Committee (1st Day)

Part of Cohabitation Bill [HL] – in the House of Lords at 6:00 pm on 30th April 2009.

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Photo of Baroness Deech Baroness Deech Crossbench 6:00 pm, 30th April 2009

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.