Inheritance (Cohabitants) Bill [HL]

Baroness Deech Excerpts

Friday 19th October 2012 Lords Chamber

[Baroness Deech]

My Lords, I speak to express the strongest opposition to the passage of a Bill that, in a nutshell, will mean a further disinheritance of the children of the many marriages in this country that have ended in divorce, or who were born into unmarried and later broken relationships. It would also, if enacted, amount to an intrusion into private informal relationships—one might even say a denial of the human rights of privacy and respect for family life. There will be no avoiding the long reach of the law and lawyers, even for those who have chosen to live in a way that suits them but not the frameworks of the system. The Bill would transfer wealth from the children of the deceased to his or her cohabiting partner

In its report on intestacy in 2011, the Law Commission recognised the controversial nature of this proposal, which is why it separated it from the rest of its recommendations on intestacy in a separate Bill. It said that its proposal to change the law to give preference to cohabitants’ survivors recognised the vulnerability, intimacy and interdependence of the deceased’s relationships and the impact of bereavement on the partner. But what about the vulnerability and interdependence of the deceased’s surviving children, and the impact of bereavement on them? If enacted, the Bill would simply reverse the burden of challenge on intestacy away from the cohabitant—which is where it is now—on to the family. Cohabiting partners of the deceased already have a way to seek provision from the estate on intestacy, or from a will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act’s terms were relaxed in recent legislation. The Law Reform (Succession) Act 1995 enables a cohabitant of two years’ standing to make a claim without the need to prove dependency, which had been a former requirement. The judges who responded to the Law Commission consultation on intestacy in 2009 pointed out that in such circumstances the matter is better settled by judicial discretion, in rearranging the estate to accommodate the cohabitant if necessary, than by a fixed share which takes most of it away from the children.

Under the existing law, most such claims by cohabitants versus family settle before hearing. Now that there is an official family law arbitration service, claims need not cost as much as they do in court. It is notorious that intestacy claims can be so bitterly litigated that they eat up the disputed assets and the lawyers are the only beneficiaries. In Scots law, the Family Law (Scotland) Act 2006 does not take this Bill’s approach. The cohabitant’s claims against the deceased’s estate are a matter of discretion, with an upper limit of what a spouse would have received. In doing the calculations in Scotland, the court can take into account the pension of the deceased that may well have been paid to the cohabitant because the deceased hereto can nominate her. In this nation too, the pension can be nominated in favour of the cohabitant and the tenancy will probably automatically pass to her on death; so will the house, if in joint tenancy. The cohabitant might be married or living with someone else too, but that is no bar to a claim. We are not talking of utter deprivation.

To summarise the reasons for opposing this Bill—in addition to children’s rights and human rights arguments—the existing judicial family provision regime is the most appropriate way to decide these issues. It is quite possible that the deceased person did not want his cohabitant to inherit; there will be increased litigation by the blood family against a claimant cohabitant; and many people who know the law want their autonomy, as I will show shortly. Those who do not should be made aware of the situation. There is no more unpleasant and protracted litigation than that between a first wife and children on one side, and on the other the second partner of the deceased man. Although the case of Sherrington—which I know about because the deceased was a friend of mine—was about marriage not cohabitation, the deceased, Richard Sherrington, left everything to his second wife of a short marriage and nothing to his first wife and three adult children. The litigation went on for six years and cost nearly £1 million. It involved minute descriptions of the relationship with the second wife. This would happen in cases more often, and similarly unpleasantly, were this Bill to become law, when of necessity there would be disputes about the duration and nature of the cohabiting relationship.

The Bill is particularly insensitive at this time when there is much consideration of same-sex marriage. If these proposals were to go ahead, we would have a society containing separate regimes for heterosexual and, maybe in future, same-sex marriage, civil partnerships and cohabitation, and family members living together, all with different rights and duties. We need a complete, unified appraisal of all such relationships and no more piecemeal tinkering with legal rights deriving from different forms of sexual relationships that attract attention at any time. The Bill provides that if two people live together for five years, or two years with their child still with them, the surviving cohabitant should take the spousal share of the estate of the intestate cohabitant, provided he was not married to someone else or in a civil partnership. Under the current law that sum is £250,000, with the rest of the estate divided between the partner and the children. If there are no children, then the figure would be £450,000. Since the estates of most of those who do not make wills is smaller than this, in effect the cohabitant survivor would take everything. It is not clear from the Bill whether the exemption from inheritance tax that applies to the married would also apply here.

More than half the population do not have a will. Those who are in possession of significant sums are much more likely to make one than those who do not. So if passed this Bill would in general affect the less well-off. Of the married population, 45% make a will, but only 17% of cohabitants; presumably because they have no belief in any legal consequences of their living styles, whereas the married do. Moreover, cohabitants are more likely to be young, have fewer assets and be less settled. The median age for making a will is 69 for men, 73 for women. In response to the Law Commission’s consultation on cohabitants and intestacy, on which this Bill is based, 40 out of 79 respondents clearly opposed reform. That is hardly an overwhelming consensus in favour of reform. Those respondents who were in favour were in the main the organisations that have a professional interest in this topic, mostly lawyers: Resolution, the Chancery Bar Association, district judges, the Society of Trust and Estate Practitioners, the Law Society, the Family Law Bar Association, the Family Justice Council and the Official Solicitor. Those who were opposed to the proposals were the judges of the Family Division and the Chancery Division, and individuals. The Law Commission seemed to weight more heavily the responses that favoured regulation.

In another survey, by Williams, Potter and Douglas, it was discovered that younger respondents were less likely to favour cohabitants’ shares than the older. This may be because the young are more likely to cohabit—it peaks in the 20s—and are more aware of the transient, experimental nature of many such relationships. The Law Commission’s main reasoning was that people who live together are ignorant of what their rights might be. This is not an argument that prevails elsewhere in the law; nor does it appreciate quite how well informed the public are in their way, as I shall show. The Law Commission’s consultation paper on this topic did not pay sufficient attention to the crucial question of the deceased’s children by another woman, as distinct from whether he had no children or children by the cohabitant. The proposal that someone who has not committed himself or herself by marriage, or even by making a will, should leave all his or her property to the cohabitant, not his children, makes no sense.

The reported cases of cohabitants’ claims are about childless estates. At most, a life interest in a small share for the cohabitant is all that could be regarded as fair in the circumstances, so that if necessary the cohabitant avoids being in need but does not disinherit the children on her death. The National Centre for Social Research, whose 2010 survey was relied on by the Law Commission, put to people scenarios about intestacy to check their response. It posited a woman dying intestate, which is rather different from the situation most of us think about when we are concerned with this. Even so, less than half the surveyed people would give all of the estate, or priority, to the partner, even after a 25-year cohabitation. With a baby on the scene in the hypothetical short partnership, less than half would give all or priority to the partner, and the majority would give all or some to the baby. In a long childless union of, say, 10 years, only 53% of those surveyed preferred the partner over the deceased’s parents as beneficiaries. There was a strong feeling that the children should not be disinherited and that the partner should get something, but not the lion’s share. As I have said, a life interest in a maximum of 25% would be fair enough.

However, one should not just listen to the professional organisations, as the Law Commission did, without listening to ordinary members of the public who are not being fed possibly leading questions. Whenever I have lectured on this, I have received hundreds of letters opposing more law for cohabitants, but I will not personalise this. I shall quote from the many blogs that have appeared in the Guardian—not the Telegraph:

“I have no intention of allowing my daughter’s inheritance to be diluted by my new or former partner”.

“This is a ridiculous idea. One of the main points of marriage is to show commitment”.

“I knew I didn’t want to marry her, but we stayed and lived together for over a year, so sometimes you live together but aren’t sure”.

“If these proposals are accepted, then the state will effectively marry people whether they like it or not, after a certain number of years. I strongly object to this. The decision for a person to marry should be for them to make and them alone. If accepted, this proposal will effectively strip individuals of the right to live no-strings-attached”.

“I am not for it because some people who cohabit do not believe at all in marriage and all it entails. Cohabitation is a trial run. I am sick to the back teeth about these calls for cohabitee rights. Why should I be denied the right to live with a partner on my own terms because for some bizarre reason some people who wish to live as married do so without actually marrying or setting out their affairs to protect themselves? This proposal is illiberal, complicated and impractical ... it is important to have a clear distinction between marriage and cohabitation so that people know where they are”.

“When is the state going to recognise that cohabiting couples are adults who choose to live their lives that way precisely because they don’t wish busybodies—either religious or state sponsored—poking into their personal affairs”.

“The idea of being treated like a married person when I’m not is just ghastly”.

“This is a very regressive suggestion. It’s also classic nanny state. Want a share in your partner’s money, then ask for it (by marriage)”.

“I was really hoping that this stupid proposal for a new law would go away”.

“The blood sucking lawyers would love the opportunity to leech off a group of people who have either arranged things to suit themselves thus not needing the assistance of the legal profession or simply do not want the law butting into their lives … who in their right mind will live with anybody again unless very committed to the relationship … (they will usually get married anyway)”.

“Totally, totally illogical. It’s marriage by default, folks! Can’t you people see that?”

“People have a legal right to be single and that is that”.

“Extending quasi marital rights to those who have not chosen to enter into a legally binding agreement is not fair at all”.

I could go on because I have pages of these quotes, but to spare noble Lords, the final quote is:

“They move the goalposts so that despite not being married, you can still get your wallet nicked”.

So it is the principled issue of legal recognition of cohabitation that the public is looking at. I will not go into the details of how the definition of cohabitation is dealt with in this Bill, save to make the following general comments on the difficulty of recognising it. In the absence of any legal ceremony or document, how are all those who get involved in probate and death, the family and the officials, to know that there was a cohabitation? Even being together for five years does not necessarily signal permanent commitment of the sort that would attract the legal effect of extending beyond the grave for all time to come at the expense of the family. The fact of sharing a household for two years with a child does not obviously mean that the survivor should get the first £250,000. Who is to know whether the relationship was a sexual one, for even marriages are not always sexually defined? If one person shares a home with another who dies, what is to stop the first falsely claiming that their relationship was intimate?

One has to question, as I have done before, why property transfer applies only to couples in what was presumably a sexual relationship that has ended, and not sisters. Once marriage is abandoned as the clear blue line for legal responsibilities, then logically all relationships—sibling, incestuous, polygamous or whatever—should be treated equally. It is hard to see why it is the sexual element that elevates certain relationships for financial reward, even though they are no more or less co-dependent than others. The result, if this Bill is passed, might be forensic investigation to see whether the relationship that is alleged did actually exist, and more pressure on resources at the time of death, adding to the administrative difficulties that exist at that time anyway; and maybe it would give rise to a new breed of serial cohabitants who stay for one year and 51 weeks if there is a child or four years and 51 weeks if not.

At the time of death, it has been predicted by probate genealogists in relation to this Bill’s effects that much time would have to be expended on searching electoral rolls, tenancy agreements, utility bills and interviewing family members to establish the situation if there might be a cohabitant survivor. It will be hard to know if the person who steps forward to obtain the grant of representation is really the cohabitant, for it would be their task to obtain the grant, not the family members or children. There could be delays of years in settling some estates while this goes on and pressure to settle even where there is no real claim.

[Lord Lester of Herne Hill]

I am grateful to the noble Baroness. Has she looked at jurisdictions in other countries where there is similar legislation that works perfectly well?

[Baroness Deech]

My Lords, family law in this country does not always follow other countries; sometimes we learn from them. Indeed, sometimes I wish we had followed Scotland when it comes to dividing up proceeds on divorce, but that is another issue.

What about the unregistered Muslim marriage with several surviving legally unmarried “wives”—are they to share?

We come down to the most fundamental issues in death and life—human rights and care for one’s children. We have heard the views of some members of the public. There is a human right to live privately that risks being breached here. Some older divorced and widowed people want companionship, rather than to live on their own, but do not marry again precisely in order to preserve their estate for the children of an earlier marriage. Private adult choices should be respected. There should be no imposition of legal regulation on those who actively choose not to marry and who refrain from making a will, maybe in the belief that their existing family would thereby be protected. If there is hardship for a surviving cohabitant, we have judicial discretion under existing law to remedy it without this shift away from the family that the Bill would bring about. Many say that marriage is just a piece of paper, a lifestyle no superior to cohabitation, and that cohabitants are as committed as any others. So why do those same people want to attach heavy legal significance to cohabitation, mimicking marriage?

I have great sympathy for the younger generation today, who face tuition fees and mortgage burdens vastly heavier than was the case for my age group. If any generation needs care on the death of a father or grandfather it is the young, not the peer group. To deprive them of their inheritance could make all the difference to accessing higher education or buying a house. The cohabitant who might be entitled to the estate under this Bill could well be married to someone else at the time of the deceased’s death, or enter a future marriage or relationship carrying with her the inheritance, gone forever from the deceased’s blood family, to her new family. I see no reason to downgrade the family members in favour of a partner when the deceased did not actively choose to do so. It is not fair to remove maintenance from the children when we have a high divorce rate and widespread failure by men to support their children in their lifetimes. The children who stand to be disinherited by the provisions of this Bill may be the same ones whose support was neglected by their father during his lifetime. The children will have to incur the expense of challenging the intestacy provision rather than the partner: that is the real import of this Bill.

In their responses to the Law Commission, judges said that the child should take priority. Children have no choice in the matter, but the cohabitant survivor may move on to another life and other methods of support. I urge the House to express its principled arguments against this Bill.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Deech Excerpts

Tuesday 20th March 2012 Lords Chamber

[Lord Beecham]

My Lords, there has been widespread condemnation outside the House, and unanimous condemnation inside it, of the activities of parasitic claims farmers and claims management companies that engage in the process of securing referral fees simply to generate profit. A major objection to the activities of those concerns is that they foster the myth of the compensation culture. People who see advertisements on the streets or in newspapers which invite claims may get the impression that hordes of people are succumbing to the temptation to make wholly bogus claims. In the field of whiplash claims, it is acknowledged that there is some truth in that perception. However, in general terms, as the noble Lord, Lord Young of Graffham, pointed out in his report, there is no substance to the suggestion that there is a widespread compensation culture.

The amendment deals with the position of not-for-profit organisations. We are entirely at one with the Government in seeking to ban referral fees made to commercial organisations simply for the purpose of making profits. However, some organisations—be they charities or membership organisations—receive referral fees from firms of solicitors and perhaps from others whom they appoint to panels on the basis of their expertise and record of service, and whose contributions help those organisations carry out their main purpose. That might be service to members or, in the case of charities, the furtherance of the charitable objectives of the organisation. For example, among the charitable organisations are the Spinal Injuries Association, Headway and Action against Medical Accidents. There are others, too, which receive referral fees and use the proceeds to benefit those whom their organisation was set up to help. Other membership organisations and trade unions do likewise.

When we debated amendments of a similar nature last week, the Minister referred to the main—and understandable—objective of the Government, which is to restrict the cost of litigation. We share that objective. In the case of referral fees, it is perfectly achievable. It does not constitute a cost to the system. If a referral fee is effectively charged to the client, of course that is a cost to the client, and that ought to be avoided. On general costs, costs payable by a losing party to another are either agreed or assessed by the court. Obviously, the court can base its assessment of costs on what the normal tariff would be. I have appeared before the courts many times in 35 years of practice as a solicitor—endeavouring to justify the very modest costs that my firm sought—to explain and justify those fees. In fact, a kind of tariff is applied locally by the courts. In any event, if this were thought to be a danger in the system, it would be possible to allow the courts to deal with any such referral fee, to require it to be disclosed and to make it an irrecoverable disbursement from the paying party. So the question of additional costs can be satisfactorily dealt with.

In last week’s debate, the noble Baroness, Lady Deech, made some interesting points, one of which was incorrect. She said that the referral fees received by some trade unions find their way into the coffers of the political party with which I and others in this House are associated. That is not the case. Payments by trade unions to political parties of any colour come out of the political fund, not the general fund. The noble Lord, Lord McNally, who was once more closely involved with these matters than he is now, confirmed that.

However, the noble Baroness also referred, understandably, to the situation that arose in respect of compensation claims by miners regarding pneumoconiosis —a whole raft of cases over many years. Many law firms and others spent considerable time and money researching these cases and it was a very long time before they were settled and a scheme developed. The abuse in that case was actually rather different from what we are now debating. It was not so much the question of referral fees; it was the fact that some firms of solicitors—happily, not many—not only were paid by the Government under the compensation scheme but had the effrontery to deduct some payments from their clients. That was absolutely outrageous and many of the firms involved were severely disciplined, and rightly so, by the Law Society. But that is a separate issue from that which this amendment and the whole topic of referral fees address.

There is a world of difference between the use of referral fees by claims management companies and the like—simply to generate profit and at the same time perhaps to promote invalid claims on the off-chance that some of them may succeed—and that by other organisations genuinely endeavouring to assist their members and receiving funds which in turn are used for the benefit of the members or the non-commercial purposes, charitable or otherwise, of the organisation. I beg to move.

[Baroness Deech]

My Lords, I will try not to repeat myself, because I spoke about referral fees last week.

Briefly, in response to the noble Lord, Lord Beecham, the evil of referral fees is threefold. First, if the law firm can afford to pay a couple of hundred pounds for each case, then it stands to reason that the case could have been handled more cheaply. Secondly, when work goes to a particular firm of solicitors, it encourages that firm not to compete and not to do its job properly because, no matter what, the work will come to it. The case of the miners to which the noble Lord, Lord Beecham, referred and which I described last week did not arise directly from referral fees, but one can see the risk. If a firm knows that 23,000 cases will come its way willy-nilly, why should it try very hard? Why should it not take short cuts?

Thirdly, referral fees arrangements deprive the consumer of choice. The argument for referring consumers to a particular firm is that they would not otherwise know where to go. These charitable organisations, to which the noble Lord referred, could do the job just as well by listing a few firms and helping their clients to go to those firms without expecting money to come their way. As far as I can make out from research on the web—I stand to be corrected—on its web page on legal services the Labour Party says that clients who are members of the Labour Party will be referred to a particular firm of solicitors if they have a problem. If one continues to click through the pages, the firm says in very small print, buried deep in the internet, that for every case that comes to it from the Labour Party website several hundred pounds will be paid to the political party.

To make things even worse, referral fees, some of which may well come from legal aid, could be channelled inter alia to a political party. There is no case for referral fees. I encourage the House not to be wooed into any set of exemptions, even where worthwhile charities are concerned, because the bad nature of referral fees spreads throughout the system, regardless of who uses them. I hope that your Lordships will reject this amendment and any similar ones. Now is the time to end the practice of referral fees.

[Lord Goodhart]

My Lords, I agree entirely with what the noble Baroness, Lady Deech, has just said. Referral fees have for some years been a serious problem in almost all circumstances and have caused a great deal of trouble and unnecessary expense. It is not a case where, as the Labour Party has just proposed, it should be treated just as a matter where two firms are in business. This is a matter that requires to be removed.

--- Later in debate ---

[Lord Martin of Springburn]

I declare an interest as a member of Unite. The noble Baroness, Lady Deech, was good enough to say that she had mentioned the problems of referral fees in a previous debate. That debate took place on my amendment. My case was that trade union officers go to places where there has been an accident. Therefore, there is a certain expenditure when those visits are made. There is obvious expenditure and there should be some compensation. The noble Baroness was good enough to mention referral fees and I was deeply impressed by what she said. Therefore, I will not move Amendment 146.

[Baroness Deech]

My Lords, I should have declared an interest as chairman of the Bar Standards Board, which prohibits barristers from receiving or dealing in referral fees. If I gave the impression last week that referral fees that go to unions go direct to the political party and that is wrong, I apologise. My point is that it is happening in another way. I have not yet been corrected but my research on the internet showed that direct referrals from a party to a firm resulted in the firm paying a referral fee to the political party. Therefore, if it is not happening in one way, it may be happening in another.

[Lord Brooke of Alverthorpe]

My Lords, I support the line taken by our Front Bench. Without any question, there are risks with referral fees but they are fairly minimal. The questions that the noble Baroness, Lady Deech, and others should ask themselves are whether they believe that there will be more of the kind of litigants who at present benefit from the union offering these services, admittedly through using referral fees, especially given what we are doing to legal aid in this Bill; or whether there will be fewer people taking action. My view is that if these changes are put through, the likelihood is that unions will not be able to offer services on the same kind of basis that they have in the past. As a consequence, fewer people will pursue cases and the people who will not be pursuing those cases will be the ones at the bottom of the pile, and not those who are higher up with a fund of money to pursue the law without any trouble whatever. I put those very serious questions to those who are pursuing this line.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Deech Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Martin of Springburn]

My Lords, I wish to speak to Amendment 146 in my name. In doing so, I declare an interest as I have been a member of the Unite union for a long time. I am not having a go at the media on this matter but, often when trade unions are mentioned in the media, reference is made to trade union leaders. Not much is known about the activities of the lay officials and junior officers of a trade union. Tonight we have spoken about asbestos victims. A trade union would probably be the first port of call for a person who felt that they were suffering from the effects of asbestos inhalation. Apart from the serious matter of asbestos inhalation, your Lordships may be aware that even a National Health Service kitchen can be a very dangerous place for workers. They can fall, be scalded or be cut by the knives that they are using. After any injury such as that or any other injury relating to a person’s work, the first port of call is to the local trade union office, and an investigation is made before the matter is referred to a lawyer. Any of us who has run an office knows that photocopiers, heating, lighting and cleaning all cost money. It means that there should at least be some compensation for the trade union that is prepared to try to help that member before the member goes to a solicitor.

[Baroness Deech]

My Lords, I declare an interest as chair of the Bar Standards Board, which regulates barristers and prohibits the payment of referral fees, which we regard as immoral—I think that I am not putting it too strongly—and which we disapprove of because they are anti-competitive.

While I have every respect for my noble friend Lord Martin and for the work that the unions do to help their members, the amendment has brought to mind one of the most reprehensible incidents of modern times relating to lawyers and referral fees. I will not give the House too much detail because it is late at night, and the story is probably well known to noble Lords here, especially noble and learned Lords. When very many miners were sick and 23,000 cases were referred on by the union to a solicitors’ firm, it ended up with reprimand and with the law firm taking far more money than did the sick miners. The solicitors were paying the union, and in the case that I am thinking of the amount came to about £10 million, because 23,500 cases were referred to one firm.

If a firm of lawyers knows that a number of cases of that order are to be referred to them without the firm making any effort, without it going out into the market and proving how good it is, it is not surprising that things went wrong.

[Lord Martin of Springburn]

I know it is late in the evening and I thank the noble Baroness, but I am sure she would agree that not every union or every solicitor would conduct their affairs like that. Tomorrow, there will be unions that refer their members to a solicitor, and they will do so in good faith and in the best interests of their members.

[Baroness Deech]

I am sure that the noble Lord is right, but what I am objecting to is the exchange of money. If you go to the website of the union, you may click through to the page where legal services are offered, click where the page directs you to a law firm, the law firm is named, and then you can continue to click until it says, “For every case referred to this firm, the firm will pay the union a sum of several hundred pounds”. If the unions wish to help their members, it would be very easy simply to refer them to a whole number of local firms without money changing hands. There is nothing to stop the good work done by the unions, which I praise. It is the exchange of money that I object to. In the case that I am thinking of, it was actually public funds that went to the solicitors’ firm. It illustrates what is wrong with referral fees: the issue is treated as commercial and the law firm can sit back, knowing that cases will flood its way, whether it deserves them or not.

There have been other reprehensible incidents such as this, with which I will not delay noble Lords, save to mention one other effect. Given that very large sums of money are paid to the union, whichever union it is, by the law firm, and we know that many unions are inclined to support one political party, we end up with money being paid—very indirectly, I grant you—to the political party because the money is coming from the funds that the union has accumulated, and part of those funds come from referral fees.

If the solicitors can afford to pay £200 a time, or whatever it may be, to the union in return for every case, that must logically indicate that the case could have been handled for less money than was charged. I am by no means saying that that is always bad, but there is definitely a risk in referral fees. In particular, there is a severe risk to the interests of justice where a firm knows that thousands of cases can come its way without it making the effort in the market to get them and handle them well. Therefore, with all due respect, I hope that the amendment will not be pursued, as I do not think that it helps the Bill.

Supreme Court: President

Baroness Deech Excerpts

Wednesday 16th November 2011 Lords Chamber

[Lord McNally]

Indeed. I always go along with the dictum of Denis Healey—the noble Lord, Lord Healey—that you should look for people with hinterland.

[Baroness Deech]

My Lords, do the Government acknowledge that the combination of high tuition fees and the cuts in legal aid will have a very bad impact on diversity at the young end of the legal profession, especially the Bar, and that there will be less diversity in years to come unless it is made possible for young people of all backgrounds to get a start at the Bar?

[Lord McNally]

We will be debating in the near future the cuts in legal aid. Where I do share concerns is that to get into the legal profession, whether as a barrister or a solicitor, requires a financial commitment that could have an adverse effect on social mobility. That is something that the Government will have to address.

Community Legal Service (Funding) (Amendment No. 2) Order 2011

Baroness Deech Excerpts

Wednesday 26th October 2011 Lords Chamber

[Lord Bach]

My Lords, in moving this Motion, I make it crystal clear that we on this side believe that there must be cuts to the legal aid budget. Over the past 30 years or so, perhaps until a few years ago, the amount spent on legal aid went up a great deal, year on year, and that was particularly true in the criminal legal aid field until the amount spent on criminal legal aid, compared with civil legal aid, was totally out of kilter.

As part of the necessary cuts, we, when in Government, took action to reduce legal aid spending and I do not apologise for that. Almost the last act we took in government, before the general election of 2010 was called, was to cut criminal legal aid advocates’ fees in the higher courts over a three-year period. It was not popular but it was necessary. Incidentally, that gives the lie to the present Government’s claim that we, the previous Government, were not prepared to tackle the deficit. If we had won that election, we would have cut further. My personal view is that there are large savings indeed to be made in our whole criminal justice system. In any event, we had published a White Paper, Restructuring the Delivery of Criminal Defence Services, which, if followed through, would have made considerable savings.

However, there are two considerable differences that exist between our proposals and those of the Government. First, Her Majesty’s Government are intent on cutting legal aid much too far and much too fast. They have not given any—certainly not enough—thought to the consequences of their policies, either in human or in financial terms. That leads me on to my second point. One of the areas in which they have chosen to axe legal aid, take it out of scope altogether and make savings in fees, is precisely the wrong area of law. They intend to remove welfare benefits advice and representation at all levels, including up to the Supreme Court; employment advice; much housing advice and even more debt advice; and some community care advice and education advice—in other words, advice to the poor and the vulnerable. They intend to save the sum of about £50 million per year through those cuts. Today, of course, we are not strictly debating the rights and wrongs of such an approach, but we shall be able to do that in short order when the Bill, currently in another place, comes to this House.

Tonight we are debating an order that in one fell swoop cuts 10 per cent from all—I repeat, all—civil fees, including family fees. To describe it as a rough and ready figure would be a gross understatement. It is a crude and ill thought-out measure with no evidential justification whatever. Although I am particularly concerned with the 10 per cent cuts to social welfare and community lawyers, the lowest paid of all the lawyers who do civil and family work, I acknowledge the powerful case put forward by other civil and family lawyers to me as a result of my Motion being tabled. I thank all those who have made their case. There may well be champions for them tonight, although I know that because of the lateness of the hour, various noble Lords whose contributions would have been very welcome on all sides have not been able to stay.

Interestingly, there are no comparable cuts on the criminal side—for example, in the sister order that accompanies this particular statutory instrument. This shows that the Government are quite ruthless when it comes to civil and family legal aid and as soft as butter when it comes to criminal legal aid. It is as though they have no sense at all of the fantastic value social welfare law has in our society, allowing, at comparatively cheap costs, early legal advice for many of those who could not possibly afford to get it, with the result that issues are solved and the courts are not full of hopeless cases and litigants in person. Noble Lords will perhaps have seen the concern of some Justices of the Supreme Court in the newspapers this morning. For some reason, the Government are determined to decimate social welfare law and drive out those hard-working, dedicated and, I would argue, poorly paid lawyers who practise in this field.

Who are these lawyers? They are often the not-for-profit sector; they work in law centres, citizens advice bureaux and other advice centres. Some are solicitors and barristers in private practice. Many, wherever they come from, sacrifice more lucrative legal careers in order to practise this type of law. If they do not practise it, who will?

Their fees are fixed fees brought in in October 2007 and raised by 2 per cent in 2008 but untouched since then. They are not overgenerous. We as a Government brought in the fixed fee and it undoubtedly caused problems in itself. We set up a study with many experts from this area of law to look into those problems, and we produced a document entitled a Study of Legal Advice at Local Level in order to attempt to tackle them. We as a Government refused at any time, and particularly during the recession, to cut legal aid spending on social welfare law. We increased it significantly from £151 million in 2007-08 to £208.4 million in our last year, 2009-10. We increased eligibility by 5 per cent, bringing in 750,000 more people, and increased the number of new matter starts. I am proud of what we did.

The proposed fees are set out in Table 1 of the order, to be found on page 4. These cases often take many hours’ work. They involve face-to-face contact. Often the lawyer, having seen the client, has to speak to third parties in order to resolve the problem. They are by no stretch of the imagination well paid. There is an exceptional threshold, but a case has to be very long indeed and very complicated to come into that category.

There are currently 52 law centres in England and Wales. They are not profit-making. They have had to make efficiency savings with the introduction of the fixed-fee system. Many rely heavily for the excellent work that they do on legal aid. Eight generate over 70 per cent of their income through legal aid contracts. None of these law centres has a 10 per cent surplus and at present they monitor cash flow on a weekly basis. There is no fat to them at all. All eight are at risk of closure. Four centres are particularly vulnerable, two in London and two outside the capital. Eight hundred thousand pounds is immediately to be taken from law centres’ funding overall by the 10 per cent cut. In the medium term, the combined effect of the 10 per cent cut plus the proposed scope cuts is that £8 million out of the £9 million in legal aid contracts that law centres enjoy will disappear. Eighteen law centres out of 52 will just not be viable—it may be more. Where, I ask, will people go to in order to get their legal issues sorted out?

I could make the same points about CABs, the citizens advice bureaux, which have a very high reputation, as do law centres, in Parliament and outside. Obviously CABs do not rely so heavily on legal aid, but many still rely on it, and at a time when local authority funding is, frankly, declining, CABs will also close as a consequence of this order. Noble Lords will remember that a few months ago there was news from Birmingham about the state of CABs in Britain’s second largest city.

Private sector firms that do this work also work on the same legal aid rates. All day long I have been receiving e-mails from solicitors who do this work. Sometimes, of course, other parts of these firms subsidise the social welfare law part of a firm, but I have been told that the amount of money that legal aid lawyers of many years’ standing get per year would make an extremely interesting database. It is much less, of course, than that of a solicitor who does not do that work and compares extremely badly with other professionals—very badly indeed. Those who practise in this field and who do this absolutely invaluable work do not expect enormous rewards, but nor do they expect to be penalised even further.

I end with the story of Law For All. Law for All was in west London, and many noble Lords may have heard of it. It was quite a large organisation. It provided legal help in the fields of debt, employment, family law, housing and welfare benefits. It also provided representation for many people over many years. However, it has now been forced to close down in anticipation of the reduction in the fixed fee and, of course, the fact that 90 per cent of their work is being taken out of scope in the Bill that is currently going through Parliament. This is a tragedy for local people, who received legal help in 1,500 cases last year. The local authority in that part of west London is generous, but the Government’s proposals have meant that Law For All has closed its doors. I have spoken this afternoon to the chief executive —or should I say ex-chief executive?—who confirmed that the 10 per cent cut that we are debating tonight and the taking out of scope have driven it to close.

It is important to point out that even where the area of social welfare law is not to be taken out of scope altogether, such as in some housing cases and some debt cases connected with housing cases, the order that we are debating tonight means that the continuing work in housing, for example, will be reduced by 10 per cent. All housing work that stays in scope will be affected.

Noble Lords may want to know how much this will save. It is estimated that the saving from the whole order, including the 10 per cent cut in civil and family legal aid across the board, is worth £45 million. The cuts as they affect social welfare law fees are all of £5 million. That is a figure that the Legal Action Group has confirmed. Of course it is a rough figure but it shows just how much or, rather, how little will be saved by this order. Saving £5 million in fees when Her Majesty's Government intend to spend £250 million on ensuring that there are weekly rather than fortnightly collections of rubbish is absolute nonsense. Have we not got our priorities entirely wrong?

In the Hansard published today, the Minister has answered a Question that I asked him. The information is that:

“In cash terms, spending on legal aid in 2010-11 was … some £66 million (3 per cent) below provision”.—[Official Report, 25/10/11; col. WA 137.]

Yet the aim is to save £5 million by cutting these fees by 10 per cent.

I am not allowed to seek to amend this order and I therefore have to pray against it as a whole. Whether I vote against it tonight will depend on what other noble Lords say in the course of the debate that I hope will follow and, of course, particularly on what the Minister says. I beg to move.

[Baroness Deech]

My Lords, I declare an interest as chairman of the Bar Standards Board. The Bar Standards Board is the regulatory arm of the Bar Council, not the representative one, and I have no direct concern with the pay that barristers earn. My job is to further the objectives laid down for the Bar in the Legal Service Act 2007. There are eight in Section 1, including protecting and promoting the public interest, improving access to justice and encouraging an independent, strong, diverse and effective legal profession. What I have to say tonight when I encourage your Lordships to annul this order is based entirely on the application of those objectives in the regulation of the education and working lives of barristers.

Last Sunday, an advertisement appeared in the Sunday Times headed,

“Helping the most vulnerable in Society”.

It was for a new chief executive of the Legal Services Commission, which hands out legal aid. I quote from the ad:

“Our role is to ensure through our providers that independent, high-quality legal advice and representation is available to vulnerable people who cannot afford it themselves. We enable people to protect their rights and defend their interests”.

This order flies in the face of the aspiration in that advertisement and of the achievements of the objectives in the Legal Services Act and the profession.

Let me turn first to the effect it will have on women and black and ethnic minority barristers. This is a central plank of the work that we do at the Bar Standards Board in encouraging and retaining those very barristers. The effect of this order is to cut the rates payable in family advocacy by 10 per cent. It will be felt hardest by women and black and ethnic minority barristers, who are disproportionately represented in dependence on legal aid, while white men are the least dependent sector. There has been considerable government pressure to open up the legal profession still more to entrants from all backgrounds, albeit that it is already a very diverse profession.

Alan Milburn’s report of 2009 singled out the legal profession in his survey of social mobility, even though the Bar and solicitors go to enormous lengths to explain and reach out to young people all over the country. The Bar has a record to be proud of, with over 15 per cent of pupillages going to black and ethnic minority students in a very competitive market. The cuts in fees in this order undo all that work, and make the Government appear two-faced.

Sixty per cent of the family Bar are women, and they do 66 per cent of legally aided children work. Half the family Bar relies on public funds for more than 60 per cent of its turnover. From their gross earnings, modest though they are, barristers have to pay overheads to chambers and clerks—typically 20 per cent—and in addition meet their own pensions, illness and professional insurance cover and expenses. The King’s College London survey of barristers in 2008-09 indicated that 80 per cent of them intended to abandon legally aided public work. This generation of young people have university tuition debts and huge fees at Bar school, and the modest but reliable income that was once their support in the early years at the Bar is now to diminish to such an extent that they cannot earn a living. There is no point in the great efforts put into outreach in this situation.

It continues on into the judiciary. The noble Baroness, Lady Neuberger, reported on judicial diversity in 2010. A less diverse profession means a less diverse judiciary, and fewer women judges. The diminution of the profession also means more litigants in person taking up more court time, not less, with problems being stored for several years down the line because they cannot be settled in court in a proper and timely way.

As with other demanding professions, women are being lost to the Bar after five to 10 years in practice, because of the costs of childcare. It is unaffordable and will be even more so. Twice as many women leave the Bar as do men for that reason. The cut in fees in this order will weaken retention. It will also damage the children who are the subject of court orders, because now the experts who give evidence in child cases are placed within this table of reduced fees, and the fees are set at below the level needed to maintain their practices.

The Government have given no evidenced reason for cutting by 10 per cent, and they have not waited for the outcome of the Family Justice Review, chaired by David Norgrove. In March of this year, its interim report commented on the adverse impact that cuts would have, the lack of data about case-handling and flow through the court, and the contribution made by the lawyers in the cases. In the 2009 study Family Law Advocacy by the very experienced researchers John Eekelaar and Mavis Maclean of Oxford University, it was shown that where lawyers were involved in family law cases concerning money and children, the majority of cases were resolved without court process or contested hearing. Even where the cases went to court, in the highly charged emotional atmosphere that one would expect, the presence of specialist family lawyers enhanced the prospects of resolution and shortened the court process, for they are minded to act collaboratively and in the interests of the children. Additional damage has already occurred to women and children through the closure, because of already instituted cuts, of the advice agencies Refugee and Migrant Justice, the Immigration Advisory Service and Law for All, as the noble Lord, Lord Bach, has just mentioned.

There are more constructive ways to save money. First of all there is too much judicial review, now used as the citizen’s right of appeal. I was surprised to find when I was the Independent Adjudicator for Higher Education, running an alternative dispute resolution service for students, that those students obtained legal aid to challenge our decisions. There should be a push back against the notion that human rights mean that any and every decision can be judicially reviewed at great cost to the public. As for human rights, the real denial of those is to the middle classes, who are neither poor enough to be eligible for legal aid, nor can afford to go to law at their own expense. They are therefore the real victims, who cannot access justice.

The other substantive reform needed is to bring certainty into the law of maintenance on divorce. An obvious model for this is the continental European system of community of property, to which the Scottish system is similar, which entails a fixed fifty-fifty split of post-marital property and little ongoing maintenance. Broad-brush justice it may be, but it is cheap and efficient to arrange. As long as we have our Rolls-Royce discretionary system of settling property issues on divorce, couples will continue to waste sums they can ill afford—sometimes amounting to as much as the property in dispute—on deciding who gets what.

This order should be annulled. The Government should await the Family Justice Review report and change substantive law to get a more efficient system without damaging the profession and its diversity.

Cohabiting: Law Commission Report

Baroness Deech Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord McNally]

My Lords, first, I pay tribute to the Law Commission for its work, not just on this matter but in general. I am a very firm supporter of the Law Commission and the work it does, and I know that this House has played an important role in bringing Law Commission recommendations into law. However, the Government have decided not to implement the Law Commission’s scheme in this parliamentary term, because major changes to family legal aid are being implemented next year, and further reforms of the family justice system are also on the horizon following the final report of the family justice review, which will be published in October. We do not believe it would be sensible to seek to implement further changes in the law governing cohabiting couples during this period.

[Baroness Deech]

My Lords, I put these points to the Minister on the basis of the hundreds of letters I have had from members of the public after lecturing on this subject, which go along these lines. First, people live together precisely because they do not want to be married and have that law applied to them, and they would see a cohabitation law as a sort of forced marriage—some of them said that they would fail to commit, or fail to stay, if the law were changed. Secondly, the financial relief law is so bad, so uncertain and so expensive that the assets of the couple would be eaten up and in the end the only beneficiaries, given that there will be no legal aid, might be the lawyers.

[Lord McNally]

My Lords, I think that intervention suggests that it is right for the Government in this case to err on the side of prudence.

Legal Aid: Family Courts

Baroness Deech Excerpts

Monday 13th December 2010 Lords Chamber

Asked By

[Baroness Deech]

To ask Her Majesty’s Government what steps they are taking to assess the impact on family courts of the increased number of litigants in person who will have to represent their own cases if they no longer qualify for legal aid.

[Baroness Deech]

My Lords, I beg leave to put the Question standing in my name on the Order Paper and declare an interest as chair of the regulator, the Bar Standards Board.

[The Minister of State, Ministry of Justice (Lord McNally)]

We are currently reviewing the existing data and research into the impact of litigants in person on the courts. This will contribute to the analysis in the final impact assessments due to be published alongside the legal aid consultation response in spring 2011.

[Baroness Deech]

I thank the Minister for that Answer. Is he aware that existing research shows that cases involving litigants in person take longer and are less likely to settle? The noble and learned Lord, Lord Neuberger, has said that mediation does not meet the case in every situation. It is also likely that more men will be able to afford lawyers and that more women will have to fend for themselves in these family law cases where the interests of children should be paramount. It is not right to leave parties legally unaided in these emotional and complex issues. Does the Minister really believe that these cuts will in the long term save costs and do no harm?

[Lord McNally]

My Lords, that is certainly the intention. What we are trying to do is to get a change in culture so that people in family cases do not automatically go to law. Some of the points that the noble Baroness raised are worth examining. For example, in a case where there is not a balance of resources, the courts will be able to ask the wealthier of the two parties to deposit resources, which will mean a greater equality in advice. The basic thing about our reforms is that we do not believe that family justice is best carried out by state-funded litigation.

Divorce

Baroness Deech Excerpts

Monday 18th October 2010 Lords Chamber

Tabled By

[Baroness Deech]

To ask Her Majesty’s Government whether they will introduce legislation to ensure that financial provision on divorce is determined on fair and settled principles.

[Baroness Deech]

My Lords, it is fortunate that I am asking this Question of the Government today about financial provision. Not only is this an issue of great importance that has not been addressed by Parliament for some 40 years but on this very day it has also been announced by the family law review project that, in an effort to save legal aid and reduce antagonism between parents, mediation will have to be attempted before parties are enabled to litigate about their children after divorce. One of my themes is that mediation and changes to procedure to reduce litigation cannot succeed if the substantive law is uncertain and unfair, as I shall explain. Moreover, we will receive very shortly the judgment of the Supreme Court in its first case on the validity of prenuptial contracts. This, too, is highly significant as a method of reducing conflict on divorce.

Your Lordships may wonder why I am addressing this issue. It is because of a lifetime spent teaching and lecturing on divorce law and being in receipt of the views of the many who write to me about it whenever I speak in public. If, by any chance, your Lordships regard some of my views as idiosyncratic, that is the privilege of a Cross-Bencher. I assure your Lordships that I have a solution to the problems that I outline, one which is tried and tested, and widespread. I emphasise that I am speaking not in my capacity as chairman of the Bar Standards Board but in a purely personal and academic capacity.

London’s reputation as the divorce capital of the world is deserved. It has prompted a surge in divorce tourism such that one in six divorces has an international element because of the high-profile financial settlements among wealthy divorcing couples where generous awards are made to ex-wives. However, the majority of families going through the courts to settle their financial disputes on separation face very different challenges in the quest for fairness. English law relating to financial provision on divorce has proved to be unfair, uncertain and expensive. It is based on out-of-date stereotypes. It is out of step with the laws of other European countries; it is out of step with divorce law itself; and it has remained largely unrevised by Parliament for decades. Its deficiencies are obstacles to a more consensual and cheaper resolution of financial issues on divorce. This is especially important and damaging in its effect on the welfare of children after divorce. Moreover, reform would save legal aid and costs.

Successive judgments in the House of Lords and the Supreme Court have reflected the judicial view of changes in family life but have brought about confusion in the law and in principle. This makes firm legal advice leading up to settlement almost impossible in wealthy cases and racks up the cost of litigation. A case called White v White was thought to have pointed towards a yardstick of equality of division but that has moved away again. Subsequent judgments have emphasised the themes of needs, compensation and sharing, although it remains unclear how they interrelate with each other and with the statute. All the circumstances and all the assets are available for consideration but some recent cases have suggested that there may be a category of assets that should remain with one spouse in certain conditions. No wonder that spouses resort to illegal seizure of financial documents from the other—a practice castigated in the Imerman judgment. Yet how else might some wives find out what their husbands earn? Our judges mean well but the price of flexibility and micromanagement is delay, uncertainty and expense.

There are cases where the costs of litigation have exceeded the value of the assets in dispute. Mr and Mrs White spent £500,000 in costs to settle the ownership of £1.5 million. Mr Miller is taking the Government to the European Court of Human Rights on the ground that divorce laws are so uncertain that they infringe his human rights. The statutory principle of a clean break between spouses has faded. There are cases when spouses come back to court after a quarter of a century of living apart to seek a change in the maintenance level. Quarrels can never be put to bed. There is enormous public anger, especially among those who have been involved in divorce. They find this state of affairs unjust and immoral. They do not see why maintenance continues to be paid to an ex-wife who is pregnant by, or living with, another man, or why conduct is not taken into account. The theory of divorce is that it arises from irretrievable breakdown of the relationship without fault but in reality this is not how it is seen in most cases by the parties.

Well-off wives—a new category—especially those with high earnings of their own, do not see why they should have to transfer their assets to an ex-husband whom they regard as having treated them badly. Let me quote from one or two of the many letters that I received after lecturing on this. One is from a divorcing wife:

“the law is supporting his efforts to take away my home”,

and savings in order to support him, his girlfriend and child.

One is from an ex-husband:

“a complete travesty of natural justice being foisted on me by the present law”.

Poor ex-wives will hardly get by and maintenance for children is a vital issue for which, unfortunately, there is no time this evening. The law rewards most significantly the non-working wife of a wealthy man—almost regardless of the length of the marriage, children and contribution. The message given out to young women is that their life’s success has to be tied to finding—and, perhaps, divorcing—a man of means, rather than working to support themselves. Awards worth millions of pounds are made to the ex-wives of pop singers and footballers. Many divorce awards are sums greater than a working woman will earn in a lifetime of salaried employment.

The law does not even recognise prenuptial agreements as legally binding. The judgment on that in the Granatino case is imminent, but at the moment we have the worst of all worlds. It has been hinted that they might be binding, but a court can only decide agreement by agreement whether that is so or not, so more litigation may ensue in determining whether the contract is to be upheld.

It is high time that English spouses, like those on the continent of Europe, were treated as adults, able to bring certainty to their financial affairs on divorce and avoid litigation by deciding for themselves what to do. It would be ironic if our law refused to recognise prenuptial contracts entered into voluntarily while we are considering imposing a matrimonial financial regime on cohabitants who have not consented to it. The law is in any case not fit to apply as it stands to cohabitants.

It is time to move to a European law for the division of matrimonial assets, commonly known as community of property. The courts of most European states have less flexibility. Awards are lower and there is more certainty because the principles have been laid down in advance and agreed to. Most European and some North American states have community of property schemes that apply to divide post-maritally acquired property equally on separation. Assets owned before marriage are excluded. Couples may agree to keep their property separate if they prefer. Maintenance awards are lower because it is assumed that wives will work, and inheritances remain with the inheritor. However, the UK is resisting the moves to harmonise European matrimonial property law. The rest of Europe seems to take the hard-won principles of feminism and equality rather more seriously than we do. Even in Scotland, there is a very different approach. Maintenance awards are normally for three years only, unlike lifetime awards in England, and the matrimonial property is split.

The Law Commission tried to find consensus, with attempts at formulating a law about sharing homes and another about cohabitation, but has failed, in that there is no national agreement about what to do. The Government have to take the initiative on this for the sake of children and costs. They should legislate for the introduction of the European system of community property and the validity of contracts about these issues made between spouses and other adults. That would also have the benefit of removing the temptation for European divorcees to come to England for dispute resolution in our courts. It is not a perfect solution; it is a blunt instrument, which will not universally be seen as fair; but the advantages outweigh the disadvantages, and no better solution has been proposed. It would save money and reflect real equality between husbands and wives.

It is time for the Government to allow time for debate to face up to the resolution of modern ways of living in families and easy divorce. It is time to call for reform, not by judges struggling to cope, but by our legislators.

--- Later in debate ---

[The Lord Bishop of Blackburn]

My Lords, I am most grateful to the noble Baroness for this debate.

Love has always been recognised as the most costly emotion, and traditionally it has been valued in terms of personal commitment rather than economic obituaries.

“How priceless is your unfailing love”,

the psalmist wrote of the God whose love is so great that it “reaches to the skies”. The recent valuing of love—or, rather, its failure—in multimillion pound divorce settlements, in which a significant number of those listed had earned their fortunes in the entertainment industries, ranged from the reputed £7.5 million to £12.5 million paid by one celebrity when their 22 year-old marriage foundered, to the £75.5 million an American rock star settled on his former wife. When a famous film director paid his former wife £50 million, he was believed to retain a further £50 million for day-to-day necessities.

This surely goes to the heart of our debate today, for I understand that this settlement began as a prenuptial arrangement. The cynic could argue that failure was costed into the price of this couple’s original devotion. Such settlements, no doubt much loved by legal and financial professionals who profit from them, are in danger of reducing marriage to the economic bargaining of historic marriage contracts and of cheapening sacred commitments into balance sheets. Let us override cynicism with Christian realism. Of course we encounter a strong objection to the tenor of such requested legislation, for in a Christian understanding of marriage such prenuptials weaken and dilute our marriage vows of lifelong commitment, where sacrificial love forms the bedrock and the core. The established church’s marriage service includes this moving, mutual commitment:

“All that I am I give to you, and all that I have I share with you”.

This states the deepest possible giving and gifting, with nothing held back in personhood or economics. These commitments, made before God and all those attending a Christian wedding service, look confidently towards a new, positive and progressive relationship in the unfolding history of human love. There is no suggestion here of an economic breakdown kit, poised for use if dreams fade or demands surmount expectations.

But let us be clear: this is not to deny that, tragically, many marriages fail and that, as the noble Baroness requests, “fair and settled principles” should safeguard legally required settlements. Nor is it to deny claims that marriage may be limited among older people unwilling to formalise relationships without agreements safeguarding responsibilities to family members from former marriages.

But such considerations, valid as they are, can also detract from a more demanding duty of this House: that of supporting the primacy of marriage rather than legislating for its dilution, and leading our nation in reasserting positive principles rather than writing provision for failure into a sacred institution created for lifelong blessing and support.

Perhaps the problem with this requested legislation is that, like much current policy and resources, it concentrates on the ending of relationships rather than on supportive foundations for their future. Like the prenuptial agreement, it raises the spectre of relationship disease, with all the consequent emotional and economic costs of family courts, mediation, child support and associated issues, rather than hoping, planning and praying for the emotional health of marriage and offering significant support.

In a society deeply wounded by divorce, the balance of resources should be devoted to relationship education and marriage preparation, and to supportive healthcare for marriage rather than ambulance-chasing after divorce settlements. If more attention was given to this area of our nation's life, we would not have to spend so much time debating what happens when relationships end, and our society would be stronger and more stable as a result.

[Baroness Deech]

Is the right reverend Prelate aware that in many Catholic countries in Europe, where the divorce rates are much lower than they are in this country, the sort of system that I have recommended prevails? I refer to France, Italy, Spain and so on. They have much lower divorce rates, but they also have the system that I have proposed, which might support rather than diminish the institution.

Children: Criminal Responsibility

Baroness Deech Excerpts

Thursday 10th June 2010 Lords Chamber

Asked By

[Baroness Deech]

To ask Her Majesty’s Government whether they plan to raise the age of criminal responsibility.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Government have no plans to raise the age of criminal responsibility. They believe that setting the age of criminal responsibility at 10 allows front-line services to intervene early and robustly. This helps to prevent further offending, and it helps young people to develop a sense of personal responsibility for their behaviour.

[Baroness Deech]

I am grateful to the Minister for that Answer. Would he acknowledge that it is widely regarded as inappropriate to see 10 year-olds in court and very small children being examined as witnesses? Most of the rest of Europe has a much higher age of responsibility than we do and the United Nations is calling for it to be raised. Will the Minister kindly consider a package of measures: raising the age to 14; not holding trials of children in open adult courts; not questioning child witnesses in court; not using custodial sentences; and, of course, in this age of cuts, concentrating on preventing children getting into the criminal system in the first place?

[Lord McNally]

My Lords, having had less than a month’s experience, I pay due deference to the experience of the noble Baroness. Whatever age group we pick will be arbitrary. I have looked at the international comparisons, which range from six to 17. I will obviously take back to the department the recommendations she makes for due consideration. However, I was very impressed by the mixture of processes introduced by the previous Administration which makes it a rare occurrence for very young children to be before a court. There is a mixture of reactions to their offending which seeks to achieve early intervention and progress for the children concerned.