Divorce, Dissolution and Separation Bill [HL]

Lord Framlingham Excerpts

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

Finally, I have a copy of the Government’s guidance for the application of the family test. I do not believe that the Government have yet published their family impact test report, and I suggest to the Minister that we do not proceed to Report stage until it has been published. Furthermore, I suggest that the report must engage directly with the research showing that, first, the main cost to children is not the divorce process, but the consequences of the divorce once concluded; secondly, that conflictless divorce is more damaging for children; thirdly, the impact on the scope for reconciliation of the radical reduction in the minimum time for divorce to just six months; and the likely increase in the divorce rate that will result from this in the long term. I beg to move.

[Lord Framlingham (Con)]

I entirely support the amendment of the noble Baroness. Does she agree that while we talk about the reasons for the mental health of young people, austerity, local councils and educational support, we rarely talk about family? We never talk about parents and we never talk about absent fathers. Does she agree that as a country we are in grave danger of completely ignoring the huge distress and permanent damage done to children every year?

[Baroness Howe of Idlicote]

I entirely and completely agree with the noble Lord.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I absolutely disagree that this is a petitioner’s charter. It is a way of bringing a failed marriage to an end. If noble Lords think about it, if one member of a couple says, “This marriage is at an end; in my view it has irretrievably broken down,” what on earth can you do about it? I am not sure whether noble Lords who have been speaking are expecting a couple who cannot get on to go on living together. If one side says that it is at an end, there is no longer a consensual marriage. Having been happily married for many, many years—

[Lord Framlingham]

Is the noble and learned Baroness actually saying that there is no possibility of that person changing their mind?

[Baroness Butler-Sloss]

Of course there are wonderful situations where reasonable couples talk it through and decide not to do it, whether for themselves or for their children. In some cases, that works and in some cases it does not. But there is no doubt that there are many, many people who seek to bring a marriage to an end because, from the point of view of that person, their marriage is no longer one that that they can endure. A lot of people leave. In the famous Owens divorce case that went to the Supreme Court, the couple are still married because five years is not up and there was no consent by the husband. The wife did not stay: she is not living with the husband who would not allow a divorce; she has moved out. There they are living separately, but not divorcing. Is that a happy situation?

The Bill is not a petitioner’s charter; it is an opportunity taken by the Government—and I congratulate them—to deal with the very important research that shows that unhappy marriages are not good for children. I do not understand how, if a couple do not get on, or if it is a case of domestic abuse—and we know how serious domestic abuse is—and the victim of the abuse wants to bring it to an end, they should not be allowed to do so. I cannot believe what is happening to the children while she—it is usually a she, but not always—remains in the house with the children and the domestic abuser. There is a great deal of evidence about that.

Fortunately, most parents, when they bring their marriage to an end, are civilised about it and about the children. The important thing about this Bill is that it is dealing with the issue of divorce and leaving the two extremely important issues—the most important issues of all—of what happens to the children and the financial outcome to be dealt with, I hope, in further legislation. The issue of children does not have to be dealt with in further legislation; the various Children Acts have dealt with that, whether they are the children of those who are married or of those who are not. Finance desperately needs changing—I suspect that the noble Baroness, Lady Shackleton, will say more about that today. It absolutely needs to be looked at, and I hope that the Government will go for a consultation paper on how we can improve legislation that dates back to as long ago as 1973, and which certainly needs an update. However, that is not a reason not to have the Bill.

Queen’s Speech

Lord Framlingham Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, in the gracious Speech there is a reference to the integrity of democracy. I will address the simple principle that the integrity of democracy in this country depends on the survival of the constitution. We have a great number of problems. We are not providing the constitution with the protection it needs, if I may say so, from Parliament. We never have time to examine these issues as a whole. We examine them piecemeal and do not appreciate that each part of the problem adds up to one problem overall, so I will pick four examples.

First, there is the obvious one. To avoid a political difficulty, Mr Cameron, with a great deal of support in Parliament, and, let us not forget, with its certain concurrence, gave us the Brexit referendum. The public were led to believe that their decision in the referendum would be binding on Parliament. They did not choose the questions that they had to answer; the questions were chosen for them. We now know what answer was given. It did not coincide with the views of the majority of people in either of our two Houses. Simply because a referendum has no real place in our constitution, the constitution did not provide and could not be expected to provide an answer to a simple question.

In such a clash, who wins? Those who support Brexit assert—it has been asserted in this Chamber time and again—that a democratic mandate was given to the people and that this overrides Parliament. The same has been frequently asserted in this House the other way around: the ancient principle that ultimate sovereignty rests with Parliament. What a constitutional shambles! It is a salutary lesson to all politicians on all sides that if you mess about with the constitution it will bite back, and it is the public and nation who suffer the consequent injury.

Secondly, as part of a deal to create a coalition Government—in other words, to deal with a political difficulty—the then Prime Minister, Deputy Prime Minister and Parliament enacted a new principle: the five-year Parliament. The result is that, although the Prime Minister of the day failed more than once to obtain parliamentary agreement to the deal she had agreed with the EU, an absolutely central part of her legislative programme, the country was deprived of the only constitutional way to resolve the problem: a general election. There should have been one, but there could not be. I am not saying that we need a general election now—I keep off general elections or referenda in the present context—but I am reflecting that what I am sure was an unintended consequence of this enactment is that an important constitutional principle was undermined. Before the constitutional change was made, did anyone give thought to how it might impact on that constitutional principle? I regret to say that I doubt it.

I come to my third point. All parties are involved in this. Until recently, the Lord Chancellor held office as a major member of the Cabinet, among other things, and as head of the judiciary, with special responsibility for safeguarding the constitution, the independence of the judiciary and the rule of law. That office has now been downgraded. It is no longer the pinnacle of a political career. In truth, it is a relatively minor ministerial appointment, in Cabinet terms. It will be remembered that this important constitutional change was simply announced to the public, before any discussion with Parliament.

So far as the constitutional responsibilities of the Lord Chancellor are concerned, we now have a Minister for the Constitution; I wonder how many Members of this House know that. However, that Minister is not a member of the Cabinet. Like the Lord Chancellor, the Minister does not have to be a lawyer. Therefore, the Minister for the Constitution is not a member of the Cabinet and, like the Lord Chancellor, he or she may never even have read the Ladybird book on the constitution. I am not forgetting the Attorney-General, but he or she is not a Cabinet member either and, in any event, the basic responsibility of the holder of that office is to give independent-minded advice to the Government when the Government are his or her client.

I would love to enter into the Prorogation question in this debate, but I will not. For today’s purposes, I should love to know whether the Minister for the Constitution was consulted in any way, shape or form about the proposal that there should be a Prorogation in September. If not, what is he or she doing? Why do we have such a role? I would argue that in the interests of our democracy and the importance of our constitutional arrangements to preserve that democracy, the Minister for the Constitution should at least be in the Cabinet. I do not expect that we will ever get back to the old-fashioned influence and responsibility of the former office of the Lord Chancellor, but this story is a very serious indication of whether we are at all bothered about the constitution. As things stand, the constitution has been relegated in the government structure and the Cabinet hierarchy. Do we think that is a good idea?

I will make one last point before this turns into a lecture. I want to highlight an issue which may not have crossed all your desks. I am very grateful to the Delegated Powers and Regulatory Reform Committee report of January 2018. Your Lordships’ House had nothing much to do with the Taxation (Cross-border Trade) Bill, as it was a supply Bill and therefore not for this House. Nevertheless, our committee reported in very troubled terms on the delegated powers in the Bill, which involved a massive transfer of power from the Commons to Ministers, with over 150 separate powers to make tax law affecting individuals and businesses, running to thousands of pages. Can we bear in mind that the essential foundation of all our constitutional arrangements and the ultimate sovereignty of Parliament depends on the principle which literally goes back to Magna Carta, Clause 12—that there should be “no scutage nor aid” without consent? That moved across the Atlantic in the principle which the Americans took from this country and summarised as “no taxation without representation”.

The report is utterly courteous, but it is damning about the powers that the Bill—now the Act—gives to the Executive. One example will do. Section 32 creates a regulation-making power, subject to not affirmative but negative procedure. It relates to regulations of the widest possible impact, including those on VAT and customs and excise duty, and of course includes all the ability to disapply primary legislation and so on. This is all on the basis of a “public notice” published by the Minister or HMRC commissioners.

The Public Law Project, a national charity, drew my attention to a new statutory instrument made in purported compliance with these powers. It also made a legal argument that the regulations were ultra vires the parent Act and threatened a judicial review. It has now been conceded that, in law, it was right. But that is a temporary victory. The Act remains in force and so do the wide regulation-making powers. We are not even aware of it. This is a return to rule by proclamation, but because nowadays we all know that we dislike that and are very aware of Henry VIII and the Statute of Proclamations, what do we do? We have a “public notice”—a notice that the Treasury, not the Commons, considers appropriate. This is taxation by proclamation. The mind boggles.

I have said this frequently before, so forgive me, but I simply want to highlight that, as Parliament, we vest vast powers in Ministers, the Treasury, HMRC or any other government department, to create laws and change laws. The constitutional framework is shifting. We are building our constitution on softer sand; not loudly or so anybody notices, but it is happening.

For those noble Lords who are disturbed, let us not forget that criticism should be directed to Parliament. It is up to us. It is very simple: if we want to guard our democracy and its integrity, we must guard our constitution against temporary political advantage or expediency. We must be alert to it and we must fight it. Our constitution is wonderfully flexible, but even a wonderfully flexible constitution can be tested to destruction. That is what we must avoid.

[Lord Framlingham (Con)]

Would the noble and learned Lord agree that in times such as this, it is so important that we rely on our tried parliamentary machinery, and that in recent times we have altered that parliamentary machinery without giving due thought to the consequences?

[Lord Judge]

My short answer is “yes”, but it would be a very long answer if I explained why and what my reservations are about my “yes”.

Northern Ireland (Executive Formation etc.) Bill

Lord Framlingham Excerpts

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

[Lord Duncan of Springbank]

My Lords, I thank all noble Lords for their brevity today. Last week was quite an odyssey, so I am very grateful for that. I listened with interest to the noble Lord, Lord Newby, who described this situation as being very much like Alice in Wonderland. It is not: it is like Through the Looking-Glass, and we have an interesting point to consider. A quote from Humpty Dumpty springs to mind:

“‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less’. ‘The question is’, said Alice, ‘whether you can make words mean so many different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master — that’s all’”.


We now find ourselves in a debate that is no longer about Northern Ireland; we have departed from that considerably. Those who say that Northern Ireland is just as affected are, of course, quite right, but this Bill is about the talks in Northern Ireland: we should not lose sight of that.

What I am most concerned about are the words of the noble Lord, Lord Empey, who says that the very fact we are discussing this in this way may have an impact upon the talks. There may be unintended consequences of words meaning what we choose them to mean here but being heard in Northern Ireland in quite a different way. The real risk we face today is that last week we passed an amendment from the noble Lord, Lord Anderson, with some majority, to the House of Commons. What has come back to us is something significantly different: we have now moved beyond the idea of enabling the House of Commons to discuss these matters, to royal proclamations. We have gone beyond the notion of where we stand, to what we think we now ought to be able to control, and all this because we are anticipating what is in the mind of one of the candidates for the leadership of my party: that is all we are doing. Again, I come back to the point that this is about Northern Ireland’s talks process. We are here because we need extra time; because the talks have made progress but not enough progress. What we have done instead is conflate the talks in Northern Ireland, which have been challenging and have not gone at the pace I would have liked, with Brexit in all its manifest glory.

I am reminded of the law we are invoking today, dating back to 1797. The noble Lord, Lord West, is not in his place, but were he here he would remind us that in 1797 Great Britain won a great naval victory. Admiral Lord Duncan, a Member of this place at one time, secured a great victory at the Battle of Camperdown. Camperdown Park in Dundee takes its name from that noble battle. But 1797 is perhaps not a precedent we should be drawing upon just now: this Bill is primarily about restoring the talks in Northern Ireland. Instead we are attaching to it the desire of this place to frustrate the potential ambitions of one of the candidates in a leadership contest. I repeat, not in any way anticipating a call from either of the candidates, that it is important to stress that it would be presumptive of either of them to declare what they would do were they to be Prime Minister, because neither of them is Prime Minister. It is important that we keep focused, as we do today, on what the Bill is about.

[Lord Framlingham (Con)]

Am I right in thinking that this amendment originally was put down in the Commons, but the Speaker in the Commons did not accept it, as he did not think that it was appropriate? Then your Lordships’ House, in its wisdom, put it down, because we do not have those kinds of rules, so anybody can put amendments down here, and that has allowed the Commons to get at it by a totally different route. If that is not a ruse, I do not know what is.

[Lord Duncan of Springbank]

My noble friend brings an important point to the discussion at this late stage.