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The noble Lord, Lord Henley, made a point about the law. Under Clause 8,

“The court may make a financial settlement order if ... having regard to all the circumstances, the court considers that it is just and equitable to make an order”.

Having been a judge, I declare my interest. If we are talking about a woman having a series of one-night stands, with the toothbrush moving from one place to another, she would not receive any money. That is the short answer to the point of the toothbrush. In addition, judges are perfectly accustomed to dealing with commencement dates and final dates of relationships; they have had to do it for years and years under the Matrimonial Causes Act 1973. I have had to work out when people started to live together and in particular, because of marriage, when they parted. The date of parting was often extremely important in assessing whether they fulfilled the requirements of having been separated for a sufficient number of years.

It is a judge’s job to evaluate the evidence and come to the conclusion about whether either of them was telling the truth. In many cases between couples who have been living together, no one is telling the truth; as a result, the court comes to a practical conclusion. I see no difficulty; I am slightly surprised that the noble Lord, who has some experience of legal matters, should believe that this was a difficult matter for a judge at any level to work out when they started together and when they finished. They are all practical facts that can be found by the judge.

Lord Pannick: I declare another interest. I was a pupil of my noble friend Lady Deech at Oxford. I always listened carefully to what she taught me about the facts of life as well as the content of the law. One of the legal principles she taught me is that the courts will interpret legislation to deny retrospection so far as fairness and human rights principles require it to do so. That is sufficient protection in addition to the points with which I agree, made by my noble and learned friend Lady Butler-Sloss.

Lord Lester of Herne Hill: I shall deal with a number of points. First, the noble Lord, Lord Henley, asked how the court would assess a continuous period of five years. The answer is that the court is perfectly

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capable of dealing with it as a question of fact. The evidence would be put forward in the ordinary way, as it is whenever a continuous period is required to be determined. I see no difficulty about that and do not understand why there should be.

Secondly, I want to make a point that has not so far been made. Couples who live together for five years before the Bill comes into force but did so without wishing to accrue rights and responsibilities in respect of each other will, under the Bill, be able to opt out during the lead-in period. In that way, the Bill avoids imposing obligations on couples who do not wish to be bound by the Bill’s provisions, but it would cover those who do not so object and who deserve protection. There was very strong support in the consultation on the Bill to cover existing couples, and so far as retrospection is concerned, it is commonplace in dealing with remedial legislation—such as equal pay legislation, to take an obvious example—to give the benefit “retrospectively”, if one wants to use the word, in a period before a Bill comes into force to someone who is the victim of discrimination in some context.

It is absolutely clear that in the criminal law no retrospective penalty should be imposed because, as the noble Baroness, Lady Deech, has said, it is part of the rule of law and the principle of legal certainty. There is no problem about that. We are dealing here with remedial legislation with a full capacity to opt out. Therefore, my own hope and belief would be that this is fully compatible with human rights. Indeed, it actually promotes the rights of a willing cohabiting couple who want their accrued rights and responsibilities to be taken into account under the Bill. As I say, there was strong support for this.

However, I agree with the noble Baroness in her concern about legal aid in family proceedings, including public law family proceedings. Of course the costs of lawyers and litigation arise in the family area particularly when dealing with the ghastly complexities of, for example, trust law and matters of that kind. This Bill does not give rise to complicated legal issues of the kind seen in the principles of equity and trust law under the bad law that exists at the moment—bad law in the sense that it is unusable for working-class couples without the ability to pay for expensive lawyers. Therefore, I join with those who are opposed to the amendment.

Baroness Deech: A couple who found themselves before the noble and learned Baroness, Lady Butler-Sloss, would be fortunate, and her experience is valuable. But I must remind the Committee that if this were to become a retrospective law, most of those couples would never find themselves in a court. Rather, it

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would be trips to the solicitors after conversations along the lines of, “I lived with you 10 years ago and I left without a penny” or “I lived with you five years ago”. All that will be going on and form 99 per cent of the cases. Only very rarely would such a case make it into court, but retrospection will reopen the bitterness of old relationships. That is the danger, not what happens in court, where I have every faith in what the judges will do. Threats will be made and expenses incurred that will not be seen in court because of retrospection. There are also problems with an opt out, although this may not be the time to go into them.

I must appeal to the important principle that something as deeply profound in its effect as this law should not be retrospective. There needs to be publicity. I should like to test the opinion of the Committee because I believe it to be a very important principle.

6.45 pm

Division on Amendment 3

Contents 11; Not-Contents 24.

Amendment 3 disagreed.

Division No. 1


Baker of Dorking, L.
Chalker of Wallasey, B.
Deech, B. [Teller]
Gardner of Parkes, B.
Henley, L. [Teller]
Howe, E.
Kirkham, L.
Marlesford, L.
Norton of Louth, L.
Seccombe, B.
Wilcox, B.


Addington, L.
Barker, B.
Butler-Sloss, B. [Teller]
D'Souza, B.
Dubs, L.
Flather, B.
Goudie, B.
Hamwee, B.
Howells of St. Davids, B.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
McIntosh of Hudnall, B.
Mallalieu, B.
Pannick, L.
Parekh, L.
Puttnam, L.
Rodgers of Quarry Bank, L.
Thomas of Walliswood, B. [Teller]
Thomas of Winchester, B.
Warnock, B.
Warwick of Undercliffe, B.
Wilkins, B.

House resumed.

House adjourned at 6.56 pm.

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