The reputation of the Lord Chancellor, and the livelihoods of up to 20,000 solicitors, hang in the balance this month as the controversial Family Law Bill faces its first real parliamentary test.
The Bill, some 81 pages long with 60 clauses, is seen by some worried family law practitioners as the beginning of a shift from legal representation to mediation in divorce proceedings. Others believe it is ringing the death knell for the institution of marriage through the introduction of no fault. Supporters of the Bill say it is taking a realistic approach to divorce proceedings and is a fitting update of the 1969 Act.
What is certain is that the Lord Chancellor and to a lesser extent the capable new Under Secretary of State at the Lord Chancellor's Department, Jonathan Evans MP, have much riding on the Bill's passage through Parliament.
Some time ago, the Government promised MPs and peers free votes on matters of conscience in the Bill, including the introduction of no fault. No divisions were called during committee stage in the Lords and the Bill now faces its first real test later this month when it reaches report stage.
The government whips office has confirmed there won't be any more free votes than whipping votes on Parts I and II of the Bill, and no free votes at all on Part III. The third part is essentially the amended Family Homes and Domestic Violence Bill which fell at the end of the last parliamentary session.
Predicting the outcome is hard when free votes are involved. In the Lords, the 'kill the Bill' lobby has attracted significant supporters. It is currently led by Baroness Young, a former Conservative Leader of the House, and includes Lady Elles, Lord Simon of Glaisdale and Lords Stoddard and Stallard. On the Tory side in the Commons, significant figures like John Patten and John Redwood can be expected to make the most of the Bill's perceived attack on family values. Some Labour MPs, particularly Catholics, are said to be ready to vote against key clauses.
Despite these dissenting voices, the Bill has a fair chance of surviving. But the possibility remains that it will be mortally wounded by dissenting peers and could be killed off in the Commons. Certainly, the Government is currently in the rather awkward situation of having to rely on the two main opposition parties for support in getting this Bill through. However, as a senior Labour figure has privately pointed out, that support cannot be guaranteed on a free vote.
If the Government can be persuaded to compromise on several amendments, such as pension splitting on divorce, support for the family and marriage guidance, and stronger measures against violence in the home, the Labour front bench might be inclined to advise their side to broadly support the Bill.
The real puzzle is why the Tory party allowed a controversial bill dealing with such a politically sensitive subject to be included in the last full legislative programme. The then Tory party chair, Jeremy Hanley, is said to have advised against inclusion, but was overridden in Cabinet committee.
It seems doubly odd when one considers that this is effectively a skeleton bill designed to lay the statutory framework. The substance will not be added for two to three years until pilot schemes for mediation services and information provision have been evaluated.
Other signs of political ineptitude appeared in the published Bill, despite last minute damage limitation by the Lord Chancellor. One was the compulsory information session. The image of celebrities, MPs and presumably even Prince Charles and Princess Diana being forced before a panel of divorce 'experts' should have made most political antennae quiver. Nevertheless this clause made it into the Bill unchanged, though Lord Mackay now says alternatives, including a video presentation, will be tested.
Such mistakes have ensured that this bill has received wide media coverage. At the very least, this has provided politicians with the salutary lesson that they ignore legal issues at their peril.
The Law Society has generally welcomed the Bill, particularly the introduction of no fault. But it remains concerned with the bias away from appropriate legal advice. For instance, the Bill stipulates that solicitors should make their clients aware of mediation services available to them. But there is no reciprocal requirement on mediators to inform their clients of the availability of legal services.
This is a bias that the society, in concert with several voluntary organisations and mediators themselves, is trying to rectify through an extensive lobbying campaign. It is surely essential that both partners should know at an early stage what their legal rights are.
The society has also been anxious to remind parliamentarians that there is a difference between mediation, which takes place after a couple has decided to divorce, and reconciliation. The society has consistently supported mediators, not least since half their number are solicitors. But there is concern that many peers still think mediation is designed to help couples get back together.
It is an increasingly fair assumption that the reputation of the Lord Chancellor will stand or fall according to the fate of this bill. If it stands, as seems likely, lawyers will need to brace themselves for Lord Mackay's next target: legal aid.