House of Lords
Lord Speaker’s Statement
The Lord Speaker (Lord Fowler)
My Lords, yesterday I made a Statement about Parliament’s response to the spread of Covid-19. Yesterday evening, the Government issued new advice; it is right that we respond by taking further action here in Westminster.
As the Prime Minister has stated, we are all now involved in the national fight-back against the virus. Parliament will continue to sit—that is important—but the way we operate will have to change. In addition to the measures we announced last week about official travel and access to the Parliamentary Estate, non-essential access to the Parliamentary Estate for non-passholders will now cease. Access to the public galleries and side galleries of both Chambers will now be restricted to use by Members only. Non-passholders will not be admitted to observe Select Committee proceedings, but witnesses will still be able to attend. Democratic access tours arranged by Members will be cancelled, and no further bookings will be taken. The parliamentary education centre will close, educational and school visits will cease, and no further visits will be arranged. There will be certain changes to the catering provision on the Parliamentary Estate. Further details will be communicated by the Administration later today.
Copies of my letter, together with details of these new arrangements, are now available in the Printed Paper Office. Mr Speaker and I, together with our commissions, will keep arrangements under constant review. I thank you once again for your continued co-operation.
I just want to add something. The Government have also issued specific advice about social distancing for those aged over 70 and those with specific underlying health conditions. Obviously, that has particular implications for Members of this House. I want to emphasise one point: no one should consider it their duty to be here in these circumstances. As parliamentarians, we also have a duty to show leadership and heed the advice of the public health experts. In my view, Public Health England, the Chief Medical Officer and the Chief Scientific Adviser are serving our nation exceptionally well. I ask that everyone now reflects on their own situation in the light of their advice and in the broader public interest.
Anti-terrorism Policy
(4 years, 7 months ago)
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Lord Pearson of Rannoch
To ask Her Majesty’s Government what plans they have, in pursuit of their anti-terrorism policy, to conduct an inquiry into the accuracy of the Religion of Peace website; and whether they will publish the results of any such inquiry.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Government do not currently plan to conduct an inquiry into the accuracy of the website. UK legislation values free speech and enables people who wish to engage in debate to do so, regardless of whether others agree with the views being expressed. However, freedom of speech cannot be used as a reason to break the law or to spread intolerance and hate.
Lord Pearson of Rannoch (Non-Afl)
My Lords, I thank the Minister for that reply, but I fear it shows that the Government still have their head in the sand about the realities of Islamism. Does the Minister accept that we can say what we like about any other religion but our freedom of speech is curtailed when we try just to talk about Islam and are promptly accused of Islamophobia? Secondly, do the Government think that they are really doing enough to encourage and support our brave Muslims who do not agree with the Islam revealed by the Religion of Peace website, and who want to follow a reformed version, at peace with the rest of us? Would not the proposed inquiry contribute much to their cause?
Baroness Williams of Trafford
My Lords, as I said, we do not intend to institute an inquiry into this website. If he so wishes, the noble Lord can refer the website to the counterterrorism referral unit that looks at websites that might contravene counterterrorism legislation, to have it taken down. But freedom of speech is not an excuse to break the law or to stir up hatred. It is right that hate speech is not acceptable in this country.
Baroness Warsi (Con)
My Lords, it is interesting to hear once again the House talk about Islam; we seem to do nothing but talk about Islam, especially the noble Lord. Does the Minister accept that, at a time when households up and down the country, and indeed around the world, are concerned about their lives and livelihoods, it is unusual for this House to be discussing a website whose main role appears to be division and hate, when what we should be doing in this House is showing leadership by demonstrating community and tolerance? Are the Minister and the Home Office concerned that a number of people who write for this website have been excluded from entering the United Kingdom because they are considered as not being conducive to the public good?
Baroness Williams of Trafford
To answer my noble friend’s last question first, I had a brief look at the website, and it does not look like the sort of website that I would want to derive any information from. She is absolutely right in what she said about showing leadership at this time. One thing I saw on the news the other day was Muslims in, I think, Leeds, making up bags of food for older people who could not get out of their homes. On her point about those concerned with their livelihoods, we know in times of difficulty where our friends are.
Lord Rosser (Lab)
In September last year, the head of counterterrorism said that far-right extremism was the fastest growing terror threat in the UK. Do the Government agree that that is the case? What action are the Government taking to address this situation, including reviewing Prevent, part of their terrorism prevention programme?
Baroness Williams of Trafford
I most wholeheartedly agree with the noble Lord’s first point: far-right extremism is indeed on the increase at a rate that we did not think possible some years ago. In fact, it makes up 50% of referrals to Prevent. Prevent is currently being reviewed, but I think it provides a valuable tool for safeguarding very vulnerable people from the far right and any other type of extremism.
Lord Hain (Lab)
My Lords, does the Minister agree that we have seen an unprecedented convergence of anti-Semitic attacks, Islamophobic attacks and racist attacks? Never before in our history have we seen these three forms of race hatred all converge; that is what makes it particularly threatening. Does she also agree that the many UKIP and Brexit Party members who have been accused of Islamophobia should stand condemned?
Baroness Williams of Trafford
Without calling out any particular party, anybody who engages in anti-Semitism, Islamophobia or any other type of hatred should be condemned. It is up to all political parties to show leadership to this end. The noble Lord is absolutely right that there is an almost perfect storm of far-right and Islamist-type extremism, whose messages are similar but opposite in tone. It provides a perfect melting pot, as he says.
Lord Pearson of Rannoch
My Lords, if no other noble Lord wishes to enjoy this Question, I wonder if I might ask another. Does the Minister agree with the most reverend Primate the Archbishop of Canterbury, who said recently that we will never defeat Islamism if we do not understand Islam?
Baroness Williams of Trafford
There is something in that question, around theological learning and teaching in this country, which can be derived from several parts of the world, each having their own interpretation of Islam. I totally agree with the point that we need more experts in the field of Islam, particularly in prisons and other places where ignorance can proliferate the wrong teaching.
Children: Special Educational Needs
(4 years, 7 months ago)
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Lord Blunkett
To ask Her Majesty’s Government when they expect to publish the outcome of their departmental review into children with special educational needs, announced on 6 September 2019, and whether this will include a response to other recent reviews and consultations on this subject.
The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)
My Lords, the Government are committed to carrying out a SEND review. The 2014 reforms gave vital support to more children, but we know that for too many children and parents the vision has yet to become a reality. We all want a system of support for those with special educational needs and disability which is consistent, high quality and integrated across education, health and care. We will take the time we need to get that right, drawing on evidence from the relevant reviews.
Lord Blunkett (Lab)
My Lords, at a time of enormous challenge, those who face challenges on a daily basis need our support most of all, so it is extremely disappointing news about the review of the education high-needs block for local government, which started between May and July last year, and the review that the Minister referred to, announced in September last year. The House of Commons Select Committee report of 23 October, which has not yet been responded to, and the Budget on 11 March, failed completely to deal with the challenges that children with special educational needs and their parents face on a daily basis. Is it not time that there was action rather than review?
Baroness Berridge
My Lords, the review is a comprehensive review led by the Department for Education across government. It incorporates last year’s call for evidence on the funding of schools. We need to take the time to get this right. This year, we have given another £780 million to support education for those with special educational needs and disability. At this time, it is not possible to give a specific timetable for the publication of the review. I hope noble Lords will understand that.
Baroness Penn (Con)
My Lords, can my noble friend tell us what the focus of the review of the autism strategy will be, and whether it will focus in particular on providing more support for girls with autism?
Baroness Berridge
I am grateful to my noble friend. Under the 2009 Act, the Government are required to review the autism strategy every three years. This is the first time that the strategy will include children and young people; my noble friend is correct that one of the areas we will also address within that review is the misdiagnosis, and what we are convinced is an underdiagnosis, of girls with autism, who often present later and are better at camouflaging it. They often present very differently to boys with autism.
Lord Addington (LD)
My Lords, do the Government accept that there are huge numbers of people who have moderate problems, which are being left for a long time and then have to be dealt with in the high-needs category? This is because we are not investing in classroom support. Could this be a key part of any review and new strategy? At the moment, all it does is to make people’s lives worse and costs us more money.
Baroness Berridge
My Lords, I will take the specific question for the review about moderate needs becoming high needs. As the noble Lord will be aware, most young people who have special educational needs and disabilities—the SEND population—are accommodated within mainstream schools and without an EHCP, which was in the 2014 reforms. We are providing through dyslexia organisations and the Autism Education Trust, as he will be aware, further teaching qualifications and support for those in the classroom.
Lord Watson of Invergowrie (Lab)
My Lords, I endorse the concerns expressed by my noble friend Lord Blunkett, but there is a more immediate issue as far as special educational needs are concerned. It can surely be only a matter of time now before all schools in England are closed. When that happens, the effects will be widespread across the country but for SEND children and their families, the impact will be profound. What planning are the Government undertaking with a view to ensuring that the vital support that SEND children and their families rely on will be prioritised in the weeks and months ahead? Will local authorities and other agencies be properly funded to enable them to deliver it?
Baroness Berridge
I am grateful to the noble Lord. Obviously, within priorities at the moment the most vulnerable group at risk has been that of older people; but, as of last night’s guidance, there was reference to those young people with specific medical conditions, such as severe asthma or cystic fibrosis. They will be contacted directly by the NHS. But we are acutely aware that there are groups of young people, particularly within the SEND population—for instance, those in special residential schools—where there are implications in having any kind of household-type isolation. There are also profound implications for the families; those children are in residential special provision for very good reasons. As we completely realise, it is not as simple as saying “You now need to go home”, so that guidance is being worked on as well.
Lord Lexden (Con)
My Lords, is it not important to try to reduce the large sums of public money that are being spent by local authorities as they attempt to resist legitimate requests by families for special educational needs?
Baroness Berridge
My Lords, I think my noble friend is referring to the tribunal process. Since 2014, the percentage of decisions being taken to the tribunal as a proportion of the overall number of plans is the same. Numerically, it is going up because the number of plans is going up. There are actually now five different decisions, or combinations of decisions, that parents can appeal. But my noble friend is right, too: we have given £365 million of capital so that local authorities can build more spaces because—he might not be happy to hear this—it is actually cheaper for local authorities to provide the spaces themselves, rather than use private or independent providers.
Baroness Uddin (Non-Afl)
My Lords, I declare my interest in that I have an adult son with learning disability and autism. Will the Government’s review consider ring-fencing the money for special educational needs, which has always been a problem? This is especially given the fact that local authorities and other institutions are facing extreme cuts and pressures at this time.
Baroness Berridge
My Lords, as I understand it, the funding goes out to local authorities and schools now receive, within the national funding formula, a proportion of that money. The money that I referred to—what is now over £7 billion— is given to local authorities and it is for them to determine locally what the needs of their population are. We believe that to be the right strategy, as they are closer to the needs on the ground.
EU: Negotiations
(4 years, 7 months ago)
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Baroness Hayter of Kentish Town
To ask Her Majesty’s Government what contingencies they have put in place in the event of any delay to the negotiations with the European Union due to COVID-19.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, the Government are giving the highest priority to the welfare of all citizens—and, indeed, those of friendly nations—in the coronavirus crisis. Given the latest developments, we are of course in regular contact with the European Commission to explore alternative ways to continue discussions and we will be guided by scientific advice.
Baroness Hayter of Kentish Town (Lab)
I am pleased about that last comment, because we need not just Brexit but the right Brexit. This week’s talks have been cancelled because of Covid-19, and the attention of not only our Government but all the EU Governments is on that crisis. I ask the Government to take account of that, and of the fact that businesses are concentrating more on their survival than on preparations that they will have to make for the end of the transition. Should it become advisable not to walk out of the talks in June if we have not made enough progress, will the Government not be hidebound by their repeated holding on to a particular date and, if necessary, allow the talks to continue? With this global crisis, surely it is important to get the right Brexit, not just a rapid one.
Baroness Ludford (LD)
My Lords, in his reply to the debate on the EU Committee’s report yesterday, the Minister made an absolutist statement that “under no circumstances” would the Government “accept an extension”. This contrasted interestingly with an earlier response to my noble friend Lord Oates by the Minister’s colleague the noble Lord, Lord Goldsmith of Richmond Park, at Question Time, who said:
“Were it the case that the … Government felt the need to do such a thing”—
amending the EU withdrawal Act—
“they would take the step that the noble Lord has outlined”,—[Official Report, 16/3/20; col. 1274.]
so that they have the power to extend. However, that is not the Government’s view today. The answer from the noble Lord, Lord Goldsmith, was much more flexible. Does the noble Lord, Lord True, accept that a flexible rather than absolutist, rejectionist policy towards extension would be regarded by the House and by the country as statesmanlike, rather than as some kind of cave-in?
Lord Forsyth of Drumlean (Con)
My Lords, is more uncertainty not the last thing that business needs at the moment? For the Government to sound an uncertain note on our determination to leave the European Union, as has been agreed, would be a great mistake. When the noble Baroness, Lady Hayter, talks about the right Brexit, we all know that she thinks that the right Brexit is no Brexit at all.
Baroness Hayman (CB)
My Lords, the Minister talked about the ongoing discussions and the coronavirus emergency in his Answer. Could he tell the House what discussions are going on about relationships with the European Medicines Agency? I hope that we will have new vaccines and new medicines, which need a speedy, combined and accepted recognition and licensing process. It would be a great shame, since we no longer have the European Medicines Agency here, if we were not in the closest co-operation with it over this very urgent matter.
Lord Anderson of Swansea (Lab)
My Lords, Parliament did indeed accept the ambitious timetable of the Government but, since then, an amendment has been moved—namely, the crisis of coronavirus. Surely the Government should be sufficiently flexible to see that things have changed and to realise that perhaps the conference calls and so on will not deal with a situation where many of the potential negotiators are unable to leave their own countries because of lockdown.
Lord True
My Lords, I hear what the noble Lord says and understand where he is coming from, but I must repeat that both sides remain fully committed to these negotiations and to continuing them. Of course we are looking at the possibility of videoconferencing and conference calls as he suggests. That is the resolve of both parties in this negotiation.
Lord Falconer of Thoroton (Lab)
Can the noble Lord tell the House whether the emergency legislation that we will be considering, either at the end of this week or the beginning of next week, will contain power for the Government to amend the withdrawal Act?
Lord Grocott (Lab)
My Lords, I doubt anyone would disagree that the absolute priority—a term we sometimes use loosely—of the Government at present must be to deal with the virus. However, in the way that different countries have reacted, is it not at least worthy of reflection—I put this in as neutral a way as I can—that when individual citizens of individual countries face a real crisis, they look not to supranational bodies to resolve it, although of course they want countries to co-operate with each other, but to their own Government? In many cases, that leads to them closing their own frontiers. Does that not give some pause for thought about the continuing expectation of the populations of individual nation states to look to their own Government in times of crisis?
Lord True
The noble Lord makes a very interesting point. Of course, it does not in any way resile from the views of those countries about their membership of the European Union. It is not for us to comment on the policy of other countries, but he is certainly right that different approaches are being made by different countries. Each one will adopt policies, as we are, in the interests of securing the livelihoods and lives of its citizens.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, since I doubt that the Minister will agree with anything I say about the European Union, can I try to find some consensus with him? Will he agree with me that one of the very few positive things to come out of this awful coronavirus epidemic is the fact that a second Scottish independence referendum is off the agenda for the foreseeable future?
The Lord Speaker (Lord Fowler)
Does the noble Lord want to say something more? It seems not.
Smart Motorways
(4 years, 7 months ago)
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Baroness Quin
To ask Her Majesty’s Government what further discussions they will have with motorist organisations and others concerning the implementation of their recently announced plan for smart motorways.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, last week the Government published an 18-point action plan to improve safety on our smart motorways. Whether it is increasing public awareness and understanding of smart motorways, helping to improve training and procedures for recovery workers or getting places to stop in an emergency shown on satnavs, to give just three examples, I can assure the noble Baroness that we will continue to have discussions with motorist organisations and others to deliver the plan.
Baroness Quin (Lab)
My Lords, I am grateful for that reply. I think the changes announced by the Government last week have been welcomed, but there are certainly fears that they still do not go far enough and that, in particular, the distances between refuge areas will still be too great. Given that surveys have shown that only one in 10 members of the public feel safe on all-lane running motorways, will the Government keep this under urgent, constant review and, if necessary, be prepared to abandon their use altogether?
Baroness Vere of Norbiton
The noble Baroness makes a number of interesting points. There are two things to consider here: actual safety and the perception of safety. On emergency refuge areas, we are doing all sorts of things to ensure that they are more visible. On new motorways, the standard will be that they are three-quarters of a mile apart. We are making sure that, where possible, they meet the 15-foot width standard. As for the perception of safety, the important thing is that drivers understand what a smart motorway is, how it can benefit them, how they should use it and, if they get into trouble, exactly what they need to do.
Baroness McIntosh of Pickering (Con)
My Lords, will my noble friend the Minister take my thanks back to the Government following the debate to which she kindly responded recently? Will she accept that the smart technology is not up to speed for the smart motorways, and will the Government delay the continuation until the smart technology is in place?
Baroness Vere of Norbiton
I thank my noble friend for her warm words about the report and put on record my thanks to everybody in the department who worked on it. It was an enormous undertaking, involving a huge amount of data that had to be analysed. I am perhaps not entirely sure to what the noble Baroness is referring as all sorts of technology already exists on these motorways, be that the red “X” signs to prevent people travelling in certain lanes, the enforcement of those signs, or the MIDAS speed monitoring systems. All sorts of things are in place. She may have been referring to stopped vehicle detection, which we are rolling out more quickly than we originally anticipated; that will be in place within three years.
Baroness Randerson (LD)
My Lords, the smart technology not in place in most cases is that needed to detect vehicles stopped in the inside lane. The outcome of the review gives Highways England up to 36 months to roll this technology out. Does the Minister agree that 36 months is a long time for vital technology that is core in relation to the safety of these motorways? Does she agree that they should be converted back to their original layout, with hard shoulders, until technology has been fully installed in each individual case?
Baroness Vere of Norbiton
I am afraid I cannot agree with the noble Baroness. She is referring to stopped vehicle detection, which is just one type of technology and the safety case is not dependent on it. There are two other technologies that can also make sure that stopped vehicles are seen. They are MIDAS, as she well knows, and the CCTV that covers all elements of the smart motorway system. I would like the noble Baroness to consider one thing: does she accept that, if we were suddenly to turn around and put back the hard shoulder on all these motorways, by putting roadworks on those roads, we would immediately make those roads less safe?
Lord Adonis (Lab)
My Lords, can the Minister give the House the accident rate on smart motorways as opposed to conventional motorways?
Baroness Vere of Norbiton
My Lords, that was the absolute crux of the 79-page report that we have prepared. We looked at it in two different ways. We looked at the average numbers and then delved down into the detail on whether a motorway, when it becomes a smart motorway, is more or less safe. I therefore encourage the noble Lord to read the 79-page report, if he has time over the coming weeks. From that, he will see that, in most ways, smart motorways are safer. In a smaller number of ways, on specific things, they may not be, but that again is within the margin of error. We are acting on these 18 points because it is absolutely important that people should feel safe as well as being safe.
Lord West of Spithead (Lab)
My Lords, speaking as a simple sailor, it seems amazing to me that we call this smart. We have a road on which cars go along at about 70 miles per hour. If your car goes wrong, you stop in that road where cars are doing 70 miles per hour. I cannot see how that is smart when quite often there is no large gap where you can pull over. I would certainly not feel very happy if my car broke down—luckily it does not do that very often—having to stop on the inside lane of a motorway where traffic is belting along at 70 miles per hour. It does not seem very smart.
Baroness Vere of Norbiton
The noble Lord will be well aware that if you are barrelling along at 70 miles per hour on the A31 Hog’s Back and you stop, there is no technology at all and there is no hard shoulder. We have roads all across our country that do not have a hard shoulder.
Baroness Vere of Norbiton
But you travel on them. You can do very high speeds and there is no technology to detect a car that has stopped. I shall go back to say something about something that is quite in vogue at the moment, which is evidence. That is what we did. We went back and looked at the evidence. I accept that the risk on a smart motorway may be different, but if you stop on the hard shoulder of a conventional motorway, that, too, is not safe. One in 12 fatalities happen on the hard shoulder of a conventional motorway. I encourage all noble Lords to go back to the evidence and have a look at exactly what it says. These motorways are in most ways as safe as, or safer than, conventional motorways.
Covid-19: Business Interruption Insurance
(4 years, 7 months ago)
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Lord Clement-Jones
To ask Her Majesty’s Government what consideration it has given to the ability of entertainment and hospitality businesses to claim on their business interruption insurance policies where customers have been advised to stay away but no order for closure has been given.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, the Government understand that this has been an unprecedented time for these industries and that Covid-19 has indeed had a very profound impact. At the Budget last week, the Government set out a £30 billion fiscal stimulus to support British people, British jobs and British businesses. I think the noble Lord will be aware of the statement this morning from the Association of British Insurers saying that the vast majority of businesses would not be covered for business interruption of the type we are talking about under their insurance, but my right honourable friend the Secretary of State is having calls across the industry this afternoon to make sure that our lines of communication are open.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for that reply. I, too, have read the statement from the ABI. This is a major issue which has rightly received extensive and negative attention in the media. These businesses are in limbo and are threatened with ruin as a result of being unable to invoke the terms of their business interruption insurance policies. Will the Government now reconsider their policy and direct closure, as has been the case in so many continental countries? It is much more likely—although not certain, as the ABI statement makes clear—that claims will be successful in those circumstances. The other alternative is for the Government to put their own scheme in place where insurance is not available. It is incumbent on the Government to show that they understand what business is facing.
Baroness Barran
The noble Lord is quite right. Across government we are trying to understand the challenges that business is facing, which is why all Ministers are in regular, frequent conversations with the key stakeholders they represent. I referred to the package of measures in the Budget, but we know that given the scale and speed of this epidemic we need to do more and we need to do it quickly, which is why the Chancellor will be addressing the other place with a package of measures at 7 pm today.
Lord Hunt of Kings Heath (Lab)
My Lords, earlier today in the other place, during a debate on finance, it was said that Ministers in the Treasury would be meeting the insurance industry this morning, I think. The Minister said that lines of communication are open, but what is the nature of the discussions with the industry? Are the Government telling the insurance industry that it needs to refocus its effort on supporting its customers or, as the noble Lord, Lord Clement-Jones, suggested, will they underpin these businesses with, in essence, their own insurance policy?
Baroness Barran
To be clear—the noble Lord will appreciate this—the discussions are across many industries, and this industry is critical. There is something about stitching those different conversations together in terms of the overall package. On the approach, we are trying to sequence the priority issues, of which cash flow seems to be perhaps the most pressing in the short term, but I do not want to—and cannot—anticipate exactly what my right honourable friend the Chancellor will say this evening.
Baroness Warsi (Con)
My Lords, I declare an interest as a director and shareholder of a number of businesses, which are set out in the register. My noble friend will be aware of the Chancellor’s announcement last week of the business interruption loan guarantee, an essential announcement which could be the difference between a business surviving or going under in the current crisis. Having spoken to a number of banks about how it will play out, the clear indication is that they do not have guidance from the Treasury about what this package will look like. We are now nearly a week on from that announcement. As noble Lords will appreciate, businesses are looking to stabilise their finances now to ensure that they keep people employed. Does my noble friend have any idea of what guidance has been given, when it was given and when businesses will hear from banks about the package of measures that could be put in place to stabilise them?
Baroness Barran
My noble friend makes a very important point. A new coronavirus business interruption loan scheme, which is being delivered by the British Business Bank, will launch in a matter of weeks—I cannot give a more precise answer than that—to support businesses to access bank lending and overdrafts. In addition, all businesses and self-employed people who are in financial distress in relation to their outstanding tax liabilities may be eligible to receive support with their tax affairs through the HMRC’s time-to-pay service.
Baroness Kennedy of The Shaws (Lab)
My Lords, what might be done about theatres? Only this morning Tamara Rojo, the great ballerina and the leader of English National Ballet, pointed out that unless the Government say that theatres should close, they will have no access to insurance to cover the losses they will incur in having brought companies together and so on. Their insurers are requiring that there is a direction from government that they close in order to protect public health. Is it the Government’s intention to protect our arts, which are so important and which run on very tight margins?
Baroness Barran
The noble Baroness makes an important point about the contribution of the arts to this country. The department is extremely aware of that and is proud of our arts and anxious to protect them. On insurance, as I said to the noble Lord, Lord Clement- Jones, the Association of British Insurers has already said that the vast majority of businesses would not be covered in this way. If that is different for theatres, I will write to the noble Baroness. There was also a question about the timeliness of receiving funds in relation to insurance, but the key point is that we are looking at all possible options to support these valued sectors.
Lord Newby (LD)
Does the Minister accept that businesses will hear the phrase “within weeks” with a chill running down their spine? This is intensely urgent. Within weeks businesses will be going bust. Even if the scheme comes in within weeks that does not mean that everybody who wants to benefit from it will get immediate support. Once a scheme is up and running, it takes time for everybody to benefit from it. Will the Minister take back to her colleagues that this is an intensely urgent issue, that a week has gone by since the Budget, that no further guidance appears to have been given, and that weeks and weeks simply will not cut the mustard as far as many thousands of businesses are concerned?
Baroness Barran
I am more than happy to take the noble Lord’s concerns—and, I am sure, those of others in the House—back to the department. What we are trying to balance here is speed, which the noble Lord rightly focuses on, and clarity, which businesses also want. We all hope that we will get more of that from the Chancellor later today.
Lord Forsyth of Drumlean (Con)
My Lords, businesses do not need clarity, they need cash. There is an absolute need for the Government to make it clear that they will change the regulations that prevent the banks providing the support that is needed. I am afraid that the Chancellor is going to have to get himself a helicopter. This is a major financial crisis on a scale similar to what we saw following the banking crisis. If the Chancellor is making a Statement to the other place, will we get the opportunity to have a Statement and discuss these issues?
Baroness Barran
On my noble friend’s final point about the opportunity to review those issues here, I understand that that will be dealt with through the usual channels as speedily as possible. On the need for cash and the need to change regulations, I think that is the point I was trying to make a few moments ago about how we sequence this. Cash flow appears to be the single most pressing issue, and that is where we are focused.
Lord Adonis (Lab)
My Lords, it is my understanding that the Statement is not being repeated later today. Could the Minister take back to the usual channels the acute concern about that? This Statement is the single most important business that Parliament will conduct this week, and I sense that noble Lords would like the opportunity to ask the Government questions about it and to give their views.
Baroness Barran
I understand from my noble friend on the Front Bench that an offer was made to repeat the Statement here today, but the usual channels agreed that the economic debate tomorrow will be used as a platform to debate it.
Covid-19 Update
(4 years, 7 months ago)
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The Minister of State, Foreign and Commonwealth Office and Department for International Development (Lord Ahmad of Wimbledon) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement delivered in the other place by my right honourable friend the Foreign Secretary on Covid-19. The Statement is as follows:
“Thank you, Mr Speaker. As the Prime Minister has said, the coronavirus pandemic is the worst public health crisis for a generation. It is an unsettling time for families up and down the country, so we need a united effort to tackle Covid-19 effectively and come through this challenge, as I am confident we can and we will.
Following on from, and consistent with, the domestic measures announced by the Prime Minister yesterday, and based on the fast-changing international circumstances, today I am announcing changes to the FCO travel advice. UK travellers abroad now face widespread international border restrictions and lockdowns in various countries. The FCO will always consider the safety and security of British nationals. So, with immediate effect, I have taken the decision to advise British nationals against non-essential travel globally for an initial period of 30 days, subject to review.
This decision has been taken based on the domestic measures introduced here in the United Kingdom, along with the changes to border and a range of other restrictions that are now being taken by countries around the world. The speed and range of those measures across other countries is unprecedented. Some of those decisions are being made without notice. In some countries, even in countries or particular areas where cases of Covid-19 have not yet been reported, local authorities are none the less imposing restriction on movement and are doing so with little or no notice at all. In the light of these circumstances, we want to reduce the risk of leaving vulnerable British tourists and visitors stranded overseas. We will of course keep this advice under review and amend it as soon as the situation responsibly allows.
The Government are keenly aware that international freight services such as shipping and haulage are vital for ensuring the continuity of the supply of essential food, goods and material to the UK. We regard this kind of travel as essential, and we will work with industry to ensure detailed advice that maintains the flow of goods while also protecting the well-being of staff working on those routes. The Department for Transport will be leading this work with the freight sector, with the objective of minimising disruption to those routes as far as possible.
At the same time, FCO consular teams are working around the clock to provide the best and most up-to-date information that we can possibly provide to UK nationals. In the last week alone we have made more than 430 changes to FCO travel advice, and obviously we will continue to keep that advice under close and constant review.
We are providing support to British nationals who have been impacted by coronavirus while travelling. During the initial outbreak or containment phrase, we arranged the repatriation of more than 200 vulnerable British nationals from China between 31 January and 9 February. We took that action to support British nationals and control the return of those possibly exposed to Covid-19 at the earliest point in the crisis when it appeared that the virus might be contained in China.
In other cases, such as that of the British nationals affected by Covid-19 infection in a hotel in Tenerife, we worked with travel companies and airlines to ensure that those concerned were safely brought home. We have also changed our travel advice to advise people over 70 or with underlying health conditions against travelling on cruises, to protect those who are most at risk from coronavirus.
We have arranged repatriation from cruise ships, including most recently the 131 UK nationals returned from the “Grand Princess”, docked in California, who arrived home last Wednesday. We have been working intensively with the Cuban authorities and Fred. Olsen Cruise Lines to ensure that all British nationals are able to return quickly and safely to the UK, in relation of course to the “Braemar” cruise liner. We are doing all that we can to ensure that they return to the UK on flights from José Martí airport in Havana within the next 48 hours. The Foreign Secretary spoke with the Cuban Foreign Minister twice over the weekend, and we are very grateful to Foreign Minister Rodríguez Parrilla and the Cuban Government for swiftly enabling this operation, and for their close co-operation in making sure that it could be successful.
As well as those repatriations, UK consular teams are working with those affected by difficult quarantine conditions, the closure of tourist resorts—for example, in Europe and north Africa—or new regulations introduced in various countries where UK nationals are visiting. We will do everything in our power to get those British nationals affected the care, support and practical advice that they need.
We also need to be clear about our capacity to repatriate people from abroad, given the scale of the numbers. We have taken action where necessary, but no one should be under any illusions: it is costly and complicated to co-ordinate, so government-supported repatriations have been undertaken only in exceptional circumstances. Ultimately the primary responsibility for managing outbreaks of Covid-19 and quarantine measures must rest with the country in which the outbreak has occurred.
FCO teams around the world are working urgently to ensure that Governments have sensible plans to enable the return of British and other travellers, and, crucially, to keep borders open for a sufficient period of time to enable returns to take place on commercial flights wherever possible. Following today’s change in travel advice, British nationals who decide that they still need to travel abroad should be fully aware of the increased risk of doing so. That includes the risk that they may not be able to get home if travel restrictions are put in place. So we urge anyone still considering travel to be realistic about the level of disruption that they are willing and able to endure, and to make decisions in light of the unprecedented conditions that we now face.
Today’s travel guidance follows the domestic measures announced yesterday. It forms part of our national effort to meet the international challenge presented by coronavirus—a challenge that we will rise to as a Government and as a country. I commend this Statement to the House.”
Lord Collins of Highbury (Lab)
My Lords, I thank the Minister for repeating the Statement by the Foreign Secretary. Perhaps I may first express my appreciation for the extraordinarily hard work of all the FCO staff who, I know from comments made in the other place, have been working tirelessly over the weekend and throughout the night to support their fellow citizens.
I will turn first to international freight services, such as shipping and haulage. As the Statement said, they are
“vital for ensuring the continuity of supply of essential food, goods and materials to the United Kingdom.”
The Government, rightly, view this kind of travel as essential and say that they will work with the industry to issue detailed advice to maintain the flow of goods, while protecting the well-being of staff working on those routes. Can the Minister assure the House that the Department for Transport, which will be leading on this work with the freight sector, will consult those most directly affected—the workers in the sector—and ensure that trade unions are also properly consulted? It is vital that we get the co-operation of all sides of society in the battle against this virus.
What assessment have the Government made of the impact, particularly in the food and agriculture industry, of people naturally wishing to leave and return to their home country? What sort of cross-government co-ordination is there on that?
As we heard from MPs in the other place, this is clearly a time of immense concern for tens of thousands of people. We have heard about individual examples of young people stranded without the resources to make decisions about how to come back. The Foreign Secretary constantly referred to clear and practical advice. I strongly believe that this is one of the rare occasions when people want to be told what to do. It is not just advice; people need to be absolutely clear about the consequences if they have to make difficult decisions—for instance, if a parent is ill in a foreign country. This applies to my own husband; we were due to fly next week. People need a clear statement of what to do.
The other place heard the example of Morocco, which unexpectedly closed its air and sea borders, causing particular problems. I was hoping to hear from the Foreign Secretary that his department had been in touch with the French and Spanish authorities, which have many nationals there as well, to try to create a more co-operative and international response, especially in assisting people to get back home. Morocco will surely be joined by other countries making similar announcements. Can the Minister confirm that we are making representations to Governments—in co-operation with our EU partners, because many of our citizens are travelling to similar places—to ensure that those Governments who are contemplating similar action give us information in advance so that we can be prepared to give appropriate advice to our citizens?
The Foreign Secretary also referred to liaising with the civil aviation authorities and airlines. This is an example of action being taken before the Government’s advice has been issued. Can the Minister assure the House that airlines which halted flights had reassured the Government that they had made provision to enable customers to return immediately or early?
Finally, this is a difficult situation and we are focused on the immediate need for a response. However, whatever we do today, we need to ensure that we learn lessons. We do not know what is around the corner: in the 1980s it was AIDS, and we saw the response of the Lord Speaker at the time. Whatever immediate action we take in responding now, we need to learn the lessons that ensure we are better prepared next time something like this happens.
Lord Campbell of Pittenweem (LD)
My Lords, I also thank the Minister for repeating the Statement and associate myself and my noble friends with the expressions of appreciation of the efforts of those in the Foreign and Commonwealth Office and other government departments. What is contained in the Statement is generally acceptable. It may seem draconian to advise against travel globally, but in the febrile atmosphere of many countries, restrictions will often be placed without warning. I have no doubt that the repatriations to which the Minister referred were most welcome. It shows the benefit of co-operation that this was able to be done by the relevant authorities in Tenerife and Cuba.
One matter that sticks out in the Statement is the observation that the ultimate responsibility for these matters rests with foreign Governments. What if such Governments have neither the inclination, capacity nor resources to assist British citizens? Would that be regarded as exceptional and therefore justifying government repatriation? Similarly, what if the considerable efforts of Foreign Office officials are unsuccessful? Would that count as exceptional circumstances, or would we leave our citizens—forgive the slang—“twisting in the wind”?
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lords, Lord Collins and Lord Campbell, for their words of support. I will take those, and the level of unity in your Lordships’ House, back to the Foreign Office and to all departments in Her Majesty’s Government—particularly the Department for International Development, which is playing a leading role in such unprecedented circumstances. I am sure that the sentiments which both noble Lords aired are reflected across your Lordships’ House.
One of the final points made by the noble Lord, Lord Campbell, was about my mention, in the Statement, of responsibility. That reflected the responsibility of the Government in question for the measures in place for controlling the spread of Covid-19 in sovereign states. We are working with international partners and providing international support. We have already allocated over £241 million in support of other countries that need assistance and we are providing financial assistance to the World Health Organization. That is also intended to provide support where the measures being put in place may not yet be of the standard one would hope for. This is about sharing expertise and insights. What we have seen from the spread of coronavirus, from where it started in China to where it is today, and what we have seen not too far from here in Italy, shows the global challenge that we are facing and the importance of sharing research and insight. On the point made by the noble Lord, Lord Collins, about ensuring lessons are learnt, we have also allocated a further £65 million for research into the spread of the virus.
The noble Lord, Lord Collins, was right to point out that the Department for Transport is leading on the issue of freight services. He made important points; I support them and will share them. We should be talking to all representative bodies, whether of employers or employees, who may be on the front line and performing difficult tasks in supply chains, and ensure that they are given the support they require.
The Government are also stressing the importance of airlines continuing their services. We are talking to airline operators and ensuring that commercial routes are kept open. While airlines are, understandably, rationalising certain routes, we are imploring them, and working constructively with them, to ensure that the commercial routes continue to be operational, so that British nationals who seek to return to the UK can do so as early as possible.
I also pay tribute to those working in our ports and airports. They are often on the front line and not always given the acknowledgment they deserve. I declare a personal interest, as my elder brother works on the operations side for British Airways at T5. I know only too well from the stories that he is sharing about the challenges that staff are facing, often with passengers who are returning ill and clearly needing support, while ensuring that they fulfil their duties as well. I am sure the whole House will join me in paying tribute to those who are playing important roles on the front line.
The noble Lord, Lord Collins, also raised the important point about how we ensure the repatriation of British citizens, as did the noble Lord, Lord Campbell. To show you what we are up against, over the weekend, just in my patch, which is south Asia, we made 220 changes to travel advice just on Saturday and Sunday. The noble Lord, Lord Campbell, was right to point out that, as far as possible, this should be done with advance notice, but, as we have seen with near neighbours in Europe, countries are taking action.
The noble Lord described changing our travel advice to only essential travel as draconian. We need only cast our eye across the channel to see what other measures are being taken. It has not been the Government’s approach to impose, and we are working in a structured way. Nevertheless, as circumstances change, as the announcements made by the Prime Minister yesterday indicated, we are responding to what is a fluid and ever-changing set of circumstances, not just nationally but internationally.
The noble Lord, Lord Collins, made specific reference to Morocco and working in co-ordination with other partners. As he will be aware, my right honourable friend the Prime Minister took part in a G7 meeting with representatives of our European partners participating in the call, as well as other nations and the European Commission. His point is absolutely valid, and I assure him that we are working closely with partners. I and my noble friend Lady Sugg were involved in the repatriation over one weekend of one set of passengers. Every repatriation where we have had to engage directly with charter flights organised by Her Majesty’s Government has involved opening channels to other European countries, if so required, and we have sought to facilitate that.
That underlines the point that international co-operation is taking place—in certain circumstances, between countries that would not normally be talking to each other. Again, in my patch of south Asia, countries which have normally been challenged in their bilateral relations by international circumstances have come together because everyone recognises that this is a global challenge and needs global solutions.
Baroness Verma (Con)
My Lords, I want to ask my noble friend a question on those visitors who have come from outside Europe, have a visa to be here, fall sick with the virus, then cannot travel back and their visa may have expired. What position do those visitors have, and how do we protect them from fear that they will then be penalised for a visa overstay because they are sick?
Lord Ahmad of Wimbledon
My Lords, first, my noble friend will recognise from her experience as a Minister that, if someone is ill and needs urgent treatment and support, they will be provided with that in the United Kingdom. She makes an important point—bearing in mind the travel restrictions that have been put in place by other countries—on citizens seeking to return to their respective countries from across the world. In our discussion with other countries, the return of nationals to their own borders is still very much accepted because, ultimately, we are all responsible for our own nationals. On the issue she raises about visitor visas that may expire for foreign nationals because of cancellation of flights or, as she pointed out, specific illnesses, I will come back to her specifically, because these are live discussions, reflective of our own change in advice and on how we have looked at particular visa situations. That is in the domain of the Home Office, but she raises a practical issue. If I may, I shall come back to her on it.
Baroness Falkner of Margravine (Non-Afl)
My Lords, returning to Europe, I think that the Minister will be aware that continuity of supply, particularly of food, is of particular concern to those who have been asked to stay indoors for long periods. He will also be aware that several EU countries have closed their borders in the past 24 hours or so, even within the Schengen zone. For example, where food supplies are coming from southern Italy, the borders to Switzerland, Austria and Germany have been closed. What conversations are the Government having with supermarkets and food retailers as to whether food supply through road transport will be allowed to continue through those closed borders, or whether they are having conversations with airlines as to whether they need to transport food supplies by air freight instead?
Lord Ahmad of Wimbledon
My Lords, the noble Baroness raises an important point about the free movement of goods. Earlier, I alluded to the issue of essential travel, and I reiterate that essential travel includes the need to retain supply chains, particularly when it comes to the delivery of goods. On our discussions with our European Union partners, the President of the European Commission discussed with all G7 partners the actions that the EU would be taking. The fact that the European Commission has acted in the manner it now has reflects the fact that individual countries within the EU were taking separate action. It has acted to ensure consistency and address the very concerns that she raised. From our perspective, it is important to ensure that supply channels remain open. That is why our advice recognises the importance of ensuring that supply lines, including for the delivery of goods, remain open.
Baroness Kennedy of The Shaws (Lab)
I will ask the Minister another practical question. Many students are in this country just now. I give an example that we have had to deal with at the International Bar Association’s Human Rights Institute. One of our interns received a notice that India was closing down the border, even for Indian nationals who are abroad. They were given until the 18th to return, so we have had to expedite her return and assist her financially to do so—to get a different air ticket. People will be caught. This picks up on a question asked earlier: how will the Government deal with that, because some young people who have not completed their educational courses are full of anxiety about whether they will be locked out of their own countries and then be in breach of the basis on which they can stay in this country?
Lord Ahmad of Wimbledon
On her first point, as I am the Minister responsible for our bilateral relations with India, perhaps the noble Baroness would share that information with me and I will take it up with the Indian high commission. From talking to the Indian authorities, my understanding is that the restrictions apply to foreign nationals and those who hold passports with overseas Indian status but that Indian nationals could return if they chose to. However, if a particular issue has arisen, particularly with a student studying here, my understanding is that they should continue with their study. Coming back to the point raised earlier by my noble friend Lady Verma, providing that there is no reason for them to be unable to travel, and if flights continue—as they currently are—they should be able to return to India, in this case, or any other country as would be fit because, ultimately, nationals should not be stopped from entering their countries.
I say that, but 24 hours in this crisis is a long time, and I am minded to add the caveat that things are changing drastically. I do not envisage flights stopping and, as I said in response to a previous question by the noble Lord, Lord Collins, we are imploring commercial operators to continue to operate their flights, but as commercial decisions are taken about flights—understandably, they seek not to fly empty planes—an added challenge will be imposed on us globally to face up to. However, as I said, I am happy to look into the specific issue that the noble Baroness raised.
Lord Alton of Liverpool (CB)
My Lords, I have a question about the diaspora and the ambassadorial corps. This morning, I was able to meet the Pakistan high commissioner, Mohammad Zakaria, who was concerned—as we all are—about the spread of coronavirus and the implications for his community; other ambassadors and high commissioners will be thinking the same. What are we doing to ensure that the corps as a whole receives information directly? How are we using it to reach the diaspora in this country, especially where there are linguistic difficulties and people are not getting the information they need?
Lord Ahmad of Wimbledon
The noble Lord raises an important point. I assure him that I am certainly engaging directly with high commissioners from across south Asia, particularly those with large diaspora communities. We are mindful of ensuring that they are cognisant of the announcements the Government are making and that, if there is a need for that to be understood more effectively because of a lack of language skills or understanding, that is taken up.
I have been really heartened by the response we have seen from not just responsible citizens but organisations from different communities. As I was coming into your Lordships’ House, I noticed that the most reverend Primate the Archbishop of Canterbury has just put out a statement about congregational prayers. Equally, we have seen a very responsible attitude by other faith leaders, including in the Muslim community. As noble Lords will know, Friday constitutes an important day of gathering for the Friday prayer. I think of the actions we have seen in other parts of the world. I noticed that the Kuwaitis were encouraging people to remain at home through the call to prayer. These are the nuanced approaches that we should take on board for all communities in the United Kingdom. We should also ensure that we can share positive experiences we have here in the UK internationally.
Lord Taylor of Goss Moor (LD)
My Lords, there have been reports in the last few days that, given the shortages of key medical supplies, the European Union might restrict exports outside the EU of certain supplies and equipment in short supply. Do the Government know if that is happening? If so, would the UK be treated as within the European Union area? In this country, we produce only a small number of ventilators, for example.
Lord Ahmad of Wimbledon
My Lords, on the specific issue of ventilators, I am sure the noble Lord followed the announcement. We have had a very positive response from various manufacturers in the UK on the issue of addressing any shortfall of ventilators that may occur. He raises an important point on the new restrictions imposed by the European Union. The Commission President has clearly indicated, for example, that medical staff should be able to travel freely into the UK, as are transporters of goods. She has also made clear that UK travellers will not be affected by the measures imposed. We certainly believe that supplies will continue without hindrance. However, there are challenges domestically for each country in the European Union, as we have found here in the UK, and there will undoubtedly be challenges that are taken together on issues of supplies reaching people as efficiently as they are.
I draw an analogy with the challenge we have had in certain supermarkets up and down the country, which has actually been caused not by a certain shortage of food but by people’s practices. Supply chains are set up to cater for a delivery of a certain quantity to a certain place. If a person is going in and buying 10 things instead of one, that has an implication in the supply chain. That is why the Government have implored everyone not to be panicked by this, to be responsible and to look out for each other. Ultimately, if I have one piece of advice to share from the Dispatch Box, it is exactly that: we need to ensure that we look in front of us, behind us and to our left and right to ensure that we are equally looking after those around us, as well as ourselves.
Baroness McIntosh of Pickering (Con)
My Lords, I work externally for dispensing doctors. They have put to me that there is a shortage among front-line medical staff—both doctors and nurses—of personal protective equipment, or PPE. There is a fear that this is being exported and not made available to local staff. Can my noble friend look into that and also give the House an assurance that medical supplies coming from countries such as the United States will be completely accessible going forward? Obviously, there will be no transatlantic flights. Is any information available on Eurostar journeys and what the advice is on Eurostar?
Lord Ahmad of Wimbledon
My Lords, transatlantic flights are continuing. As I said, certain airlines have made certain decisions to rationalise routes, but those routes continue to operate. The importance of international collaboration and ensuring that we work together as one was discussed at the G7. The noble Baroness asked about health services and staff at the front line. I will take that back to the Department of Health, but I assure her that, having had occasion to attend specific COBRA meetings, I know that this is very much a one-HMG effort, although, as we have seen, it includes the Chief Scientific Adviser, the Chief Medical Officer and representatives of NHS England—we have very much adopted an inclusive approach.
The Duke of Somerset (CB)
The Minister has spoken extensively about UK citizens needing to return from overseas, but many UK citizens here live and work abroad. Will the FCO be in a position to try to help them, bearing in mind that some of them will have no home base here in which to reside for the quarantine period?
Lord Ahmad of Wimbledon
My Lords, if I understand the noble Duke’s question correctly, the first port of call for British citizens who work and live abroad should be to contact the British high commission or embassy. If they are residents of another country, I am sure that they are being updated in accordance with the measures that that country is taking. If they are British citizens and they wish to return home here, that is a choice for them to make and we will, as far as possible, seek to facilitate that return. When this Statement was made in the other place, specific cases were raised about British citizens around the world. The first advice that we offer them is to contact their representatives at the UK embassy or high commission to see what support can be given to them on the ground. I repeat that we are seeking to ensure that commercial air routes continue to operate. As for specific assistance for UK residents from elsewhere in the world, this would be a decision for them to make. They would, of course, get whatever support is offered to any other UK citizen resident in the UK.
Lord Foulkes of Cumnock (Lab Co-op)
Does the Minister agree that, while this virus poses a real threat to life here, in developing countries it is just one added threat to life, where people already face terrific threats and where health services are much poorer than those in Europe and the United Kingdom in particular. Is DfID undertaking something special to help developing countries to deal with this and to assist the excellent health NGO workers who are out there in their efforts? Finally, will he join me in thanking Dr David Nabarro, a former health adviser at DfID, for the excellent work that he is doing as an adviser to the WHO on this virus?
Lord Ahmad of Wimbledon
The three quick answers to the noble Lord are yes, yes and yes. He is quite right about DfID support and I am proud of DfID’s role—after the most recent reshuffle, I am also a Minister at that department. As I said, we have been working with G7 and G20 partners in this regard. We have allocated a £241 million aid envelope on exactly the points that the noble Lord raised. We are also providing £150 million to the International Monetary Fund, £10 million to the World Health Organization and—he mentioned NGOs—£5 million to the Red Cross international federation and another £5 million to UNICEF in our immediate response.
Lord Ahmad of Wimbledon
I said yes, yes and yes. The third yes was for him.
Baroness Warsi (Con)
Will my noble friend address a medium-term issue? I join the Front Benches in their comments and sentiments about the Foreign and Commonwealth Office, including its staff, who have played a tremendous role at the front line in dealing with this. Is there any thinking at the Foreign Office and across the wider Government about Britain’s exit from the European Union? At a time when we face unprecedented challenges, both in movement of people and the economy, will there be some thinking about the circumstances in which we find ourselves and the backdrop against which we will be negotiating these deals?
Lord Ahmad of Wimbledon
My Lords, my noble friend asks quite a specific question. This crisis has made everyone think very carefully about our place in the world, the relationships that we have and the importance of connectivity. A virus knows no frontiers and no boundaries. It does not matter whether you are in the European Union or outside it, in the African Union or anywhere else in the world. It is important that we share experiences, insights, expertise and good practice. If we are learning anything from this, it is that the best response is a collective response from humanity. If there is one lesson to be learned, I hope it is exactly that. The negotiations that we will have with our European Union partners are a matter of detail and will be taken forward, but I am sure that our experiences during this crisis, which is far from over, will also feed into discussions with not just our European partners but other partners across the world.
Lord Kilclooney (CB)
My Lords, arising from Brexit and the change in exchange rates between the euro and the pound sterling, it is estimated that shoppers from the Republic of Ireland spent £500 million in Northern Ireland last year. Can the Minister assure us that any controls by the European Union on borders with non-EU nations will not apply to the United Kingdom and the Republic of Ireland, and that the common travel area will be maintained?
Lord Ahmad of Wimbledon
I have already addressed that in part. The announcement made by the European Commission does not apply to the United Kingdom. As the noble Lord will be aware from his own insights and expertise, the restrictions that the Republic of Ireland has also imposed do not apply to Northern Ireland.
Baroness Uddin (Non-Afl)
I hesitate to add to the Minister’s burden of taking matters to his friends at the Department of Health, but there are extreme shortages of things such as Calpol, thermometers and epinephrine autoinjectors, such as EpiPen and Auvi-Q. I hope that, despite all the Government’s assurances, Ministers and others will bear in mind that this is very important equipment and medicine, particularly for the young and vulnerable.
Lord Ahmad of Wimbledon
I will certainly take that back to the Department of Health. Not being a medical expert, I will not repeat every medicine mentioned by the noble Baroness but, as a father, I get Calpol. We will ensure that our medicines are appropriately stocked.
Procedure Committee
The Senior Deputy Speaker
That the Report from the Select Committee Appointment of Parliamentary Works Sponsor Body Spokesperson and Sponsor Body members; General and balloted debates for the new parliamentary session; Committee statements; Privileges Committee: consequences of establishing the Conduct Committee; Terms of reference of the European Union Committee (1st Report, HL Paper 29) be agreed to.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, the first report from the Procedure Committee covers five areas. The reasons for each proposed change are set out clearly in the report published last week, but I will say a few words about each.
First, the report proposes arrangements for a Lords spokesperson to speak and answer parliamentary questions on behalf of the restoration and renewal sponsor body. Under arrangements proposed in paragraphs 3 and 4 of the report, the spokesperson would answer Written and Oral Questions, take part in relevant debates, make Written Statements and move any resolutions required. The spokesperson would not make Oral Statements or ask Private Notice Questions, topical Oral Questions or topical Questions for Short Debate. That would be inadmissible. If agreed, the changes would require amendments in due course to the Companion.
Secondly, the report seeks to address the practical implications of the current parliamentary Session starting last December rather than the usual springtime, and recommends that on Thursdays, the following items of business shall all run until the end of September this year: general debates, balloted debates and topical Questions for Short Debate.
Thirdly, the report takes forward a proposal made by the Liaison Committee, to highlight important committee work on the Floor of the House. We propose that for a trial period running until the Summer Recess, 10 minutes should be set aside each Thursday after Oral Questions, for committee statements. I am sure noble Lords will welcome this as an opportunity for chairs of Select Committees to make short statements to promote recently published committee reports. Paragraph 13 of the report sets out how the committee statements trial would operate.
Fourthly, as a consequence of the appointment of the appointment of the new Conduct Committee, we recommend that the functions of the former Committee for Privileges and Conduct relating to matters of privilege are carried out by the current Procedure Committee, with amended terms of reference. The Procedure Committee will be renamed the Procedure and Privileges Committee. The renamed committee will be required to co-opt two Members of the House who are former holders of high judicial office when considering issues of privilege. We also recommend that in the now rare event of having to consider a peerage claim, an individual committee to consider the claim should be set up when necessary. Any such committee would be appointed with four Lords Members and three holders of high judicial office, who would have the same speaking rights and voting rights as Lords members of the committee. We also recommend a change to the House’s Standing Orders, to allow a report from the Conduct Committee, as well as the Finance and Services Committee, to be given the same precedence in the Order of Business as the business of the Chairman of Committees.
Finally, the report recommends changes to the terms of reference of the European Union Committee, as proposed by the Liaison Committee. The new terms of reference reflect the UK’s changed status since 31 January and the committee’s role during the transition period and allow it to establish a sub-committee responsible for scrutinising treaties or international agreements.
Noble Lords will no doubt have noticed the second Motion in my name on today’s Order Paper, immediately following this one. That seeks the House’s agreement to changes to the Standing Orders which are consequential on the recommendations in this report. I beg to move.
Standing Orders (Public Business)
The Senior Deputy Speaker
That the standing orders relating to public business be amended as follows:
In Standing Order 9(6), leave out “Committee for Privileges” and insert “Committee for Procedure and Privileges”
In Standing Order 12(2) and 12(3), leave out “Committee for Privileges and Conduct” and insert “Conduct Committee”
In Standing Order 19(5), leave out “Committee for Privileges and Conduct” and insert “Procedure and Privileges Committee”
In Standing Order 40(3), leave out from “and to the Chairman of Committees’ Business” to the end of the paragraph and insert “to the Chairman of Committees’ Business, and to the business of the Conduct, Finance and Services Committees shall have priority over other Public Business if the mover so desires.”
In Standing Order 64:
(1) after “Communications Committee” insert “Conduct Committee”;
(2) leave out “Committee for Privileges and Conduct”;
(3) leave out “Procedure Committee” and insert “Procedure and Privileges Committee”
Leave out Standing Order 77 and insert the following new Standing Order:
“77A Committees for peerage claims
The House may refer a peerage claim to a committee for determination. In such a case, the Chairman of Committees must table a motion to appoint a committee to consider the peerage claim and report to the House. Four members of the House shall be named of the committee, which shall sit with three holders of high judicial office who shall have the same speaking and voting rights as the members of the committee.”
In Standing Order 78, leave out “the Committee for Privileges and Conduct” and insert “a committee to hear the claim”
In Standing Order 80(3), leave out “the Committee for Privileges and Conduct” and insert “a committee for peerage claims”
In Standing Order 81, leave out “the Committee for Privileges and Conduct” and insert “a committee for the claim”.
Divorce, Dissolution and Separation Bill [HL]
Tuesday 17th March 2020
(4 years, 7 months 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-R-I(Rev) Revised marshalled list for Report - (16 Mar 2020)
Lord McColl of Dulwich
“(1) Subject to subsections (1) and (2), either or both parties to a marriage may apply to the court to initiate the process for an order (a “divorce order”).(2) In the case of an application by both parties to the marriage under subsection (1)— (a) the application must be accompanied by a statement by the applicants that the marriage has broken down irretrievably, and(b) the court must—(i) take the statement given under subsection (2)(a) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.(3) In the case of an application under subsection (1) that is to proceed as an application by one party to the marriage only—(a) an application must be accompanied by an initial statement by the applicant of their intention to seek a conditional order on the basis that the marriage may have broken down;(b) a confirmation by the applicant under subsection (5)(a) that they wish the application to continue must be accompanied by a statement that the marriage has broken down irretrievably; and(c) the court dealing with an application made by one party under this subsection and subsection (5)(a) must—(i) take the statement given under subsection (3)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.”Member’s explanatory statement
This amendment sets out different steps in the divorce process, depending upon whether the application is a joint application by both parties to the marriage, or an application by only one party.
Lord McColl of Dulwich (Con)
My Lords, Amendment 1 is a redrafted form of the amendment that I brought before the House in Committee. I have returned to this issue because, as I read and reflected on the Committee debate, I was not at all assured that my concerns had been addressed. In coming back to this issue, I make it clear that I will not be dividing the House on this amendment, but I hope this debate will provide an opportunity for the Minister to address my concerns. I put on record my sincere thanks to him for the useful meeting that we had yesterday to discuss this and my other amendment.
I will begin by defining the problems that the amendment is designed to address and will then explain how it deals with them. I welcome that the Bill allows people to make joint applications for divorce for the first time. For these couples, the divorce will come as no surprise. However, the negative impact of the Bill on respondents where there is no fault is profound.
Under the current system, in the absence of fault, the couple must have lived apart for two to five years before proceeding to divorce. Clearly, on this basis no one would claim to be surprised at the divorce application. In the case of the two-year separation, the divorce application must be by mutual consent, and anyone who claims to be shocked at receiving divorce papers after five years’ separation is not credible. Under the Bill, however, all this will change for the respondent in this no-fault context. One day, they could be thinking that their marriage is all right, and the next day they could be faced with a declaration of irretrievable breakdown and the fact that they could be divorced within six months or even sooner if they are not notified at the start of the reflection period. I am particularly concerned about the greater insecurity that this will inevitably bring to many marriages, and the attendant psychological cost. In case anyone was to think that this might be a very small number, I remind the House that the circumstances I am describing —namely, the two to five-year separation period—are used in around two-fifths of divorce petitions each year. That is around 40,000 divorces: 40,000 respondents who today must receive some warning, but who under the Bill need receive no warning at all.
There is all the difference in the world between a divorce where both parties agree and seek it together, and a divorce initiated by one party only, perhaps with the other party not even knowing. The Bill, however, deals with the two largely as if they are the same. That does not seem just or fair. My amendment seeks to address this presenting problem by requiring that where a divorce application is not made jointly by mutual agreement, a different approach is adopted. I propose a change to the wording in new Clause 1(1), which currently says that the applicant is applying for a divorce on the grounds of irretrievable breakdown. I suggest instead that new Clause 1(1) refers only to the applicants initiating the divorce proceedings.
I then suggest a two-track scenario. Where there is a joint application, the initial application includes a statement saying that the marriage has broken down irretrievably. Where the application is by one party only, the applicant is required to make two statements. The first, on applying for a divorce, would state that the applicant’s intention was to apply for a conditional order, which they would have to do under subsection (5), on the basis that the marriage may have broken down. The statement of irretrievable breakdown would then accompany the application for a conditional order 20 weeks after the first application if the petitioner wished to proceed to the next stage.
There are two main rationales for my amendment. First, it means that someone who wants to end the marriage cannot suddenly drop a bombshell on his or her spouse that their marriage—which she or he may have thought was all right—has actually irretrievably broken down. The first move the petitioner can make is a declaration that he intends to apply for a conditional order on the basis that he thinks the marriage may have broken down, not that it has already broken down irretrievably. This has the effect of requiring him to treat his spouse with greater respect, in the sense that the statement he makes to her is not one that says emphatically “It is all over” such that there are no grounds upon which she can respond and seek to save the marriage.
Baroness Howe of Idlicote (CB)
My Lords, I am pleased to support Amendment 1, in the name of the noble Lord, Lord McColl. I continue to be concerned about the lack of regard for the respondent demonstrated in this legislation.
In the first instance, respondents lose their right to contest the divorce and thus, in an important sense, their voice. In the second instance, as the noble Lord has already said, respondents are severely disadvantaged in a no-fault context when compared with respondents in the same position under the current law, because the two to five-year warning of a statement of irretrievable breakdown is taken from them; they are exposed to a potential statement of irretrievable breakdown without any warning. In the third instance, respondents are not even afforded security about enjoying access to a 20-week reflection period. It is thus entirely possible that they will not be told about the divorce until the end of that period, and thus be confronted with not only a potentially out-of-the-blue statement of irretrievable breakdown but the possibility of being divorced in just seven weeks from first hearing about the divorce.
In the context of this assault on the rights and dignity of the respondent, Amendment 1 helps in two ways. First, rather than requiring the divorce process to begin with a statement of irretrievable breakdown, which makes it very hard for the respondent to respond because the petitioner is saying very emphatically “It is all over”, the initial statement proposed by Amendment 1 would create a context in which there can be a conversation and the respondent’s voice can be heard. Of course, this does not mean that the respondent will be able to change the mind of the petitioner should they wish to try to persuade them that their marriage is savable, but at least it provides them with a credible opportunity for doing so.
Secondly, the initial statement proposed by the amendment does not condemn the reflection period to likely failure by commencing with a statement that suggests, with great finality, that there is no way the marriage can be saved. It might be necessary to start a divorce process on the basis of a statement of irretrievable breakdown within a fault-based system, but if we are to realise the objectives set out by the family test assessment to use the no-fault system to create a basis from which one can foster conditions that better promote reconciliation, this is a terrible missed opportunity. It also misses out on the opportunity highlighted on page 164 of the Nuffield Foundation report that notification in a non-fault-based system
“would be more facilitative of reconciliation.”
I hope that the Government will support the amendment or come back with an alternative means of restoring dignity to the respondent and making the most of the new opportunities in a no-fault system to promote reconciliation.
Baroness Butler-Sloss (CB)
My Lords, I spent 50 years in family law and I have some experience of dealing with parents who are at odds with each other. I have seen the impact on their children. I am very relieved to hear that the noble Lord, Lord McColl, for whom I have the greatest respect, does not wish to test the opinion of the House. I respect and understand his good intentions and those of others putting forward amendments today, but if they passed they would hinder rather than enhance the process of this excellent Bill.
Amendment 1 is opposed by family lawyers, many of whom have great experience of dealing in family cases. It assumes incorrectly that when the existing divorce process was not completed in some 50-odd cases out of about 300 it was due to reconciliation. I think we were told in Committee that only one of those was an attempted reconciliation. The others were procedural problems. There is no evidence to support the view that a period of reflection, suggested by the noble Lord, Lord McColl, would in fact create more reconciliation than starting with the application, as put forward by the Government.
For most divorcing spouses the petition does not come at the beginning of something going wrong. My experience certainly is that it comes towards the end, when efforts have been made on both sides to have reconciliation. It is a very serious step and one that is not taken lightly. I also have to say that it is very unlikely that the respondent is taken by surprise. He or she is almost certain to know that the marriage is not going well. I find it inconceivable that a speculative application could be made by somebody right out of the blue when the marriage appears to the other spouse to be working perfectly well.
If irretrievable breakdown is the ground of divorce, as, indeed, the Bill requires, the proposed amendment is entirely inconsistent with it, because that is the way the application would come before the court. Whatever you have to call it, the application is for a divorce at some point. The three-stage process would make it much more complicated and would probably be confusing for many people.
One particular group of people is not in fact taken into account, if the noble Lord, Lord McColl, will forgive me for saying so: spouses escaping abusive marriages. If there has to be this period before you can even apply for a divorce, the opportunities for intimidation, coercion and other behaviours against the escaping spouse—unless they go to a refuge—would mean that this measure would make life infinitely worse for them. The noble Lord has not referred to that group. Again, according to the research done by Exeter University and the Nuffield Foundation, people have said that it is time that the state respected and did not second-guess the decisions of parties to a failed marriage.
I am also quite surprised that the noble Lord did not refer to civil partnerships. Since civil partnerships now follow exactly the same rules as marriage under current legislation, this measure would put marriage in a completely different situation to civil partnerships. That must be unsatisfactory so I strongly oppose the amendment, but I am relieved to know that it will not go to a vote.
Baroness Shackleton of Belgravia (Con)
My Lords, I support what the noble and learned Baroness, Lady Butler-Sloss, said. Although I have absolute sympathy with the well-intentioned objectives of my noble friend Lord McColl, I fear that they will fall far short of what any practitioner can deliver.
Speaking from the coalface, when a person books an appointment with a divorce solicitor, it is often in absolute trepidation and recognition that they have failed. Sending that person away means, if I might say so, that we are getting into a situation like talaq, where you say, “I divorce you, I divorce you”, then the third time, you say, “Yes, you are divorced.” Putting down a warning in circumstances where there may be violence and it may have taken a great deal of courage to come to the conclusion that the marriage is over would, in my experience, just be delaying the evil day.
As we have seen in our recent politics with Brexit, as we are seeing now with coronavirus and as we see with marriage and its breakdown, uncertainty is a set of very disturbing circumstances, the innocent victims of which are children. Children need certainty. Often, when they know that their parents’ marriage is on the rocks, they are relieved to find some sort of consensus to sort out the problems that have been going on in their house for some time. Dignified separation without naming and shaming and blaming can only be to their advantage. I wonder how many of those who marry people look at two people whom they know are fundamentally incompatible and have the courage to say, “I will not marry you because I think that this will end in disaster.”
It takes only one party to get divorced, not two; one person can check out of the marriage and there is simply nothing that the other party can do to make them change their view. This amendment would delay what is in most circumstances an inevitable consequence. There is nothing to stop responsible practitioners suggesting that a couple try harder, go to mediation or have help, but to suggest that a practitioner or the law can keep together a marriage that has fundamentally failed is pie in the sky. The sooner the consequences of a fallout can be sorted, the better it is for everybody.
Baroness Burt of Solihull (LD)
My Lords, I associate myself totally with the wise and experienced words of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton. I can well remember our discussion in Committee about the petitioner “thinking” that the relationship “may” have irretrievably broken down. This amendment inserts a third stage into the process. The noble and learned Baroness, Lady Butler-Sloss, who is hugely experienced in the field of divorce, said, along with others, that in their experience, by the time someone files for divorce, it is not done lightly and their mind is made up. If there was a possibility that the marriage was retrievable, they would have explored it before filing.
I think that this step is unnecessary. The timeframes as set out in the Bill are appropriate, so adding another stage would not be helpful. Therefore, we will not support this amendment.
Lord Harries of Pentregarth (CB)
My Lords, I would suggest that there are two issues behind the amendment moved by the noble Lord, Lord McColl, and I am not sure that the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss, have really addressed them. One is whether there should be a sort of extended time period—“I think the marriage may have broken down”—to allow for reconciliation, while the other is the situation where a woman is pretty certain that her marriage has broken down. She is living apart from her husband with her children, but she still has some hope. Then, out of the blue, a note comes through, perhaps rather late in the day, that her husband has actually petitioned for divorce.
I think that outside of this House there is quite a widespread worry about what the noble Lord, Lord McColl, has called the rights and the dignity of a person in that situation. I accept all the other arguments that have been put forward, but will the Government address the situation where something might come, if not as a total surprise then as rather a bitter blow that it should have reached this stage and the party has heard about it so late?
Lord Morrow (DUP)
My Lords, the noble Lord, Lord McColl, has intimated that he will not be testing the opinion of the House on this matter, but nevertheless, I rise to support Amendment 1. There are some things worth saying in relation to this important amendment and on this very important issue.
The noble Lord listened carefully to the previous debate and his new amendment now seeks only to avoid use of the term “irretrievable breakdown”—nothing more, nothing less—at the start of a divorce application when it is made by one party to a marriage. Where the couple have decided by mutual agreement, and it is clear that they have discussed the matter in advance and come to a view, this amendment does not propose a different statement at the start of the procedure from that which is made on actually applying for the conditional order. This is positive for two reasons. First, it means that the amendment focuses on the particular group of people who are likely to be disadvantaged by this Bill: namely, the respondents in the case of a unilateral divorce application in the absence of fault.
As the noble Lord explained, under the current system, around 40% of divorces are made in the absence of fault through a prior period of separation of either two years in cases where there is agreement or five years in cases of disagreement. In the context of these divorces, at present the respondent gets at least two years’ warning before the statement of irretrievable breakdown can be made. Under the Bill, they could get no warning at all and they will also lose their right to contest the divorce, which is a double whammy, truncating their rights on two fronts simultaneously.
Before I talk about the important service that Amendment 1 provides in addressing these difficulties, I would like to comment briefly on them, and particularly on their political significance.
The noble Lord, Lord McColl, expressed his worry about the psychological impact of the heightened insecurity that the Bill will visit on some marriages. People in marriages today who judge that it is not beyond the bounds of possibility that their spouse might suggest divorce, although neither party has committed adultery or behaved unreasonably, know that, even if they were unable to persuade their spouse to change their mind, they could not have a declaration of irretrievable breakdown visited on them for at least two years. There is in this a certain security, which this Bill will remove for 40% of current divorces.
It seems strange that the Government should want to associate with such a proposal. Last year, before the general election, the Conservative think tank Onward published its seminal paper The Politics of Belonging, which suggested that if the party was to win the election it must seek to engage with “Workington Man”. One of the central arguments of the report is that, having for many years prioritised freedom, the public now attach greater importance to security. On the basis of its extensive polling, the report stated that,
“by a ratio of 2-to-1, voters want to live in a society that provides greater security not greater freedom.”
It is this realignment of focus away from being primarily about freedom to a far greater emphasis on security that causes the report to argue that what is needed now is the “politics of belonging”—greater togetherness rather than greater separation.
In this context, the Bill before us today, the practical impact of which is to emphasise greater freedom for the petitioner and greater insecurity for the respondent, seems strangely out of place. Amendment 1 restores some dignity and security to the respondent by ensuring that they will not be presented with a statement of irretrievable breakdown right at the start of the process, potentially as a bolt from the blue. This means that, while they will understand that their marriage has been put on notice, they will not be presented with a form of words suggesting that it is all over from the outset.
This has two benefits. First, it treats them more gently and with greater dignity than moving straight to a statement of irretrievable breakdown. Secondly, while not restoring to the respondent a right to contest the divorce, it restores to them the opportunity to have a voice. If you present them with a statement of irretrievable breakdown, you are effectively telling them that it is all over and preventing them having a voice. If, by contrast, they are told that the marriage is on notice and that in 20 weeks a statement of irretrievable breakdown will be made unless they can persuade their spouse that their relationship is worth saving, they will at least have an opportunity to respond constructively.
Another reason this amendment is very positive is that it helps the Government fulfil their stated objective to promote reconciliation in the divorce process. This is significant because, having recognised that the current law makes reconciliation harder, the family test assessment in the new law states:
“We want to create conditions for couples and parents to reconcile if they can.”
Under the current law, which is based on fault, one has to begin the divorce process with a declaration of irretrievable breakdown because it involves citing adultery or unreasonable behaviour.
However, in considering a new system where one does not need to prove fault, that is not necessary. We have the opportunity to bring forward new legislation and therein a new approach. Given the stated commitment to foster better conditions to promote reconciliation than we have at the moment, an obvious place to start is this amendment and its proposal not to make a statement of irretrievable breakdown until after the reflection period when applying for the conditional order.
On this point I note that the Nuffield report—which some have quoted selectively to justify not prioritising reconciliation during the divorce process—states that, under a system where one party is notified of the intention to divorce, as proposed by this Bill,
“there is also the possibility that notification would be more facilitative of reconciliation.”
In other words, we should recognise that, in moving to the new system, there is the potential for greater scope for reconciliation than under the current system, because of the notification system.
Finally, it seems that the noble Lord, Lord McColl, has managed through the amendment to identify a means to use non-fault notification that is more facilitative of reconciliation. In this context, to reject the amendment because, up until this point, the divorce process had always started with a statement of irretrievable breakdown would be very odd, given that the whole point of this exercise is to change divorce law. I very much hope that the Government will not dismiss the amendment but give it proper consideration.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank my noble friend Lord McColl of Dulwich and other noble Lords for their contributions to the debate. As my noble friend observed, the amendment would keep the existing ground of irretrievable breakdown at the start of the application only where the application was made by both spouses. Where the application was made by only one party, it would remove the ground of irretrievable breakdown, which has stood for 50 years, in favour of the novel concept of a ground that may or may not be the case.
I am aware that there has been a narrative of the divorce application coming as a shock to the respondent, but, as the noble and learned Baroness, Lady Butler-Sloss, observed in Committee, and repeated this afternoon,
“the evidence from the research is that the majority of people know perfectly well when a marriage has irretrievably broken down.”—[Official Report, 3/3/20; col. 532.]
They know when it has come to an end. The proposed amendment would hinder, not enhance, the process of divorce. Indeed, my noble and learned friend, Lord Mackay of Clashfern, observed in Committee that
“once you have applied, you have carried out the intent.”—[Official Report, 3/3/20; col. 535.]
That point was reflected in a number of observations made by the noble and learned Baroness this afternoon.
The Government remain firmly of the view that an application for divorce is precisely that: an application seeking the legal dissolution of the marriage by the court because it has broken down irretrievably. A divorce application cannot be a notice to the other party that there may be marital difficulties. That is not a proper use of the court process. The legal process of divorce is not a remedy for marital discord but a means to dissolve the legal ties at the end of a marriage. As I observed in response to the amendment to similar effect tabled by my noble friend Lord McColl in Committee, such an amendment would have the potentially perverse effect of encouraging speculative applications. These are not effects that the Government wish in any way to encourage.
The reality is that under the existing law, which allows only sole applications, the application is made on the ground of irretrievable breakdown of the marriage right at the start, and well before the court takes account of the evidence for fault or separation. There is no reason to change that. I accept that my noble friend Lord McColl wishes to allow for reconciliation where one spouse wishes to divorce and perhaps the other does not, but the Government’s conclusion is that to amend the law in this way would not achieve his purpose and would in fact send entirely the wrong signals to divorcing couples. It is in these circumstances that I invite my noble friend to withdraw his amendment.
Lord McColl of Dulwich
My Lords, I thank everyone who has taken part in the debate. I have great respect for all of them. I have enormous respect for the noble and learned Baroness, Lady Butler-Sloss—we have known each other for more than 70 years, so it is quite easy to. I thank everyone for taking part. I hear what the Minister said. I think that it will be taken up in another place with some enthusiasm. I beg leave to withdraw my amendment.
Lord Farmer
“(2) On an application for a divorce order the court must inquire, so far as it reasonably can, into—(a) the facts alleged by the applicant or applicants, and(b) if the application is by one party to the marriage only, any facts alleged by the respondent.(3) The court hearing an application for a divorce order must not hold that the marriage has broken down irretrievably unless the applicant or applicants satisfy the court of one or more of the facts described in subsection (3A), in which case it must make a divorce order.(3A) The facts referred to in subsection (3) are— (a) if the application is by both parties to the marriage, that the applicants have lived apart for a continuous period of at least one year immediately preceding the making of the application;(b) if the application is by one party to the marriage only—(i) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent, including where the respondent has committed adultery;(ii) that the applicant and the respondent have lived apart for a continuous period of at least two years immediately preceding the making of the application;(iii) that the respondent has deserted the applicant for a continuous period of at least two years immediately preceding the making of the application.”
Lord Farmer (Con)
My Lords, I shall speak also to the other amendments in this group. It is not at all the norm for me to table amendments that appear to strike at the heart of what the Government, on whose Benches I sit, are trying to achieve. It is not something that I relish in any way. However, I feel compelled to keep challenging the introduction of no-fault divorce in this country. This is, in fact, because I support the two key principles set out in the original consultation paper and do not believe that removing the ability to cite fault fulfils them.
Those principles are, first, that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course, and, secondly, that spouses are not put through legal requirements that do not serve their or the state’s interests and can lead to ongoing conflict and poor outcomes for children.
I realise that the various Front-Bench justice spokespersons, many of whom are lawyers, are for this Bill. However, I have become aware that many Back-Benchers and even some Front-Benchers are not truly cognisant of its contents and implications. I have a great respect for the legal profession but it is deliberate and appropriate that this House welcomes and appreciates those from different backgrounds who can provide a wider view.
The purpose of all my amendments—2, 5A, 6A, which supersedes Amendment 6, and 7, 8, 9, 11 and 12—is to retain the good things in this Bill and reject the bad. I am referring to those elements which I do not think will serve the best interests of families in our country. They aim better to fulfil the laudable principles with which the Government embarked on divorce reform. My amendments will retain the option for both parties in the marriage or civil partnership to make a joint application for a divorce, judicial separation or dissolution. They will also retain the minimum time period before which a divorce or dissolution cannot be granted. I heard what my noble and learned friend Lord Keen said about many fault-based divorces taking less time than the six months currently proposed.
My amendments would also retain the ability in the current law to cite fault to obtain a divorce or dissolution and to contest a divorce. I know that this happens rarely and that only 2% of respondents state intention to defend, with fewer than half of these going through the formal process. I also know that the number contesting may be less than 1,000 every year and that many are resisting the particulars of unreasonable behaviour and other fault-based facts. However, some will be trying to keep their marriage vows alive by resisting being unilaterally divorced.
At least the current law enables them to mount that defence. The removal of this facility ushers in, de jure, unilateral divorce with the full approval of the state. This is justified on the dubious grounds that we already have unilateral divorce de facto. This is where a reluctant respondent, who might have much preferred to attempt reconciliation, is more or less forced to accept that their marriage is over when fault facts of dubious veracity are used to establish the ground for divorce. Would it not be better to curtail the motivation and ability of people to do this through the minimum time limits proposed in the Bill and by significantly reducing the separation periods with and without consent so that they more closely resemble the Scottish system? That is what my amendments would also achieve.
A couple could jointly apply after one year’s separation. There would then be another six months to run, during which time, one hopes, much progress could be made on real areas of conflict—finances and children. A sole applicant could apply after just two years’ separation. In 2015-16, only 6% of divorces in Scotland were fault based because of these other remedies.
I have already alluded to the support of noble and learned Members of this House for the more draconian measures proposed in the Bill, so I know what I am up against, and I have very rarely experienced in this House an argument that has changed people’s minds. I still want to take the time to explain why I believe that these amendments will more adequately fulfil the Government’s stated principles.
On the first principle—
“that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course”—
how does a sole application leading to a divorce after a 20-week reflection period, plus six weeks, achieve this? Leaving aside the important issue of both parties having the full extent of that period, I simply ask noble Lords whether no-fault divorce really does allow for reflection.
If fault is discarded, people can simply go online, late at night, after what may have been a rather trivial or resolvable argument—or possibly too many drinks—and apply within minutes. The irretrievable breakdown of the marriage would, in effect, be proven by the impetuous completion of that form. As one mediator writing on the Family Law website expressed it:
“Our culture has changed, and we must be alive to the unalterable fact that our online world can eliminate vital processing and reflection time.”
To those who argue that online completion allows that already anyway, I say this. The need to cite a fault fact will in itself be a moment of pause, even a deterrent, for many who might be all too well aware when they are doing so that their spouse could counter-accuse them of far worse.
I have also been told that it is patronising to suggest that those who come through the door, particularly of our top lawyers, to arrange a divorce are not doing it with very careful consideration. For this cohort, I am in complete agreement that this move will have been well thought through, not least as there is often so much money and property at stake. However, there will be many who think that they have far less to lose, and who may have given the issue far less thought.
Again, I am aware of Professor Janet Walker’s research, cited by the Nuffield Foundation’s Finding Fault? report, in defence of the argument that divorce is rarely initiated lightly. The report states that the research showed that the decision to divorce is not taken lightly or impetuously. Indeed, it is a typically protracted decision, based on months, if not years, of painful and difficult consideration. However, once that decision has been reached, the parties need to move forward without lengthy delays. Professor Walker’s study was a valuable analysis of provisions made in Part 2 of the Family Law Act, which was repealed. She followed thousands of people who took part in the pilots of the information meetings that would have become mandatory once the Act was brought into force. These, however, were volunteers, who had actively put themselves forward, not only to attend the meetings but to take part in research. So, despite my sincere respect for Professor Walker, I am not at all convinced that her subjects can be treated as representative of the overall divorcing population, including in terms of the level of consideration they had given to the decision to divorce.
On the second principle—that spouses
“are not put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children”—
this Bill falls very far short. I agree that the current system could be improved, but if the proposed reforms were enacted, respondents would be defenceless, in every sense of the word, and many of these are already the more vulnerable party, in financial and other ways. How are their interests served?
The assumption in debates during the passage of this Bill, as we have heard again today from the noble and learned Baroness, appears to have been that the abuser is often the respondent—but the abuser might also be the applicant. This law might penalise many more women than men, given that women are 12% worse off financially after divorce, while men are more than 30% better off.
How are the state’s interests served by this bad law, which cheapens the commitment of marriage? I have already cited research that shows that unilateral divorce leads to fewer marriages, fewer remarriages and more cohabitation, precisely because it makes marriage more like cohabitation. Does the state really want the greater instability that more cohabitation will bring, and higher numbers of children growing up without both parents? How is conflict significantly reduced when most of it is either prior to the divorce procedure or separate from it, at the stages when issues of money and children are being resolved?
Baroness Butler-Sloss (CB)
My Lords, I entirely understand the best intentions of the noble Lord, Lord Farmer, in putting forward this amendment, but my heart sinks to hear it. It is really an effort to rewrite the Matrimonial Causes Act 1973, which we are trying very hard to get away from. I do not know whether the noble Lord understands—I hope he will forgive me for saying it like this—just what a farce the current divorce situation is. The majority of divorces are now completed on fault, and the fault has to be something that is important enough for the judge to sign off. Some judges sign off something which is very limited indeed, but if it is actually a fault of any significance, it upsets the respondent, and the respondent very often finds that he or she is being accused of things that have really not arisen during the marriage but are necessary for the current farcical situation to create a divorce. The exacerbation of the respondent inevitably has a marked effect on the children.
I have to say that Professor Liz Trinder, whom I know, is entirely independent. The report Finding Fault? is in line with lots of earlier research. In its comments on children, it is undoubtedly in line with the very strong evidence of endless consultant child and adolescent psychiatrists—and I know many of them. Over the years they have become increasingly concerned about the negative impact on children of the allegations of unreasonable behaviour that are to be found in the current legislation.
I am a patron of the Marriage Foundation, and the foundation is extremely keen that people should be reconciled. I have to say that I share that view; I must tell the House that I have been married for 61 years and I find it extremely sad when I meet members of my own family and other people I know who are divorcing. That for me is a tragedy. However, there is no shortage of people who wish to end their marriage. That is part of our English and Welsh law, and we have to go along with it.
Still, we must recognise that if this amendment were passed and only one party wanted to bring divorce proceedings, we would be back in the old situation, which is deplorable for children, and that would exacerbate the emotional trauma of the divorce process. I have to tell the House that it makes reconciliation very much less likely when allegations of behaviour are raised. Where they are not raised, it is a lot easier for people to talk to each other, but, if they are, it creates a very serious situation. I am very concerned that children should be protected from the behaviour of their parents. Children should be protected from the sort of allegations that could only seriously exacerbate the tragic situation for them when their parents separate.
Baroness Burt of Solihull
My Lords, these amendments by the noble Lord, Lord Farmer, would add a number of conditions or barriers that would mean that a statement of irretrievable breakdown would not be accepted unless the couple had lived apart for a specific time or there was a citation of unreasonable behaviour. The conditions look suspiciously like the existing damaging conditions that the Bill is trying to get away from—a point echoed by the noble and learned Baroness, Lady Butler-Sloss, in much more eloquent terms than I can manage. It sounds harsh to say this, and I have every respect for the noble Lord, but it is hard to conclude anything other than that these are wrecking amendments. This party supports the Bill and so we will not be supporting them.
Baroness Shackleton of Belgravia
My Lords, I wish to speak against the amendment. There is a practicality that is overlooked here, and that is the question of living separate and apart. It is not feasible financially or possible, particularly with children, for one party to up sticks and leave the matrimonial home; often this means returning to their parents and different schooling. It is just not viable.
The real problem with divorce is that it is now socially acceptable; there is no stigma on divorce. I believe passionately in marriage. I am also a patron of the Marriage Foundation, which supports this measure. In an earlier speech, my noble friend referred to the elite readers of the Times running a campaign to support the Bill. It was actually spearheaded by Sir Paul Coleridge, who is the head of the Marriage Foundation, because he believes the Bill is pro-marriage. It stops the agony when one party needs to exit a marriage. The amendment would effectively wreck a Bill that most practising lawyers support.
I will add that the very rich have something in common with the very poor: they are the least affected by divorce. So the people at the bottom of the scale are going to be no more inhibited from getting a divorce than those at the top.
Lord Keen of Elie
My Lords, I thank my noble friend Lord Farmer and other noble Lords for their contributions to the debate. I will speak to Amendment 2 and the other amendments in the group: 5A, 6, 6A, 7, 8, 9, 11 and 12. These amendments seek to retain the requirement on the court to inquire into any facts alleged by the applicant or indeed the respondent, and to be satisfied as to the facts alleged before holding that a marriage or civil partnership has broken down irretrievably. The exception would be that it would retain the approach under the Bill for joint applications.
With the greatest of respect, these amendments would drive a coach and horses through the Government’s measured and progressive Bill; the Government cannot accept them. They seek to maintain the status quo and deny any meaningful reform of the law—reform that is long overdue and which commands broad support in both Houses and beyond. Removing the use of blame in the legal process of divorce, dissolution and separation is a key objective of the Government. We know from the evidence that incentivising a spouse to make allegations about the other spouse at the outset of the legal process can simply worsen conflict. That conflict can then play out not only during the legal process of divorce but in any linked proceedings about financial matters or children.
In Committee, my noble friend said that much weight has been put on the evidence from research by the University of Exeter, funded by the Nuffield Foundation. He referred to the Finding Fault? study as
“a piece of grey literature … that … has not been peer reviewed.”—[Official Report, 3/3/2020; col. 553.]
and said that the reliance of the Government and, indeed, noble Lords, on this research was in his view surprising. He further noted that it was based on one study involving 81 interviews and an analysis of 300 divorces.
I am bound to say that the Government and many others find the evidence from this important research compelling. The Finding Fault? project, led by Professor Trinder, was peer-reviewed at application stage and scrutinised throughout by an expert advisory group, and the final report was reviewed by a senior academic and two members of the Nuffield research team. It has since been widely cited in academic family law textbooks. Indeed, I note that it has been referred to with approval by those with considerable experience in this area of the law, including my noble friend Lady Shackleton and the noble and learned Baroness, Lady Butler-Sloss.
I agree that that research has been influential. Its messages—that the current law increases conflict, encourages dishonesty and undermines the aims of the family justice system—are consistent with a body of evidence going back about 40 years, not least the Law Commission report of 1990, which led to the enactment, although not the implementation, of the Family Law Act 1996. The Finding Fault? study shows that the problems with fault-based divorce persist today. We cannot ignore that message.
Although the survey component of the study did find evidence of public support for retaining fault as part of the divorce law, this was not universal and indeed was inconsistent with other beliefs expressed by respondents—for example, that it is unfair to blame just one spouse for a marriage breakdown. The survey was only one component of the research, which also included interviews with people going through divorce, focus groups with lawyers, observation of the court scrutiny process, analysis of divorce court files and comparative analysis in other countries.
I appreciate and acknowledge the conviction of my noble friend and those who support his views that this Bill is bad for marriage, families and society, but I profoundly disagree. These reforms are measured, progressive and necessary. They are formulated on evidence that the current law works to fuel conflict, which is damaging for couples, parents and children. The law does not do what people think it does. It does not keep a party to a marriage in a relationship against their will. Marriage is a consensual union between two people. Unilateral divorce has been available under the current law for over 40 years. This Bill seeks to remove elements of the current law that can drive conflict. It does not and cannot make the painful decision to divorce any easier.
In light of this, I simply cannot agree with the terms of the amendment. We have, of course, listened to the concerns expressed about some provisions in the Bill. At this early stage, I would note this: I have committed the Government to work with the Family Procedure Rule Committee to address the issue of timely service on the respondent of the notice of proceedings by the applicant party. I have also tabled amendments to the Bill to make the delegated powers in Clauses 1 and 4, to amend the 20-week and six-week minimum periods under the Bill, subject to the affirmative resolution procedure, which will provide greater scrutiny of the measures. Finally, I have given a commitment that the Government will use the opportunity of amending court processes, including the online divorce service, to improve information about, and signposting to, important services such as marriage counselling and mediation. With those commitments in mind, I urge noble Lords to support the Bill in its present form and invite my noble friend to withdraw his amendment.
Lord Farmer
My Lords, I thank all noble Lords who contributed to the debate on my amendments. They backed up my argument that opinions do not change much in this House when you put forward a case. I thank the Minister for the commitments he just made.
It was said that these amendments go back to the dark ages. In a way, what I was saying when I spoke to them was that they line up very well with what is going on in Scotland, which seems to work very well. In Scotland, there are reduced time periods of one year and two years instead of two years and five years. I am not suggesting that we go back to 1973. The Minister also defended the Finding Fault? review from my criticisms. The process of peer review should be ruthlessly rigorous. It should involve at least two academics reading an anonymised script and aim to be as objective as possible. Other Nuffield Foundation research has been turned into peer-reviewed journal articles. I can give my noble friend at least one example: “Reforming family law—the case of cohabitation: ‘things may not work out as you expect’”, by Jo Miles, Fran Wasoff and Enid Mordaunt.
Ms Miles is on record as saying:
“Divorce law has not got anything to contribute; it is changes in society”
which have led to increased divorce. She is entitled to her opinion, but that is a contested view. The Nuffield Foundation did not ask someone with a different view who could have provided a profound challenge to its assumptions, methodology et cetera, but someone who was of the view that this legal change would not have an adverse effect on society. Unsurprisingly, the research assumes that divorce rates will be unaffected by the law. I just mention that in reply to the Minister.
In any event, I must join my noble friend Lord McColl in waiting to hear what the elected Members of the other place make of this. I beg leave to withdraw the amendment.
Baroness Meyer
“(5A) For the purposes of subsection (5), “the start of 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 the application is lodged at the court under subsection (1), 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 notice that the application for a divorce order has been lodged at the court has been served on the other party to the marriage.(5B) The court may abridge the 20 week period under subsection (5) if, on application, there is evidence that the respondent has engaged in deliberate evasion of service or other steps to delay materially the service of the application under subsection (1).(5C) The extent of the abridgement is at the discretion of the court and the court must take into account the date when the proceedings would have started had there been no such evasion or other material attempts to delay service by the respondent.”
Baroness Meyer (Con)
My Lords, Amendment 3 is tabled in my name and that of the noble Lord, Lord Curry, who is following government advice by staying at home today.
The amendments in this group would tie the start of proceedings to service in the case of a sole petition divorce. Amendment 3 relates to marriages and Amendment 9A to civil partnerships. My noble friend Lord Farmer tabled a similar amendment in Committee. I am returning to the issue today because I believe the compromise offered by the Government does not go far enough. Proposed new Section 1(5) stipulates that 20 weeks must elapse between application and conditional order. This period gives couples a chance to reflect on the serious matter of divorce, plan for the future and consider whether their marriage can be saved.
As a nice aside, I must express my surprise at hearing several noble Lords imply in Committee that once the divorce process has started, there is no point attempting to save the marriage. I also gently remind the Minister that the government press release of 7 January said that the 20-week period is to
“provide a meaningful period of reflection and the chance to turn back”.
For the 20-week period to work, it is vital that both parties are aware that divorce proceedings have been initiated, but the wording of proposed new Section 1(5) leaves room for the respondent to be deliberately kept in the dark by the applicant. It ties the beginning of the 20-week notice period to “the start of proceedings”—that is, when notice is given to the court.
It is all too easy for a sole petitioner to avoid his or her obligation to give notice to the respondent by, for example, giving an out-of-date address or deliberately choosing a moment when the respondent is unreachable, maybe abroad. The question of whether the respondent is aware of the application becomes live only when the applicant asks the court to make the conditional order at the end of the 20 weeks. This means the respondent could be left unaware that the notice period has started, and the clock is running. They may not find out that the 20-week period has almost expired. That would surely defeat the entire purpose of the notice period: to encourage reflection. It could leave the respondent at a huge disadvantage.
It is more than possible that the applicant could start proceedings then leave the country with the children, in effect committing international parental child abduction. As noble Lords know, this subject is close to my heart. If the applicant flees to Germany, for example, it is possible to change the children’s place of residence in a matter of weeks, taking them out of the UK jurisdiction and into a foreign jurisdiction. Even if this does not happen, possession is nine-tenths of the law—as noble Lords are surely aware. Only 15% of abducted children are returned to their country of habitual residence under the terms of the Hague convention 1980. I raise this scenario because the Bill gives an unscrupulous applicant a great deal of power over the respondent. To summarise: on the eve of a conditional order, a respondent could find himself or herself confronted with a double fait accompli: divorce and the loss of the children.
The point was underlined last year by family law specialist David Hodson, in an article for a legal journal. He wrote:
“The intention of Parliament of divorce by notice over 26 weeks actually applies only to the applicant for the divorce. The recipient respondent will have less, perhaps much less and possibly even only a few weeks and yet have no opportunity to object. Any idea that there would be reflection and consideration—”
Baroness Butler-Sloss
I wonder whether the noble Baroness would allow me to make the point that in Amendment 3, proposed new subsection (5B) talks about
“evidence that the respondent has engaged in deliberate evasion of service or other steps to delay materially the service of the application”.
Nothing in this amendment deals with the applicant misbehaving.
Baroness Meyer
Maybe it is a failing in the amendment. It could be detrimental to both sides, but I am coming on to the other side as well. Mr Hodson described the current wording of the Bill as
“discriminatory, arbitrary and unfair. A process in law which means some parties to proceedings will have a dramatically different notice period than other respondents.”
The simple solution to the problem is to make the start of proceedings in the case of single applicants for divorce the date on which the application is served on the other party, rather than the date it is made by the petitioner. This was recommended in the Law Society briefing paper, which states:
“It is proper that a respondent to a divorce is given the full 26-week period of notice … If the notice period runs from the start of proceedings rather than the date of service, the respondent may receive the notice long after the start of proceedings, whether due to court delays, interference from the petitioner in delaying receipt by the respondent, the simple length of time of delivery if abroad, or other administrative reasons …We would recommend the Bill is amended to ensure that the notice period in applications by one party to a marriage only, would start from when the notice was received by the other party to the marriage. We believe it is vital that both parties each have a minimum of 26 weeks for the divorce to proceed under.”
In Committee, the noble and learned Lord, Lord Keen, said that this would hand
“too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.”—[Official Report, 3/3/20; col. 582.]
He suggested that new rules and definitions of service should be explored by the Family Procedure Rule Committee, but there are two concerns about this approach. First, the principle is so important, and the potential for injustice so profound, that we cannot risk the Bill coming into force without this problem being solved first. To delegate this to the Family Procedure Rule Committee is to neglect the responsibility of this House to scrutinise and improve legislation. Secondly, on the point of a respondent who wishes to avoid or frustrate the divorce process, we accept the concerns of noble Lords. That is why these amendments give the court power to abridge and shorten the 20-week period if it arises that a respondent is attempting to frustrate the process.
I hope that, despite my bad reading, this demonstrates that concern about unco-operative respondents can be addressed, but we must also address the issue of unco-operative applicants. I beg to move.
Baroness Butler-Sloss
My Lords, before I speak to Amendments 3 and 9A, I should tell your Lordships—in the unusual circumstances—that I certainly have a cough. I have had it since before Christmas; I have been to see my general practitioner, who says that I have a virus, but it is not “the virus”. I hope that noble Lords can be assured that I am not going to spread the coronavirus. I saw my GP and a consultant last week and have been checked out. I am sorry about my cough, but I cannot get rid of it.
What the noble Baroness, Lady Meyer, has spoken about happens already, either by petitioners who give a false address or by respondents who make it impossible for the petition to continue. This goes on; I have heard from judges that they know it is going on. Sometimes divorces are completed without the respondent knowing. In other cases, there are divorces that cannot conclude because the respondent will not support it and just refuses to answer any questions or do anything that is relevant to the outcome of a divorce. I hope this is something that the Government will discuss with the President of the Family Division and the Family Procedure Rule Committee, because it is a serious matter. However, I do not think that it will be managed by this amendment.
I interrupted the noble Baroness, because I wanted her to realise that she has to deal with what is actually in the amendment: 26 weeks is not referred to in the amendment, and it deals only with respondents and not applicants. For all those reasons, I suggest to noble Lords that this amendment is flawed and cannot be supported.
Lord Harries of Pentregarth
Even if it is the case that the wording of the amendment is not quite right, would the noble and learned Baroness in principle support this amendment? It seems to deal precisely with the situation which she outlined so eloquently, where both sides sometimes try to evade service. Would it not be important to have on the statute book a way of dealing with this issue?
Baroness Butler-Sloss
I understand what the noble and right reverend Lord says. The trouble is that I do not think having it in primary legislation will make it any easier for this issue to be resolved. This seems a matter for the Family Division to get on with, to see what it can do to try to deal with this. The Family Procedure Rules have to be obeyed; when I was a family judge, they were as important to me as primary legislation. I understand the point, but I do not think that it will make people behave any better if this is in primary legislation rather than in the rules.
Baroness Shackleton of Belgravia
To answer the question on the problem about service, this is regularly done when somebody is trying to evade service. You can go to the court and ask for an order for deemed service. There does not seem to be any problem in that; you just have to produce evidence that you have made your best endeavours to serve somebody, and if the court is satisfied that that has happened, service is deemed and the divorce can proceed.
Baroness Burt of Solihull
My Lords, I sympathise very strongly with this amendment, which as we have discussed deals with the vexed question of service. There is a balance to be struck where there is one applicant for divorce—in other words, it is not a joint application—between ensuring that the respondent has received adequate notification and that they are not able to frustrate the process by claiming not to have received notice. I am sure the House is very grateful to the noble Baroness, Lady Shackleton, for her explanation of how that can be overcome. In meetings with the Minister, and in this Chamber, he has given assurances that the Family Division would make rules that strike the balance between sufficient notification and attempts to frustrate the process.
We accept the Government’s position that the arrangements for service are best left to the Family Procedure Rule Committee. We also accept that, increasingly, applications will be made online, in which case service is usually effected by the court. But we must also agree with the Government that provisions must be made for paper applications as well as online applications.
It is important that the respondent must be made aware of the proceedings as early as possible. The rules need to provide that a respondent cannot frustrate proceedings by trying to evade service, or by failing to acknowledge service. I would greatly appreciate further clarification from the Minister, and further assurances that this amendment will not be necessary.
Lord Keen of Elie
I thank the noble Baroness, Lady Meyer, for moving the amendment on behalf of the noble Lord, Lord Curry, and other noble Lords for their contributions. We understand the concerns that part of the intention behind the Bill’s new minimum 20-week period between the start of proceedings and when the court can be asked to make the conditional order could be undermined if notice of the proceedings on the respondent party is substantially delayed. I provided assurances in Committee that a conditional order will not be made without satisfactory evidence of service. Of course the Bill does not provide for divorce or dissolution by 26 weeks’ notice; confirmation is required at both conditional and final order stages that the marriage or civil partnership should be brought to a legal end.
However, in this matter we have to be led by the evidence. Professor Trinder’s study of 300 undefended divorce case files found that no acknowledgement of service was returned by the respondent in 41 of the sample cases, which is about 13.7% of the total. If you were to extrapolate that nationally, that would amount to about 14,000 cases annually. Very few cases appeared to result from difficulty in locating the respondent; instead, the majority of the 41 non-returns appeared to reflect a decision by the respondent not to co-operate with the process, either because they were opposed to the divorce in principle or the reason given for it or simply because they wanted to make the process more difficult for the applicant. Resolution, the leading body in England and Wales representing over 6,000 family justice professionals, has also identified frustration of the proceedings by the respondent as the greater mischief.
I accept that in tabling his amendment the noble Lord, Lord Curry, was offering a constructive suggestion but that he recognises that a respondent may be deliberately evasive. However, the material effect of his amendment would apply to applications made by one spouse only when the 20-week period had started and the respondent had been served.
There is a difficulty here. The only fail-safe way of knowing that the respondent has been served is when the respondent returns to the court with the form acknowledging service, if indeed they return at all. In his amendment, the noble Lord sought to address this issue by giving the court the power to abridge the 20-week period between the start of proceedings and when it may make the conditional order if there is evidence that the respondent has sought to evade or delay service. The difficulty, as with the existing procedures for the court to grant deemed service or dispense with service in England and Wales, is the evidence that the court will require to be shown that the respondent should be aware of the application when in fact he refuses to return the acknowledgement of service, and therefore it makes the process of dispensation difficult. Indeed, such a process can be lengthy and requires separate applications to the court, which in turn can make it a complex process for applicants to navigate.
The amendment would place a further requirement on the applicant to apply to abridge the time of the 20-week period in such cases by providing evidence that the respondent has deliberately sought to evade service. Inviting an applicant to prove a negative is always going to be rather challenging, particularly in this sort of process. We have listened carefully to what has been said about this matter, both in debate and in the meetings that I have had with a number of your Lordships.
We consider that the right way to deal with this concern is to commit, as I committed at the previous stage, to work with the Family Procedure Rule Committee, which already has the relevant statutory powers to address the issue of service, and which has a statutory duty to consider whether to consult on rule changes. We are therefore inviting the Family Procedure Rule Committee 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 issuing of proceedings. I believe that this approach has drawn support from all sides of House, and I therefore invite the noble Baroness to withdraw her amendment.
Lord Harries of Pentregarth
Everyone here recognises that there is a problem, and the most experienced lawyers among us have emphasised that. My question is simply: if we have been aware of this problem for so long, and the Family Procedure Rule Committee or whatever other body was appropriate did not deal with it at that time, what makes the Minister think it is going to deal with it better in future? Would it be better to have something very clear actually on the statute book, such as some government alteration of the amendment put forward by the noble Baroness, Lady Meyer?
Lord Keen of Elie
No, my Lords, it would not be appropriate to put this in primary legislation. To assuage such concerns as there may be, I can say that the President of the Family Law Division has already had this matter raised with him and has expressed a view. We have committed to make sure that the matter is brought before the Family Procedure Rule Committee, which is the appropriate body to address this point.
Baroness Meyer
My Lords, I am grateful to the Minister for responding to these amendments. Of course, I am very disappointed. As he made clear in Committee, the Family Procedure Rule Committee can be invited only to consider the matter. It might decide not to act, or the matter may get lost in the myriad other changes following this Bill. I recognise that there is little appetite for a vote, so I beg leave to withdraw my amendment but very much hope that our colleagues in the other place will take a view on this before the Bill completes its passage through Parliament.
Lord Keen of Elie
Lord Keen of Elie
My Lords, in moving Amendment 4, I shall speak also to Amendment 10 in my name. Essentially, Clause 1 provides for a minimum period of 20 weeks between the start of proceedings and when the court can be asked to make a conditional order of divorce. It further provides a delegated power to enable the Government, by statutory instrument, to shorten or lengthen this period, as well as the existing minimum period of six weeks, which will apply between the conditional order and the final order of divorce. Clause 4 similarly makes provision for the Lord Chancellor to change the prescribed periods in respect of civil partnership dissolution.
The Delegated Powers and Regulatory Reform Committee questioned the purpose of these Henry VIII powers and recommended their omission from the Bill, or alternatively that they be made subject to the affirmative resolution procedure. At an earlier stage, the noble Baronesses, Lady Meacher and Lady Chakrabarti, spoke of their concern about the lack of clarity surrounding the circumstances in which the Government would seek to use these delegated powers. We have listened to those concerns; it is in the light of this that we move an amendment that will make these powers subject to the affirmative resolution procedure. I hope this reassures noble Lords that there will be proper scrutiny of these powers in the event that they are ever sought to be used. I beg to move.
Lord McNicol of West Kilbride (Lab)
My Lords, as the Minister has just outlined, these amendments will use the Lord Chancellor’s Henry VIII powers to change the period of time between the commencement of proceedings and the conditional order, as well as between the conditional order and the final order, subject to the affirmative resolution procedure. We are very pleased on this side of the House that the Government have listened to the debates and discussions earlier and moved forward, so we welcome these government amendments. They have been laid in response to the Committee amendments previously tabled by my colleague and noble friend Lady Chakrabarti, who unfortunately cannot be with us for the debate today. We warmly support the Bill. I have not spoken on previous amendments as the contributions—especially those from the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton—have been eloquent and insightful, not to mention evidence-based, which is always nice to hear in your Lordships’ House.
I take this opportunity to remind your Lordships’ House again of the consequences of the decade-long underfunding of our justice system and how these cuts have affected family law in many ways, especially since legal aid was removed from divorce cases. This was, I believe, a terrible mistake. We are in many cases failing to protect abandoned people and children. The lack of access to lawyers results in inherently inadequate allocation of resources in the event of separation and divorce. As my noble friend Lady Chakrabarti recently highlighted, it seems perverse that, if the state seeks to take your children away, you have access to a lawyer but, if your ex-partner is depriving you of that contact, you do not have that support.
We can try to craft the most perfect divorce legislation but people must have access to early and consistent advice and representation. We urge the Minister to reflect further on the availability of legal aid.
Lord Keen of Elie
I note that the noble Lord supports the amendment and I hear what he says with regard to ancillary matters.
Baroness Howe of Idlicote
“Information to be provided
The Lord Chancellor must ensure that individuals applying for a divorce order who have children under the age of 18 are provided with a concise statement of the main findings from the relevant social science disciplines about the impact of divorce on different aspects of a child’s wellbeing.”
Baroness Howe of Idlicote
My Lords, in Committee we had a useful debate on the impact of the Bill on children. The amendment I moved on that occasion required that the best interests of children should be considered in the divorce process. In his response, the Minister said, among other things:
“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.”—[Official Report, 3/3/20; col. 549.]
Taken as a whole, the Minister’s response made two main points. First, he claimed that while the decision to marry involved two people, the decision to divorce need involve only one person and is as such an “autonomous decision” that engages neither the spouse nor the children. This was not to say that the best interests of children were irrelevant but, rather, that they are engaged outside the legal process of divorce and protected through provisions such as those in the Children Acts. Secondly, he expressed the concern that the requirement to take into consideration the best interests of children could be used to prevent the divorce taking place if the divorce were deemed to be not in their best interests.
While it is not my intention to table any amendment that would prevent a couple who want to divorce from divorcing, I am deeply concerned about doing anything that authenticates an ethic of autonomous decision-making in family life. When two people marry and bring children into the world, they change the world through those children, who are very properly dependent on them throughout childhood. They use their autonomous choice to create a family unit of dependents and interdependence, in which anyone who is committed to the notion of responsibility must acknowledge that they say goodbye to autonomous decision-making, in the sense of decision-making based entirely on self, and engaging with the consequences for others only after the fact.
The thrust of government policy in seeking to fix “broken Britain” has been all along about helping fathers and mothers recognise that they must live up to their responsibilities, not escape them by falling into the ethic of autonomous decision-making. The hyper-individualism of the ethic of autonomous decision-making is the root cause of the broken Britain phenomenon, which the Conservative Party in opposition pledged itself to repair. In consequence, it makes no sense that, once in power, the Conservatives should instead give a shot in the arm to the hyper-individualism that they previously committed to curtail. In this context, rather than encouraging ethical autonomous decision-making, it is vital that divorce legislation in 2020, while not blocking the break-up of the family unit, should encourage adults with dependants to make decisions that are fully cognisant of the implications of those decisions on others, including their children.
This is absolutely relevant to the divorce process because it is one of decision-making. That is reflected in the three stages of the process as set out in the Government’s consultation paper, Reducing Family Conflict: the petition, the decree nisi and the decree absolute. The sense of the decision-making process negotiated through the first two stages is helpfully elucidated on page 32 of Reducing Family Conflict:
“Although it is the making of the petition that puts the marriage on notice, so to speak, it is only at the stage of the decree nisi that the marriage has, at least provisionally, been found by the court to have broken down irretrievably.”
The dictionary definition of putting in notice is,
“a formal announcement, notification, or warning, especially an announcement of one’s intention to withdraw from an agreement.”
The first part of the divorce process is therefore not set out in terms that suggest that the divorce is necessarily going to happen. We are looking at an indication of intention.
The provisional nature of that initial putting on notice period is further underlined by the designation of the 20-week period between initiating the petition and the application of the conditional order as the reflection period. It is during this reflection period that the Government have said on numerous occasions that they hope it might be possible to save a marriage. For example, in their response to the consultation process, the Government state on page 17:
“The law can, and should, have a role in providing couples with an opportunity to reflect on their momentous decision and pull back from the brink if they decide that reconciliation is achievable.”
In other words, at this stage we are not dealing with a process where decision-making is over.
In the context of the decision-making process facilitated within the legal process of divorce, it is very important that couples with children think about the impact that the divorce is likely, given the current social science research, to have on their children. In order to help them think this through, it is vital that they are empowered to make informed decisions through the provision by the Lord Chancellor of a
“concise, accessible statement of the main findings from the relevant social science discipline about the impact of divorce on different aspects of a child’s well-being.”
This is a modest but important amendment. It does not block divorce but simply seeks to empower a couple to make decisions about divorce that are informed by an awareness of the likely impact on their children.
I suggest that we cannot expend energy on seeking to block such a provision unless we want to risk being seen to prioritise the convenience of adults over the best interests of children in a way that I—and, I feel sure, many others—would find disturbing. I very much hope that the Government will accept this amendment. I beg to move.
Lord Mann (Non-Afl)
My Lords, I apologise for not having participated in this debate previously, but I trust it is in order to make a few remarks in relation to this amendment.
In 2002, when I was recently elected to the Commons, for whatever reason the Whips did not put me on a Select Committee—that is another story—so I created my own select committee in my constituency. I spent the best part of a year looking at heroin abuse in micro detail. The relevance and significance to this debate is in one of the extraordinary findings I made. There were around 600 heroin addicts living in the constituency. It was a fairly stable population and it was easy for me to gain access to them. I personally met, interviewed or researched—you could use all those terms accurately—around 300 of them, half the cohort, looking at what should be done to deal with their addiction but also at how they came to be addicted.
I came across the most extraordinary correlation. Of those 300, I found none—not a single one—who had not had major childhood trauma sometime in their teenage years. For some, it was reasonably well documented; it would be sexual or violent abuse in or outside the family that led them to heroin as their drug of choice. For others, though, it was a parental death or a messy separation. That correlation was absolutely uniform across the entire cohort; it varied between individuals, of course.
The conclusion I drew was that inability to cope with that major trauma led people into more dysfunctional behaviour and particularly into the choice of heroin as a comforting drug—the so-called cotton wool drug—which was the area I was building a particular expertise in. That has concentrated my mind and work for the nearly 20 years since, dealing with many such cases and the impact of separation on children.
I do not draw the same conclusions as the noble Baroness on how the law should be framed, because what I found in dealing with individuals in this situation was that the institution of marriage itself was not the problem or the issue; it was the circumstances in which they lived. Any kind of disputed, messy separation—whether a divorce or a less conventional way of living; I call it a quasi-separation—within an established family, or perhaps an established legal marriage that was itself dysfunctional and traumatic, could create the problem. In how we frame the law, the conclusion I drew at the time and put to your Lordships is therefore that a flexibility of approach that puts the children first is critical.
However, a structured approach in the law that overstructured the solution for the child would be counterproductive. The intent behind the noble Baroness’s amendment and the causation that she is putting forward are entirely endorsed, but I fear that the remedy is too constrictive in terms of the outcome for children and for how children will know that they are put first.
Lord Harries of Pentregarth
My Lords, I shall speak to Amendment 13. It seeks simply to ensure that important information is available for divorcing couples so that they have the chance to think again about whether divorce is the best, or the only, way forward.
In Committee, I tabled an amendment that made it a duty to inform the couple of that information. The Minister argued then that it was too far down the road at that point, as the couple would have already started the process of obtaining a divorce. However, he thought that it would be possible for the necessary information to be made available on an official website, and this amendment simply seeks to ensure that that will indeed be the case. It therefore reads:
“It is the duty of a Minister of the Crown to ensure that those applying for a divorce order using the website of Her Majesty’s Courts & Tribunals Service have access to information about services related to relationship support, mediation, domestic abuse and related matters.”
Of course, that does not take into account those who apply for an order on paper, but it assumes that they will probably look at the court’s website at some point, and that is probably the best that can be done at this stage. Therefore, I very much hope that the Government will be able to accept this very simple amendment.
The Lord Bishop of Carlisle
My Lords, much of what I might wish to say about Amendments 5 and 13 has already been mentioned, so I will not repeat it. However, from these Benches I would like to express my warm support for the main thrust of both amendments and briefly reiterate three points.
First, in both amendments, those applying for a divorce are not compelled to do anything, but they are presented with information that might make a difference not only to what they do but to the way in which they do it.
Secondly, with regard to Amendment 5, almost everyone is agreed that the divorce of a child’s parents is one of the so-called ACEs, or adverse childhood experiences—we have just heard about one of those—that can significantly affect the subsequent flourishing of the child. It seems to make every sense to bring that to the attention of the parents, as well as the fact that children apparently often tend to do better even with fractious parents than they do after a divorce, although I fully acknowledge that cases of domestic abuse are a different matter.
Thirdly, as for being given access to information about mediation and marriage counselling, as we have been reminded, it might seem a little late in the day for that, and I noted the earlier comments of other noble Lords. However, as I understand them, the statistics suggest that as many as 2,500 relationships are currently rescued each year as a direct result of this sort of intervention. That is obviously important not only for the couples but for any children involved. Several noble Lords have already emphasised that point.
Both these amendments seem to be simply a matter of common sense and care for everyone who is caught up in the trauma of a divorce. They would enhance, rather than destroy, the Bill, and I very much hope that the Minister will regard them with the favour that they clearly deserve.
Lord Browne of Belmont (DUP)
My Lords, the social science evidence is very clear that divorce has a negative—sometimes profoundly negative—impact on child development. Of course, there are occasions when divorce is absolutely in the best interests of children: when they need to be liberated from an abusive environment. In developing public policy, however, we must be careful that situations where divorce is the best outcome do not cause us to lose sight of the fact that, in most cases, it is best for children to remain living in an intact family home.
Under the current law, if someone is unfaithful to their spouse, they know that they will be at risk of receiving divorce papers. There is a sense in which the law is there to protect the faithful spouse from being abused by an unfaithful spouse. The new framework, however, seems to turn things on its head. A feckless husband and father, rather than being challenged by the law in his selfishness, is actually empowered by it, and in a way that enables him to demonstrate a cruel lack of regard for his spouse and children. He can have an affair and use the law to help him fulfil his objective of liberating himself from the family unit that constrains him, in order to pursue others. The law allows him to issue a statement of irretrievable breakdown with the option of being out of the marriage in six months.
What does this Bill do for the faithful spouse, the respondent, and, more importantly, their children? It means that people who have committed no fault, but who are being divorced, will lose the warning that they currently benefit from through the requirement for prior separation in the absence of fault. They will instead receive, out of the blue, a statement of irretrievable breakdown, a breakdown that is in no sense their fault, and find that marriage will end in six months, or significantly less if the petitioner sabotages the 20-week reflection period by not telling her that a petition has been lodged until part way through or at the end of the period.
The lack of actual regard for the respondent and children in the proposed law is concerning. I know that in 2011, when David Cameron, as Prime Minister, called for feckless runaway fathers to be shamed, he was not necessarily saying that couples should not divorce. His point was that fathers should take their responsibilities seriously. As well as challenging fathers not thoughtlessly and selfishly to walk out of marriages, he was challenging fathers not to turn their backs on their responsibilities after divorce. Notwithstanding that, however, it is very difficult to square the way that this legislation empowers a feckless father to walk out of his marriage on the basis that his decision is an autonomous one, without regard for the best interests of the children until after the decision to divorce has been made. In this context, at the very least we must think more about asking parents to process the divorce decision in the context of an awareness of what the social science evidence says about the best interests of their children.
In this regard, I set before your Lordships’ House two considerations. In the first instance, a divorce decision is not an autonomous decision, because it impacts both the spouse and the children. We should be encouraging not an autonomous decision but a responsible decision, one that has regard for the impact on others, especially the children.
In the second instance, the decision to divorce is located, to some significant degree, in the legal process of divorce, and is not a foregone conclusion from the outset. As the Government’s consultation, Reducing Family Conflict, makes plain on page 31, initiating the petition amounts to something that
“puts the marriage on notice”.
The application for the conditional order for the divorce is not actually made until after the 20-week period. This is called a reflection period, for the very good reason that it is a time for reflection, to aid the decision-making process in the context of which The Family Impact Test says:
“The legal process for divorce should seek to reduce acrimony and conflict, thereby helping couples and parents to look to the future rather than providing a mechanism that facilitates and encourages the attribution of blame for past events. We want to create conditions for couples and parents to reconcile if they can – and to move on as constructively as possible in the event that this is not possible.”
In other words, the Government are saying that the decision-making process is still taking place in the legal process of divorce during the reflection period. In this context, it seems absolutely right that, rather than encouraging people to make autonomous decisions about divorce in the legal process of divorce, we should be encouraging them to make responsible decisions about divorce—decisions that do not think just about themselves but about their children.
I believe that this amendment is eminently sensible. It does not block couples seeking divorce; it entitles couples to receive information. Quite what couples decide to do with the information is up to them. Perhaps it will make them resolve to work harder at their marriage and step back from divorce. Perhaps it will not change their decision at all, but it will impact the way in which they approach it and make them more alive to the need to provide special support for their children going forward.
The state, having played a role in recognising the marriage commitment through the law and conscious of the significant public policy benefits of marriage, has a responsibility, particularly to the children of the marriage, to make sure that it cannot be exited without reflection on the implications of doing so in the best interests of the children. I am therefore pleased to support the Amendment 5.
Baroness Butler-Sloss
My Lords, I start by reassuring the noble Baroness, Lady Meyer, that if the President of the Family Division has said he will do something, he will do it.
Turning to these two amendments, I have the greatest possible sympathy with the proposals in each of them, but I do not think it appropriate that either should be in primary legislation. I would like to see, side by side with the application online, a requirement for the applicant to read advice about dealing with the issues raised by the noble Baroness, Lady Howe, and the noble and right reverend Lord, Lord Harries; and equally, if not more important, to read something about what the children say about divorce’s impact on them. About 20 years ago, Michigan had the most wonderful video of children ranging from about six to 18. They talked about the impact of divorce on them, such as: guilt—wondering whether it was their fault; anger at one parent or sometimes both; frustration because they did not know what was going on; and so on. Children need to be informed about what is happening; they have a right to know. They are people, not just packages.
It is extremely important that this sort of information, together with the information the noble Baroness and the right reverend Prelate have set out today, be provided, along with asking whether the parents realise that the children generally love both of them—it is very rare that they do not—and that the impact will include their feeling that they are responsible for what has happened, for example. I would like an undertaking from the Minister that this information, which has to be easily available, will be provided. A link is not good enough, because people do not have to look at it. It should be side by side with the application and should be provided to any applicant with children; however, it is not an appropriate provision for primary legislation.
Baroness Meyer
My Lords, I fully support what the noble and learned Baroness says. Before I speak in support of the amendment moved by the noble Baroness, Lady Howe, I shall make one thing clear: I have never said that I would be in favour of forcing people to stay together if they have decided that the best way forward is to separate and divorce. On the contrary, as I said in my previous speech, I fully support the new clause which allows for divorce by mutual decision through a joint application. The problem lies elsewhere: in what are, for the moment, called “contested cases”.
Baroness Burt of Solihull
My Lords, we have gone round the houses a bit but the amendments in this group are about information to applicants. Amendment 5 would require the Lord Chancellor to ensure that information was provided to divorcing couples with children under 18 about the effects of divorce on children. I recall that we had a discussion in Committee about the impact of divorce on children, and I agree strongly that they are often victims in this. However, I think that most parents will be only too well aware of the effect of divorce on their children, and they do not split up a home lightly.
As in so many situations, the impact on the children will depend on how the situation is handled. Taking the sting out of divorce by removing any requirement for blame and taking out child arrangements and financial arrangements from the divorce itself will, I hope, help the inevitable split have a calmer, less traumatic effect on children. In the past, staying together for the sake of the children often produced more, not less, unhappiness and trauma for children and adults. A family today can look very different from the traditional model that prevailed years ago. To me, as long as there is security and love, that is the main thing.
Amendment 13 would require applicants to be provided with information about relationship support, mediation, domestic abuse and related matters. Again, we discussed this in Committee, and I tend to agree with one or two other noble Lords who said that by the time an application has been made, it is too late.
Lord Harries of Pentregarth
My amendment says that this information should be on the website of the Courts & Tribunals Service, so that would not be too late; it would be when they were still exploring the possibility, not putting in an application. It would be there just as basic information. Surely there cannot be any objection to people finding out a few facts.
Baroness Burt of Solihull
I am very grateful to the noble and right reverend Lord, and I totally agree. I am just going on to talk about the information that we should be making available at all stages.
These services should be freely available to any couple experiencing difficulties in their relationship. Let us face it, the current situation with regard to Covid-19 can hardly be conducive to calm, happy families if they are all stuck in the same house together for weeks on end. I strongly agree that the Government should be funding the kinds of services mentioned in the amendment, particularly in the current circumstances, and several steps upstream before a decision is made to file. However, I also agree with the noble and learned Baroness, Lady Butler-Sloss, that this very valuable information does not need to be in primary legislation. I look forward to hearing details from the Minister about how full information will be provided outside the primary legislation. I would be very happy if he wanted to write to me and other speakers today about that issue; that would be good.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I support Amendments 5 and 13. I believe that they bring before the House necessary advice and information that can be valuable to those considering divorce and its implications.
The reality of living in the real world today is that many of the foundational principles of a strong society are being rocked. We are seeing those who look upon marriage as being a lifelong contract before God being frowned upon, just the same as the life of the unborn child—they have no voice and no right to be heard. However, I believe that children ought to be given greater consideration. We are told, in the light of the virus that is striking fear into the hearts of many people across the world tonight, that we should remember to be considerate of others. It is not all about us. It is not all about me. Those considering divorce also need to think about that: “It is not all about me; it is also about my children.” The noble and learned Baroness, Lady Butler-Sloss, reminded us that children have a right to know—they are not just “packages”.
Let us take as an example a child in a home, where one member of that family unit suddenly receives the request for a quick divorce. They had no knowledge that it was happening, but they are also not told the fault; you are not allowed to know the fault or there is no reason for you to be told it—it is just a quickie divorce. What does the child believe? It is faced with “My family has been torn apart, but why is Daddy leaving the home?” or “Why is Mummy stepping out of the marriage?” Have they a right to be told? Is that to be brought out? We talk about anger; what will they feel when a parent just walks away in a matter of months? Anger, guilt, frustration—the noble and learned Baroness, Lady Butler-Sloss, mentioned those things. In actual fact the children cannot feel them, but they do not know why their family unit is no longer together, because they do not necessarily have to be given a reason why the family is being torn apart.
It is vital that we realise that yes, irretrievable breakdown is a reality, and we know that in fact there comes a situation where two people cannot live together and that their staying together would be worse for the children. However, we should provide every opportunity and every piece of information and advice to try to keep families together in a society that is already broken.
Lord Keen of Elie
My Lords, I thank the noble Baroness, Lady Howe, the noble and right reverend Lord, Lord Harries, and other noble Lords for their contributions to this debate.
I recognise, as does the noble Baroness, Lady Howe, that there is concern about the impact of divorce on children, both at the time of the divorce and in the future. No one pretends that it will ever be easy on children, even where the relationship between the parents has been traumatising to them in the course of the marriage. The noble Baroness’s amendment would commit the Government to summarise academic research about
“the impact of divorce on different aspects of a child’s wellbeing.”
Academic research will grow over time, and any concise statement of the main findings will be fluid and continually subject to review. Indeed, the findings of any academic research would then be questioned as to what evidence there was supporting it, what the nature of any cohort examined was, and whether the study was, for example, longitudinal. Any number of questions would arise in that context. However, even if a statement of the main findings of such research could be achieved concisely, we are not persuaded that pointing to academic research will affect people’s decision to divorce, which must be the ultimate intent of the amendment. For most people, the application to divorce will come after much reflection about what the future will hold without the other spouse, and it will include consideration of the children as well. We therefore do not consider it appropriate to accept this amendment, and I invite the noble Baroness to withdraw it.
I turn to Amendment 13, tabled by the noble and right reverend Lord, Lord Harries. He referred to this at an earlier stage of the Bill. I share, and understand, the spirit of the concerns he has expressed. It is right that all divorcing couples have opportunities to find out about support services and mediation. Where the Government’s view differs from the noble and right reverend Lord’s is that we see this as a practical, rather than a legislative, issue. I am happy to reassure noble Lords, and the noble Baroness, Lady Burt, that we will work hard to see what more can be done to improve the signposting of these services and information about them. That will require careful consideration, all the time thinking about the best places for couples to access the relevant information and to support them in making informed decisions once they have it. In particular, we will review the content on the GOV.UK website and check the ease with which people can navigate their way to services in their local areas. That website will likely be the first port of call for many people contemplating divorce, and at the point before they have decided even to seek advice from a lawyer. The information on GOV.UK therefore has the potential to be accessed before marital breakdown is, in a sense, irretrievable.
Lord Harries of Pentregarth
My Lords, I thank the Minister for his assurances. I think the House would welcome it if, at Third Reading, he was able to spell out a bit more the kind of work that is being done and give a clear statement about where responsibility lies for ensuring that this happens. I presume it would be with the Ministry of Justice. What he said was welcome and a categorical assurance about that would reassure many people.
Lord Keen of Elie
I am much obliged to the noble and right reverend Lord. The responsibility would ultimately lie with the court service, which is an agency of the Ministry of Justice, to ensure that these processes do work in the way that I have indicated. I note what the noble and right reverend Lord said about further reassurance and I will take notice of that.
Baroness Howe of Idlicote
My Lords, I thank all noble Lords who have taken part in this debate. I am again pleased that we have had such a focused discussion on the implications of this legislation for children. We had an important one in Committee, but this was more widely spread. I am afraid that I am not particularly reassured by the response of the Minister—no doubt he would expect this—who does not even appear to think that this amendment is relevant to the Bill.
I very much hope that this debate will be read by Members of another place and that, when this Bill goes to their House, they will apply themselves to the task of seeking to factor into the divorce process a better consideration of the best interests of children than does the current draft. This is an important challenge if the Government are to have any chance of realising their objective of fixing broken Britain. I beg leave to withdraw my amendment.
“Impact on marriage
Nothing in this Act changes the understanding of marriage as established by law.”
Lord Harries of Pentregarth
My Lords, I firmly support this Bill, but I can well understand the fears of those who worry that it will undermine the institution of marriage. I suspect that those fears are more widely shared by those outside the House than they have been expressed within it. The traditional understanding of marriage is well expressed in the Church of England service in which one person pledges themselves to another
“for better, for worse, for richer or poorer; in sickness and in health ... till death do us part.”
In the Book of Common Prayer this ends with the words:
“I give thee my troth”
and in the Alternative Service Book, “I make my vow.” I have always understood that the law of this country reflects that understanding of marriage. In the old days, apparently, register offices used to carry a notice that marriage according to the law of this country was—and here I adjust to take into account same-sex marriages—the union of one person with another, excluding all others, until death. This is borne out by Jowitt’s Dictionary of English Law, updated in August 2019, which states that it is
“the voluntary union for life of one man and one woman to the exclusion of all others”
but again, taking account of the possibility of this being two persons of the same sex.
My concern, as expressed at Second Reading, is that this venerable understanding might be changed in some people’s minds because the present Bill allows divorce on the say-so of one person to the marriage that it is has irretrievably broken down. They might therefore come to think that marriage vows are a contract like any other, which one person could break if the partner to the contract failed to fulfil their obligations. But marriage vows, wherever they are made, in church or a secular space, are an unconditional commitment of the same character as the oath of loyalty made by your Lordships in this House. It is not a commitment made on the basis of certain conditions being kept—provided the partner does this, that or the other. It is a commitment, whatever happens, for life. Marriages do break down irreparably; if they do, a humane way of recognising this in law must be found—and I believe that the Bill does this. But it is important that the Bill does not lead people to think that it undermines the institution of marriage as an unconditional commitment for life.
My amendment does not spell out the legal definition of marriage. There is no need. All we need is an assurance in the Bill that, as the amendment proposes
“Nothing in this Act changes the understanding of marriage as established by law.”
I understand from the Public Bill Office that this kind of phraseology is quite a regular procedure. I very much hope that the Minister will accept this simple amendment. I beg to move.
Lord Keen of Elie
I thank the noble and right reverend Lord for moving his amendment. Of course, marriage is a contract. The statute law speaks of
“the persons contracting the marriage”
and sets out “the words of contract” when two people take each other as husband and wife. As with any contract, there are certain obligations, but how these obligations are spelled out has, of course, changed over the centuries. For example, it was at one time the duty at common law for a man to maintain his wife. That commitment, now gender neutral, is not explicit in the statute law, but it remains possible for either party to a marriage to apply to the court for financial provision—for reasonable maintenance—in cases of neglect, for example. Of course, it is the importance of obligations during the marriage that has led to the law providing for financial adjustment at the end of it.
But marriage is also much more than a contract. The statute does not spell that out—I suggest because it does not need to. It never needed to in the past and does not need to today. I venture that the importance of marriage to couples and to society is self-evident. Again, how that importance is expressed has changed over the centuries. In the rites of the Church of England, the wording of the marriage service in the 21st-century Common Worship differs from that in the 17th-century Book of Common Prayer. I am sure the noble and right reverend Lord would agree that the understanding of marriage is in essence the same, notwithstanding those changes. All that has really changed in the newer service book is that the expression of that commitment now has a different inflection, which more directly speaks to couples marrying today, rather than in the 17th century. All that is as it should be.
Our law provides only for how people enter into marriage, not what it is. I suggest that it is far better that our understanding of marriage derives not from law but from what people bring to it and the benefits our society recognises with regard to marriage. The understanding of marriage did not change when the Matrimonial Causes Act 1937 introduced new grounds for divorce, nor when the Divorce Reform Act 1969 replaced these with the single ground of irretrievable breakdown—and nor will it change with this Bill passing into law.
The noble and right reverend Lord’s amendment cannot serve any direct purpose. He suggests that it allows us to put matters on the record. In a sense, he asked for an assurance from government that marriage under the law is not simply a contract. As I stand at this Dispatch Box, I am more than happy to assure him that this Government believe that the vital institution of marriage is a strong symbol of wider society’s desire to celebrate a mutual commitment and that it is one of the things that binds society together and makes families what they are. We support marriage for all these reasons, and I hope that reassurance will be sufficient to persuade the noble and right reverend Lord to consider withdrawing this amendment.
Lord Harries of Pentregarth
I thank the Minister for his response, but he clearly does not share my concern that many people are worried about the Bill. Although I do not think it undermines the institution of marriage, a lot of people are worried that it does. I really cannot understand why the Government are unwilling to accept this very simple amendment. It does not go into the details of what marriage is. Whether it is a particular kind of contract or an unconditional obligation is neither here nor there. All my amendment says is that this Bill does not change the legal definition of marriage. I believe it would do the Government a great deal of good to put this little clause in the Bill, because it would reassure a lot of people who feel that this Bill undermines the traditional institution of marriage.
I hope that perhaps the Minister might be able to come back at Third Reading having thought again about this. It is not a controversial amendment; it does not go into the definition of marriage. It just says that the Bill does not change the legal definition of marriage—what could be less controversial than that? But it would go a long way to reassuring people. I very much hope the Government will think again about this, but meanwhile I beg leave to withdraw my amendment.
Baroness Howe of Idlicote
“Report on the effect on children of divorce or dissolution in families with low conflict
(1) The Secretary of State must publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending when there is either no conflict or low conflict between the parties.(2) The Secretary of State must lay the report under subsection (1) before both Houses of Parliament.”
Baroness Howe of Idlicote
My Lords, in response to my amendment on children in Committee, the Minister said:
“Divorce, at least in terms of the legal process, is of limited duration”.—[Official Report, 3/3/20; col. 549.]
It may be seen in those terms by parents but I suggest to the Minister that that is not the case for children. He also suggested that I should review the family test for the Bill in response to the research evidence that I presented in Committee. I have done so and it seems largely to focus on reducing conflict between parents. The document refers to one specific study, which is described as highlighting the fact that
“frequent, intense, poorly resolved and child related interparental conflict adversely affects long-term emotional, behavioural, social, academic development, and future intergenerational/interpersonal relationship behaviours for”
children and young people.
Much has been made in this House of the damage done to children by warring parents staying together—I think that message will have reached the public loud and clear—and I am sure that in those situations children are not surprised to find their parents choosing to divorce. However, I am concerned that both our parliamentary debate and general public discourse have been less informed of the fact that where there is no conflict between parents, divorce can be more harmful to their children than their staying together. Children can face a divorce that comes out of nowhere.
I quoted extensively in Committee from research that highlighted this issue. I hope the House will also allow me to summarise that again. First, of those who split up, low-conflict families tare in the majority—that is, 60% compared to 9% high-conflict couples. Secondly, a 12-year longitudinal study found that children in low-conflict families had higher levels of well-being if their parents stayed together than if they divorced. The noble Lord, Lord Browne, quoted social scientist Elizabeth Marquardt, who said:
“The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart.”
Thirdly, it is the new reality that children find themselves in that brings them stress after parents with low conflict split up—possibly in a new home, a new school and a new relationship with both parents as one moves away and the other takes on more responsibility.
My amendment does not say that parents must not divorce. Rather, it would require the Secretary of State to
“publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending when there is either no conflict or low conflict between the parties.”
So far the Government have chosen to adopt the rather un-nuanced approach that conflict is always bad for children and that minimising it to the greatest possible extent is always good. They have not demonstrated any willingness to engage with the research that suggests that, first, while of course conflict is generally negative, there are occasions when a lack of conflict can make things even worse for children; and, secondly, that in a low-conflict context the interests of the children are best served by the marriage continuing. In that context, it makes sense that the Government should do more to encourage couples to fight for their marriage, rather than say, “It’s an autonomous decision” and go out of their way to remove obstacles to its termination.
In this context, I am moving this amendment because I want to ask the Lord Chancellor to engage formally with this research. The family test is inadequate because it does not do so. This is a major problem. There is a strong argument for saying that, until such time as the Lord Chancellor has engaged with this research, this legislation should proceed no further. I beg to move.
Lord Farmer
My Lords, I will speak to my Amendment 16. I have brought back this amendment on the need for an annual report on the impact of the Bill because I disagree with the Minister’s reasons for rejecting it in Committee.
As I said, we could have moved to a divorce system that more closely resembled that of Scotland, which has much to recommend it, given that it sees so few fault applications. However, the Government have chosen to undertake an uncharted course, to a system described as enabling possibly the fastest divorce in the world, certainly for recipients of an application. Therefore, it seems irresponsible not to keep very careful track of any changes in our divorce, dissolution and separation patterns which ensue from this very significant change, especially given the existing high rates of family breakdown in this country.
I mentioned in Committee that research on which the Government have relied to justify removing fault points to how this degrades the commitment of marriage. Professor Wolfers says that its benefits are reduced; therefore cohabitation, which is widely agreed to be a less stable relationship form, becomes more common. So this will, very likely, have a knock-on effect on the number of children who experience the breakdown of their parents’ relationship.
I disagree with the Minister that the requirement to report annually on the number of divorce applications, including by gender, is unnecessary, given that the data is already publicly available and published in the Family Court Statistics Quarterly. The point of reporting is to be accountable for changes in that data and to draw Parliament’s attention to it. If the Government are not convinced that the Act will have a detrimental effect on any of these patterns, they should have no qualms about reporting on it.
I also disagree that it would be unduly onerous for the courts service to collect income data, or unduly intrusive for the applicants to supply it. The collection of income data is easily achieved by including this in standard demographic data income bands, the completion of which would of course be voluntary. We are constantly told that data collection is important to the Government, to help understand why people make choices, and to help make forecasts for the future. Understanding how different income brackets are affected by a policy is therefore not unusual or shocking. It makes no sense to me that in this area the Government are so coy about asking people to give them this information.
In conclusion, there is an inconsistency in the Government’s approach to informing themselves when it comes to tracking the effects of this Bill, despite the heavy social costs of relationship failure and the ramifications across the whole of government. I encourage the Minister to see the constructive point of this amendment in helping the future outworking of this law.
Lord McColl of Dulwich
My Lords, I wish to speak to Amendment 17 in my name. It seeks to address some confusion that emerged during debate in Committee. I will not press this amendment to a vote but I hope that, as a result of this debate, we may gain greater clarity about the place for reconciliation during the divorce process.
We have heard very mixed messages from the Government on their commitment to reconciliation in the divorce process. On the one hand, there have been repeated statements of interest in promoting it. I have found no fewer than 30 occasions where the Government have said that promoting reconciliation during divorce is part of the policy intention behind these reforms.
I would like to highlight a few of these statements. The initial consultation document from September 2018 stated:
“The reformed law should have two objectives: to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course”.
The Government’s response to the consultation in April last year stated:
“Sometimes, a marriage will still be reparable at the point at which one spouse seeks the divorce … 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.”
At Second Reading of the Bill in the other place in June last year, the then Justice Minister stated:
“The Government believe that the need to confirm to the court that it may make the conditional order, and to apply to the court for the final order, means that a divorce or dissolution is never automatic and that the decision to divorce is a considered one, with opportunities for a change of heart right up to the last moment.”—[Official Report, Commons, 25/6/19; col. 580.]
This is consistent with the family impact test assessment, which suggests that one of the strengths of the new system is the increased scope that it will provide for reconciliation. It states:
“The current law works against reconciliation by incentivising (in order to get a divorce more quickly) a spouse to make allegations about the other spouse’s conduct which can create conflict … The current law also offers little opportunity for reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the divorce proceedings have started.”
It then says that the Government want to exploit the new opportunities for reconciliation under a no-fault system, saying:
“We want to create conditions for couples and parents to reconcile if they can”.
Yet despite these repeated statements in support of reconciliation, and the suggestion that the scope of reconciliation will be enhanced in the no-fault system, there is little or no evidence of a political will to exploit this. On the contrary, there have instead been contradictory statements that reconciliation is not possible once the divorce process has started. I was concerned that, in response to my amendment in Committee, the Minister replied:
“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.”—[Official Report, 3/3/20; col. 537.]
Later in the proceedings, he said:
“I understand the desire of noble Lords to see that the marriage relationship can be supported, but it has to be supported at the right time. That is not at the point of an application for divorce on the grounds of irretrievable breakdown, which is why we do not consider that the Bill is the right vehicle for tackling the wider issues that lead to relationship breakdown.”—[Official Report, 3/3/20; col. 565.]
There seems to be some conflict between these two sets of statements, so I am probing the Government’s intention. If one believes that reconciliation, once divorce begins, is so unlikely that it makes no sense to prioritise it, then the statements in the consultation, consultation response, press releases, family impact assessment and at previous readings of this Bill all seem misplaced.
Lord Browne of Belmont
My Lords, I rise to speak to Amendment 15 in the name of the noble Baroness, Lady Howe. As I noted in my speech in Committee, in all our debates on the Bill we must not forget children. The Family Impact Test assessment affirms the Bill on the basis that it seeks to “reduce conflict”. However, while I fully understand the Government’s desire to reduce conflict in the divorce process, it is telling that the majority of couples who divorce are in low-conflict relationships.
The figure mentioned by the noble Baroness, Lady Howe, is that 60% of couples that split are in low-conflict relationships. This research comes from Professor Spencer James of Brigham Young University. He states that these low-conflict couples are
“largely indistinguishable before they split from couples that remain together”.
These findings challenge the assumption that the majority of couples that split up are in constant conflict with one another, yet that assumption seems to underpin this legislation. James’s research comes from the UK’s largest household panel survey, Understanding Society. He found that only 9% of married couples in the United Kingdom who split could be described as high-conflict couples. He states:
“Both unhappiness and conflict are far less prevalent among couples who are about to split than one might reasonably expect.”
All of this is important when we return to research on the impact on children of family breakdown. Parents are more likely fall into poverty following separation. Therefore, they need much greater levels of state support. Some 60% of lone parents receive housing benefit, compared to just 10% of couple parents. Even when income and education are taken into account, studies find negative effects on children from divorce. One study, from Lee and McLanahan, looking at 2,952 mothers and children, revealed that instability especially affects children’s socioemotional development.
Yet the impact of divorce on children seems to depend on what came before. Children tend to do better if their parents exit a high-conflict relationship and worse if they exit a low-conflict one. As James notes in the research I mentioned earlier:
“This potentially counterintuitive finding in fact makes great sense. The break-up of a low conflict relationship comes largely out of the blue for the children. They are then left to conclude either that relationships are profoundly unpredictable or that they are somehow responsible. It’s easy to see how either of these conclusions can then undermine and sabotage their own future prospects of a loving committed relationship”.
This amendment would require the Government simply to look further into the impact of no or low-conflict divorce on children. It is a significant failing that the Family Impact Test assessment has not engaged with this. I think there will be a good deal of benefit in gaining greater understanding of why these couples divorce and therefore in investing more effort in helping them. If these married couples are saying they are relatively happy one year before divorce, what pushes them to make that decision? Understanding that would enable targeted support and help.
The research I have talked about should give us hope. If 60% of couples of are low-conflict and many of them are happy one year before they divorce, perhaps those marriages could be saved. Divorce is generally not in the best interests of the children of those families, so keeping them together would be a great benefit to them. I support Amendment 15.
Lord Morrow
My Lords, I wish to speak in support of Amendment 17, which was tabled by the noble Lord, Lord McColl. I am aware that he does not intend to test the opinion of the House on it, but nevertheless I think there are some things that merit being said.
The noble Lord noted in Committee that there are no less than 27 references to reconciliation in the Government’s comments setting out their response to their consultation on divorce law reform. They include the statement that,
“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”.
If we look beyond that document there are plenty of other examples, including in the Family Impact Test assessment of this Bill, which states:
“The current law works against reconciliation by incentivising … a spouse to make allegations about the other spouse’s conduct which can create conflict. The alternative option which requires the couple to live apart for a substantial period of time can disincentivise efforts at reconciliation because the separation period can be affected if the couple try living together again. The current law also offers little opportunity for reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the divorce proceedings have started.”
In promoting a no-fault system, the Family Impact Test states:
“We want to create conditions for couples and parents to reconcile if they can”.
In this context, it seems to me that commissioning research on how reconciliation is best facilitated under the new regime proposed by the Bill compared to the fault-based system that we have now is vital. The Minister might be preparing to tell me that reconciliation rarely happens during the divorce process, as he did in Committee when he said that there was little evidence that divorces that do not proceed do so because the couple have reconciled. If the Government really think that, it seems completely contradictory to all their statements about reconciliation.
I hope the Minister will not try to square this circle by simply saying that the Government’s position is that while it is not worth prioritising reconciliation, of course they support reconciliation when it is possible. Multiple statements of commitment to the promotion of reconciliation in the Government’s response to the consultation, press releases and family test are such that it does not make sense for the Government then to say that, by the time the divorce process starts, it is too late for reconciliation.
I note that when the Minister suggested this argument in Committee, he cited in defence the Newcastle University study of the Family Law Act 1996 pilots. He told the House about the information meetings that were part of the Family Law Act 1996 and said:
“The purpose of that meeting included providing the parties with information about marriage counselling. Academic research into various models of information meetings found that they came too late to save marriages and tended to incline parties who were unsure towards divorce.”—[Official Report, 3/3/20; col. 564.]
He also implied elsewhere in Committee that the information meetings were not effective.
Lord Keen of Elie
I thank all noble Lords for their contributions to this part of the debate. I will speak to Amendments 15, 16 and 17.
Amendment 15 was moved by the noble Baroness, Lady Howe, and would require the Secretary of State to publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending
“when there is either no conflict”
as it is termed, “or low conflict”, as it is termed, “between the parties.”
It would require the publication of a report laid before Parliament on the impact on children of divorce or dissolution but it does not define what is meant in this context by “low conflict” and, for that matter, it does not define what would be meant by “no conflict” for this purpose. It is also not clear whether that could be achieved by pointing to existing academic research or whether the Government would need to conduct their own research, questioning parents during and after divorce about the nature of their relationship, or indeed questioning children, presumably only if of a suitable age, about their feelings and evaluating any impact on their life chances long into the future.
The very indefinite nature of such a report means that people who, on publication, would have wanted the report to have researched in one direction might find that it simply does not do so and does not assist them in that regard. Therefore, with great respect, we do not agree that the amendment would serve any useful purpose. It would not deter people from divorcing. Even if they read the report, they would be left considering their situation and that of their children, not that of a group of people who were the subject of research. For all those reasons, I invite the noble Baroness to withdraw her amendment,.
Amendment 16, tabled by my noble friend Lord Farmer, would require statistical reporting every year beyond that which the Ministry of Justice currently publishes. It would not require what was referred to in Committee as the “demographics” of the parties in geographic locations, but it would still require the income of spouses and civil partners for each divorce or dissolution application, as explicitly stated in the amendment.
As I observed in Committee, the number of divorce applications, along with the gender of applicants, is already publicly available and is published under the Family Court Statistics Quarterly. However, with regard to income, we continue to be of the firm view that, aside from the burden on the courts of collecting that data about income, it would be an unwarranted intrusion on application of what is, in any event, a difficult time. We simply do not consider that there is a case to compel applicants, or indeed respondents, to supply such information. Indeed, it could mislead people into thinking that the court considered income relevant to the grant of the divorce.
The court will only properly require information about income in separate proceedings for financial provision orders, and we see no reason to draw that into the divorce process, which, if I may say so, is the mechanical process of ending the marriage. It will also only properly require information about children in separate proceedings for children’s orders, and, as I have said before, we do not consider that that should be drawn into the process of ending the marriage. Therefore, again, I invite my noble friend not to press that amendment.
I turn to Amendment 17, in the name of my noble friend Lord McColl of Dulwich. The Government are clear that divorce must be a last resort, and that is why we are retaining the requirement for people to confirm the intention to divorce at two further stages beyond the original application. It is also why we are building in a minimum of 20 weeks before people can apply for the conditional order—the first pronouncement from the court that the marriage is capable of being dissolved.
Some have told us that it is at that point in the existing process—the decree from the court—that the reality of divorce sinks in. However, evidence points to the prospect of reconciliation being very low. No divorce process should be automatic but it is simply the means to bring to an end a marriage that is already no longer functional after attempts to revive it have essentially been exhausted. Under the current process, about three in five people seeking divorce make allegations about their spouse’s behaviour or adultery. Having to give and receive allegations of an intensely personal nature can only sever the relationship further. I do not see that the current process is particularly conducive to repairing the relationship, and at such a late stage.
This amendment would result in a report which I suspect would satisfy no one. Some people may want to see evidence for whether more or fewer couples reconcile after our reforms are implemented, but that will mean waiting years for the report so that any longer-term trend can be assessed. Other people may want to see comparisons between the existing divorce processes internationally, but they differ from jurisdiction to jurisdiction, whether or not they are based on fault, and of course some jurisdictions have a hybrid process. The report envisaged in this amendment would not put an end to differing views about the evidence. I would also note that there is a difference between what is termed “scope for reconciliation”—that is, the theoretical possibility—and whether couples actually reconcile.
The Government have taken account of peer-reviewed academic sources in developing the proposals in this Bill, as has been noted by some noble Lords, but we are not just beholden to their conclusions. We have also taken into account what was said when we consulted on our proposals. The matter of this amendment is one for academic study and I fear that it would be fruitless for the Government to undertake it. For these reasons, I invite noble Lords not to press their amendments in this group.
Baroness Howe of Idlicote
My Lords, I thank all noble Lords who have taken part in this debate and I am not at all surprised that there is evidence which suggests that reducing conflict is a good thing for children. Indeed, it would be surprising if it did not, and certainly it is not my purpose to argue for more conflict.
The purpose of the amendment has been simply to point out that there is other important research which suggests that reducing conflict beyond a certain level is unhelpful. The family impact assessment does not engage with this research and nothing the Minister has said in his response suggests that the Government have done so; in fact, far from it. However, it is important that the findings of this research are taken seriously in framing the Bill, so I hope that the matter will be picked up and pursued in the other place. In the circumstances, however, I beg leave to withdraw the amendment.
Private International Law (Implementation of Agreements) Bill [HL]
Tuesday 17th March 2020
(4 years, 7 months ago)
Lords ChamberRead Full debate Private International Law (Implementation of Agreements) Act 2020 View all Private International Law (Implementation of Agreements) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this Bill underpins the Government’s ambition to deliver a new framework on private international law which has real and tangible benefits for people and businesses in the United Kingdom.
Private international law is viewed by some as a technical and specialist area of law, but it is an essential one. Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes. For example, these agreements can help small businesses which have been left out of pocket by a supplier based in another country to seek redress, or if a family relationship breaks down and one spouse moves abroad, they make it easier to sort out arrangements in the best interests of their children. These are sometimes difficult and challenging situations to resolve, but private international law provides a framework to do that for the benefit of all parties.
Of course, leaving the European Union does not halt cross-border trade, travel or family relationships that cross boundaries. These will endure and indeed grow in the years ahead, and where disputes arise, there continues to be a need for a framework to settle them in a clear, fair and predictable way. By helping to resolve cross-border disputes quickly, international agreements on the private international law framework help to reduce costs for UK businesses, individuals and families who become involved in them. These agreements also provide legal certainty for those travelling, trading or living abroad. They help avoid confusion by preventing multiple court cases taking place in different countries on the same subject and sometimes reaching different conclusions. They ensure that the decisions of United Kingdom courts and relevant competent authorities can be recognised and enforced in other jurisdictions. The Bill will allow us to implement these important and beneficial agreements in domestic law.
During our membership of the European Union, we helped build, develop and refine an advanced framework on private international law. Now that 31 January 2020 marks the first time in over 20 years that full competence in this area of law has returned to the UK, we must address it. Our task is to lead on building such a framework on a bigger scale in a global setting. We will begin by building on and cementing our role in international fora, such as the Hague Conference on Private International Law, the United Nations Commission on International Trade Law and the International Institute for the Unification of Private International Law, with other global partners.
I turn briefly to the detail of the Bill, which has two main clauses. The first clause implements in domestic law three Hague conventions that the UK currently operates due to our previous membership of the EU. In other words, the EU is a signatory of those conventions on behalf of all its member states. We will become an independent contracting party to these conventions in our own right at the end of the current transition period. These three Hague conventions are widely supported by stakeholders in the legal and finance sectors and, I hope, by Members across this House. We need to ensure that these important conventions can continue to operate effectively in the future, so that businesses and individuals can continue to rely on their rules.
The first is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, which aims to improve the protection of children in cross-border disputes. It deals with issues such as residence of, and contact with, children whose parents live in different countries. The second is the 2005 Hague Convention on Choice of Court Agreements, which aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. Thirdly, the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance provides rules for the international recovery of child support and spousal maintenance.
The second clause creates a delegated power which allows the Government to implement other private international law agreements in domestic law in future via secondary legislation. I confirm that the Government intend to use this power to implement the Lugano Convention 2007, if our application to accede to that convention in our own right is accepted by our international partners, including the EU. This would provide clear, reciprocal rules on cross-border judicial co-operation in civil and commercial matters between the United Kingdom and all the parties to the convention, which include the EU. That would take effect beyond the transition period. However, we also want to use this power to implement other agreements that the United Kingdom may join, both now and in the future. We are already considering joining the Singapore convention of 2019, and the Hague Judgments Convention of 2019.
This power is both well defined and, I suggest, narrow. It only allows the Government to implement agreements in the limited field of private international law, which, as the Bill states, covers areas such as jurisdiction, applicable law, and the recognition and enforcement of judgments. For example, we could not use the Bill to implement an agreement designed to do anything other than facilitate the efficient resolution of cross-border disputes. All regulations implementing a new agreement will use the draft affirmative procedure. Furthermore, where the Government are inclined to enter into an international agreement on private international law, then, at the level of international law, that will still require full compliance with the provisions of the Constitutional Reform and Governance Act 2010. There will, therefore, be parliamentary scrutiny of the international treaty itself before we seek to draw it down into domestic law by using the affirmative SI procedure.
In summary, the Bill enables us to remain at the forefront of promoting global co-operation in private international law, and it will be of significant assistance after the transition period for businesses, individuals and families. I beg to move.
Lord Wallace of Tankerness (LD)
My Lords, this is undoubtedly an important Bill. It may not attract much attention in your Lordships’ House but it nevertheless is important, as the Minister indicated in moving that it be read a second time. In the debate on the gracious Speech on 8 January, the Minister indicated that it is
“a Bill enabling us to operate agreements on private international law”
after the transition period following our departure from the European Union. He specifically mentioned agreements that
“can help to return home a child abducted by one of their parents, help two parents living in different countries to agree custody arrangements in the best interests of their children, or help a UK business to resolve issues with a supplier based abroad.”—[Official Report, 8/1/20; cols. 187-88.]
These are obviously vital for both family and commercial reasons. It is therefore important that we do not have any post-Brexit lacunae in our law.
I put my name on the speakers’ list to raise the specific issue of the Hague Convention 35, on the international protection of adults. It is the 11th convention listed in Annexe B to the Explanatory Notes on this Bill. I am grateful to the Minister and his Bill team for taking the time last week to discuss this with me. I will return to that.
As my noble friend Lord Marks of Henley-on-Thames is understandably unable to be with us this evening, I confirm that my party is generally supportive of the Bill. But, as with all legislation, it is important that your Lordships’ House should scrutinise it properly. I sometimes think that is especially the case when we are dealing with a Bill generally thought to be a good thing; we must still give it proper scrutiny.
In its briefing to Peers, the Bar Council very much makes this point. In its concluding paragraph, it states:
“Private international law is at once both a highly technical field and one that is extremely important in regulating the lives of individuals and businesses when they cross borders. Never has there been a greater need to consult specialists in this field to ensure rigorous scrutiny and to produce a cogent and coherent strategy in this field.”
It is important that we bear that in mind. Indeed, I ask the Minister: in the drafting of the Bill, how much consultation took place with specialists in the area?
I have no doubt that there will be detailed scrutiny in Committee. I will just highlight one or two points. As is often the case, the issue of delegated powers requires highlighting. As I understand it, it is a basic rule of constitutional law that when treaties are made by virtue of the royal prerogative, the involvement of Parliament is nevertheless required to change the law, to confer rights on individuals or, indeed, to deprive them of rights. That is invariably done by way of primary legislation.
Clause 2 confers regulation-making powers on the appropriate national authorities
“for the purpose of, or in connection with, implementing any international agreement … so far as relating to private international law”.
Clause 2(7) defines “international agreement” as
“a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party”.
In other words, primary legislation may not be required. It may be done by regulation sometime in the future. In a non-EU context, when did we last have an international agreement or treaty implemented without primary legislation? In his speech moving this Second Reading, the Minister mentioned the Constitutional Reform and Governance Act and indicated that that would nevertheless give Parliament a locus. It is important to recall that the 20th report of Session 2017-19 by your Lordships’ Constitution Committee—of which I had the privilege of being a member and of which the noble and learned Lord, Lord Judge, was at the time a member—concluded:
“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed. Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”
I hope that when we come to scrutinise this, we will get some answers from the Government as to why they think CRaG is sufficient in circumstances where, in the past, it was all done through primary legislation. Indeed, as the noble and learned Lord, Lord Judge, will well remember from his time on the Constitution Committee, recurring themes are delegated powers and treaty making and parliamentary scrutiny, as in our report. These two come together in this Bill, and we will want to give careful attention to that.
I referred to Hague Convention 35, of 13 January 2000, on the international protection of adults. It is for the protection of vulnerable adults who, by reason of impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The convention determines which court has jurisdiction to take protection measures, which law is to be applied in the circumstances and who may be a vulnerable person. It establishes a system of central authorities that should co-operate, locate vulnerable adults and give information on the status of vulnerable persons to other authorities. The smooth legal arrangements for matters covered by the Bill, which the noble and learned Lord referred to in his speech, must surely also apply to some very vulnerable people.
The convention has 17 signatories and has been ratified for 10 jurisdictions. I use the word “jurisdiction” advisedly: although the United Kingdom is a contracting party, the convention has been ratified only by the United Kingdom Government on behalf of Scotland, on 5 November 2003. That ratification followed on from Section 85 and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000. I declare a personal interest, because I was the Minister responsible for taking that legislation through the Scottish Parliament.
Since then, in Northern Ireland, there has been Schedule 9 to the Mental Capacity Act (Northern Ireland) 2016, which states that the convention will have effect in Northern Ireland—although there has not yet been ratification for Northern Ireland. In England and Wales, I understand that Schedule 3 to the Mental Capacity Act 2005 makes some provision, but we have not had ratification in respect of England and Wales either. It may be argued that the procedures established by the 2005 Act mean that, in practice, courts in England and Wales, and in Northern Ireland, can recognise and enforce protective measures from other states, be they contracting parties or not. But most contracting states will recognise and enforce only protection measures from other contracting states. As an example, France, Germany or Switzerland will recognise and enforce protection measures from each other, and from Scotland, but not from England, Wales or Northern Ireland. Why should citizens in these parts of the United Kingdom not enjoy the advantages enjoyed by those habitually resident in, or closely connected to, Scotland?
I believe it is in the hands of the United Kingdom Government to rectify this. It may not require legislation if some of the procedures are already in place through the 2005 Act. However, I hope that the advantage might be taken in this Bill to move forward on this and implement the convention for England and Wales and Northern Ireland.
One final matter is the difficulty that can be experienced in relation to the recognition of protection measures within the United Kingdom. Ratification of Hague Convention 35 may not necessarily resolve that, as they remain internal matters among the jurisdictions within these islands. Schedule 6 to the Bill deals with regulations made under Clause 2 and refers to implementing or applying an international convention to a particular part of the United Kingdom. In that regard, the Bar Council said that if it were to be given effect in, say, Scotland, but not elsewhere in the United Kingdom, the question of whether to apply an international convention’s rules between parts of the United Kingdom would often be very difficult. Where it is to be applied, extensive amendments to that convention are often appropriate; an example is the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to instruct UK cases. The Bar Council is concerned that Schedule 6 does not provide sufficient safeguards in this respect, and considers that it should be amended to provide the requisite clarification. I would be interested if, in reply, the noble and learned Lord could say something about intra-United Kingdom recognition and indicate how some of the concerns raised by the Bar Council may be addressed.
In conclusion, some of the briefings and representations I received on notification of HC35 have highlighted numerous difficulties in the operation of the law in relation to powers of attorney and civil instruments, and more general issues on the rights of persons with disabilities. However, those are for another day. I believe that today there is an opportunity for the Government to commit themselves to taking a small step in the sphere of private international law which could be of benefit to an important section of our community.
Lord Judge (CB)
My Lords, the noble and learned Lord, Lord Mance, has had the courtesy to show me a draft of what he is going to say. In view of the fact that he will say everything that I would have thought of saying, and rather a lot more—and will do it rather better—I shall be brief. But I would like to say before he speaks that I agree with him. In particular, I agree that this is sensible legislation. We need to have these arrangements. But I have a particular reservation about vesting power in a Minister, using secondary legislation apparently to change the entire law of arbitration as it works in this country. That needs to be examined, and the noble and learned Lord will no doubt develop the point.
The reason I am speaking is of course because we are dealing with secondary legislation, and this is yet another example of proposed legislation that is not exactly regulation-lite—I spell that “lite” because I want to show your Lordships that I have even seen Diet Coke. This is not diet regulation. We have one clause, then a second clause which is simply a regulation-making power, then we have 66 pages, perhaps more—yes, we come to page 68—and then we find the mother and father of Schedule 6, which is more regulation-making powers. Dare I ask the Minister a question? It has been a long day, and he has had to listen to a lot of speeches. Is Schedule 6 tucked away because it is shy of showing its face? It could just as easily have been part of a major structure of the Bill, not a schedule. But that is a minor detail.
Schedule 2 is not so bad. It is certainly better than Schedule 6. As the Minister said in opening, it attracts, or would attract, the provisions of the Constitutional Reform and Governance Act. However, as noble and learned Lord, Lord Wallace of Tankerness, just explained, the Constitution Committee took a view that that did not provide all the answers to everything. Therefore, we have a measure of parliamentary control over Section 2 and the use of the regulations there, not none, which is therefore rather better.
I have simple questions about Schedule 2. What will the powers be used for? Why are they needed if the powers in Clause 2 are as clear as they are and are subject to the controls which the Minister suggested? I want to know what possible thought the Minister has in mind about why we need a Henry VIII clause. “Has it just come off the computer? Let’s stick a Henry VIII clause in.” Amending primary legislation is precisely what Henry VIII clauses are about. The House has heard me on numerous occasions on this topic. I will not entertain the few of your Lordships who are here tonight about it, but I would like the Minister to see whether he could help us with it. Beyond that, I have no further observations to make. We need to be careful about how we run our legislation through regulatory mechanisms.
Baroness Shackleton of Belgravia (Con)
My Lords, I put my name down to speak in this debate, not about what the Bill addresses but about what it fails to address. In the field in which I operate—matrimonial law—many elements of it are swept up by Hague and Lugano. Sadly, divorce is not. At the moment, the first past the post principle works. When we leave the EU there will be an enormous vacuum, and there has been no direction to the judges or to the people who practise in this area as to what will happen.
The prediction among divorce lawyers is that, following self-imposed confinement, it is very likely that the divorce rate will rise. Our peak times are after long exposure during the summer holiday and over Christmas. One has only to imagine what it will be like when families are sealed in a property for a long period of time.
Added to this, no legislation has come to this House, or indeed to the other place, on premarital contracts, and there is a real division between how this country deals with them and how the rest of Europe deals with them. The incentive to get proceedings in this country with parallel proceedings in another country will be even greater than usual when people are restricted from moving to another country. When a petition is lodged in this country, how will our courts deal with it? Are we or are we not going to deal with first past the post? What will be necessary to avoid a tsunami of litigation is for there to be some certainty as to what we are going to do. I fully understand that we cannot commit the other 27 parties to Brussels II, but our courts need to know what is going to happen.
Lord Mance (CB)
My Lords, this is an area in which I have long been engaged as a practitioner, and I believe that I still have the honour of chairing the Lord Chancellor’s advisory committee on private international law—although, so far as I recall, we were not consulted on this Bill, nor on the 2018 regulations on private international law that until now have operated as the default on Brexit.
At the heart of this Bill is jurisdiction. Former practitioners such as I know that jurisdiction is commonly the most important preliminary issue in international litigation. The noble Baroness, Lady Shackleton, referred to this in the context of divorce. I shall be referring to commercial litigation, but the same applies to other areas, including matrimonial disputes, children, insolvency and divorce. Any party wishing to avoid or delay liability or a judgment will seek the slowest or most amenable jurisdiction. To prevent this, it is common in commercial law to insist on an agreed forum for disputes—a choice of court or arbitration clause, often in favour of London.
London’s practitioners and courts have a reputation for the impeccable handling of complex disputes. It is part of the package of financial, business and trading facilities and activities that has made London a—if not the—world business centre. But what matters is that other courts and states recognise our jurisdiction. We can legislate domestically for all we are worth, but international recognition and enforcement of jurisdiction and judgments require in practice reciprocal international agreement.
The Bill’s Explanatory Memorandum notes that “key stakeholders” have consistently made clear the importance of the UK continuing to take a leading role internationally on private international law. The Minister has emphasised that it is essential for legal certainty to have a framework. The memorandum goes on to say that the UK
“will need to take steps to ensure continued participation in key PIL international law agreements”,
and that Brexit will allow the UK
“to agree ambitious new PIL frameworks with international partners all over the world”.
There is hyperbole in both statements. We are ceasing to participate in some key instruments with EU states, and the Bill is unspecific—to say the least—about the ambitious new frameworks with other world partners.
From the end of this year, the UK will cease to be party to what is probably—in fact, certainly—the most significant set of private international law measures in the world: the Brussels regime regulating jurisdiction and the enforcement of judgments across EU states, and parallel measures such as the insolvency Regulation 2015/848 and the regulation on jurisdiction, recognition and enforcement in matrimonial and parental matters. The UK was itself a proponent of the successful recasting in 2012 of the first of those—the central Brussels regulation—to meet UK needs. As the Minister noted, we helped build these instruments.
The Government’s ambitions do not extend to repeating this existing framework, which has, over 35 years, attracted very considerable support in London as elsewhere. However, some form of substitute is now necessary, to apply as between the UK and EU states. In relation to children, there are, happily, the Hague conference conventions of 1996 and 2007—non-EU measures, which are referred to in the Bill—on which to fall back. In relation to commercial law, insolvency and divorce, there are no such parallels, although there are other measures focusing on commercial law, which are referred to in the Bill, to which I come.
The Bill is by its own lights a sensible measure, but its lights are rather dimmer than the halogen welcome given to it by the Explanatory Memorandum. I take first the Hague choice of court convention of 2005, which Clause 1(2) of the Bill paves the way to joining. That is an excellent instrument, again promoted by this country. In that, the committee that I chair had the privilege of playing a role but, absent specific declaration, it does not cover the very important area of asymmetric jurisdiction clauses. Many of the derivatives and banking clauses on which the City relies are asymmetric; in other words, they give one party but not the other, or others, a choice of jurisdiction. The better view is that the existing Brussels regime covers all choice of court clauses, whether they are asymmetric or not.
As a consequence of that, if you go to the website of the International Swaps and Derivatives Association, the first document you will see is headed “ISDA Amendment Agreement”, to change
“English Law to Irish or French Law”.
It provides the means to change the usual London jurisdiction clause in favour of Paris or Ireland. That is a measure of the current doubts about the future value of English jurisdiction clauses, which have been allowed to continue for some four years now to the detriment of London as a world centre.
A second problem about the Hague choice of court convention is that, even on the most optimistic reading, it covers only exclusive jurisdiction clauses agreed since l October 2015, when the EU first signed the UK up as a member state. In contrast, the 2012 Brussels regulation, which we have at present, applies to all proceedings begun since 10 January 2015; that is, proceedings begun rather than jurisdiction clauses agreed. But this will cease to apply to all proceedings begun after the end of this year. So, the position is that presently enforceable asymmetric jurisdiction clauses in favour of London will cease to be recognised at an international level by other EU states overnight on 31 December 2020. Indeed, all enforceable jurisdiction clauses, asymmetric or not, will cease to be recognised at an international level; they may, of course, be recognised at an overseas domestic level—that is quite a different matter. Until 19 June 2018, the UK’s position was that such clauses should be preserved, or grandfathered; that is, retain their current validity. This has gone. No doubt, even an additional glimmer of Court of Justice jurisdiction after the end of the year, however benign, was not acceptable.
A third problem with the Hague choice of court convention is that it contains a list of excluded topics, which is considerably longer than that in the Brussels regime. The excluded topics include, for example, personal injury, simple tort claims, immovable property and intellectual property claims.
I turn to the second instrument, which the Explanatory Memorandum and the Government’s paper on the future relationship evince enthusiasm for acceding to. As already mentioned, that is the Lugano Convention 2007; Clause 2 of the Bill would be used for that. The Lugano Convention corresponds to the main Brussels regulation before it was recast in 2012. As a result, it has severe defects. On the other hand, no doubt the great attraction, in the Government’s eyes, would be that the European Court of Justice would have no jurisdiction over it; there would be an obligation merely to take account of Court of Justice jurisprudence, not necessarily to agree with it.
On the other hand, the UK needs the consent of the other parties to join. There are four, three of which have welcomed the UK aboard. Switzerland, Iceland and Denmark all welcomed the UK aboard, but the last party—the EU, for its member states—is apparently silent, and there are rumours that it may not consent. Any clarity the Minister can give would be most welcome.
Even if we were to sign up, the un-recast, unreformed Lugano has significant weaknesses. First, its arbitration exclusion is less clear than the Brussels regime; again, that is important for London. Secondly, it is vulnerable to the famous “Italian torpedo”, whereby a London choice of court clause can be undermined by an entirely wrong or even abusive commencement of jurisdiction in some other court—the typical example being Italy. The aphorism comes from an Italian law professor, so I am not, I hope, in any way using unduly what is a well-quoted phrase. Lugano’s third defect is that it makes no provision for stay of proceedings in the face of prior litigation in a non-contracting state: in other words, you can agree on a New York choice of court clause, but Lugano will override it. That is an extraordinarily Eurocentric provision, which the recast Brussels regime avoids, largely. Can the Government say whether, having joined Lugano, they hope to follow the Brussels example, whereby the UK did have a big role, and recast the Lugano convention to cure these defects?
There is one other problem with signing up which the Government may have overlooked—again, I would welcome the Minister’s comments. If we sign up to Lugano, we are locked into its limitations, potentially precluding us from getting the advantages of the next instrument which the Government express an interest in joining: the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. This is fairly hot off the press: it is mentioned in the Explanatory Memorandum and, again, the UK played a significant role in its preparation in the Hague conference. Perhaps it is one of the “ambitious new” private international law frameworks which the Government hope to agree
“with international partners all over the world”.
The less hyperbolic reality is that it has at present only two member states, with which our most obvious affinity is purely alphabetical: Uruguay and Ukraine. Even according to the Hague conference website, they have only signed, not ratified.
Secondly, this instrument deals only with recognition and enforcement; it does not limit or define jurisdiction, as the Brussels regime and Lugano do. Nevertheless, it appears to have one particular advantage in relation to our former EU partners which Lugano does not. It should be noted that the EU has expressed interest in signing up to the 2019 convention. If it does and we do, the convention will go some way to avoiding the Italian torpedo, because it will enable the refusal of such recognition or enforcement of any judgment given in breach of a choice of court clause, whether exclusive or asymmetric. For example, if proceedings were commenced in Italy in breach of a choice of court clause pointing to London, the UK or any EU contracting state could refuse to recognise the judgment. That beneficial provision would go some way to evading the Italian torpedo and correcting the main defect of the Lugano convention. Under Lugano, EU and Lugano courts—including the UK if it joined Lugano—would have to recognise and enforce the Italian judgment, even though it was patently given in proceedings started in Italy in breach of a London choice of court clause.
The UK would lose the advantages of this beneficial provision if we signed up to Lugano before signing up to the 2019 Hague convention, because Article 23 of the latter states expressly that it does
“not affect the application by a Contracting State of a treaty that was concluded”
by that state prior to conclusion of the convention. I would be very glad to hear the Government’s thinking on this. On the face of it, the message is: festina lente—in other words, be very careful and do not sign up immediately to Lugano without thinking very hard about it. By all means, sign up to the Hague choice of court convention as soon as possible, but consider whether it may not be better to wait for the EU to sign up to the 2019 convention and sign up ourselves at least before any attempt to join Lugano.
There are one or two minor points, or at least more minor points, although I do not want to underestimate their importance, particularly relating to the width of the powers relating to delegated legislation, on which noble Lords have already spoken. Even taking into account the Constitutional Reform and Governance Act, providing for scrutiny of any international agreement, the powers of delegated legislation are of a width that is questionably wide. That refers among other things, but perhaps particularly, to the Henry VIII clause, which my noble and learned friend Lord Judge has referred to.
Of particular interest to me, I declare as a practising arbitrator, is the definition of “private international law” to include recognition or enforcement of foreign arbitral award. Private international law normally keeps court jurisdiction and arbitration separate. International arbitration awards are enforceable under the New York convention of 1958. Brexit should not affect the enforceability or recognition and enforcement of arbitration awards. The Bill seems quite an inappropriate place to give Ministers the power to make regulations about arbitration, even subject to affirmative approval.
I conclude by welcoming this opportunity to discuss openly in this House a subject of huge importance to the City and this country’s financial position. There has been a fear that it may have been too low down the Government’s agenda and the subject of too little attention. I hope this debate will have focused minds and that there will now be wide and open consultation on whatever future measures, ambitious or not, the Government may consider signing up to.
Lord Collins of Highbury (Lab)
My Lords, the Bill is clearly vital to the future of UK private international law, and we on this side of the House strongly support the principle of it. My noble friend Lady Chakrabarti would normally be dealing with this Bill but unfortunately, she is self-isolating due to feeling unwell. I am sure Members of the House will join me in wishing her a speedy recovery—certainly, I hope, in time for Committee.
I too am grateful to noble Lords who have spoken. All my favourite lawyers are here, and I have to agree with the noble and learned Lord, Lord Judge, that that has made my task a lot easier, because I can simply say that I totally agree with the contribution of the noble and learned Lord, Lord Mance. However, I will come on to some specifics in that regard.
The Bar Council brief, on which I am heavily relying, highlights that we are entering a major period of decision-making—a point amplified strongly by the noble and learned Lord, Lord Mance—regarding the future of UK private international law, both nationally and internationally. It is clear that the Bill must be part of a wider government strategy, along with the ongoing negotiations at international level and the statutory instruments under the EU withdrawal Act. The noble and learned Lord, Lord Mance, has been very clear about the sequencing of some of the things we need to address.
As the noble and learned Lord, Lord Wallace, said, these matters are both highly technical and of the utmost importance in regulating the lives of individuals and businesses, and he quoted the Bar Council’s preference. I too ask the Minister to confirm that the Government intend to consult the specialists and take on board the comments about adapting a strategy.
Part of the problem with this debate is what comes next—what the Government hope to agree with the EU during and after the transition period. When does the Minister foresee the 2019 Hague judgments convention being implemented? The Law Society expressed the hope that it will become a central part of future international, civil and commercial law co-operation. What action are the Government taking to ensure faster uptake of the convention by the EU?
Again, I agree with the noble and learned Lord, Lord Mance: at the end of the transition period, the wide body of EU legislation will cease to be applicable, contingent on reciprocal treatment by member states. Despite the number of international conventions included in private international law, there is still no international convention in many areas. The Minister referred to the Government’s stated intention to apply to join the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments, which, as the noble and learned Lord, Lord Mance, highlighted, would require the agreement of each EU member state. As he made clear, it remains unclear whether the European Union would consent to the United Kingdom joining as a separate contracting state.
The noble and learned Lord also raised the issue of sequencing, which is very important; the default rules of private international law applicable in the United Kingdom after exit day are particularly important.
I do not wish to repeat the contributions that have been made, but the noble and learned Lord, Lord Judge, and I have spent some considerable time on Henry VIII clauses when considering previous Bills, not least the sanctions Bill that we had to deal with as a consequence of leaving the EU. That was a simple Bill —it had only two or three clauses—but it certainly gave the Government huge Henry VIII powers, particularly the ability to create and impose new criminal offences. My noble friend Lady Chakrabarti is concerned about those clauses and the power to create the offences that the Explanatory Notes appear to envisage. If that is the case, the affirmative resolution procedure does not provide sufficient parliamentary scrutiny. I understand that the Delegated Powers and Regulatory Reform Committee’s report will be published later this week. I will read it with interest, because I am sure it will make a number of recommendations that we will want to consider in Committee.
We welcome the Bill and its principal objectives but we will seek clarification of several issues, including, as the noble Baroness, Lady Shackleton, said, future family law provisions.
Lord Keen of Elie
I thank all noble Lords for their contributions to the debate. I will take some of those points in turn. The noble and learned Lord, Lord Wallace of Tankerness, raised Hague Convention 35. Hague, unlike Lugano, for example, can be entered into by a state, but can be ratified and applied in respect of only one jurisdiction within the state. It so happens that Hague Convention 35 was implemented in respect of Scotland, but not of England and Wales, nor, I believe, Northern Ireland. I am not able to explain why it has been in abeyance for a number of years with respect to those other jurisdictions, but I can say that since the noble and learned Lord raised the point with me I have spoken to officials who are addressing that matter. Certainly, our recommendation would be that it should be applied in respect of England and Wales as well.
The noble and learned Lord asked when we last implemented an international treaty obligation without primary legislation. My stock response was going to be that we now have CRaG 2010, but he went on to criticise that. While I understand that some observations have been made about the sufficiency of CRaG, my response is that we now have primary legislation that requires parliamentary scrutiny in circumstances where we intend to enter into an international treaty. It is in that context that we use the affirmative procedure to draw down those obligations and apply them in domestic law. I venture that that is an acceptable mechanism, because it requires parliamentary scrutiny at the stage of international law. It allows parliamentary scrutiny at the stage of drawing it down into domestic law in accordance with the duality principle.
The noble and learned Lord, Lord Judge, adopted and advanced the submissions of the noble and learned Lord, Lord Mance—which shows courage and, indeed, prescience. He also asked why we refer to arbitration. We do not intend to intrude wholesale on the New York convention or other aspects of arbitration, but it might be that there will be bilateral or multilateral jurisdictional issues where a party wishes to refer to arbitration. If, at that stage in the negotiation, we consider that appropriate, albeit in a limited circumstance, we will want to have the power to proceed with such an agreement. However, we are conscious of the need to keep a dividing line between provisions with regard to arbitration that are generally addressed by wholly different conventions, such as the New York convention, as distinct from those that apply more generally in private international law. We are not endeavouring to cross any lines there.
Schedule 6 is where it is because that is where it should be. It is not hiding. I reassure the noble and learned Lord of that. With regard to Schedule 2, my understanding is that it reflects or replicates the text of the 1996 Hague Convention on child protection and is in that form for that reason.
A question was also raised by the noble Lord, Lord Collins, and others about why we have these Henry VIII powers to amend primary legislation. There may be circumstances in which we want to insert implementation provisions into existing primary legislation. I ask noble Lords to notice that that is exactly what we are doing with Clause 1, where we are putting the three Hague Conventions into the Civil Jurisdiction and Judgments Act 1982. It might be that we will want to use existing primary legislation and implement using existing primary legislation. That is why that power has been taken.
The noble and learned Lord, Lord Mance, gave a very detailed and reasoned distinction between the merits of the Brussels regime, in which we played a very prominent part, and the perhaps deficiencies, to use one term, or the less robust regime we find in Hague and even in Lugano, which essentially reflects Brussels rather than Brussels Ia and Brussels IIa. I have to notice that there are those differences. It is a consequence of us having left the EU on 31 January 2020 —it is as simple as that, is it not? I know the noble and learned Lord recognises that. We cannot be part of the Brussels regime now we have left the EU, and the Government have made it clear that they will not be subject to the jurisdiction of the ECJ.
Of course, if and when we become a party to Lugano, we will seek to move forward the Council of the Lugano Convention to address its equivalence because Lugano originally reflected Brussels I and Brussels II and it is yet to catch up, as it were, with Brussels Ia and Brussels IIa, but certainly if we were a party to it, we can see that we could drive the direction of travel.
That said, we have to be careful about when we engage in the Lugano process. We have made an application to the Council of the Lugano Convention. We have letters of support from the three existing Lugano states, but noble Lords are quite right to point out that we require the consent of the EU to become a party to the Lugano Convention. There are also questions about the way in which that will interrelate with the provisions of the 2019 Hague Convention, and we will have to look at that. Again, my understanding is that we were a material contributor to the development of the Council provision on the 2019 Hague Convention as well, so we are familiar with it, and we see its considerable benefit, all the more so if the EU were to become a contracting state to the 2019 convention.
However, the noble and learned Lord, Lord Mance, is ahead of me. I thought only Uruguay had ratified so far, but he was able to add Ukraine.
Lord Keen of Elie
I apologise—it has signed but not ratified. As the noble and learned Lord will know, it takes a little time for signatures. There has to be a certain number of states signing to the convention and then ratification can take place. Clearly, we are conscious of that. The noble and learned Lord has highlighted a real issue, which is the care we must take in considering our position with regard to Lugano and with respect to the 2019 Hague Convention. If we were not conscious of that before, we are now, if I can put it that way. It may be that the Lord Chancellor’s consultative committee should have sat earlier.
I hope I have addressed the majority of the points that have been raised so far. There was one point the noble and learned Lord, Lord Wallace, raised about intra-UK powers. We will have powers to implement an agreement intra-UK but clearly we would do so only after engagement with the devolved Administrations because the implementation of private international law is a devolved competence, albeit that entry into the treaty at the level of international law is a reserved competence. I reassure the noble and learned Lord that we would not do that without full consultation with the relevant parties.
I see that the noble Baroness, Lady Shackleton, is about to rise, but before she does so I shall just say that in the absence of Brussels and in the absence of provision in international law convention under Hague for certain matters, such as jurisdiction on divorce, we will fall back on our previous common-law position, which some will regard as less than entirely satisfactory, but it is a consequence of us having left the EU. I hope that that anticipates the intervention I was going to get.
Given the hour, I will rest my further submissions there. I look forward to further detailed discussion of these matters in Committee.