Queen’s Speech

Baroness Deech Excerpts

Monday 9th June 2014 Lords Chamber

[Baroness Deech (CB)]

My Lords, I am concerned at how some of the legislation promised in the gracious Speech, particularly the Serious Crime Bill and the held-over Criminal Justice and Courts Bill, once enacted, will ever be enforced. In the final months of the previous Session, many of our debates were taken up with concerns over the cutting of legal aid, the reduction of fees paid to advocates and litigators, and the obstacles being placed in the way of ordinary consumers trying to access justice and legal advice. I have no doubt that the concerns are well founded, and the recent delays to serious fraud cases demonstrate the damage that is being caused to the legal system and to the expectations of citizens that crime will be properly prosecuted and defended. Our troubles are by no means over; indeed, they are set to increase as more young law students realise that their pathway to a decent career is closed and as more skilled advocates leave the independent criminal bar and practise elsewhere, to the detriment of the diversity and talent of our judiciary and barristers.

However, the intricacies of those arguments are not my main concern today as I speak. I am here to offer a solution, at least for that part of the law that I know best from my teaching days—the division of assets on divorce. A major reason why legal aid has proved expensive is that the law about financial provision on divorce is so uncertain, so tailor-made, so different in outcome judge by judge and so emotionally charged. Therefore husbands and wives spend more than they or the state can afford on just getting to some principles along which they may divide their assets on divorce. One of the worst effects of the cuts in legal aid is that divorcing couples who formerly qualified for legal aid and therefore could be legally represented are no longer able to be so. They appear in court at the worst moment in their lives representing themselves. They do not know what a fair outcome might be, they are overwrought in any case and they need a barrier—a barrister—between themselves and their former spouse while they negotiate life-changing settlements affecting them and their children. But they have no one, and the judges, to their annoyance, and with consequent delays, are having to conduct the litigation for them. The judiciary has complained about this. It is not its job to represent the clients or, in an even worse scenario, to try to achieve fair play when one of the couple has a lawyer and the other does not. The media are replete with accounts of couples who spend more than half their assets on fighting about their ownership after divorce.

My Bill, the Divorce (Financial Provision) Bill, will not only help mitigate the results of the removal of legal aid by giving certainty and greatly reducing the need for legal representation in court but assist judges by giving them an easier role. Above all, it will introduce broad-brush fairness into a system which has not been discussed in Parliament for more than 30 years. In a nutshell, it will make prenuptial agreements about financial provision in the event of divorce binding, with very few qualifications, and it will introduce a new simple regime for the division of matrimonial assets on divorce. It is unashamedly modelled on the law appertaining in New Zealand, Scotland, many US states and some European ones. It synthesises the recommendations made over many years by the Centre for Social Justice, the Law Commission and the Government themselves. My Bill provides that on divorce the post-marital assets should be divided equally: that is, everything acquired by the couple after their marriage is to be divided, but not any inheritance or gift or anything owned before marriage. Thus, the model who marries a rock star for a few years will share only in what he earned after it, unless this is dealt with by a prenup, while the long-married couple who started with nothing and worked together to reach a reasonable lifestyle will share practically everything.

The division of assets on divorce is a delicate issue on which opinion is divided. Society has different views about the roles of men and women, and I quite understand that political parties are reluctant to take it up. It is therefore very suitable for a Private Member’s Bill. If we cannot afford to extend legal aid to family and criminal litigation, as in the past, then the obvious answer is to reform the law in a way that obviates the need for expense, or at least reduces it.