Cohabitation Bill [HL]

I shall deal with a number of points. First, the noble Lord, Lord Henley, asked how the court would assess a continuous period of five years. The answer is that the court is perfectly capable of dealing with it as a question of fact. The evidence would be put forward in the ordinary way, as it is whenever a continuous period is required to be determined. I see no difficulty about that and do not understand why there should be. Secondly, I want to make a point that has not so far been made. Couples who live together for five years before the Bill comes into force but did so without wishing to accrue rights and responsibilities in respect of each other will, under the Bill, be able to opt out during the lead-in period. In that way, the Bill avoids imposing obligations on couples who do not wish to be bound by the Bill’s provisions, but it would cover those who do not so object and who deserve protection. There was very strong support in the consultation on the Bill to cover existing couples, and so far as retrospection is concerned, it is commonplace in dealing with remedial legislation—such as equal pay legislation, to take an obvious example—to give the benefit "retrospectively", if one wants to use the word, in a period before a Bill comes into force to someone who is the victim of discrimination in some context. It is absolutely clear that in the criminal law no retrospective penalty should be imposed because, as the noble Baroness, Lady Deech, has said, it is part of the rule of law and the principle of legal certainty. There is no problem about that. We are dealing here with remedial legislation with a full capacity to opt out. Therefore, my own hope and belief would be that this is fully compatible with human rights. Indeed, it actually promotes the rights of a willing cohabiting couple who want their accrued rights and responsibilities to be taken into account under the Bill. As I say, there was strong support for this. However, I agree with the noble Baroness in her concern about legal aid in family proceedings, including public law family proceedings. Of course the costs of lawyers and litigation arise in the family area particularly when dealing with the ghastly complexities of, for example, trust law and matters of that kind. This Bill does not give rise to complicated legal issues of the kind seen in the principles of equity and trust law under the bad law that exists at the moment—bad law in the sense that it is unusable for working-class couples without the ability to pay for expensive lawyers. Therefore, I join with those who are opposed to the amendment.