This is my introductory address to a Special Public Bills Committee of the House of Lords – a so-called Jellicoe Committee. It was chaired by Lord Brightman, a retired law lord, and included Lord Wilberforce, Lord Mackay of Clashfern (then Lord Chancellor) and Lord Irvine of Lairg (a future Lord Chancellor). After being addressed by the Lord Chancellor and myself the committee, which was largely but not exclusively composed of lawyers and former law lords (with the Lord Chancellor as an active member), would give the Bill expert clause by clause consideration, with the help of more than 50 written representations and twelve hours of expert oral evidence. In my opening address I described three different Acts , passed on different occasions, by different routes and for different purposes, and the need to rationalise them into a coherent body of law which courts at all levels could use.
Once through the House of Lords, the Bill received a second Reading in the House of Commons off the floor of the House and passed through its Committee stage very rapidly. All that was then needed was a Report stage (which would have been mainly a formality) and the Third Reading in that House, for which a small amount of time was set aside.
However, there was then a curious episode which knocked the Bill off course. Seldom had a measure been subjected to such intense scrutiny. The Commission itself indulged in its usual round of very thorough consultation before it reported in 1992. The House of Commons Home Affairs Committee used the report as the centrepiece for its inquiry into domestic violence in 1993. And the House of Lords’ “Jellicoe” committee gave it a further very thorough scrutiny. The Daily Mail, however, who had really set its sights on the Commission’s divorce reform proposals, which would be presented to Parliament the following year, published a scare story to the effect that an organisation peopled by left-wing lawyers was trying to smuggle a subversive measure through Parliament which hadn’t been properly considered.
Because I had grown up in a political family, I was not particularly surprised by this unexpected gust of hot air. The Bill was lost that session as a result (because party managers could see that it would need more time on the floor of the House of Commons than they had allowed for). It all got mixed up with some people’s worries about the divorce reform proposals, and its technical provisions got very badly misunderstood or misrepresented in the process. We did not propose any new property rights for unmarried cohabitants, and for years the courts had been able to exclude a violent person from his home, irrespective of his status. Our Bill largely mirrored the arrangements that had been in place in Scotland for some years. But all this got lost in the noise, and no time was available at the very end of the session to straighten out all the misconceptions and misunderstandings. I remember that one Conservative MP had some difficulty in explaining his antagonism to a Bill to which he had earlier given a fair wind as a member of a unanimous Second Reading Committee. He confessed he hadn’t read the Bill then.
I was very encouraged, however, by one thing. On Day One of the row, most of the national Press thought it had got on to a very good story about a thoroughly subversive Bill being smuggled through Parliament under every one’s noses. By Day Two, the Daily Mail was left almost on its own in carrying this story forward. Virtually all the others had been persuaded by their legal advisers that there was nothing in the story at all, and that what was in peril was a widely welcomed, well-prepared piece of law reform legislation. Although the damage was done on Day One – and the episode warranted the attention of those who were interested in the robustness of our Parliamentary institutions – the rest of the saga revealed a degree of warmth and respect for the Commission and its work, in both Press and Parliament, which was very good for the Commission and its staff, and very well-deserved, too.
One last memory, before I reach my speech. Having wrecked the Bill’s chances that session, the newspaper then turned its attention on Brenda Hale, who was by now a High Court judge, and a campaign of door-stepping anyone who might have known her over the last 30 or so years then ensued.
Although this law reform project had preceded my time at the Law Commission, I intervened in the public debate to point out that the Law Commissioners bore collective responsibility for all their reports, and that it was unfair to attack a single Commissioner in the way that Brenda had been attacked.
The Daily Mail did not like this much, and turned its fire, quite briefly , on me. A few weeks later, when it heard that my three-year fixed term at the Commission was soon to come to an end, it titillated its readers with a headline that read:
“Live-in lovers’ learned friend quits.”
I had never been called that before – or since.
My opening statement to the House of Lords Special Public Bills Committee on 9th March 1995.
I am grateful to your Lordships for allowing me to speak to you for a few minutes today. It is too early to comment on the evidence, which is still coming in, and I therefore thought it might be useful if I were to remind your Lordships of the nature of the shortcomings in this part of the law which confronted the Commission when it embarked on this work in 1989. Mrs Justice Hale, who was the responsible Commissioner at that time, will then say a few words about the approach the Commission adopted when seeking to put forward consistent and coherent law reform proposals.
The last two Bills to come before one of your Lordships’ Special Committees have come from Item 4 of our fourth programme of law reform – transfer of land – and Item 7 – private international law. Today we come for the first time in this context to what is in many ways the jewel in the crown of the Law Commission’s law reform work – Item 6: Family Law. Ever since 1968 one of our law reform programme items has referred to family law in the following terms:
“That a comprehensive examination of family law be undertaken with a view to its systematic reform and eventual codification.”
Between 1965 and 1968 our ambitions in this field were only marginally less modest.
The systematic development and reform of family law has always been a topic close to the Commission’s heart. Your Lordships will remember that our first chairman, Lord Scarman, came to us as a judge of what in those days was quaintly known as the Probate, Divorce and Admiralty Division, and from 1966 onwards scarcely a year went by without a report from the Commission on one family law topic or another. For 15 years between 1978 and 1993 the Commission was fortunate enough to possess a specialist family law commissioner, first Stephen Cretney and then Brenda Hoggett (as she then was); in our last annual report we marked the end of that era by devoting a whole chapter to a remarkable success story in this field of law.
Of the 27 family law reform reports we have published since 1965, 20 have been implemented in full and one in part. Three are at present the subject of Bills before Parliament, and we would like to think that our recommendations on The Ground for Divorce may come before your Lordships in one form or another within the next year or two. The present Commission is very conscious of what still needs to be done in this field, even in the absence of a specialist Commissioner, and as the Lord Chancellor will know I am exploring anxiously how best we can achieve this within the resources he makes available to us now that we have just come to the end of our major work on Mental Incapacity.
Today’s Bill is very typical of much of the work we do, not only in the field of family law. When we embarked on this work in the late 1980s, in the lead-up to the publication of our Working Paper on this topic, the situation that confronted us was that over the previous 22 years different Acts had been passed at different times in different ways to deal with different aspects of the problems which are now being tackled comprehensively by this single Bill. It was obviously high time that all these different threads were pulled together into a single comprehensive scheme, with access at different levels depending on the difficulty and complexity of the subject-matter.
As your Lordships will know, there are at present for all practical purposes three different Acts of Parliament governing the matters with which your Lordships are concerned in this Bill. There is the Matrimonial Homes Act 1983, an Act which consolidated the Matrimonial Homes Act 1967 with some minor, but quite important, later amendments. There is the Domestic Violence and Matrimonial Proceedings Act 1976. This was a Private Member’s Bill which was preceded by the Report from the Select Committee on Violence in Marriage rather than any Law Commission study. Some of your Lordships may remember that Lord Salmon said of it in Davis v Johnson[1] that it appeared to have been hurried through Parliament to provide urgently needed first aid for “battered wives”. And there is the Domestic Proceedings and Magistrates’ Courts Act 1978, which followed a 350-page Law Commission report in 1976.[2] This Act overhauled the powers available in magistrates’ courts in these matters as well as legislating more generally for magistrates’ powers in the family law field.
There were also two decisions of your Lordships’ House which explained the effect of some of this legislation and were of great assistance to the Commission in identifying the areas where reform was needed. The first was Davis v Johnson, a decision on the effect of Section 1 of the 1976 Act. After a good deal of judicial doubt about the matter – I think the judges were eventually split eight-all on the subject, with those in your Lordships’ House of course having the last word – it was decided by four speeches to one, Lord Diplock dissenting, that on its proper construction that section did give jurisdiction to the county courts to grant an injunction to exclude a violent person from the home which the parties had shared, irrespective of any right of property vested in him or her, whether as owner, tenant or joint tenant. This power was of course available whether the parties were married or living together unmarried.
The other leading case was Richards v Richards,[3] where your Lordships’ House, again by a majority of 4-1, held that the power of the High Court and the county court to make orders relating to the occupation of the matrimonial home during the subsistence of a marriage was as a matter of law still derived from Section 1 of the Matrimonial Homes Act 1967 as amended. This meant that it was to be exercised having regard to the four matters specified in Section 1(3) of that Act – the conduct of the spouses in relation to each other and otherwise, the respective needs and financial resources of the parties, the needs of any children, and all the circumstances of the case.
Your Lordships will recall that there was a strong dissent by Lord Scarman, who believed that even in this statutory context the interests of the children should be regarded as paramount. Nothing daunted, however, your Lordships’ House held that by the 1967 criteria none of these matters were paramount over any other, and that the weight to be given to each depended on the facts of the case.
In 1989 the Commission analysed the present state of the law and identified what were perceived to be its weaknesses. Those of your Lordships who have read our Working Paper will recall that on pages 90-91 the Commission set out the philosophy which would inform its search for the principles on which to base any reform recommendations in the following terms:
“Family law essentially consists of a collection of largely discretionary remedies to meet particular problems arising in family life. Where new remedies are devised to meet newly recognised problems, as with the Matrimonial Homes Act and the Domestic Violence Act, there is always a danger that inconsistencies will develop. Where particular remedies are devised for use in magistrates’ courts, the inconsistency may be deliberate. Nevertheless, the aim of the Commission’s work in family law has been to devise simple, clear and consistent remedies available so far as possible in all courts having jurisdiction in family matters. The position which has developed in relation to civil remedies against domestic violence or molestation and the occupation of the family home is neither simple, clear nor consistent. We should prefer to see a unified structure if one can be devised.”
Examples of the anomalies the Commission discovered were that if a court exercised the power given to it by the 1976 Act to exclude a respondent from his home on a temporary basis, it was not uncommon that it would permit him to return there to visit his children or conduct his business or collect his property. To that extent its powers were wider than those contained in the Matrimonial Homes Act. On the other hand, although the matter was sometimes dealt with by undertakings, the 1976 Act gave the court no power to make ancillary orders about the discharge of outgoings or about payment for occupation.
That Act covered what is often described as molestation. It also, as I have said, protected unmarried as well as married cohabitants. The 1978 Act, on the other hand, which gave magistrates powers to make personal protection orders or exclusion orders, in the place of the old separation orders, could only be deployed as between husband and wife, and only in the context of the use of violence or the threat of violence. The Commission found that although the number of applications to county courts was continuing to rise, the number of applications to magistrates’ courts fell by over 25% between 1984 and 1987. It felt that the wider and more extensive range of powers which were available in the county courts was likely to be a contributory factor in this flight from the magistrates’ courts.
The 1989 Working Paper contained a very thorough analysis of the difficulties which were created by the fact that the court’s power to regulate the occupation of a house was still governed by the criteria which were thought to be suitable in 1967 when Parliament legislated for the quite specific purpose of ensuring that a non-entitled spouse might have a registrable property right. The Commission identified six main problems.
The first was that these criteria failed to distinguish between the very different situations in which exclusion might be sought – immediate protection against violence, short term regulation pending a possible divorce, or long term adjustment of a couple’s mutual rights of occupation, for instance.
Secondly, the governing criteria were introduced so long ago that they preceded the reforms to the divorce laws and the laws relating to property adjustment on divorce which were passed at the end of the 1960s. They also preceded the days in the mid-1970s when public concern was aroused by people like Erin Pizzey[4] over the problems of violence and abuse within the family and when the 1976 Act was enacted in order to widen the court’s protective powers. And they were enacted before any serious consideration had been given to the problems of cohabiting couples and their children. They were mainly designed, as Lord Archer will remember, to give protection to non-owning spouses against dispositions to third parties after Lord Denning’s invention of the deserted wife’s equity had been shot to pieces by a unanimous decision of your Lordships’ House in National Provincial Bank Ltd v Ainsworth[5] in May 1965. “The existing law I think is in an unsatisfactory state”. Lord Hodson’s words in Ainsworth summed up the position accurately and led to legislative reform.
Thirdly, where divorce proceedings were pending or imminent, the use of these criteria might mean that there had to be a trial of the parties’ conduct at an interlocutory stage, with all the delay and impediment to possible reconciliation this might cause.
Fourthly, the courts’ emphasis of the draconian nature of an ouster order in all cases was capable of obscuring considerable differences between the circumstances of the parties – for instance, when one of the parties could arrange alternative accommodation without much hardship – and the circumstances in which the remedy was sought.
Fifthly, the 1967 criteria were not easily applicable to unmarried couples, who would normally have to resort to actions under the ordinary law, if they could, unless they could obtain relief under Section 1 of the 1976 Act.
And finally, and above all, there was a risk that the children’s welfare would be given insufficient weight in the balancing exercise, because of the need to apply the 1967 criteria dispassionately. The Commission referred in this context to the case of Summers,[6] where the judge had found it was not in the children’s interests to go on witnessing continuing bitter quarrels between the parties, in which furniture was broken and objects smashed, but the Court of Appeal overruled him, saying that in a case where both parties were to blame, he had given too much weight to the interests of the children and too little weight to the draconian nature of the order.
There were of course a number of other problems which inevitably arose from the fact that these three Acts had been passed on different occasions, by different routes and for different purposes, and in the case of the original Matrimonial Homes Act, against a very different legal and social background to that which obtained in the late 1980s. These problems were all identified in the Commission’s Working Paper. In its typical style, the Commission ended that paper by asking 20 rather searching questions about the way in which the reform of the law in this area might be taken forward.
I have dwelt on these matters, rather than on the Commission’s eventual solutions, which are very clearly set out in its report and in the Bill itself and the Notes on Clauses, because so much of our law is in this kind of state, crying out for systematic law reform study. As a judge, I often have to put myself in the draftsman’s chair in 1967 or in 1929 or even in 1861, to try to ascertain the mischief for which Parliament brought forward a piece of social legislation which is still in full use today, although so much has moved on since Parliament last considered the matter.
The influence of European law, where the judges are not inhibited by rules of statutory construction designed in rather less fast-moving times, is making our judicial task even more embarrassing when we are having to apply social legislation which is obviously out of tune with modern thinking, but as your Lordships will know there is a limit to what judicial imagination can do to remedy things, even if one great English judge whose name I have mentioned today was not always willing to recognise this limitation.
I do not want to say anything very much about the two matters on which the Government has decided to depart from the Commission’s recommendations. Mrs Justice Hale will be very pleased to answer any questions your Lordships may have about these matters. So far as the powers of the police are concerned, the Commission was not invited to give oral evidence to the Home Affairs Committee, who eventually rejected our recommendations. If we had been invited, we would have drawn their attention to our current work on Binding Over, where we devoted nearly a whole chapter of our report to the inappropriateness of the police’s existing powers in the field of domestic violence, and to the need to overhaul them in accordance with modern principles of law.
As your Lordships will know, the Commission is delighted by the new procedures which your Lordships have devised for giving swifter scrutiny to our work. On a less happy note, I am sure that some of your Lordships are as conscious as I am that it was in June 1983 that Lord Scarman said in Richards v Richards that the sooner the powers with which your Lordships are concerned today were rationalised into a coherent and comprehensive body of statute law the better.
That was nearly twelve years ago. I would like to think that if we are now taking law reform more seriously we might be able to do a bit better than this in future, particularly in such a sensitive field as family law. That said, the Commission was very pleased to see the welcome given to this Bill in the Second Reading debate in your Lordships’ House, and is even happier to be here today and, more importantly, next week, to answer any questions your Lordships may wish to put to us about the Bill.
Mrs Justice Hale will now, with your Lordships’ permission, say a little about the Commission’s approach to law reform in connection with the proposals in this Bill.
[1] [1979] AC 264, 340.
[2] Report on Family Proceedings in Magistrates’ Courts (1976) Law Com No 77.
[4] Whose book “Scream Quietly or the Neighbours will hear” was published in 1974.
[5] [1965] AC 1175.
Henry Brooke 