are cases where the husband simply uses his ability to withhold the get as a pure blackmailing tactic; for example, in the context of a financial settlement. Perhaps I should make it plain--there may be some misunderstanding on this part of the debate--that what I have described cuts both ways for men and women. I have used the male example because that is the more typical of the type of case that arises in practice.
The notion that generations of wholly innocent people should not be free to practise their orthodoxy, if that is the way they wish to live their lives, is, I believe, quite unacceptable. If that is the result, it can be prevented, and we are in the position to ensure that it will be prevented and avoided. The noble Baroness, Lady Miller of Hendon, talked about 10 generations. My understanding is that the principle continues forever and is not confined to a period of 10 generations.
The position so far as concerns Jewish law is that the husband cannot be forced to give a get. If it is forced out of him, it ceases to have any effect. On the other hand, it is permissible for the husband to be encouraged to give the get. There is an important distinction in Jewish law between being forced and being encouraged to do something. The neat solution provided by the Bill would satisfy that requirement. If
That is not my view. I am not in a position to express a view about Jewish law. I am a plain, ordinary English lawyer. However, I should tell the House that I have discussed the Bill with leading rabbinical figures in the orthodox Ashkenazi and Sephardi communities. I have discussed it with the Chief Rabbi, Dr Jonathan Sacks, with Dayan Ehrentreu, the presiding judge of the London Beth Din of the orthodox community in London, and also with Dayan Toledano, the principal judge of the Sephardi community in this country. For the reasons that I have explained, they each give 100 per cent support to the Bill. I am also able to say from personal knowledge that the late Lord Jakobovits, who was the previous Chief Rabbi, was of the same view.
As the noble Lord, Lord Lester, said, it has been thought necessary in other jurisdictions to introduce appropriate civil law amendments to resolve this problem. Legislation has been in operation for several years in New York state, South Africa and Canada.
This debate highlights the plight of women. It would be excellent if Jewish law provided a simple and fair solution that would avoid the need for the Bill. Unfortunately, as we all know, there is no comparable legislative process in orthodox Judaism. There is no Parliament. The noble Baroness, Lady Miller of Hendon, aims her fire at the current state of Jewish law. She blames the rabbis, saying that they have failed to grasp the nettle. I do not want to get into that esoteric debate. I am not qualified to do so and no doubt it is a complex debate going back over many centuries.
If I may respectfully say so, the weakness of the noble Baroness's argument is that it misses the point. We should be looking to the plight of the people--especially women and their children--who are trapped. We can and should resolve the problem in the same way as it has been resolved in other jurisdictions, by amendments to the civil law.
In conclusion, I thank the noble Lord, Lord Lester, for having taken the time and trouble to bring this important matter before the House. The sole aim of the Bill is to relieve the distress that is suffered by people who have been ensnared by the unsatisfactory state of the law.
My noble friend Lord Ahmed was due to speak in the debate, but he has withdrawn. However, he asked me to say that if the Bill goes further, the Muslim community should be consulted to govern any interest that it may have. We live in a pluralist society and are much the better for it. The Muslim community outnumbers the Jewish community in this country by approximately five to one. If there is anything that can be done for the Muslim community along the lines of
Lord Cope of Berkeley: My Lords, I am a member of the Church of England. I originally hesitated to intervene in what is clearly a matter of great anguish for members of the Jewish community, but as they have involved the rest of us by bringing the Bill before us and seeking to involve our civil judges, I hope that a brief comment from an outsider is acceptable. No one who has heard the debate or who knows about the issue can fail to have sympathy with the women and others involved. I am sure that we all feel that even more strongly following the speech of my noble friend Lady Miller.
We can also have sympathy with those rabbis who are clearly exercised about the situation, but have so far been unable to find a way out. The Bill would not be with us if the rabbis could deal with the matter satisfactorily themselves, although that is what I believe that everyone who has spoken would prefer. Whether they could do so, as my noble friend believes, or not, is not for me to judge and I certainly cannot do so.
Essentially, the premise behind the Bill is that civil judges may, with the aid of a threat of a court order under the Bill, be able to bring greater pressure to bear on reluctant men, or women, than the religious courts or the rabbis have found themselves able to do.
Frankly, I do not envy the civil judges who would be faced with those cases. The Bill would give them another onerous task. To refuse a civil divorce on these grounds alone will not be easy. However, it is common ground also that with even the wisest judge and the best endeavours of the judiciary, this Bill will help only some of the women concerned. So the problem will not be wholly solved.
It is for the Jewish community to make the judgment about whether the Bill will help. This debate has exposed to the rest of us both the hardships and the severe problems involved. The rest of us should be, and are, willing to try to help.
Lord McIntosh of Haringey: My Lords, in view of what the noble Lord, Lord Cope, has just said, it is necessary for me also to declare my position. Some 35 years ago, when I first met my noble friend Lord Gavron, he asked me whether I was Jewish and I said, "In principle, yes". In case that feeble joke should be ambiguous, I should add that my mother, in the early years of the last century, was what is called a shabbos goy in the East End of London. She would go round lighting fires or turning on lights for Orthodox Jews which she was able to do as a goy. I have no religious faith. So I start with a clean sheet in this regard.
Leading representatives of the Jewish community, including members of the Board of Deputies of British Jews, have put a very compelling case to the Government on the need for a provision that will remedy the position in which some Jewish women find themselves when seeking a religious divorce.
I do not want to say anything more on the merits of that issue than I have done, except to say a few words to the noble Baroness, Lady Miller, whose speech I found very moving. She said that Jewish law and Jewish law alone should deal with Jewish marriage. This Bill does not seek to change Jewish marriage law. It seeks to deal with only one effect on English civil law, which arises from Jewish law. It does nothing to seek to change Jewish law.
As the noble Lord, Lord Lester, has stated, the provisions of this Bill already exist in Sections 9(3) and (4) of Part II of the Family Law Act 1996. On 17th June 1999, my noble and learned friend the Lord Chancellor announced that he would not be implementing Part II of the Family Law Act during the course of 2000 because of the disappointing interim results of the pilot studies on information meetings, which are an integral element of Part II. My noble and learned friend the Lord Chancellor is currently awaiting receipt of the final research report on the information meeting pilots before reaching a decision.
Legal advice has indicated, however, that it is not possible for the Government to implement Sections 9(3) and (4) independently because the provisions are procedurally linked with the other provisions of Part II. Should my noble and learned friend the Lord Chancellor decide to proceed with implementation, a lead-in time of at least two years would be needed to set up the nationwide provision of information meetings before the legislation could come into force.
While the Government support the principle of the Bill, counsel's opinion, to which the noble Lord, Lord Lester, referred, indicates that the Bill is not compatible with Article 14 of the European Convention on Human Rights and will require amendment. I am grateful to the noble Lord, Lord Lester, for so eloquently describing that position, his views on it, and the options available. In effect, these are, either to amend the Bill to apply only to the Jewish faith, but give the Lord Chancellor the power to add other groups as and when appropriate, which is the option put forward by the Government, or to broaden the scope of the Bill to include all faiths, as we have been told has happened in South Africa.
We have explored these options with the noble Lord, Lord Lester, and I am pleased that he has indicated that, with the Government's assistance, he will give consideration to a suitable amendment, as outlined above, for introduction in Committee which will ensure that the Bill is rendered compatible with the convention.
The Government consider that the Jewish community has made a convincing case for the need for a remedy for Jewish women seeking a religious divorce, as reflected in this Bill. The Government support the Bill, subject to amendment, which they hope will aid Jewish women who are disadvantaged in this way.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to all noble Lords who have participated in the debate. At this hour the House will not wish me to summarise all the speeches and reply to all the points. Without singling out anyone in particular, I am glad to have taken part in a debate in which the noble Lord, Lord Mishcon, the doyen in this area, has given his blessing to the Bill. With great personal pain and some bitterness, the noble Baroness, Lady Miller of Hendon, has eloquently expressed her feelings and reactions, which have, painfully at times, enriched the debate.
I shall deal briefly with one or two points raised by the noble Baroness. She suggested that the rabbis in this country have been, in her word, "supine". I do not believe that that is fair. The Jewish community, through the initiative of the Chief Rabbi, has instituted an unprecedented series of measures to alleviate the problems of individuals whose spouses refuse to grant or receive a Jewish bill of divorce. They include what has been referred to: the prenuptial agreement, communal sanctions against recalcitrant spouses and a task force whose remit includes premarital counselling for couples, relationship education in schools and the training of mediators to resolve difficult cases. The Chief Rabbi has intervened personally to resolve some of the most difficult cases.
The noble Baroness also suggested that someone could abuse this Bill by seeking a civil divorce without any intention of granting a religious divorce. As I sought to explain outside the Chamber to the noble Baroness, that is a misunderstanding. It would be a clear abuse. A judge, with his wide discretion, could not possibly be satisfied that in all the circumstances of the case it was just and reasonable to allow a recalcitrant husband to hold up a civil divorce when he had no intention of granting the get, and when his only motive was to make trouble for the other spouse. I believe that one can trust the Family Division judges.
One other point made by the noble Baroness was, in effect, that the Jewish community should pull itself together and seek unanimity. The community has always valued dissent. The Harvard political philosopher, Robert Nozick, said that even the coming of the Messiah will not end all disagreements and that when the Messiah comes he will be met by a delegation of Jews and Christians who will ask him, "Messiah, is this your first coming or your second?", and Robert Nozick would advise him not to answer the question.
None the less, the proposal I had the privilege of introducing is one that has the support of all sections of the community, with minor exceptions--orthodox and non-orthodox alike. As all noble Lords pointed out, including the noble Baroness, the Bill will grant relief to women at present unable to remarry, and that is a cause which speaks as powerfully to the noble Baroness as it does to me and the overwhelming majority of the Jewish community.
Last of course, and most important, was the speech made by the Minister who, like me, is probably a shabbos goy in this respect; that is, we both find ourselves in the interesting position of being lamplighters on behalf of an orthodox community when we are not ourselves believing members of religion. I may have misunderstood, and it may be that his mother or grandmother were in that position.
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