Divorce (Financial Provision) Bill [HL]

Debate between Lord Davies of Stamford and Lord Brown of Eaton-under-Heywood

2nd reading (Hansard): House of Lords
Friday 11th May 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I should perhaps begin by saying that I know a good deal less about this subject and its operation in practice than the noble Baronesses, Lady Deech and Lady Shackleton, matrimonial law never having been my special subject, either at the Bar or on the Bench.

Inevitably, however, I was involved in a number of cases that reached the courts including that most seminal of early pre-nuptial settlement cases, referred to several times already, that of Granatino v Radmacher —the title can be the other way round, depending on where you see the case reported. This was a case on which nine of us sat in the Supreme Court and all but one, the noble and learned Baroness, Lady Hale of Richmond, who is now of course the President of that court, gave substantially greater effect to such an agreement than the noble and learned Baroness would have given, although, as the noble Baroness, Lady Deech, has explained, we hedged it about with more qualifications than were no doubt necessary or ideal. That decision was, as the noble Baroness, Lady Shackleton, has made plain, contrary to the interests of her client, for which I suspect she has never yet forgiven us although I was glad to see that, as I understand it, she now supports Clause 3. My noble and learned friend Lord Walker of Gestingthorpe was also on the case, as he has said, and I take this opportunity to acknowledge his great skills as a legal analyst and draftsman although, like me, he was never a matrimonial specialist.

Tinker as one may wish to do with some of the details of this Bill, its essential structure is, I suggest, a model of sound parliamentary draftsmanship. On the substance of the Bill, there is really very little that I wish to say at this stage. The essential points have already been made. Many will be repeated, I expect, perhaps with fresh shades of lipstick, if that is not nowadays an impermissibly sexist metaphor.

Essentially this subject raises, as so many areas of law raise, the age-old tension between the competing interests on the one hand of certainty and predictability, and on the other of flexibility. Yesterday, as it happens, we discussed in this Chamber that tension in the context of the Civil Liability Bill, in particular as to the compensation for whiplash injuries. We are described as the whiplash capital of the world. Today, the same tension arises in the context of financial provision following divorce; again, we are described as the divorce capital of the world. What this Bill essentially aims at, just as yesterday’s, is to shift the balance rather further in the interests of predictability so as, among other things, to shorten, cheapen and hasten the resolution of disputes or potential disputes about the division of assets and so forth, when a marriage ends.

For all the reasons so ably and compellingly set out by the noble Baroness, Lady Deech, in her truly brilliant opening of this debate, I am persuaded that it is indeed now time to make this area of our law altogether more predictable than, alas, it has increasingly become over the 40 and more years since the 1973 Act. As to the specific rules, principles, policies, approaches—call them what one will—by which the Bill proposes to further this fundamental goal of greater predictability, I find myself in broad and substantial agreement with its provisions. I look forward to hearing the views of others on certain of the niceties of the Bill and I hope to have a clearer view of my own when eventually we come, as I hope we shall, to Committee. Meanwhile, I wish the Bill a fair wind onward.

[Lord Davies of Stamford (Lab)]

My Lords—

Criminal Justice and Courts Bill

Debate between Lord Davies of Stamford and Lord Brown of Eaton-under-Heywood

Wednesday 30th July 2014 Lords Chamber

[Lord Davies of Stamford]

In that case I look forward to addressing the Committee on that matter later.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I add my name to those who have raised the objections to these clauses. The noble Lord, Lord Davies, says that one should have greater precision if one is going to legislate in this way. The fact is that you cannot have greater precision. This feature of the Bill, like so many other features of Part 4, should be left to the courts to work out. As has already been said, there is an existing and entirely satisfactory body of law which governs the ability to pursue cost orders from unseen funders and backers of litigation—those who mischievously or for their own advantage support litigation—but not from those who, appropriately and philanthropically, rightly back public interest causes.

Indeed, in the justice briefing on these aspects of the Bill there is a footnote—a reference to a case that the noble Lord, Lord Davies, mentioned a few moments ago: Hamilton v Al Fayed (No. 2), which was decided in 2003. Noble Lords will find this an illuminating judgment—it is one that I myself wrote—that provides an ample basis for developing this area of the law. This should be left to the courts. We should not seek to deal with it in this way, which is necessarily going to lack precision because legislation cannot address all the varying circumstances that could arise.

[Lord Davies of Stamford]

In the circumstances, I am following what the noble and learned Lord is saying particularly closely. He seems to think that it is adequate that the courts should set rules on these matters. Does he not agree that it is very important that a citizen should always know in advance whether he or she is incurring liability, just like a solicitor needs to know in advance whether he or she is breaking the law? There should be no ambiguity in these matters. It should be quite clear what constitutes support, potential support or the creation of potential liability. It is very unreasonable that the citizen should be left in any doubt on that subject.