Judicial Review and Courts Bill

Lord Mackay of Clashfern Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I have listened to submissions from your Lordships in the course of this short debate at the ping-pong stage. I think the House and those who spoke were united in the warm words for my noble friend Lord Wolfson of Tredegar, who is indeed, as your Lordships said, a grievous loss to the Front Bench. That loss is offset only by his arrival on the Back Benches, where I am sure he will contribute his wisdom, his ready wit and his good sense to our debates going forward. As to the matter of car parking at the chambers of the noble Lord, Lord Pannick, and those of my noble and learned friend Lord Garnier, I regret that that matter lies outwith the power of the Government to seek to resolve.

On the point just taken from the Opposition Front Bench by the noble Lord, Lord Ponsonby, I reiterate my point. I accept all that he said about the impact of inquest proceedings on families and the well-expressed and carefully considered arguments advanced by family groups and pressure groups, and in this House and in the other place. However, I return to the central point, which is that in light of the review procedure put forward by the Government—a review published on 15 March that is to be followed by a full consultation, after which the Government hope to publish a consultation response in autumn 2022—I urge the House to take the view that the amendment the noble Lord proposed from the Front Bench is premature.

On the point taken by the noble Lord, Lord Marks, I am happy to reiterate what I said about the nature of the ouster clause in these proceedings, in the manner in which it has been formulated, in the hope that what I have said from the Dispatch Box indicates that the Government treat this as a particularly focused instrument.

I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, speaking as he does with particular knowledge of these matters, having sat in the Cart hearing itself. I accept and adopt respectfully his confidence in the ability of our judiciary properly to use the tool in the judicial toolbox—the club in the judicial golf bag—which the Bill seeks to give.

In those circumstances, I return to my invitation to the House to accept the Bill as received from the Commons. I express my gratitude to all noble Lords who have contributed today, who have courteously and thoughtfully engaged with me and, for that matter, the Minister in the other place. On behalf of my noble friend Lord Wolfson of Tredegar, who of course carried out the bulk of work on this measure, I thank noble Lords for their thoughtful engagement with him, in the course of his stewardship of the Bill in your Lordships’ House.

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say something about the proposal in relation to the coroners’ court. The problem in the coroners’ court is that well-heeled litigants are allowed to participate in the coroners’ inquest when the people with real interest, namely the relatives of the deceased whose death is being inquired into, are not able to afford any protection at all. The well-heeled litigants are able to use litigation experts—counsel, senior counsel maybe—and leave the relatives of the deceased without anything at all in the way of legal assistance.

This point arose in this House in connection with the Liverpool situation some years ago. The suggestion was that these well-heeled people should not be allowed to participate in the inquest, unless they were prepared to make available to the relatives legal advice and help to exactly the same limit that the well-heeled people were proposing. That applies to those well heeled by the taxpayer, and applies to those who are well heeled in other ways. It is much more general than legal aid.

Therefore, it seems to me that the inquiry that the Government are proposing would be well added to by taking account of this possibility, which we certainly advocated here. I think I am right in saying that my noble friend Lord Hailsham was also involved on that occasion. At that time, it seemed to be a Home Office responsibility, because it was the Home Office that was responding to the report from Liverpool. It was said that we would get an answer to this very obvious way of dealing with this and making it fair in due course. “Due course” is a very flexible expression. I would think it highly likely that it should be involved in this inquiry. Just restricting it to legal aid seems to make it impossible to really get adequate representation. It is much better that the representation should be equal and level on both sides.

Of course, in some of these inquests, there may be more than one well-heeled participant. Therefore, it should be made a condition of them being allowed to participate, if it is joint and several or if it is just one, that they are prepared to make resources available to the relatives of an equal standard to the resources that they wish to use. That seems abundantly fair; it is not a charge on a public interest or the public purse, except in the case where the well-heeled people are supported by the taxpayer. The taxpayer will have to pay what they seek to put out for their lawyers. I cannot see why dividing this between themselves and the other parties is not a fair way of dealing with it. It does not in any way increase the responsibility of the public purse.

[Viscount Hailsham (Con)]

My Lords, may I make one observation about Motion C1, which I am minded to support? It will bring a clear recommendation to Parliament within a year. This seems to be a very strong recommendation for it.

Police, Crime, Sentencing and Courts Bill

Lord Mackay of Clashfern Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I support this amendment. As a former Victims Commissioner, I have met too many victims who had asked for representation or legal aid and felt that their voice was not heard. They were, in their words, “bullied” by the heavies on the other side, who were rich and could pay for QCs or whatever. Again, they felt that their voice was not going to be heard.

I am talking about high-end cases here; I am talking about terrorism, bombers, women hearing their husband exploded at the other end of the phone, and still have no help from the Government. I support this amendment because now, with all the high-risk terrorism we are seeing—even with the Tunisian support that was very poor, I have to say, because there was a third party involved—we are going to lose the public coming with us and understanding what is going on. An inquest is not a courtroom as such: everybody is there, and all the families are trying to listen about their loved ones and their lives. I know from personal experience about when somebody is talking about our loved ones and yet nobody can stand up from our side to present the same quality, the same questioning.

In this day and age, I ask the Minister and the Government to have a round-table talk about how we can fix this. The inquest is such an irritant to the families, and it does not help them get past the trauma. If we cannot help them, they will not be confident to go through the system. These are high-end cases we are talking about. I know the families of Hillsborough as well, and they have gone through the mill over all these years. Did they get any justice? They have had to fight hard, tooth and nail.

I heard one woman—I will not name her—whose son heard that bomb go off on an oil rig, and the Government were still redacting and did not give the legal aid. The time has come to have an open and transparent discussion about giving the support that they quite rightly deserve.

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago when the Hillsborough matter was before this House, the noble Lord, Lord Rooker, I think, and I put forward a suggestion that the coroner in an inquest should have power to allow a public authority, or an authority with resources, to put forward a defence using lawyers for that purpose, and that a condition of granting such permission should be that the authority is responsible for providing the necessary funding for the relatives of the deceased to be represented. The choice of who they would use, of course, would be for the relatives, but the provision of the necessary money would be a matter for the authority—at the level at which the authority wanted to do it—so that there would be obvious equality of arms.

I think it is a much better solution than legal aid. Needless to say, I have had, some time ago, some experience of dealing with legal aid. I had the authority as Lord Chancellor to grant legal aid in specific cases that I thought required it, but I think it is much better, fairer and less burdensome to the public, that this should be the rule. It seems to me this is quite easy to systematise when you have more than one of these authorities. Hillsborough is a good example of what happened when there was no proper representation for some of the relatives. This is a suggestion that goes along with the spirit of the first amendment the noble and learned Lord has put forward, and I venture to think that it is an effective point of view.

I am glad to see that the noble Lord, I referred to has returned because I think he will probably remember that he and I were pretty well agreed about what should be done. Needless to say, the Home Office said it would be reviewed when the details of Hillsborough, the prosecutions and so on, were finished. Of course, that happened some time ago, but I see no sign of any kind of innovation from the Home Office, until it agrees with this amendment in spirit.

[Lord Beith (LD)]

We have always been able to rely on the noble and learned Lord, Lord Mackay, for ingenuity when difficult problems have to be resolved. This one seems to have got lost in the Home Office somewhere. That is a pity because the problem that these amendments raise is long-running and serious. It is open to discussion, whether the amendments are the best way of dealing it, but I do not think we can go on ignoring it or failing to deal with it in any adequate way.

--- Later in debate ---

Given the ongoing work I have referred to, carried out by the Government with the intention of supporting families at inquests and inquiries, I ask the noble and learned Lord to withdraw the amendment.

[Lord Mackay of Clashfern (Con)]

Before the noble and learned Lord sits down, I made a mistake earlier in not referring to the noble Lord, Lord Rosser, properly. That was my error; I am sorry for it, and I am sure he will forgive me.

[Lord Stewart of Dirleton (Con)]

Before the noble and learned Lord, Lord Falconer of Thoroton, replies, I should say that I did not make reference specifically to the point raised by my noble friend Lord Mackay of Clashfern, in relation to the proposal that he and the noble Lord, Lord Rosser, advanced for the funding of representation in these areas. I will undertake to have the department of my noble friend Lord Wolfson of Tredegar look into the response that was made to the proposal which my noble and learned friend and the noble Lord put forward at that time and see if an answer can be given to the Committee at some appropriate stage as to how that was considered and what conclusions were reached.

European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

Lord Mackay of Clashfern Excerpts

Wednesday 25th November 2020 Grand Committee

[Lord Mackay of Clashfern (Con) [V]]

My Lords, it was of great interest to me to listen to my noble and learned friend explain so clearly the origin and scope of this instrument. As the noble Lord, Lord Beith, said, the House of Lords was very interested in this particular provision when it came forward in this year’s withdrawal Bill. The Prime Minister had apparently said during the election that every court would be able to entertain this question of whether a decision of the European Court which was part of the retained case law should be departed from.

This House noticed that the provision in the Bill did not contain any machinery for taking a case from, for example, the magistrates’ court to a court that could decide the issue. In the amendment that the noble Lord, Lord Beith, referred to—which I proposed—there was a provision for a method of doing that, so that the Prime Minister’s wish, or answer, that all courts would be able to do it would be met by, for example, the magistrates’ court referring the matter in the way that I had proposed to the Supreme Court or whichever court might then be able to deal with it.

That amendment was, as the noble Lord, Lord Beith, said, passed by a substantial majority in this House but, because of the rush to get the withdrawal Act approved, it was decided to not give effect to it in the House of Commons. There is, therefore, no method in place for reaching from, for example, the magistrates’ court in England to the Court of Appeal. I raised this point with my right honourable friend the Lord Chancellor when he sent me a copy of the instrument. The truth is that there is no way of doing that effectively.

This leaves me with a question which I would be glad if my noble and learned friend could answer. If a point is to be raised about the validity of a judgment of the European Court that is part of the reserved EU case law and it needs to be dealt with in a case coming forward in the magistrates’ court, would the magistrates’ court be allowed to consider that case at all, or is there some provision in the jurisdiction of the other courts to allow a case that would normally be within the magistrates’ court’s jurisdiction to be referred instead to another court that is not of the same level but which is able to deal with this particular problem? It was suggested to me that there are various methods of going from the lower courts to the higher court, but I am not aware—I would be glad if my noble and learned friend could make me aware—of whether there is a mechanism to get, for example, from the magistrates’ court in England to the Court of Appeal. If not, it means that the Prime Minister’s answer to the question at the election may not be open for a result at the moment unless and until primary legislation can be introduced in order to make such arrangements. I would have thought that such arrangements could possibly be made using the rule powers of the various rule-making committees, but I am not sure whether that it so. Anyway, I am glad to raise it in order that my noble and learned friend is able to deal with it.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I think a Division is about to be called and I therefore recommend that we do not call the noble Lord, Lord Thomas of Gresford, until after the Division in order not to have to interrupt him. Is the noble Lord content to wait until the Division has been completed?

Human Rights Act 1998 (Remedial) Order 2019

Lord Mackay of Clashfern Excerpts

Thursday 3rd September 2020 Grand Committee

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Lord, but we are quite tight on time and we are close to time already.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, this is an important application and I think it is right that I should refer to a very interesting paper by Professor Richard Ekins, who is professor of law and constitutional government at the University of Oxford. He argues that this order is ultra vires and unconstitutional. On the first point, he argues that the provisions of Section 10 of the Human Rights Act are of a type that should be construed strictly, and so construed do not allow amendment of the Human Rights Act. On the second point, his argument is that this order amending the Human Rights Act is an unusual and unexpected use of the Section 10 power, and accordingly it is inappropriate.

It will be seen that these two arguments are closely linked. While I see how the argument has been skilfully deployed, I think it construes the power of Section 10 too strictly, since the Human Rights Act is primary legislation and makes no exception of itself. Indeed, the power is contained in the Human Rights Act perhaps because that Act is so closely related to the convention that some incompatibility within it was foreseeable. This incompatibility is the source of the trouble that appeared here.

In my view the situation is such that Section 10 applies. I agree that the constitutional position of judges must be carefully taken into account, but it is fair to say that the Court of Human Rights really depended on the nature of the procedure, which had resulted in the then accused being sentenced for contempt of court to imprisonment. It was—I hope—a very exceptional case, but one which could arise in the circumstances, creating an incompatibility between the right to damages on the one hand and the failure to give the right of damages on the other, except in a case to which the section exempting the judicial honesty from such a result may apply. It was thought, correctly I think, that the amendment proposed here kept in place that judicial immunity while at the same time compensating the accused person—the applicant—for what was construed as a procedural error.

It is quite a tricky position. When the original application was put in, I am told that the then Lord Chancellor considered the matter with the judiciary and concluded that it was right to apply for the order. I support that judgment now and would support the grant of the order in the circumstances.

Prisoners (Disclosure of Information About Victims) Bill

Lord Mackay of Clashfern Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I find difficulty with these amendments, and I will look carefully at the detail to understand exactly what is involved. As a Scottish lawyer, I was brought up in the Scottish system, where Newton decisions are utterly unknown. Since training in the law of Scotland, I have acquired a certain amount of familiarity with the law of England and Wales, and I have come across these Newton hearings, and indeed the judgment of the noble and learned Lord, Lord Judge, in the case which has been cited, and the explanation he gives for having them.

It may be wise just to look a little bit further into the detail which is required or which requires a Newton hearing. In the law of Scotland, the indictment of a serious offence requires the detail of the offence to be set out. If the accused wishes to plead guilty, he has the option to plead guilty to the indictment as served, or to plead guilty with items in the indictment which are matters of detail deleted. The prosecutor then has the option either to accept that plea, which will be of the offence with the details as agreed by the accused, or to proceed to trial. However, there is no room then for difference of opinion at the sentencing hearing about what the detail of the offence was, so there is no need for anything resembling a Newton hearing.

In England and Wales, the situation is somewhat different in that an indictment requires a description of the offence which does not, or may not, involve the same degree of detail. Therefore, the Crown may accept a plea of guilty from the accused when there is in fact quite a difference between them as to the detail of the offence, and that difference may make all the difference in the world to the seriousness of the offence. Therefore, when the question comes up for sentence, the exact amount of detail and what the details were becomes utterly relevant, but there is no way of resolving that, because there is no jury trial. Accordingly, the judge has to have a hearing when he determines what in his or her view actually happened. The result of that is that the accused has come to accept in effect a plea which has the effect not of being what he wanted but of something that the judge decided he should have wanted.

This is the reason for the Newton hearings. As the noble and learned Lord, Lord Judge, said, to make the matter just, you have to know what happened. That is because the plea has not been sufficiently detailed to determine that. That is why these hearings have to be held. I once thought that it might be possible to get to a better solution by making it a requirement of an indictment to have more detail in it, but that has not so far happened. Who knows what may happen yet?

That is the situation of the Newton hearings. I understand the noble Lord, Lord Thomas of Gresford —with his great experience of both English and Welsh law on this subject—to suggest that if there is a dispute between the accused and the Crown about whether the accused has, justifiably or otherwise, refused to disclose what has happened to the body, the matter would be subject to a Newton hearing. I think that, if that happens, a Newton hearing is inevitable. Fortunately, I think that the noble and learned Lord who will follow me explained that that circumstance is usually taken into account at the conclusion of a hearing, including of course the jury trial, if the matter has become an issue between the parties at that stage. On the whole, it seems likely that this kind of question would be resolved without difficulty. It must be pretty much a matter of clear fact at the time of the trial and, therefore, the judge would usually take account of the situation agreed between the parties as to whether the accused has disclosed where the body went. This is on the assumption that the accused accepts that he committed the murder. I believe that the consequence of all that is that the number of Newton hearings with this subject matter will be relatively small.

I have to say that I speak on this matter subject to the observations of those learned in the law of England who will follow me. This is a matter of course only for the Crown Court, and therefore does not involve the magistrates’ court in which the noble Lord, Lord Ponsonby, is so experienced. In my view, accordingly, there are a very limited number of circumstances in which this arises at all but, if it does arise, it is obvious that the decision of the judge in the Newton hearing will take place before he commits sentence. Therefore, Rule 5 of the Parole Board Rules requires that if the observations of the judge at trial before sentence are available, they are to be considered. The rules already take account of the exceptional cases, if any, in which a Newton hearing has taken place in relation to this matter. I therefore cannot see that it is at all right to modify the Bill by such an exceptional circumstance, which in any case illustrates a possible need for improvement in the law of England and Wales.

[Lord Thomas of Cwmgiedd [V]]

It is a pleasure and privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, in this debate. It is important to observe at the outset that I consider this amendment the kind of amendment that shows the danger of trying to make piecemeal amendments to a very limited-purpose Bill.

If I may be permitted, I will first say a little about the law of England and Wales in relation to the role of the judge and of the parties in determining the facts for sentencing. The least common form of determining the facts is a Newton hearing. More commonly, the facts—if there is to be a plea of guilty—are determined on the basis of plea. Both procedures are set out in cases to which reference has been made, but they are now codified in division VII B of the Criminal Practice Directions. By far the most common method of determining the facts is the determination made by the trial judge for the purposes of sentencing. Although a jury determines guilt or innocence, save in a most exceptional circumstance, it is for the judge who has heard all the evidence to determine the facts on which he or she will sentence. If the judge follows the correct approach to this, there can be no dispute before the Court of Appeal in relation to the findings made, as set out in the 2018 judgment of Mr Justice Sweeney in the Queen v King.

Thus, what this amendment seeks to do, on the face of it, is to refer to the least common means of determining facts for the purposes of sentence, leaving out a slightly more common means, but not so common in murder or the other cases covered by the Bill where a life sentence will be involved—that is, a basis of plea agreed with the prosecution—and leaving out of account entirely what would normally happen, which is that the trial judge would have made findings. In the case of murder, this is particularly important because, as I mentioned in Committee, if the body has not been found or has been dismembered so that it cannot be found, this is provided as an aggravating factor under Schedule 21 to the Criminal Justice Act 2003 and the judge must make findings about it—and, in my experience, they invariably make findings about it—and it would be essential for the Parole Board to take that into account to avoid any risk of double punishment.

I therefore regret to say that, on its face, the amendment, if it seeks to deal with the narrow issue of what the Parole Board should do, is not a good amendment, because it leaves out the most common form of the determination of facts. However, if the wider purpose, as explained by the noble Lord, Lord Thomas of Gresford, is to encourage the taking place of Newton hearings after a trial, I venture to suggest that this is a most undesirable process. The trial judge will have heard the evidence; it is plain that, if a body has not been discovered, its whereabouts have not been discovered or the identity of the victim is unknown—as happens often in indecent image cases—this is bound to have been debated at the trial, and the trial judge will, as the law stands, have made the necessary findings. It is to those that the Parole Board should have regard.

If, however, it is thought that there should be a different procedure and that we should look at this matter again, I respectfully suggest that this is not the Bill in which to do it, and that this provision does not achieve what is intended. It illustrates that, if there is a problem with the way in which facts are determined—I believe there is no such problem—this is a matter that should be part of a wider investigation and not undertaken in this limited-purpose Bill.

I therefore propose to vote against this amendment on various completely different grounds. First, it has the potential to impair the discretion of the Parole Board by expressing reference to a particular means of determining the basis of sentencing and leaves out the more important. Secondly, it is unnecessary for the way in which the Parole Board approaches cases for the reasons I gave last time. Thirdly, the Parole Board is under a duty to look at what the judge has found. Fourthly, if there is a wider purpose, this is something that should be examined separately. This amendment achieves none of these purposes and I urge the House to reject it, if the House is divided.

--- Later in debate ---

[Lord Mackay of Clashfern [V]]

My Lords, I strongly support the Bill and I am conscious of the sort of hurt that the basic matter on which this Bill is founded can cause to people for many years. It is also very important that victims are at the centre of the criminal justice system, and the Parole Board is only part of that, albeit an important part.

I think that it is much easier and more definite if victims are properly included in the victim contact scheme. In other words, victims should be notified about anything that affects them. This is certainly one thing that they should be notified about, but I feel that having a system only for this particular matter—for the Parole Board—is taking the victim from the centre of the victim contact system out to a special place. In my view, unless we have a victim contact system that deals with all the possible interests of victims in what is going on, particularly in relation to those who have done them harm, there is a serious risk that the system is not sufficiently efficient.

It is also important that we keep in contact with victims. That involves finding out if there is a change in their circumstances—in their addresses or in any other matter that affects giving them notice. It is therefore important that a comprehensive system is set in place. I entirely agree with almost all that has been said about contact with victims, but I am not sure that it is wise to set up a system which deals with only one aspect of the criminal justice system rather than a system that deals with the whole lot, which the victim contact scheme was supposed to be. If it has deficiencies, as my noble and learned friend said, the thing to do is to put those right.

[Lord Naseby (Con) [V]]

My Lords, the House will know that I am not a lawyer. As it happens, I spent about 20 years of my life in the communications industry. One lesson that I learned was almost to a word what my noble and learned friend Lord Mackay just said. In the time available, I have not had a chance to look at the contact scheme—what it should do, what it does do and what it might do. While I say a huge thank you to the noble Baroness, Lady Newlove, for the way in which she put the situation, I want to be informed by my noble and learned friend on the Front Bench what exactly the victim contact scheme is supposed to do at the moment. I find it inconceivable that it does not do the majority of the items that are listed under Amendment 17, but maybe it does not. Maybe there are holes in it.

It may well be that, in certain cases, the Parole Board is not doing its job properly, but the fact that we include something in the Bill will not actually alter that situation one way or the other, except for those responsible to be cautioned or whatever.

Marriage and Religious Weddings

Lord Mackay of Clashfern Excerpts

Tuesday 30th June 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, I am not in a position to give such an undertaking. The issues raised are considered in the Integrated Communities Action Plan.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, to what extent does the right to practise one’s religion, subject to a proviso, affect the right to maintenance and property during marriage and on divorce or separation?

[Lord Keen of Elie]

My Lords, if a religious ceremony of marriage or purported marriage does not conform to the requirement of Lord Hardwicke’s Act of 1753 or the marriage Act of 1836, then there will be no marriage. In these circumstances, a couple would be regarded as cohabiting and that would clearly have an impact upon any circumstances in which they ceased to cohabit.

Sentencing Bill [HL]

Lord Mackay of Clashfern Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, the number of Acts consolidated in this Bill shows the large number of Acts that are relevant to sentencing. Is it any wonder that judges, being human, sometimes made mistakes? When I became a Lord of Appeal in Ordinary, I was appointed to the Consolidation Committee then presided over by Lord Brightman. He taught me what a demanding task consolidation is. It involves checking that the law you put into the consolidation is correct and, more difficult, making sure that you leave nothing out.

I thank from the bottom of my heart everyone who has been involved in this massive enterprise. That includes Law Commissioners and their staff, Ministers and their officials, staff and department, and parliamentary counsel and their staff. Now we have the massive product of all their work. It is extremely difficult to say what happens now. Will it just start to build up again? In relation to that, in this Bill there is the important provision that, where something covered by the scope of this Bill is amended by an Act of Parliament, that Act must amend this Act to include it. That seems to me a very excellent way of preventing the building-up anew of the situation about which my friend the noble and learned Lord, Lord Judge, spoke in the case to which he referred.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Mackay of Clashfern Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Adonis (Lab)]

I have an obvious question relating to what the noble and learned Lord said. Why does he think that the Isle of Man wants this power but other Crown dependencies do not?

[Lord Mackay of Clashfern (Con)]

My Lords, I have always understood that the Isle of Man is different and that special provision therefore needs to be made for it, particularly at its request. Long ago, when I was Lord Advocate, I was called to defend an action of the UK Government, which had imposed restrictions on fishing in the waters surrounding the Isle of Man that were different from the common fisheries policy. I was constrained to argue that the Isle of Man was not subject to the common fisheries policy, since it was different from the United Kingdom. I regret to say that the Isle of Man was not sufficiently different for me to succeed.

I support the amendment as something that is utterly important for the Isle of Man and perfectly in order.

[Lord Mann (Non-Afl)]

My Lords, in Clause 2(7), “relevant territory” is defined as

“the Isle of Man … any of the Channel Islands … a British overseas territory.”

On what basis should there be a differentiation for the Isle of Man as opposed to the others—as the noble Lord, Lord Adonis, rightly asked—particularly regarding the two Crown dependencies of Guernsey and Jersey? Would it not be sensible from a UK stance to have consistency, particularly between the Crown dependencies and on our approach to defining “relevant territory”, as covered by Clause 2(7)?

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, first, I draw attention to paragraph 41 of the memorandum concerning the delegated powers, which says:

“We do not anticipate using the power to create, extend or increase the penalty for, a criminal offence very often, however it may be needed, in very limited circumstances, in order to implement effective enforcement provisions for some potential future PIL agreements.”


I stress: some potential future PIL agreements.

I want to speak mainly to Amendment 19, although I support what the noble and learned Lord, Lord Falconer, said in relation to Amendments 20 and 21 and his criticisms of the super-affirmative procedure. The Committee may recall that in its first sitting, I made comments about the necessity for democratic legitimacy and scrutiny when it comes to the making of legislation in this form. I do not consider that the form of approach of an affirmative resolution on its own is enough. I certainly do not think that the super-affirmative procedure adds very much to that. As for scrutiny, the noble and learned Lord has already referred to the fact that the Lord Chancellor’s committee was not given an opportunity to consider the Bill.

Criminal offences are set against the background that everybody is presumed to know what the law is. To put it another way, familiarly, ignorance of the law is no excuse. Any criminal offence created requires clarity, certainty and proportionality. I illustrate this by referring to what is very much in the public eye at the moment, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020. No draft was laid or approved by Parliament by reason of urgency, and one understands entirely that reason, but the instrument has been amended twice since it was passed in March and the latest version came into force on Monday. It had 12 regulations and two schedules in its original form and Regulation 6(1) provides that everyone must stay overnight at

“the place where they are living”.

There are certain exceptions, including, at Regulation 6(2)(d),

“to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person”.

At that point I gave up further research, but I do not think that particular exception can possibly refer to ordinary childcare. Yet there has been controversy. The Prime Minister and four of the Cabinet have taken one view or interpretation of these regulations and almost everybody else has taken a completely different view on whether what happened was legal or not. An unlimited fine is payable on summary conviction, which can be avoided by complying with a fixed penalty notice. Noble Lords will appreciate that that is typical of the sort of offence that can be created by secondary legislation that nobody understands—I say “nobody understands”; many people understand the drift of it, but the particular detail can be the subject of controversy.

Coming back to the Bill, it is obviously undesirable that there should be a lack of clarity in drafting criminal offences when it is possible for those criminal offences to result in a penalty of up to two years’ imprisonment. An unlimited fine is quite a burden, but imprisonment through regulations that refer to other Acts of Parliament—subsection this and sub-subsection that—is entirely undesirable and never gets, whether by the ordinary affirmative procedure or the super-affirmative procedure, adequate scrutiny and understanding by the authorities that have to put it into effect and, most relevantly, by the people who are affected by it and who have to obey the law.

Public international law covers, as we discussed, a wide variety of issues. It is not at all satisfactory for the wide power that I referred to—for some potential future PIL agreements to create criminal offences—to be put in the hands of Ministers. For that reason, this is an aspect of the Bill, never mind the whole of Schedule 2, that I find offensive.

[Lord Mackay of Clashfern]

My Lords, the Act referred to in the Bill is dated 1982, which shows that we are concerned with the time when I was Lord Advocate and before devolution. I remember it lucidly. It fell to the Lord Advocate to deal, inter alia, with the Scottish position and what the detail involved. I strongly oppose the group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton. My understanding of the principle that rules in this area is that when the United Kingdom undertakes an international obligation, that does not become part of the law of the United Kingdom until it becomes part of the domestic law of the United Kingdom and, since devolution, that may apply differently in devolved jurisdictions. A suggestion has been made that the principle goes further and requires that the result can be achieved only by primary legislation doing so directly, without the intervention of subordinate legislation. I do not agree with that. I can see no logical requirement to restrict the power of Parliament in that way.

My noble and learned friend the Minister has already given examples. Since we joined the EU, this has been achieved by a statutory instrument naming the treaty involved, without any further detail. The year 1982 yields another striking example. Section 60 of the Civil Aviation Act 1982 confers power by Order in Council to make provision for carrying out the Chicago convention. If the principle were as claimed, surely the Act could not confer this power. I regard the provisions of the Bill as entirely adequate. Once we undertake an international obligation, it seems right to implement it in our law as soon as possible. The ordinary affirmative procedure seems entirely adequate, particularly since the other place now has power in relation to international obligations.

The noble Lord preceding me, an expert in many of these matters, particularly in the criminal law, requires that the criminal law should not be specified except very clearly and very occasionally in statutory instruments. In my respectful submission to your Lordships, this is a space in which the international agreement must have in it the criminal offence in question, because it is only a reflection of what is in the international obligation that will become part of the law under Clause 2. This seems to me to adequately secure the definition of the offence in question. I will add only that I would like to see the Lord Chancellor’s advisory committee consulted as much as possible: it is a very well informed, very good source of solid advice. I also add that if the Government’s ambitions are fulfilled for many international agreements in the future, it would be a great pity to saddle the procedure to implement them into our law with unnecessary delays.

[Baroness Kennedy of Cradley (Lab)]

My Lords, I shall restrict my comments and questions to parliamentary scrutiny. Private international law agreements are so important for businesses and individuals when they cross borders that to accept new international conventions into domestic law using broad delegated powers seems a step too far. The Government have failed to make a convincing case for why they need such extensive delegated powers here. What are the barriers that led the Government to propose such a low level of parliamentary scrutiny of new agreements?

Of course, this House is not against the Government getting their business through, but there needs to be appropriate scrutiny, challenge and revision. That is, after all, why we are all here. Amendment 20 offers a set of safeguards absent from the Government’s proposals and therefore has my support, as does Amendment 19. It cannot be acceptable to create and impose new criminal offences without consultation and some level of parliamentary scrutiny, the reasons having been eloquently set out by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer. In responding to these amendments, will the Minister give insight and clarity as to why the Government believe they need such sweeping powers? Do the Government accept the conclusions of the House of Lords Constitution Committee? If not, why not? Do they really believe that private international law agreements are produced at such a rate that proper consultation and scrutiny can be set aside?

As the Constitution Committee noted:

“The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years”


so the need for delegated powers to prevent a delay does not seem a very strong argument. Why is it necessary for these delegated powers to extend to matters wider than private international law? How do the Government envisage dealing with a future international convention that needs supplementing for a domestic situation? Where will the parliamentary scrutiny be in such cases?

Finally, is it the case, as has been argued by some, that statutory instruments in this area may be quashed under the Human Rights Act 1998, leading to unnecessary legal uncertainty?

In conclusion, I welcome and support the amendments tabled by my noble and learned friend. These are issues that need further consideration by the Government, and I hope that the noble and learned Lord will agree to look at them again.

Prisoners (Disclosure of Information About Victims) Bill

Lord Mackay of Clashfern Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, my noble friend who proposed these amendments has been well known to me as a very clear, well-informed campaigner for many years in a number of different situations. I am also very conscious of the tremendous pain that is felt by a family who have lost a loved one in circumstances where they are unable to come to closure because they do not have the body of their loved one. However, we have to look at this carefully and that is what I suggest we do.

These amendments deal with a situation in which the prosecuting authority did not have access to the victim’s body in a murder or manslaughter case. In former times, it was difficult to secure a conviction in such a case, but prosecutors’ powers and the means of investigation at their disposal has enabled success in such cases to be easier now. Where a prisoner has pled not guilty and persistently proclaimed his innocence, it will not be consistent with his position to give such information. The circumstances in which such information might not be available are many. It might be impossible for him to know what happened to the body, for example if he was not a principal in the case, but an accessory who gave the lethal weapon to the perpetrator at some distance from the scene, or he was not the person who took charge of the body after the crime and had no knowledge of what was done with it. These are just some of the circumstances in which what happened to the body might not have been known to the prisoner and where the Parole Board cannot know or have a reasonable suspicion that he did. Yet, in each of these circumstances, the family’s pain is the same as if he did know. The result is that it is not always possible to find a just retribution for that pain.

The fact that the prisoner would not disclose the fate of the body would be known and would be a consideration at the time of the sentence. Co-operation with the police in their inquiries is a relevant factor in the determination of a sentence. This would be an important element in that aspect of the sentencing decision. The extent of the prisoner’s involvement would be much more freshly known at the time of the Parole Board hearing.

The Parole Board’s function in making its decision is to consider whether it is satisfied that it is no longer necessary for the prosecution of further protection of the public that the prisoner should be confined. In my submission, it would be utterly contrary to that duty to refuse release, as proposed in the amendment, without any discretion to the Parole Board. I therefore object to the amendment and oppose it. To require the board to consider this matter, thus to commit it to the board’s discretion, is a wise and just way to recognise the severe pain inflicted on the family of the victim in the circumstances disclosed. The prisoner will know that this is to be considered and that this situation is unlikely to be a factor in his favour, so he might be encouraged to disclose what he knows.

In my view there are serious difficulties in making this matter a separate legal offence, as was proposed by my noble and learned friend Lord Garnier, for whom, as a lawyer and otherwise, I have the greatest respect. This is a matter that would be difficult to disentangle from the jury’s verdict on the murder—and the last thing we want is two different verdicts on the same case by different juries. However, I do not need to elaborate on that today, because that is not what is proposed. I conclude by emphasising the fact that I do not consider this a just way of dealing with a very painful problem.

Divorce, Dissolution and Separation Bill [HL]

Lord Mackay of Clashfern Excerpts

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

[Baroness Shackleton of Belgravia (Con)]

My Lords, I rise to support the noble and learned Baroness, Lady Butler-Sloss. I have been doing this work for 40 years. If the amendment is successful, people will file quicker: they know they will have to wait 20 weeks, or however many weeks, so they will put in their petition sooner. When a marriage has broken down, it is necessary to sort it out cleanly and without blame and delay. Delay causes grief. Uncertainty causes grief. Children get destroyed by uncertainty, which is why I have jointly tabled an amendment related to finance.

In relation to the breakdown of a marriage, I agree with the noble Baroness that it is patronising. It is not a charter for petitioners but a mutual charter to let people get divorced without the blame and shame of naming the person who is more at fault. For most marriages, it is not as simple as one party being 90% at fault and the other being 10% at fault, or one party being 100% at fault. There is mutual blame, so to suggest that that one party has to take the responsibility for being, effectively, the aggressor, causes grief. It causes grief to people who cannot operate on their own. Some people have the luxury of going to solicitors, but I really object to the suggestion that this is a solicitors’ or a lawyers’ charter to make money. When it is done online, it will be a great deal cheaper. There is a nice little industry in colluding with the solicitor on the other side to try to dream up grounds that neither party finds objectionable so that it can go through unopposed—but unfortunately, those grounds now have to be sufficiently serious to get past the very high bar that is being imposed, which means that blame has to be made. I do not see any benefit at all when one party—generally both parties—wants to get out of marriage in there being any further delays, so I do not support this amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I was not wishing to push myself forward too soon, but one has to look quite closely at the wording of this amendment, which says:

“The divorce process under subsection (1) consists of three stages and must be accompanied by … for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably.”


The general rule is that one applicant is sufficient, and therefore there is no question of a requirement that they should agree that the marriage has broken down irretrievably at that stage.

I have not been a family judge for 40 years, but I have been concerned with this matter for even longer than that. As I said at Second Reading, I was concerned with cases where there were long debates and proofs about who was responsible for the breakdown of the marriage. I never found them to be of any practical use: they did not reconcile people—very much the reverse—and they were absolutely useless.

I am as strong supporter of the institution of marriage as I can be, and I have made that plain. Indeed, so plain was it when I introduced the corresponding Bill 20 years ago that I was invited to be interviewed on the “Today” programme—Ministers went in those days—by no less a person than John Humphrys. One of the first questions that he asked was whether I would care to be called the “Minister for Marriage” instead of Lord Chancellor. That suggested pretty plainly that he thought that I was trying to support the ordinance of marriage as far as practicable.

The situation here is that you are asking for a divorce, not applying for a consideration of something else. What is a divorce? It is an order that finds that the marriage has broken down irretrievably. Therefore, if you are going to ask for that, you must ask for it. There is no sense in saying, “I’m considering whether I should apply.” You either do or do not apply. If you apply, the process starts. However, of course I am all in favour of the idea that during that process people might come together. That happens, and there is nothing in the Bill that I know of to discourage it, except possibly the length of time involved. As I understand it, the result of the consultation process was that it should be a year, but a period of six months was chosen for the Bill. When my Bill went forward, I chose a year and Parliament increased it to 18 months. So it is not the first time that an attempt has been made to lengthen that period—something that will be considered later. However, the amendment does not appear to me to be right. If you are asking for a divorce order, the statement must state the ground on which the law allows a divorce.

Sadly, I agree entirely with what the noble and learned Baroness said about the children. Over the years, my experience in talking about and dealing with this issue in various ways is that, generally speaking, the children are devoted to both parents. They love them both, and when the parents separate in life or in the way that they treat one another, it tears the heart of the children, which is a terrible result. It is important that, before parents get involved in divorce proceedings, they think seriously about the effect on their children. On the other hand, there is nothing worse for children than being in a situation where their parents are continually at loggerheads. Sadly, the institution of marriage is such that it requires the loyalty of both parents all the time. If that stops, the result is, sadly, inevitable.

I entirely accept that my noble friend Lord McColl and those who support him would like to see reconciliation. I am entirely in favour of that, but I think that reconciliation is sometimes assisted when the parties see that what is required is an answer to the situation—when the marriage has broken down irretrievably and they are prepared to reach a conciliation. That does happen and there is every reason to support it happening during the divorce procedure, but I do not think that you can start the divorce procedure on the basis that it is going to happen.

[Lord Harries of Pentregarth (CB)]

My Lords, leaving aside the fundamental principle behind this amendment, there seems to me to be a real weakness in the wording of the proposed new subsection (2)(a), which says that,

“they think that the marriage may have broken down irretrievably”.

That seems so vague and unsatisfactory. Does the noble Lord think that this amendment would be improved and be worth further serious discussion if it instead said that they “intend to apply for an order on the grounds that the marriage has broken down”—in other words, that the first application would be a statement of intent?

[Lord Mackay of Clashfern]

My Lords, the unfortunate thing about that is that it is the application: once you have applied, you have carried out the intent. It is an application for a divorce, and the divorce procedure lays out what has to happen before the divorce is granted. When you apply, you are applying for a divorce. I cannot see any other possible way of proceeding. It does not seem to make sense to say, “I was thinking of applying—I was thinking of suing you—but I am still considering the matter.” If you want an order, you have to ask for it. That is essentially why I think this amendment has grammatical difficulties but also an enormous underlying theoretical difficulty.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I support the amendment moved by the noble Lord, Lord McColl, and the remarks of my noble friend Lord Morrow.

I have never been a judge to grant people a divorce, but I have been a minister for over 50 years, marrying people and endeavouring to keep families together. I am delighted that, over those years, people have come to me with the intention of divorce but made another decision on reflection. To this day, they are very happy families. After reflection, speaking to me and receiving advice, they were able to make another decision and heal the breach in the relationship.

The Government were elected on a promise to strengthen families and acknowledge that a strong society needs strong families. To the best of my knowledge, there was no mention in the manifesto of the no-fault divorce. I believe that time for reflection would be helpful. I would like this Committee and the Government to consider the amendment that the noble Lord, Lord McColl, has brought before us.

--- Later in debate ---

[Baroness Benjamin (LD)]

My Lords, I support Amendments 2 and 4. First, I would like to say how much I agree with the noble Baroness, Lady Shackleton, when she talks about education, because I too have been an advocate and supporter of education on marriage, parenting and relationships for many years. I believe that it would make such a difference to the outcome of the pain and suffering that too many people go through, and which directly affects children.

However, in all our debates on the Bill we must not forget children. They are innocent parties in family break-ups, and everything we decide in this House, or in the other place, must not neglect their interests. So much of our family policy is built on the principle of what is in the best interests of the child. But when it comes to divorce, which can be devastating for children, the focus is too often solely on the interests of adults. This is why I am supporting these amendments.

The stated aim of the Bill is to reduce acrimony in divorce proceedings. The former Minister of Justice stated in the Government’s response to the consultation in April 2019 that this will

“support better outcomes for children.”—[Official Report, Commons, 9/4/19; col. 8WS.]

Supporters of the Bill claim that children of married parents who argue will be better off if their parents can divorce more easily, without having to allege fault. The logic is that parents continuing their marriage is more damaging to children than simply ending the relationship. The truth is that children need not be involved in any consideration of fault, but they are necessarily involved in the fact of divorce. It is the fact of divorce, not the process, that is harmful to children.

The Exeter Family Study found that divorce does not usually reduce conflict for the children. In fact, the opposite is true. The study says that

“the experience of most children whose parents have divorced is of increased conflict over an extended period, with the child involved to an extent that may not have been the case while the marriage lasted.”

Once parents have officially split, the door is open to children being the subject of disagreements in a way they never were before. These findings are corroborated by a US study that shows that children suffer negative consequences even if their parents divorce amicably. The authors express concern that

“some parents are lulled into believing”

that a good divorce will mean

“that their children are adequately protected from all of the potential risks of union disruption.”

There are of course exceptions, where divorce is the only and best alternative, especially when it comes to domestic violence and abuse. However, there is so much research that shows the benefits for children of living with their married parents, and the harm the divorce does to children. For example, having married parents increases the chances of getting a university degree. It is better for teenagers’ mental health and increases a person’s chances of getting married themselves. Young people whose parents separate are much more likely to become homeless and get into trouble with the law. Behavioural and emotional problems are also more likely to be found in children from broken homes.

There have been studies suggesting that children suffer more from divorce than from the death of a parent, and that this continues long term. Various reasons are offered for this. One is that divorce is seen as a choice. From a child’s perspective, their parent chooses to leave them, resulting in a sense of deliberate abandonment. There is also the ongoing yearning for reconciliation, while death is final. Children often cling for many years to the hope of their parents reconciling, causing reoccurring disappointment. I state all this to emphasise the importance of children’s interests in these debates. They should be front and centre in decisions about divorce, including in the court’s consideration of a divorce application.

I fear that this Bill will make divorce quicker and easier, leaving less time and motivation to compromise or attempt to reconcile—and children will suffer. I believe that these amendments help to focus on these innocent victims—because, remember, childhood lasts a lifetime.

[Lord Mackay of Clashfern]

My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.

I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.

I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.

[Baroness Chakrabarti]

My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.

However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.

--- Later in debate ---

[Lord Farmer (Con)]

My Lords, I shall speak to Amendment 21, which is grouped with Amendment 3. It is also about marriage counselling once the application for divorce has been made. My amendment requires the Government to offer relationship and marriage counselling before and during the divorce procedure.

Marriage is the specific relationship form being directly affected by the Bill so it should be the focus of additional support. Much weight has been put on the evidence from research at the University of Exeter funded by the Nuffield Foundation, Finding Fault? It describes itself as the first empirical study since the 1980s of how the divorce law in England and Wales is operating. It is a piece of grey literature—that is, it has not been peer reviewed. The Government very rarely act on single studies, especially those that have not been peer reviewed by academics from other universities, which often challenge the conclusions of whichever study it is. The reliance of the Government and noble Lords on this research is surprising, to say the least. In reality, it is one study with 81 interviews and an analysis of 300 divorces. There was a survey in which around half the participants were divorcees and the other half were nationally representative: 71% of them supported retaining fault, which was ignored. I put that at the beginning of what I am saying because, in the Government’s argument, an awful lot of weight is being put on this research.

In the early 2000s, there was a healthy marriage initiative in the United States. Many of the programmes were focused on unmarried couples. It taught them the basics of commitment and how to resolve conflict and brought many to a point where they perhaps knew enough to separate because they realised the relationship did not have a future, or where both partners felt able to make the formal commitment of marriage. I notice a right reverend Prelate is in his place. The Church of England and many other churches run good marriage preparation courses which go into gritty detail of the problems that marriages can present.

Much has been said about the need to avoid the complexity of the Family Law Act. My amendment does not reintroduce information meetings, but makes it more likely that a couple who see no alternative to divorce, perhaps because both sides of the family have been through it, will, by going through counselling, have their eyes opened to the possibility that times can get better if you stick together. It allows people to reflect on the possible implications of what they are doing. Wealthy people can often access divorce consultants who dispassionately lay out the implications of staying together or splitting up. Many people pull back when they have someone dispassionately explain to them, for example, what has been termed the indissolubility of parenthood—that their relationships with their children, which the vast majority are absolutely determined to maintain, will require them to have ongoing relations with their ex-spouse not only to ensure the smooth running of day-to-day contact arrangements, but to negotiate every future major family event.

Professor Janet Walker led the evaluations of the pilots following the passage of the Family Law Act 1996. She interviewed more than 6,000 people. She commented that funding for relationship services was identified as a necessary part of divorce reform during the passage of the Family Law Bill and remains necessary today. She goes on to say that knowledge and understanding of what works in supporting relationships at times of change, challenge and crisis has also grown, and it is apparent that early intervention to support relationships increases opportunities for relationship ruptures to be repaired and for partnerships to thrive and endure. Therefore, we need to be sure that the opportunity to seek support is provided when relationships begin to deteriorate as well as in the period after an application for divorce is made, when the focus is likely to be on helping couples to reduce conflict and to focus on the ways in which they will continue to parent in a life apart. Relationship support, she says, must be accessible, affordable and available when it is first needed and at any time when families are seeking to repair or manage difficult relationships. In a follow-up study, which involved over 1,500 people, she found that, two years on from divorce, many people wished they had been warned beforehand of the harsh realities of post-separation life. If they had been forewarned, they might have sought reconciliation. They now have to work harder than ever to get on with their ex, given the need to maintain harmonious arrangements around finances and children.

US researchers, in the early 2000s, found that people who are unhappy in their marriage are more likely to be happy five years later if they did not divorce than if they did. Two out of three who were unhappily married but avoided divorce ended up happily married after five years. The problem is that, in our society, it is still stigmatised to ask for help with one’s couple relationship. When he was on “Desert Island Discs”, the American ambassador to the UK, Matthew Barzun, was very up front about the ongoing relationship counselling he and his wife had to maintain a good status quo in their relationship. Let us hope he is an early adopter, but the broad culture is not there yet. Marriage support and counselling can create a context where the root of the conflict can be addressed and terminated, rather than the relationship itself.

[Lord Mackay of Clashfern]

My Lords, I support both amendments. I want to look at Amendment 21 first; it contains a reference to Section 22 of the Family Law Act 1996 and one of the provisions supported by Professor Walker in the passage that my noble friend quoted. I regard it as absolutely essential that the Government should support families in difficulties. There are plenty of reasons for difficulty in family relationships, perhaps more than there were. But in any case, whether that is so or not, there are still difficulties, and help in overcoming these is essential as early as possible. Amendment 21 deals with Section 22 and the need for counselling in relation to the later stage.

I also support the provisions in Amendment 3, which are a last resort. It is so important that people really consider what is happening and get what help they can before it happens. The idea that it is always too late is not quite right. Sometimes reconciliation can come quite late—and better late than never—which is what Amendment 3 supports. The noble and right reverend Lord, Lord Harries of Pentregarth, was Bishop of Oxford when the 1996 Act was considered and ultimately passed. I think it was he who put this amendment in form first. The Government fully supported it, as I do now. I also support its continuation, which is in the amendment.

There are some quite interesting amendments. Section 22 of the Act says:

“The Lord Chancellor may, with the approval of the Treasury”.


I am not sure why I had to put that text in the Bill, but it must have been part of the price I paid for getting that section into it, which remains law. The amount provided for it now has fallen. I would like to press on Her Majesty’s Government that one of the most important things for the present is that our family life is preserved and strengthened. I am sure that, as was said on earlier amendments, a good deal of difficulty has arisen from the failure to support family life in the way that the Government should. Therefore, I am very much in favour of Amendments 3 and 21.

[Lord Browne of Belmont]

My Lords, I am pleased to support Amendment 21 in the name of the noble Lord, Lord Farmer, which focuses on marriage support services. It requires the Secretary of State to make grants for marriage support services

“before and during a marriage.”

The public policy benefits of marriage are such that this is a very appropriate use of public funds. Indeed, in terms of the public finances, investment in relationships is good value for money. The estimated cost of family breakdown to the public purse is £51 billion a year. In January 2018, the Government said in another place that between April 2015 and March 2017 they had invested £17.5 million in relationship support services. That is a very small sum, given the scale of the costs of family breakdown. It is estimated that Relate’s couple counselling work delivers £11.40 of benefits for every £1 spent. Surely this should make the Chancellor consider upping the Government’s investment in supporting married couples and those in civil partnerships.