House of Lords
Oaths and Affirmations
Clinical Negligence
Lord Storey
To ask Her Majesty’s Government what assessment they have made of the costs of clinical negligence.
Lord Bethell (Con)
My Lords, when people are harmed under NHS care, the impact on their lives and families can be devastating. We have a clear duty to shoulder that responsibility. However, the costs of clinical negligence continue to rise every year at an unsustainable rate, eating into resources that should be available for front-line care. This is despite our substantial safety programmes. We are working across government on solutions to address this and will bring forward a publication in due course.
Lord Storey (LD)
My Lords, I am grateful for the Minister’s very helpful reply. He will be aware that criminal negligence claims are running at about £1.8 billion and forecast in the next few years to go to £3 billion. Is the Minister concerned that, by paying NHS defence legal costs regardless of the outcome of the claim, the Government are creating perverse incentives that reward “deny, defend, delay” behaviours by lawyers?
Lord Bethell
My Lords, the arrangements for clinical negligence payments are currently under review. The National Audit Office made it clear that this should be the focus of a substantial government review programme. We view the current arrangements as completely unsatisfactory, and that review will be published shortly along the terms that the noble Lord described.
Lord Mackay of Clashfern (Con)
My Lords, will the Minister consider whether Section 2(4) of the 1948 Act should continue, as it tends to swell these claims for damages? Is there any procedure followed when a particular claim is accepted to see whether the same accident is repeated again, and, if so, what should be done to stop it?
Lord Bethell
I can confirm that, at this stage, there is a wide review going on. The department is looking at a wide range of options, but a repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948 is not planned for the moment. He makes a profound and important point about the importance of better understanding when repeated errors are made. Patient safety has been put at the centre of the NHS’s priorities for 10 years. Big improvements have been made, but more can be made in the future. We will be bringing the HSSIB Bill to this House later in the Session.
Lord Watts (Lab)
My Lords, many of the negligence cases that are brought forward are down to the shortage of staff within hospitals. If there is a shortage of staff, is that the fault of the hospital or of the Government?
Lord Bethell
The noble Lord has teed up a difficult question for me. The truth is that too often, as my noble and learned friend Lord Mackay said, the biggest payments are made in the area of obstetrics, where lessons should and could be learned, regarding not the shortage of staff but the techniques and responsibilities of those who are concerned. The Government are very determined to put right any gaps in practice in that area.
Lord Faulks (Non-Afl)
My Lords, further to what the noble Lord, Lord Storey, said, in fact the amount that NHS Resolution has reserved for claims is £83 billion. May I suggest to the Minister that, as well as looking at Section 2(4), which I am sorry to say the Government do not seem to be looking at, they review the question of the discount rate, among other things, which has resulted in such huge claims? They should also bear in mind the effect that these claims have on clinical practice. I declare an interest as having practised in this area for the last 30 years.
Lord Bethell
The noble Lord is absolutely right; the total sum of money for claims on the liabilities book is second only to the potential costs of cleaning up our nuclear industry. He is also right that the discount rate is a critically important part of this extremely complex area. It is true that, in 2017, a change to the personal injury discount rate added significantly to damages awards over and above existing drivers. However, that increase was subsequently unwound in August 2019, following the introduction of the Civil Liability Act 2018, and the Government project that it will partially reduce the impact of PIDR in future claims.
Viscount Hailsham (Con)
My Lords, would my noble friend agree that often, and for short-term economic reasons, health authorities have a tendency to settle low-value claims even though the justification for them is sometimes very slight? Does not this practice encourage further claims, very often backed by no-win no-fee agreements?
Lord Bethell
My noble friend is absolutely correct to emphasise the dangers of no-win no-fee arrangements, and in fact trusts have arranged for lawyers representing personal injury practices to leave the premises of trusts for that reason. However, the Government believe that the fixed recoverable costs consultation that ran in 2017 has powerful recommendations for tackling the issue which he describes, and we look forward to acting on the CJC report, published in October 2019.
Baroness Brinton (LD)
My Lords, so far, all the questions have related to costs and lawyers and the NHS side. The trauma to patients and to families of extended delays is significant, and some families, particularly in obstetrics cases, take five to 10 years to get a resolution. What will the Government do to speed up the process, keeping patients and their families in mind?
Lord Bethell
The noble Baroness, Lady Brinton, makes exactly the right point. The human cost here is far greater than the financial one. How can it be right that a family that has been through the trauma of some major health disaster then has to stand in court and fight its case against lawyers? This Government are determined to seek to resolve that human cost. This area is extremely complex. Several models have been tried, but we do not have the answers yet. We are working hard to publish a strategy, but I assure the noble Baroness that the human dimension is absolutely uppermost in our considerations.
Arts and Cultural Services
(4 years, 1 month ago)
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The Earl of Clancarty
To ask Her Majesty’s Government what steps they are taking to improve the provision of arts and cultural services at (1) local, and (2) regional, level.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, the Government have committed to supporting our vital cultural and creative sectors across the country. In October 2019, we announced a new £250 million cultural investment fund—the largest ever single investment in regional cultural infrastructure, local museums and neighbourhood libraries. DCMS’s arm’s-length body, Arts Council England, invests more than £600 million in arts and culture each year. It is spending more outside London than ever before, particularly targeting places where cultural engagement is low.
The Earl of Clancarty (CB)
My Lords, arts and cultural services have been among the first to go as a result of the Government’s policy of austerity, with £400 million cut from local authority spending for England alone since 2011, according to the County Councils Network. Museums have been squeezed, libraries have closed and there has been a significant decrease in serious theatre production originating outside London. Does the Minister not agree that local authority funding remains the most effective means of day-to-day maintenance of the arts? The future will be bleak if the Government do not reverse the cuts. Will they do so? The regions deserve better.
Baroness Barran
The noble Earl is obviously right to reflect on the challenging funding environments faced by local authorities over the past few years, but he will be aware that local authorities across England will see a 4.4% increase—£2.9 billion in real terms—in their core spending power in 2020. Local authorities are extremely well placed to decide how to prioritise their spending. We are clear that expenditure on arts and culture is one of the best decisions that local authorities can make.
Lord Haskel (Lab)
My Lords, we were told a year ago that there was a plan for business rate relief for music venues, particularly in the regions. When will we get it?
Baroness Barran
I will have to write to the noble Lord on that. I do not have that information.
Baroness Bull (CB)
My Lords, I welcome the £250 million cultural investment fund and the allocation of £90 million to the cultural development fund, but the Minister will know that the former focuses on infrastructure and the latter on urban, not rural, areas. Can she clarify plans to improve cultural services in urban areas where there is little in the way of cultural infrastructure and where revenue, not capital funding, matters? Can she say more about how the Government will address the discrepancy in provision between urban and rural areas, which have suffered the most by far as a result of the local authority cuts mentioned?
Baroness Barran
The noble Baroness is right to raise the issue of need in rural areas. The Government are approaching this principally through the lens of ensuring equality of access to cultural provision; we have focused on programmes such as Creative People and Places, reaching more than 3 million people in the areas in the bottom quartile for access. All the funds being looked at at the moment will look through the lens of rural access but our principal aim, in the words of the noble Baroness’s speech the other evening, is to unleash the creative potential of the nation.
The Lord Bishop of Worcester
My Lords, while the provision of arts and cultural services by local authorities is clearly crucial to our society’s well-being, does the Minister share the frustration felt by many of us at the increasingly utilitarian approach taken by schools and further and higher education, which often devalues arts and culture at a time when we know less about what skills will be required in the workplace of the future but we know that the sort of broad vision provided by arts and culture—and, perhaps, religion—will be invaluable?
Baroness Barran
The right reverend Prelate makes an important point. He will be aware that the Government committed in their manifesto to offering an arts premium to secondary schools to fund enriching activities for pupils; we have committed £107 million of funding to that for 2021-22. On careers progression, good work is going on between Arts Council England and the creative industries body to develop apprenticeships, particularly in this area.
Lord Razzall (LD)
My Lords, I am sure the Minister is aware of the importance of the creative arts and creative industries to the economy in general. Is she aware of a recent survey showing that 42% of employees in the creative industries generally lack the necessary skills, that 22% of employees in those industries come from overseas, and that 10% came as freelance workers from the EU last year? How does all this fit with the Government’s immigration policy?
Baroness Barran
As the noble Lord knows, the Government have set out a points-based immigration system that will recognise skills and talent rather than the origin and nationality of the individual. The UK’s existing rules permit artists, entertainers and musicians to perform at events. I know this has been a concern of a number of your Lordships.
Earl of Devon (CB)
My Lords, the country’s private historic houses welcome—
Lord Cormack (Con)
We have not had a question yet. I thank the noble Earl very much. Does my noble friend accept that, where a wonderful purpose-built gallery and grade 2 listed building—such as the Usher Gallery in Lincoln—is at risk, the local authority has a duty to consider every possible means of maintaining it, and perhaps to explore the creation of a trust to which the gallery can be transferred? Does she accept that to deprive people of a gallery that is the most important benefaction the city has ever received would be a very serious step indeed?
Baroness Barran
I hear the concern about the situation in Lincoln in my noble friend’s voice. I feel, however, that it is up to the local authority to look at every possible option, as he says.
Prisons: Radicalisation
(4 years, 1 month ago)
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Baroness Hussein-Ece
To ask Her Majesty’s Government what steps they are taking to tackle radicalisation in prisons in England and Wales.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, all terrorist offenders, and offenders of concern, are subject to specialist multiagency case management to support their disengagement and manage their risk. We have a network of counterterrorism prison and probation specialists, and we utilise tailored interventions—psychological, ideological and theological —to facilitate disengagement. The most high-risk radicalisers can be managed in specialist separation centres.
Baroness Hussein-Ece (LD)
I am grateful for the Minister’s reply, but there is increasing evidence that our overcrowded and understaffed prison system is failing to rehabilitate and deradicalise prisoners convicted of terrorist offences. There is also evidence that these prisoners are being further radicalised while serving their sentences. The Minister will know that the main deradicalisation programme is Healthy Identity Intervention, which has had some success, as we have heard. Can the Minister confirm that prisoners who are willing to go on this programme find they cannot get on to it before their release date? Can the Minister tell the House what impact cuts to the Prison Service are having on these rehabilitation and deradicalisation programmes, which keep the public safe on the prisoners’ release?
Lord Keen of Elie
My Lords, there are essentially three interventions: the theological and ideological interventions programme, the healthy identities programme, and the desistance and disengagement programme. To assist with the delivery of these, we have recruited 22 specially trained imams to engage with such prisoners during their period of custody. In addition, we have recently announced a major investment in counterterrorism resources, including doubling the number of counterterrorism specialist probation staff, to address these issues after release from custody.
Lord Harris of Haringey (Lab)
My Lords, can the Minister put some flesh on the bones of this? How many prisoners who are subject to these special programmes have in fact been able to attend them? On how many days in the last year have those programmes not taken place because the prisoner has not had an escort in the prison to take them to those services? If he does not have those statistics, can he tell us how on earth any Minister can come to this House or the other place and give us assurances about that without knowing how often those programmes are disrupted because of staff shortages in the prisons?
Lord Keen of Elie
My Lords, it will not surprise the noble Lord that I do not have the precise statistics he has asked for, in particular the number of days when escorts were not available, but I will take steps to secure the relevant statistics—in so far as they are available—and will write to the noble Lord and place a copy of the letter in the Library.
Baroness Warsi (Con)
My Lords, my noble and learned friend will be aware of the well-documented concerns around those who are radicalised in prison. Does he have the statistics for offenders serving time for non-terrorist-related offences who subsequently, on release, have been convicted of terrorist-related offences? If he does not have those figures today, will he agree to write to me and to place a copy of the answer in the Library?
Lord Keen of Elie
My Lords, I confess that I am not sure such figures will be available. I will take steps to identify whether they are but, as I say, I express doubts as to whether they are. In the event that such statistics are available, I undertake to write to the noble Baroness and to place a copy in the Library.
Lord Singh of Wimbledon (CB)
My Lords, I declare my interest as director of the Sikh Prison Chaplaincy Service. Does the Minister agree that chaplains must be at the forefront of any move to tackle radicalisation in prisons? To do this, they have to place dated social and political norms embedded in religious texts in the context of today’s times. Will the Minister agree to meet me to discuss Sikh chaplaincy initiatives to do this and reduce reoffending rates, and how this experience might possibly be used to the benefit of other faiths?
Lord Keen of Elie
My Lords, I mentioned earlier that 22 imams were engaged in the chaplaincy intervention programme; there is also one Sikh chaplain engaged in that programme. Each of those chaplaincy employees has undergone specialist training with regard to intervention and counterterrorism work. They are subject to vetting and due diligence checks. I am content to meet the noble Lord in due course to discuss this further.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Minister mentioned the enlightened separation units recommended by Ian Acheson for serious terrorist offenders, to assist their deradicalisation and prevent the radicalisation of other prisoners. The Government accepted the recommendation, the Prisons Minister describing it as
“a crucial part of our wider strategy”.
Now, more than three years on, only one is open—at HMP Frankland—causing Mr Acheson to express his dismay on BBC radio in January. When will there be more, and why the delay?
Lord Keen of Elie
My Lords, there has been no delay in this matter. There are currently three separation centres available—at HMP Frankland, HMP Woodhill and HMP Full Sutton, which are all high-security prisons. They have capacity for 28 individuals. However, given the number of individuals selected for that separation, only one of those facilities is actually in use.
Baroness Smith of Basildon (Lab)
My Lords, I am sure the Minister understands the seriousness of the issue, but I am concerned about two questions asked today—by the noble Baroness, Lady Warsi, and the noble Lord, Lord Harris of Haringey—specifically about what I think are very important statistics that are necessary to understand the scale of the problem if we are to properly tackle it. On both questions, the Minister was unable to give figures and, indeed, was unsure whether such figures were available. I ask that he meet noble Lords concerned about these issues to look at the kind of information we need in order to fully understand and tackle the problem. If his responses are going to be, “I haven’t got that information” and “I don’t know if it’s available”, there will be some concern about the seriousness with which the Government take this.
Lord Keen of Elie
My Lords, I do not accept that characterisation of my responses. The noble Lord, Lord Harris, asked for very specific statistics which I do not have to hand. That would hardly surprise anyone in this House. I undertook to determine what those statistics were and to write to him. A question of further statistics was raised. I am not certain that they even exist, but I will take steps to discover that. Regarding a meeting with concerned noble Lords, my door is always open. If they wish to contact my private office, they should, as they have in the past in some instances.
Housing: Unfair Leasehold Agreements
Lord Kennedy of Southwark
To ask Her Majesty's Government, further to the report by the Competition and Markets Authority Leasehold housing: update report, published on 28 February, what plans they have to help homeowners who find themselves in unfair leasehold agreements.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, we welcome the CMA’s report on its investigation into unfair terms and mis-selling in the leasehold market, and I commend on his work my noble friend Lord Tyrie, who led this report. The report underlines the problems caused by onerous ground rents. We have been clear that leaseholders should not pay a charge for which they have received no tangible benefit in return. That is why we have committed to legislating to reduce ground rents to zero for future leases and to banning the sale of new leasehold houses. We are pleased that the CMA is seeking to take forward enforcement cases, following the findings of its investigation.
Lord Kennedy of Southwark (Lab Co-op)
Does the Minister agree that the actions of some freeholders, property developers and service companies are scandalous? Leaseholders are ripped off with ever-escalating ground rents, service charges, commission fees and, frankly, dodgy sales practices, which effectively make home owners tenants in their own homes. Can she go further and commit that the Government will take immediate, firm action on these practices and stand up for leaseholders? Urgent action is needed now.
Baroness Bloomfield of Hinton Waldrist
The noble Lord is correct. These unfair practices in the leasehold market have absolutely no place in a modern housing market, and neither do excessive ground rents that exploit consumers who get nothing in return. That is why we are reforming the system so that it is fairer for leaseholders. In December 2019, we announced that we would move forward with legislation on leaseholder reform, reaffirming our commitment to making the system fairer for leaseholders. This will include measures to ban the sale of new leasehold houses, restrict ground rents to peppercorn for future leases, give freehold home owners equivalent rights to challenge unfair charges, and close loopholes to prevent unfair evictions. Regarding his question on what action we can take, the CMA has already announced enforcement action and said that this report is an interim report and that its research is ongoing.
Baroness Grender (LD)
My Lords, does the Minister regret that the MHCLG ignored warnings about this crisis from the Leasehold Knowledge Partnership back in 2015? Does she accept that those victims of what the CMA now describes as “significant harm” cannot wait any longer for change? Can she explain to them what happened to Sajid Javid’s promise to change the law before summer 2018? Does she accept that leaseholders’ rights continue to be sold to speculators, with little government protection from everything from doubling of ground rents to extortionate fees for correcting issues such as dangerous cladding?
Baroness Bloomfield of Hinton Waldrist
I agree that the legislation has taken a long time in its gestation, but we have done a number of things since Javid’s report in the other place. For example, we have asked the Law Commission to undertake a series of reports, which it will start producing this spring, about standardising the enfranchisement process, so that buying and extending a lease is easier, cheaper and quicker. It is also going to make it easier for leaseholders jointly to obtain the right to manage and review how commonhold works, so that it may become a viable alternative for existing and new homes. Together with the leaseholders’ pledge that we put in place over a year ago in consultation with housebuilders, that has gone some way—but not nearly far enough—towards mitigating the effects of the actions of those housebuilders.
Baroness Couttie (Con)
My Lords, what are the Government doing to prevent house owners falling into the assured tenancy trap?
Baroness Bloomfield of Hinton Waldrist
I acknowledge my noble friend’s significant interest in and knowledge of this area from her position in Westminster Council. The assured tenancy trap relates to property sold as a lease but where the ground rents, due to escalation, exceed the £250 threshold outside London and £1,000 in London; in effect, it becomes an assured shorthold tenancy, meaning that the owner does not have the same rights as a normal owner and it can be repossessed if they fall into arrears. The Government are committed to addressing this issue via legislation, which will take long leases completely out of the assured shorthold tenancy regime and prevent leaseholders being affected by this issue completely.
Lord Foulkes of Cumnock (Lab Co-op)
The Minister rightly condemned and regretted when home owners were ripped off; would she care to comment on Persimmon Homes? The average cost of a house it builds is £250,000, on which it makes a profit of £65,000, and a large number of its homes have already been declared unsafe in relation to fire and other matters, yet last year the chief executive received a bonus on top of his salary of £73 million. Is that not absolutely outrageous? What are the Government going to do about that?
Baroness Bloomfield of Hinton Waldrist
As I said in a previous answer, the Competition and Markets Authority report updating its investigation into the extent of mis-selling and onerous lease terms will address this issue—maybe not the profit motive but the consequences of past actions. I note that in an action of Cardiff Council v Persimmon, Persimmon was forced to give 55 properties sold as leasehold on the St Edeyrns estate back to freeholders in an out-of-court settlement, so they were given their leaseholds as freeholds for nothing. We would like to see more of this happening. Regrettably, it was settled out of court before it became a court case so we cannot use that settlement as a legal precedent.
Lord Naseby (Con)
We recognise that the Government are taking action on a number of aspects, but there remains the problem of couples who have bought—particularly in the north and Midlands—and want to move home but find that their property is totally unsaleable. The noble Lord who raised this Question is absolutely right to do so. Will my noble friend have a closer look at this? We cannot have a situation where young couples buy what they think is a home and are stuck there unable to move.
Baroness Bloomfield of Hinton Waldrist
I agree with my noble friend. That is why we are working closely with the Law Commission and the CMA to inform future legislation. This has become a particular problem in the north of England. In answer to that question and that of the noble Lord, Lord Foulkes, I say that what is most disappointing is the governance of the housebuilders that have been escalating these charges. The non-executive directors of these companies should have taken a longer, harder look at their policies.
Sentencing (Pre-consolidation Amendments) Bill [HL]
Tuesday 3rd March 2020
(4 years, 1 month ago)
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The Advocate-General for Scotland (Lord Keen of Elie)
My Lords, I take the opportunity to pay tribute to the Law Commission and parliamentary counsel for their work on this Bill, not least for their continuous efforts to ensure that it accurately reflects recent changes in the law. I wish to record the Government’s thanks to the noble Lords who served on the Bill’s Special Public Bill Committee in the last Parliament under the chairmanship of the noble and learned Lord, Lord Judge. I am sure that I speak for all members of the committee in thanking those who provided evidence on the Bill, but in particular Professor David Ormerod, who has done so much work in this field. We hope that the Bill marks the first step in cutting through the complexity of the law in this area, and I look forward to the imminent introduction of the sentencing code Bill.
Lord Judge (CB)
Perhaps I may say a brief word in acknowledging the debts of gratitude to which the Minister has referred. The Bill, when it is enacted, will vastly improve the administration of criminal justice. It is long overdue and thank goodness it is now nearly there.
Coronavirus (COVID-19)
Lord Ashton of Hyde (Con)
My Lords, before my noble friend repeats the Statement, I have been asked, in view of the importance of this subject, that Back-Benchers should have more time. I am pleased to say that I have agreed that they should have an extra 10 minutes, so there will therefore be 30 minutes available for Back-Benchers. However, I shall make the point—the Companion is quite clear on this—that this is an opportunity for questions, not speeches. My noble friend is very keen to answer as many questions as possible, so we would like short, focused and challenging questions— but, above all, short.
Lord Bethell (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made today by my right honourable friend Matt Hancock, the Secretary of State for the Department of Health and Social Care. The Statement is as follows:
“Mr Speaker, with permission I would like to make a Statement on the Government’s coronavirus action plan. The situation facing the country is increasingly serious. Globally and at home, the number of cases continues to rise. As of 9 am today there were 51 confirmed cases in the UK and it is becoming more likely that we will see widespread transmission here in this country.
Our approach is to plan for the worst and work for the best. Yesterday I attended a COBRA meeting chaired by the Prime Minister, in which we finalised our four-part action plan to contain, delay, research and mitigate the virus. This plan has been jointly agreed between the UK Government and the devolved Administrations. Copies of the plan have been sent to Members of both Houses and made available in hard copy. The plan is driven by the science and guided by the expert recommendations of the four UK Chief Medical Officers and the Scientific Advisory Group for Emergencies.
Our plan sets out what we know so far about the virus and the disease it causes, what long-term planning we have undertaken to prepare for a pandemic, what actions we have taken so far in response to the coronavirus outbreak and, crucially, the role the public can play in supporting our response, both now and in the future.
The UK is well prepared for infectious disease outbreaks of this kind. The international data continue to indicate that for most people, this disease is mild and the vast majority recover in full. We have responded to a wide range of disease outbreaks in the recent past. The NHS has been preparing for a pandemic virus for over a decade. We have world-class expertise to make sense of the emerging data. We have a strong base on which to build.
While Covid-19 is a new virus, we have adapted our response to take account of that fact. Our plan sets out a phased response to the outbreak. Phase one is to contain—this is the phase we are currently in. Contain is about detecting the early cases, following up with close contacts and preventing the disease taking hold in this country for as long as is reasonably possible. This approach also buys time for the NHS to ramp up its preparations. If the number of global cases continues to rise, especially in Europe, the scientific advice is that we may not be able to contain the virus indefinitely.
At that point we will activate the delay phase of our plan. Delay is about slowing the spread, lowering the peak impact of the disease and pushing it away from the winter season. We are mindful of scientific advice that reacting too early or overreacting carries its own risks. So, subject to our primary goal of keeping people safe, we will seek to minimise social and economic disruption.
The third part of the plan is research. Research has been ongoing since we first identified Covid-19. I pay tribute to scientists at Public Health England, who were among the first in the world to sequence its genome. Research is not just about developing a vaccine—which we are actively pursuing but is many months away, at the earliest—but also about understanding what actions will lessen the impact of coronavirus, including what drugs and treatments, existing and new, will help those who are already sick.
The fourth phase is to mitigate. We will move on to this phase if coronavirus becomes established in the UK population. At that point, it would be impossible to prevent widespread transmission, so the emphasis will be on caring for those who are most seriously ill and keeping essential services running at a time when large parts of the workforce may be off sick. Our plans include not just the most likely case, but the reasonable worst case. We will identify and support the most vulnerable and, if necessary, take some of the actions set out in today’s plan to reduce the impact of absentees and to lessen the impact on our economy and supply chains. We prepare for the worst and work for the best. We commit to ensuring that the agencies responsible for tackling this outbreak are properly resourced, have the people, equipment and medicine that they need, and that any new laws they need are brought forward as and when required.
This is a national effort. We need everyone to listen to and act on the official medical advice. We need employers to prioritise the welfare of their staff. The single most important thing everyone can do to help—and I make no apologies for repeating this—is to use tissues when coughing or sneezing and wash your hands more often. It is in your interests, in your family’s interests and in the national interest. We will get through this. Everyone has a part to play.
I commend this Statement to the House.”
Baroness Thornton (Lab)
My Lords, I thank the noble Lord—the government spokesperson—for repeating this Statement. Our thoughts are always with those who have contracted the virus and we pay tribute, again, to the extraordinary efforts of the NHS and our public health staff. We, on these Benches, are clear: the public health interest must, at all times, be the priority. All the Government’s decisions must support this strategic aim and, where they follow the medical and scientific advice, they will have our support.
I start by raising the issue of the EU early warning and response system, of which, of course, until Brexit, the UK was a member. This early warning and response system has played a vital role in pandemic preparations in the past. It is rumoured that No. 10 overruled the Department of Health, which wished, quite rightly, to be part of the European Union’s safeguarding system at this time. The Prime Minister has said that keeping the public safe was the Government’s number one priority but has refused to seek to retain or apply for membership of the EWRS because of the negotiations taking place at the moment. I understand that the Secretary of State agrees with those of us who believe that tackling fast-moving, global outbreaks—including this virus—could become harder if the UK loses access to the EU’s early warning system for cross-border threats, so I urge the Government to urgently review this stance.
The PM says that there is significant risk of the virus becoming widespread, meaning further measures might be necessary, and that emergency legislation may be necessary to give the Government the powers they need to implement the action plan. I would be grateful if the Minister could set out some kind of timetable for emergency legislation. Will it be primary and secondary legislation, and which department will take the lead?
The plan sets out what the Government could do to contain the virus on the basis of scientific evidence. Drastic steps, such as closing schools, would have major social and economic consequences, so can the Minister advise the House on how they plan to seek a balance?
We agree with the Government’s strategy to contain, delay, research and mitigate, and indeed it has our endorsement. However, can the Minister explain why we have not followed other nations by imposing a travel ban to the UK from higher-risk countries such as Italy, Iran, China and South Korea?
Are the Government undertaking workforce planning as a consequence of self-isolation? This has huge implications both for this stage and the peak stage, in which the Government recognise that up to a fifth of workers could be absent from work. The Prime Minister said today that workers who self-isolate will be considered to be on sick leave. Can he confirm that those who need to self-isolate will not need to visit a GP to receive a sick note?
Two million workers on low pay or insecure contracts in the gig economy do not even qualify for statutory sick pay. The GMB trade union points out that NHS trusts have a huge number of outsourced staff and that a large number of companies providing NHS services do not pay sick pay for the first three days. Therefore, we are looking at cleaners, porters and catering staff who might put their own health at risk when we need them to contain the coronavirus, because they will not be paid if they go off sick. Therefore, I ask that NHS trusts, for example, guarantee that all staff are given full sick pay if they have to self-isolate.
Equally, what action will be taken to reduce the requirements placed on those in receipt of benefits who will not physically be able to attend appointments if they need to self-isolate? Can the Minister guarantee that no financial sanctions will be imposed? No one should be faced with having to make a choice between their health and hardship. Therefore, when the Government consider emergency legislation, will they bring forward legislation to remove those barriers to self-isolation so that all workers can get the sick pay that they deserve?
We know that the elderly and those with chronic underlying long-term conditions such as diabetes or cardiovascular conditions are vulnerable. What is the Government’s latest advice to providers of social care for those in residential settings or staff visiting elderly and vulnerable people in their homes?
On the NHS more broadly through the mitigation phase, we know that last week 80% of critical care beds were occupied. Can the Minister clarify how many beds are available should we need them, and how quickly can ICU beds be opened up? Can we be assured about the extra resource that will be made available to health trusts? Every sample for testing will carry a cost, and that will soon build up. As people self-isolate, that will affect the NHS workforce, and trusts will be forced to take on more agency staff. If retired staff are encouraged to return to practice, the wage bill will increase. Can the Minister explain how retired staff returning will be engaged and protected, and what oversight will be put in place to ensure that they deliver safe care if the revalidation process is to be suspended for retired returnees?
Will the Government provide emergency funding to cover the NHS resource budget and support the NHS through this next challenging period? For example, it is possible that thousands of elective surgeries will have to be cancelled.
Directors of public health are preparing a local response to Covid-19, yet they still do not know what their public health allocation for the next financial year, starting next month, will be. It means that they will be cutting the nurse workloads that they are commissioning at a time when we need those nurses to cover these cases.
Finally, on global efforts to contain the virus, I have already mentioned the European Union EWRS. We will not contain the virus internationally, nor will we be able fully to protect ourselves if the outbreak becomes uncontrolled in countries with weaker health systems. What assistance are we offering the World Health Organization with the international response to Covid-19?
We will continue to raise our concerns responsibly when we have them but, on these Benches, we also pledge to work constructively with the Government, because the public health interest must always come first.
Baroness Brinton (LD)
My Lords, on behalf of the Liberal Democrat Benches, I thank the Minister for repeating the Statement. We repeat our thanks to the staff of the NHS and the Department of Health and Social Care, as well as to all those working cross-department on preparing for the various possible outcomes in the event that this escalates.
We also echo the points made from the Labour Benches about No. 10’s announcement that we will not take part in the EU early warning system. It was clear from the media yesterday that the NHS and medical experts all say that we must be part of it. To have No. 10 say, “No, we won’t”—presumably because it has the dirty letters “EU” in it—is extremely unhelpful. Will the Government please review this position as a matter of urgency and, as they said in their Statement, take scientific and medical advice on whether we should be involved?
We welcome the two amounts of £20 million that the Government have put forward for research into Covid-19—the first for the Coalition for Epidemic Preparedness Innovations, but particularly the £20 million for Covid research here in the UK, including on epidemiology and treatment in hospital. Far too often we focus only on blue-sky research. This needs to be very practical and it is—these Benches welcome that.
I apologise for being a broken record on this. However, I am sorry to say that the advice for those who are either vulnerable or have underlying medical conditions is still not clear. The Minister and I have had an email exchange on this matter. The WHO and the American CDC still offer clearer advice to members of their public about what to do if you are either elderly or have underlying conditions than we do in this country, whether you are travelling abroad or in a community that may have some cases. Can this be beefed up? There is a statement in the action plan report that this will be strengthened in due course, but that will be once we get to mitigation.
There are already concerns in the medical and disabled communities about whether people should be shaking hands. I was somewhat concerned to hear the Secretary of State affirming confidently on television this morning that shaking hands was still fine. I am sorry: if you have an underlying condition, you do not want to be shaking hands with people. You should be washing, not doing that. Wearing hand splints, I have learned over the years to wave at people. It is much easier. Perhaps we could get a trend going with that.
We know that emergency legislation is coming up. That is heralded in the action plan. There are some concerns from our Benches on the extent of the mobilisation of retired and former staff. There has rightly been an emphasis on clinical staff. There will be questions that our Benches will look to have responses to. If people, particularly doctors, have been deregistered, perhaps because of retirement, will there be an expedited system, a reduced appraisal system, or a system to take people on who perhaps have not been reregistered but could work under supervision? It is important that these things are both clear and done at speed. But we are extremely concerned that there is no mention of people in other core parts of the NHS and social care system who are not clinical staff. The cleaning, catering and admin staff also keep the NHS and our social care system going. What arrangements are being put in place to provide extra support for them?
Once we move into mitigation and discussion about the possible closure of schools, surely it more important to keep schools open, even if there is only a reduced number of pupils in those schools, if the pupils’ parents are key workers—essential workers in the NHS, the police and other key areas. There is no sign that that has been thought about at this stage. It seems to us that this is an important point to cover.
Finally, after a nearly a decade in your Lordships’ House, I should not be too surprised when Ministers, particularly the Prime Minister, use very positive frames for things. The idea that the NHS will move out of a winter crisis into a landscape of delight once we get to the summer is extraordinary. We know that our social care system is at breaking point. The social care system was grateful for the £240 million provided by the last Chancellor in the autumn. However, the Local Government Association and almost every health think tank say that our current social care system is short of £2.5 billion now, without any impact from coronavirus. Of course, our social care system will have the patients most at risk of serious illness should coronavirus move into our communities. So, without heralding anything in the Budget, which I understand the Minister cannot speak about, can the Minister reassure the House that there will be serious support: for ensuring that there are no delayed discharges because there will be adequate support for social care in the system?
Lord Bethell
My Lords, I thank all the other parties for their spirit of collaboration and support during this awesome challenge. That was reflected in the debate last Wednesday and is reflected again today.
I start by reaffirming the commitment of this country and this Government to international co-operation. That co-operation is being led by British scientists, who were the first to crack the genome of this virus and who immediately published their material freely on the internet, which instigated a huge advance in the research being done around the world on Covid-19. Britain remains committed to the WHO initiative and is a very active leader and supporter. Our scientists are flying to some of the hardest-hit countries of the world. Without diminishing our own capability, we are very active contributors of intellectual, practical and personnel support to those in need around the world. I pay tribute to all involved.
On the EWRS, mentioned by the noble Baronesses, Lady Brinton and Lady Thornton, I reassure noble Lords that, in line with the withdrawal agreement, the UK has continued access to the EWRS during the transition period. We continue to share key updates with our European counterparts via this system. As set out in the UK’s negotiating mandate, we are open to exploring further co-operation between the UK and the EU on all matters of health security, including the exchange of information and expertise on infectious diseases such as coronavirus. We are open to exploring mechanisms for the UK and EU member states to continue to share and act on real-time alerts and information on new and emerging health threats, as currently carried out by the EWRS.
Regarding the Bill, as part of the Government’s plans, we are considering what additional powers may be needed to contain and mitigate the spread of the virus and to manage any impact. That Bill will be brought when it is needed; the timing and schedule have not been finalised.
The noble Baronesses, Lady Thornton and Lady Brinton, both brought up school policies. The noble Baroness, Lady Brinton, put her finger on a key and important point of the Government’s policy in this area. It is absolutely essential that services such as schools continue to be open for as long as they reasonably can be, so long as the medical advice supports that decision. Those who provide essential services, including social care and running the infrastructure of this country, depend on schools to be able to go to work. That is why the direction to school heads is, where possible, to keep the schools open. It is possible that, at some point in the future, as part of the delay strategy, the recommendation may change—but it would be done under the guidance of our medical advisers, and with strong epidemiological evidence that such a decision would make a profound difference to the spread of the virus. We are not in that situation yet, so the policy on schools remains, now and for the foreseeable future, that they should remain open where the medical advice confirms that.
On the question of a travel ban, it is true that this Government have not banned travel as some countries have done. That is based on the advice of our medical advisers, who suggest that trying to put in place travel bans to countries such as Italy would be like creating a medical Maginot Line; travellers will seek ways around the ban, tracing contacts will become impossible, and finding evidence of the origins of the virus will be lost in deception. Italy is one country that put in place serious travel bans around the world, and it is facing many of those challenges now with, sadly, a high rate of infection and challenges in tracing the origins of those infections.
Both noble Baronesses asked about sick leave. It is absolutely right that concern should be had for those who make the correct and responsible decision to self-isolate. Government lawyers have looked at sickness pay arrangements and it is very clear that those who self-isolate qualify immediately for statutory sickness pay. They may self-validate for seven days. After the seven days, they may seek an email confirmation of the diagnosis by dialling 111, thereby avoiding an unnecessary and potentially dangerous trip to either their GP or to hospital.
The practicalities of the gig economy, which were quite rightly raised in the debate so far, are challenging. There are provisions in the welfare system, and provisions among employers to behave generously, but this is an area that the Government clearly need to continue to review.
Tributes should be made to health staff, who provide absolutely essential support to keep our hospitals and surgeries open. It is, in fact, at times like this that one realises the profound and important contribution made by non-clinical staff. We owe it to them to provide generous and open-hearted arrangements, so that they can continue their work and, if necessary, self-isolate in financial security and confidence, and the Government are committed to reviewing those arrangements.
The noble Baronesses, Lady Thornton and Lady Brinton, both asked about social care. It is undoubtedly a concern that we all have for those who are older and more fragile—this virus is clearly targeting them. Provisions for social care are absolutely uppermost in the Government’s mind. A huge initiative will be made to recruit both professional and volunteer staff to support the social care industry during this period, when many workers will be self-isolating and support for people—whether they are in homes or living on their own—will be stretched. That recruitment is absolutely key to the Government’s plans.
Arrangements to ensure that that recruitment can include retired professional staff, who may have allowed their qualifications to lapse, may form part of forthcoming legislation, but I reassure the Chamber that the adequate management, supervision and scrutiny of those people will be maintained. This will very much include non-clinical staff as well as clinical staff—which, as I have explained, will be all-the-more important during an epidemic like this.
The noble Baroness, Lady Thornton, asked about funding. I reassure the House that, while the Treasury is carefully controlling the money spent, no clinical decision supported by medical evidence is being held back by financial considerations. The budget has been put in place and the moneys are available to do whatever it takes to manage this epidemic in a responsible and effective fashion.
The noble Baroness, Lady Brinton, is absolutely right to raise the issue of advice to those who are most vulnerable to this virus: those with medical conditions. It was one of the most moving moments of the debate, last Wednesday, when the noble Lord, Lord Davies, also raised it. I have taken these concerns to the CMO, whose office is looking at the modelling and the communications. It is absolutely a number one priority.
New communications are being put together. There is an issue with sequencing: it is the view of the experts that there is little point in seeking to mobilise behaviour change in people before it is required, in case they make those changes to their behaviour, feel that they are unnecessary, lose trust in the system and go back to their old behaviours. So the communication of some messages, the distribution of some advice and the recommendations from the Government need, at times, to obey the logical sequencing of this virus.
Lord Winston (Lab)
My Lords, there are so many questions but maybe I can be brief. I declare an interest as a member of Imperial College, which, as the Minister knows, is doing much of the research and co-ordination in this country. Does he feel that the advice to people is sufficient? Not shaking hands seems to be only part of the problem; we should not be doing social kissing, but it is very easy to do that. Somebody has tried to kiss me twice today—
Lord Winston
I do not mean that in a way that might concern my wife, who might be listening to this debate. We also have to realise that we should not be touching our nose, mouth or eyes, all of which are likely to be contaminated. That is very important in not spreading the infection if you happen to be infected.
Perhaps I may raise one issue, because there are so many. It is the question of screening and diagnosis. News is coming through that people in New York are already finding it difficult to get screened for the virus when they have symptoms. That seems a bit of a problem with a virus that presents in a variable way, not a standard pattern. Sometimes you might be almost sub-clinical but then develop a much more serious, raging infection. One concern that we in this House must have—we have drawn attention repeatedly to this—is the massive difficulty of having properly managed pathology labs. We have excellent pathologists in this country but our pathology is always really stretched, without this virus. Is the Minister clear that we may need more staff to ensure that we can diagnose as accurately and rapidly as possible, as making a diagnosis is clearly one way of controlling the infection?
Lord Bethell
My Lords, the noble Lord is absolutely right about kissing. Kissing is wonderful but potentially dangerous. I share with the Chamber that we have had detailed conversations about kissing, shaking hands, fist-bumping and all manner of social intercourse. The analysis and guidance from the CMO is clear: it is the touching of your own nose that is the real problem. The average person touches their own nose between 70 and 100 times a day. That is why we focus on the message about washing hands. If your hands are clean, it does not matter how many times you touch your nose; but if they are dirty, whether that is through shaking hands, touching a door handle or whatever, the germs are there and can be conveyed. That is why we focus on that.
Baroness Hollins (CB)
My Lords, the coronavirus action plan emphasises that risk increases in elderly people and those with underlying health conditions, particularly men. The Secretary of State emphasised handwashing but he also mentioned social distancing. Given the demography here in a self-regulating House, might it be advisable for us to model a kind of social distancing and make behavioural choices? I understand the Minister saying that maybe one should not adopt behavioural change too early because it might discourage people. But I wonder whether it is necessary for people who have no intention to speak to come here at a time when perhaps a little more space might keep Members of the House safer, and the work of the House safer so that it continues. Have the House authorities considered the possibility of engagement through web-based debate or digital voting, in the event that attendance at the House really needs to be minimised?
Lord Bethell
My Lords, it is not the role of the Department of Health and Social Care to lead on this matter, but I am aware that the House authorities are very sensitive to the points made by the noble Baroness. Ultimately, it will be up to the Leader’s Office, working with the House authorities, to make decisions on the matters she describes.
Lord Robathan (Con)
My Lords, this is a grave issue, but my noble friend’s response has been incredibly balanced. A huge number of people, including me, are concerned that we will overreact—although the Minister has said that we will not—and cause panic in the country, where panic should not be seen.
Lord Bethell
The noble Lord makes an important point. Polling to date has demonstrated that the British public have left the moment of complacency and are now seriously focused on this issue. Their trust in the Government remains high, and their engagement on solutions is profound. That feels like the right place to be.
Lord Knight of Weymouth (Lab)
My Lords, I noted what the Minister said about schools and I support his position. However, I also note that the Chief Medical Officer for Wales is today reported as saying that the peak in infection may be in May and June, coinciding with the time when up to a million young people will be taking public examinations in large sports halls. Can he reassure me that Ofqual is having conversations with examination boards about a contingency measure for delaying those examinations if necessary, and with universities about the admissions process if A-level results come out later?
Lord Bethell
The noble Lord makes an extremely important point, which I cannot answer specifically, as that would be for the Department for Education. If I may answer in the round, it is Government’s objective to avoid as much economic and social disruption as possible, while making safety our number one priority. That is our guiding star.
Lord Broers (CB)
My Lords, in 2009 the Science and Technology Committee of this House, which I chaired, conducted a report on pandemic flu. I recommend that the Government look back at it. We spent a lot of time considering antiviral drugs, including that there should be enough of them in this country and that they should be distributed adequately. Was our recommendation on that topic fulfilled, and will those antiviral drugs be available?
Lord Bethell
We are grateful for the work of the noble Lord, Lord Broers, which is well known. The epidemiology of this virus is not yet fully understood. We do not understand whether it will respond to traditional and conventional antivirals in the way that other viruses have. To date, there is no evidence that the usually stockpiled conventional antivirals will necessarily be effective. For that reason, I cannot provide a direct answer.
Lord Shipley (LD)
My Lords, the Government seem very dependent on people using NHS 111 telephone lines, NHS 24 in Scotland, or NHS Direct Wales. I seek the Minister’s confirmation that the resourcing of NHS 111 and the other similar lines will be sufficient to meet the demand the Government are anticipating with trained staff who can give good-quality advice.
Lord Bethell
My Lords, the pressure on 111 has risen over many weeks. It was identified as an incredibly important part of our response to this pandemic at a very early stage. Thank goodness we have 111; without it GP surgeries would really be struggling. I can assure the House that massive resources have gone into providing additional support.
Lord Kakkar (CB)
My Lords, I draw attention to my registered interests. Is the Minister content that the current regulations governing the evaluation of medicinal products for human use are sufficiently flexible in the current circumstances, such that they will not present an impediment to the rapid testing of new therapies for the prevention and treatment of this coronavirus?
Lord Bethell
My Lords, this Government are committed to doing whatever it takes medicinally to tackle this epidemic. We will not allow regulations to stand in the way.
Lord Campbell-Savours (Lab)
My Lords, I listened very carefully to the Minister’s comments on behavioural change and discouragement, but there is nothing of any substance in this Statement on the provision of early information that could affect personal conduct—which is very important on this—particularly for the elderly, apart from hand-washing and tissue cover when coughing. The public want detailed information now on transmission points—where they are and what they are—and on the life of the virus under various conditions. Detailed, authoritative information will influence personal conduct. In my view, personal conduct may well be more important than what the Government do. At the moment, all we have is an internet riddled with rumour, speculation and unattributable advice. The Government have missed a real opportunity. Can we have far more detailed information at this stage?
I am also concerned about the conflation of statistics on the risk of mortality. The 1% to 2% figure is misleading. Among the over-70s, the figure is 8%; among the over-80s, it is 14.8%. If you have underlying health conditions, it is even higher. Why can Ministers not be more up front on the elderly? I understand that the stats I have just given are now being repeated by the Government, but not openly.
Lord Bethell
My Lords, there is an enormous amount of detailed information on the Public Health England website. I will be glad to forward the noble Lord a link if needed. I completely share his profound desire to know all the details of how the virus behaves, but at this stage we simply do not have that information. It is not being withheld; there is no secret to this. The behaviour takes time to be analysed and pinned down. Our scientists are working incredibly hard to get that information and it will be shared as soon as we have it. I share his frustration about the fake news and data; different people are using different numbers and there are clearly people muddying the waters. The Government are organising significant investment in resources to tackle fake news.
Lord Howell of Guildford (Con)
My Lords, coming back to the nature of the virus, has my noble friend noticed Chinese health officials’ reports that 14% of patients discharged from hospital after recovering from the virus later test positive again? Even if 14% is an exaggeration, has that tendency been noted and is there validity to the claim?
Lord Bethell
These stories have been seen. They are not fully understood. It is possible that those thought to have recovered did not actually recover—that their symptoms were subclinical and there may have been an issue with the original testing.
Baroness Coussins (CB)
My Lords, will the Minister tell the House whether specific briefings will be held for the public service interpreters who work in the NHS and whether advice and information to the public will be provided in languages other than English?
Lord Bethell
The noble Baroness asks a very important question. I do not know the precise answer but will be glad to reply to her later.
Baroness Blackwood of North Oxford (Con)
My Lords, I commend the Minister for his excellent and balanced answers and for the clarity provided by the action plan today. It is clearly right that we remain in the containment phase. Listening to the debate today and outside, there are a lot of questions around which social distancing measures might be introduced in the delay and mitigation phases, when they might be implemented and what the social and economic costs might be. Could the Minister explain what work is ongoing to understand the effectiveness of specific distancing measures and on whose advice there might be recommendations for them to be implemented?
Lord Bethell
In all these matters, the Chief Medical Officer guides the Government’s decision-making. We are looking at the modelling done by SAGE—the Scientific Advisory Group for Emergencies—which guides our decision-making. It has sophisticated computer analysis, which all this information is being plugged into, and that helps inform the decisions that we make about the guidance on isolating and social distancing. It is not possible to lay out today exactly what guidance we will issue or what decisions we will make in the weeks or months to come, but when those decisions are made they will be broadcast with energy through public communications.
Baroness Pitkeathley (Lab)
My Lords, the Minister will know that residents of nursing homes and care homes are overwhelmingly in the high-risk category. In the containment phase, is any advice being given about restricting visitors to such homes, either family or those who provide much-needed activities? When we get to the mitigation phase, is any advice being given about how to deal with staff shortages? I remind the Minister that when we talk about volunteers going into such institutions, volunteers themselves are overwhelmingly aged, and therefore in the high-risk category.
Lord Bethell
The noble Baroness raises an issue that is uppermost in our minds: the care of and provision for the aged, who are clearly the most vulnerable to this virus and whose support will be most hard-hit by the virus itself. It is clearly a dilemma that the Government are struggling with. We are seeking to delay the spread of the virus as much as possible so that the peak does not knock out in one go all those who provide support, so that mitigation provisions can be put in place. I reassure the noble Baroness that when we talk about volunteers, we are not talking just about family members: we are talking about full community commitment.
Viscount Ridley (Con)
Can my noble friend advise us on the accuracy of the screening tests? Do we know whether there is a degree of false negatives, where people test clear but in fact have the virus? Are there any false positives, where tests show that people have the virus when they do not? For example, they might have a different kind of coronavirus—one of the common cold ones.
Lord Bethell
This question arose in the debate last week and I followed it up with the Chief Medical Officer. As far as I understand it, there is no issue with the testing. It is possible that some people seemingly recover—their symptoms fade from view—but they are still infected with the virus. We are working hard to understand how this works.
Baroness Hayman (CB)
My Lords, first, as I understand it, currently the test is laboratory-based. How much emphasis are the Government, in their research, putting on a rapid diagnostic test that can be used at the bedside or immediately? The differential diagnosis between diseases that manifest with high temperature and a cough is absolutely essential in this area. I say this based on my experience: I was in Sierra Leone during the Ebola outbreak. Secondly, the one piece of behavioural advice that is very clear is about washing hands. If you were in Sierra Leone or west Africa during that time, you did not enter a public building without washing your hands. It was fairly crude—it was a bucket of water with disinfectant in it—but it was in the high commission and every hotel and office. The idea that the only kind of handwashing that is acceptable is conventional handwashing in circumstances that people expect might not be sufficient if this goes further.
Lord Bethell
The noble Baroness is absolutely right to emphasise the question of diagnosis. I know from my own experience that the delays that people experience create huge anxiety and prevent them making the important decisions they need to make for themselves and their families about how to do the right thing—self-isolating if necessary and making provisions for their other family members. A ferocious race is under way at the moment. The Government have instructed six private companies, which are all seeking to build exactly what the noble Baroness describes: a bedside testing kit that can be rolled out across the country to provide swift, on-the-spot diagnosis. We are hopeful that that will come shortly. On handwashing, I too have travelled in Africa and know exactly the kinds of provisions she talks about. The advice from the CMO is that we are not there yet but nothing is off the table.
Baroness Bennett of Manor Castle (GP)
The noble Baroness, Lady Thornton, referred to the Telegraph story about the conflict within the Government regarding the EWRS scheme. That same story referred to the Health Secretary wishing to travel to meet his European counterparts and not being allowed to by Downing Street. Can the Minister reassure your Lordships’ House that any necessary visit to Europe by a Minister or an official will be allowed to go ahead? As the Minister rightly said, we are in the EWRS until the end of this year. However, I asked a Written Question last week, to which I have not yet had a response, on the European Medicines Agency rapid approval and procurement system for vaccines and drugs. As I understand it, we are not in that system now that we are not part of the EU. Switzerland is also not in that system but has asked for special access. Have we asked or will we ask for special access?
Lord Bethell
I reassure the noble Baroness and the House that we are clearly in the midst of a global pandemic, and nothing will stand in the way of the Government’s best efforts to work with our international partners, in Europe, through the WHO and abroad, to find a proper solution to this challenge.
Viscount Waverley (CB)
My Lords, there is a consensus on the necessity of handwashing. Will the Government ensure that sufficient quantities of gel are readily available around the country? There are reports that, nationwide, stocks are just not there to supply people who wish to get hold of that product to follow government advice.
Lord Bethell
The noble Viscount is right; I have also read the reports of sanitiser shortages. I wish I was in a position to reassure the House that we could somehow guarantee that there was enough sanitiser in the country for the next six years. I am not sure whether that is either reasonable or possible. However, I can tell noble Lords that the CMO’s guidance is clear: washing your hands with soap and preferably hot water is much better than using sanitisers.
Lord Trefgarne (Con)
My Lords, can my noble friend indicate a little more about the search for a vaccine for this disease? Who is leading the search, and is the United Kingdom involved?
Lord Bethell
Public Health England is leading the search and British scientists are playing an incredibly important role. However, the guidance I would give the House is from the CMO: the heaviest impact of this epidemic is likely to be within weeks, whereas the search for a vaccine is likely to take at least months and possibly years.
Lord Brooke of Alverthorpe (Lab)
My Lords, the Minister is to be congratulated on the way he is answering questions in difficult circumstances, trying to keep the balance right. There is one area where we have great problems in controlling what happens. We have nearly 6 million people who are self-employed. We have talked about what you could do with people in employment and the support that could be given to them. What attention is being given to the issue of the self-employed? The Minister also mentioned that the Government have looked at the way in which the sequencing of communications should take place. Perhaps he might say a little more about that. Perhaps we might explore the opportunity to be positive. We have many people who are lonely, and I hear that many people are fearful—very frightened. Perhaps we should start getting some positive messages to them as well somewhere in the sequencing, so that they can feel less fearful than they are at the moment.
Lord Bethell
The noble Lord is quite right to ask about those who are either in the gig economy or unemployed. The Government need to look at this matter more closely. Provisions have been made on statutory sick pay and there are welfare arrangements through universal credit, but if those are not enough and do not provide the financial security and necessary provisions for those in need, we will review them and make the appropriate changes. The noble Lord’s points on the community are well made. I confess that we in the Department of Health are super-focused on the medical challenge, but one cannot help feeling that this may be a moment for the country to come together. If communities seek to support those in need, there may well be a silver lining to this cloud.
Lord Patel (CB)
My Lords, apropos the testing, I understand that a Northern Ireland company is currently testing a rapid diagnosis in China. My important question relates to the action plan. At paragraph 4.50, it states that the Government
“will implement a distribution strategy for the UK’s stockpiles of key medicines and equipment”.
Can the Minister tell us: what stockpile, what medicine, what equipment and how much?
Lord Bethell
The noble Lord is right to refer to this. I cannot give him an exact inventory of the stockpile. All I can share with the House is that, partly because of our no-deal preparations, the warehouses are bursting with medicines and medical equipment. This is an inadvertent but not unwelcome aspect of the situation we are in.
Lord Cormack (Con)
My Lords, one issue that has not been raised is public transport. There is no more dangerous place than public transport when infections are rife. Has thought been given to restricting the number of people who can travel on buses and trains—perhaps one in two seats? That could be of some help if distance is an important factor.
Lord Bethell
My Lords, this is exactly the type of dilemma being considered by SAGE and the CMO. It will be the focus of work between the Department of Health and the Department for Transport.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I am delighted that at Randox, my former constituents are leading the research into this virus. Can the Minister assure us that the Government’s plans to tackle this will be carried out or taken forward equally across the United Kingdom, and that the necessary finances will be made available to the Northern Ireland Executive to tackle this serious issue?
Lord Bethell
I reassure the noble Lord that the four CMOs from all parts of Britain have worked extremely closely and that their decision-making has been done on a joint basis. Work on a possible Bill has also been run past the Executives and Assemblies of all the nations; there is extremely close collaboration between all parts of Britain.
Baroness Ritchie of Downpatrick (Non-Afl)
My Lords, I thank the Minister for repeating the Statement. Throughout this transitional phase, are the Government still availing themselves of the medical expertise in the respiratory field that is available through the European reference networks?
Lord Bethell
The noble Baroness is more of an expert on those networks than I am. All I can say is that we are going about this epidemic by focusing on all our strong relationships to make the most of everyone we know. We are throwing ourselves into every opportunity we have with gusto.
Lord Hussain (LD)
My Lords, many passengers use our airports in transit. I fear that our staff may be vulnerable to people making such journeys. Obviously, they are not British passengers, but they are using our airports. What are the Government doing to protect our staff on the ground?
Lord Bethell
The noble Lord is quite right to raise the issue of airline staff, who are very clearly on the front line of this epidemic. They are in confined spaces and are sharing aeroplanes with people from all sorts of destinations. It is not the role of the Government to intervene in this, but we are encouraging all employers, as a matter of principle, to care for their staff and to put staff welfare at the top of their priorities.
Baroness Manzoor (Con)
My Lords, can my noble friend say what action the Government are taking to work with local authorities so that they can help hard-to-reach communities? Not all communities are a homogenous group.
Lord Bethell
My noble friend is absolutely right. Work through the MHCLG is ongoing. The Department of Health does not lead in that matter, but I reassure her that, in matters such as social care, which is at the front of everyone’s minds, the work of local authorities will be absolutely essential, and they will play a key role on the front line of this epidemic.
Prisoners (Disclosure of Information About Victims) Bill
Tuesday 3rd March 2020
(4 years, 1 month ago)
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Supply and Appropriation (Anticipation and Adjustments) Bill
Tuesday 3rd March 2020
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Divorce, Dissolution and Separation Bill [HL]
Tuesday 3rd March 2020
(4 years, 1 month ago)
Lords ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 View all Divorce, Dissolution and Separation Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-I(Rev) Revised marshalled list for Committee - (2 Mar 2020)
Lord McColl of Dulwich
(2) The divorce process under subsection (1) consists of three stages and must be accompanied by—(a) for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably,(b) for the second stage, a statement by the applicant or applicants on applying for a conditional order asserting that the marriage has broken down irretrievably, and(c) for the third stage, an application for the final divorce.(3) The court dealing with an application under subsection (2)(c) must—(a) take the statement given under subsection (2)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(b) make a final divorce order.”
Lord McColl of Dulwich (Con)
My Lords, I am very pleased to speak to Amendment 1 in my name. The Government have said there should be a minimum timeframe between petition and conditional order
“to give couples sufficient time to consider the implications of the decision to divorce and to agree practical arrangements for the future.”
They acknowledged that this is especially important because the digitisation of the divorce process could result in some parties rushing to divorce before the prospect of reconciliation has been fully explored. Importantly, they argue that the minimum timeframe provides
“opportunities for couples to change course.”
There are 27 references to reconciliation in the Government’s document, which includes the statement:
“But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”
All of the Government’s sentiments about the proposed reforms sound well intentioned. However, proposed new Section 1(2) provides that a respondent who receives notice at the start of the divorce proceedings will do so with a statement from their spouse that
“the marriage has broken down irretrievably.”
The law is thereby designed to begin the divorce process with a statement that makes it inevitable. I cannot see how a respondent would feel that such a statement does indeed provide opportunities to change course. They will feel that the hammer has already fallen.
I do not believe that the wording of proposed new Section 1(2) is in any way consistent with the hopes for reconciliation expressed by the Government’s Reducing Family Conflict paper. A statement of irretrievable breakdown must clearly come at the end of the process, immediately prior to divorce, but designing the law in a way that asks one party to a marriage to make this very strong assertion right at the start of the divorce process is counterproductive.
Baroness Howe of Idlicote (CB)
My Lords, I am pleased to speak in support of Amendment 1 in the name of the noble Lord, Lord McColl, which I very much hope the Minister accepts. This amendment has two important virtues.
First, as has been noted, it creates an environment for the 20-week period during which there is a chance for genuine reconciliation. The divorces between 2003 to 2016 tell their own very important story. It must be right not to condemn the process to failure from the start by encouraging a statement of irretrievable breakdown without the need for any prior warning. Under the current law, the only way to move to irretrievable breakdown in the absence of unreasonable behaviour, such as adultery, is through a prolonged period of separation, such that a formal notice of divorce cannot come as a surprise. By contrast, under this Bill, being presented with a statement of irretrievable breakdown could be the first you know of a difficulty. How did such an extraordinary proposal get past the family test? I rather suspect that we are still waiting for the family test to take place.
The second virtue of this arrangement is that it treats the respondent with greater respect. One of the things that disturbs me most about this Bill is that it seems to have been fashioned with the interests of one party in mind—the petitioner—and demonstrates little or no regard for the respondent, or any children who might be caught up in the divorce process. It currently stands as a petitioner’s charter. The Bill gives the petitioner the power to suddenly announce that the marriage has broken down irretrievably, from which point there is absolutely nothing that the respondent can do to get any kind of fair hearing if they disagree. While this amendment does not completely reverse the shift in power from the respondent to the petitioner, it will at least give the respondent the opportunity to have a voice and express their perspective during the reflection period in the limited but important sense that the termination of the relationship is, for that time, not a foregone conclusion. The petitioner has made a statement that they think the relationship may have broken down but there is, in this statement, something of a question and an opportunity for the respondent to engage: they are not being presented with a fait accompli.
It may be that at the end of the 20-week period the response of the respondent has not resulted in the petitioner feeling that the marriage can continue. It may have brought them both to a place where they conclude that they need to make a statement of irretrievable breakdown but, crucially, the respondent will have been given a period of time during which they will be fully aware that the future of their marriage is in the balance and during which they can take steps, if they wish to do so, to see whether the relationship can be saved.
As our law, in providing the option of marriage, gives a couple the opportunity to make a lifelong commitment, something would be very wrong if that same law allowed one party to make without any prior warning a statement of irretrievable breakdown, from which point the other party would have no kind of credible voice to express a contrary view. This cannot be right, which is why I strongly support Amendment 1.
Baroness Butler-Sloss (CB)
My Lords, I was a family judge for 35 years and spent a great deal, if not most, of my time dealing with families who were divorcing. This is an excellent Bill and few of the amendments ought to go through, except for those of the noble Baroness, Lady Chakrabarti, on the Henry VIII clauses, which require consideration.
The view that I take about this Bill is strongly supported by Exeter University and the Nuffield Foundation’s detailed research, led by Professor Liz Trinder at Exeter, and by Resolution, which has 6,500 family solicitor members who care deeply about looking after their clients, as I know as an honorary member. I am sorry to disagree with the noble Lord, Lord McColl, and what has just been said, but the evidence from the research is that the majority of people know perfectly well when a marriage has irretrievably broken down. A respondent to whom such a matter comes as a complete surprise would be very much the exception.
The research shows that the current system, and any system that takes a long time, is likely to be adverse for the children. Children are extremely important and play an important part in the background to the Bill. One of its purposes is to get the divorce over so that children suffer less. There are various ways in which we could help the children more than we do, particularly through information. Parents who are deciding to divorce—the petitioner and the respondent—should be given an information pack which would explain the impact on the children of disagreements between the parents. Perhaps the most important thing I learned as a judge is that in almost every case the children love both parents, and if parents are seriously at odds with each other, they do not realise that the children love the other parent as much as they love them. Such an information pack would be extremely helpful.
The way in which the noble Lord, Lord McColl, wants to delay this is contrary to the current detailed research and earlier research in the 1980s and 1990s. All these amendments will not be helpful—other than, as I have said, the two amendments of the noble Baroness, Lady Chakrabarti—and I hope your Lordships will think that the Bill should go through largely unopposed.
Lord Morrow (DUP)
My Lords, I rise to speak in support of the amendment moved by the noble Lord, Lord McColl. I do so because I fear that a fundamental pessimism underpins Clause 1. It is an attitude that we have heard in speeches from Ministers and others to the effect that once a person files for divorce a marriage has by definition broken down. The Minister in the other place said that
“the moment one person decides that the marriage is over, it is indeed over.”—[Official Report, Commons, 25/6/19; col. 602.]
I question that. I do not think it is inevitable that a marriage, even one that has come to that point, is over. I prefer to allow room for reconciliation.
People can change their minds, and often do. Marriages can go through very rocky periods, yet come out the other side stronger than before. I am sure many noble Lords can think of examples. In my view, hope for reconciliation should be maintained for as long as possible, including into the divorce process. I believe reconciliation remains possible. I think that is borne out by the figures showing that each year the number of completed divorces is considerably lower than those applied for. At present, approximately 10% of divorce petitions that start each year are subsequently dropped. Couples do give their marriage another chance. I know that other explanations are offered for the shortfall: cross-petitions, petitions being re-filed on a different basis, and so on. I acknowledge all that, but are we really to believe that there are not some reconciliations within the thousands of divorces that do not complete? If there are any at all, they expose as false the assumption that divorce is inevitable after a divorce application is made. A Bill designed on that false assumption would clearly be flawed, so I am uncomfortable with Clause 1 as it stands.
At the very outset, the divorce process requires a definitive statement by the applicant or applicants that the marriage has broken down irretrievably. As I see it, that can serve only to close minds, inhibit dialogue and reduce the chance of reconciliation. The Minister in the other place described the 20-week period as “a period of reflection” but, under the Bill, the 20-week period starts out with assertion by one or both parties that the marriage has broken down irretrievably. That encourages not reflection but defeatism.
The modest change this amendment seeks to make is to reduce the sense of inevitability ever so slightly. Rather than applicants stating at the outset that the marriage has broken down irretrievably, they would have to state that it “may” have broken down irretrievably. Only at the stage of applying for the conditional order would we get to the assertion that the marriage has broken down irretrievably. This change would make the 20-week period one of genuine reflection in the hope of saving marriages. I believe it deserves noble Lords’ support, so I support the amendment.
Baroness Burt of Solihull (LD)
My Lords, I agree with the wise words of the noble and learned Baroness, Lady Butler-Sloss, and think that Amendment 1 is not helpful. It replaces the proof of irretrievable breakdown on the basis of a sworn statement at the outset, with that being proven only after a second sworn statement has been made after the time has elapsed for the conditional order to be made. I also dislike the wording,
“they think that the marriage may have broken down”.
It is a bit patronising. Leaving a further 20 weeks could make it more difficult for a spouse to leave an abusive relationship: “You only think our marriage is over, dear. Why don’t you come home with me and think again?” I realise that this is not consistent with my remarks at Second Reading when I spoke about periods of reflection, but I have had my own period of reflection in the intervening time. I have listened to the research findings already referred to by the noble and learned Baroness, such as those from the Finding Fault? study, which established that people do not initiate divorce proceedings unless they are sure that, for them, the marriage is over. We from these Benches will not support this amendment.
Baroness Shackleton of Belgravia (Con)
My Lords, I rise to support the noble and learned Baroness, Lady Butler-Sloss. I have been doing this work for 40 years. If the amendment is successful, people will file quicker: they know they will have to wait 20 weeks, or however many weeks, so they will put in their petition sooner. When a marriage has broken down, it is necessary to sort it out cleanly and without blame and delay. Delay causes grief. Uncertainty causes grief. Children get destroyed by uncertainty, which is why I have jointly tabled an amendment related to finance.
In relation to the breakdown of a marriage, I agree with the noble Baroness that it is patronising. It is not a charter for petitioners but a mutual charter to let people get divorced without the blame and shame of naming the person who is more at fault. For most marriages, it is not as simple as one party being 90% at fault and the other being 10% at fault, or one party being 100% at fault. There is mutual blame, so to suggest that that one party has to take the responsibility for being, effectively, the aggressor, causes grief. It causes grief to people who cannot operate on their own. Some people have the luxury of going to solicitors, but I really object to the suggestion that this is a solicitors’ or a lawyers’ charter to make money. When it is done online, it will be a great deal cheaper. There is a nice little industry in colluding with the solicitor on the other side to try to dream up grounds that neither party finds objectionable so that it can go through unopposed—but unfortunately, those grounds now have to be sufficiently serious to get past the very high bar that is being imposed, which means that blame has to be made. I do not see any benefit at all when one party—generally both parties—wants to get out of marriage in there being any further delays, so I do not support this amendment.
Lord Mackay of Clashfern (Con)
My Lords, I was not wishing to push myself forward too soon, but one has to look quite closely at the wording of this amendment, which says:
“The divorce process under subsection (1) consists of three stages and must be accompanied by … for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably.”
The general rule is that one applicant is sufficient, and therefore there is no question of a requirement that they should agree that the marriage has broken down irretrievably at that stage.
I have not been a family judge for 40 years, but I have been concerned with this matter for even longer than that. As I said at Second Reading, I was concerned with cases where there were long debates and proofs about who was responsible for the breakdown of the marriage. I never found them to be of any practical use: they did not reconcile people—very much the reverse—and they were absolutely useless.
I am as strong supporter of the institution of marriage as I can be, and I have made that plain. Indeed, so plain was it when I introduced the corresponding Bill 20 years ago that I was invited to be interviewed on the “Today” programme—Ministers went in those days—by no less a person than John Humphrys. One of the first questions that he asked was whether I would care to be called the “Minister for Marriage” instead of Lord Chancellor. That suggested pretty plainly that he thought that I was trying to support the ordinance of marriage as far as practicable.
The situation here is that you are asking for a divorce, not applying for a consideration of something else. What is a divorce? It is an order that finds that the marriage has broken down irretrievably. Therefore, if you are going to ask for that, you must ask for it. There is no sense in saying, “I’m considering whether I should apply.” You either do or do not apply. If you apply, the process starts. However, of course I am all in favour of the idea that during that process people might come together. That happens, and there is nothing in the Bill that I know of to discourage it, except possibly the length of time involved. As I understand it, the result of the consultation process was that it should be a year, but a period of six months was chosen for the Bill. When my Bill went forward, I chose a year and Parliament increased it to 18 months. So it is not the first time that an attempt has been made to lengthen that period—something that will be considered later. However, the amendment does not appear to me to be right. If you are asking for a divorce order, the statement must state the ground on which the law allows a divorce.
Sadly, I agree entirely with what the noble and learned Baroness said about the children. Over the years, my experience in talking about and dealing with this issue in various ways is that, generally speaking, the children are devoted to both parents. They love them both, and when the parents separate in life or in the way that they treat one another, it tears the heart of the children, which is a terrible result. It is important that, before parents get involved in divorce proceedings, they think seriously about the effect on their children. On the other hand, there is nothing worse for children than being in a situation where their parents are continually at loggerheads. Sadly, the institution of marriage is such that it requires the loyalty of both parents all the time. If that stops, the result is, sadly, inevitable.
I entirely accept that my noble friend Lord McColl and those who support him would like to see reconciliation. I am entirely in favour of that, but I think that reconciliation is sometimes assisted when the parties see that what is required is an answer to the situation—when the marriage has broken down irretrievably and they are prepared to reach a conciliation. That does happen and there is every reason to support it happening during the divorce procedure, but I do not think that you can start the divorce procedure on the basis that it is going to happen.
Lord Harries of Pentregarth (CB)
My Lords, leaving aside the fundamental principle behind this amendment, there seems to me to be a real weakness in the wording of the proposed new subsection (2)(a), which says that,
“they think that the marriage may have broken down irretrievably”.
That seems so vague and unsatisfactory. Does the noble Lord think that this amendment would be improved and be worth further serious discussion if it instead said that they “intend to apply for an order on the grounds that the marriage has broken down”—in other words, that the first application would be a statement of intent?
Lord Mackay of Clashfern
My Lords, the unfortunate thing about that is that it is the application: once you have applied, you have carried out the intent. It is an application for a divorce, and the divorce procedure lays out what has to happen before the divorce is granted. When you apply, you are applying for a divorce. I cannot see any other possible way of proceeding. It does not seem to make sense to say, “I was thinking of applying—I was thinking of suing you—but I am still considering the matter.” If you want an order, you have to ask for it. That is essentially why I think this amendment has grammatical difficulties but also an enormous underlying theoretical difficulty.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I support the amendment moved by the noble Lord, Lord McColl, and the remarks of my noble friend Lord Morrow.
I have never been a judge to grant people a divorce, but I have been a minister for over 50 years, marrying people and endeavouring to keep families together. I am delighted that, over those years, people have come to me with the intention of divorce but made another decision on reflection. To this day, they are very happy families. After reflection, speaking to me and receiving advice, they were able to make another decision and heal the breach in the relationship.
The Government were elected on a promise to strengthen families and acknowledge that a strong society needs strong families. To the best of my knowledge, there was no mention in the manifesto of the no-fault divorce. I believe that time for reflection would be helpful. I would like this Committee and the Government to consider the amendment that the noble Lord, Lord McColl, has brought before us.
Baroness Chakrabarti (Lab)
My Lords, I agree with the noble and learned Lord, Lord Mackay, not for the first time. I particularly want to associate myself with the very humble reflections of the noble Baroness, Lady Burt, and the unparalleled expertise of the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss. I do not want to repeat what has been said. However, I might shorten what I say about other amendments if I make a few comments now, because I think the noble and learned Baroness, Lady Butler-Sloss, is broadly right: this is a good Bill that will generally not benefit from much amendment, subject to concerns of the Delegated Powers Committee.
As was rehearsed by many in your Lordships’ House at Second Reading, divorce is not generally a happy matter. I suspect that it is mostly in Hollywood cinema that people celebrate and have parties upon divorce. I have heard of such things, but they are perhaps the exception and not the rule. This is therefore an unhappy subject and an unhappy moment in lots of people’s lives—as it happens, a very significant portion of the population. For some people, it is a story of liberation after trauma; for others, it will be a matter of loss and trauma. It is not a happy matter. The law should be about legal protection and not legal fiction.
I understand the sentiments of noble Lords who would like people to reflect before they put themselves through this trauma. But I would have more in common with that sentiment if we were seeking to provide counselling for every adolescent and adult in the country, or, indeed, if we were seeking to reinstate the availability of legal aid for people contemplating and going through divorce. In my experience, good family lawyers will always go through a process of reflection with their clients before advising them to go through this traumatic process. Those matters, unfortunately, are beyond the scope of the Bill—I know this because I had a go. I am told by the Public Bill Office that reinstating legal aid for people with contested contact matters is also unfortunately not in the Bill.
In the future, I would happily talk to any noble Lords who want to persuade the Government that legal aid should be reinstated, at least for matters concerning the children. That would be a very good thing. As I said to the Minister, who very kindly met me yesterday, it seems perverse that if the state seeks to take your children you have access to a lawyer, but if your ex-partner is depriving you of contact you do not. That is a real concern, as are the issues about adequate provision for counselling, mediation and so on; provision is needed. I do not see how people will reflect and reconcile when they have extra hoops to jump through by way of legal process. For that reason, I hope the noble Lord, Lord McColl, will think again about this amendment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, just as he did at Second Reading, the noble Lord, Lord McColl of Dulwich, has expressed his desire to ensure that those intent on divorce should have the opportunity to consider reconciliation. Of course, we agree with that, which is one reason we are building in a statutory pause: the new 20-week period between application and conditional order. It is also why we are retaining the two-stage order, as well as the bar on divorce applications in the first year of the marriage.
The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation. Indeed, analysis of court data by the Nuffield Foundation, referred to by the noble and learned Baroness, Lady Butler-Sloss, shows that the majority of non-completions are due to the technical difficulties of the legal process for unrepresented parties, the obstruction of respondents and, in some cases, protracted negotiations over finances. Indeed, a sample of 300 undefended cases were analysed, in which 51 were found not to have completed. Only one of those cases was identified as having ended in an attempted reconciliation. It is not only the recent Nuffield research that indicates this. Research undertaken by the University of Newcastle, following the Family Law Act 1996, also found that the decision to divorce was not taken lightly or impetuously; it was typically a protracted one based on months, if not years, of painful and difficult consideration.
I appreciate the intention behind the amendment; the noble Lord, Lord McColl of Dulwich, spoke of the profound importance of marriage to society and I could not possibly disagree with that. However, we believe that this amendment would have the potentially perverse effect of encouraging speculative applications. Someone facing marital difficulties might file an application saying, “I think my marriage may be over, though I’m not sure. I can always make my mind up after 20 weeks, or after as long as it takes.” As the noble Baronesses, Lady Burt and Lady Shackleton, observed, that is not the process that parties go through in reality. Indeed, as the noble and learned Lord, Lord Mackay of Clashfern, observed, it is inconsistent with the idea that you are applying on the grounds of irretrievable breakdown.
Applying for divorce should, of course, always be a last resort; certainly, we have seen no evidence that it is anything else. In the vast majority of cases, the applicant reaches the decision after considerable soul-searching and, indeed, after attempts have been made to mend difficulties in the marriage. It should never be seen as a warning shot. Divorce is not a remedy for marital difficulties; it is a remedy for a marriage that is no longer functioning because it has irretrievably broken down. It is right, we suggest, to continue to demand irretrievable breakdown at the point of the initial application as the grounds on which decree could then proceed. Of course, divorce should never be automatic, but again neither this Bill nor any other is going to make divorce easier for those affected by it.
We consider that the existing ground for divorce, namely irretrievable breakdown, should remain, and I urge the noble Lord to withdraw this amendment.
Lord McColl of Dulwich
My Lords, I am very grateful for all noble Lords who have taken part in this debate. I have been practising medicine for more years than I care to remember, and I have, almost every day, had to break bad news. I took a great deal of time to get over to medical students that this had to be done gently and with respect. Although my amendment does not seem to have much support, I hope that there is some way in which a person who wants a divorce can indicate to his partner what is in his mind long before he puts down an official request. Breaking bad news does not cost too much money. I beg leave to withdraw the amendment.
Baroness Howe of Idlicote
Member’s explanatory statement
This amendment would require the courts to take the wellbeing of any children in the family into account before granting a divorce order to end a marriage.
Baroness Howe of Idlicote
My Lords, I shall also speak to my Amendment 14 to Clause 3.
At Second Reading, I expressed concerns about how the proposals in this Bill would bring a profound shift in power from the respondent to the petitioner, because they propose that the petitioner should be able to initiate the divorce with no notice and that the respondent should have no right to contest.
Rather than exhibiting a balanced concern for both parties to the marriage, this Bill is, to a greater a degree than is wise, a petitioner’s charter. In its fervour to create a good outcome for the petitioner and the busy court system, however, this Bill demonstrates not only a lack of regard for the respondent but a complete lack of credible regard for any children involved.
We must not forget that this momentous life event we are debating in this Bill is not merely a life event for children but is officially classified as an ACE—an adverse childhood experience. Adverse childhood experiences greatly increase the likelihood of children facing damaging impacts on health and other social outcomes, such as alcoholism, misuse of prescription drugs, depression, heart disease and intimate partner violence.
My concern in tabling my amendment is that we must have the best interests of the children at the forefront of our thinking, not the objective of delivering the petitioner his divorce as quickly as possible. I am, of course, very aware that some have sought to argue that the proposals in this Bill—in removing fault—are motivated by a desire to minimise acrimony and to make the divorce process as amicable as possible, precisely because this will help any children involved. As I will demonstrate, however, this assertion, which at first glance seems to make sense, is in fact deeply problematic.
First, we need to understand that the vast majority of marriages that end at the moment are already low in conflict. Data from the survey Understanding Society shows that high-conflict warring couples are a rarity among married couples who split in the UK, comprising only 9% of those who split up. In contrast, 60% of married couples who split up were low-conflict and had reported a degree of happiness. Notwithstanding this fact, however, Judith Wallerstein, who conducted a 25-year study on the impact of divorce on children concluded:
“Findings from this study challenge the central assumption of our court policy: namely, that if parents refrain from conflict, issues around custody, contact, and economic support will be settled expeditiously, both parents will resume their parenting roles, and the child will resume her normal developmental progress. But it is manifestly misguided to expect that muting conflict between divorced parents by itself will reinstate the course of parenting observed in intact families.”
Lord Framlingham (Con)
I entirely support the amendment of the noble Baroness. Does she agree that while we talk about the reasons for the mental health of young people, austerity, local councils and educational support, we rarely talk about family? We never talk about parents and we never talk about absent fathers. Does she agree that as a country we are in grave danger of completely ignoring the huge distress and permanent damage done to children every year?
Baroness Howe of Idlicote
I entirely and completely agree with the noble Lord.
Baroness Shackleton of Belgravia
Some of the damage could be avoided by proper education before people have children, to avoid the distress of having children with the wrong person. There is very little education in school to support that.
Baroness Meyer (Con)
My Lords, I will speak to Amendments 2 and 14, in my name and that of the noble Baroness, Lady Howe of Idlicote. Before I do so, I welcome the new concept of divorce by mutual decision through a joint application. Anything that reduces the stress, cost and emotional aggravation of a broken-down relationship must be for the good. In previous debates, many noble Lords have attested to the psychological and emotional damage done to children from broken homes. It is one of the Bill’s strengths that a joint application keeps the door open to reconciliation. I very much support the amendment to Clause 1 tabled by the noble and right reverend Lord, Lord Harries of Pentregarth, for the court to send information about mediation and relationship support services, as this could result in reconciliation, particularly in this type of divorce.
However, there is another dimension to the Bill which has made me really anxious: the treatment of divorce instigated by one party alone. In contrast to the provisions of divorce by mutual decision, the possibility for one party unilaterally to apply for divorce is a step backwards, at odds with our manifesto commitment to strengthen families. As I see it, the Bill’s fundamental weakness, as repeated by noble Lords many times in previous debates, is to discriminate in favour of the applicant against the recipient. I call them the recipient because this person has no right to respond. In practice, it would allow divorce by unilateral denunciation. It removes all rights and protections from the recipient and ignores two of the most contentious issues when a marriage breaks down: the financial settlement and arrangements for the children.
It could result in a situation where the recipient is left without financial provision and even access to his or her children, tantamount in extreme cases to parental abduction. This is unacceptable. It would contravene the UN Convention on the Rights of the Child to see and have access to both parents. It is also especially cruel to those of modest means who cannot afford to hire a lawyer to try to remedy the situation. It is hard to see how such a narrow focus on divorce, excluding money and children, can be justified when they are inextricably linked.
The Bill claims to remove family conflict as much as possible when reconciliation is impossible, but you do not need to go through a contentious divorce, as I have—some noble and learned Lords in this House know about my case—to know that the greatest source of conflict between couples is not about whether or not you want to divorce but about financial settlements and with whom and where the children will live. This is the moment when children really become embroiled in litigation between their parents and find themselves put in an impossible position. This is particularly so today, as children are more and more involved in court proceedings. Judges tend to interview them to find out how they feel and with which parent they want to live —in other words, asking children to choose between their parents. This can often lead to one parent manipulating the child against the other parent, so that when the child speaks in court, they will say bad things about the other parent. Sometimes children are even convinced that they have been sexually abused by one parent.
I speak from experience. I am not a judge; I have not been looking at other people’s cases from the outside. I have been on the inside: I founded a charity called Action Against Abduction. I have spoken to many parents and, indeed, adult children who have grown up after horrible experiences when they were young. We made a documentary about it, and I can tell noble Lords—and this is why I feel quite strongly about the Bill—that the effect on children is devastating. The point about the Bill is that it is fine if people agree, but that does not apply to everybody. The law should protect the most vulnerable, and the most vulnerable are the children. The most complicated cases are those in which parents do not agree. Giving one parent the right to divorce without the courts having even looked at the financial situation or the welfare of the children is very difficult. I hope most noble Lords will help me support this amendment.
Baroness Butler-Sloss
My Lords, I absolutely disagree that this is a petitioner’s charter. It is a way of bringing a failed marriage to an end. If noble Lords think about it, if one member of a couple says, “This marriage is at an end; in my view it has irretrievably broken down,” what on earth can you do about it? I am not sure whether noble Lords who have been speaking are expecting a couple who cannot get on to go on living together. If one side says that it is at an end, there is no longer a consensual marriage. Having been happily married for many, many years—
Lord Framlingham
Is the noble and learned Baroness actually saying that there is no possibility of that person changing their mind?
Baroness Butler-Sloss
Of course there are wonderful situations where reasonable couples talk it through and decide not to do it, whether for themselves or for their children. In some cases, that works and in some cases it does not. But there is no doubt that there are many, many people who seek to bring a marriage to an end because, from the point of view of that person, their marriage is no longer one that that they can endure. A lot of people leave. In the famous Owens divorce case that went to the Supreme Court, the couple are still married because five years is not up and there was no consent by the husband. The wife did not stay: she is not living with the husband who would not allow a divorce; she has moved out. There they are living separately, but not divorcing. Is that a happy situation?
The Bill is not a petitioner’s charter; it is an opportunity taken by the Government—and I congratulate them—to deal with the very important research that shows that unhappy marriages are not good for children. I do not understand how, if a couple do not get on, or if it is a case of domestic abuse—and we know how serious domestic abuse is—and the victim of the abuse wants to bring it to an end, they should not be allowed to do so. I cannot believe what is happening to the children while she—it is usually a she, but not always—remains in the house with the children and the domestic abuser. There is a great deal of evidence about that.
Fortunately, most parents, when they bring their marriage to an end, are civilised about it and about the children. The important thing about this Bill is that it is dealing with the issue of divorce and leaving the two extremely important issues—the most important issues of all—of what happens to the children and the financial outcome to be dealt with, I hope, in further legislation. The issue of children does not have to be dealt with in further legislation; the various Children Acts have dealt with that, whether they are the children of those who are married or of those who are not. Finance desperately needs changing—I suspect that the noble Baroness, Lady Shackleton, will say more about that today. It absolutely needs to be looked at, and I hope that the Government will go for a consultation paper on how we can improve legislation that dates back to as long ago as 1973, and which certainly needs an update. However, that is not a reason not to have the Bill.
Baroness Shackleton of Belgravia
This is not about the finances. When the noble and learned Lord, Lord Mackay, brought in the Children Act, it took away the stigma of custody. That Act as been a godsend to all of us, as we do not have to identify which party has care and control—custody. It has been the most enormous success, for which everybody who practises in this field is eternally grateful. I suspect that it was considered very novel at the time.
People forget that most responsible solicitors, when somebody who wants a divorce comes to see them, go through with their clients the possibility of not getting a divorce. I believe passionately in marriage—I am a patron of the Marriage Foundation, which supports the Bill—but by the time somebody wants out, they want out. I cannot tell your Lordships how many people are shocked when I say to them, “Are you sure you really want this? It’s not necessarily greener on the other side.” They say, “Do you really think I saved up the courage to come and see you to be told to go back and try a bit harder?” Once the game is up and the marriage is over—once it is dead—clinging on to it is not in the children’s interest at all. People need to move on. You cannot make somebody who is unhappy happy. It takes one person to make the marriage unhappy and two people to make it happy. The Bill goes some way towards addressing that problem.
Baroness Butler-Sloss
I will just finish with the two further points I wanted to make.
On the amendment moved by the noble Baroness, Lady Howe, with which, as noble Lords may have gathered, I do not agree, I cannot see how a court can adequately assess whether the children will be better off if the parents, one of whom wants a divorce, are still together or separated. There will be a difficult balancing act for the judge, and it will take a long time, because the family courts are seriously overburdened. How on earth will you find time to do this, and between a couple who will not be represented? As the noble Baroness, Lady Chakrabarti, said, there is no legal aid for couples who divorce, so the judge will have two people at odds with each other, with one or perhaps both determined to be divorced, and the children in the middle. The children ought to be informed of what is going on, but very often they are not. They need help at that time from parents who do not realise that they need help, and they particularly need information. But how on earth is the judge—or the magistrates, but in particular the judge—to say to the couple, “What is going to happen if you’re together or if you’re parted? How on earth am I to find out which way the children would want it to be?”? Particularly in cases where there is domestic abuse, the sooner that couple is parted, the better. So I am very concerned about this proposal.
Of course, we should be very careful about what we do regarding the welfare of children. However, research from the University of Exeter and the Nuffield Foundation found that where the parents cannot agree, very often the children would be better off by having them separate, and what their future ought to be can then be dealt with under the Children Acts.
Baroness Burt of Solihull
My Lords, I can see the sentiment behind considering the interests of the children in this matter. We will all have been moved by the testimony of the noble Baroness, Lady Meyer, about the terrible experience that she and her children underwent, but this amendment would hand the court the impossible task of deciding what is in the children’s interests without the mechanisms to do so, as the noble and learned Baroness, Lady Butler-Sloss, just said.
How would you implement a judgment forcing parents to stay together in the children’s interests? You cannot force a couple to stay together any more than you can order warring parents to create a loving environment. I hope that we are past the stage where parents stay together for the sake of the children—unless it is a mutual voluntary agreement—because, on the whole, that has been shown to do more harm than good. Children may fare better from having two loving parents who live in different places, often with different families of all kinds. Love and the secure knowledge that they are loved are what matters, no matter who makes up their family. Research has shown that parents are usually the best judge of what is in their children’s interests. Where this is not feasible, the family courts are there to help.
I am afraid that we will not support the amendment from these Benches.
Lord Browne of Belmont (DUP)
My Lords, I am pleased to support Amendments 2 and 14 in the name of the noble Baroness, Lady Howe.
I note with interest that these amendments were tabled in the last Session in another place by the right honourable Frank Field, who served with great distinction from 1979 until last November as the Member of Parliament for Birkenhead. He made a significant contribution to children’s issues and chaired the Field review on early years intervention. I am sure he will be pleased that the noble Baroness has taken up these amendments, which could not be debated in the other place.
Divorce affects a community: the adults involved, their friends and families and, of course, the children. The likelihood is that the effects on most children will be long-lasting. Children have to watch their parents go through a divorce, then continue their lives afterward. The research base demonstrating the damage to children from divorce is so widespread—the fact that it is now recognised as an adverse children experience, or ACE, has already been alluded to—that I will not detain the House by looking at it in any detail other than to note that family breakdown is now recognised as the biggest factor behind the UK’s child mental health crisis. More than a third of children whose parents had split up reported poor mental health, compared with a fifth of children with parents who were still together. Moreover, Hetherington and Kelly’s research interviewing the children of divorce later in life revealed that 20% to 25% of children of divorce continue to suffer lasting social and psychological problems in adulthood, compared with just 10% of children from intact families.
The fact is that, after a divorce, children find themselves in a difficult situation. As has been referred to, Cockett and Tripp’s work in The Exeter Family Study demonstrates how divorce changes family life. Their research showed that in parental conflict during marriage, the child may be able to remain on the sidelines, whereas after divorce, they may be obliged to take a central role; for example, carrying messages between resident and non-resident parents who find that they are unable to communicate face to face. Children in re-ordered families reported that their parents frequently told tales about each other or each other’s new partners. Children also sometimes felt that they had to suppress telling one parent about enjoyable times they had had with the other, or had actually been asked by one parent to keep something secret from their former partner.
Inevitably, the child’s relationship with their parents changes; for example, one may move away and the other may become more prominent in their life while finding their own way after the divorce, potentially with less financial resources. The child might find that they have to move to be with a parent and change school. A recent article on parental divorce or separation and children’s mental health said:
“Marital instability presents not a single risk factor, but a cascade of sequelae for children.”
Baroness Meyer
My Lords, I will make one correction. This amendment is not about forcing parents to stay together. It asks for the courts to be satisfied that the well-being of the children has been considered before the final divorce is granted.
Baroness Benjamin (LD)
My Lords, I support Amendments 2 and 4. First, I would like to say how much I agree with the noble Baroness, Lady Shackleton, when she talks about education, because I too have been an advocate and supporter of education on marriage, parenting and relationships for many years. I believe that it would make such a difference to the outcome of the pain and suffering that too many people go through, and which directly affects children.
However, in all our debates on the Bill we must not forget children. They are innocent parties in family break-ups, and everything we decide in this House, or in the other place, must not neglect their interests. So much of our family policy is built on the principle of what is in the best interests of the child. But when it comes to divorce, which can be devastating for children, the focus is too often solely on the interests of adults. This is why I am supporting these amendments.
The stated aim of the Bill is to reduce acrimony in divorce proceedings. The former Minister of Justice stated in the Government’s response to the consultation in April 2019 that this will
“support better outcomes for children.”—[Official Report, Commons, 9/4/19; col. 8WS.]
Supporters of the Bill claim that children of married parents who argue will be better off if their parents can divorce more easily, without having to allege fault. The logic is that parents continuing their marriage is more damaging to children than simply ending the relationship. The truth is that children need not be involved in any consideration of fault, but they are necessarily involved in the fact of divorce. It is the fact of divorce, not the process, that is harmful to children.
The Exeter Family Study found that divorce does not usually reduce conflict for the children. In fact, the opposite is true. The study says that
“the experience of most children whose parents have divorced is of increased conflict over an extended period, with the child involved to an extent that may not have been the case while the marriage lasted.”
Once parents have officially split, the door is open to children being the subject of disagreements in a way they never were before. These findings are corroborated by a US study that shows that children suffer negative consequences even if their parents divorce amicably. The authors express concern that
“some parents are lulled into believing”
that a good divorce will mean
“that their children are adequately protected from all of the potential risks of union disruption.”
There are of course exceptions, where divorce is the only and best alternative, especially when it comes to domestic violence and abuse. However, there is so much research that shows the benefits for children of living with their married parents, and the harm the divorce does to children. For example, having married parents increases the chances of getting a university degree. It is better for teenagers’ mental health and increases a person’s chances of getting married themselves. Young people whose parents separate are much more likely to become homeless and get into trouble with the law. Behavioural and emotional problems are also more likely to be found in children from broken homes.
There have been studies suggesting that children suffer more from divorce than from the death of a parent, and that this continues long term. Various reasons are offered for this. One is that divorce is seen as a choice. From a child’s perspective, their parent chooses to leave them, resulting in a sense of deliberate abandonment. There is also the ongoing yearning for reconciliation, while death is final. Children often cling for many years to the hope of their parents reconciling, causing reoccurring disappointment. I state all this to emphasise the importance of children’s interests in these debates. They should be front and centre in decisions about divorce, including in the court’s consideration of a divorce application.
I fear that this Bill will make divorce quicker and easier, leaving less time and motivation to compromise or attempt to reconcile—and children will suffer. I believe that these amendments help to focus on these innocent victims—because, remember, childhood lasts a lifetime.
Lord Mackay of Clashfern
My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.
I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.
I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.
Baroness Chakrabarti
My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.
However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.
Lord Keen of Elie
My Lords, I begin by correcting a misapprehension disclosed by a number of noble Lords. We have produced a family impact assessment in respect of the Bill. Indeed, it was published with the Bill and can be found on GOV.UK. I invite those noble Lords who expressed an interest to have regard to that.
I have no doubt that this amendment is well intentioned, but its effects could be quite draconian. It would in effect require the court to weigh up whether the interests of the marriage’s children should override the autonomous decision of one parent—or indeed both parents, in a joint application—to seek a divorce. It could result in a parent being trapped in a failed or even abusive marriage. It could also reintroduce contested divorce in cases where there are children, because it would allow a parent to put forward arguments that divorce is not in the children’s best interests. It is difficult to see how this would serve the best interests of the children or even the parents. Indeed, this amendment could cause a worsened parental conflict through the legal process of divorce, with further damaging consequences for the children involved.
I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.
Baroness Howe of Idlicote
My Lords, I am most grateful to all noble Lords who have taken part in this debate, which has been extremely interesting and wide-ranging. Despite what has been said, the role of children and the effect on them of divorce proceedings would not have had anything like the prominence that it has had but for this amendment. I did not realise that the family test assessment is available; I was going to suggest having a meeting before Report with that as a central feature. Maybe noble Lords on all sides of the argument could come together. Clearly, we need to discuss all this on Report. All noble Lords who have taken part, with their very strong feelings and differing views, must be glad that children are a central part of all the proceedings. With that in mind, unless the Minister would like meetings for further discussion before Report, I will withdraw the amendment.
Lord Keen of Elie
I am perfectly happy to have meetings on this or any other issues that may arise before Report, and to have the relevant officials present. I hope I have expressed clearly our position regarding the distinction between the divorce process and the interests of children, but I am perfectly content to have a meeting.
Baroness Howe of Idlicote
It would be desirable to have some meetings. Under the circumstances, I beg leave to withdraw my amendment.
“( ) send, to the applicant and to the other party to the marriage, information about—(i) relationship support services, and(ii) mediation services,”Member’s explanatory statement
This amendment seeks to ensure that divorcing couples have access to information about relationship support and mediation so that they can think again about the best way forward before being issued a final divorce order.
Lord Harries of Pentregarth
My Lords, this is a very simple amendment designed to give those divorcing or separating some basic information. It would require a court to
“send, to the applicant and to the other party to the marriage, information about—(i) relationship support services and, (ii) mediation services”.
As I mentioned at Second Reading, the concept of irreversible breakdown as a basis for divorce goes back to the recommendation of a Church of England Commission in 1966, which was accepted by the Law Commission in the same year and passed into law. Since then, however, up to the present time, as we know, it has been necessary to provide evidence of that breakdown, either by a period of separation or behaviour. Thirty years later, the Family Law Bill, introduced by the noble and learned Lord, Lord Mackay of Clashfern, in 1996, sought to do away with those tests. I strongly supported that Bill, but it met fierce opposition at the time, although it was finally passed by both Houses of Parliament.
The reason why many people who might otherwise have opposed that Bill did in the end support it, was the key role played by information sessions in the process of divorce. These involved meetings with the divorcing couple, who had the opportunity to avail themselves of relationship support or mediation should they need it. Though, as I say, that Bill was passed, it was not implemented by the incoming Labour Government and was eventually repealed. One reason for its repeal was that the information sessions as initially conceived were judged unable to achieve the objectives for which they were set up. Six pilot programmes were tried but none was judged successful.
It is clear that doing away with the need to provide objective evidence of breakdown is much more widely supported now than it was in 1996—and that is a good thing—and in the light of experience this Bill has much broader support now than it did then. However, we should not lose sight of the fact that while most divorces rightly go through, there are some marriages that can and should be held together even at a late stage of the process, or that might benefit from mediation.
I believe that the role of lawyers is essential in most marriage break-ups. However, the process appears from the outside to be essentially adversarial. A recent film now available on Netflix—“Marriage Story”—shows the process at work. It does not, I am afraid, depict lawyers in a very pretty light. As one lawyer in the film says, “If you start from a place of reasonable and they start from a place of crazy, when we settle we’ll be somewhere between reasonable and crazy”. The point is, of course, that both sides will think that they are reasonable and the other side is crazy. Yet, even in that unhappy story, one has to admit that the wife, in the end, benefited from having the issue settled by a court.
That said, I was talking recently to a friend about the Bill at present before the House. She revealed that she was a lawyer and that her first job in a law firm was dealing with divorces because, as she said, that was the sort of work thought appropriate to women in those days. She tried with her clients first to get them talking and exploring what they really wanted—in other words, she did what the noble Baroness, Lady Shackleton, said all good solicitors should do. Eventually, she was very surprised to be hauled in by her bosses and told that she was being transferred to another branch of the law as she was losing the firm too much money. I assure noble Lords that I did not make that up; it emerged spontaneously out of the blue and I was rather surprised. I quote it not as an anti-lawyer statement—I do not want to be a Daniel in a den of lawyers, because there are so many lawyers in the House that we feel inadequate anyway about not being a lawyer. The point I am making is that there are other ways forward and it is important that a divorcing couple of fully aware of this, even at a late stage.
The noble Lord, Lord McNally, for the coalition Government, told the House in 2013:
“The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce.”—[Official Report, 23/10/13; col. GC 365.]
I agree that this is likely to be a true reading of the situation, but the phrase the noble Lord used was “for most people”—it is not all people. There is a minority for whom, even at a late stage, there might be a better way forward. Nor is the conclusion the noble Lord drew from the other point as useless as he suggested. It caused, he said, some parties who were uncertain about their marriage to be more inclined towards divorce. The proper conclusion to be drawn from this is that, if it was right for them to divorce, a final chance to have this conviction strengthened is a good thing. We want couples to be clear about what they want after a final chance to consider the options before them.
As I say, I am not arguing for a reinstatement of the information sessions of the 1996 Act. It would be unrealistic to do so. However, what I am proposing is simple and cheap: it simply requires the court to send both parties some basic information which, I imagine, would be provided at no cost by the relationship support and mediation services. Those who receive such information might glance at it and throw it in the wastepaper basket; others might read it carefully and conclude that it is not for them—they are clear that divorce is the right way forward. There will be some, however, who read the information not having properly considered options other than divorce, and who wish to follow this information up.
Society has a big stake in stable marriages and stable civil partnerships. Divorce or separation is sometimes absolutely necessary and essential, but, if there is a chance of a few marriages that would otherwise split up being saved by the simple provision of information, this chance should be taken. I beg to move.
Baroness Meacher (CB)
My Lords, I shall speak briefly to Amendment 3. I regret to speak in disagreement with the noble Lord, Lord McColl, for whom I have great respect. I also have some disagreement with my noble and right reverend friend Lord Harries.
Amendment 3 is, like Amendment 1, based on the assumption that, even after divorce proceedings are under way, there is a reasonable number of couples who can be reconciled. My reading of the research on this issue suggests that such reconciliation is rare once divorce proceedings are under way. Nobody starts divorce proceedings unless they are pretty desperate.
Having provided relationship support services as a social worker many decades, never mind many years, ago, I am, of course, a supporter of this approach to marriage problems. However, in response to this amendment, I suggest that a couple would benefit far more from such a service long before either parent considers divorce. A divorce petition is sought only once at least one of the partners is clear that the relationship has broken down irretrievably. It is very likely, although it is not always the case, that one partner will by that time be well involved with a third party and have little interest in perpetuating the marriage. At that stage reconciliation is very unlikely, although of course it is possible.
Lord Farmer (Con)
My Lords, I shall speak to Amendment 21, which is grouped with Amendment 3. It is also about marriage counselling once the application for divorce has been made. My amendment requires the Government to offer relationship and marriage counselling before and during the divorce procedure.
Marriage is the specific relationship form being directly affected by the Bill so it should be the focus of additional support. Much weight has been put on the evidence from research at the University of Exeter funded by the Nuffield Foundation, Finding Fault? It describes itself as the first empirical study since the 1980s of how the divorce law in England and Wales is operating. It is a piece of grey literature—that is, it has not been peer reviewed. The Government very rarely act on single studies, especially those that have not been peer reviewed by academics from other universities, which often challenge the conclusions of whichever study it is. The reliance of the Government and noble Lords on this research is surprising, to say the least. In reality, it is one study with 81 interviews and an analysis of 300 divorces. There was a survey in which around half the participants were divorcees and the other half were nationally representative: 71% of them supported retaining fault, which was ignored. I put that at the beginning of what I am saying because, in the Government’s argument, an awful lot of weight is being put on this research.
In the early 2000s, there was a healthy marriage initiative in the United States. Many of the programmes were focused on unmarried couples. It taught them the basics of commitment and how to resolve conflict and brought many to a point where they perhaps knew enough to separate because they realised the relationship did not have a future, or where both partners felt able to make the formal commitment of marriage. I notice a right reverend Prelate is in his place. The Church of England and many other churches run good marriage preparation courses which go into gritty detail of the problems that marriages can present.
Much has been said about the need to avoid the complexity of the Family Law Act. My amendment does not reintroduce information meetings, but makes it more likely that a couple who see no alternative to divorce, perhaps because both sides of the family have been through it, will, by going through counselling, have their eyes opened to the possibility that times can get better if you stick together. It allows people to reflect on the possible implications of what they are doing. Wealthy people can often access divorce consultants who dispassionately lay out the implications of staying together or splitting up. Many people pull back when they have someone dispassionately explain to them, for example, what has been termed the indissolubility of parenthood—that their relationships with their children, which the vast majority are absolutely determined to maintain, will require them to have ongoing relations with their ex-spouse not only to ensure the smooth running of day-to-day contact arrangements, but to negotiate every future major family event.
Professor Janet Walker led the evaluations of the pilots following the passage of the Family Law Act 1996. She interviewed more than 6,000 people. She commented that funding for relationship services was identified as a necessary part of divorce reform during the passage of the Family Law Bill and remains necessary today. She goes on to say that knowledge and understanding of what works in supporting relationships at times of change, challenge and crisis has also grown, and it is apparent that early intervention to support relationships increases opportunities for relationship ruptures to be repaired and for partnerships to thrive and endure. Therefore, we need to be sure that the opportunity to seek support is provided when relationships begin to deteriorate as well as in the period after an application for divorce is made, when the focus is likely to be on helping couples to reduce conflict and to focus on the ways in which they will continue to parent in a life apart. Relationship support, she says, must be accessible, affordable and available when it is first needed and at any time when families are seeking to repair or manage difficult relationships. In a follow-up study, which involved over 1,500 people, she found that, two years on from divorce, many people wished they had been warned beforehand of the harsh realities of post-separation life. If they had been forewarned, they might have sought reconciliation. They now have to work harder than ever to get on with their ex, given the need to maintain harmonious arrangements around finances and children.
US researchers, in the early 2000s, found that people who are unhappy in their marriage are more likely to be happy five years later if they did not divorce than if they did. Two out of three who were unhappily married but avoided divorce ended up happily married after five years. The problem is that, in our society, it is still stigmatised to ask for help with one’s couple relationship. When he was on “Desert Island Discs”, the American ambassador to the UK, Matthew Barzun, was very up front about the ongoing relationship counselling he and his wife had to maintain a good status quo in their relationship. Let us hope he is an early adopter, but the broad culture is not there yet. Marriage support and counselling can create a context where the root of the conflict can be addressed and terminated, rather than the relationship itself.
Lord Mackay of Clashfern
My Lords, I support both amendments. I want to look at Amendment 21 first; it contains a reference to Section 22 of the Family Law Act 1996 and one of the provisions supported by Professor Walker in the passage that my noble friend quoted. I regard it as absolutely essential that the Government should support families in difficulties. There are plenty of reasons for difficulty in family relationships, perhaps more than there were. But in any case, whether that is so or not, there are still difficulties, and help in overcoming these is essential as early as possible. Amendment 21 deals with Section 22 and the need for counselling in relation to the later stage.
I also support the provisions in Amendment 3, which are a last resort. It is so important that people really consider what is happening and get what help they can before it happens. The idea that it is always too late is not quite right. Sometimes reconciliation can come quite late—and better late than never—which is what Amendment 3 supports. The noble and right reverend Lord, Lord Harries of Pentregarth, was Bishop of Oxford when the 1996 Act was considered and ultimately passed. I think it was he who put this amendment in form first. The Government fully supported it, as I do now. I also support its continuation, which is in the amendment.
There are some quite interesting amendments. Section 22 of the Act says:
“The Lord Chancellor may, with the approval of the Treasury”.
I am not sure why I had to put that text in the Bill, but it must have been part of the price I paid for getting that section into it, which remains law. The amount provided for it now has fallen. I would like to press on Her Majesty’s Government that one of the most important things for the present is that our family life is preserved and strengthened. I am sure that, as was said on earlier amendments, a good deal of difficulty has arisen from the failure to support family life in the way that the Government should. Therefore, I am very much in favour of Amendments 3 and 21.
Lord Browne of Belmont
My Lords, I am pleased to support Amendment 21 in the name of the noble Lord, Lord Farmer, which focuses on marriage support services. It requires the Secretary of State to make grants for marriage support services
“before and during a marriage.”
The public policy benefits of marriage are such that this is a very appropriate use of public funds. Indeed, in terms of the public finances, investment in relationships is good value for money. The estimated cost of family breakdown to the public purse is £51 billion a year. In January 2018, the Government said in another place that between April 2015 and March 2017 they had invested £17.5 million in relationship support services. That is a very small sum, given the scale of the costs of family breakdown. It is estimated that Relate’s couple counselling work delivers £11.40 of benefits for every £1 spent. Surely this should make the Chancellor consider upping the Government’s investment in supporting married couples and those in civil partnerships.
Baroness Tyler of Enfield (LD)
My Lords, I support Amendment 21, which aims to put relationship support funding on a firmer basis. At the outset I should declare an interest as a former chief executive and current vice-president of the relationship counselling charity Relate, and I am also a former chair of Cafcass.
Many of the reforms contained in the Bill are certainly to be welcomed, but—this is a real gap—the Bill is silent on the provision of relationship support, which in my view needs to be available much earlier in the process of relationship breakdown, as well as at the later stages, which we are very much focusing on today. As the noble and learned Lord, Lord Mackay, has already said, funding for relationship support services was identified as a necessary part of divorce reform during the passage of the Family Law Bill, and I agree with him that it remains just as necessary today. In fact, I should like, very briefly, to take us back to the Denning report of 1947. As Lord Denning said, there should be a marriage welfare service “sponsored by the State but not a State institution”. It should be a function of the state to support marriage guidance as a form of social service. I underline the words “as a form of social service” because they are germane to my argument.
Over the years, successive Governments have taken their responsibilities in this area seriously—to a greater or lesser extent, I contend—to ensure the availability of relationship support services for those who want and need them. It has been my personal experience that some Ministers and, indeed, some Prime Ministers have shown a much greater interest in this area than others: some have really wanted to champion the need for proper relationship support services, while others have taken much less interest. I think that it is genuinely a real problem that proper funding for relationship support—which I see as a core responsibility of government in providing necessary social services—has sometimes felt over the years as if it has come down to the whim of a particular Minister or Prime Minister.
Over the years, responsibility for funding relationship support services has moved between a large number of departments—frankly, having been quite involved in some of those moves, I feel that I could write a book on it. It currently rests with the DWP. Funding over that time has steadily been eroded and now focuses—very narrowly, I think—on interventions to do with workless households and helping to give support where there are high levels of parental conflict. I am not saying that there is anything wrong with focusing on high levels of parental conflict or workless households, but there is a much broader need to support relationships across the rest of the general population. This particularly helps families and children to thrive, which we discussed very eloquently in last Thursday’s debate.
I also feel that having properly functioning families with good relationships within them and trying to minimise relationship and family breakdown whenever we can is so fundamental to so many of the Government’s broader social policy objectives, be they in education, health or employment. It really deserves to be taken a lot more seriously than it sometimes feels that it is. It is clear that early intervention to support relationships—again, the subject of our debate last week—increases the chances for relationship difficulties at the early stages to be repaired. We therefore need to make sure that those chances to seek support are provided when a relationship begins to deteriorate, as well as in the period after an application for divorce is made, when the focus is likely to be on helping the couples to reduce conflict and on ways in which they can continue to successfully co-parent but live apart. Those things can have long-lasting benefits for children, particularly for their emotional well-being.
As has already been said by the noble Lord, Lord Farmer, relationship support must be accessible, affordable and available when it is needed to help families seeking to repair or manage relationship difficulties. This is a really key point for me: relationship counselling must not just be seen as a middle-class preserve. It has to be available and affordable for all, irrespective of income or ability to pay. As far as I am concerned, I have always seen the availability of relationship support services as a social justice issue.
Government funding for relationship support services must be recognised as an essential component of the Government’s new approach to divorce and separation if the aims of this Bill are to be fully recognised. The Government really must take core responsibility for ensuring that there is good relationship support available and not just see it as a fluffy little discretionary add-on.
The Lord Bishop of Salisbury
My Lords, I rise in support of Amendments 3 and 21 and to provide a brace of bishops. I want to observe the seriousness and the quality of this debate as we as a House navigate the support of marriage as an institution and of couples in keeping their vows while recognising that marriages break down and trying to provide adequately for those circumstances. If the noble Baroness, Lady Tyler, is right that support for the relationship support services sometimes depends on the whim of a Minister or Prime Minister, one might hope that the present occupant of 10 Downing Street would take a particular interest in these matters.
On average, the Church of England conducts about 1,000 weddings a week. We have experience of conducting, preparing people for and supporting them in marriages. Quite often, couples that I have prepared say that they want to get married in church because they know that they are standing and making their vows in a solemn and serious place that has significance in the community and before God. They want the support of the community gathered around them. In the modern marriage service, we say, “Will you support them in what they are doing?” The congregation comes back with, “We will”. The role of gathering around a couple to support them in keeping what we know to be quite difficult things to keep is a very significant part of the service. Marriage is a gift of God in creation. A marriage in civil ceremony is, therefore, as big a deal. That means that we need to gather around these couples too and support them in upholding their vows.
However, marriages break down. That is costly in the way that the noble Lord, Lord Browne, itemised; there is a financial cost to society. It is also emotionally costly to the individuals in the couples. This is not done lightly: there is a real cost to this, as well as a financial cost to the family concerned. It needs good support to wrap around it. Tolstoy observed that all happy families are alike; each unhappy family is unhappy in is own way. That is a good reason for saying that the support of marriages is complex and that we need to put in relationship counselling provision early on to support that.
Both amendments seem valuable to me for the support that they give individuals but also because they make a point in a Bill that, as my right reverend friend the Bishop of Portsmouth observed at Second Reading, might better be focused on kinder divorce rather than easier divorce. Through these amendments, we would be making a statement about the seriousness and importance of marriage, and the support that needs to be wrapped around it, both at an earlier stage and, by noting the availability of resources, at this last stage before the matter is finalised.
Baroness Burt of Solihull
My Lords, I am fully in support of having strong support services for couples but, by the time they decide to divorce, I would suggest that that stage is passed and it is already too late for conciliation, as the noble Baroness, Lady Meacher, has pointed out.
I totally support Amendment 21 and the comments of my noble friend Lady Tyler. It is just the question of timing that I dispute. Professor Liz Trinder points out that practical help and advice would be of value, and financial help for these services would be most welcome, especially on benefits, housing and child support. In the vast majority of cases, mediation would not only be too late, it could be harmful. The Finding Fault? study found that more than a third of behaviour divorces included allegations of domestic abuse, some of an extremely serious nature. Why would you give the perpetrator a golden opportunity to browbeat—or worse—the victim by suggesting that the marriage may not be over, and present the spectre of having to return to the site of the abuse?
We on these Benches will not support the amendments other than Amendment 21, well intentioned though we believe they are.
Lord Morrow (DUP)
My Lords, I rise to speak in support of Amendment 21 tabled by the noble Lord, Lord Farmer, and the noble and learned Lord, Lord Mackay of Clashfern.
The Bill’s family impact test issued by the Ministry of Justice stresses multiple times that a central policy intention behind the legislation is to promote opportunities for reconciliation where that is possible. I admire the stated aim, but this amendment reflects the view that the Bill as it currently stands lacks ambition in this respect. Without funding for essential marriage support services, this policy goal will mean little to struggling families across the country. Families who desperately want to stay together, but are at a loss as to how to move forward, need support. It is one thing to provide an opportunity for reconciliation, but another thing entirely to provide a means of reconciliation.
According to Relate, the UK’s largest provider of relationship support:
“Evidence suggests that low income families are likely to experience increased strains on their relationships because of financial pressures. Their financial vulnerability also means they are less able to afford relationship support.”
This may well be having a very real bearing on family breakdown statistics. By the age of five, almost half of children in low-income households have seen their families break apart, compared to only 16% of children in higher-income households. Funding for counselling services could make all the difference to families who struggle to get by financially—families like Laura’s, on a household income of £16,000 per year, who told Relate:
“I want my husband and I to stay together because I know we truly love each other, as well as for the sake of the family, but desperate situations push people towards desperate measures, such as contemplating divorce. I am trying to stay strong for my family by blocking things out emotionally, which I know isn’t healthy but I have nowhere to turn. What we need is to speak to somebody objective who can help us to find a way forward. I agree there should be more funding for relationship support—healthy relationships create healthy families which in turn creates healthy citizens.”
Unfortunately, loving someone is not always enough and there may come a time where we all need more support and guidance. In a context where the Government are moving to reduce the time for reconciliation by promoting divorce within six months, it is vital that we invest more in marriage support and focus some of that money specifically on the shortened divorce process. This amendment rises to this challenge and is particularly important because, unbelievably, answers to Parliamentary Questions reveal that the Government are not allocating any funds for marriage support through Section 22. This is extraordinary, especially when we consider previous government undertakings in this regard. On 1 February 2017, for example, the Minister in the other place stated that
“the Department intends to continue to work very hard to ensure that marriage gets the support it needs to continue being a strong bedrock for the families and the children for whom we want to secure the best possible outcomes in the future.”—[Official Report, Commons, 21/02/17; col. 389WH.]
It also makes no sense. The Relationships Foundation’s Cost of Family Failure Index in 2018 estimated the annual cost to the Government of family or relationship breakdown to stand at £51 billion—my colleague and noble friend Lord Browne has already referred to this figure—which is up from £37 billion 10 years ago. The scale of this crisis demonstrates that proper investment in marriage support services is long overdue. The move would also be in line with public opinion. ComRes polling from 2017 showed that 76% of British adults believe that extra money should be spent strengthening families.
In this context, where the Government are proposing to reduce the time for divorce and thus reduce the opportunity for reconciliation within divorce, it is especially vital that they now adopt a new approach to marriage support. Providing funding to parents in conflict, who do not have to be married, is no substitute for marriage support, which should not be limited to those who have children. We need a significant, serious focus on marriage support.
When difficulties arise in relationships, giving up often seems easier than going on. This Bill risks making giving up easier, while doing little to meaningfully support those who want to go on. It communicates the message that marriage breakdown is often a sad inevitability and that, if you get to that point, the law will make it easier for you to “get the relationship over with”. I suggest to noble Lords that we can do better than that. Let us be a country that believes in fighting to rescue relationships, so that when they hit the rocks our response is not simply to mitigate the fallout, but to offer a lifeline of support to families in the form of counselling. Amendment 21, and indeed Amendment 3, will help us rise to this challenge. I very much hope that the Government will support this.
Lord McCrea of Magherafelt and Cookstown
My Lord, I support Amendment 21 and Amendment 3. Amendment 21 speaks about funding for marriage support services, and says:
“In subsection (1)(a), at the end insert ‘, both before and during a marriage’.”
The reality is that many young people are not really prepared for marriage. Many go into it with great expectations: that everything will be rosy, everything is going to be beautiful, and that they are going to have a great life. They do not realise that the reality of life for everyone can be facing difficulties and hardships—not only financially, but in family circumstances.
There are many reasons for family breakdown and, certainly, each one is a tragedy. There used to be an old statement in our home: “a family that prays together, stays together”. It is also true that a family that talks together can stay together. The tragedy today is that families no longer talk together the way that they once did, because they are talking into an iPhone or an iPad. I was raised on a farm, and when I was a child there was a large family table we sat around and talked together. The reality is that, in the homes built today, you could not do this because the kitchen or living room is so small the family could not get around the same table. So where do they go? They go to their rooms. They used to sit before a computer but it is not like that any more; they just sit with an iPad. I sat in a home recently, where a family was gathered for a family bereavement. There was a young person of 17 years of age there. We were having conversations about the grandmother at the home, the background of the family and their upbringing and the day that young person’s mother got married. That young person heard nothing. We sat for 35 minutes. He did not speak, and neither was he listening because he was completely absorbed in his phone.
The Government should do more to encourage families to talk together. Then, I believe, many of them will stay together. The tragedy is, even within relationships, husbands and wives no longer converse as they used to. If you have a problem, the best way is to share it because a problem shared is a problem halved. Therefore, there should be more preparation for young people before marriage, and during marriage they should receive more encouragement. Certainly, when it comes to the possibility of a family breakdown, society should encourage the family unit to stay together—not to make them unhappy, but to build relationships again.
Baroness Chakrabarti
My Lords, I am so grateful to all noble Lords who spoke about this group. We do not support families by lecturing them, hectoring them or even creating obstacles to divorce. We support families with fellowship, with community, with solidarity and with social infrastructure. As I have said, I would like people to have access to lawyers—we wicked lawyers, but when you need us we are not so wicked—in time times of trouble, but also to counselling and relationship support long before there is trouble and, indeed, all through their lives. I really have taken on board the points that were made by two noble Baronesses at least about timing, because this support should be available very early in life and, as noble Lords opposite have said, perhaps even before people entertain the idea of marriage. That was the reason for supporting the noble and right reverend Lord, Lord Harries, in Amendment 3, although I take the points about timing and do not want to delay noble Lords further on this.
I hope the Minister will take the opportunity, in responding to this group, to set out what the Government propose more generally by way of this kind of provision for counselling and relationship support, because it seems, to me at least, all-too scant at the moment.
Lord Keen of Elie
My Lords, I will begin with Amendment 3, moved by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to the noble and right reverend Lord, not only for his thoughtful contribution to the debate and the scrutiny of the Bill but for meeting me to discuss his proposals.
The Government share the sentiment underlying this amendment, and the observations of a number of noble Lords that couples considering divorce should have available to them information about the services in question, and that where reconciliation is still possible, the legal process should not dim that prospect. On the second point, the Bill introduces for the first time a minimum timeframe of 20 weeks from the application to when the court can be asked to make the conditional order of divorce. The Bill also retains the two-stage procedure for obtaining a divorce under the distinctive procedure of English law, so that each step on the way to divorce requires an intentional and, indeed, conscious decision to end the marriage.
The Government’s view is that best prospect of saving a marriage is when difficulties first arise, not much later when divorce proceedings have begun. In the University of Newcastle evaluation of pilots to test the information-meeting provision that was central to the no-fault provisions in the now-repealed Part II of the Family Law Act 1996, the report noted:
“If the objective of providing information is to facilitate marriage saving, the evidence suggests that it will be more effective if it is provided while spouses are still together and before they make the decision to live apart.”
The Government share the desire to encourage more couples to resolve any disagreements about children or financial arrangements through mediation, avoiding, wherever possible, the need to seek a court adjudication. For these reasons, the Government do not support this amendment but believe that its laudable ends can be achieved by other means.
Lord Harries of Pentregarth
I thank all noble Lords who have spoken to these amendments. I was slightly surprised that my noble friend Lady Meacher was so hostile to my amendment, as it would not require the divorcing couple to do anything and would not in itself delay the process of divorce. It would mean simply that they receive information, treating them as mature human beings who are aware of the information available.
As the Minister said, I had a very useful meeting with him, in which he outlined some ways of making people more aware of relationship support and mediation services through the internet. We talked about the possibility of there being a question on the original application form asking the applicant whether they are aware of these services. Perhaps when he comes back on Report he could spell out in more detail what he has said to the Committee and to me. I realise that this is not a matter for legislation, but perhaps he could put on the record the kind of thing which might appear on either the original application or online. With that in mind, I beg leave to withdraw my amendment.
Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations 2020
(4 years, 1 month ago)
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Lord Agnew of Oulton
That the draft Regulations laid before the House on 30 January be approved.
The Minister of State, Cabinet Office and the Treasury (Lord Agnew of Oulton) (Con)
My Lords, I shall also speak to the Tax Credits, Child Benefit and Guardian’s Allowance Up-rating Regulations 2020.
The Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations set the national insurance contributions rates, limits and thresholds for the 2020-21 tax year. They will allow the Government to deliver on their manifesto commitment to cut national insurance contributions for 31 million hard-working people across the United Kingdom. National insurance contributions, or NICs, are social security contributions. Payment of NICs determines eligibility for the state pension and other contributory benefits. NIC receipts go towards funding the NHS and these same contributory benefits.
I will first outline the changes to the class 1 primary threshold and class 4 lower profits limit. The primary threshold and lower profits limit indicate the points at which employees and the self-employed start paying class 1 and class 4 NICs, respectively. These thresholds will rise from £8,632 to £9,500 per year. These changes, promised in our manifesto, underline the Government’s commitment to ensure that work pays, putting more money into the pockets of hard-working people. They will benefit around 31 million taxpayers, with a typical employee £104 a year better off compared to 2019-20. Increases to the primary threshold and lower profits limit do not impact on state pension eligibility. This is determined by the lower earnings limit for employees and payment of class 2 NICs for the self-employed.
The lower earnings limit will rise in line with inflation from £6,136 to £6,240 per year. The upper earnings limit, where employees start paying 2% NICs, is aligned with the higher-rate threshold. As announced at the 2018 Budget, it will be frozen and remain at £50,000 per year.
The self-employed pay both class 2 and class 4 NICs. The rate of class 2 NICs will rise in line with inflation from £3 a week to £3.05 a week. The small profits threshold is the point above which the self-employed must pay class 2 NICs. This will rise with inflation from £6,365 to £6,475 per year. For class 4 NICs, as already outlined, the lower profits limit will rise to £9,500. The upper profits limit is where the self-employed start paying 2% NICs. This is also aligned with the higher-rate threshold and will remain at £50,000 per year.
For employers, the secondary threshold determines where they start paying employer NICs. This will rise with inflation from £8,632 to £8,788 per year. The level at which employers of people aged under 21 and apprentices aged under 25 start to pay employer NICs will remain frozen at £50,000 per year.
Finally, class 3 contributions allow people voluntarily to top up their national insurance record. The rate for class 3 will increase in line with inflation from £15 to £15.30 per week.
The regulations also make provision for a Treasury grant of up to 5% of forecasted annual benefit expenditure to be paid into the National Insurance Fund, if needed, during 2020-21. A similar provision will be made in respect of the Northern Ireland National Insurance Fund. I hope that this is a useful overview of the changes we are making to bring rates of support and contributions to the Exchequer in line with inflation. I commend to the House the draft regulations.
Moving on to the Tax Credits, Child Benefit and Guardian’s Allowance Up-rating Regulations, the Government are committed to delivering a welfare system that is fair for claimants and taxpayers while providing a strong safety net for those who need it most. These regulations will ensure that tax credits, child benefit and guardian’s allowance increase in line with the consumer prices index, which had inflation at 1.7% in the year to September 2019.
Baroness Lister of Burtersett (Lab)
My Lords, I wish to say a few words about child benefit. I will not repeat the general arguments about the four-year benefit freeze that I made in Grand Committee but simply want to underline the implications of that freeze for child benefit, particularly because the freeze about to end must be seen in the context of the treatment of child benefit since 2010.
Child benefit had already been frozen between 2010-11 and 2013-14 and was then increased by only 1% for two years before being subjected to the freeze in working-age benefits. This means that, with the exception of two years when inflation was really low, its value has been reduced every year since 2010. The result is that not only has its real value been reduced by around 6% because of the four-year freeze but, according to the House of Commons Library briefing, it is now worth 17% less for the first child and 16.5% less for subsequent children than it would have been had it been uprated in line with the CPI since 2010. That means a loss of nearly £370 this year for a two-child family.
The Resolution Foundation calculates that for second and subsequent children the benefit is now worth less than when it was fully introduced in 1979, is less than half as generous as it used to be compared to average earnings and, shockingly, is less generous than the post-war family allowance. For first children, it is close to an historic low. The Resolution Foundation concludes that
“it is fair to say that child benefit is at its stingiest in forty years.”
Thus, while we are of course all pleased that the freeze has come to an end, as required by law, simply uprating benefits in line with inflation is not good enough. The Minister said that an extra £800 million was going to be spent on this and tax credits. Is that £800 million simply due to inflation-proofing? If so, it is not extra at all but simply keeping things as they are. If austerity is genuinely coming to an end, the Government should make good at least some of the loss that child benefit has suffered during the past decade, as it is unfair that families with children should bear the brunt of austerity. Raising child benefit by more than inflation would be much more effective in helping low-income working families than a further rise in personal tax allowances.
It is not just the benefit that has been frozen but the thresholds for the high-income charge introduced in 2013, which are still frozen. I will spare noble Lords the principled and practical arguments against the introduction of the charge, but, having introduced it, is there not a responsibility on the Government to ensure that the thresholds keep pace with median earnings? Both the Resolution Foundation and the IFS have analysed the effects. According to the IFS, in the last financial year around 270,000 more families lost some or all of their child benefit than would have been the case had the threshold been price-indexed. The difference would be bigger still had it been earnings-indexed, which is arguably what it should be unless the Government want to hit families lower down the income distribution than originally intended.
Unless there is a change of policy, the IFS warns that by 2022 as many as a fifth of families will be affected. Moreover, if the higher-rate tax threshold continues to be indexed in line with inflation while the child benefit threshold remains frozen, it points out that
“for the first time significant numbers of families without a higher-rate taxpayer will lose some Child Benefit”,
possibly as many as 120,000 by 2022-23. Is this really what the Government want? Extrapolating further into the future, the Resolution Foundation points out that, because the income charge is applied to an individual’s income and universal credit is based on family income, there could come a point when some people are simultaneously receiving universal credit and being subjected to the high-income child benefit charge. As it observes:
“This would be somewhat absurd, as well as creating marginal tax rates of near 100 per cent.”
As the IFS points out, cutting benefits “by stealth” in this way
“can do nothing for trust in government.”
Can the Minister explain the justification for freezing the thresholds? As a matter of urgency, could he take a message back to the Treasury asking the Chancellor to stop the rot in the next Budget and increase the thresholds, preferably in line with earnings but at the very least in line with prices, and restore them to their position when introduced?
There was a time when the Conservative Party strongly supported child benefit, which of course replaced child tax allowances as well as family allowances. It acknowledged the important role it plays in recognising that children reduce taxable capacity at every income level, in strengthening work incentives, in providing families, particularly mothers, with a degree of financial security and in supporting the next generation regardless of the family they are born into. It hailed it as “simple and well understood”, although it is rather less simple now because of the high-income charge.
Some 75 years ago, during the final stage of the then Family Allowances Bill, Eleanor Rathbone told MPs:
“In early days I used to describe meetings of employers and employed, landowners and rentiers sitting round a table competing for their share in the national income with a woman coming from behind and holding out her hand, saying, ‘I am the mother, the future citizens and workers depend on me; where is my share?’ This Bill gives the mother through her children her share, although it is only a very little share so far.”—[Official Report, Commons, 11/6/1945; cols. 1419-20.]
Can the Minister assure us that the Government are committed to ensuring that children now receive their fair share through the child benefit scheme that replaced family allowances, or are we witnessing the gradual destruction of Eleanor Rathbone’s dream?
Baroness Kramer (LD)
My Lords, we are indebted to the noble Baroness, Lady Lister, for illuminating the underlying policy issues that underpin these statutory instruments. There is a real fear in my party—and I know in hers—that the changes that are taking place today embed, in effect, austerity for those on benefits and those on the lowest incomes. However, because we are looking at statutory instruments, I am going to make my comments extremely narrow. I recognise that for the annual rerating of NIC contributions and various other benefits, we are simply implementing a mechanism that has been through a normal parliamentary process. Frequently, this has been part of a Budget; it would certainly have been debated in both Houses, and MPs would have had an opportunity to express an opinion in the Commons if they wished to make changes. However, I am somewhat at a loss—and perhaps the Minister will help me—as to how any of that applies to the changes in PT and LPL.
It is not that I have a particular objection to the changes, but it appears that their basis lies in the Conservative manifesto, not in actions taken in the other place either in the form of a Budget—because the Budget is not due for another week—or in a finance Bill, which is where I would expect fundamental changes such as this, which affect most working people, to be embedded. It is hard to accept that changes are being made to national insurance contributions, which have a major impact on the Budget, but not within the context of the Budget. I am rather concerned that the Government might be returning to a pattern that we have seen in the past, when major policy change was introduced by statutory instrument rather than through primary legislation or being put into the Budget framework, where full debate and challenge could take place. It happened with universal credit, as I think everybody who is present in the House today will remember, and I am now concerned to see this appearing here within two of these statutory instruments. So that is where I would like the Minister to focus: to explain why a change which, as far as I can see, perfectly belongs to next week’s Budget and a finance Bill, is appearing in a statutory instrument, where, by definition, the debate is extremely limited and challenge is, frankly, near impossible.
Lord Tunnicliffe (Lab)
My Lords, I will take a similar self-denying ordinance to that of the noble Baroness, Lady Kramer, and speak relatively briefly. I would like simply to put on record my support for the excellent speech by my noble friend Lady Lister. I join with the noble Baroness, Lady Kramer, in failing to understand why this is not part of the Budget. Because it is not part of the Budget, it is lacking in process. In some senses, virtually all the changes that the Minister described are designed to introduce the CPI increases of 1.7%. Insomuch as that has previously been announced in budget processes, I cannot object, except on the wider basis that my noble friend Lady Lister outlined.
There is one particular increase, however—the increase in PT, which I am told is the “primary threshold”—which is not in line with inflation. Its excuse for being introduced is that it is in the Conservative manifesto. I have a copy of that manifesto and I have to admit that I could not find it. Fortunately, a member of the Treasury was able to advise me that it was on page 15—which was conveniently not numbered, but never mind. It says:
“We not only want to freeze taxes, but to cut them too. We will raise the National Insurance threshold to £9,500 next year—representing a tax cut for 31 million workers.”
I thought that a basic rule of introducing a change of policy would be that it would be properly costed. Just to make sure that this was not trivial, I did a few sums. The effect, as the Minister said, is to increase the threshold by £868; it would have increased a little anyway because of the 1.7%, but the policy impact is something like a real £720 increase. If you multiply that by the 12% rate and the 31 million people involved, you get a figure of, say, £2.7 billion. My concern is that such a sizable sum ought to have been properly set out and illustrated.
The Explanatory Memorandum says:
“A Tax Information and Impact Note has not been prepared for this instrument as it gives effect to previously announced policy and it relates to routine changes to rates, limits and thresholds.”
Well, it does not. This one is clearly a policy change, and clearly the cost is a few billion pounds. Will the Minister tell us how much it will cost? Why was it not set out in the Explanatory Memorandum? Surely it is improper to introduce a national insurance change that is a reduction in taxation without calculating its cost and putting that in the public domain.
Lord Agnew of Oulton
My Lords, I will try to deal with the queries raised by the noble Baronesses and the noble Lord. I will start with the question asked by the noble Baroness, Lady Lister, on the impact of the historic benefit freeze. We have to put all these events into some context. When the freeze was originally announced in 2010, we were putting the public finances back on track. For example, before 2010, welfare spending was rising at an unsustainable rate. Between 1997-98 and 2010-11, welfare spending rose by £84 billion in real terms—a 65% increase. The Government are committed to building a welfare system that ensures that work pays, that there is a strong safety net for people who need it, and that the system is fair for claimants and taxpayers. As I mentioned in my earlier comments, this is a substantial payment back into the system to support some of our most needy and vulnerable people. However, the Government are not able to provide a blank cheque for an unlimited uprating from the years of austerity that we have had to come through.
Baroness Lister of Burtersett
I asked some specific questions, which I do not believe the noble Lord has answered. I will not get into a long debate about sustainability and so forth, although I addressed that in Grand Committee—there is no evidence at all that it was unsustainable. First, I asked about the extra £800 million to which the noble Lord referred. What is that? Is it simply raising in line with inflation? If so, that is not new money. I asked him what the justification was for continuing to freeze the high-income charge threshold, and whether the Government were still committed to child benefit.
Lord Agnew of Oulton
The answer to the first part of the noble Baroness’s question is that this is what it will cost; the figure I mentioned earlier in my comments, which I think was £800 million, is the cost. The second question was: what about the people at the top end? Again, I am proud to represent a Government who are focusing our attention on those at the very bottom end of income, so this is where we are at the moment. I cannot speak for the Budget—
Lord Tunnicliffe
Can I just check the Minister? The area that I was concerned about, which is the increase in the PT, affects virtually every taxpayer and is not in any way concentrated at the bottom end of employment.
Lord Agnew of Oulton
I was dealing with questions asked by the noble Baroness, Lady Lister; if I understand correctly, she was concerned—
Baroness Lister of Burtersett
I point out that if the Government were really concerned about those at the bottom end, they would put more money into child benefit rather than personal tax allowances. Personal tax allowances are no good at all to families at the bottom end, whereas child benefit is extremely helpful to them. If they were really concerned about people at the bottom end, as I argued in Grand Committee, they would be raising basic benefits by more than inflation this year to start making up for the freeze, which was much bigger than expected because inflation was higher than anticipated. I therefore ask the Minister not to say that the Government care most about people at the bottom end.
Lord Agnew of Oulton
With the greatest respect to the noble Baroness, the policy of our Government, progressively over the past 10 years, has been to get people into work. We are now seeing some of the highest levels of employment since the war, and in the last year we saw earnings start to outstrip inflation. That has taken a long time, but that is what we have done. We strongly believe that, if we are to help the most vulnerable people in society, the best way is through the dignity of employment and earnings, which is why we have focused on that area.
The noble Lord, Lord Tunnicliffe, asked about the primary threshold and lower profits limits. Again, this comes back to what I said to the noble Baroness, Lady Kramer, which is that, yes, this is a manifesto promise. We said on page 15, as the noble Lord quite rightly said, that we were going to do this; this is what this statutory instrument achieves today; it will be a tax cut for around 31 million people; and it is £104 a year, which, for people at the bottom end, is a meaningful improvement in their lives.
Baroness Kramer
Could the Minister explain why it is appropriate to do that through a statutory instrument, and to what extent that undermines the ability of Parliament to hold the Government accountable? I am sure that he has great respect for his Members in the other place, but they may well have had opinions on this issue. They may have had the opportunity to express them in the sense that the SI has gone through the other place, but I very much doubt that they have had the opportunity for any kind of detailed debate or challenge. In addition, they cannot possibly know what the consequences are, because it has to be in the context of a Budget, where, presumably, the loss of revenue is made up for in some other way or by borrowing, and those are major consequences. As the noble Lord, Lord Tunnicliffe, pointed out, the numbers are not de minimis but incredibly significant.
Lord Agnew of Oulton
I respectfully repeat what I said to the noble Baroness: we are trying to focus support at the bottom end of the income scale. To deal with the noble Baroness, Lady Kramer, since 2010 we have seen over 700,000 fewer children living in workless households and over 1 million fewer workless households overall. We believe that that is how you deal with poverty and improve dignity.
The NIC regulations set the rates, limits and thresholds for the 2020-21 tax year. They allow for the collection of £120 billion of NICs to fund the state pension and contribute to NHS funding, and deliver on the Government’s promise to deliver a tax cut for 31 million working people. I commend the draft regulations to the House.
Baroness Lister of Burtersett
I have another question. I asked specifically: are the Government still committed to child benefit? The Conservative Party used to be committed to it; are the Government still committed to it? The Minister gave me no answer, which implies that he is not.
Lord Agnew of Oulton
My Lords, I have absolutely no indication that we are not committed to child benefit.
Tax Credits, Child Benefit and Guardian’s Allowance Up-rating Regulations 2020
(4 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Agnew of Oulton
That the draft Regulations laid before the House on 30 January be approved.
Employment Allowance (Excluded Persons) Regulations 2020
(4 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Agnew of Oulton
That the draft Regulations laid before the House on 16 January be approved.
Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Cabinet Office and the Treasury (Lord Agnew of Oulton) (Con)
My Lords, I draw the House’s attention to the fact that the Secondary Legislation Scrutiny Committee described this instrument as an “instrument of interest” in its third report of 30 January.
This draft legislation will allow the Government to target the national insurance and employment allowance at those businesses that need it most. Employers pay class 1 national insurance contributions on their employees’ earnings above the secondary threshold, set at £8,632 this year. That is charged at 13.8% and contributes the largest business tax by revenue in the UK.
The employment allowance was introduced in 2014 to help businesses with employment costs and to encourage businesses to grow and hire more staff. It is claimed by more than 1 million employers to reduce their employer NIC bill by up to £3,000. Since its introduction, it has taken 590,000 businesses out of paying NIC altogether.
I remind noble Lords that the employment rate is at an all-time high of 76.2%. Since 2010, youth unemployment has halved and 3.7 million more people are in employment. This is a nationwide phenomenon. In the past year, three-quarters of employment growth was outside London and the south-east.
At present, all businesses—from greengrocers to Goldman Sachs, butchers to Barclays and pubs to Primark—can receive a relief from the Government of up to £3,000 off their total employer NIC bill. Big businesses get the same benefit as small ones. However, for larger businesses, that £3,000 is a small amount relative to their total employment costs, and is therefore unlikely to encourage them to take on more staff. It is right to target the support at smaller businesses for which this £3,000 makes a difference to the cost of doing business. It is for this reason that the Government decided to restrict the employment allowance to smaller businesses in the 2018 Budget, which means that, from April 2020, only businesses with an employer NIC bill below £100,000 will be eligible for the employment allowance. More than 99% of micro-businesses with fewer than 10 employees and 93% of small businesses with fewer than 50 employees will remain eligible for the employment allowance. Around 80,000 employers will lose the employment allowance. This constitutes just 8% of businesses currently receiving it, all of which have a wage bill above £700,000 a year.
Targeting the employment allowance at smaller businesses means that it falls under EU de minimis state aid regulations, which relate to small amounts of aid that can be given without notifying the European Commission. Most businesses can receive up to €200,000 of de minimis state aid cumulatively in a three-year period. Under the de minimis regime, to claim the EA, businesses need to notify HMRC annually as part of the existing claims process and confirm that they can receive the employment allowance without exceeding their cap. After consulting widely, we removed the requirement to specify exactly how much state aid businesses receive, to make it easier for them to claim the reformed employment allowance. As the Prime Minister announced, we will develop our own separate and independent policy on subsidies when the transition period has ended. We will have a modern system for supporting British business in a way that fulfils British interests.
I hope that noble Lords will agree that while the employment allowance aids small businesses, giving large businesses with a wage bill of £700,000 or more £3,000 off their NIC bill is not good value for money. The Government have committed to go further with their support for small businesses. As the Government look to level up across the country, this reform will raise more than £1 billion over the course of this Parliament to fund vital public services and target support for small and medium-sized businesses.
I am grateful for the House’s consideration of these regulations and for any points that noble Lords may like to make.
Baroness Kramer (LD)
My Lords, I will be extremely brief. I am supportive of this change. It seems appropriate that the employment allowance is focused on the smallest businesses. I fully accept what the Minister says: that small businesses will be far more motivated to take on additional staff than any large business by this—in effect—grant.
On reading this, it seems that one of motivations is to make sure that the employment allowance is covered by only the de minimis regulations in the EU. Am I correct that it is the Government’s long-term policy focus to direct this aid towards small businesses, and that this is not just an accommodation to what they see as an EU framework—in other words, that it portends the future? Can the Minister give us any further assurance that any money saved will be redirected into the small business community?
Lord Tunnicliffe (Lab)
My Lords, the Explanatory Memorandum states:
“The purpose of this reform is to target the Employment Allowance to support smaller businesses.”
It directs us to Employment Allowance: Excluded Persons Regulations 2020, a document published in January this year, which repeats that statement:
“This reform is designed to focus the Employment Allowance at the original intended beneficiaries: smaller businesses.”
This is rubbish. You have businesses that can currently claim this £3,000, you have a very large group of businesses whose NI bill is less than £100,000—for which the rules will not change one iota as a result of this SI—and you have another group in the £100,000-plus category that will get nothing. It may be the Government’s intention to focus on smaller businesses, but this SI has no such effect. In fact, the sole impact of this SI is to save the Government money. I do not mind this, and the statutory instrument is perfectly reasonable. I just do not like the fact that false claims are made in this document. Unless the noble Lord is able to give me the assurance that the noble Baroness, Lady Kramer seeks, it seems improper to claim that taking money from one group while doing nothing about another somehow focuses more money on the group that you are not going to change.
Lord Agnew of Oulton
I thank noble Lords for their comments. I think I can answer the noble Baroness, Lady Kramer, and the noble Lord, Lord Tunnicliffe, together with regard to our commitment to supporting small businesses. It is very much our intention to do this. We have a manifesto commitment to increase the employment allowance. On the issue that he raised, I hope that by freeing up some of the money that is frankly not particularly benefiting larger business, we will have some flexibility to help those at the lower end. That is very much our policy, and I hope we will hear more about this in the Budget, which I of course cannot forestall.
I turn to the noble Lord’s technical comment about burdens, and certainly commend him for his forensic analysis of those numbers. I will write if I get this wrong but I genuinely think that we are trying to make claiming this a bit easier. We are removing the need to list de minimis state aid. Therefore, to fill this form in—I hope—needs only a few minutes, as his arithmetic would indicate. However, I will write to him formally if I have got the wrong end of the stick, because I am not as well informed as he is on that item.
These regulations make important changes by restricting eligibility for the employment allowance to businesses with an NIC below £100,000. They enable the Government to target support at small and medium-sized businesses which need it most. As I have mentioned, they will raise £1 billion over this Parliament to fund public services and to continue to support small businesses. I commend these draft regulations to the House.
Divorce, Dissolution and Separation Bill [HL]
Tuesday 3rd March 2020
(4 years, 1 month ago)
Lords ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 View all Divorce, Dissolution and Separation Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-I(Rev) Revised marshalled list for Committee - (2 Mar 2020)
Lord Mackay of Clashfern
Member’s explanatory statement
This would extend the minimum legal period for a divorce from six months to one year (with the additional six weeks between the conditional and final orders).
Lord Mackay of Clashfern (Con)
My Lords, I understand that the question to which this clause is an answer was in the consultation and that the answer in consultation was 12 months, whereas here it is six. I just wonder what superior knowledge the Government had in mind in going to six months when the consultation seemed to say 12.
I have had some experience in this area, 20-something years ago. When I proposed the 1996 Bill, I put in 12 months—that is what I am asking for now; I am nothing if not consistent—but on that occasion Parliament decided that it should in fact be 18 months. Putting it up by six months is something with which I am fairly familiar, so I invite my noble and learned friend to explain the situation.
Lord Marks of Henley-on-Thames (LD)
My Lords, this amendment more than doubling the period before conditional order seems to be based on the proposition that the law obliging people to stay married for longer will either help children or encourage more reconciliations. In the debate on Amendment 2, speakers on all sides of the House demonstrated the fundamental commitment of us all to the welfare of children, who—as we all agree—suffer badly from family breakdown and its consequences. The noble and learned Lord spoke eloquently on that. For all the reasons given by many noble Lords in the earlier debate, I agree with those who have said there is no basis for saying that the children’s interests would be best served by denying or delaying divorce to one or both parties to a marriage who have determined on a divorce.
As for the second proposition, that keeping unwilling couples tied into a failed marriage for a longer period may lead to more reconciliations, the evidence is overwhelmingly to the contrary. The decision to divorce is a hard one, rarely taken lightly. Of course, changes of mind occur. Separated couples often get back together—sometimes successfully and sometimes not, as the noble and learned Baroness, Lady Butler-Sloss, pointed out earlier—but in every such case they make the decision to reconcile willingly, not because they are obliged by law to try to do so. In some cases, of course, divorced couples even remarry each other. Again, that step is open to couples after divorce and is dependent on free will, not obligation.
Once the decision to divorce has been made, forcing parties to stay married for longer than is necessary to confirm that decision serves no purpose. Enforced delay rarely leads to reconciliation. It extends the unhappiness and uncertainty. It infringes on the parties’ autonomy, preventing them making decisions for themselves, arranging their new personal lives and futures, making safe and secure arrangements for their children and organising their family finances. It also—most significantly, I suggest—extends the hostility between the parties, who are frequently embittered by divorce proceedings and whose embitterment starts to heal only when the divorce is finalised and they go about the business of joint but separate parenting or building new, separate lives. This Bill is all about reducing bitterness by removing fault from the actual process of divorce.
The Government have proposed a 20-week period—reflecting other jurisdictions, such as New York and Finland—as appropriate for the confirmation of the decision to divorce. No period will ever be perfect to the week, but my belief is that the 20-week period to a conditional order is about right and is supported by the evidence. I commend the Government for choosing it.
Lord Farmer (Con)
My Lords, I have attached my name to Amendment 21 tabled by my noble and learned friend Lord Mackay of Clashfern. As he said, his original Family Law Act 1996 required this longer period, and explicitly stated that this enabled the children and the finances to be resolved. Importantly, this meant that someone was not free to remarry before these important responsibilities from the former marriage had been put to bed. To quote my noble and learned friend, at Second Reading on the Family Law Bill, he said:
“A very important requirement in the Bill is the requirement that parties decide all arrangements relating to their children, finance and home before a separation or divorce order can be made… In making this change the Government have been influenced by those who responded to their consultation paper who were of the view that parties who marry should discharge their obligations undertaken when they contracted their earlier marriage, and also their responsibilities which they undertook when they became parents, before they become free to remarry.” [Official Report, 30/11/95; col. 703.]
I am fully aware that the report Finding Fault? Divorce Law and Practice in England and Wales states that the average length of divorce proceedings is currently six months. A six-month minimum period would therefore mirror current practice. A longer period would be punitive for those who need to divorce quickly. This would include those experiencing domestic abuse, as we have heard, with 15% of Finding Fault? petitioners citing physical violence.
To this I say two things. First, it seems that when it suits the researchers, behaviour patterns are accurate, so when 15% cite domestic violence, what they say is accurate. Yet as I understand it, one of the main reasons for this no-fault divorce—for removing fault from divorce—is that in the majority of cases, the reason given is either false or inaccurate.
Secondly, in the consultation preceding the Bill before us, in response to the question: “What minimum period do you think would be most appropriate to reduce family conflict, and how should it be measured?”, 1,044 people—33% of the 3,128 responses—said a year. Only 297—9%—said six months.
In their response to the consultation, the Government said:
“Those opposed to reforms proposed a minimum period of one or two years, depending on whether the application was joint or sole, or on whether the couple had children.”
In other words, those opposing the reforms should be ignored, even though they were in the majority. Remember the bigger picture of the consultation: 83% wanted to retain the right for an individual to contest a divorce. Only 15% stated that this right should be removed. Also, some 80% did not agree with the proposal to replace the five facts with a notification process. A mere 17% were in favour. However, the Government also said:
“Those who selected nine months or longer felt that this would enable counselling or mediation and proper reflection to enable reconciliation where possible. In particular, those suggesting a year or more felt that this would more properly reflect the importance of both marriage and divorce as significant life decisions, particularly in cases involving children or where one party wishes to remain in the marriage.”
This Bill takes account only of the worst-case scenario—domestic violence—and deems the application for divorce to be a one-way street towards a final order.
The Bill should also take account of good things happening. The Government have said that they wish to make sure that couples have sufficient time to reflect on the decision to divorce and that that reflection period may result in them pulling back from the brink. I have heard noble Lords say today that when someone applies for a divorce because of irretrievable breakdown there is no going back, but we are introducing a new element into divorce proceedings based on the applicant saying that there is one-fault divorce. For example, a husband who is having an affair with someone in the office and his wife has no idea about it, knows that all he needs to do is write a letter to the court and say that the marriage has irretrievably broken down. The wife has not been advised and this comes as a bombshell to her. There could be many instances like this where, because of the new procedure, a unilateral request for a divorce is not recognised by both parties.
Many people initiate divorce early in the new year, which is also a popular time for booking one’s summer holidays six months hence. We all know that that six months goes extremely quickly and, before you know where you are, you are in June when it was January. Likewise, a divorce which gathers momentum and is all over at the end of six months will seem to come around very quickly, especially for the party who has been unilaterally divorced. Time for reflection and reconciliation will be squeezed out.
If the Government were to accept the amendment, I would expect it to extend to Clause 4 and to civil partnerships.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, when the Government consulted in 2018 on the Bill’s proposals, a number of headlines suggested that we were introducing quickie divorces; indeed, in some quarters, that misapprehension may linger. However, in a sense, we are putting an end to them. Under our reform Act, applicants cannot apply for a conditional order until at least 20 weeks have passed from the start of the divorce proceedings, along with the current six weeks between conditional and final orders, and that is a minimum period. Of course, progression from one stage to the next will never be automatic.
Applications for divorce are increasingly made online and the Government’s updated impact assessment, which was published last April, projected that, under these reforms, on average we would be adding between nine and 10 weeks to the divorce process based on the expected impact of full implementation of online divorce. So we are certainly not reducing the overall time for the average divorce. Indeed, at present rather more than 80% of divorces take place sooner than the timescale set out in the Bill.
I acknowledge that there is no magic number as far as this timing is concerned. A single divorce law must work for everyone and, in introducing the new minimum period before conditional order, we have carefully considered what period would most effectively help applicants consider the implications of divorce and allow couples to reach an agreement on practical matters without unduly lengthening the process. That is the purpose of the minimum period. It is certainly not intended to be punitive in any way.
The question then arises: why six months overall rather than a year or even a month? The Government have reflected on the different views put forward during the consultation and, at that time, some key organisations broadly supported six months as a reasonable period to meet the emotional and practical needs of divorcing couples. However, they also noted that there could be problems if that period was longer. Indeed, a period substantially longer than at present could unduly delay necessary financial arrangements, for example, and it would be particularly unhelpful if a couple had already been separated for a long period of time before the application is made. We therefore made the judgment that six months strikes an appropriate balance that allows a better opportunity for parties to adjust and a reasonable period for them to consider the implications of the step that they are taking.
As I say, there is no magic number. It is a case of exercising judgment and we consider that the period of 20 weeks, together with the six-week period, is appropriate in the circumstances, and we would not propose to extend that period by way of amendment to the Bill. In these circumstances, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Clashfern
My Lords, of course it is a matter of judgment. I had to do the judgment some time ago. The other angle which has to be taken into account is that when the divorce proceedings are finished, parties are apt to lose interest in their responsibilities under the marriage that has been terminated. I have seen that as a matter of fact from time to time. For example, fathers who desert find it very difficult to remember to pay the necessary support money to the deserted lady. That kind of thing can be made worse if the divorce has been completed before all the financial matters have been settled. However, I agree that this is a matter of judgment, and I beg leave to withdraw the amendment.
Lord Farmer
“( ) For the purposes of subsection (5), “the start of the proceedings” means—(a) in the case of an application that is to proceed as an application by both parties to the marriage, the date on which both parties apply for a divorce order, or(b) in the case of an application that is to proceed as an application by one party to the marriage only, the date when the notice of an application for a divorce order has been served to the other party to the marriage.”Member’s explanatory statement
This amendment seeks to address that, if the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice.
Lord Mackay of Clashfern
My Lords, I support this amendment on the basis that it is not right that the length of the notice should be determined solely by the applicant. The present definition of the start of the application is settled by the rules of court. It would be a good idea if the rules of court committee examined this matter because if it is willing to change the present rule to a rule that accommodates the need to make sure that the respondent has received some kind of notice, either as a deemed service or as an actual service, at the start of the proceedings, that would be satisfactory. It would also be satisfactory if it were left to the rules committee because who knows what difficulties might arise? Nobody can forecast every possibility. If it was with the rules committee it could make the necessary adjustment later without recourse to Parliament. It is good idea that the rules committee decides this question. I think that is the best answer to it.
Lord Marks of Henley-on-Thames
My Lords, I rise to speak to the amendments standing in my name and that of my noble friend Lady Burt of Solihull. Amendments 8 and 9 concern applications for divorce orders, Amendments 11 to 13 concern applications for judicial separation orders, and Amendments 17 and 18 concern applications for dissolution orders in respect of civil partnerships. In speaking, I shall address the applications for divorce orders, but the others run in parallel.
Our amendments have one theme: the Bill starts the 20-week period leading to the conditional order with the start of proceedings. I see the point the noble and learned Lord, Lord Mackay, makes that that is not technically defined, but on any ordinary construction—the construction intended by the drafters of the Bill—the start of the proceedings is the issue of the application.
Concern was expressed at Second Reading and publicly that, under the Bill as drafted, the respondent may not receive notice of the application for a conditional order—this the point the noble and learned Lord was making—before much or all of the 20-week period has passed. He or she may not, therefore, have had time to consider his or her position before the proceedings are effectively determined, so the respondent could find himself or herself subject to a conditional order before even knowing of the proceedings. To that concern, some supporters of the Bill—which I strongly support—respond that to start the 20-week period only on service of the proceedings would encourage, or at the very least enable, unco-operative respondents to evade service or to refrain from acknowledging service, and that would frustrate the proceedings. This concern was mentioned by the noble and learned Lord at Second Reading. Our probing amendments are designed to encourage a search for a compromise by requiring an applicant to serve his or her application for a divorce order quickly, with provision for that applicant to apply to dispense with service, or to apply for an order that service be deemed. Those provisions would involve an obligation to ensure that the applicant knows of the proceedings well before a conditional order is made and, at the same time, to prevent respondents from seeking to frustrate the proceedings by avoiding service or not responding to them.
We have suggested a time limit of six weeks for service by the applicant—of the application for an order or for an alternative order—dispensing with or deeming service. We recognise the concerns of some, including those of Professor Trinder from the University of Exeter—I completely endorse her views on every other aspect of the Bill—but it is difficult, at present, to secure an order dispensing with or deeming service within a six-week time limit. I agree with the noble and learned Lord that rule changes could be made to speed up those procedures. There is a possible concern, also mentioned by some, that “service” needs better definition for this Bill. Perhaps it does, but that can be achieved.
Neither I nor any other noble Lord who supports these amendments is dogmatic about the precise definitions or time limits. At Second Reading, the Minister indicated an openness to discussion on this issue. I am very grateful to him for the time he and his officials have given to the discussions we have had between Second Reading and Committee. I hope that discussions with and within the department will enable a compromise to be reached which will achieve an acceptable balance between applicants and respondents and between simplifying procedures and avoiding injustice. We hope to discuss these issues further, including any necessary rule changes to implement a compromise and the procedures needed to bring about or clarify those rule changes, before Report.
Lord Farmer
My Lords, I shall speak now to my Amendments 5 and 15, which includes civil partnerships. If the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice. There is even the possibility that they may not hear about it until the end of the period. We can all imagine scenarios in which this could have very negative consequences for the respondent in a sole petition who may have been unaware that the marriage was in the dire straits that a divorce application suggests. It also gives the applicant the advantage. One hears of parental alienation syndrome, where one party can persuade the children to come round to their way of thinking. Also, when it comes to talking about and arranging the finances, one party can find that they have been hidden away.
Lord Keen of Elie
My Lords, as I believe I indicated previously, we accept that we should address the service issue in the context of the Bill. Therefore, I can advise the Committee that my right honourable and learned friend the Lord Chancellor raised this issue with the President of the Family Division last week. The Family Procedure Rule Committee will be invited to consider the matter when reviewing the rules required to implement the Bill, including a rule requiring service of the application within a specific period following the issue of proceedings.
The rule committee has a statutory duty to consider whether to consult on rule changes. I hope it will decide to do so in order that wider scrutiny can be given to any proposals for achieving timely service. I also hope that through the increasing use of an online divorce service many respondents will be served quickly and efficiently by email, as the noble Lord, Lord Farmer, suggested. However, I am clear that the provisions in the Bill will need to work for the many cases that, at least in the short term, will continue to be dealt with through paper applications to the court.
Amendments 5 and 15 seek to provide in the Bill different definitions for the start of proceedings in respect of joint and sole applications. For sole applications, the practical effect will be to define the starting point for the 20-week period as the date on which notice of the proceedings is served on the respondent party. However, that will create the potential for new disputes as to when notice is served or received. The only certain way to evidence this is through an acknowledgement of service, if one is returned by the respondent. Such an approach risks handing too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.
Resolution, the leading body in England and Wales, representing over 6,000 family justice professionals, has identified this as the greater mischief. Its concerns are underpinned by evidence. The noble Lord, Lord Marks, referred to the work of Professor Liz Trinder. In her study, she found that no acknowledgement of service was returned by the respondent in a sample number of cases representing 13.7% of the total. That was only a sample, but it would amount to about 14,000 cases annually if extrapolated nationally. In the majority of cases where there was no return in the sample, this appeared to reflect a decision of the respondent not to co-operate with the process, whether they were opposed to the divorce in principle or simply wanted to make the process difficult for the petitioner.
The amendment creates new potential for mischief from a respondent who is not co-operative. The Government are concerned to avoid introducing new opportunities into the revised legal process for divorce for a perpetrator of, for example, domestic abuse to exercise coercive or controlling behaviour. It is a question of achieving the right balance. We consider that the right way to achieve this is by working with the Family Procedure Rule Committee to address the issue.
I shall deal with the entirety of the group of amendments beginning with Amendment 8, moved by the noble Lord, Lord Marks, and consisting also of Amendments 9, 11, 12, 13, 17 and 18. I thank the noble Lord for his consideration of this issue and our discussion of it. Amendments 8, 11 and 17 would amend the Bill to insert a new delegated power into Section 1 of the Matrimonial Causes Act 1973 and a new Section 37A into the Civil Partnership Act to enable the Lord Chancellor to make provision by order to set out a further minimum period within which a sole applicant must effect service of notice. Amendments 9, 13 and 18 would make that power subject to the negative resolution procedure and Amendment 12 would apply in judicial separation cases.
These amendments would add to the Bill further delegated powers that are simply not needed. We consider that the best way to achieve resolution of the service issue is to work with the Family Procedure Rule Committee to address the rules around service. The provisions of the Courts Act 2003 already provide a power for the Family Procedure Rule Committee to make rules of court regulating matters governing the practice and procedure to be followed in family proceedings, including the requirements for service. I am quite happy today to give a commitment that we will work with the Family Procedure Rule Committee to address these concerns over service. They already have the relevant statutory powers to address this. In these circumstances, understanding that these were put forward as probing amendments, I invite noble Lords not to press them.
Lord Farmer
My Lords, I thank the Minister for his explanations. I am to some degree heartened by him wanting new advice to be gained from the rule committee. In this instance, we wish him well and hope we can come to a sound agreement. I beg leave to withdraw the amendment.
Baroness Chakrabarti
Member’s explanatory statement
Omits new section 1(6) of the Matrimonial Causes Act 1973, as recommended by the Delegated Powers and Regulatory Reform Committee.
Baroness Chakrabarti (Lab)
My Lords, in moving Amendment 6 I shall speak also to Amendment 16, both amendments having been recommended by the Delegated Powers and Regulatory Reform Committee. The reasons set out in the DPRRC report are, in a nutshell, that the matters dealt with under the Henry VIII powers in the Bill are too central to its purpose and therefore not appropriate for the procedure, at least not as currently set out in the Bill. I hope that, in the light of that report, the Minister will consider either accepting my amendments or, perhaps, subjecting these powers to the affirmative procedure.
Baroness Meacher (CB)
My Lords, I rise to speak to Amendment 6, proposed by the noble Baroness, Lady Chakrabarti. I apologise to the noble Baroness that I did not get a chance to have a chat with her before this evening, as I had originally added my name to the amendment. As the noble Baroness explained, the Bill as it stands proposes minimum periods of 20 weeks and six weeks for the two stages of divorce and dissolution proceedings. I thank the Minister for the very helpful meeting we had last Wednesday, where he clarified that a statutory instrument to shorten the period for divorces would indeed be subject to the affirmative procedure. The question has been whether there is any reason at all why the Lord Chancellor should be given a Henry VIII power to reduce the length of either of the two periods through delegated legislation.
The Bill is very clear that, in a particular case, an application may be made to the court to shorten the period for the proceedings. For example, if one of the partners is dying and wants to sort out their affairs before they die, it would of course be perfectly reasonable for them to make an application to the court to reduce the period required. Also, if there is a need to protect an abused spouse, time may be of the essence. However, to shorten the minimum period for divorce or dissolution in all cases is quite another matter. We have to think about that.
The then Minister for Justice, Paul Maynard MP, emphasised in the Commons Public Bill Committee on 2 July 2019:
“The 20 week period is a key element in a reformed legal process.”
There is currently no minimum period, and with respect to the second stage, the Minister said that part of the objective was
“to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer.”—[Official Report, Commons, Public Bill Committee, 2/7/19; col.35.]
As the Minister knows, I expressed my concern at Second Reading about a future Lord Chancellor having the power to allow for a more rushed process, without proper parliamentary scrutiny. Certainly, the decision to apply the affirmative procedure to any statutory instrument reducing the time period is, in my view, an important improvement. The Government argued in a memorandum that the Lord Chancellor
“will be able to make adjustments to the time periods, for example, if policy considerations meant that it would be appropriate to shorten one or both of the time periods.”
I do not want to be difficult, but when I asked the Minister during his presentation to the Cross-Bench meeting what policy considerations might justify reducing the timeframe for divorces in a general sense, neither he nor the civil servants present could provide an answer. However, during the meeting last Wednesday, the noble and learned Lord, Lord Mackay of Clashfern, came—probably quite inadvertently—to the rescue and suggested a justification for the use of this power. The noble and learned Lord suggested that if, for example, there were repeated applications to the court to reduce the length of time from 26 weeks, then a more general reduction in the minimum period would be helpful. Repeated applications to the court are unhelpful to the people immediately affected; I imagine there are delays and all sorts of things, including perhaps costs.
This sounds a very sensible justification for the Henry VIII power. The concern of the Delegated Powers Committee, on which I sit, had been that Ministers at that point had offered no rationale for the Henry VIII power. Now, thanks to the noble and learned Lord, Lord Mackay, to whom I must give due credit, we have such a rationale, as well as confirmation from the Minister that the affirmative procedure would be applicable. I am therefore personally satisfied that this matter has been acceptably resolved—I had intended to say “satisfactorily resolved”, but it has certainly at least been acceptably resolved. However, I must emphasise that I am not, of course, speaking for the Delegated Powers Committee as a whole; I am speaking purely as one member.
Lord Keen of Elie
My Lords, under the procedures set out in this new Bill, something like 80% of divorces will now take longer than they otherwise would have done. Having regard to that, it is considered prudent that the Lord Chancellor should have the opportunity as matters develop to be able to adjust the timeframes under which provision is made for divorce in this Bill. What I refer to are future, unforeseen policy considerations, which might indicate that it is appropriate to shorten the length. As was observed, the noble and learned Lord, Lord Mackay of Clashfern, cited, as an example, a situation in which there were a multitude of applications to reduce the timeframe and it was felt that this directed us towards a conclusion that there should be an overall reduction in the timeframe, because it was creating particular difficulties. That is why these powers exist.
There are essentially there of them: one in respect of divorce, one in respect of partnership and one in respect of nullity of marriage. As the Bill was drafted, these statutory instruments would have been subject to the negative procedure, but, as I indicated during meetings with a number of noble Lords, it is our intention to amend that and to apply the affirmative procedure in order that Parliament may have oversight of any such proposed step. In these circumstances, and with that undertaking to amend before Report stage of the Bill, I invite the noble Baroness to withdraw her amendment.
Baroness Chakrabarti
My Lords, I am hugely grateful to the Minister and to the noble Baroness, Lady Meacher, who does not speak for the committee but is clearly a very important member of that committee. In the light of the assurances given, I beg leave to withdraw the amendment.
Lord Farmer
“( ) In the case of an application that is to proceed as an application by one party to the marriage only, there shall be no commencement of financial provision proceedings until the end of the period of 20 weeks from the start of the proceedings for the divorce order unless—(a) the other party to the marriage agrees to the commencement of financial provision proceedings, or(b) there is an application under section 22 for the court to make an order for maintenance pending suit.”Member’s explanatory statement
This amendment would ensure that there are no discussions about financial settlement for 20 weeks unless both parties agree or there is an application to the court for interim maintenance and financial injunctions.
Lord Farmer
My Lords, this amendment would ensure that there are no discussions about financial settlement for 20 weeks unless both parties agree, or unless there is an application to the court for interim maintenance and financial injunctions.
The 20-week period I refer to is dependent on the longer period argued for in Amendment 4, which was 46 weeks. If the minimum period is only 20 weeks before a conditional order is granted, a shorter legislation-free period would be appropriate. However, as I am arguing with my noble friend for a 46-week minimum period, waiting 20 weeks before even starting to sort out finances allows the genuine pause for reflection the Government say they are committed to.
There are already many divorces initiated which are not pursued to final order. That number might reduce considerably under a legislative framework that has no natural brake pedal. The Law Society supports the concept of a litigation-free period. I beg to move.
Lord Morrow (DUP)
My Lords, I support Amendment 7. It would carve out a specific 12-week period at the beginning of the divorce process where no financial provision proceedings may take place. Of course, this would not include cases where both parties agree to commencement of such proceedings, or where there is an application for maintenance.
This is a vital amendment, as it would act in the interests of vulnerable respondents and improve the chances of reconciliation. It serves to recognise that the parties to a marriage might have very different perceptions of the marriage at the point when a divorce application is made. It may come out of the blue for one party—we have heard that referred to earlier. They will need time, and it is not helpful to be plunged into the heat of battle over finances. Financial provision proceedings are by nature contentious and would serve only to undermine the chances of meaningful conversation between spouses in the initial weeks. I believe that keeping the first 12 weeks free from litigation would increase the possibility of the parties being able to discuss their marriage without having to take up entrenched positions.
All couples should be given an opportunity, perhaps even be incentivised, to consider the ramifications of divorce carefully and work towards saving their marriage. Some divorcing couples do reconcile and most of those do so in the initial weeks of an application for divorce. This initial 12 weeks is a key period to try to save the marriage.
Ministers in the other place have said that once one party has asked for a divorce, inevitably—in 100% of cases—it means that the marriage is over. But they fail to mention the more than 10,000 divorce proceedings that are dropped each year, while this position is also counter to their own policy objective of making space for reconciliation. I know that we could argue all day about the reasons for that and whether some of them are attributable to cross-petitioning, but no one can deny that some people embark on a divorce and then change their mind because they reconcile with their spouse.
In evidence to a committee in the other place last year, David Hodson OBE, a distinguished family lawyer and spokesman for the Law Society, argued strongly for a 12-week litigation-free zone. He told the committee:
“We are very keen for there to be a period of reflection and consideration, which is what we had in the 1996 legislation in another form, to give an opportunity to pause, reflect, talk, maybe to have counselling, maybe in some cases to have reconciliation and maybe for one party to get up to speed with the other party. It is the constant experience of divorce lawyers that one party may have come to terms with the ending of a marriage before the other, so we are dealing with a very different emotional timetable. This three months will not be of any prejudice. If urgent applications have to be made for interim provision, that is fine. It will not affect children or domestic violence, which are always separate proceedings. It just is a litigation-free zone for three months.”—[Official Report, Commons, Divorce, Dissolution and Separation Bill Committee, 2/7/19; col. 9.]
Writing into divorce law the concept of a three-month litigation-free period will send a vital signal of hope to divorcing couples that perhaps they can work out their differences. It will give them the time and space to attempt to do so. Most of the debate on the Bill has focused on the barriers to divorce which couples face when their marriage has broken down, but not much time has been spent discussing how many couples reconcile and want to have a strong marriage.
I do not think I need to remind the Committee of the impact of family breakdown in the United Kingdom. We have one of the highest rates of family breakdown in the developed world. Surely this shocking fact places a duty upon us, as legislators, to do something to keep families together if possible. We all recognise that some marriages are unsavable but the Government should not focus on those alone. In addition, we must do all that we can to save marriages which are savable. They exist: why else would we have a proliferation of marriage counselling services? Does our own experience of marriage not tell us that, too? Many marriages go through rocky periods where the spouses, and their family and friends, fear that the writing is on the wall. But then conversations take place, apologies are offered and accepted, and changes are made to behaviour and circumstances—and a few years later, the couple are happier than ever. Let us do something for them, not just the ones where all hope is lost.
Baroness Deech (CB)
My Lords, the phrase “the heat of the battle”, just used by the noble Lord, Lord Morrow, provides a very succinct and appropriate introduction to my amendment. Everyone who has spoken so far has been in agreement. We support the institution of marriage and civil partnership. We want people to be stable and happy, to avoid disputes, and to provide security and warmth for their children. We differ only on the detail of how best to do it.
The difference between the context of today and that of the last time divorce was debated is the social context: more varieties of relationship, more avoidance of marriage, less disapproval when things go wrong, and more individualism within and outside of the couple’s relationship. The enduring problem is the effect on children of the break-up and how to cope with the dismantling of the housing and financial structure created by the parents. They used to say, “Marry in haste, repent at leisure”; this Bill will put an end to that. It will be “Marry at leisure”—because so many people prefer to cohabit first—and “Repent or divorce in haste”.
I accept that the wish of nearly everyone is to remove as much dispute as possible from the divorce process: to get it over and done with, as quickly as possible, to reduce the pain. It is in that spirit that I am introducing Amendment 20. In their good intentions, the Government have put the cart before the horse. Divorce, whatever its basis, will be over and done with perhaps in weeks or months. But the financial settlement for the couple and their children will have a lifelong effect and is likely to take much longer to arrange than the divorce. It will contain all the bitterness and antagonism that this Bill tries to remove from the substantive divorce.
I have spoken many times about the iniquities of our outdated financial provision law and I will not rehearse them here, save to remind noble Lords that distinguished lawyers—and more importantly members of the public—find that law uncertain and overly judge-made, with little resemblance to the governing statute. The law has no public input, remains unreformed for half a century of social changes and is very costly. I have a list of cases where the legal costs amount to half or more of the couple’s assets. We must also remember that there is no legal aid, as the noble Baroness, Lady Chakrabarti, has reminded us. Those who must represent themselves are left to flounder without even the most basic knowledge of what principles of division they should adopt.
Children’s needs are neglected while the adults fight. Only this week, the Times reported that one-third of separated parents are avoiding child payments. The Government will not succeed in removing hostility from the divorce proceedings unless they bring the financial provision law into line. It is almost oven-ready, as they say, as a few years ago the Law Commission drafted a Bill to put prenuptial agreements on a statutory basis. All who know Scottish law can see that its system is far better, cheaper and fairer, with much less recourse to litigation.
I have on several occasions set out proposals for reform, now taken up by the noble Baroness, Lady Shackleton, in her Private Member’s Bill—the Divorce (Financial Provision) Bill. She is unable to be in her place at this moment, but she is in full support of everything that I am saying.
With the Government’s Bill before us relating to substantive divorce as distinct from the money element, there are further urgent reasons to achieve reform of the financial element of divorce. I will set these out, as they underlie my amendment. In brief, there is no point in trying to achieve the aims of the divorce Bill—to make divorce less acrimonious and harmful to children—if the laws relating to the division of money on divorce remain as uncertain, expensive and acrimonious as they are. Research has shown that the quicker the divorce, the less likely the parties are to come to an agreed settlement, and that they will be more likely to settle on financial matters when more time has elapsed. This does not augur well for consensus in the proposed new law.
Twenty-six weeks is a brutally short period, after which one can well imagine that the unsuspecting spouse is still in the house, reeling with shock, utterly without plans about where to live or how to manage in the future, and without legal advice. The time taken to reach financial settlement is often far longer than the divorce itself, and even more prolonged if the couple cannot agree and must go before a judge. Financial orders can take years, as we read recently in the media about the highest in the land. It is not advisable to apply for the decree absolute, or final divorce order, until the finances are settled, as there may be tax disadvantages if there is a considerable gap between the end of the marriage and the consequential financial transfers.
As explained to me by that experienced noble Baroness, Lady Shackleton, the court can adjudicate capital only when a conditional decree—what we used to call the decree nisi—has been obtained. The Bill enables a conditional decree to be obtained faster, but disengagement from marriage can occur only when finances are sorted. Thus the acceleration of the decree is valuable only if the law relating to finance is overhauled, and that too can provide some certainty.
Moreover, if a spouse is not satisfied with the financial settlement on offer at the time of a conditional decree, he or she may apply for the final divorce to be postponed. This is provided for in the Matrimonial Causes Act 1973 and carried over into the Bill, paragraph 10 of the Schedule to which says that
“the court hearing an application by the respondent … must not make the divorce order final unless it is satisfied”
that there should be no
“financial provision for the respondent, or … that the financial provision”—
the offer—
“made by the applicant … is reasonable and fair or the best that can be made in the circumstances.”
Again, the quick divorce may be thwarted by a spouse who is not happy with whatever has been offered and wishes to delay matters.
Lord Walker of Gestingthorpe (CB)
My Lords, the noble Baroness, Lady Deech, has spoken so fully and clearly on her amendment that it is difficult to find much to say in support of it without repetition. However, three points are entitled to a bit of expansion or repetition: first, prenuptial agreements; secondly, the extraordinary flexibility—or, one might say, disarray—of the reasons the court has to take into account at present in making a financial provision order under Section 25 of the Matrimonial Causes Act 1973; and, thirdly and lastly, the suggestion, which the noble Baroness modestly did not refer to, that her drafting of this amendment shows a degree of favour for her own preferred solution to the very difficult problem of general rules for financial provision.
I will take these points in turn. First, on prenuptial agreements, in the early days of divorce, the notion that an engaged couple might think about and discuss a future divorce was regarded as so shocking that it was ruled in English law as a matter of public policy that a prenuptial agreement was unenforceable. That rule has gradually diminished in importance and has certainly now disappeared, as was confirmed by the Supreme Court of the United Kingdom in the important case of Radmacher v Granatino about 10 years ago. What the Supreme Court did in Radmacher v Granatino was to take account of the premarital agreement, not to enforce it.
The suggestion is—and it is a powerful suggestion—that the courts should now go further and treat any premarital agreement as to the division of property and resources on divorce as being valid and enforceable so long as it was entered into fairly and so long as it was based on full disclosure of assets by each side of the marriage and full access to independent legal advice for each partner to the marriage. The Law Commission has made a very clear recommendation to that effect, which was in striking contrast to its failure to agree any other part of the changes that might usefully be made to financial provision.
Secondly, turning to the court’s discretion under the existing law as to what financial provision to make, there is an extraordinary provision that has been in force for many years. Section 25(2) of the Matrimonial Causes Act 1973 sets out a confusing list of eight disparate factors with no clear hierarchy or pecking order between them and no clear guidance to first-instance judges as to how they are to take account of these eight disparate factors in ordering financial provisions. Moreover, these eight factors were there long before 1973, since the 1973 Act was, of course, a consolidating Act. It has been very difficult to provide reliable and clear guidance to first-instance judges who have had to deal with these matters, sometimes on inadequate presentation of the facts and considerations in order to do justice.
In the case of White v White, which was decided about 20 years ago, the Law Lords, as they then were —and since then the Supreme Court—did their best to spell out, of the eight disparate factors, some sort of coherent code to be followed. The top court of this country has made heroic efforts to do that, but the result has been, I regret to say, singularly disappointing. It is also necessary to try to relate these factors, which have been part of the law for half a century, to the very different social conditions that we have today.
Surveys and research undertaken by numerous bodies—some working in conjunction with the Law Commission—have shown that there are wide variations in the way the eight factors in Section 25(2) are applied in different parts of the country and by different judges in the same parts of the country. That is not good for the administration of justice. It adds further stress and expense to what is in any event a sufficiently stressful and expensive procedure, especially if one has to take account of the possibility of appeals to higher courts because of the different ways in which the discretion is exercised. By contrast, the new rules for financial provision in Scotland, which are much clearer and which limit much more the extent of judicial discretion, are working well, as a recent survey has revealed.
Thirdly and finally, it has been suggested—I think politely—that the noble Baroness’s amendment is tilted in favour of her own views as to the amendments that should be made to the law. One simple answer to that is that it would be unsurprising if that were so, because she has of course spent a great deal of time thinking about it. However, she has been somewhat modest about the fact that they are not only her own views. The points mentioned specifically in her amendment, including the rule on prenuptial agreements, are not simply her thoughts. She was too modest to mention the fact that they have been embodied in two Bills which passed twice through all stages in this House without a single adverse vote, but which have never passed into law because neither Bill succeeded in finding a sponsor and getting through the House of Commons before the end of the relevant Parliament. Therefore, the matters specified in the amendment reflect the views which have twice been before this House and which have twice been approved by it, without becoming law. I support the amendment and commend it to your Lordships.
Lord Beecham (Lab)
The provisions of Amendments 7 and 17A clearly relate to an important aspect of matrimonial proceedings; namely, the financial settlement. The amendments seek to ensure that there are no discussions about such financial settlements for 20 weeks unless both parties agree. However, does this not illustrate the need for legal advice to be available to the parties, or at any rate to at least one of the parties, in the situation of a divorce? I understand that attempts were made to amend the Bill in that respect, but it was ruled that it was not possible to do so. However, will the Minister undertake to look again, or to persuade his colleagues in the Government to do so, at the issue of providing legal aid for matrimonial matters, particularly of this kind, where one party may well have insufficient resources to procure the necessary advice in this important area of the consequences of a divorce?
Lord Mackay of Clashfern
My Lords, I very much support Amendment 20, which the noble Baroness, Lady Deech, spoke to. Not very long ago, I got a fairly impassioned letter from a gentleman I knew who had recently been involved in a divorce. He said that one of the great difficulties in approaching that, which he found by no means easy, was that it was not easy to find out what was likely to happen in relation to finance, and that it was extremely difficult to guess. The reason for that primarily is that the present structure involves a very large amount of judicial discretion. Those of your Lordships who have had the experience of prophesying how a judge will react will understand the difficulty that you encounter with that kind of thing.
Discretion, as I think Lord Bingham said, is a departure from the rule of law, because the discretion becomes the rule not of law but of the judge’s wisdom or lack of it. I remember the old judge in the Court of Session when I first went there: Lord Carmont. He used to say that if you give a thing to a man’s discretion —he was not thinking of women at that time—you commit it also to his indiscretion. The limit of discretion is quite wide.
I thought about trying to do something about this in 1996, but I concluded that it was too difficult to try to mould it to what I was trying to do then. It is probably right that it should not be attempted as part of this Bill. On the other hand, it is mightily necessary to get on with it and get a framework that can be used in the majority of cases. It is true that some discretion may be required—you do not want the framework to be too rigid—but you want it to be fairly clear that this is the way the thing will work unless there are special reasons requiring the exercise of judicial discretion.
Lord Grantchester (Lab)
I rise to speak briefly in support of Amendment 20, to which the noble Baronesses, Lady Deech and Lady Shackleton, and the noble and learned Lords, Lord Mackay and Lord Walker, have put their names. From a lay, non-legal perspective, it has much to commend it.
While political parties and Governments hesitate to legislate on family matters, in particular divorce, the Matrimonial Causes Act 1973 has persisted over the legal landscape of marriage and divorce without being substantially updated by statute for far too long. For example, in recent times, uncertainty around the implementation in law of prenuptial agreements has resulted in bringing misery to many families, adding to the unpleasantness so often experienced at the difficult time of separation.
The noble Baronesses, Lady Deech and Lady Shackleton, are to be congratulated on their sustained attempts to bring greater legal certainty to couples through their Private Members’ Bills on financial provision on divorce. Resolution around finance should not be dependent on which judge may be allocated to a case, which even now can predictably lead to wildly differing quantitative outcomes. New Clause 1(c), proposed by Amendment 20, could lead to one party seeking to add financial pressure through the cost burden of legal pursuit and representation, knowing full well that the other party will have to bear a proportion, often a large one, of any litigation.
Although some may argue that a deep examination of each individual situation will bring forward the relative merits of each case and each issue, custom and practice is not a useful or fair guide to society’s changes in family life. It should be a matter for Parliament, not the legal profession. The next legal battle is already developing over cohabitation. The decision to conduct a review of sections of the Matrimonial Causes Act 1973 under proposed new Clause 1 must be taken by the Government.
I am grateful to the noble Baroness, Lady Deech, for tabling the amendment. I am also grateful to the other signatories to the amendment for sharing their experience and expertise with the Committee, as well as for highlighting the areas for review under the second part of the amendment. It is certainly unfortunate that the noble Baroness, Lady Shackleton, is unable to be in her place.
I urge the Government to think carefully about this amendment.
Lord Marks of Henley-on-Thames
My Lords, I will first address Amendments 7 and 17A, tabled by the noble Lord, Lord Farmer. These would prevent the commencement of financial provision proceedings, except for maintenance pending suit, for 20 or even 12 weeks on his alternative, in the absence of the consent of the other party.
I suggest that these amendments—like earlier amendments that restrict the choice and autonomy of parties to a marriage that has failed—are patronising. As I understand it, they are supposed to allow for periods of reflection. I am all for periods of reflection where they will do any good, but they usually do good if they happen before any divorce proceedings are under way.
There are many cases where, by the time divorce proceedings are commenced, a financial provision application has become urgent. This is particularly so where one partner to a broken marriage has remained in an unhappy marriage or is enduring financial hardship, and even in cases where both parties agree to a divorce, but not to the timing or the form of financial provision. One example is when a home should be sold.
It is very important not to hold up financial provision applications on a blanket basis, given that parties frequently stay together long after their marriages have in reality failed, either because they have to live together in one home for financial reasons, or because they decide to stay together for the sake of their children. Why should parties in their position then be made to wait further for financial relief, when delay may cause considerable hardship and unhappiness?
There is, of course, no compulsion on a party to commence financial provision proceedings immediately. I suggest that the timing should remain within the choice of the parties and—where there are such—their advisers.
There are many other cases where, by the time the proceedings are commenced, the parties are living apart. One spouse may be with someone else. Generally speaking, such parties know of the issues between them relating to financial provision before proceedings are brought.
Take for example a currently well-known case. It would be appallingly high-handed to tell a practicing QC, married to a prominent figure—who was very publicly living with someone else, whom he had committed to marry and who was expecting his child—that she would have to delay for 20 weeks before taking steps to secure financial provision in divorce proceedings without his agreement.
There is no good reason to debar financial proceedings once divorce proceedings are under way, so I oppose these amendments.
On Amendment 20, which calls for the review to which the noble Baroness, Lady Deech, has spoken so eloquently, I agree that a review of the law on financial provision is desirable. However, I do not think that the statutory requirement for such a review sits comfortably within this legislation, which is, and should be, limited to removing fault from the divorce process.
I take the view, eloquently expressed by the noble and learned Baroness, Lady Butler-Sloss, that the process of divorce ought generally to be kept separate from issues of financial provision. I would be happier for the Minister to commit to commissioning, in the near future, a wide-ranging consultation with a review of financial provision on divorce, with a view to updating an area of law that has become, for many, out of date and out of step with modern social mores.
I find in the terms of the noble Baroness’s amendment, borne out in her speech, and discerned and spoken to by the noble and learned Lords, Lord Walker and Lord Mackay, an element of prejudgment of what should come out of such a review. I am not sure that picking out the desirability of importing something like the Scottish provisions, the term of periodical payments and the enforceability of prenuptial and post-nuptial agreements, into what should be a wide-ranging and full review is the best path to conducting it.
I do not share the noble Baroness’s cynicism about the Bar, my profession, nor her view that no barristers support reform of the law in this area. Indeed, I support reform of the law in this area, in many ways on the same basis that she does. I certainly support her view that the law on financial provision is too complex and expensive. I endorse her view and that expressed by the noble and learned Lord, Lord Mackay, that there is scope for some kind of a framework or model for use in the generality of cases.
However, there is room for discussion on the extent of judicial discretion, as the noble and learned Lord, Lord Mackay, pointed out. On the term of maintenance payments, I am particularly concerned about the position of older applicants or those in ill health who would normally expect and be entitled to long-term provision. Cutting maintenance off in the short term might be a bad idea.
While I support the idea of a general review of financial provision, I hope the Bill will not be amended to incorporate a statutory requirement in the terms of the noble Baroness’s amendment—but I would welcome a commitment from the Minister to carry out a consultation and review.
Lord Keen of Elie
My Lords, I begin with Amendments 7 and 17A tabled by the noble Lord, Lord Farmer, which seek to allow one party to block applications for financial provision on divorce throughout all the new 20-week minimum period referred to in the Bill. That is an entirely new restriction for which we have seen no justifying evidence. Nor do we know the potential financial impact it could have on people’s lives. These amendments would still allow financial applications by agreement of the other party, of course, and would also allow applications for maintenance pending suit, but financial orders are not there just for one or the other party to the marriage. They are also there to make sure that, for example, the children’s needs can be met. I appreciate that applications for financial provision in respect of children can be made at any time under Schedule 1 to the Children Act 1989, but we hardly want to promote a solution that pushes people towards yet a further set of legal proceedings.
There is no reason to delay applying for an order that in most cases can come into effect only when the divorce order is made final. Of course, the financial adjustment between the parties has to be made at some stage, but it is in no one’s interests to restrict when an application can be put in train. Indeed, it is worth noting that only once an application has been made can the court direct the parties to undertake full and frank disclosure of their assets and liabilities. Furthermore, these amendments could have the rather perverse effect of allowing one party to effectively coerce or control the other by frustrating attempts to secure a financial settlement and essentially to use that as a delaying tactic.
We are not in favour of this amendment at all. The Bill seeks to set out a very clear revised process for divorce within the existing legal framework. That is what we are anxious to implement, without being diverted by additional qualifications or controls.
I turn to Amendment 20 tabled by the noble Baroness, Lady Deech. As I said at Second Reading, the Government are considering how to approach any reform of the law with regard to financial settlement. My officials on this Bill are already at work on how best to take this forward. Drawing on that, it will be necessary to essentially lay the parameters for a review that will require, among other things, knowledge and expertise from outside government, to build an evidence base and to assess the problems that the present situation creates.
I hear what is said about the wide diversity of awards that can be made under the existing law, and the potential benefits of embracing a system such as that reflected in the Family Law (Scotland) Act 1985 as a solution, but it is not a case simply of abandoning the present process of financial provision in the law of England and Wales and embracing that of another jurisdiction. There will be a great deal more than that to do. Therefore, to set a fixed period for review is not, I suspect, helpful, because we are going to have to produce very robust recommendations and proposals that will pass in this House and the other place, and that will require detailed consideration and detailed evidence. I cannot say that such a process would be concluded within a year.
Lord Beecham
Can the Minister respond to my request for the Government to look again at the issue of legal aid in matrimonial cases?
Lord Keen of Elie
The matter of legal aid is not within the scope of the Bill, and it is not the present intention to address it.
Lord Farmer
My Lords, I thank noble Lords for their contributions. I am saddened that mine was not welcomed more than it was, but at this stage I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
For the convenience of the House, when the amendment tabled by the noble Baroness is called, she may then have the opportunity to speak to it.
“Recording lack of consent
After section 1 of the Matrimonial Causes Act 1973 (divorce on breakdown of marriage) insert—“1A Supplemental provision in cases where one party does not consent(1) In the case of an application by only one party to the marriage for a divorce order, it must be recorded on the divorce order if the other party to the marriage did not consent to the divorce.(2) For the purposes of subsection (1) the other party shall only be taken to not have consented to the divorce if they have made this known to the court prior to the divorce order being made final.””Member’s explanatory statement
This would allow a party to a marriage who did not consent to divorce to have it on record.
Baroness Howe of Idlicote (CB)
My Lords, the modest but important point of this amendment would be to permit a spouse who does not want to divorce to have that fact placed on the public record. As I explained at Second Reading, I am concerned that this Bill facilitates a significant shift in power from the respondent to the petitioner, without proper regard either for the best interests of the respondent or any children involved.
This Bill as defined is a petitioner’s charter. Under it, the departing spouse will be able to apply for divorce without citing any reason and will get their divorce in six months. The other party to the marriage will not be able to do anything about it. They will find themselves on a high-speed conveyor belt to divorce with no way of slowing it down, no opportunity to contest, no way to seek justice and not even a reasonable period to prepare themselves for life after the marriage ends.
New subsection (3) in Clause 1 makes it clear that the court cannot seek to examine or verify the departing spouse’s assertion that the marriage has broken down irretrievably. The other spouse may think it is retrievable —and may be right—but under the Bill their option must be ignored completely by the court. Like many couples who contemplate divorce, the right kind of counselling advice may get them through their current difficulties and they might emerge with their relationship strengthened and their understanding deepened.
I suspect many noble Lords will know of those who have experienced such times, but this Bill totally disempowers spouses trying to save their marriages. For some in such circumstances—perhaps for reasons of faith or other personal reasons—being able to record that it was not they but their spouse who sought divorce will be important mentally, emotionally and perhaps even spiritually, but the Bill allows no recognition that it was their spouse who walked away, no acknowledgement of the wrong the innocent party has suffered.
A fundamentally different approach to the respondent is required and I hope that the Government will register the concerns that I have set out today and at Second Reading in this regard. I do not really regard this modest amendment as a satisfactory solution to the problem but it is a way of drawing attention to it. People in such a situation should at least be able to have a line on the divorce order to say that they did not consent to the divorce. If you are stripping people of the right to contest a divorce or get the justice of their situation recognised, this is the least we can do. I beg to move.
Lord Keen of Elie
My Lords, the Bill introduces the new option of both parties to a marriage making a joint application for divorce, which will allow them to approach divorce on the basis of a mutually agreed decision to bring a legal end to their marriage.
Consent in the context of divorce is a sensitive issue and I appreciate that it is unfortunate when one party does not wish to become divorced. The changes within this Bill rightly recognise that marriage is a voluntary union of two people who both wish to be with each other and it is therefore a marriage, not a divorce, that requires consent. The current court decree made under the existing law does not record whether or not the divorce has been contested, and the present concern may proceed upon a misapprehension that being a respondent to a divorce means accepting the blame for the breakdown of the marriage. That is not the case. The existing legal process seeks to determine only that a decree of divorce can be granted following the irretrievable breakdown of the marriage.
The law itself does not—indeed cannot—say who, if anyone, was to blame for that breakdown. It would not be helpful to allow the respondent to come forward in circumstances where they were content to be divorced but wanted to make clear their views about the cause of the breakdown. That would not assist. Indeed, it could provide the foundation for greater disharmony than would otherwise be the case if we were to maintain the present provisions of the Bill.
Giving a married couple the choice to make a joint application strikes the appropriate balance in these circumstances, and I invite the noble Baroness to withdraw her amendment.
Baroness Howe of Idlicote
My Lords, I am grateful to the Minister for what he has said. It is a probing amendment and has afforded me an opportunity to make an important point about speaking up for the respondent. I will reflect on the Minister’s response but, for the moment, I beg leave to withdraw my amendment.
Lord Farmer
“Report on the impact on divorce applications and marriage support
(1) The Secretary of State must publish an annual report on the impact of this Act on divorce proceedings and marriage, with the first report to be published no later than 18 months after the day on which this section comes into force.(2) The report under subsection (1) must include, but is not limited to—(a) the number of divorce applications made under the provisions of this Act by the sex and income of the applicant and respondent;(b) the number of married couples or civil partners who seek relationship counselling during the divorce process, broken down by the demographics of the parties and geographic location;(c) the number of children in the relationships subject to the divorce applications; and (d) a statement on the support services and marriage counselling available to married couples or civil partners as an alternative to divorce proceedings under this Act.(3) The report under subsection (1) must be laid before each House of Parliament.”
Lord Farmer
My Lords, I am not at all convinced by the Government’s family test statement for the Bill, which says that there will be next to no long-term impact on divorce rates and that marriage will be unaffected. They again draw on Exeter University:
“Concerns that the removal of fault will undermine marriage and prevent reconciliation are not consistent with the research evidence or international experience.”
As I said at Second Reading, research relied on by the Ministry of Justice found that marriage rates reduce by about 3% to 4% following the introduction of no-fault divorce, and the likelihood of divorcees remarrying declines by around one-third to one-half. As Professor Justin Wolfers says,
“the benefits of marriage (tying your spouse to a contract) are reduced in a no-fault world.”
Less marriage will tend to mean more cohabitation, an inherently less stable relationship form. The whole of society is affected when the contract of marriage becomes devoid of meaning.
How will it impact divorce rates? Such reform leads to an immediate spike in the divorce rate that apparently dissipates over time. Let us be clear: that spike is made up of people, adults and children. If couples are struggling to persevere, the introduction of no-fault divorce undermines an important cultural underpinning of assumed permanence to marriage which could push such marginal couples into divorce. I am not, of course, arguing that couples should stay together if there is irresolvable violence, abuse or conflict. It is unsurprising if the numbers drop back, given that people are marrying less and that the divorce rate is calculated as a percentage of married couples.
Because of the many and varied ramifications of family breakdown which we have heard about this evening, which include education failure, poor mental health in children, increased pressure on housing stock, loneliness and fatherlessness, which can lead to gangs and county lines, the Government should commit to tracking the trends that follow this legislation. It is very important to do so. It is not enough that the Office for National Statistics collects the data. That is not the same thing as the data being laid before both Houses. The Government need to publish reports on family stability, as they committed to do when the Welfare Reform and Work Act was discussed in this House.
History has shown that we need to pin the Government down when it comes to tracing family stability. During the passage of the then Welfare Reform and Work Bill, the coalition Government promised to introduce a new duty to report on worklessness and educational attainment. They said that
“alongside these statutory measures we will develop a range of non-statutory indicators to measure progress against the other root causes of child poverty, which include but are not limited to family breakdown, addiction and problem debt. Anyone will be able to assess the Government’s progress here. The Government are saying, ‘Judge us on that progress’.”—[Official Report, 9/12/15; col. 1585.]
Lord McColl of Dulwich (Con)
My Lords, Amendment 19A is in my name. One of the headline Conservative Government commitments in the relatively recent past was abolishing the couple penalty. The couple penalty, noble Lords will recall, was the unintended fiscal incentive for a couple with children on low to modest incomes not to live together or marry because of the benefits that would be lost. Abolishing this was a headline Conservative manifesto commitment in the 2010 general election. At that time the Government’s primary concern with respect to marriage was the removal of obstacles to marriage, whereas today, their focus in this Bill seems to be on removing obstacles to divorce.
In this context, I have tabled this amendment for two reasons. First, I think that as the Government engage with this new task, it would be wise to pause to reflect on the progress made in relation to the earlier task of abolishing the couple penalty. Given both the importance of removing the couple penalty to help couples commit, and the potential for easier divorce to inflame the commitment problem in the presence of an ongoing couple penalty problem, it would be premature to prioritise making divorce any easier until we have dealt with the couple penalty problem.
Secondly, we must understand the impact of the couple penalty on divorce itself. If a couple on low or modest income manage to marry despite the couple penalty, they will none the less feel the negative impact on their marriage in that, if they were to terminate it, they would experience some fiscal benefits. For this reason, it is very important that we understand the impact of the couple penalty on divorce rates.
The main mechanism identified by the Government for addressing the couple penalty was the marriage allowance. A fully transferable marriage allowance was proposed by the Centre for Social Justice, commissioned by the Conservative Party and chaired by the right honourable Iain Duncan Smith MP in 2007, and adopted by the then Conservative Party leader, David Cameron.
Some upper- and middle-class people scoffed at this proposal, stating sarcastically that they got married for love. The idea that anyone would fall in love for fiscal reasons was plainly nonsense, and the suggestion that the purpose of the couple penalty was to assist in this regard only helped demonstrate just how out of touch with reality the wealthy scoffers were.
The point was simply that, when a couple fall in love and decide that they want to be together, they have a choice about what form their relationship should take. If formalising their commitment through a “till death us do part” marriage commitment would cause them to lose benefits, they would be more likely to formalise their relationship in some other, less stable way.
The point of dealing with the couple penalty was that, if the tax and benefit design had the unintended consequence of making it harder for couples on low to modest incomes to formalise their commitment through marriage, with all its benefits for adult and child well-being, the couple penalty was a bad thing and should be removed. However, at the beginning of the 2010 general election campaign, Mr Cameron explained that a fully transferable allowance could not be afforded immediately and that we would start with a provision allowing a non-earning spouse to transfer 11.6% of his or her allowance to an earner spouse. He added that he wanted the allowance to be increased and that he was sure that in the course of the Parliament it could be.
The marriage allowance was not actually introduced until the very end of the Parliament, in 2015, and then only as an even more meagre 10% allowance. It has continued to be just 10% ever since. At 10%, the marriage allowance is so small that it barely makes any impression on the couple penalty, which remains very considerable. In this context, we must assume that the couple penalty continues to act both as an obstacle to entering marriage and as a pressure for divorce.
As the Government have moved on to prioritising helping people to leave marriages with greater ease, there is now an urgent need for them to address the couple penalty problem in order both to remove an obstacle to marriage and to remove a strain on marriages that we must assume provides a fiscal incentive for divorce. If the Government want to get this Bill through, they would be well advised to use the Budget to significantly increase the marriage allowance in order to be seen to balance their efforts to help people to leave marriages more quickly with efforts to strengthen marriage.
Lord Mackay of Clashfern
My Lords, I put my name to the amendment of my noble friend Lord Farmer with the view that, if it is easy to produce those results, it might be quite wise to do so.
So far as the amendment of my noble friend Lord McColl of Dulwich is concerned, I noticed that he said that the Bill was intended to remove an obstacle to divorce, but I do not really think that that is a fair way to describe it. As far as I am concerned, the Bill deals principally with an unnecessary irritant to the relationship between divorcing parties. It does no good: it does not establish fault or anything of the kind; it just creates the possibility of renewed ill feeling as a result of a rehearsal of what one party to the marriage thinks about the other party. That is often not particularly flattering and certainly not particularly comforting, and removing it does not seem to remove an obstacle to divorce at all.
Lord Keen of Elie
My Lords, I begin with the amendment moved by my noble friend Lord Farmer. The requirement sought within the amendment to report annually on the number of divorce applications is unnecessary, as this data is already publicly available and published in the Family Court Statistics Quarterly.
The amendment also seeks a requirement to gather data on the sex of applicants for divorce. This is also unnecessary, as official statistics already break down the number of divorces per year by the gender of the applicant. In addition, the amendment seeks a requirement to collect data on the income of applicants. However, such data would be unduly onerous for the courts service to collect and, more so, unduly intrusive for the applicants to supply.
The amendment also seeks a requirement to report on the number of divorcing couples who seek relationship counselling during the divorce process alongside relevant demographic information. Such information could not be provided without forcing divorcing couples to declare it, thus introducing an unnecessary burden at what is already a difficult time for them. The choice to seek such counselling during the divorce process would be a personal one for those involved.
In summary, as much of the information referenced in this amendment is already publicly available, the requirement to report on it would be unnecessary. As regards the other kinds of information referenced by the amendment, they would be not only onerous to collect but raise very real issues around what is appropriate from the point of view of demand placed upon applicants for the divorce process. I therefore respectfully invite the noble Lord to withdraw that amendment.
I turn to Amendment 19A. The noble Lord, Lord McColl of Dulwich, is persuaded that marriage brings many social benefits. The Government agree. However, if a marriage is broken down irretrievably, there is no virtue for the family involved or society at large in it continuing. This amendment would mandate an annual report to Parliament, which I presume the noble Lord, Lord McColl, intends to complement the data sought by the noble Lord, Lord Farmer, in Amendment 19. However, it is not clear how the survey would operate or exactly what it would seek to demonstrate beyond, perhaps, interest in the married couple’s allowance.
Divorce is something in which society rightly takes an interest, but it is also a deeply personal and often distressing matter for the individuals involved. While I respect the courtesy of the noble Lord, Lord McColl, in proposing that participation in his survey would be voluntary and anonymous, the Government believe that such an invitation would be unnecessarily intrusive in any event. At worst, many of those questioned might feel that they were being asked to justify the state of the ending of the marriage, which strikes against the whole intention of the reform, for which it would appear to me that wide support has already been demonstrated in the House.
There is also an issue of the point at which the survey would be conducted. People’s perceptions of the divorce process will change between the time that they make an application and secure the divorce—or some time after, when they have gone through the process and been able to address it with the benefit of hindsight. The Government believe that this amendment would reintroduce an element of conflict into the divorce process. It would certainly be intrusive for those engaged in the divorce application. In these circumstances, we would not be prepared to accept it, so I invite the noble Lord not to press it.
Lord Farmer
My Lords, I am again saddened at the response from my noble friend the Minister. I may have misunderstood something but, to my knowledge, my amendment did not seek to find out any financial information. This report was to be put before Parliament so that it could respond to this Bill—the unilateral or no-fault divorce Bill—when it becomes law.
It is quite a big Bill on marriage to come through Parliament and become law. It is very important to me that Parliament can respond to the response to the Bill shown in marriages. How many people are getting divorced? Is it more? How many children are involved? What sort of support services are involved? Is there marriage counselling? There are all those things. It is important for both Houses of Parliament to look back and say, “Is this good? Is it working as we intended?” I am sure that my noble friend the Minister is right that this information is available here, there and everywhere. However, we want it brought back to us in one body related to this Bill.
Therefore, I am saddened at that response. Obviously, I will go no further on this occasion but this may come back on Report. In the meantime, I beg leave to withdraw my amendment.
Baroness Deech
“Review of operation of certain sections of the Matrimonial Causes Act 1973
(1) The Secretary of State must conduct a review of the operation of sections 25, 25A and 34 to 36 of the Matrimonial Causes Act 1973 (the “Act”) to determine whether they—(a) properly reflect the patterns of family life of the present day,(b) provide for a system which is reasonably predictable in its outcomes from case to case, and(c) act to exacerbate the costs of legal representation which must be expended by parties litigating thereunder.(2) The review must in particular consider—(a) whether it would be appropriate for provisions akin to sections 9, 10 and 24 to 26 of the Family Law (Scotland) Act 1985 to be incorporated into the Act to assist the court in its determination of the matters to which the court is to have regard pursuant to section 25 thereof,(b) whether the operation of sections 25 and 25A of the Act in relation to the quantum and term of periodical payments is appropriate in the context of changes in the labour market since their entry into force, (c) whether agreements between parties (or prospective parties) to a marriage in relation to their financial arrangements should be presumptively binding on the court,(d) whether the provisions of subsection 25(1) of the Act are of meaningful effect in the majority of cases, and(e) any amendments to sections 25, 25A and 34 to 36 of the Act which may be necessary in consequence of the review.(3) The Secretary of State must begin the review before the end of the period of six months beginning with the day on which this Act is passed.(4) The Secretary of State must lay before both Houses of Parliament a report of the conclusions of the review and of any proposals which it makes within one year of the commencement of the review.”
Baroness Deech
My Lords, I thank the Minister for having spent some time with me and other supporters a week ago to discuss this. It was very constructive. If I do not press my amendment, it will be on the basis that he has given a commitment here to carry out a broad consultation on financial provision law, and indeed a speedy one. I offer a word of warning. I am worried about strong lobby groups that will try to take this over. Some of my best friends are barristers—I studied with them, taught them, regulated them, and I have been represented by them—but the eyewatering amounts that they charge in divorce is upsetting. I am married to a solicitor and I know that they get in on this act as well. I am not saying that they do not deserve it, but for poor couples who have no legal aid the legal costs are exorbitant. That is why I am worried about a consultation that is too heavily weighted towards the views of the legal profession. We need to hear from women’s groups and, indeed, from men; we need to hear from people who have been through a divorce—members of the public—and how it has affected them. We need also to remember that there is more than one feminist view on this. Indeed, as we might expect, there is a split between feminists on quite what the right outcome should be, financially, at the end of the divorce. I am grateful that the Minister has undertaken to have a wide-ranging and speedy review, so that the financial law will eventually get into line with the new divorce law.