Cohabiting: Law Commission Report

Lord Marks of Henley-on-Thames Excerpts

Tuesday 6th September 2011 Lords Chamber

Asked By

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government whether they will introduce legislation to enable qualifying cohabitants to apply for financial relief on the breakdown of their relationship, as recommended by the 2007 Law Commission report on cohabiting.

[Lord Marks of Henley-on-Thames]

My Lords, while declaring an interest as a barrister undertaking some family work, I beg leave to ask the Question standing in my name on the Order Paper.

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

My Lords, as has been confirmed in a Written Ministerial Statement, the Government do not intend to take forward the Law Commission’s recommendations for reform of the cohabitation law in this parliamentary term.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I thank the Minister for that Answer, although I confess it was disappointing. Does he nevertheless agree that it is unjust, as the slightly wider Bill of the noble Lord, Lord Lester, recognised some time ago, that cohabitants who separate, no matter how long they have lived together and even if they have children, cannot in England apply to the courts for financial relief to compensate for careers abandoned, time spent looking after children or contributions to their cohabitants’ success, and if so, is it not surely now time to implement the Law Commission’s sensible and limited scheme, which would not undermine marriage or civil partnership and which has been widely applauded by the judiciary and the family professions?

[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.

Personal Injury Lawyers

Lord Marks of Henley-on-Thames Excerpts

Thursday 7th July 2011 Lords Chamber

[Lord McNally]

Whether it is a matter for the OFT or the regulator is a balance of judgment. The noble Lord is right that the figures are showing a doubling. One of the factors that one must look at is the unbelievable increase in whiplash claims, about which I know the Association of British Insurers has held talks with my colleague Jonathan Djanogly. It is far too easy to find in even the most minor of accidents that subsequently whiplash is claimed, along with quite substantial damages. One of the weaknesses in the system is that the insurance companies find it easier to settle and pass on the costs to the customer than to fight these bogus claims in the courts.

[Lord Marks of Henley-on-Thames]

My Lords, does my noble friend agree that this practice of insurers charging solicitors referral fees for names is not only unethical and offensive but ensures that the claims are handled not by the most competent or well qualified solicitors but by those who are prepared to pay the most to buy the clients—thus effectively depriving their clients of their right to choose the best lawyers to handle their cases? Is that not another good reason for implementing Lord Justice Jackson’s recommendation for a ban on such fees?

[Lord McNally]

I agree with my noble friend. I hope that the more the public are aware of what the noble Lord described as this “dirty little secret”, the more it is in the public domain and the more that all parts of the insurance industry, including the insurance companies, solicitors and the consumers, will demand—and we will respond to that demand—to ban it.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Marks of Henley-on-Thames Excerpts

Friday 13th May 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, while I declare an interest as a practising barrister, I should add that I have never conducted a case in this precise area of the law, so while I am grateful to my noble friend for looking at me when suggesting that experts in this area of the law were due to speak, I doubt his accuracy. However, I congratulate my noble friend on bringing this Bill forward for a Second Reading and on what I must say was a masterful exposition of its terms.

As noble Lords will have appreciated, this Bill involves three distinct reforms, each of which, I would suggest, is beneficial and necessary to correct anomalies in the present law. The first reform set out in Clause 1 is that where a parent disclaims an interest in an estate, whether on intestacy, which is the alteration to the Administration of Estates Act 1925, or under a will, which is the alteration set out in Clause 2 of the Wills Act, that disclaimer does not bind his or her children. As my noble friend has explained, it achieves this by treating the disclaiming parent as having died immediately before the intestate or the testator who is, as he rightly pointed out, usually a grandparent, so that the children can inherit directly. This is a sensible and sympathetic reform. It is right that a parent can disclaim, for whatever reason, for himself or herself. However, it is wrong that that disclaimer should bind his or her children. That may cause not only loss to the children, but if they know of the disclaimer, it may also cause stress to the grandparents, who then know that their grandchildren will not inherit.

The second reform uses the same device on intestacy and under wills to ensure that the forfeiture rule does not disinherit the children of a person who forfeits his or her inheritance. There are of course clearly understandable reasons for the forfeiture rule, which is now defined by the Forfeiture Act 1982. The rule provides that someone who has killed another—often, but not always, a parent—cannot inherit from the victim’s estate either on intestacy or under the victim’s will. That applies to anyone party to the killing as well. The rule is obviously primarily intended to ensure that killers who kill to gain an inheritance are deprived of the fruits of their crime. However, the present operation of the rule also prevents the children of the killer from inheriting the victim’s estate. Since again the most predictable circumstances in which this can operate are where a son or daughter kills a parent, the effect is to cut the victim’s grandchildren out of the inheritance. That is anomalous and unfair, as the Law Commission recognised.

In DWS, the case where a son had murdered both his parents and therefore could not inherit under the forfeiture rule, which has already been cited and which was the case that led to the reference to the Law Commission, the result was that his child could not do so as well. The judgment of Lord Justice Sedley has already been read out in part, but I hope that I will be forgiven for trespassing on the time of noble Lords for a moment or two more to mention another passage of that judgment where, using very plain English, Lord Justice Sedley said:

“Most people in the situation of the two deceased parents in the present case, if told that in such an unimaginable event their son would be disqualified from inheriting and asked what they would then like to happen, would say that they would like their estate to go their grandchild”.

That is the result at which this part of the Bill is aimed.

In western society, we reject the principle that the sins of the father shall be visited upon the children from generation to generation. We are right to do so, and the Bill recognises that.

The third reform is designed to protect the interests of the children of a single parent under 18 who dies before reaching majority. At present, if someone under 18 and single has a child and inherits from a parent under an intestacy while still under 18, the child cannot inherit and the parent’s interest in the estate passes to other relatives. Again, that is plainly wrong. The Bill uses the same device to treat the parent as having predeceased the intestate, again usually a grandparent, so that the interest in the grandparent’s estate will pass from the intestate grandparent to the single parent’s child.

These are small reforms. They are, I suspect, entirely uncontroversial. They may sound complex, but they are relatively simple in their application.

The DWS case was in 2001; the Law Commission’s consultation was in 2003; and that led to the Law Commission’s report in 2005, a thoroughly commendable report. This Bill comes before this House in 2011. We must do better. We do not know how many possible heirs have been deprived in a grandparent’s estate between 2005 and 2011, but surely it cannot be right to tolerate a delay of that length in the implementation of such an uncontroversial proposal.

The Law Commission brings great expertise to these questions. It consults widely, as it did in this case. It reports in detail and generally with very well reasoned and intellectually sound recommendations. We have it in our power to pass uncontroversial Bills introduced into the House of Lords with some speed. Yet the Law Commission’s implementation log, admittedly most recently updated only in November 2010, says that the last report to be implemented was that from 2006, which led to the Coroners and Justice Act 2009. Even that delay is substantially too long. There are a number of reports since 2006 awaiting implementation. We now have an annual reporting requirement on the Law Commission. We have a protocol between the Law Commission and the Government under which procedures are governed. I simply invite the Minister to give some attention to how we may ensure that in simple and straightforward cases uncontroversial reports of the Law Commission are brought to Parliament more quickly than hitherto.

That said, commencement under the Bill is a matter for the Secretary of State. It is to be not less than three months after Royal Assent. I simply urge the Minister, once that short period, which is no doubt designed to enable lawyers to catch up with the provisions, has elapsed, to bring them into force as quickly as possible.

Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011

Lord Marks of Henley-on-Thames Excerpts

Wednesday 23rd March 2011 Grand Committee

[Lord McNally]

My Lords, these statutory instruments are necessary to support the implementation of the Family Procedure Rules 2010, which will come into force on 6 April 2011. The Family Procedure Rules are being made as required by the Courts Act 2003, which gives power for new rules to be made for all family proceedings. This means that one unified set of procedures can be applied to all types of family proceedings in all types of courts dealing with such cases. The Courts Act provides that the rule-making power is to be exercised with a view to securing that the rules are both simple and simply expressed.

The Ministry of Justice and the Family Procedure Rule Committee—the body established to make the rules—have developed a set of rules to cover all family proceedings in the High Court, the county court and the family proceedings court. The new rules will bring a number of benefits, including modernisation of some language, a single unified code of practice for all family courts and, where appropriate, harmonisation of the procedure in family proceedings with the provisions of the Civil Procedure Rules. In fact, the approach followed in the Family Procedure Rules is already being applied to adoption proceedings. The Family Procedure (Adoption) Rules 2005 used the new approach to support those proceedings. When the new Family Procedure Rules come into force on 6 April 2011, they will help fulfil the Government’s intention that the new approach should be extended to all family proceedings.

The two instruments we are considering today are critical to the operation of the new Family Procedure Rules. They ensure that the new rules will operate as intended, and that other enactments will refer appropriately to those rules. I hope that the Committee will support their approval. I will take each instrument in turn.

The Family Procedure (Modification of Enactments) Order 2011 makes amendments to other legislation in consequence of the coming into force of the Family Procedure Rules. For example, Article 6(b) of the order inserts a new subsection (3) into Section 54 of the Magistrates’ Courts Act 1980. That new subsection provides:

“In family proceedings a magistrates’ court may stay the whole or part of any proceedings or order either generally or until a specified date or event.”

This gives magistrates' courts the same power to stay—in effect, halt—proceedings that the High Court and county courts already have. As a result, the procedural rules referring to such stays in the Family Procedure Rules can apply to all courts dealing with family proceedings. The order also amends various enactments which currently refer to rules which are to be superseded by the Family Procedure Rules 2010. This means that, from 6 April 2011, those enactments will refer to the 2010 Rules or to specific provisions within them.

The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011—the destination of appeals order, as it is known to its friends—makes various minor amendments to the routes of appeal. It provides that appeals from decisions made by a district judge of a county court will lie to a judge of that court and that appeals from decisions made by a district judge of the High Court, a district judge of the principal registry of the Family Division or a costs judge will lie to a judge of the High Court. It puts in place provisions in existing rules regarding the destination of appeals from a district judge which would otherwise be lost as those rules are replaced by the Family Procedure Rules. The new destination of appeals order consolidates these provisions with the provisions from an existing destination of appeals order, so that the routes of appeal in family proceedings are dealt with in one place. This is in line with our policy of simplifying the way in which rules for family proceedings are presented. Part 30, “Appeals”, of the practice direction that supplements the Family Procedure Rules sets out all the routes of appeal and the practice steps that people will need to take, which will provide considerable assistance to a person who wants to appeal against a court’s decision.

These orders have already been debated in the other place and have been approved. Members were generally supportive of the Family Procedure Rules and approved these provisions which support the implementation of those rules. The two statutory instruments are important to make it possible for the new Family Procedure Rules to operate as intended, and to ensure that other legislation is properly amended in consequence of the coming into force of those rules. The rules will bring considerable benefits to people involved in family proceedings. I hope that noble Lords will approve these two draft orders so that the benefits of the new rules can be fully achieved.

[Lord Marks of Henley-on-Thames]

My Lords, we plainly welcome the move towards uniformity of procedures among the High Court, the county court and the magistrates’ court and the move to a single code of practice and harmonisation where possible, although it is not always completely possible, between family proceedings and other civil proceedings under the CPR. I particularly welcome the provisions that will give magistrates’ courts the power to stay proceedings and to make orders for costs in a way that they have not been able to do so in the past.

Also of considerable importance is the move to give magistrates’ courts the power to make an order of disclosure against non-parties. The lack of such a provision for the magistrates’ courts has been, and is, capable of giving rise to delay. When witnesses turn up, the documents are not in court and there has to be an adjournment in order for them to be obtained. For that provision to be effective, it should be borne in mind that the burden is on solicitors and litigants to ensure that they use the order and the provision by applying for orders for the production of documents in good time so that, when matters come for a hearing, all the documents are before the court.

The destination of appeals order is also extremely helpful in dividing appeals from the junior judges in the High Court to High Court judges from appeals from junior judges in the county courts to county court judges. However, one further point that I would make, which is a matter for listing officers rather than for the legislation, is that those of us who practise in family proceedings will well know that we have extremely experienced district judges at both levels, but we also have a number of rather less experienced deputy High Court judges and deputy county circuit judges sitting as circuit judges. It is a matter of importance that we do not list appeals from very experienced district judges before very much less experienced deputies at the senior level. That is not a point for the order, but it is a point of some importance in practice.

Justice: Judicial Appointments

Lord Marks of Henley-on-Thames Excerpts

Thursday 17th March 2011 Lords Chamber

Asked by

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what progress is being made in improving gender and ethnic diversity in judicial appointments.

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

My Lords, in February 2010, the independent advisory panel on judicial diversity published its report, which detailed a number of recommendations to deliver speedier and sustained progress to a more diverse judiciary without diminishing appointments on merit. In response, the judicial diversity taskforce was established to oversee the assessment and implementation of those recommendations. The taskforce met last Monday to review what has been achieved to date, and will publish its report on progress shortly.

[Lord Marks of Henley-on-Thames]

My Lords, I thank my noble friend for his helpful Answer, but given the lamentably low number of women judges and the virtual absence of ethnic minority judges among our senior judiciary, which bears a very poor comparison with those of other European and other common law jurisdictions, does he agree that it is time for urgent and effective action and that all necessary steps should be taken to ensure that the recommendations of the taskforce that he mentioned, set up as a result of the recommendations of the advisory panel chaired last year by my noble friend Lady Neuberger, are implemented in full and without delay?

[Lord McNally]

My noble friend makes a correct assessment of the figures for judicial appointments. The meeting last Monday was my first with the diversity group, and I made it very clear that as far as I am concerned, the concept of trickle-up is not a response to the diversity problem that we face in the judiciary.