Age of Criminal Responsibility

Lord Meston Excerpts

Wednesday 21st January 2026 Lords Chamber

[Baroness Levitt (Lab)]

With the greatest respect to my noble friend, that is quite a lot of questions in one. I can confirm that the UK complies with the UN Convention on the Rights of the Child. Making international comparisons in this area can be imprecise, and some of our international partners are lowering their age of criminal responsibility. For example, Sweden is proposing to reduce its from 15 in response to an increase in gangs recruiting children to commit serious offences precisely because they know they cannot be prosecuted. We make every effort to keep children out of the criminal justice system unless it is absolutely unavoidable.

[Lord Meston (CB)]

My Lords, have the Government made any assessment of the carefully considered change enacted in Scotland in 2019, when the minimum age was raised to 12 with the intention of protecting younger children from earlier criminalisation and exposure to the criminal justice system? Does the Scottish experience not increase confidence for similar reform in England and Wales?

[Baroness Levitt (Lab)]

My Lords, there are certain cases where the offending is so serious that a criminal justice response is required. For example, everybody in your Lordships’ House will remember the case of the killing of James Bulger, in which two 10 year-olds were involved. The important thing is that every effort is made to keep children out of the criminal justice system unless it is absolutely necessary to monitor them and to contain them in the public interest.

Terminally Ill Adults (End of Life) Bill

Lord Meston Excerpts

Committee stage
Friday 9th January 2026 Lords Chamber

[Lord Meston (CB)]

My Lords, as the noble and learned Lord, Lord Garnier, said, we really have to make a choice between court-based decisions and the panel, as the Bill provides for in its present form. There is merit in both. There is a strong case for the use of the expertise and skills of the Family Division of the High Court and designated family judges—I should declare that, until quite recently, I was one of them. However, as the noble and learned Lord said, the courts will be faced with an initial rush of applications. That tends to happen with any significant change in the law, and it is likely to happen in this situation. It will take some time for the procedures to settle down, whether they are in front of a panel or the court. As the noble Baroness, Lady Berridge, said, we require some realistic assessment of the likely additional workload on the judiciary and the court system. The judiciary is of course well used to hard work and working under pressure, finding time when it is required. It should also be borne in mind that not all these cases will be complex or contested. In fairness to what was said by the noble Lord, Lord Shinkwin, there is no question of cases being nodded through or rubber-stamped, whether by the court or the panel. Family judges are used to prioritising cases when urgency is required, and they do so by underpinning their decisions with focused and robust case management.

The noble Baroness, Lady Berridge, is right, and I endorse what she said: judges are real people. I therefore endorse her call for consultation with the current President of the Family Division. I also suggest that one way through this might be an enhanced role for the independent advocate provided for in Clause 22, who will assume the role that guardians have in more conventional family cases—representing the interests of the person, whether a child or an adult, at the heart of the litigation.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I want to draw the implications for Northern Ireland into the conversation on the amendments from the noble Lord, Lord Carlile. Clearly, Northern Ireland has its own family court system, which, incidentally, has its own issues and backlog. However, that does not mean that people in Northern Ireland are entirely unaffected by court decisions in England and Wales. Each year, the family court for England and Wales hears cases involving parties on both sides of the Irish Sea, perhaps most notably applications for a child arrangements order, where one parent is living in England and the other in Northern Ireland. In such cases, delays in the English court can result in parents and children in Northern Ireland being left in limbo, awaiting decisions, with all the connected anxiety and parental conflict that goes with it. I simply present that as an example of the sort of impacts that ought to be considered, if we want to make any claim to be engaging in serious policy work.

There is no doubt that there will be even more acute impacts in England and Wales, where the strain on the court will be more direct. Catherine Atkinson MP in the other place reminded Members that:

“More than two thirds of care proceedings involving the most vulnerable children in our society cannot be completed within six months”.—[Official Report, Commons, 29/11/24; col. 1030.]


If that is the case at the moment, what can we expect if family court judges are increasingly swamped with assisted suicide cases instead?

The estimates from the former head of the Family Division, Sir James Munby, suggested that at least 34,000 hours of judicial involvement will be required each year for a proposal such as this to work, whereas the 20 judges in the Family Division of the High Court currently sit for only a total of 19,000 hours between them across all cases. Clearly, that is not something that we can ignore, and it is quite apparent that the bulk of the work will fall on circuit judges.

In saying that, I stress that I am not without sympathy for many of the concerns raised by the noble Lord, Lord Carlile. In the words of the Medical Defence Union, the current approach leaves doctors “unduly exposed”, making assessments on coercion, capacity and—as we heard a few weeks ago— residency that they feel unqualified to make. In my opinion, the Bill, as drafted, is not fit for purpose.

I have to say that I am equally concerned about the prospect of attempting to legislate on the fly, which is what we seem to be doing. What level of resource would the family court proposal require? How many additional circuit judges will be designated family judges? What impact would this have on the principle that, ideally, judges should be specialists in the area in which they are engaged? Incidentally, I believe the noble and learned Lord, Lord Falconer, has previously supported that principle. What would be the cost for an already overstretched court system?

We have been left to do policy in the dark. As former Lord Chief Justice the noble and learned Lord, Lord Thomas, warned in November,

“no one has grappled with the detail”

of the legislation’s impact on family courts. The legislative hokey-cokey on the issue of judicial involvement, which goes back much further than this Bill, has certainly not helped. It gives the impression that no one has worked out how to resolve the dilemma at the heart of the Bill—that the necessary level of safeguarding that such a Bill needs ultimately renders it unworkable. I know that the noble Lord, Lord Pannick, has said that this applies only to those who have six months to live, but no one can state categorically that a person has only six months to live. As a minister in the Church for 50 years, I have known numerous people who have been told that they have only six months to live, but they lived for years after that. Therefore, while it has been suggested that this applies only to those who have six months to live, we do not know that, and we cannot give that assurance.

In 2012, the Commission on Assisted Dying, chaired by the noble and learned Lord, Lord Falconer, considered several models for approval of assisted suicide. Those included: a medical decision-making model where doctors are solely responsible for decision-making; an NGO or volunteer-based organisation model, as they have in Switzerland or—to a certain extent—in Oregon; a tribunal model; and a court model, with the question posed whether the court should be the family court, as in the amendment, or another, such as the Court Of Protection. In 2012, the noble and learned Lord, Lord Falconer, firmly backed the medical-only model, as his report reads:

“Our assessment of the body of evidence overall has convinced us that it is health and social care professionals who have the knowledge, skills and training structures that would be needed to implement a safeguarded system to permit assisted dying in the UK. Therefore, we do not consider that it would be necessary or desirable to involve a tribunal or other legal body in decision-making”.


However, just two years later, in Committee on the Assisted Dying Bill, the noble and learned Lord made an about-turn—the court model had become the silver bullet. He told the House that

“I do not think that one can leave it to doctors alone, in particular to form two views: first, on whether it is the voluntary, clear, settled and informed wish that somebody wishes to end their own life; and, secondly, whether they have the capacity”.

In fact, he was such a convert that he made it clear in that debate that it needed to be

“the highest-quality judges to decide these issues”,—[Official Report, 7/11/14; cols. 1880-81.]

and the role for the Family Division was added into the Bill.

That position briefly persisted when the noble and learned Lord’s co-sponsor introduced the Bill in the other place, announcing it as the safest in the world due to the High Court element. But then that idea fell apart too, and the tribunal-style model, combining medical and legal elements, was adopted instead, on the claim that it would be “more robust”. At first, I thought that this was the plan all along because Dignity in Dying—the real sponsor behind the Bill—indicated this as its preferred option to the Commission on Assisted Dying in 2012. But then I read a line in the commission’s report where Dignity in Dying said:

“If there was going to be a tribunal then you would expect it to be part of the tribunal service”,


which of course the panel process currently in the Bill does not do.

This flip-flopping does not inspire confidence, and I certainly think that we should bear this in mind if the noble and learned Lord, Lord Falconer, indicates shortly that he suddenly once again thinks that the High Court judge is the way to go. It is incumbent on us to consider the reason that the High Court judge was scrapped in the Commons—again, not because I think that it was better but because it raises those questions of workability.

When interviewed by the Select Committee, Ms Leadbeater in the other place claimed that the removal of the High Court was to ensure a more “patient-centred approach”. But I am not sure that this tells the full story. In February, the Guardian reported that senior officials in the Ministry of Justice were understood to have significant concerns about the sign-off from a High Court judge in the original Bill, given lengthy backlogs in the family court. Perhaps the Minister would like to confirm these reports when she replies.

To conclude, it is important to stress that decisions around Amendment 120 are not peripheral but a central policy consideration that touches the very heart of the Bill. Is the Bill about introducing a new so-called treatment option to be overseen principally by the healthcare professionals, like other end-of-life choices, or is it more about giving the courts extraordinary discretionary power to resolve concerns about the operation of the Suicide Act in extreme cases? It is astonishing that at this late stage in the process, with the Bill having passed through the Commons, we have still not resolved this important point of principle.

Victims and Courts Bill

Lord Meston Excerpts

2nd reading
Tuesday 16th December 2025 Lords Chamber

[Lord Meston (CB)]

My Lords, I join in welcoming the Bill. The Long Title states that it is to

“make provision about the experience of victims within the criminal justice system”.

In that context, it is strange to be considering such a Bill in the absence of Lady Newlove. A good test of what can be achieved by the Bill will be whether she would have approved of it. I am sure we all hope that our final product would meet with her approval.

I will focus on two topics: the power to order an offender to attend court for sentencing and the proposed restrictions on parental responsibility. The problem of convicted criminals in serious cases who refuse to attend court for a sentencing hearing is relatively new, but regrettably it has not gone away, and the Government are now right to deal with it by involving deterrent measures.

Sentencing judges are well used to dealing with attention-seeking misbehaviour by some offenders, but the Bill gives a clearer framework for the powers available to the judge, not just when the offender fails or refuses to attend, but when he does attend and interrupts the hearing or otherwise misbehaves and has to be removed.

A sentencing hearing is important, because it is when the offender is made publicly accountable for his criminal action and has to confront the disapproval of society for what he has done, and to hear the evidence of the impact on the victim and the victim’s family. A refusal to attend adds insult to injury and highlights the lack of any remorse. It was in one such case rightly described by the judge as “spineless”.

Clearly, when a very long sentence is inevitable, a relatively short additional sentence may not persuade such a defendant with little or nothing to lose to co-operate or to behave. There is a limit to what can be expected of prison or custody officers in manhandling a resistant offender into the dock. There can in those cases be a risk of making a bad situation look worse. However, clarification in the Bill that reasonable force may be used if necessary and proportionate is welcome.

The important point of these new provisions is that victims can be reassured that they will be heard and that offenders will know that if they think about not attending there will be consequences, not just in the longer term with a further sentence that may have little or no real meaning, but in the short term with the new prison sanctions order.

Turning to Clauses 3 and 4, it is clearly right and necessary to introduce an effective mechanism to curtail any exercise of parental responsibility by fathers who commit sexual offences against a child. That must mean a sexual offence against any child, not just a child for whom the man may have had parental responsibility: that is what I now understand the Bill to intend, as the Minister has been good enough to confirm. I welcome that confirmation, because paragraph 176 of the Explanatory Notes accompanying the Bill suggests that it might still be restricted to offences against the children for whom the man holds parental responsibility. I understand that not to be correct.

I suspect that none of us has any reservations about the essential principles underlying these proposals. The chair of the Bar Council has said:

“Parental responsibility should not be regarded as an inalienable right which is retained regardless of parental behaviour and actions … Restricting parental responsibility for perpetrators of child sex offences is a strong protective measure for those left behind after acts of violence and abuse within a family”.


I suggest that this should also apply to any such serious sexual acts committed outside the family context which are wholly incompatible with the retention of parental responsibility.

Without getting too involved in the details of the current law, it is important to appreciate that not all fathers automatically have parental responsibility. If not married to the mother, a father would acquire it only with her agreement for him to be registered and named as the father on the birth certificate, or by later agreement or order. It is also important to appreciate that the family court can and does already terminate, suspend or restrict parental responsibility when there is a risk of significant harm to the child or siblings, and when the father’s conduct and retention of parental responsibility have become an intolerable concern to the mother. But there have been cases in which obstructive fathers, out of malice or lack of insight or empathy, force a mother into protracted and costly litigation to protect the children and herself, as their mother, and to remove the need for her to involve the father in decision-making about their future care and upbringing.

At least, in the cases covered by this Bill, a more summary mechanism will be made available. The Bill builds on Section 18 of the 2024 Act—Jade’s law, which is not yet in force. It will prevent the exercise of parental responsibility but without actually altogether terminating parental responsibility. Clause 3 requires a sentence of at least four years before it operates. That leaves the cases of those with lesser sentences remaining to be dealt with in the family court, as now. I accept that there is a need to draw lines so as to make best use of the resources, expertise and powers of both courts without overburdening either, but where lines are drawn may need more exploration during the passage of the Bill.

I will briefly raise some other procedural and evidential points. First, has consideration been given to any mechanism to restrict applications for, or the exercise of, parental responsibility during what is now likely to be a long period between the initial charge and the final sentencing? Is that to be left to bail conditions or to the family court on a separate application by the mother or a local authority, or could the Crown Court now be given power to make an interim order?

Secondly, assuming that the Crown Court will be making orders covering all children for whom the defendant has parental responsibility without later review by the family court, how will the Crown Court get reliable information about who those children are and about their status and circumstances, particularly if the defendant is unwilling or unable to assist and the court has no access to existing court orders concerning those children? Regrettably, some men have selective memories about their offspring. How will the mothers of those children be identified, located and then informed about what the Crown Court is doing or may have done?

Finally, as to children who have been or may have been conceived as a result of rape, it may be difficult at the time of sentencing to ascertain whether the child was in fact so conceived, if there was a pre-existing relationship between the couple continuing at least until the rape. The difficulty no doubt already exists if the Criminal Court has to decide whether the mother’s enforced pregnancy was an aggravating factor for sentencing purposes in rape cases.

Broadly, however, in cases of uncertainty, I welcome the measures in the new Section 10F. This requires the Crown Court to notify the local authority, which will have to assess the likely co-operation or otherwise of the mother and any possible need for orders from the family court. This may require further fact-finding. In this regard, I consider that the Bill goes as far as it needs to in such situations. Subject to those comments, most of the Bill’s provisions are welcome.

Financial Provision on Divorce

Lord Meston Excerpts

Monday 10th November 2025 Lords Chamber

[Lord Meston (CB)]

My Lords, I join in thanking the noble Baroness, Lady Deech, for raising this question for further debate. The Law Commission’s thorough and balanced scoping report asks if it is agreed that the law needs reform and which of the four suggested models for reform should be preferred by the Government. Importantly, it asks the Government to consider what underpinning principles should appear in reforming legislation.

The Law Commission made it clear that future work in this area will require a number of significant policy decisions. Having worked since the early 1970s as a barrister, then until recently as a judge, dealing with matrimonial and other family cases, I hope that I understand the strengths and weaknesses of existing law and practice. When I started, the law, introduced in 1970 and reproduced in 1973, moved the focus of cases away from largely sterile disputes over legal ownership of property towards the realities of the needs of the parties and their children. The Act of 1984 added the aim of achieving financial independence and an immediate or deferred clean break. Case law has emphasised the objective of a fair outcome. Present company, I hope, will forgive me for saying that case law has not been assisted with its concept of matrimonialisation, which has perhaps moved the clock back, and arguments about it should be confined to a luxury in bigger money cases.

Whatever reform option is selected, the need will be for law that gives clarity, predictability and some flexibility and can address any significant financial disadvantage and disparity. While trying to avoid uncritical attachment to what is familiar to me, I suggest that problems with the operation of the existing law have in some respects been overstated. Much of the current law has evolved through authoritative decisions in big-money cases involving ultra-high-net-worth individuals, which have little similarity to the average case, with far less cloth to be cut, trying to create two households out of one mortgaged family home and stretched incomes and borrowing capacity. Whatever option is selected—I prefer the so-called codification plus model, with principles clearly stated on the face of the statute, maintaining the ability of judges to exercise discretion—I think the time has come for a decision to be made.

I wish to make the following final points. First, leaving some level of informed discretion to the court should not be seen as a bad or undesirable thing. Achieving greater certainty should not require restrictive rigidity. If anything, family law practitioners know that one size does not fit all. Secondly, any new law should highlight the importance of pensions and reform should address the question of accessible and affordable valuation of pensions. Thirdly, the temptation to allow for greater emphasis on domestic abuse as relevant conduct should be resisted, except in extreme cases. If disputed, allegations of domestic abuse have to be tried, and the cost to the parties and the court time taken will be greatly increased. Even when established, such abuse is hard to quantify in monetary terms, unless serious enough to have had a long-term financial consequence. Fourthly, if there is to be further delay, as has been said, the Government can at least now legislate for prenuptial agreements.

Finally, I suggest that the views of experienced specialist practitioners at the coalface should not be disregarded. They have to operate any changed legislative cogs, perhaps consoled by the advice of the late Joseph Jackson, doyen of matrimonial law, that there is always at least 10 years’ work in any new Act of Parliament.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Meston Excerpts

Report stage
Wednesday 4th June 2025 Lords Chamber

[Lord Garnier (Con)]

My Lords, like my noble friend Lord Hailsham, I begin my remarks by apologising for not having been able to attend the earlier stages of the Bill. However, I am happy to say that, like my noble friend, I have read the report and I am reasonably up to date with the way in which the debates have gone.

I am very much attracted by what my noble friend said in support of his Amendment 1, and I speak from a position of some—but not a great deal—of experience as a sentencer. I was a recorder of the Crown Court for 15 years, from 1998 until about 2015, with time off when serving in the Government. One of the things I found most useful in dealing with what I thought was the most difficult task as a judge was the advice and help of the sentencing report.

If you are a High Court judge, you tend, if you are dealing with criminal cases, to deal only with life sentence cases. The job that you have to do when sentencing is to consider the tariff within the life sentence. This is difficult but not, perhaps, as complicated as having to deal with the multiplicity of sentences involved in road traffic cases, drug cases, dishonest acquisition cases, and so on, and obviously cases to do with assault and other forms of violence.

As a recorder, as a Crown Court judge and as a magistrate—I see the Minister, the noble Lord, Lord Ponsonby, is in his place—one is dealing with, in a sense, a much more complicated sentencing picture. The assistance of sentencing reports is huge and valuable. Anything that the Bill can do to make the life of the sentencer easier and to enable him or her to produce a juster sentence is to be welcomed, and the suggestion of my noble friend Lord Hailsham through his Amendment 1 provides the sort of assistance that I would very much have wished to have had as a low-level sentencer. It is perhaps more neatly encompassed in the suggestion through Amendment 2, tabled by the noble Lord, Lord Marks.

Either way, both amendments appear to me to be trying to undo the political mess that has caused the arrival of the Bill. I understand the politics of all this; I am sure we all do. It is a thoroughly unnecessary Bill, one that the Government allowed themselves to be backed into a corner about. It may well be that they regret it. However, given that we have got the Bill, I invite the Government to pay close attention to the speech of my noble friend and to listen very carefully to my chambers colleague, the noble Lord, Lord Marks, when he comes to speak to Amendment 2.

[Lord Meston (CB)]

My Lords, I have not spoken before on the Bill, and frankly, like others, I was rather astonished that this was a topic requiring legislation at all. Like the noble and learned Lord, I have been what you would probably call a low-level sentencer for a number of years.

I will make two points. First, in recent years, in my experience, the quality of pre-sentence reports has greatly improved: from what were sometimes formulaic and feeble reports to nowadays, in my more recent experience, really providing an insight into the defendant’s background, life and attitudes, and conveying realistic recommendations. To that extent, they must always be regarded as helpful, greatly improving on, as the noble Viscount described, representations made by the legal representatives after a few moments in the cells or in the court corridor before coming into court.

Secondly, this experience has led me to adopt the attitude that, whenever in doubt, a report should be directed. I, for one, never regretted directing a report. For that reason, I certainly support Amendments 5 and 6. In other words, pre-sentence reports should, wherever possible and sensible, be the norm.

[Lord Carter of Haslemere (CB)]

My Lords, I have not previously spoken on the substance of the Bill before, either, but I am very attracted by the noble Viscount’s amendment, for the reasons that he and the noble and learned Lord, Lord Garnier, have set out.

I think the Government have accepted that their Bill is not intended to prevent sentencers inviting pre-sentence reports in the case of personal characteristics. They are getting at the guidelines that should not take account of personal characteristics. However, there is a danger that, as the Bill stands, sentencers might be deterred slightly from seeking pre-sentence reports in the case of personal characteristics, even though, were the Bill not on the statute book, they would otherwise have done so.

The amendment of the noble Viscount, Lord Hailsham, sorts that out. It makes it absolutely clear that there is nothing to stop the sentencer seeking a pre-sentence report in the case of personal characteristics, if that is desirable for the purposes of the particular case. That is exactly what the legal position should be.

So, I strongly urge the Government to give close attention to Amendment 1 and indeed the amendment in the name of the noble Lord, Lord Marks, which, as has been said, seeks to achieve the same thing. This is consistent with what the Government think their Bill allows for, but there is a danger that it might not have the effect they seek, whereas the noble Viscount’s amendment would clarify the position in what everyone must agree is the right way.

Criminal Cases Review Commission

Lord Meston Excerpts

Tuesday 20th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I will have to write to my noble friend; I do not have those figures in my pack. As I said, the CCRC has a target of completing case reviews in about 85% of cases within 12 months, which it is meeting in 10 months out of 12. I cannot answer my noble friend’s question with an exact figure, but I will write to her.

[Lord Meston (CB)]

My Lords, do the Government agree that the provisional proposals for reform of the tests and processes of the CCRC, indicated recently by the Law Commission, have a lot to commend them? No doubt the Government will say that we should wait for the Law Commission’s final report next year, but meanwhile has any assessment been made of the implications of likely reforms for applications that have previously been rejected by the review commission, which may well require reconsideration? Has any assessment been made of the implications for the workload of the Court of Appeal?

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord raises a number of very important questions, which will, of course, be answered by the interim chair when that name is announced. The workload of the Court of Appeal is an important factor in this, and the tests for how those cases are referred up to the Court of Appeal are important as well. As I said earlier, the answer to the question lies in both the Law Commission report and the work of the new interim chair.

Crown Court Criminal Case Backlog

Lord Meston Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Meston (CB)]

My Lords, the essential causes of the backlog we are debating are clear enough. They are to be found in prevalent austerity measures, underfunding of legal aid, sales of the court estate and underinvestment in the remainder—and what has been described as the unmitigated disaster of the privatisation of the Probation Service. A bad situation was made worse for the courts and their users by the pandemic, some of which I spent in a subterranean Nightingale court. The response of all court staff to the pandemic was impressive and should be acknowledged.

The effects of the backlog are also clear, particularly for victims. The courts have to prioritise some types of case, inevitably to the disadvantage of others. Delays impair the court process: evidence gets mislaid, witnesses disappear or disengage, and juries require specific necessary directions on the effect of passing time on memories of events and on the availability and reliability of witnesses. Of particular concern to family judges are cases in which there are parallel proceedings in a criminal and family court. It used to be possible to defer hearing a family case likely to be determined by the outcome of a criminal case. Delays now mean that that simply cannot be done. The situation is now reversed, with charging decisions often awaiting the decision of a fact-finding hearing in the family court. That produces yet further delay in the criminal case and prolonged uncertainty for the family, and the children in particular.

In the short term, clearly courts and the court estate should be worked to full capacity without artificial and frustrating restrictions on permitted sitting days. That would allow for the use of trial and sentencing blitzes, and more use of part-time judges, including those authorised to sit in retirement. However, I agree with the noble and learned Lord, Lord Bellamy, that it is really time to end the fiction that listing is a judicial function.

Longer term, consideration should be given to the Bar Council proposal requiring Crown Court trials to start within six months of the first hearing. In time, this will prove no more unrealistic than the 26 weeks for disposal of public law children’s cases in the family court, to which legal and other professionals have responded resolutely. That should be underpinned by rigorous case management by procedural judges, relieving the full-time judiciary—particularly in smaller court centres—from work which cuts into and holds up listed and ongoing trials.

Time does not permit the consideration of the longer-term suggested solutions eroding jury trials, but we should recall the Lammy review and research that concluded that the one stage in the criminal justice system at which minority groups do not face disproportionality is when a jury reaches a verdict.

Prenuptial Agreements

Lord Meston Excerpts

Thursday 27th February 2025 Lords Chamber

[Lord Meston (CB)]

My Lords, I have practised in family law as a barrister for many years and latterly have worked as a family judge. I do not find it altogether easy to recognise the picture of how the law now works, as portrayed by the noble Baroness, Lady Deech, but never mind; that is a debate for another day.

Given that the median duration of marriages ending in divorce is now just under 13 years, it is a good time to assess the effect on law and practice of the important decision of the Supreme Court in Radmacher 15 years ago. Typically, the parties to prenuptial agreements may legitimately wish to ring-fence inherited or previously acquired assets or, as the noble Baroness, Lady Shackleton, said, wish to ensure provision for children of previous relationships. Not surprisingly, agreements are now said to be popular with the farming community, with their particularly illiquid assets. All who enter into such agreements will naturally wish to avoid the costs and hazards of litigation.

The perception and use of prenuptial agreements have developed remarkably. They were felt by some to devalue a view of marriage for life, distastefully requiring the involvement of lawyers in what was supposed to be the happy period leading up to the marriage ceremony. They used to be seen as required only by wealthy older men after several unsuccessful trips around the matrimonial course, who wanted to protect themselves in case the latest candidate for matrimony turned out to be a gold-digger—at least, from the man’s point of view. They were also seen as disadvantaging women, who were asked to waive some or all of what they might expect to receive if the marriage later ended in divorce, and as allowing parties to contract out of the responsibility to meet each other’s needs.

In a classic American case, the very wealthy husband, 25 years older than the wife, presented her with an agreement only a few hours before the marriage ceremony, and threatened to cancel the marriage if she did not sign. She had sparse knowledge of his finances and did not have any independent advice, only a session with a lawyer selected by the husband. That lawyer, to his credit, advised her not to sign. However, in spite of that advice, she signed the agreement and the marriage went ahead. Thirteen years and two children later, there was a divorce and costly litigation across two state jurisdictions.

The decision of the Supreme Court in Radmacher has reduced the prospect of such a scenario in the United Kingdom. Rushed agreements with limited legal advice and limited disclosure, particularly if they appear unfair and very different from what the court might otherwise order, cannot expect to be upheld, and in reality can be worse than having no agreement at all.

The Law Commission’s later well-researched and reasoned recommendations in 2014 included the crucial requirements for there to be independent legal advice for each party and sufficient financial disclosure, and for the agreement to be completed at least 28 days before the wedding. Although those recommendations are not yet in statute, they undoubtedly already reflect current good practice and have helped to make agreements more popular and effective.

I noted with some surprise the doubt expressed by the noble Lord, Lord Faulks, questioning the need for a cooling-off period of 28 days. However, there is a need to protect those who get married in a fever, to quote the old song.

The remaining area of controversy concerns whether and in what circumstances the court might go beyond an agreement, freely and properly entered into, that would otherwise be expected to be binding upon the parties. There is a clear distinction between agreements unfair from the outset and agreements that may later operate unfairly if access to legal remedies is severely restricted. It was recommended by the commission that the court’s jurisdiction to make provision for needs should not be ousted by qualifying agreements, so that no party would be left unjustifiably without resources following separation. To that extent, the mere fact of an agreement cannot make fair what may otherwise appear or become particularly unfair.

The Law Commission said there was little evidence of how agreements operate in practice and that it would be helpful to have more relevant information about how popular they are, how they are treated in litigation and how many cases settle on the basis of agreements. I suggest that it would also be helpful to have reliable overall evidence of the difference between the outcomes that prenups produce and the outcomes that the court would otherwise direct. I suspect that the majority of prenups are not seen by the courts because the couples involved manage to stay married and leave the agreement in a drawer, and that many other agreements are seen by the courts only because the parties simply wish to comply with it by submitting it in support of an agreed order, to reflect what has been agreed.

It is likely that those prenups that are challenged, at least by those with enough money to do so, come before the court only because of inadequate drafting or unforeseen changes in circumstances, or because of an irresistible dispute about jurisdiction if the agreement was made outside England and Wales. However, I seriously question the number of challenges that was suggested by the noble Baroness, Lady Deech, but statistics will prove one or other of us right or wrong.

Carefully prepared agreements, although unromantic and transactional, can provide couples with a sense of security and certainty, reducing some of the acrimony and expense in the event of later permanent separation, and reducing the temptation to divert or conceal assets ahead of a divorce. Specialist legal practitioners can now help parties to achieve fair, realistic and civilised agreements, capable of later revision, that the courts will uphold. Indeed, if in doubt, the parties can now ask the court for an early decision as to whether the agreement is determinative of their financial affairs.

Nevertheless, there remain parties who sign agreements and marry, having ignored, rejected or not understood good legal advice that they could or would be better off marrying without the agreement. The Law Commission described the argument for autonomy as strong but as raising concerns that some may still enter an agreement unwillingly or with unrealistic optimism. The chances of that are not likely to be much diminished by any legislation. As the right reverend Prelate suggested, contractual autonomy has to be seen in the peculiarly emotional context of these agreements.

It is clearly premature to anticipate a final report by the Law Commission on the much wider question of whether and how substantial reform of financial remedies legislation should be undertaken, and any decision by the Government on that. Paragraph 7.98 of the commission’s recent scoping report suggests that, if there is not to be major change, its recommendations relating to agreements could be implemented straightaway, but, if major changes are expected, the recommendations about agreements will need to be reconsidered. We should be grateful to the noble Baroness for making us think hard about that.

If there are major wholesale changes, many existing agreements could well need postnuptial revision and renegotiation. An important component of any good advice is what a court might do in the absence of a prenup to protect the economically weaker party. Until it is clear what the law is to be in the foreseeable future, it will be hard to give satisfactory advice to those who need it about what might happen at a much later date.

If reforms are undertaken piecemeal, with prenups legislated for in advance of substantive law reforms, there is a risk that some agreements based on the substantive law in force when the agreement was reached would become unfair, and so would either produce an unfair result or have to be renegotiated, if the parties were willing to do so, failing which they might have to go to court. However, I accept that, to some extent, that risk exists irrespective of whether the law relating to prenups is reformed as the noble Baroness has proposed, and irrespective of changes that may be further down the track

Accordingly, meanwhile, until clarity is reached and a decision is made about how we should proceed, I suggest that the approach that has developed following Radmacher now works well, and that the family courts can and should be trusted to continue to deal with individual cases as required.

Humanist Weddings

Lord Meston Excerpts

Monday 3rd February 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I cannot remember making that commitment, so I will need to write to my noble friend about that matter.

[Lord Meston (CB)]

My Lords, the House should recognise that the Minister’s answer of “in the coming months” is rather better than we have had before. Humanists and others simply want a marriage ceremony that reflects their beliefs, whether religious or not, and that will be legally recognised without unnecessary obstacles. Can the Minister confirm that the Government are now actively looking at comprehensive reform, in line with the Law Commission’s 2023 recommendations, to help not just humanists but other similarly disadvantaged groups, even if that may take more time than we would want?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. The Government are indeed looking at comprehensive reform. There are many anomalies within our current marriage law and a number of disadvantaged groups. We believe that we need to take our time on this matter to get the answer right, so I thank the noble Lord for his question.

Humanist Marriages

Lord Meston Excerpts

Monday 2nd December 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The statistic that the noble Baroness cited is accurate from my experience. Yes, such a change would have a disproportionate benefit for same-sex couples, and that factor should be taken into account in the review.

[Lord Meston (CB)]

My Lords, does the Minister agree that, rather than an equality impact assessment, what are required are certainty, clarity and essential fairness in the law governing all marriages, religious and non-religious, in line with the recommendations of the Law Commission back in 2022? People now use a variety of ceremonies—religious and non-religious—and should, frankly, be confident of their status at the end of each ceremony. Surely, the Government can direct reforms to meet those requirements.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble Lord. The objective of the Government is to have clarity and fairness in relation to weddings within England and Wales. There were 57 recommendations in a 500-page report from the Law Commission, and the Government need to take their time to consider them all carefully.