Social Action, Responsibility and Heroism Bill

Lord Walker of Gestingthorpe Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, the noble Lord, Lord Hodgson, with great force and fervour, invites the House to consider that a silver bullet from this place and the other place is perhaps not a bad thing at all. That may well be so, and both Houses are entitled to fire silver bullets by way of resolutions, debates and in a number of other ways, but not in their legislative capacity. That is really all that this issue is about.

There are only three areas of law—or at least there used to be when I was a law student a very long time ago—statute, common law and custom. If a statute is to have any purpose or meaning at all, it has to change to some extent one at least of those three areas. Custom can be left out of it; it is agreed universally that it does not change the content of a statute by one hair’s breadth. There was, I think, some dubiety in Committee about common law, but I honestly think that that is answered by a long-standing principle in our law—namely, that a statute to change the common law has to say so expressly on the face of it and to make it clear beyond peradventure or doubt that that is happening: otherwise, there is a presumption that the common law is not changed. I should have brought Maxwell’s Interpretation of Statutes along with me but I am sure that the Minister will accept that that is still a fundamental principle of our law. The right to legislate is a sovereign right and privilege to be used sparingly. It is not to be used for propaganda purposes.

[Lord Walker of Gestingthorpe (CB)]

My Lords, in speaking in support of this amendment, I draw attention to a matter which I believe to be of general importance and relevance to all the contentious amendments before the House this afternoon, but which has not, I believe, been referred to at all in previous debates on this Bill either in this House or the other place—namely, that the Law Commission has had no input at all into the Bill. The subject matter of the Bill is not on the published programme of current work of the Law Commission: nor—I checked this point a couple of days ago with the press officer of the Law Commission—have there been any informal consultations or amendments concerned with the Bill. Neither the substance of the Bill nor its drafting has had any input at all from the Law Commission. Yet this is a Bill which is said to make significant changes in the common law.

Whether it does, indeed, make significant changes in the common law is highly contentious. Along with many of my noble and learned friends, I believe that it makes no significant change at all. However, on the hypothesis that it does make significant changes in the common law, it is eminently a matter of law reform which should be the subject of systematic and intense study by the Law Commission and a consultation with judges, the legal profession and the wider public, conducted by the commission. None of that has happened.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, support the amendment tabled by the noble and learned Lord, Lord Lloyd, for the same reasons as I indicated in respect of Clause 2. It adds nothing. If you ask a simple question whether there is a court in the land which would not, under the common law,

“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”,

the question answers itself—of course there is not. I ask the Minister to say what is added by the words “acting heroically by”. Why could it not just be, “when the person was intervening in an emergency to assist an individual in danger”?

Apart from ramping up the rhetoric—that is essentially what this whole business is—what actually is added by “acting heroically by”, except for another hour of the court’s time if eventually it has to apply this clause?

[Lord Walker of Gestingthorpe]

My Lords, I support the amendment which my noble and learned friend Lord Lloyd of Berwick has indicated that he is likely to withdraw. I wish to address briefly the amendment proposed by the Minister and draw attention to the use of language in both Clause 4 and throughout the Bill. I am genuinely shocked by the low standard of draftsmanship in the Bill—presumably it was prepared by government lawyers. It is an elementary principle of statutory drafting that one unit of meaning should be described by one word—that words should not be used interchangeably as the draftsman’s fancy takes him.

Divorce (Financial Provision) Bill [HL]

Lord Walker of Gestingthorpe Excerpts

Friday 21st November 2014 Lords Chamber

[Baroness Deech]

My Lords, I rise to move Amendment 5. Consequent on it is whether Clause 2 stands part of the Bill. This provision, as amended, is rather more technical, but also flexible. It brings together the definitions of the relevant financial order—the sort of things that the court may deal with—and defines and spells out what was implicit in the original draft, the various types of order that the court may make. After some discussion, lump sum orders are included, as they may assist flexibility in dividing up the total assets. This will assist the court in achieving maximum flexibility. My aim throughout is to promote sufficient clarity to enable people to arbitrate and mediate and yet preserve a little bit of discretion, which is a good hallmark of our law. I beg to move.

[Lord Walker of Gestingthorpe]

My Lords, this amendment, as the noble Baroness said, introduces a definition of a new expression, “relevant financial order”. The most significant feature of the new definition is that it does not include an order for periodical payments, but to leave it there would perhaps be a rather meagre explanation. In the long run, it might be helpful to considering some later amendments if I speak very briefly about the terminology and structure of the Matrimonial Causes Act 1973.

Many of your Lordships will recall that the concept of no-fault divorce was introduced in England and Wales by the Divorce Reform Act 1969. Scotland followed suit in 1976. The 1969 Act did not contain any provisions altering what was then, in the old-fashioned phrase, called ancillary relief. New provisions were brought in by the Matrimonial Proceedings and Property Act 1970, which for the first time gave the court power to direct the transfer of specific assets, rather than dealing simply with sums of money. The 1969 and 1970 Acts were consolidated in the Matrimonial Causes Act 1973. My noble friend Lady Deech, with great respect, is not quite right in saying that the Matrimonial Causes Act 1973 has not since been revisited by Parliament. On the contrary, it has been amended at least 12 times. I may have got that number wrong, but it is a very much amended Act. However, the noble Baroness is quite right in saying that what Parliament has not revisited is the essential provision in Section 25(2), the guidance as to how judges are to exercise their very wide discretion. As the supporters of the Bill say, that is the provision that cries out for a simpler and more workable test.

The 1973 Act, unusually for a consolidating Act, introduced two entirely new definitions: first, a financial provision order, which was either an order for periodical payments or an order for a lump sum; and secondly, a property adjustment order, which reflected the introduction by the 1970 Act of a power to direct the transfer of particular identifiable assets. The difference between those two forms of order is essentially that between orders for a sum of money and orders relating to identifiable assets. The powers of the court were extended further in 1999 by the introduction of pension sharing orders, and in 2008 by pension compensation sharing orders following the introduction of the pensions compensation Act. That is the range of powers open to the court at present. The new definition of “relevant financial order” includes all the types of order—that is, property adjustment orders, pension orders and lump sum orders, but not orders for periodical payments. The shape of the Bill as we seek to remould it reflects that. Clauses 2 and 4 are concerned primarily with the scope of “relevant financial orders”, as they now would be defined. Clause 5 would be concerned with periodical payments orders, which are treated and stand on their own and to which the Bill adopts the attitude of discouraging them as a long-term measure except when they are essential.

The Bill seeks to amend what is by now a very complex situation. I hope that this definition adds a little clarity to that. Perhaps I may add that if the Bill does go through, it certainly would be high time for there to be a further consolidating Act to replace the much amended 1973 Act.

--- Later in debate ---

[Lord Grantchester (Lab)]

My Lords, I thank the noble Baroness, Lady Deech, for her great efforts to allow the courts to bring certainty to this situation. As regards her last comment, I hasten to add that I do not think people enter marriage with the idea that they are going to get a divorce. Similarly, I do not believe that anybody turns up to work with the intention of fouling up, but these things happen. I support the amendment as it would bring certainty and enable couples facing divorce to be given clear advice on what their future situation will be and how the matrimonial assets will be divided. The starting point for this process should be that of defining what the matrimonial assets are.

[Lord Walker of Gestingthorpe]

My Lords, I will speak to Amendments 6 and 15A. As the noble Baroness, Lady Deech, said, Amendment 6 is one of the main pillars of the Bill. The revised proposed new clause embodied in Amendment 6 lays down the general principle that matrimonial property is to be divided equally in normal circumstances. That is the easy bit. The more difficult bit is defining with reasonable precision what matrimonial property is. The revised proposed new clause largely reproduces—we hope in a clearer form—what was in the Bill as introduced, although there are one or two significant alterations to which I shall draw attention. I recognise, of course, that in this context clarity is a pretty relative concept and that the proposed new clause is not particularly easy going.

One way of viewing the proposed new clause is as laying down three general principles in proposed new subsection (1), followed by four qualifications or refinements in the four paragraphs of proposed new subsection (2). The first general principle is that property acquired before marriage should not be regarded as matrimonial property but as—to use a clumsy but unavoidable term—non-matrimonial property. The second general principle is that gifts received from third parties or inheritances or intestate succession to the estates of third parties are also to be treated as non-matrimonial property, even if the gift is made, or the death occurs, during the marriage. I should treat the third general principle at some length because it differs from both the Bill as introduced and from the Scottish legislation embodied in the Family Law (Scotland) Act 1985, from which these provisions are fairly obviously derived.

I mention in passing that I very much regret that my noble and learned friend Lord Hope of Craighead cannot be here today because he, as former Lord President in Scotland, has unparalleled experience of the practical working of Scottish legislation. I have had the advantage of some discussion with him but I take responsibility for what I say about the law of Scotland, which will be far less learned than if it came from him.

Legal Systems: Rule of Law

Lord Walker of Gestingthorpe Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Walker of Gestingthorpe (CB)]

My Lords, as a footnote to several of the eloquent speeches your Lordships have heard, may I mention one aspect of our legal arrangements which is not perhaps well known but makes a significant contribution to the rule of law and, incidentally, to the standing of this country? It is the participation by the Bar of England and Wales, and to a limited extent the judiciary, in the training of young lawyers, both here and overseas, in the art or craft of advocacy. This important work is undertaken entirely on a voluntary basis and without remuneration. I declare an interest as I am a patron—with the Chief Justice of Hong Kong and Justice Kiefel of the High Court of Australia—of the International Advocacy Training Council, which I will mention towards the end of my speech.

I begin with a little history. For hundreds of years, the training of young advocates was entirely in the hands of the judges and the Bar. It was a thoroughly hands-on training. The students spent the day in court listening to the arguments and judgments. They lived in the Inns of Court, where they discussed points of law and listened to their elders and betters discussing points of law. That went on until about the middle of the 17th century, when, for a variety of reasons, there was a sad and steep decline. Legal education in the Inns of Court became formulaic, perfunctory and basically useless.

I am glad to say that that decline has now been decisively reversed. The Inns of Court—all of them—accept that their primary function is as centres of legal education. The Inns and the circuits—the other bit of the Bar’s infrastructure—work to supplement and continue the learning given to students in the university law schools and the Bar’s professional training course, especially in the fields of practical advocacy and professional ethics. They are able to do that only because a large number of practitioners, including some of the busiest practitioners and judges, are prepared to give something back.

I would be delighted to tell the House more about the methods and techniques that we use—groups of six students, usually with one or two trainers—but I fear that it would take up too much time. I will say only that the instruction is intensely practical; it is largely at an elementary level because we are dealing with beginners—and with them one is concerned with the elements, not the niceties, of advocacy. There are, however, much more advanced courses. The most outstanding course, of which at least my legal colleagues will be well aware, is the week-long advanced advocacy course held every year at Keble College, Oxford, which goes on to more advanced matters, including appellate advocacy, and the important topics of handling vulnerable witnesses and expert witnesses. The courses at Keble are regularly attended by numerous students and trainers from overseas, and the Inns of Court have, to an increasing extent over the past 10 years or so, either singly or in combination, sent parties of trainers to other territories in order to pass on the system to them—to train trainers, as it were. They have been frequently to Hong Kong, Malaysia, different parts of the Caribbean, Mauritius and elsewhere.

About four years ago at Keble, the international Advocacy Training Council was launched—primarily an initiative of the English Bar, but readily and warmly supported by judges and advocates in Australia, Hong Kong, Malaysia and South Africa. In fact, the annual gathering for advocacy training at Stellenbosch is probably the only serious competitor of Keble for being the top world event in advocacy training.

The demand for advocacy training exceeds supply. Some Bars, such as those of Hong Kong and Malaysia, are very prosperous and can afford to pay some or all of the expenses of visiting teams. Other jurisdictions are less well off; and the visiting teams have to pay their own way there, as well as give their services free of charge. But it is striking how, wherever they go, the experience is one of huge gratitude for the help and encouragement given to the local Bar, nowhere more so than in Zimbabwe, where a team visited last year—probably the most testing task that they have undertaken, having received no support at all from the Government of Zimbabwe—but with great success.

In short, advocacy training has become for this country an invisible export, freely bestowed and enormously appreciated by the recipients. It is something of which we can be very proud.