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Lord Meston: While I agree with everything just said by the noble Lord, Lord Irvine, about the benefit of the proposed amendments, I would question his description of the Jellicoe procedure as providing a fast track. The perception of those of us who served on the Committee on the previous Bill must be that it was a rather slower track than might have been afforded by the normal procedures of this Chamber. It enabled the predecessor to Part III of the Bill to have detailed consideration, the Bill itself being the product of a Law Commission report which, in turn, was the result of detailed consultation. The impression that one gained was that the Jellicoe procedure in this Bill, as with previous Bills, was in fact to enable the fast track to operate not in this Chamber but in another place.
The Lord Chancellor: Perhaps I may begin with the notion of a "fast track". It is apt to be misleading, especially to those who have not engaged in the procedure for themselves. As the noble Lord, Lord Meston, said, far from being a fast track, it is a track on which a much more detailed examination of the
As regards the other place, my understanding--and I speak subject to correction by those who know more about another place than I do from personal experience, as I never had the privilege of such experience--is that the procedure was by a Second Reading Committee. The amount of discussion that one can have there depends on the nature of the subject matter. Moreover, so far as concerns the Standing Committee procedure, that also permitted the discussion of a number of matters. The ultimate procedures were the same. It is a question of whether matters are dealt with on the Floor of the House on Second Reading or otherwise; but it is not necessarily the case that one procedure produces a result more quickly than the other. Indeed, the Bill that we considered last Session failed ultimately to reach the statute book. Therefore it would perhaps be inadequate to describe it as a fast track procedure to the statute book.
I believe that there are some problems as regards the amendments as currently drafted. For example, the proposed subsection outlined in Amendment No. 184B refers to subsection (4) and not subsection (5) of the clause. That means that it would apply only where the applicant was not in occupation. I do not think that that can be the intention. I shall speak about the principle of these matters. First of all, the changes that I made apply only to non-entitled cohabitants; they do not apply to non-entitled spouses, for the obvious reason that the situation is different.
I should make it plain that, under this Bill as now drafted, the court must, before deciding whether to make an exclusion or restriction provision, consider the balance of harm that will be caused to the parties and to any relevant children. It is only in relation to that matter that this point arises. I believe that the intention is to replace these questions with a balance of harm test similar to the one in Clause 30, which places the court under a duty to make such a provision if it is satisfied that the significant harm to the applicant or relevant child if the order is not made will be as great or greater than the significant harm to the respondent or relevant child if the order is made. I should point out that I believe the amendment has, as I said, a question in it as regards whether it applies only if the cohabitant was not in occupation. That is something that the noble Lord may wish to consider.
I believe that, in placing on the court a duty to ask itself the question set out in Clause 31 of the Bill, we have ensured that the question of harm to the parties and to relevant children will be fully considered by the court. The change I have made is to accept that it would be wrong in the particular circumstances of a non-entitled cohabitant, against a person who has rights in the house, to fetter the court's discretion to act in the way it sees fit having had regard to all the circumstances of the case. I am not saying that that would always result in precisely the same result as if the court had a duty to do that--an obligation on a court would be different. However, I am saying that, in the special circumstances to which these provisions apply, it is right that the court
Amendment No. 184C--the last one to which the noble Lord spoke--seeks to change the period for which an occupation order can be made in favour of a non-entitled cohabitant or ex-cohabitant under Clause 31. Clause 31 as currently drafted provides that an occupation order can be made for a maximum period of six months and that this period can be renewed once. As I have already discussed, this contrasts with a situation for an ex-spouse, where the order may be renewed for an indefinite number of times at the discretion of the court. Instead of treating non-entitled cohabitants in the same way as non-entitled ex-spouses, they are treated in the same way as applicants who have a right to occupy the property by virtue of a beneficial estate or interest, or by virtue of matrimonial home rights. I believe--this was the situation under the Family Homes and Domestic Violence Bill--that an occupation order for an entitled occupant can serve a different purpose than for a non-entitled occupant. With the former it might be the case that the occupation of the home requires regulation in the longer term. Therefore I believe that the length of orders is best left to the discretion of the court.
In the case of the second group, the primary purpose--I think the authorities demonstrate this--is to provide the applicant with a short-term protection and accommodation while suitable alternative accommodation is sought. That is on the basis that the applicant is without any other rights in the home and that the other party is the person who has the rights. It must be remembered that it is a serious step to remove someone who would otherwise be entitled to occupy the home for the benefit of someone who would not be so entitled. I therefore think it appropriate that such an order should be finite and subject to review in the way this clause presently proposes. I think it is right that as a Bill goes through Parliament representations are considered, and in so far as those representations may make improvements on the balance and presentation of the Bill, they should be accepted. It is on this basis that I invite the Committee to go along with the Bill as it is now drafted.
Lord Irvine of Lairg: I am bound to say that the noble and learned Lord's observations about the fast track procedure were, I respectfully suggest, of a debating nature and not substantial. In using the expression "fast track" I was not seeking to diminish the quality of the Jellicoe procedures; far from it. The Jellicoe procedures involve the taking of expert evidence and the consideration of it, and can be regarded, therefore, in many senses as superior to the procedures which in the ordinary way of debate we follow on the Floor of the House.
Secondly, the procedure is appropriate for legislation which is free of the party political disputation that attends Bills taken on the Floor. Therefore I did not use "fast track" in the sense of any inferior legislative procedure. I used it in the sense of a beneficial and different procedure by which urgent, important legislation could be got through for which otherwise time would not be found.
The Lord Chancellor: I entirely accept what the noble Lord has just said. However, not everyone is as well informed about our procedures as the noble Lord. I think it is important that it is understood that although between us we speak of it as a fast track, it is in fact a different track from the normal but a track which permits very detailed consideration of these matters, as the noble Lord said. I believe I am right in saying that the phrase was used earlier in our debates (although not by the noble Lord) in a way which at least gave me the impression that it was considered as some speedy procedure under which full consideration was not available.
Lord Irvine of Lairg: I am grateful to the noble and learned Lord. I simply had the fear that it might be misunderstood both in your Lordships' House and elsewhere that by using the expression "fast track" I was in some sense suggesting that the Jellicoe procedures were speedy and therefore inferior to the procedures that apply on the Floor of the House.
I used the word "fast" in the sense that the procedures secured a more prompt passage of a Bill than would otherwise be the case, because it was a law reform Bill. As experience commonly shows, time is not found available in a complicated and burdened legislative programme for what is regarded as pure law reform.
On the questions of detail which the noble and learned Lord raised in relation to my amendments, I shall certainly read Hansard with care and consider what he says. We may have to revisit the matter on Report. My anxiety is that we have received no signal whatever that the noble and learned Lord was at all willing to meet us on the points that we make. I hope that that is not so.
I have difficulty in accepting that the noble and learned Lord really thinks that the alterations to the provisions in the previous Bill, now incorporated into this one, are improvements. If he thought that the new provisions which he has brought forward are right, why did he not propose them in the first place? I have difficulty in accepting the proposition that he is persuaded by the arguments of the sources from which the initiative for the changes emanated. However, I have a clear appreciation that the noble and learned Lord is constrained to say certain things, and on that basis I beg leave to withdraw the amendment.