Divorce: Effect on Children

Debate between Lord Faulks and Lord Morris of Aberavon

Wednesday 26th November 2014 Lords Chamber

[Lord Faulks]

The noble and learned Lord is quite right. That is a matter that is being considered, with the idea that there should be non-binding guidelines that would enable parties to have at least an idea of what the likely outcome would be on divorce. In fact, mediation is often successful. Experienced practitioners are able to predict—not with certainty but with some confidence—the outcome of cases and then advise their clients accordingly.

[Lord Morris of Aberavon (Lab)]

My Lords, is the Minister aware of the significant concerns relating to the noble Baroness’s question about the absence of legal aid and the problems arising therefrom?

[Lord Faulks]

Legal aid is no longer available, as from April 2013. Whether divorces are always helped by lawyers is, of course, open to question. The Government are not convinced that lawyers are desirable at every stage of the process. Indeed, they feel that mediation is a much more satisfactory way of resolving disputes, whereas cases often result in benefits only to the lawyers rather than to the parties involved. Legal aid is available, within scope, for mediation. Following a recent development in April 2014, mediation is available to both sides, even though one side only is eligible for the initial MIAM session and for the first session after that. We believe that mediation is a much more satisfactory way of sorting these matters out.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Lord Morris of Aberavon

Wednesday 8th January 2014 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Lord, Lord Dear. Like him, for as long as I can remember the Home Office has been bringing forward ill thought-out proposals with little regard for the consequences. Parliament scrutinises them, and they are from time to time defeated. I, like the noble Lord, thought that some lessons would have been learnt from our debate on “insulting”. I fear that from time to time the Home Office does not fulfil its purpose as the guardian of our liberties and a watchtower against the infringement of those liberties. I can go back a long time. Over the decades, Parliament has been concerned with loads of proposals of this kind which have not been thought out because they emerge from the fortress mentality of the Home Office, which imprisons so many Home Secretaries of all parties.

We have heard many objections, which I shall not repeat, to these proposals to lower the threshold and inevitably catch a much larger number of people than Parliament would want. As a lifelong criminal law practitioner, I, like the noble Lord, Lord Dear, give the highest of values to the importance of certainty, and the European Convention on Human Rights affirms the common law. When she agreed to the removal of the word “insulting” from Section 5 of the Public Order Act, the Home Secretary, informed Parliament that:

“There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions”.—[Official Report, Commons, 14/1/13; col. 642.]

I agree wholeheartedly with the need for a careful balance. This proposal, including the Government’s amendment, is the wrong side of that balance. “Harassment, alarm or distress” is well tested by the courts and in its application. “Nuisance or annoyance” is such an elastic term that it could, if it were applied widely, be used as open-ended machinery to catch all sorts of people who really should not be before the courts. Somebody with a placard saying that the end of the world is nigh, a preacher or maybe a politician on the street during an election may well be caught because they will certainly cause annoyance to someone. Are those the kinds of people that we want to haul before the courts?

The Government say that their formula is hallowed and supported by 15 years of case law and is readily understood. The reality is that it has been tested only within the narrow confines of housing-related cases, and there are limitations on who can bring such actions. Like all former constituency Members, I have experience of dealing with housing problems. I can affirm that there is sometimes a need for strong action to be taken in cases where people are stable and cannot move. You have to do something to try to remedy that situation. There may be strong arguments for a lower threshold there, but to extend that lower threshold in a situation which has been tested only in the housing section is a bridge too far.

I fear that the Government’s amendment does not help us; it merely underlines the situation and may indeed make it worse. The test to be satisfied is the balance of probabilities. I heartily disapprove of such a test, which can ultimately lead to a loss of liberty for the individual for disobedience. The court must consider and decide whether it is,

“just and convenient to grant an injunction”.

What on earth does that mean? Convenient for whom? Just is perhaps a slightly easier concept, but I wonder how far it has been tested. We are familiar with the concept of the interests of justice, but “just and convenient”? One is horrified that this kind of clause, these kinds of words, are put in a statute at all.

For the existing ASBOs, the test is, of course, the criminal one of proof beyond reasonable doubt. The alleged burden is well known and well established, and when it is suggested here that the order must be shown to be necessary, why do we have to depart from the long-hallowed practice, which has been tested?

I support, and pray in aid, what the noble Baroness, Lady Mallalieu, said when she quoted Lord Justice Sedley. I shall not repeat the words, which are still ringing in our ears; I shall merely say that, as the noble Baroness told us, he finished by saying:

“Freedom to speak … inoffensively is not worth having”.

We do not want to catch people who merely annoy, or merely cause a nuisance. There must be a higher threshold.

It was my duty, as Attorney-General, to consider prosecutions when anti-Semitic material was published. Even that legislation could be said to be an infringement of free speech, but over the decades there was material so unacceptable that it had to be dealt with firmly. Where my discretion had to be exercised, I tried to approach the decision with the greatest care. Deciding not to prosecute was probably more difficult than deciding to prosecute. There have been other limitations on free speech over the years, and when Parliament attempts to limit free speech, each and every one of those limitations must be considered with the utmost care. We must be ever vigilant not to breach the fundamental concept of free speech.

[Lord Faulks (Con)]

My Lords, I fear that I am about to break the consensus. I hope that in doing so I do not cause too much nuisance or annoyance. The amendment in the name of the noble Lord, Lord Dear, and others is rather different from the one that was before your Lordships in Committee. The amendment there sought to include a requirement that anti-social behaviour had to be established beyond reasonable doubt before an injunction was obtained. Given the evidential problems that this would have created, the amendment has sensibly been altered so that it no longer requires a criminal standard of proof before a judge can order an injunction.

I tabled an amendment that reflected the views of the Joint Committee on Human Rights, of which I was a member. We had proposed that a reasonableness requirement should be imported into the definition of anti-social behaviour. In other words, there should be an objective element, to deal with the argument that the whole concept of anti-social behaviour was too subjective. The Government’s Amendments 2 and 3, particularly Amendment 2, seemed to me entirely to meet our concerns, and in this regard I am specifically authorised by my noble friend Lord Lester, who is unable to be here today, to say that he supports the Government’s position and would oppose Amendment 1.

It is clear from the speeches that we have already heard that there is concern that the obtaining of an injunction would be too easy, and that there would be a risk of freedom of speech, freedom of association, and the freedom to indulge in activities that some people might regard as annoying, being inhibited. Is this a realistic fear? First, it must be remembered that under Clause 4 the applications can be made only by an agency—for example a local authority, a housing provider or some other such body. That is a defence against inappropriate use. It means that a victim of anti-social behaviour has to go through the filter of a hard-working agency in order to establish the fact that there is sufficient basis to seek an anti-social behaviour order—or, in this case, an IPNA. If it were to be done on the say-so of one individual deciding, perhaps unreasonably or capriciously, that someone else had been guilty of anti-social behaviour, that indeed might be objectionable. But the use of an agency provides an important filter.

At Committee stage, and even at Second Reading, the Minister referred to the guidance. The guidance is given to the front-line professionals—not, with great respect to my noble and learned friend, the courts—to make sure that they do their job correctly. That guidance, which was then in draft, is now, according to an amendment, to be made a specific statutory provision. Page 24 of the advice says that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.