Divorce

Baroness Deech Excerpts

Wednesday 6th January 2021 Lords Chamber

Asked by

[Baroness Deech]

To ask Her Majesty’s Government, further to the research on the impact of divorce published by Resolution on 30 November, what steps they are taking (1) to improve the capacity of family courts, and (2) to support divorce litigants.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con) [V]]

[Inaudible]—enormous pressure. Despite this unprecedented challenge, I can reassure the House that the whole system has worked together to prioritise support for the most vulnerable. Of course, we acknowledge that there is always more to do, which is why the department continues to work with the advice sector to provide vital support services for litigants.

[Baroness Deech (CB) [V]]

The Resolution report showed that we are heading for disaster in the family courts, and that 41% of those recently divorced suffered mental health episodes or even had suicidal thoughts. The Nuffield report on remote hearings showed that while the professionals are happy with remote court working, litigants are not. There are technical issues and a lack of privacy. What will the Government do to help those in divorce proceedings? Disputes over financial provision are a major irritant. If mediation is a solution, the law in that area has to be simplified. Will the Minister update the House on progress with a promised review of financial provision law aimed at making it less contentious?

[Lord Stewart of Dirleton (Con) [V]]

My Lords, I do not accept the noble Baroness’s characterisation of the situation as one in which we are heading for disaster. The situation is no doubt complex, and we are aware of the data to which she refers.

Marriage and Religious Weddings

Baroness Deech Excerpts

Tuesday 30th June 2020 Lords Chamber

[Lord Keen of Elie]

First of all, those who undergo only a sharia ceremony are not in marriage; that is the source of the problem we have to face here. That is more a social issue than a legal one, and it requires education and information more than legislation.

[Baroness Deech (CB) [V]]

Do the Government not realise how urgent reform is in this area? Not only are religious marriages continuing to take place, with all the drawbacks outlined by my noble friend Baroness Cox—the Minister is right to say that this must be stopped by education—but lockdown has shown the need for simpler weddings and more certainty in formalities, to increase choice, lower cost and ensure legality. Will the Government make time for statutory reform soon, encompass those reforms and whatever the Law Commission comes up with in its timely work on weddings, which has a broader scope but will include discussion of religious-only marriages and the consequences for couples who do not comply with the requirements?

Divorce, Dissolution and Separation Bill [HL]

Baroness Deech Excerpts

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Baroness Deech (CB)]

My Lords, the phrase “the heat of the battle”, just used by the noble Lord, Lord Morrow, provides a very succinct and appropriate introduction to my amendment. Everyone who has spoken so far has been in agreement. We support the institution of marriage and civil partnership. We want people to be stable and happy, to avoid disputes, and to provide security and warmth for their children. We differ only on the detail of how best to do it.

The difference between the context of today and that of the last time divorce was debated is the social context: more varieties of relationship, more avoidance of marriage, less disapproval when things go wrong, and more individualism within and outside of the couple’s relationship. The enduring problem is the effect on children of the break-up and how to cope with the dismantling of the housing and financial structure created by the parents. They used to say, “Marry in haste, repent at leisure”; this Bill will put an end to that. It will be “Marry at leisure”—because so many people prefer to cohabit first—and “Repent or divorce in haste”.

I accept that the wish of nearly everyone is to remove as much dispute as possible from the divorce process: to get it over and done with, as quickly as possible, to reduce the pain. It is in that spirit that I am introducing Amendment 20. In their good intentions, the Government have put the cart before the horse. Divorce, whatever its basis, will be over and done with perhaps in weeks or months. But the financial settlement for the couple and their children will have a lifelong effect and is likely to take much longer to arrange than the divorce. It will contain all the bitterness and antagonism that this Bill tries to remove from the substantive divorce.

I have spoken many times about the iniquities of our outdated financial provision law and I will not rehearse them here, save to remind noble Lords that distinguished lawyers—and more importantly members of the public—find that law uncertain and overly judge-made, with little resemblance to the governing statute. The law has no public input, remains unreformed for half a century of social changes and is very costly. I have a list of cases where the legal costs amount to half or more of the couple’s assets. We must also remember that there is no legal aid, as the noble Baroness, Lady Chakrabarti, has reminded us. Those who must represent themselves are left to flounder without even the most basic knowledge of what principles of division they should adopt.

Children’s needs are neglected while the adults fight. Only this week, the Times reported that one-third of separated parents are avoiding child payments. The Government will not succeed in removing hostility from the divorce proceedings unless they bring the financial provision law into line. It is almost oven-ready, as they say, as a few years ago the Law Commission drafted a Bill to put prenuptial agreements on a statutory basis. All who know Scottish law can see that its system is far better, cheaper and fairer, with much less recourse to litigation.

I have on several occasions set out proposals for reform, now taken up by the noble Baroness, Lady Shackleton, in her Private Member’s Bill—the Divorce (Financial Provision) Bill. She is unable to be in her place at this moment, but she is in full support of everything that I am saying.

With the Government’s Bill before us relating to substantive divorce as distinct from the money element, there are further urgent reasons to achieve reform of the financial element of divorce. I will set these out, as they underlie my amendment. In brief, there is no point in trying to achieve the aims of the divorce Bill—to make divorce less acrimonious and harmful to children—if the laws relating to the division of money on divorce remain as uncertain, expensive and acrimonious as they are. Research has shown that the quicker the divorce, the less likely the parties are to come to an agreed settlement, and that they will be more likely to settle on financial matters when more time has elapsed. This does not augur well for consensus in the proposed new law.

Twenty-six weeks is a brutally short period, after which one can well imagine that the unsuspecting spouse is still in the house, reeling with shock, utterly without plans about where to live or how to manage in the future, and without legal advice. The time taken to reach financial settlement is often far longer than the divorce itself, and even more prolonged if the couple cannot agree and must go before a judge. Financial orders can take years, as we read recently in the media about the highest in the land. It is not advisable to apply for the decree absolute, or final divorce order, until the finances are settled, as there may be tax disadvantages if there is a considerable gap between the end of the marriage and the consequential financial transfers.

As explained to me by that experienced noble Baroness, Lady Shackleton, the court can adjudicate capital only when a conditional decree—what we used to call the decree nisi—has been obtained. The Bill enables a conditional decree to be obtained faster, but disengagement from marriage can occur only when finances are sorted. Thus the acceleration of the decree is valuable only if the law relating to finance is overhauled, and that too can provide some certainty.

Moreover, if a spouse is not satisfied with the financial settlement on offer at the time of a conditional decree, he or she may apply for the final divorce to be postponed. This is provided for in the Matrimonial Causes Act 1973 and carried over into the Bill, paragraph 10 of the Schedule to which says that

“the court hearing an application by the respondent … must not make the divorce order final unless it is satisfied”

that there should be no

“financial provision for the respondent, or … that the financial provision”—

the offer—

“made by the applicant … is reasonable and fair or the best that can be made in the circumstances.”

Again, the quick divorce may be thwarted by a spouse who is not happy with whatever has been offered and wishes to delay matters.

--- Later in debate ---

Amendment 7 withdrawn.

[Baroness Deech]

I have not withdrawn Amendment 20 yet.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

For the convenience of the House, when the amendment tabled by the noble Baroness is called, she may then have the opportunity to speak to it.

--- Later in debate ---

Moved by

[Baroness Deech]

20: Before Clause 6, insert the following new Clause—
“Review of operation of certain sections of the Matrimonial Causes Act 1973
(1) The Secretary of State must conduct a review of the operation of sections 25, 25A and 34 to 36 of the Matrimonial Causes Act 1973 (the “Act”) to determine whether they—(a) properly reflect the patterns of family life of the present day,(b) provide for a system which is reasonably predictable in its outcomes from case to case, and(c) act to exacerbate the costs of legal representation which must be expended by parties litigating thereunder.(2) The review must in particular consider—(a) whether it would be appropriate for provisions akin to sections 9, 10 and 24 to 26 of the Family Law (Scotland) Act 1985 to be incorporated into the Act to assist the court in its determination of the matters to which the court is to have regard pursuant to section 25 thereof,(b) whether the operation of sections 25 and 25A of the Act in relation to the quantum and term of periodical payments is appropriate in the context of changes in the labour market since their entry into force, (c) whether agreements between parties (or prospective parties) to a marriage in relation to their financial arrangements should be presumptively binding on the court,(d) whether the provisions of subsection 25(1) of the Act are of meaningful effect in the majority of cases, and(e) any amendments to sections 25, 25A and 34 to 36 of the Act which may be necessary in consequence of the review.(3) The Secretary of State must begin the review before the end of the period of six months beginning with the day on which this Act is passed.(4) The Secretary of State must lay before both Houses of Parliament a report of the conclusions of the review and of any proposals which it makes within one year of the commencement of the review.”

[Baroness Deech]

My Lords, I thank the Minister for having spent some time with me and other supporters a week ago to discuss this. It was very constructive. If I do not press my amendment, it will be on the basis that he has given a commitment here to carry out a broad consultation on financial provision law, and indeed a speedy one. I offer a word of warning. I am worried about strong lobby groups that will try to take this over. Some of my best friends are barristers—I studied with them, taught them, regulated them, and I have been represented by them—but the eyewatering amounts that they charge in divorce is upsetting. I am married to a solicitor and I know that they get in on this act as well. I am not saying that they do not deserve it, but for poor couples who have no legal aid the legal costs are exorbitant. That is why I am worried about a consultation that is too heavily weighted towards the views of the legal profession. We need to hear from women’s groups and, indeed, from men; we need to hear from people who have been through a divorce—members of the public—and how it has affected them. We need also to remember that there is more than one feminist view on this. Indeed, as we might expect, there is a split between feminists on quite what the right outcome should be, financially, at the end of the divorce. I am grateful that the Minister has undertaken to have a wide-ranging and speedy review, so that the financial law will eventually get into line with the new divorce law.

Amendment 20 disagreed.

Terrorist Offenders (Restriction of Early Release) Bill

Baroness Deech Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Baroness Chakrabarti]

There is one law of the land and it binds everyone. Sharia councils do not provide an alternative legal regime; there is one law of the land, which is what I am talking about. If people seek to argue otherwise—I take the noble Baroness’s point—they need to be disabused of that. There is one law of the land which binds us all, in this House, in government and in opposition; it binds the citizenry, the suspects and the victims. I think we can agree about that.

[Baroness Deech (CB)]

Can the noble Baroness reassure us on the efficacy of the programmes for stopping radicalisation? I have read—I do not have the evidence—that at least one of the terrorists had successfully completed such a programme, and that other convicted terrorists are encouraged by their hierarchy to go neatly through the programme to secure release and be seen to have been deradicalised. In other words, there may be nothing we can do, no matter how much money is thrown at these programmes.

[Baroness Chakrabarti]

As always, the noble Baroness, Lady Deech, points out genuine challenges in this area. We have to try, and to put in sufficient resources to make the best attempt. We certainly cannot have a situation whereby those going into prison, not for terrorist offences, are being radicalised there and coming out more dangerous than when they went in. They will not be touched by this legislation. If and when they offend, people will not say, “That was a convicted terrorist”; they will just think that they were yet another person who has done the rounds, been in and out of prison for whatever offence, and come out more dangerous than when they entered.

We will have to break shortly, and then we will have the opportunity to consider amendments. So many noble Lords talked of their ambitions for the future, and I hope that when considering this Bill, and in future debates, they will remember not just the legalities but the practicalities of trying to ensure that this emergency is not a permanent one that takes us into the seventh circle of hell, debating more emergency legislation, to little effect, well into the future.

European Union (Withdrawal Agreement) Bill

Baroness Deech Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Howarth of Newport]

My Lords, I also serve on the Constitution Committee and share the concerns expressed by my noble friend Lady Taylor and the noble Lord, Lord Beith. The relationship between the Executive, the judiciary and the legislature is a matter of some current controversy. The Executive have been stunned by the judgment made in the Supreme Court in the autumn, and I suspect that in part we are seeing a somewhat petulant response to that circumstance.

At all events, what is proposed in this legislation is a gross intrusion by the Executive into the proper realm of the judiciary. The Executive complain that the judiciary has extended itself excessively into its role; we are now seeing a retaliation on a major scale. Whatever practical motivation otherwise that may have caused the Government to write new subsection (5A)(b) into this clause, it is a foolish initiative on the part of the Government.

This is territory in which the Government ought to walk delicately, like Agag. It sets an appalling precedent, and it intrudes into the proper role of Parliament, because it is not appropriate. Even if it were appropriate for Ministers to interfere at all in this realm of judicial discretion, it is not appropriate for Ministers to do it by regulation. Such decisions ought to be made by Parliament in primary law, ensuring that the sort of very important principles which the noble Lord, Lord Anderson of Ipswich, has suggested might be interfered with by Ministers under the terms of this legislation cannot be dealt with in this kind of way.

[Baroness Deech (CB)]

My Lords, I am puzzled by some of the issues that have been raised by this amendment. First, only a year or two ago, the noble and learned Lord, Lord Neuberger, then president, called for Parliament to tell our judges clearly how rulings of the CJEU are to be dealt with after Brexit. Apparently our noble and learned friend did not see any difficulty about that.

Secondly, to tell courts that they are not bound by something does not mean that they will not follow it. If they are not bound, they may well still choose to follow it if they think it is good law. There are indeed many instances where the Court of Justice of the European Union has not produced good law: for example, over the secret nature of MEPs' expenses, on genetically modified crops and on diplomatic immunity. This is not surprising, because it is a court very unlike our own type of court. Its judges are nominated by sending countries for six years—they have only a six-year tenure. They have enormous salaries and expenses, and I am sure that they are reluctant to lose them after six years, and anxious to be renominated.

There are of course no dissenting judgments. Many of the so-called judges are not judges at all. They have been professors—obviously, I have great admiration for professors—and civil servants, with of course the exception of the British judge. So I am a little sceptical about this court. I think people sometimes confuse it with the European Court of Human Rights. We hear much talk that, if we depart from the rulings of the CJEU, our human rights will be affected. That is not the issue today.

I ask those who put forward this amendment what they mean, or envisage, by binding and not following, and why they think it would be better for citizens to have to go all the way to to the Supreme Court, with all the delay and expense—and lots of nice jobs for lawyers—that will be involved if you can only get a diversion from EU law by going all the way to the Supreme Court.

Northern Ireland (Executive Formation etc.) Bill

Baroness Deech Excerpts

Ping Pong (Hansard): House of Lords
Monday 22nd July 2019 Lords Chamber

[Lord Cormack (Con)]

My Lords, the British people did not vote for a no-deal exit from the European Union. All I would say to my noble friend Lord Forsyth is that when he talks about sophists, it takes one to recognise one. The truth of the matter—I have tried to be scrupulous in this—is that if the Commons rejects a House of Lords amendment, most of us in this House do not vote again. We accept the will of the elected House. The will of the elected House on this occasion is clear and emphatic. It has given this provision a majority and we should not fly in the face of that.

[Baroness Deech (CB)]

My Lords, I have two simple questions which I hope can be clarified by those who are in favour of remain. First, how on earth can this amendment from the Commons prevent a Dissolution of Parliament if there is a call for an election? There is no way that Parliament could be re-summoned if an election were called in the early autumn and the period of Dissolution covered October. Secondly, the amendment from the Commons misses the point. We could meet and talk right through August, some have said, and right through September and October, but unless something is done to remove the date of 31 October, the default position is that we leave on 31 October. There is nothing that this Parliament can do about it because any attempt to postpone that date rests in the hands of the European Union. We are not sovereign in that respect. Only if the European Union agreed to an extension could that default position of 31 October be removed; therefore, the amendment coming from the Commons is pretty pointless.

[Baroness Butler-Sloss (CB)]

My Lords, I will make two short points. First, Northern Ireland is as affected as the rest of the United Kingdom if we crash out on 31 October. Secondly, this is not an issue between leavers and remainers; it is an issue of whether we crash out or leave the European Union with a deal. It is important not to muddy the waters over leavers and remainers, when this is a separate and terribly important issue.

Northern Ireland (Executive Formation) Bill

Baroness Deech Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, it seems to me that it does not matter whether one supports leaving the European Union permanently or remaining in the European Union. That is not the issue before the House. The issue is whether Parliament should be allowed a say on whether we leave by crashing out, leave with a deal or do not leave. It does not, in a sense, matter which of those three situations it is. What matters is that Parliament has a voice. For that reason, I support this amendment.

[Baroness Deech (CB)]

My Lords, they say that Brexit drives people crazy and I think there is something in this. It certainly makes people cerebral. May I put forward a few general points? First, it has been said that Her Majesty might be embarrassed by such a request. Her Majesty has been on the Throne for 70 years or so and faced many a constitutional crisis. I think she would survive.

Secondly, be careful what you wish for. Suppose we pass this amendment requiring Parliament to meet in October. It is not for the benefit of Northern Ireland. I feel rather sorry for the people of Northern Ireland, who are being used as a sort of wedge in a door—not for their benefit. Suppose there is a general election in the meantime. Suppose there is a vote of no confidence in the Commons. Is it seriously considered that requiring Parliament to meet in October would take precedence over these other events, which may very well occur in the next few weeks? If there is a general election before October, what will happen to the will of some that Parliament should meet in the run-up to the possible leaving of the European Union? If there is a vote of no confidence, the same thing might well happen.

It seems to me that the constitution is not clear on what motives have to lie behind the call for a general election, the call for a vote of no confidence or the Prorogation of Parliament. It is a somewhat ambiguous area. The speculation about this has led people to believe that it is better placed in the hands of the judges than of politicians. That may well be. I am not disputing for a moment that the rule of law is upheld by judicial review and allowing judges to decide. However, where an issue is as ambiguous as this, noble Lords should realise what they are doing in putting these decisions in the hands of judges, who might very well be summoned to meet in a great hurry; the issue would then be rushed all the way through the courts. We would be leaving it to judicial wisdom.

A great deal may happen between now and the end of October. It worries me that we should be using parliamentary procedure in this way. It would be an unfortunate precedent. As I said, think about Motions of no confidence; think about a general election and the assumption, so readily made, that the notion of Prorogation would be a terrible breach with everything that has ever happened in the 1,000-year constitution of this country.

Moreover, the action of judicial review, which is already being talked about in this House—somewhat prematurely—will depend on one wealthy individual bringing that action. Suppose there is a vote of no confidence and by some method the Queen is advised that Mr Corbyn should be summoned to form a Government. Unfortunately, I cannot afford the services of my noble friend Lord Pannick, but I am sure there are those among us and in the country who would say that the possibility of a Prime Minister widely regarded as an anti-Semite was a constitutional outrage and must be judicially reviewed.

I beg noble Lords to consider what sort of precedent might be set by using the people of Northern Ireland, speculating on what might happen with judicial review and not allowing the normal course of events to continue. To support this amendment will have repercussions way beyond what we might expect this afternoon.

[Lord Cormack (Con)]

My Lords, the noble Baroness, Lady Deech, reads far too much into this simple amendment, which is unambiguous and makes the point that power should rest not with the Executive but with Parliament. It would require Ministers to report on a Bill’s progress where progress is essential, such as with this Bill. Of course, most importantly, we should not give the Prime Minister of a minority Government, whoever he may be—let us all, particularly those of us on this side of the House, recognise that we are talking about the Prime Minister of a minority Government—the opportunity to suspend our constitutional proprieties.

I should like to make another point. I deplore the fact that the rules of my party have allowed this decision to be protracted over almost five weeks and to be taken by 0.3% of the electorate, a number of whom are 15 years of age; they are entirely eligible to vote, as I established earlier today. Many people do not realise that; I did not realise it myself until two or three days ago. The party in the country has had great power—way beyond what any party should have, particularly when it represents such a tiny percentage of the electorate. I believe that the real constitutional impropriety that the noble Lord, Lord Anderson, seeks to deal with is that of conferring on the Prime Minister of a minority Government—I repeat: a minority Government—the powers to dispense with the services of Parliament and to absolve himself of being answerable to it. As I said on Monday, the Government are answerable to Parliament, which must never be the creature or subject of government. This is a safeguard. We should support it.

Northern Ireland (Executive Formation) Bill

Baroness Deech Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Baroness Deech (CB)]

I agree with the noble Baronesses, Lady Tonge and Lady Barker. I recall that just a few weeks ago we debated the provision of sex and relationships education to young people. I was shocked and dismayed by the protests of our colleagues from Northern Ireland. The point is, you may or may not approve of abortion or same-sex marriage, but we live in a world where we have to tolerate these relationships and choices. As the noble Baroness, Lady Tonge, said, you do not have to do it if you do not like it—but you must not stop other people having the information and having the right.

You may or may not be a fan of Europe. Our human rights have come not from the EU but from the European Convention on Human Rights, much of which was British-based. It is not a question of consultation, either. If the population had been consulted on every single human right, we probably would not have them. Sometimes there has to be an external body that brings people into that circle of human rights and gives them their liberty. In this particular case, it is the right to a private and family life that women must have.

Sadly, most people in this debate are men and most of the supporters are women. That is highly significant. In an age of #MeToo complaints, when this Chamber has just been criticised by Naomi Ellenbogen for the attitude that some men take towards female employees, it is high time that men laying down the law had a bit more consideration for the feelings of the women who may have been put in the position of having to have an abortion, because the man who made them pregnant has abandoned them or is not supporting them—whatever the reason may be.

I think that in this situation devolution is being used as an excuse. This is perhaps the most profound human right a woman can have. Had it not been for the advances in contraception and abortion over the last 50 years, which gave us the confidence and freedom to go ahead with our education, plan our lives and have our children when we wanted them, we women in this Chamber would not be where we are. We must give this to the women of Northern Ireland. They are 50 years behind the rest of the world. Any man here who wants to deny this to them does not understand human rights or what he should be doing to help those women, rather than holding them back and condemning them to shady, shabby and expensive trips to other countries to get their human rights.

[Baroness Smith of Basildon]

My Lords, perhaps the noble Lord, Lord Morrow, might like to speak, because his clause stand part debate is grouped with these amendments.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Baroness Deech Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[Baroness Deech (CB)]

My Lords, I declare an interest as a non-executive member of the board of the Law Commission, the place where I had my first job in 1966. With that caveat, I nevertheless think it is appropriate to pay tribute to the work of the Law Commission, now 54 years old, not just for this Bill but for all it has done to keep our law up to date, thereby earning it worldwide recognition for its distinction.

This Bill is a stepping stone to what will be a far longer Bill—558 pages in the draft proposal when I last counted. It is estimated that in the end it will reduce 1,300 pages of sentencing law to around 450 pages. The project started in 2014 and, when one realises its vast scope, it is remarkable that it has been completed within five years. It therefore behoves Parliament to act as quickly and to progress to the code, which has been universally welcomed by the Bar Council, the Director of Public Prosecutions and the Head of Criminal Justice. It is the result of years of detailed and collaborative research by the Law Commission, including close working with practitioners in criminal law. There have been four consultations. It has been calculated, as the noble Baroness, Lady Mallalieu, noted, that it will save £256 million in terms of time and avoidance of mistakes over the next 10 years.

Sentencing errors, when they occur, are particularly regrettable in human terms to the person affected and also a drain on the judicial system. It is confidently expected that errors will be reduced as a result of consolidating the law on sentencing. Sentencing might also become more visibly rational and accessible to the lay man, which would give support to the rule of law. The consolidation exercise has been mindful of the need to avoid retrospective legislation and not to increase sentences over and above what would have been applicable at the time of the offence. All those involved urge its enactment without further delay.

Given that both Houses have enacted a special procedure for Law Commission Bills in order to ensure a swifter and more specialised passage to the statute book, it is to be welcomed that it is being used now, but one wonders why it is not used more often. The successful enactment of Law Commission recommendations ought to be speeded up, given the record of the commissioners. In recent years, many recommendations have been accepted but not implemented due to a lack of parliamentary time. This ought not to be an excuse. Indeed, we see no particular pressure on time in this House right now. It seems that this Bill is the first to be put through the special procedure since 2017. In total, seven have followed this procedure.

There are three more projects completed by the Law Commission which would seem to be suitable for this procedure, and I would be grateful if the Minister would indicate that he is giving serious consideration to this. The projects are: making land work; technical issues in charity law; and updating the Land Registration Act 2002. They each concern highly technical areas of law which are non-party-political. The Law Commission’s recommendations were reached following detailed examination and consultation with the interested parties. There is strong support for those reforms, which would have significant practical benefits for large numbers of individuals, businesses and the third sector.

Noting the amount of money that this code that we are discussing is likely to save, I think it is clear that money invested in the running of the Law Commission is a good investment with a hefty return, and it ought to be increased rather than reduced. I trust that the Minister will say that more of the Law Commission’s work should be supported.

Finally, I note that in our discussion this afternoon we are joining with the rest of the country in adopting a new philosophy which is very popular. A Japanese author, Marie Kondo, has written a book called The Life-Changing Magic of Tidying. Her philosophy is decluttering. She says that one proper clear-out is all you need for the rest of your life. Once you have your house in order, you will find that your whole life will change. Her mantra is: keep only that which sparks joy. Let this be our guide in consolidating the law.

Parliament: Freedom of Speech and the Rule of Law

Baroness Deech Excerpts

Thursday 23rd May 2019 Lords Chamber

[Baroness Deech (CB)]

The Motion moved by my noble and learned friend Lord Brown goes to the heart of our constitution—that is, the separation of powers, the respective and distinct roles played by the judiciary, the legislature and the Executive, and the balance between them. Recent events seem to have put the rule of law and the independence of the judiciary at risk. The legislative branch overreaches itself if it intrudes into the Executive, as we are witnessing almost daily in the struggle over European withdrawal; the legislature also overreaches itself if it intrudes into the judicial function. Intrusion into judges’ independence comes if parliamentary privilege is misused to undermine their judgment, without recourse for either the judges or the subject of the disclosure. In the extraordinary circumstances we are told we are living through, it is all the more important not to abandon the rules; that way lies lawlessness.

The privilege is to enable us to hold the Executive to account, to debate and inquire, to criticise bad conduct and so on without fear. It is not there just to satisfy public curiosity, feed the media or even encourage other victims to come forward. It is meant to help parliamentarians to use their position to uphold and act in the public interest in, for example, the case of a national emergency or corruption on the part of public officials and Ministers that needs exposure. It is especially regrettable when parliamentary privilege is used to expose matters that should be kept confidential but are about sexual impropriety, where the motive for the breach appears to be prurience and satisfying media curiosity. The Philip Green issue, for example, was not urgent, was not of national importance to the economy or security, and the propriety of non-disclosure agreements was already a live issue. We were deprived of the court judgment on that very issue. Moreover, a Peer who takes it upon him or herself to flout a court order will not have heard all the evidence about why the court ordered anonymity. The breach of anonymity will serve only to inhibit future claimants, whose confidentiality will be seen to be at risk from the outset. It will tempt those involved in such litigation to feed injuncted material to parliamentarians to secure revelation in Parliament, to the detriment of the parties involved. The individual who suffers has no remedy and the courts can do nothing about the damage.

The question has arisen of whether a Member should consult the Lord Speaker if he or she proposes to breach court anonymity. The problems with this solution are, first, that a Member may none the less precipitately reveal that which should have been kept secret without prior notice. Secondly, the Lord Speaker, even with the assistance of other Members as advisers, ought not be put in the position where he or she has to pit his or her judgment against that of the court and without the information that led the court to decide that there should be anonymity. It would not be advisable to attempt to lay down statutory rules about privilege, for that would amount to a situation whereby judges would rule on parliamentary matters in contravention of the separation of powers.

I am driven to conclude that there is no more that can be done, save to remember how important it is for the legislature to respect the scope of the judiciary and the judiciary the scope of the legislature, as explained by Stanley Burnton J in the 2008 case of the Office of Government Commerce. Members have to exercise self-discipline and remind themselves of the important historical and constitutional role played by judicial independence and parliamentary privilege side by side. If they fail to respect the rules, the punishment is not contempt of court, but forfeiting the trust of their colleagues and exposure to the sanctions that might exist under rules of parliamentary conduct. We have to act on our personal honour and place the public interest ahead of private interest. An irresponsible breach of court-ordered anonymity or a breach with the wrong motive loses the respect of the House.