Divorce (Financial Provision) Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 1:18 pm on 11th May 2018.

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Photo of Lord Davies of Stamford Lord Davies of Stamford Labour 1:18 pm, 11th May 2018

My Lords, I apologise to the noble Baroness, Lady Falkner, for having misread the Order Paper and inadvertently jumped the gun. I was in the process of trying to congratulate the noble Baroness, Lady Deech, on her work in this field and on an admirably lucid and, if I may say so, succinct Bill that she has brought before the House. I believe that she is performing a valuable service for the country, for the law and—I will explain what I mean by this in a moment—for Parliament itself. To my certain knowledge she has been engaged in work on this project for three or four years, and I hope that we are now getting to the point where eventual success may be within sight.

In my view, the present state of the law as has been accurately described this morning is, if I can put it in slightly stronger language than has been used, a rather discreditable shambles. The jurisprudence has wandered a long way from the original statute, which people take little notice of, and that jurisprudence varies quite inconsistently and incoherently from one case to another, as the noble Baroness, Lady Shackleton, has just said, from first hearings to appeal hearings and so forth. That is obviously an undesirable situation for everyone. The law in a free society should be something that everyone can understand. In the present situation in the matrimonial area, it is quite impossible for lawyers to give clear advice to their clients as to the likely outcome of different cases. The fact that it is very difficult to give such advice does not mean to say that advice is not demanded or indeed being paid for at a very high price in many cases, as we have heard, but that highly priced legal advice could be of little value in many cases because of the uncertainties in this area.

Incidentally, I praise the noble Baroness, Lady Shackleton, for the line she is taking on this, because, given her substantial practice in this area, her endorsement to the Bill displays an altruistic and self-sacrificial attitude, and it is admirable when one comes across that.

There is another problem about the state of the law in addition to those already mentioned—which I therefore do not need to go into. That is that the law in its present state has proved to be a valuable and useful instrument for unscrupulous people who want to exploit others by means of fortune-hunting. There have been many cases in the press which have received a lot of publicity, and the one which we all remember from a few years ago was when a woman who had practised for some years as a professional prostitute at quite a high level in the market succeeded in marrying one of the greatest and best-known singers in the world—perhaps the best-known—and clearly expected a considerable dividend from that. She waited for the two years which is not of course statutory but often appears in the jurisprudence to be sufficient to get the full payout and then sued for divorce. She got only £20 million, not the much larger figure that she was expecting, so there is something to be said for that. Nevertheless, I think that £10 million per year is quite good payment, even in that profession. It is not in the interests of the law that it should be abused in that obvious way, which is one more reason for modernising it.

I am delighted that the noble Baroness, Lady Deech, as part of her programme, intends to provide legal backing for prenuptial agreements. Some years ago, I tried in another place to achieve that. I introduced a Bill which received an unopposed Second Reading in the other place but, as often happens to Back-Bench initiatives, it did not make any further progress and I have been waiting for an opportunity to support someone else in the venture. I am delighted that that opportunity may now have arisen.

As the noble Baroness said, the inspiration for her Bill has been many cases in Scots law, which is of course a form of Roman law. It is therefore not surprising that the general picture to which she is looking for us to conform is familiar to the continent of Europe, because all those jurisdictions have provisions much like these. The Scottish position, which says that matrimonial property is property accumulated or acquired during marriage by the two parties, not property received as a gift or inheritance from outside or which is acquired by one of the parties before the marriage, is sensible, coherent and immediately understandable. It is nice to think that, if the Bill or something like it gets on the statute book, there will be a clear criterion of that kind which everyone will be able to understand.

I make one general point before I sit down. I do not think that Parliament is very good at one of its essential tasks, which is to keep the law up to date. We are actually quite bad at it. When you come across a case where the jurisprudence is out of line with the statute, that is always a warning signal. That means that, in principle, Parliament should be looking at it, but often we do not.

I shall perhaps shock the House by saying that one incident that caused me considerable concern was a change in the law relating to rape within marriage. Under traditional common law, rape was impossible if the parties were married. I disapproved of that and was very much in favour of the law being changed, but I was horrified that the law was changed not by Parliament but by jurisprudence. That was a fundamental change, it was a matter of principle, it was a 180 degree reversal of what had existed before. That seemed to me to be a decision which Parliament should be taking, not the judges.

Another case that shocked me very much relates to the law on the right to die Bill—not the Bill itself, which of course failed in the Commons recently, unfortunately, since I supported it strongly. That was the issue of what happens to relatives and close friends of people who are dying and want to terminate their lives more comfortably and rapidly by going to Switzerland or some other jurisdiction where it is allowed. Are the accompanying relatives or friends guilty of a criminal offence, of aiding or abetting suicide? That is a very important issue, raising all sorts of moral and social problems, as well as some technical, medical issues. It should have been debated by Parliament, and Parliament should have taken the decision. What happened there was even more shocking. It was not the jurisprudence or the judge that determined the issue but the prosecutors—the Director of Public Prosecutions. My right honourable friend in the other place is a man for whom I have the greatest regard, and I think that he took the right decision—but it was completely wrong to get to the point when prosecutors had to change the law. That must be wrong. So Parliament is not good at doing that fundamental job.

We have another case here in which we all agree that the situation is very unsatisfactory. I have always said that the situation is discreditable to Parliament that there should be such a mess as we find in this area of the law. It is very important that in future Parliament makes a conscious effort to do the essential job properly of revising the law from time to time, and not just waiting for the Law Commission to come up with proposals, because on occasions it is far too pusillanimous—and this is one of those occasions. It is our responsibility, ultimately, to decide these matters; it is not a responsibility that we have carried out very well but one that has certainly been taken up in the most proper and effective way by the noble Baroness, Lady Deech. I shall strongly support this Bill as it goes through its various stages, as I hope that it will from now on.