In moving Amendment 1 I shall speak also to Amendment 4, with which it is grouped. I am happy to report that there is common agreement on this across the Committee: between us and the noble Baroness, Lady Deech, the noble Lord, Lord Henley, and the noble and learned Baroness, Lady Butler-Sloss.
The purpose of Amendment 1 is to increase the minimum period of cohabitation required before cohabitants without children will be able to make a claim for a financial settlement order. A discretion to waive the qualifying period is dealt with by Amendment 4. As noble Lords know, the Bill is designed to protect cohabitants who demonstrate a certain level of commitment and likely interdependency. Where existing law recognises the rights and responsibilities of those living together, a minimum period of time is usually required before cohabitation is established. Schemes in other countries take this approach and it reflects the proposals made by the Law Commission. It also avoids the use of less definitive eligibility criteria which may cause uncertainty and complexity, and does not open the floodgates to people in very short-term relationships.
I wonder whether I may intervene in the fascinating opening speech of the noble Lord, Lord Lester. My understanding is that Amendment 1, grouped with Amendment 4 in the name of the noble Lord and the noble and learned Baroness, Lady Butler-Sloss, is tabled in the name of the noble Baroness, Lady Deech, then myself, and then the noble Lord. I do not know whether the noble Lord has spoken to the Lord Chairman, but for some inexplicable reason the noble Lord has been asked to move it. Would it not have been right for the noble Baroness, Lady Deech, to move it, since her name appears first on the Marshalled List, followed by mine, then his, and lastly that of the noble and learned Baroness, Lady Butler-Sloss?
It is entirely in the hands of the Committee. However, having begun to explain the main purposes of the amendment, and as the controller of the Bill, I would have thought that this was always what we wished to do. I would have thought that it would be more efficient and less wasteful of time if I completed my speech. If the noble Lord feels hurt by that, the last thing that I would want to do is to cause such hurt, and I shall sit down. However, in terms of understanding our purpose and for the debate, it would be more courteous to the Committee if I spoke. If the noble Lord, Lord Henley, disagrees, I shall sit down. Does he disagree?
No. I just find it extraordinary that the noble Lord did not bother to speak beforehand to either myself or the noble Baroness, Lady Deech. I can only speak for myself, but I am sure that we will leave the noble Lord to explain this amendment and in due course we will speak to it. We shall also speak to his Amendment 4 which is grouped with it, and about which we have some considerable concern. No doubt the Government will respond in due course. We will then have to work through all the other amendments on this Thursday evening and see how we get on with the Bill. I shall leave the noble Lord to speak, but it would have been polite of him, to say the least, if he had spoken beforehand either to myself or the noble Baroness, Lady Deech.
I certainly did not intend to be rude and I apologise if I seem to have been impolite. I shall therefore proceed as quickly as possible so that there is ample opportunity for others across the Committee who support the amendment to speak. We can then deal with the later amendments as speedily as possible.
I think I have explained that the Law Commission has suggested that a period of two to five years would be appropriate. A five-year period would protect those in longer-term relationships, and it is arguable that there is more likely to be a financial imbalance in such a relationship. There are arguments in favour of the two-year period because there can still be significant unfairness and hardship where people have lived together for less than five years. We would support this amendment, but alongside Amendment 4 which provides a discretion to waive the five-year qualifying period in cases of exceptional hardship.
It is important to be clear that the Bill also protects cohabitants with children. Under the Bill, a child's primary carer can apply for financial support whether or not they have lived with the child's other parent for five years. That is vital for the following reasons. First, the number of people cohabiting is continuing to increase, as is the number of children being born to cohabiting couples. Cohabiting is now the fastest-growing family type, and by the second quarter of 2008 the proportion of dependent children living with cohabiting couples had increased to 13 per cent from 8 per cent in the same period during 1997.
Secondly, the existence of children makes it more likely that one partner will suffer the economic disadvantage if he or she is the primary carer of the children. The current law affecting cohabiting couples takes no account of their relationship and does not aim to achieve a fair outcome between former partners. The vast majority of unmarried primary carer parents cannot secure provision for childcare costs from the child's other parent to enable them to work. Thirdly, children's financial wellbeing is dependent on that of their parents. The risk of poverty is exacerbated for children of separated cohabitants because of the current lack of financial protection for dependent partners.
So, that is why we originally put in the two years. We seek to increase it to five years because we are very anxious that this Bill should be as cost-effective as possible and there should not be any unnecessary public expenditure incurred. We well understand the Government's dilemma because of the current economic recession. That is why, subject to the discretion in the other amendment with which this is grouped, we are strongly in favour of adopting a more conservative approach of extending the period from two years to five years with the discretion. I beg to move.
I say what I do about this amendment with certain principles behind me which also apply to all the amendments in the name of myself and the noble Lord, Lord Henley. I have tabled this amendment and many others in order to reduce litigation. This is for the sake of our daughters, and sometimes our sons, and for the sake of our grandchildren and their stability. This is against the background of the bitterness always engendered in family proceedings between two people who once had a good relationship. It is against a background of an industry of mediators who may not have had as much success as was promised 10 years ago, and against a background highlighted again only today in newspapers that fathers simply will not pay for their children. We know about the organisations that fathers support and the inexplicable refusal of men to take care of the families that they have left behind and the inability of the state to get that money out of them. We have to be realistic.
I speak to this amendment also against the background of the change, only this week, of family proceedings being heard in open court. The details that come up later on in the Bill, those in Clause 9—indeed, the whole situation—will be heard in open court. The judges may throw out the journalists, but every couple caught up in this situation will have to say to themselves that the details of their commitment, the details of their relationship or non-relationship, may be all over the press. They will have to recite all of that in front of a courtroom full of journalists. I also say this against the background of Article 8 of the European Convention on Human Rights, on the right to respect for private life, and the fact that we all have a human right to follow a path of relationships that suits us. This is sometimes outside the law. There is no disapproval of that. If we wish to stay outside the law and to have a private life, we have that human right.
Professor Stephen Cretney, former Law Commissioner with responsibility for family law some years ago, brought his mind to bear on this situation, in particular the length of time as set out in this amendment. He said that his approach was strongly influenced by the belief that litigation in the context of intimate relationships is very frequently if not always destructive. Of course it is right to provide a remedy for injustice, but care must be taken that the cure is not provided at too great a cost. I do not believe that it is the function of the legal system to provide a remedy for every situation in which someone could plausibly argue that he or she has suffered loss. Certainly, the legal system should not provide an opportunity for what can easily become a form of harassment. That is the problem with both the amendments in this group. The question is not so much whether in the end a claim would succeed but whether it could plausibly be put forward, and the cost is financial and emotional.
Surrounded as I am by noble and learned Lords, I still feel that I should point out that the cases that appear in court are only the tip of the iceberg. The power of the Bill, were it to be passed, would lie in the possibility of one of two people who had spent a short time together being able to say to the other, "Unless you pay me x, I am going to court". Those are the negotiations and the blackmail that the judges will not see, in the end. No doubt they will make sensible decisions in court, but they will not see what is going on beneath the surface and how this could be used as a weapon and a threat.
It will emerge in discussion about later amendments that there is already an amplitude of law to meet the needs of a former cohabitant who falls on hard times. Schedule 1 to the Children Act exists and is underused. The only gap I have been able to find is the example of a polygamous wife who never really got married in this country and who has no children. It has been argued in this House that there is no help for such a woman. Only the other day, the noble Lord, Lord Bach, said in response to an Oral Question that this nation does not approve of polygamous marriages. I would find it hard to believe that the House would pass a Bill that would have the effect only of supporting this narrow range of women who may have believed themselves to be married but in fact were married polygamously and left destitute.
It is right that the number of years goes up to five. In fact, had I thought about it longer, I might have said 10. Only 5 per cent of cohabitation lasts more than 10 years. Too often, to open the floodgates at two years, or even five, would have the bad effects that I have mentioned, quite apart from the ill effects of cohabitation law in general.
There are two groups of cohabitants, research shows us. There are young couples, often just beginning their working lives and not committed. Over half the cohabitants in recent years until 2007 were under 35. They are capable of sorting out their own affairs, they are unsure about commitment and we should not penalise them for trying out a relationship. The other half are older and perhaps underprivileged. They will be hallmarked by children, early breakdown and lack of resources, and there is no point in passing a law to effect the transfer of resources where there are none and where people will end up living on social security.
This is not the Law Commission Bill. I remind your Lordships that the Law Commission report did not, as in this clause, suggest automatic eligibility just because two people lived together; there needed to be evidence of qualifying contributions, and long cohabitation, however long, was insufficient. The Law Commission wanted a situation quite different from marriage. In fact, the problem with this clause is that if it is amended, the period will not even be five years because periods of separation will be allowed to count. If a couple live together for a year, separate for a year and come back together, that will still count. Indeed, in the Bill as it stands, almost any short period of cohabitation will be enough to send the deserted cohabitant to a lawyer or Citizens Advice to start a period of argument and hassle that can ill be afforded in this era of economic downturn. We must take account of how this will affect potential litigants as they separate. Many of the qualifications are impossible, such as the nature of commitment, but we will come on to that. This is an attempt to get some sort of cohabitation law on to the books in a way that will set back the cause of working women by many decades.
A period of two years would have promoted a walkout at one year and 11 months. I fear that a period of five years will stimulate men into walking out after four years. If, heaven forfend, the next amendment were to be passed, it would mean a complete collapse in stability because a man might well know, given the publicity that would no doubt attend this, that any short period of living with a woman may well lead to a claim for money. What we all want is stability for our children and grandchildren. Giving these rights promotes instability, as much research shows. In other words, it will be detrimental to children.
The median duration of cohabitations now is just under two years. Less than one-fifth survive five years. Many go on to get married. These figures were given by Ermisch and Francesconi in 2000 and in the Cabinet Office's own paper by the Strategy Unit in December 2008 called, Families in Britain. The Office for National Statistics says that a first cohabitation lasts for 39 months. That is the mean length. In other words, anything less than five years would be wrong and too short in my opinion.
In the end, it is not a good idea to encourage cohabitation, let alone when it is followed by break-up. A great deal has been written about high rates of abuse by men living with women who have children who are not his. The Law Commission said that it did not want to entertain trivial or farfetched claims. I fear very much that the amendments in the names of the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss, which cover anyone who had lived together for the shortest possible period, will certainly open the door to farfetched claims.
I am extremely sorry to interrupt the noble Baroness. She is speaking to the amendments—hers is the leading name of the group who have tabled them—but she seems to be ranging over the whole purpose of the Bill and a lot of other things that are not directly connected with her amendments. We had an interesting Second Reading debate for which I was present throughout, and many people made extremely interesting speeches, including the noble Baroness. Should we not perhaps get back to the amendment?
Before the noble Baroness, Lady Deech, responds, perhaps I may remind the noble Baroness, Lady Thomas, that quite often the discussion ranges a little wide on the first amendment to a Bill. I am not sure that it has ranged wider than Amendments 1 and 4. The noble Baroness, Lady Thomas, has been here for some time; it is not unusual for that to happen on the first amendment to a Bill as we clear the air before getting on to the issues. I am sure that every word that the noble Baroness has said on Amendments 1 and 4 has been on the subject. No doubt every word she still has to say will be on the subject, and no doubt others will want to speak.
I thank the noble Baroness for her helpful intervention. I wish to explain that by saying some of these things now we will save time on later amendments. In essence I want to say that five years is quite short enough and that Amendment 4 would simply open the door to litigation as soon as two people had lived together. We must realise that cohabitation tends to be a very short event, followed by marriage or separation. There are likely to be children with older couples who are already taken care of under Schedule 1 to the Children Act 1989.
The children's plight was well described by the late family court judge, Mrs Justice Bracewell, in a lecture to Gresham College. She said that cohabitation with different fathers of children does not provide stability, but stability is what I am seeking to promote by having a longer time, as in the first amendment. Stabilility is what children need.
Amendment 4 is in the same group, but it is fundamentally different. It undermines the period of five years. It virtually sweeps that aside and says that for any two people who claim to have lived together for only a short period—note that there is no definition of living together, as the Bill does not even refer to living together in one household—one of them could go to court and say, "Well, this is an exceptional case and I want this right". It would extend the possibilities of harassment and blackmail as pointed out by Professor Cretney. Indeed, any cohabitants excluded under any definition will complain. Amendment 4 might provide something for polygamous wives; though very many of them will be taken care of by the provisions that already exist to give financial provision for "wives" of void marriages. It is not the policy of this country to provide for such situations and there will be extra, expensive litigation over whether or not this new clause, were Amendment 4 to be passed, should apply.
To conclude on this point, most commentators on this have pointed to a 10-year period as the right one. The public, when surveyed, think there is such a thing as common-law marriage. However, when questioned in more detail, it is only when you get to a 10-year period that the public think that there should be rights. When the period of cohabitation in the scenario put to the public is reduced to two years, only 38 per cent of respondents think that a cohabitant should have a right to financial provision on separation. I support this amendment, but would extend the period to five years. However, I put it to the Committee that Amendment 4 is extremely dangerous and expensive in time, in stress, in legal aid and in private funds.
I too have my name down to the amendment in the name of the noble Baroness, Lady Deech, and I support the move to extend the period from two years to five. I support it because it makes a bad Bill a slightly less bad Bill, but I certainly do not support Amendment 4, to which we will come later, which seems to undermine the very purpose behind Amendment 1. I also have to say that I am now in a state of slightly greater confusion on the whole matter of that period of two years or five years. I always thought it would cause problems and therefore create work for the lawyers—which the noble Lord, Lord Lester, always denied—because there is always the problem of defining when that period of two years started. Did it start with this one-night stand, as it were, or that one-night stand, or whatever? Does it start when the toothbrush moves into what becomes the joint home? We all know what these things are like.
I am now told that it is not just a continuous period of two years or five years; it can be a whole series of a week here, a week there, a week whenever; so we have even greater evidential problems of defining how and when that two or five-year period lasts. No doubt the noble Lord, Lord Lester, who seems to have grabbed this group of amendments, will, when he comes to respond, let us know something about those evidential problems of defining the two years and the five years.
I move on to Amendment 4. I shall try to be brief, bearing in mind what the noble Lord, Lord Lester, had to say. As I said, I believe this undermines what the noble Baroness, Lady Deech, and I are trying to do in Amendment 1, and therefore, I will oppose the amendment. I appreciate that the two amendments are grouped and they appear together in the groupings, but I will just remind the noble Lord, Lord Lester, of the mantra that is attached to the list of groupings produced every day by those who serve us in this House. It says:
"Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place on the Marshalled List".
Therefore, I will—along, I presume, with the noble Lord, Lord Lester—support Amendment 1, because I think it will improve the Bill. However, when it comes to Amendment 4, I certainly will not support that amendment and I do not feel that I am bound by the groupings to accept it.
Before the noble Viscount sits down, may I ask for his help? He interrupted my opening speech, and I apologise if there was any impoliteness. Amendment 4 is grouped with Amendment 1, and I have not yet spoken to it. Would it be for the convenience of the Committee if I completed that now, so that we have it all in one piece, or would it be preferable for me to deal with it by way of reply, which would have the inconvenience that others cannot then reply to what I say? It seems to me to be better if I briefly explain Amendment 4 at this stage. I should be very grateful for guidance from the noble Viscount, Lord Henley, as to what he would like.
I am very grateful for the repeated promotion of my status in the peerage, but I assure the noble Lord, Lord Lester, that I am a mere Baron like him, and I have not risen to the dizzy heights of a Viscount. Before the noble Baroness, Lady Farrington, intervenes, it is open to the noble Lord to speak on it now, if he wishes, or later. If he speaks to it now, it is still open to other noble Lords to address him on that matter, because we are in Committee on the Bill, where there are no binding rules on what happens. Before the noble Lord gets up, I think that the noble Baroness, Lady Farrington, wishes to intervene.
What I was trying to explain to the noble Lord is that it may be a courtesy for the person in whose name an amendment stands if they have the opportunity to explain why they have put their name to the amendment. Then other noble Lords can speak to it.
I may have slightly confused the Committee. I was trying to make it clear that we are talking to Amendment 1, but I will not feel that I am bound by the convention on groupings, whereby if the first amendment in a group is accepted, one then accepts that the others come with it. I am making it quite clear—I hope that the noble Baroness, Lady Deech, will agree with me on this—that if the Committee agrees to Amendment 1, she and I certainly do not feel that we are bound to accept Amendment 4, and we will oppose it in its due place.
Although it is not for me to tell anyone what to do, I think it may help if we degroup these two amendments, because the Committee is getting into a difficulty. Therefore, if we deal with Amendment 1, after it has been decided on, the noble and learned Baroness can decide whether to move Amendment 4.
In that case, I will speak on Amendment 1, which I strongly support. I notice that, although the noble Baroness, Lady Deech, said that it would be preferable if it was 10 years, no one has put that proposal forward. We are dealing with five years and, so far, as the Committee will see, there is unanimity about five years. That is clearly right, because it demonstrates a couple's commitment to a genuinely serious relationship.
Two to five years was supported by the Law Commission. There are people who need help, even though they choose not to marry or are unable to. From my perspective, the Bill is intended to meet a narrow but crucial problem. Since the noble Baroness, Lady Deech, has already spoken rather more broadly, I will speak on a matter principally relating to those who would not need five years.
Children are obviously born to those who cohabit as well as to those who marry and they generally suffer when parents part. There is a group of women—and, occasionally, men—who are left, usually by the man, with children and no maintenance or other support. These women find that they have no right to the house, because it is in the man's name. There is a major problem for the state as well as for the children and their carer, because the state picks up the bill where the man should. He should pick up the bill not only for the children, which certainly comes under the Children Act 1989 and subsequent legislation, but also for the mother—or, occasionally, father—of the children who is left to look after them; he should pick up the bill not only for maintenance but, at least, for a roof over their heads while the children are young.
The noble Baroness, Lady Deech, has made the point that Schedule 1 to the Children Act 1989 appears to provide for the carer of children as well as the children. However, that must be read subject to Section 8 of the Child Support Act 1991, which does not permit a court to deal with maintenance for the benefit of children where the respondent to the application earns less than £104,000. That is not the group of families with which the Bill is concerned. There has been the occasional case where money has been paid. A Sudanese woman wanted to see her child in the Sudan and got her air fare. However, actual maintenance for the woman for the benefit of the children where the man has only modest means is not met by Schedule 1 to the 1989 Act. I respectfully disagree with the distinguished and learned academic the noble Baroness, Lady Deech, but my experience as a former judge and, much more important, that of family barristers and solicitors is that this schedule is scarcely used and has scarcely been of any effect. The Bill would cover that problem. It would take the children off the state, which is one of the most important things.
The noble Baroness, Lady Deech, spoke of the importance of there not being litigation and said that the Bill would promote it. A later group of amendments to the Bill deals with alternative dispute resolution. The noble Lord, Lord Lester of Herne Hill, as the promoter of the Bill, supported by me and those behind us—the Resolution Foundation and the Family Law Bar Association—think that ADR is extremely important. The draft rules for family proceedings have family dispute resolution. You would not be able to take advantage of that unless we had ADR in the Bill.
The suggestion that being in open court will cause a flood of the public is, if I may say so, pitching it a bit high. The public are not entitled to be in the court, only the press. I cannot believe that the press will attend every county court case, which is where those cases will be heard before circuit or district judges. There will be no publicity, because the rules put forward by the president of the Family Division in his recent practice direction say that the press can say nothing that is not approved by the judge; one of the most important points that you cannot have will be the names of the family. If the Bill goes through, it will get the benefit of that practice direction and, whatever blackmail there might be behind the scenes, it will not be on publicity. I must ask the noble Baroness: what sort of blackmail goes on by the men? Women suffer from blackmail as much as men. I do not see these as the floodgates.
Another point in Clause 8, to which we will come and which is not in dispute, shows that the woman will only get enough money for her "reasonable needs", not a footballer's girlfriend's bonanza. It will be for a limited period, because she should be expected to get back to work as soon as possible. Consequently, I do not see that the points made by the noble Baroness should trouble the Committee, while I am particularly happy that we are, so far, all in agreement on five years instead of two—an entirely sensible amendment.
The right reverend Prelate the Bishop of Winchester, who sadly cannot be present this evening, spoke at Second Reading of being a critical friend of this Bill. The result is that these Benches can support some of the amendments, but not others. I apologise that I shall shortly have to leave the Committee to get back to my day job, but the fact that these Benches will then be empty does not reflect a lack of interest on our part. We hope to play a full part at a later stage.
Before I go, I am pleased to support Amendment 1. The noble Baroness, Lady Deech, referred to Families in Britain: An Evidence Paper, prepared for the Cabinet Office in December 2008. We were told in that work that about three in five first cohabitations turn into marriage and that less than a fifth of cohabiting relationships survive five years or more. It would, therefore, seem that five years is about right as a qualifying period for protection.
Before I come to the amendment, perhaps I should declare an interest as a cohabitee. That is not entirely of my choosing, as I have asked the lady in my life on several occasions to change the situation. To date, my blandishments have not been successful, but mutual friends have said that that shows good judgment on both our parts. However, as we put things on the record in this House, the publication of that declaration in Hansard may—who knows?—help to change the situation.
At Second Reading, my noble and learned friend Lady Scotland made it clear that the Government do not support this Bill, believing it to be unnecessary and to take the wrong approach to addressing the mistaken perception that cohabitation comes with a quasi-marital legal status. A better approach would be to seek to correct the mistaken perception, rather than to change the law to match the mistake. We also believe that the approach adopted by the Bill would generate large-scale litigation, with a vastly increased burden on the parties, the Legal Aid Fund and judicial resources.
Amendment 1 would, it is true, go some way towards reducing the scope and impact of the Bill for those affected by its provisions, but our concerns remain. As the Committee has heard, it is also true that, according to the 2001 census, the number of unmarried couples living together is over 2 million—and I would suggest, as has also been said, that cohabiting couples are more likely to separate than married couples. Yet our concerns remain.
Given both the time constraints and the lateness of the hour, it might help the continuation of the debate if, rather than intervening on every single amendment to offer a government view, I were simply to invite those Members who wish such a view to be expressed to seek it. I would thereby intervene not on every point, but only where the parties believe that the Government's view might add to the elucidation of this matter.
This amendment seeks to highlight the fact that such advantages as might be conferred by this Bill will be confined to those who are not family members and not related within the prohibited degrees. I find this inexplicable. The purpose of my set of amendments is to extend whatever law we end up with to those who are in family relationships. There is no definition of cohabitants contained here. Sexual relationship is presumably not necessary, or fidelity or any particular relationship save an assertion that two people are cohabitants. It seems to me wrong to omit from any benefits that might flow from this the elderly daughter who has looked after a father for many decades, or two sisters who have cared for each other and shared a home. Indeed, to omit those who are within the prohibited degrees piles discrimination on discrimination. Our human rights say that there should be no distinction drawn in law in the rights offered thereby depending on marital status. To deny any of the benefits of this Bill to, say, a brother and sister living together seems to me to discriminate against them, and I cannot see why this should be. The point about prohibited degrees is to prevent people from forming a sexual relationship that is unhealthy and bad for children genetically, but it has nothing to do with the financial support that one person may demand from another, or, much more importantly, what the situation might be on death.
I have spoken before in this House, as have others, about the two sisters, the Misses Burden, who are in their 80s and have lived together and shared a house throughout their entire lives. They have argued repeatedly, including in front of the European Court of Human Rights, that they should have the benefits that married couples and civil partners have, particularly on death, and that they should be allowed to postpone inheritance tax when one of them dies so that the survivor does not have to find a sum—£60,000 in this case—which would probably mean that the house would have to be sold and the remaining sister would become a burden on the state. There is agreement around this House that this should not be the case.
This House has tried before, during the passage of the Civil Partnership Bill in 2004, to include people who are within the prohibited degrees in some of the tax benefits that are given to others. The proposal was passed but fell later on the ground that that Act was not the place to do it. This Bill therefore seems to be the place to do it. We all have a great concern for the burdens shouldered by carers, who are often close family members within the prohibited degrees. They could not marry or enter into a civil partnership, will not be deemed to be cohabitants and will get none of the benefits, such as they are, in the Bill.
By debating cohabitation, this House shows that it supports unions and commitment and that it thinks that support should be given to cohabitants who have fallen out. Surely it must be the same for—let us imagine—two sisters who have expressed fidelity to each other, supported each other and become dependent on each other. Article 14 says precisely that there should be no distinction based on birth or other status. I have mentioned it before. In the case of two family members, the length of commitment goes on until death. It has never ended; there is no question about it. One needs to avoid upsetting them and making them feel bitter and resentful because benefits are given to cohabitants.
I simply cannot understand why the possibility—not even the existence—of a sexual union is of such importance. It is very odd indeed that only a sexual union should attract the benefits of the Bill. The Government took down the barriers between marriage and other forms of association by giving advantages to civil partners of the same sex. Now that that barrier has been taken down, there is no logical case for not including in the Bill two family members, such as two sisters or a father and daughter. Of course, what they get will be at the discretion of the court. It has nothing to do with anything unpleasant, which is what prohibited degrees are normally associated with, but it is discriminatory to deny relief to two people whose companionship has lasted for decades.
To illustrate the discrimination that arises from the Bill, imagine three sisters. One is very pretty and lives with a footballer for a while. One marries a vicar and their union lasts for many years. She works extremely hard, but they have no money. The third sister never marries and looks after her elderly father for decades. Under the existing law and the Bill, we will end up with a situation where the vicar's wife, on divorce, will probably get nothing because there is nothing to go around. The lady who lives with a footballer for a while will get a great deal. I do not believe that reasonable needs are treated meanly by the family courts. There is the recent, extreme, example of Sir Paul McCartney's wife, whose reasonable needs were estimated at £28 million. The courts have full discretion. We do not know at all how that will come out. The ones who get the benefits are the ones who find rich men. That is what is so upsetting and why family members should be included.
I wonder if I would be forgiven for saying that the current law in relation to footballers' wives comes under the Matrimonial Causes Act. The House of Lords has made it clear that the phrase "reasonable needs" is no longer appropriate between spouses. The words "reasonable needs", which used to be the law between husbands and wives, is no longer the law between them. That is why the phrase is in the Bill. It takes us back to a situation where a moderate sum is paid, not a footballer's wife large sum. They come under House of Lords decisions, which are a completely different state of law.
I am referring to footballers' girlfriends and to the clause in the Bill that, at the moment, includes just about everything in consideration of financial relief, although I hope that we will cut it down dramatically. There is no telling what those reasonable needs will be. Two sisters or a father and daughter cannot, of course, take advantage of Schedule 1 to the Children Act, which allows for support for the mother of a child. If there is anything wrong with it, it could be amended, but it would be a pity when all that is necessary is a small amendment to Schedule 1 to bring in this whole panoply of cohabitation law, which as it stands will simply lead to family members, such as sisters, who have lived together feeling hard done by because their contribution is not recognised. I see no reason why they should not be included. Later I hope to speak to an amendment about inheritance tax, but for now I think that family members should be included.
How would the noble Baroness answer the question about whether her amendment would drive a coach and horses through taxation law? The noble Baroness may not believe that inheritance tax should exist but I happen to believe very strongly that it should exist because of the distortions created within society by the passing on of great riches. Would this provision not be used as a way of undermining the taxation system which seeks to create greater equity within our society?
I completely share the concerns of the noble Baroness. Later we shall come to an amendment in which I propose a discretion for the court to allow for a roll over or deferral of inheritance tax—simply a discretion. I do not for a moment suggest that we should create a loophole whereby any two family members can use this to avoid inheritance tax. The Committee will know of the much debated and much discussed case of the Burden sisters. That is the one situation which I have in mind. I also cannot see the logic of knocking out prohibited degrees of relationships at this stage. We are not talking about people forming a sexual relationship; we are simply talking about a situation in which two, possibly elderly, members of one family live together. They alone will be excluded from the benefits now given to divorcing couples and civil partners.
I have great sympathy with the problem of the Burden sisters and others. During the consultation on this Bill one of the original ideas that we put forward was that it might be possible to do something for siblings and other carers in that capacity. In the end, the reason why we decided to limit the scope of the Bill as we have to cohabiting couples in a sexual relationship was because we realised that if we tried to widen the Bill to cover siblings and carers of all kinds, it would be inconceivable that any Government, including a future Conservative Government, if there were one, would ever accept such a measure. We remembered Rab Butler's famous reference to politics being "the art of the possible". There is no fundamental difference in principle about the need to do something for people like the Burden sisters. Of course, they lost their case in Strasbourg, where the court said that there was no obligation to deal with the difference of treatment from which they suffered.
I apologise for referring to the noble Lord, Lord Henley, incorrectly as "Viscount". I meant no disrespect at all, rather the contrary. The noble Lord will remember that we have been here before. During the passage of the Civil Partnership Bill, an attempt was made to widen it beyond civil partnerships to all carers, a topic which was put again and again by those who sought to oppose or wreck the Bill. The Government firmly resisted that. I should be interested to know whether that would be the position today, although I know the Government have reservations about the Bill as a whole.
We have been very careful about how the Bill is now framed and the noble Baroness, Lady Deech, has not complained about this on any earlier amendments. The Long Title makes it very clear what the Bill is about. It states:
"Provide certain protections for persons who live together as a couple or have lived together as a couple.
Clause 1(1)(a) says,
"in the event of their ceasing to live together as a couple", and in the definition of "cohabitant", Clause 2(1)(a) says,
"live together as a couple".
So the scheme of the Bill is that there is a sexual relationship between a cohabiting couple. The condition in Clause 2(3)(b), which the noble Baroness wishes to delete, is that the cohabitees,
"are not within prohibited degrees of relationship in relation to each other".
In other words, although the Bill is dealing with a cohabiting couple, what is being proposed is what in marriage would be regarded as incest. I know that is not the noble Baroness's proposal but that is what it comes to. We have been extremely careful to make sure that the only people who can benefit from the Bill are those who are not in prohibited relationships in the same way as would apply to marriage.
The noble Lord mentioned living together as a couple and then went on to say that this implies a sexual relationship. This definition is not in the Bill; it is novel and I do not think that all of us would assume that living as a couple entails a sexual relationship. What about two people aged 90 in an old-age home—where, no doubt, all of us will find ourselves one day—who decide to share a home with a carer? I do not think there is any requirement in this Bill for a sexual relationship and we cannot presume that it is there or that it should not be.
The noble Baroness, Lady Deech, should do justice to herself. She knows perfectly well that the reason why she is seeking to delete the paragraph on prohibited relationships is because she wishes it not to be confined to a sexual relationship. She is under no doubt that the Bill is dealing with a couple living together in a sexual relationship. If that were not clear, we could make it absolutely clear later in the passage of the Bill. She is seeking to apply it to brothers and sisters and everybody else implied by "within prohibited degrees" because she wants to do justice to the Burden sisters and to carers generally. She also wants to deal with inheritance tax. She does not want to abolish inheritance tax; she wants to treat a cohabiting couple in a non-sexual relationship in the same way as a married couple, but giving a discretion instead of a right, so that when, let us say, the man dies and the wife—or in this case the cohabitee—would normally be liable for inheritance tax, that can be postponed. I understand why she is doing that but it is wholly outside the scope of what is in intended and would kill the Bill. Since I know that the noble Baroness, Lady Deech, is an enemy of the Bill, I suspect that is her true object, but I strongly oppose the amendment for the reasons I have just summarised. It would not be possible for any Government, including a Conservative Government, to approve a Bill of this nature, dealing with it in this way. I hope to hear from the Minister on that point.
Before the Minister responds, I will say a word or two. I assure the noble Lord, Lord Lester of Herne Hill, that I also remember the Civil Partnership Bill on which my noble friend Lady Wilcox spoke for our party. That was a government Bill, which seemed appropriate for a matter of this sort, and we explored—although I do not think at any stage we voted on—the question of what, for reasons of simplicity, we will refer to as the case of the Burden sisters and others. I would not suggest pressing this amendment to a Division at this stage, partly because, although I am speaking from the Front Bench, I am not speaking for our party, as we do not do that on Private Members' Bills. I am responding for myself and I imagine most right-minded people in the Conservative Party would agree with me, but I have no idea what any future Conservative Government are likely to do in relation to a Bill of the sort that the noble Lord has put before us.
What I know is that most of us would think that a matter of this sort is more appropriately dealt with by a government Bill, as was the Civil Partnership Act 2004. It might be that this Government, in their dying days, if they can find nothing else to do, will bring forward such a Bill and we could have some fun discussing it.
At this stage on a Thursday evening to be discussing matters of this sort when we have another 30 or 40 amendments and we are quite obviously not going to finish the Bill seems pointless. All I can say is that I have extraordinary sympathy for the amendment; that is why I added my name to it. It is right that one should do something to help with inheritance tax or other matters relating to financial support those who are living together but are not necessarily cohabiting in the noble Lord's sense of the word. I therefore support the noble Baroness on her amendment; it may not be the right amendment to divide on, but there may be other amendments later on which we want to divide, because there are major financial implications. At this stage, we would all be very grateful if the noble Lord, Lord Brett, could explain to the House what those are and give the Government's view, because this is one amendment—there will be others—on which the view of the Government is very important.
Before the Minister gives us the benefit of the view of the Government, perhaps I may say a few words. I first declare an interest as counsel for the Burden sisters in their own successful claim in the European Court of Human Rights. Some counsel invariably convince themselves, if not the court, of the justice of every cause that they are advancing. I am not in that category, but I share the concerns expressed by the noble Baroness, Lady Deech, that the Burden sisters and others like them are unjustifiably discriminated against by the state in being denied similar tax and other benefits to cohabiting partners who are not related. I very much hope that the Government will listen to the repeated concerns expressed by the noble Baroness and others that a step should be taken to amend inheritance law to remedy the injustice to the Burden sisters and others in their circumstances.
However, the Bill is not an appropriate vehicle to secure that aim. The Bill is intended to remedy a specific social mischief. To expand its aims would inevitably make it even less likely that it will be enacted.
I, too, have the greatest possible sympathy with the amendment and with the noble Baroness in her promotion of it, but I agree with the noble Lord, Lord Henley, that this is a matter that ought to be in a government Bill at some stage. As the noble Lord, Lord Pannick, said, I should like to think that the Government will look at the matter, because there is a manifest injustice to the people involved, but it is not appropriate that it should be in the Bill. The Bill is intended to deal with men and women and single-sex couples living in a relationship which has some analogy with marriage. It is a relationship, whether it is sexual or not, which is treated as a couple in a way that two sisters or father and daughter are not so treated or so understood in ordinary language. I hope that the noble Baroness would not feel it necessary to press the amendment for the reasons that the noble Lord, Lord Henley, has already given.
It is reassuring to hear the support for the amendment. An answer to two small points would enable me to let go of this. One is that the noble Lord, Lord Lester, has indicated that the way the Bill is drafted, together with the amendment in my name and that of the noble Lord, Lord Henley, must mean that a couple is having a sexual relationship, whereas the noble and learned Baroness, Lady Butler-Sloss, said otherwise.
I did not mean to say that it was as narrow as that. The way it has just been put by the noble and learned Baroness, Lady Butler-Sloss, is the correct way of putting it, which is that it is in many respects analogous to marriage. It is not about whether there is actual sex; it is that it is a cohabiting couple in a continuous relationship. That is the point. We are not dealing with sexual matters, nor should we in the Bill.
That is reassuring. One of the scenarios we feared is questions when determining finance about the extent of sexual relationship. I am glad to hear that that is not included. It would be reassuring if the Government would indicate whether they have heard our concerns about the Burden sisters and will do something in the future for people like that.
I rise to inform the debate and not particularly to respond to it. These linked amendments effectively include Amendment 26, which also was spoken to. These amendments change the conditions that must be met for the Bill's provisions to apply. The requirement to live as a couple remains, but the requirement that couple should not be within prohibited degrees of relationship is removed. This, as has been said, would appear to mean that, for example, a brother and sister could live together as a "couple" and be considered "cohabitants" within the meaning of the Bill, so that the provisions of the Bill would apply.
That would seem to me to raise at least several major issues, not the least of which is the difference between family members—brothers and sisters—and those who are married or in civil partnerships. The latter have made a formal public commitment with legal consequences, while brothers and sisters and other family members simply have not. Also, the families about which the noble Baroness and others have spoken may be the kind of families that are totally at one in understanding outcome and outlook and that never have even have a tiff. However, that is not necessarily the situation in all families in the United Kingdom. It is quite possible to have someone living together as sisters or brothers, or a mixture of both, that fall out violently. The consequence of this, if it were to be enacted, would be the possibility of litigation once they have ceased to live together. The Committee will therefore understand why the Government are not supportive of these amendments.
The noble Lord, Lord Henley, invited me—tempted me, even—to suggest that the Government might have nothing better to do in their dying days than to introduce legislation. As the Committee knows, in 2006 Scotland introduced provisions similar to those recommended in the Law Commission report. We wish to learn and assess from its experience before we move down that track in any way. The noble Lord, Lord Henley—a near neighbour of mine in the beautiful county of Cumbria—and I are both quite proud of the size and quality of the chickens that we have in that county. I can only suggest that he should not count quite as many as he seems to have counted at the moment.
This amendment and those coupled with it are about retrospectivity. One of the striking features about the Bill's drafting is that it is retrospective in looking at cohabitation that occurred before the commencement date while at the same time ignoring agreements that might have been made before the commencement date. It seems to me not right that the law should apply to two people who started to live together before the Act, especially as they will have made no formal commitment, as the Minister has just pointed out. That is the whole trouble with the Bill. People who have deliberately avoided making a commitment are to have a law placed upon them. Yet, at the same time, in English law, when adult married couples make a prenuptial or post-nuptial agreement it is largely ignored by the court. It is an extraordinary situation.
Certainly, the law should not be retrospective. The retrospective application of the law is nearly always against the rule of law. This goes back into history. Citizens should know, in advance, before they take any action, what law will be applied to what they are doing. In the past, people will have entered cohabitation in the belief that it is a private affair between the two of them. They chose it deliberately because there would be no consequences. To come along at this stage and catch that previous cohabitation seems very unfair and contrary to what we normally understand the reach of the law to be. Blackstone and the Athenians were against retrospectivity. Allah is said to have been against retrospectivity. He allegedly said, "We never punish humankind before I have sent in a messenger".
This amendment will prevent the clause operating at a time prior to the enactment of the Bill, which would therefore cut down that which I fear—namely harassment, blackmail and threats of litigation. It seems to me that the legal consequences of actions taken in the past should be determined by whatever law applied then and not be subject to law which was not discoverable at the time. After all, even in the case of Sir Fred Goodwin, did we not all cry out in outrage at the thought that something might be taken from him retrospectively? European law says that a,
"state cannot retrospectively remove a right without a transitional period".
We should be careful throughout this Bill to make sure that there is no counting of previous cohabitation and that where we are counting a two-year period, beyond which one would not be able to bring an application because the cohabitation is too old, this should operate only after the commencement date. It is extremely important that if a Bill like this is passed, people should get the maximum publicity and should know what they are letting themselves in for. We should not open the floodgates.
When I taught at Oxford University, I used to warn my male students that if they ever lived with a girl they should be very careful not to say anything like, "Come and live with me. You will be safe. All this will be yours". That was because they would launch themselves into an estoppel or constructive trust situation. I must have produced a generation of very silent lovers, but I did at least warn them. It is extremely important in this situation to know what you are doing and that extremely informal arrangements of the past should not be, as people would see it, penalised. I am very concerned about the shortage of legal aid for cases like this.
In recent months, the Family Law Bar Association and others have protested vigorously that some of the most serious cases we face of vulnerable battered women and babies are not getting proper legal attention because the family legal aid bill is being cut by £6 million. I cannot find it just that we should open a door to cases between cohabitants who in the past had no idea that this would happen while at the same time cutting legal aid for genuine physically dangerous situations that exist now.
This Bill needs publicity and needs to allow people to think about what they are doing. That is the purpose of this amendment, which I hope the Committee will support. I beg to move.
I fully support the noble Baroness, Lady Deech, in Amendment 3, which is grouped with Amendments 12 to 14 and attempts to deal with the whole problem of retrospection. I shall be very interested to hear what the noble Lord, Lord Lester, has to say on this in due course. I imagine that, as a good lawyer and a good human rights lawyer, he will be opposed to retrospection as much as we are. When the noble Lord comes to reply, perhaps he could also deal with the points I asked earlier on the commencement of the two or five years. I still think that it is a difficult evidential problem that will create a lot of joy for the lawyers and which we would like to have dealt with before we see the departure of this Bill.
How do we define when that cohabitation started? I talked rather flippantly of the one-night stand, or maybe the second one-night stand, starting off that process. Perhaps it was when the toothbrush moved into the other party's quarters, or does it need slightly more than a toothbrush—for example, a suitcase full of clothes as well? No doubt, the noble Lord will be able to assist the Committee in providing an answer to the point that I asked him about on Amendment 1.
I am afraid that the noble Lord, Lord Henley, will have to hear me give the answer first. There is no reason why the noble Lord, Lord Lester, should not give it as well. I oppose the amendment. I take the point of my noble friend Lady Deech about retrospectivity, but we are dealing with a particular group of people who have been in long pre-existing relationships and who will need help. If we make this provision as from the date when the Bill becomes law, they will have to wait another five years before they and their children, who may by then be grown up, get any help of the kind that I hope the Bill could give.
It is intended that the Bill should be retrospective because it is there to help that comparatively small but significant group of vulnerable people, mainly women. A large number of battered women are cohabitants. They need not only injunctions on non-molestation orders but financial support. One without the other does not go far. So the legal aid that was being given, if it is given, to the battered woman would not be a great extension for her to obtain a certain amount of money to help her bring up the children.
The noble Lord, Lord Henley, made a point about the law. Under Clause 8,
"The court may make a financial settlement order if ... having regard to all the circumstances, the court considers that it is just and equitable to make an order".
Having been a judge, I declare my interest. If we are talking about a woman having a series of one-night stands, with the toothbrush moving from one place to another, she would not receive any money. That is the short answer to the point of the toothbrush. In addition, judges are perfectly accustomed to dealing with commencement dates and final dates of relationships; they have had to do it for years and years under the Matrimonial Causes Act 1973. I have had to work out when people started to live together and in particular, because of marriage, when they parted. The date of parting was often extremely important in assessing whether they fulfilled the requirements of having been separated for a sufficient number of years.
It is a judge's job to evaluate the evidence and come to the conclusion about whether either of them was telling the truth. In many cases between couples who have been living together, no one is telling the truth; as a result, the court comes to a practical conclusion. I see no difficulty; I am slightly surprised that the noble Lord, who has some experience of legal matters, should believe that this was a difficult matter for a judge at any level to work out when they started together and when they finished. They are all practical facts that can be found by the judge.
I declare another interest. I was a pupil of my noble friend Lady Deech at Oxford. I always listened carefully to what she taught me about the facts of life as well as the content of the law. One of the legal principles she taught me is that the courts will interpret legislation to deny retrospection so far as fairness and human rights principles require it to do so. That is sufficient protection in addition to the points with which I agree, made by my noble and learned friend Lady Butler-Sloss.
I shall deal with a number of points. First, the noble Lord, Lord Henley, asked how the court would assess a continuous period of five years. The answer is that the court is perfectly capable of dealing with it as a question of fact. The evidence would be put forward in the ordinary way, as it is whenever a continuous period is required to be determined. I see no difficulty about that and do not understand why there should be.
Secondly, I want to make a point that has not so far been made. Couples who live together for five years before the Bill comes into force but did so without wishing to accrue rights and responsibilities in respect of each other will, under the Bill, be able to opt out during the lead-in period. In that way, the Bill avoids imposing obligations on couples who do not wish to be bound by the Bill's provisions, but it would cover those who do not so object and who deserve protection. There was very strong support in the consultation on the Bill to cover existing couples, and so far as retrospection is concerned, it is commonplace in dealing with remedial legislation—such as equal pay legislation, to take an obvious example—to give the benefit "retrospectively", if one wants to use the word, in a period before a Bill comes into force to someone who is the victim of discrimination in some context.
It is absolutely clear that in the criminal law no retrospective penalty should be imposed because, as the noble Baroness, Lady Deech, has said, it is part of the rule of law and the principle of legal certainty. There is no problem about that. We are dealing here with remedial legislation with a full capacity to opt out. Therefore, my own hope and belief would be that this is fully compatible with human rights. Indeed, it actually promotes the rights of a willing cohabiting couple who want their accrued rights and responsibilities to be taken into account under the Bill. As I say, there was strong support for this.
However, I agree with the noble Baroness in her concern about legal aid in family proceedings, including public law family proceedings. Of course the costs of lawyers and litigation arise in the family area particularly when dealing with the ghastly complexities of, for example, trust law and matters of that kind. This Bill does not give rise to complicated legal issues of the kind seen in the principles of equity and trust law under the bad law that exists at the moment—bad law in the sense that it is unusable for working-class couples without the ability to pay for expensive lawyers. Therefore, I join with those who are opposed to the amendment.
A couple who found themselves before the noble and learned Baroness, Lady Butler-Sloss, would be fortunate, and her experience is valuable. But I must remind the Committee that if this were to become a retrospective law, most of those couples would never find themselves in a court. Rather, it would be trips to the solicitors after conversations along the lines of, "I lived with you 10 years ago and I left without a penny" or "I lived with you five years ago". All that will be going on and form 99 per cent of the cases. Only very rarely would such a case make it into court, but retrospection will reopen the bitterness of old relationships. That is the danger, not what happens in court, where I have every faith in what the judges will do. Threats will be made and expenses incurred that will not be seen in court because of retrospection. There are also problems with an opt out, although this may not be the time to go into them.
I must appeal to the important principle that something as deeply profound in its effect as this law should not be retrospective. There needs to be publicity. I should like to test the opinion of the Committee because I believe it to be a very important principle.