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The Lord Chancellor: I am particularly grateful for the support that the noble Viscount has just given. He gave us the great benefit of his expertise as a judge in the detailed consideration of the amendments that were made in the course of our consideration of the procedures that were required in this connection.
The Bill in its previous form was based largely on advice from the Law Commission, but quite substantial changes were made from that. The Bill as proposed by the Law Commission received the support of the Home Affairs Select Committee in another place following a number of hearings. That committee asked that it be introduced into Parliament as quickly as possible. I was not able to do it as quickly as that committee wished. I thought that I had not done too badly. It just shows that one cannot be certain that one has been successful until Royal Assent.
The Committee will know that towards the end of the proceedings in another place on that Bill representations were made to me on the lines described by my noble and learned friend Lord Simon of Glaisdale; namely, that the person reading the Bill might be apt to think that the status of marriage and the status of cohabitation were being too closely assimilated. Of course, both the previous Bill and the present one distinguish between these two. But apart altogether from the changes that I have made, there are very substantial distinctions. In particular, if one party is married to another, those parties will have the rights of occupation by virtue of
It is also important to look at the Bill as previously drafted. To use the references in the present Bill, Clause 31(6)(d) requires the court, in considering what to do in relation to orders of this kind, to consider the nature of the parties' relationship. The clause that I have put in in response to representations made to me, namely Clause 36, simply recognises and emphasises the particular nature of the parties' relationship when they are married. I think that that matter is already implied in paragraph (d) of Clause 31(6). The changes that I had made are intended to make clear, and to get as much consensus on the terms of the Bill as possible, that there are distinctions between those who are married and their rights and those who are not.
I share the regret expressed by the noble Earl, Lord Russell, that my noble and learned friend Lord Brightman is not able to be here. He sat very patiently through earlier proceedings in this Committee in the hope that he would be present when this stage was reached. Unfortunately, the detail in which your Lordships considered the earlier provisions meant that we overtook the arrangements for his holiday before we reached this stage in the Bill. As a result of our earlier detailed consideration, we are therefore without the help of his presence this evening. I am sure we all hope that he will enjoy his well-earned holiday, among other things because of the distinguished way in which he chaired the committee on the previous version of this Bill. Similarly, I much regret that the noble Lord, Lord Habgood, is, by virtue of his health, unable to be with us tonight. I am sure we all hope that he will soon be fully restored to health and will be able to join us at later stages of the Bill.
The amendments to which the noble Earl, Lord Russell, has spoken affect provisions that I have put in to deal with representations that have been made to me. One's understanding of the parliamentary process is that, while one has one's own views, it is wise to do what one can to accommodate the views of others, in so far as that is consistent with the principles for which one is looking, in order to attain the maximum consensus on the finished product. So far as I am concerned that is what I sought to do in relation to this matter. Therefore, I have no difficulty in accepting that I have moved forward, as it were--perhaps not very far but a little distance--from the position that I personally had reached at the end of our proceedings on the previous Bill.
I do not believe--I may be wrong--that the amendments introduced by the noble Earl, Lord Russell, would tie in or be supported by a good number of the observations made by the noble Lord, Lord Clifford of Chudleigh. I do not feel that these amendments are related to a substantial part of the contribution that he made. I shall direct myself, at least for the moment, to the amendments which were introduced.
The first amendment, Amendment No. 184, is a restriction in the case of cohabitants who have no entitlement to occupy the property to the overall length of time that they can receive the benefit of an occupation order. There are two distinctions there. It concerns not only a cohabitant but a cohabitant who has no other entitlement to occupy the property. A cohabitant who has an entitlement to occupy the property is not affected by this measure. So it concerns a cohabitant who has no entitlement to occupy the property. I have inserted a limit to the overall length of time. The limit in the Bill is six months, renewable only once. The amendment would allow indefinite renewals at the discretion of the court, which is the position for non-entitled spouses. I believe that an occupation order in favour of a person who is not entitled to occupy the property should essentially be to provide short-term protection for the victim while that person seeks alternative accommodation.
I am sure that the noble Lord, Lord Meston, will be able to confirm or correct me, but my understanding of the matter is that the practice is to make those orders on the basis of a three-month period. They are intended as short-term measures to deal with an emergency. Looking at the practice in the light of the concerns expressed, I felt that it would be sufficient to provide a year in order to give the short-term protection for the victim while that victim seeks alternative accommodation to which these provisions are directed.
It is important to recognise that during that time a person who is entitled to occupy the property may be prevented from doing so. So one has to think about the other person who has a right by virtue of something other than these rights; in other words, something in the nature of a contractual or property right in the property. That person may be prevented during that time from occupying the property. In the case of marriage, which has involved the commitment of marriage, I believe that there may be instances in which the court feels that it is just to make a longer order in favour of the non-entitled spouse. But those cases must be left to the discretion of the court.
The second change that I have made in these clauses was to the operation of the balance of harm test. There was specific opposition to the suggestion that the court should be under a duty to grant an occupation order with a restriction or exclusion provision in favour of an unentitled cohabitant. In placing the court under a duty to ask itself the question set out in Clauses 31 and 33 of the Bill, I believe that we have ensured that the question of harm to the parties and to relevant children will be fully considered by the court. However, I have accepted that in this particular situation it would be wrong to fetter the court's discretion to act in the way in which it sees fit having regard to all the circumstances of the case. Therefore, we simply give the court in this situation a discretion to act in the way that it sees fit in the light of all the circumstances.
Finally, notice has been given of the wish that Clause 36 should not stand part of the Bill. The noble Earl dealt with that matter and it might be as well for me to deal with it now. That clause instructs the court, when making an occupation order in favour of the
As I have already outlined, I believe that cohabitation and marriage are different--as my noble and learned friend Lord Simon of Glaisdale pointed out--and it is right that the court should consider that when making orders. After all, all I am doing in this clause is to make express what in any event is required because, in the Bill that was approved, the nature of the relationship is something that the court has to consider. I simply point out, in order to make it clear to those who felt that it was not so clear as it might be, that that is the situation and the court has to have regard to that.
However, the specific effect in each individual case is something which I feel is best left to the discretion of the court as each case comes before it. There is no suggestion of the precise consequence of examining this matter that would be involved for the court. All that it has to do is take that into account. What would be the precise effect of taking it into account in any particular case is a matter on which the court itself will make up its mind.
I believe that it is important that we should do our best to secure a Bill which is as acceptable as we can make it to everyone who has taken a sufficient interest in it, subject to the principles that I seek to achieve. Therefore, I hope that the Committee, though I quite understand the concerns expressed about them, may feel, in the interests of securing a Bill which will have so far as I can judge almost universal acceptance, that these changes may be allowed to stay in the Bill.
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