PARLIAMENTARY DEBATES

HOUSE OF COMMONS

OFFICIAL REPORT

First Standing Committee on Statutory Instruments, &c.

DRAFT FAMILY LAW (NORTHERN IRELAND CONSEQUENTIAL AMENDMENTS) ORDER 1993

DRAFT FAMILY LAW (NORTHERN IRELAND) ORDER 1993

Wednesday 12 May 1993

LONDON: HMSO

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1

The Committee consisted of the following Members:

Chairman: Dr. John G. Blackburn

Barnes, Mr. Harry (Derbyshire, North-East)

Bendall, Mr. Vivian (Ilford, North)

Benton, Mr. Joe (Bootle)

Boyson, Sir Rhodes (Brent, North)

Evans, Mr. Jonathan (Brecon and Radnor)

Gerrard, Mr. Neil (Walthamstow)

Jenkin, Mr. Bernard (Colchester, North)

Johnson Smith, Sir Geoffrey (Wealden)

Jowell, Ms Tessa (Dulwich)

Lightbown, Mr. David (Comptroller of Her Majesty's Household)

Livingstone, Mr. Ken (Brent, East)

Mates, Mr. Michael (Minister of State, Northern Ireland Office)

O'Brien, Mr. William (Normanton)

Parry, Mr. Robert (Liverpool, Riverside)

Shepherd, Mr. Richard (Aldridge-Brownhills)

Sykes, Mr. John (Scarborough)

Taylor, Mr. Ian (Esher)

Trimble, Mr. David (Upper Bann)

Mr. F. A. Cranmer, Committee Clerk

2
3 First Standing Committee on Statutory Instruments, &c. Wednesday 12 May 1993

[DR. JOHN G. BLACKBURN in the Chair]

Draft Family Law (Northern Ireland Consequential Amendments) Order 1993

4.30 pm

The Chairman: I should point out to the Committee that I intend to enforce rigorously Standing Order No. 101, under which Members of the House who are not members of the Committee may take part in the deliberations of the Committee but may not vote, make any motion or move any amendment, nor do they count towards the quorum.

4.32 pm

The Minister of State, Northern Ireland Office (Mr. Michael Mates): I beg to move, That the Committee has considered the draft Family Law (Northern Ireland Consequential Amendments) Order 1993.

The Chairman: With the agreement of the Committee, it will be convenient to discuss at the same time the other order before us, namely, the draft Family Law (Northern Ireland) Order 1993.

Mr. Mates: The order makes a number of changes in family law in Northern Ireland. Its provisions have been designed to improve the system for the collection and enforcement of maintenance payments. The new maintenance enforcement provisions are set out in articles 6 to 11 of the order. They extend the powers of the High Court, divorce county courts and magistrates courts over the methods of payment, collection and enforcement of periodical maintenance payments. New powers are given to the courts to specify the means of payment when making, varying or enforcing a maintenance order. Courts will be able to order that maintenance payments be made by standing order directly to the creditor, or by an attachment or earnings order, in addition to their powers to order payments to be made to the court, or directly to the recipient. The courts will decide which method of payment to order in the circumstances of a case, before exercising their powers, however, the courts will be obliged to have regard to representations made by the parties about the method of payment. The provisions are designed to reduce the scope for default and to enable the courts to deal more effectively with default. Article 4 is an important provision. It amends article 18 of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984 to create a new table of prohibited degrees of relationship and to relax the restrictions on marriage imposed by the rules of affinity. Its effect is to limit those relationships in which marriage is prohibited to relationships of consanguin- 4 ity, and to permit marriage between certain step relations, and between in-laws, provided that the parties satisfy certain conditions. Within those relationships, marriage will be permitted only where both parties have attained the age of 21 years. Marriage between in-laws covered by this provision may not take place until after the death of the former spouses of both parties. Marriages between step relations will be subject to the condition that the younger party has not been treated as a child of the other party's family while under the age of 18 years. That brings the law in Northern Ireland into line with the law in England and Wales, and Scotland, in relation to prohibited degrees of relationship, and takes into account amendments made by the Marriage (Prohibited Degrees of Relationship) Act 1986. Article 5 is connected to that provision. It provides a mechanism to enable a person who wishes to marry a step relation to apply to the courts for a declaration to the effect that such a marriage is not void for affinity. The opportunity is also taken in article 3 to amend the law governing the formalities of marriage to remove the requirement for press notices to be published in certain register office marriages where neither party states the place of worship usually attended in the notice of marriage. That is an obsolete and discriminatory requirement, which has no parallel in the United Kingdom and it is not unknown for couples from Northern Ireland to make arrangements for a civil ceremony in Scotland so as to avoid the requirement. The requirement has been strongly criticised by the Standing Advisory Commission on Human Rights and others. Article 14 contains important provisions to improve the law in Northern Ireland relating to domestic violence. Paragraph (1) replaces article 19 of the Domestic Proceedings (Northern Ireland) Order 1980 with a new provision to make a breach of a personal protection order or an exclusion order a specific criminal offence. That change is made in response to representations that orders restraining a spouse from violence or excluding a spouse from the matrimonial home could be more effectively enforced if the breach of such an order was treated as a criminal offence. It was universally welcomed on consultation. Paragraph (2) amends article 21 of the Domestic Proceedings (Northern Ireland) Order 1980 to streamline the procedure for obtaining ex parte interim personal protection and exclusion orders. The present procedure is time consuming. It involves the duplication of evidence and causes considerable distress for the applicant, who is often already anxious and vulnerable due to the circumstances which led to the application. The provision will avoid the need for a preliminary application to be made to a justice of the peace followed by a further application in the same matter to a resident magistrate. Those provisions further the aim of providing an effective remedy for victims of domestic violence and, again, result from representations made before and during the consultation on the order. 5 Article 15 amends the Matrimonial Causes (Northern Ireland) Order 1978 and removes the requirement for the court to hear the petitioner's oral evidence in divorce cases based on two years' separation with consent or five years' separation. That will pave the way for rules of court to be made introducing a new procedure for such cases, which would be similar to the special procedure now used in England and Wales. The current procedure for obtaining a divorce is protracted and expensive and adds to the distress of the petitioner. In the vast majority of cases, the parties have been separated for a long time and the marriage has obviously broken down. In those circumstances, it seems unnecessary to require the petitioner to attend in court to give evidence which is generally unchallenged and which could satisfactorily be incorporated in an affidavit. The provision will reduce the trauma and anxiety experienced by the petitioner in having to appear in open court and answer questions from the witness box about his or her marriage, and it will enable judicial and court room time to be used more efficiently. I wish to reassure the Committee, however, that that provision will not reduce the dissolution of marriage to an administrative formality. The decision to grant a decree of divorce will still be a judicial one taken by a judicial officer of the court. We are confident that rules of court can be formulated and that will permit a proper consideration of the evidence in each case. The court will still have a power to order an oral hearing where it considers that appropriate. We believe that this procedural change will not affect the message enshrined in the law that marriage involves a serious and permanent commitment. We also recognise that the law must provide an effective mechanism to enable those marriages which, regrettably, break down irretrievably to be dissolved with the minimum of distress. We therefore remain satisfied, having considered the comments received during consultation, that the order strikes the right balance between protecting the institution of marriage and ensuring that a proper procedure is maintained for obtaining a divorce. The order effects some useful and important reforms in family law in Northern Ireland and as such I commend it to the Committee.

4.39 pm

Mr. David Trimble (Upper Bann): I thank you, Dr. Blackburn, for saying in your opening comments that you would strictly enforce the provisions of Standing Order No. 101, under which hon. Members who are not members of the Committee can participate in the proceedings. That is not a small point, and it is one that is well worth making. We are not considering a statutory instrument. Even though the legislation is described as such and appears in the guise of a statutory instrument, it is primary legislation and not secondary legislation. The order is 6 an important piece of primary legislation relating to Northern Ireland. As a result of the selection procedure for Committees, it just so happens that the only member of the Committee who represents a constituency in Northern Ireland is myself. Standing Order No. 101 is therefore extremely desirable as it gives other Members representing constituencies in Northern Ireland the opportunity to attend and take part in the debate. Regrettably, that has not happened. Other Members have not availed themselves of the opportunity to take part in the debate. The seats along the rest of the Front Bench, usually occupied by the Opposition spokesmen, are also empty. That tells a story about the controversy that attends the legislation and one about how this primary—not unimportant—legislation goes through a procedure whereby our debates have no point. This debate gives us the opportunity to do no more than merely record a view on the order. We cannot treat the legislation as it ought to be treated. Primary legislation ought to go through a particular procedure, involving various Readings and a Committee stage, during the course of which there can be detailed discussion and amendments can be proposed. That is not possible with this important piece of primary legislation because of the abomination—I use the word advisedly—of Order in Council procedure. It has lasted far too long. For nearly 20 years we have had to endure this sub-standard form of law-making which suggests, because of its continuance, that the Government do not care about standards of legislative procedure and do not care that the citizens of part of the kingdom are treated to a second-class form of legislation. I have touched on those points before. I am sorry that I have to touch on them again. The procedure is thoroughly unsatisfactory for many reasons. Let me pick out something which I am not alone in complaining about. The Law Society of Northern Ireland raised a particular complaint about the consultation procedure on this legislation. Such consultation in an attempt—but only an attempt—to try to ameliorate some of the worst features of the Order in Council procedure. The consultation procedure gives people some opportunity to make representations. It involves publishing a proposal for a draft order. The proposal for this draft order was posted to various interested parties in Northern Ireland on 8 July. Anyone familiar with Northern Ireland knows that the proposal dropped through people's letter-boxes as they departed on their holidays—the holiday period in Northern Ireland starts at or around 12 July. The letter accompanying the proposal for the draft order stated: "Our timetable requires that comments should reach the Department by Friday 28th August 1992." We had the holiday months of July and August in which to consider the legislation and send in proposals. That demonstrates that while some attempt is made to ameliorate the unpleasant aspects of Order in 7 Council procedure, the Northern Ireland Office operates the consultation procedures in a way that is contemptuous—I use the word advisedly—of the people of Northern Ireland, the political parties and the professional bodies that have an interest in the matter. It was unnecessary for the consultation period to cover the holiday period of August 1992, especially when the actual draft was not published until March 1993. The Northern Ireland Office received observations and representations after August because of the virtual impossibility of getting anything to it by the deadline of 28 August. The Northern Ireland Office, which was prepared to allow professional and other bodies in Northern Ireland only a short and inappropriate time for consultation, gave itself the luxury of six months in which to consider representations that had to be sent in within six weeks. That says much about its approach to legislation. I have complained that the Order in Council procedure subjects the citizens of Northern Ireland to a sub-standard and second-class form of legislation. The procedure is also operated inefficiently. The provisions of the order that covers amending prohibitive decrees relating to marriage brings Northern Ireland legislation into line with legislation that was passed in the rest of the United Kingdom in 1986. The enforcement of maintenance payments brings Northern Ireland into line with United Kingdom legislation of 1991. The second provision is only two years late; the first is seven years late. That is not efficient. I raised that issue during a recent Adjournment debate. The Minister was unable—or perhaps unwilling—to explain the delay. During that debate I inquired about the draft Children (Northern Ireland) Order, which is relevant to the order before us, which deals with family law, and, in some cases with the dissolution of marriages, and which will affect the interests of children. The proposed legislation on children follows the Black report, which was published 12 years ago. Major legislation on children was introduced in England and Wales in 1989—four years ago. The Northern Ireland Office said in 1991—two years ago—that it was about to introduce the draft Children (Northern Ireland) Order, which would be similar to the Children Act 1989. That order has not yet been introduced. The Order in Council procedure is a rotten system of legislation, yet the Northern Ireland Office cannot even run a rotten system properly. I hope that the Minister will answer the question that I asked during the Adjournment debate: what is happening to the draft Children (Northern Ireland) Order? When will it be published? Why has it taken so long? On the order before us, my party opposes the abolition of the requirement for press notices for some registry marriages. The advertisement is a safeguard. In registry office cases, no steps are taken to check the propriety of the parties' actions. The Minister referred to the view of the Standing Advisory Commission on Human Rights. We sometimes disagree with that 8 body, which occasionally operates eccentrically I suspect that it is doing so in this case. Marriage is a public contract, which changes the status of the parties. It is not a private, hole-in-the-corner operation. As the Minister said, there was general support for the order to amend domestic proceedings. It reverses the decision of the Northern Ireland courts in the Clinton and McDowell case. In common with all the other parties and organisations that presented their views on the matter, my party supports that. We are glad that the order will be introduced so promptly. The decision was made a couple of years ago, and we are pleased that something has been done within a relatively reasonable time span. I am glad that the Minister accepted our views, which are shared by other bodies, about the requirement to go to a justice of the peace first in certain proceedings. That decision changes the suggestion in the original proposal. We acknowledge that it is one of the rare occasions on which the consultation procedure had an effect and we are glad about that. However, almost all the organisations that made representations to the Northern Ireland Office asked for another change: a replacement of the current six-month limit on the duration of exclusion orders, with a discretion left to the court as to the period of the order. I am sorry that the Minister has not accepted it. I am not happy about article 13, which introduces the special procedure on divorce applications. The submission by the Northern Ireland Bar drew attention to some inelegant drafting. Article 13 amends article 3, paragraph (4) of the Matrimonial Causes (Northern Ireland) Order 1978 and the Bar considered that the drafting of the amendment was likely to mislead people into thinking that the oral evidence requirement was being relaxed in a wider range of cases than the legislation intends. The Bar supplied the Northern Ireland Office with an alternative draft which would not have been subject to the same criticism as the original article. I am sorry that that alternative draft was not adopted. I do not think that the Bar has had a reply on the matter but I would be interested to know why its improved draft was not considered suitable. The Minister said that the proposal will save parties the embarrassment of giving evidence. I am not sure that the embarrassment felt is that great. I know that before giving evidence some people feel that it could be an ordeal, but I am not sure that that is their view after the event. I know from personal experience that the courts treat people sympathetically. There is an argument for scrutiny of the grounds for divorce although I do not know whether it will save time and expense. Even in cases of uncontested divorce, issues which relate to children or to the parties involved may result in hearings. I doubt if the parties will save much expense; indeed they may find that they have more difficulties if they believe that they can dispense with legal advice and aid only to find, when dealing with matters relating to children and property, that they need help and would have been better off and 9 saved time and trouble if they had used the legal services available to them from the outset. There will be a saving in one respect—not for the parties involved but for the legal aid funds. Practitioners have commented that costs available to lawyers in divorce proceedings have been cut as far as they can go and that the only way in which to reduce legal aid expenditure is to bring in the special procedure. It is widely believed, with some justice, that the real reason for the introduction of the special procedure is to reduce charges to the legal aid fund rather than to do the parties a favour. I would like the Minister to comment on a problem in Northern Ireland that is due to the proximity of another state and the existence of an open land frontier. Denise Kennedy wrote a paper on the special procedure and raised that problem. She stated: "Because of the proximity of the South of Ireland and ease of access to residents of the Republic the question of jurisdiction is very open to abuse. At present a Petitioner has to live permanently in Northern Ireland or to have been habitually resident here for a least one year. In my experience it is not unusual for residents of the South to approach Solicitors in Northern Ireland in an attempt to create a phony residence qualification for the purposes of a Divorce. Practitioners are generally able to weed out any such cases before the Petition is drafted. This safeguard would disappear entirely if Petitioners prepared their own papers, and used an accommodation address within the jurisdiction." That gives rise to a serious worry. I should be grateful if the Minister said whether that abuse has been considered and whether the Department has any thoughts about how it could be avoided. I am getting near the end, Dr. Blackburn; I have only a few more points that I wish to raise. I put to the Minister the response to the order by Relate, the marriage guidance organisation. Although Relate welcomes article 13—my party does not—it stated: "We would not be in favour of this proposal"— the special procedure— "being extended to 'fault' based petitions of adultery, unreasonable behaviour or desertion." I underline that. Having introduced a special procedure for the particular grounds mentioned in article 13, it should not be extended. Relate mentioned another proposal, which I believe is good. It suggested that "further action needs to be taken. We propose that the rules of court…be changed regarding the reports on children"— those required under the Matrimonial Causes (Northern Ireland) Order 1978— "Presently reports by a social worker are compiled on the children regardless of what arrangements have been made for them. We feel that this is a waste of social work time and resources and is greatly resented by parents who have come to satisfactory arrangements regarding their children. We would prefer these resources to be channelled into helping parents in dispute". My party endorses those comments, and notes that parents who have made arrangements between themselves 10 greatly resent the need for a report by social workers. It is unnecessary. I conclude by returning to some of the points that I made at the outset, especially about the children order. My party has raised that issue many times. My hon. Friend the Member for Belfast, South (Rev. Martin Smyth), the party spokesman on these matters, has regularly raised in the House the failure of the Northern Ireland Office to bring forward legislation on children. That failure extends back to the Black report, nearly 12 years ago. I hope that when the Minister replies he has something positive to say about when legislation will be brought forward and why it has been delayed for so long.

4.59 pm

Mr. Mates: The hon. Member for Upper Bann (Mr. Trimble) complained about the consultation procedure. I have missed a trick. I must learn that in Northern Ireland one should take a seven-week holiday. I did not get one last year. The hon. Gentleman's complaint is the only one received. None of the agencies concerned found the time arduous. None of them found it inconvenient. Where an extension was required, it was given in informal discussions between the Department and the agency. The hon. Gentleman's complaint is the only one that has reached our ears. The hon. Gentleman makes his now familiar complaint about the method of legislation, and he was right that we debated the matter last week on the Adjournment. I have nothing to add except to reiterate that the answer lies partly in his own hands. If we can find a better way of proceeding by agreement with the parties in Northern Ireland whereby we can get back to a form of normality, no one will be happier than me.

Mr. Trimble: The Minister said that I was the only person to have complained about the publication of the proposal in the holiday period. The Law Society of Northern Ireland stated: "We should state at the outset that it is unsatisfactory that a controversial proposal should be published in the middle of the holiday season".

Mr. Mates: I stand corrected if that letter came to us—or did it go to the hon. Gentleman?

Mr. Trimble: It went to the Director of Law Reform, Office of Law Reform, Permanent House, 21 Arthur Street, Belfast.

Mr. Mates: If that is the case, I stand corrected, but those people were not incommoded because they were given extra time. It is a fairly trivial point to be made, but never mind.

Mr. Harry Barnes (Derbyshire, North-East): A factual point.

Mr. Mates: Factual but trivial. No one has been incommoded or unable to comment and that is the serious point, as I hope the hon. Gentleman will agree. 11 The hon. Member for Upper Bann whether article 13 would mislead. I am advised that it will not mislead. The drafting was carefully considered but the hon. Gentleman asked why the more elegant draft of the Bar was not incorporated. I say, with tongue slightly in cheek, that the parliamentary draftsmen considered that their version was more elegant than that of the Bar. I shall not enter into that argument, other than to say that I would need to parse and examine both versions and then give a judgment on style before I could come to a conclusion. The hon. Gentleman asked about the proximity of the Republic and whether a phoney resident's qualification could be abused under the special procedure. The answer is that I suppose it could be, but such an abuse could happen anywhere in England and Wales equally well. Any abuse would be subject to the normal sanctions of the criminal law, and a person making an affidavit falsely is liable to prosecution in Northern Ireland in the same way as he is anywhere else. 12 The hon. Gentleman asked about the order relating to children. I would be out of order to dilate on that, Dr. Blackburn, because we are not here to discuss it, but I hope that we shall come to a conclusion on that matter in the near future.

Question put and agreed to.

Resolved, That the Committee has considered the draft Family Law (Northern Ireland Consequential Amendments) Order 1993.

Draft Family Law (Northern Ireland) Order 1993

Resolved, That the Committee has considered the draft Family Law (Northern Ireland) Order 1993.—[Mr. Mates.]

Committee rose at three minutes past Five o'clock.

THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:

Blackburn, Dr. John G. (Chairman)

Barnes, Mr. Harry

Bendall, Mr.

Benton, Mr.

Boyson, Sir Rhodes

Evans, Mr. Jonathan

Gerrard, Mr.

Jenkin, Mr.

Johnson Smith, Sir Geoffrey

Jowell, Ms.

Mates, Mr.

Shepherd, Mr. Richard

Sykes, Mr.

Taylor, Mr. Ian

Trimble, Mr.