Northern Ireland Assembly
Tuesday 17 September 2002
The Assembly met at 10.30 am (Mr Speaker in the Chair).
Members observed two minutes’ silence
I have received notice from the Minister for Regional Development that he wishes to make a statement on a new start for public transport in Northern Ireland.
The Minister for Regional Development (Mr P Robinson):
I am grateful for the opportunity to announce to the Assembly the start of a period of public consultation on my proposals to reform the planning, delivery and governance of public transport.
When I presented the regional transportation strategy to the Assembly in July, I stressed the importance that I accorded to the future development of public transport. Of the proposed £3·5 billion investment envisaged in the regional transportation strategy over the next 10 years, some 32% will be allocated to public transport. That represents a doubling of the funding allocated to public transport over the past 10 years. It will require at least this level of investment if we are to achieve the stepped change in public transport strongly advocated throughout the process of formulating the regional transportation strategy. However, I cautioned that the scale of investment required for public transport is unlikely to be met by public expenditure alone. Inevitably, we will have to explore opportunities for attracting private sector finance and expertise.
Today, I am publishing an outline for a new institutional and regulatory framework in a consultation document, ‘A New Start for Public Transport in Northern Ireland’. I will outline the key elements of my proposals. The Northern Ireland Transport Holding Company and its Translink bus and rail subsidiaries would be amalgamated into a new, dynamic, publicly owned operating company, Transport Northern Ireland. An independent public transport regulatory body would be established, initially in shadow form and in due course on a statutory basis.
I propose the progressive injection of private sector finance and expertise to the public transport market, but only in so far as it makes sound commercial sense and is acceptable to the community. I want a new start for public transport in Northern Ireland, and I regard these proposals as important stepping stones to a system fit for future years.
The development of public transport in Northern Ireland has suffered severely from violence, underinvestment and declining patronage. Last year, despite the successful introduction of free travel for senior citizens and the uplift that that initiative brought to ridership, the overall number of Translink passengers fell by 2·5%.
Despite the difficult conditions of the past 30 years, Translink management and staff have managed to provide a regular and necessary service to the Northern Ireland public. I pay particular tribute to the courage and dedication of Translink drivers in dealing with the unwarranted, mindless attacks that have been inflicted on them in recent months. I reiterate my abhorrence of those attacks, which are made against the whole community.
On a wider level, I acknowledge the dedication of Translink staff in keeping services running despite a public expenditure framework that has constrained new investment and innovation. There is a growing recognition that some of the difficulties that we face in reversing the decline in passengers and quality of service may stem from the institutional structures in which public transport operates. It is generally acknowledged that the relationship between the Department for Regional Development, the Northern Ireland Transport Holding Company and the operating companies — Northern Ireland Railways, Citybus and Ulsterbus — must change.
Unlike the rest of the United Kingdom, the publicly owned Translink companies have a near monopoly on public transport services. They are controlled by the board of the Transport Holding Company, which has a statutory duty to act commercially but is constrained by public expenditure limits on borrowing and expenditure. Although the Department for Regional Development has overall responsibility for public transport policy and grant funding, it has been left to the Transport Holding Company to determine the extent of the network and the standard of public transport services using the resources that are made available to it. The Transport Holding Company has had the tension of trying to plan adequate services to meet social needs while managing the Translink companies in pursuit of commercial objectives.
I propose to address the institutional shortcomings by amalgamating the Northern Ireland Transport Holding Company and its Translink subsidiaries into a new publicly owned public transport company, Transport Northern Ireland. That company would have direct lines of accountability with the Department for Regional Development as its shareholder. It would continue to have a leading role in the provision of bus and rail services but would focus on developing the commerciality of the operating companies, with a view to competing in a market progressively opened up to private sector participation.
The Transport Holding Company’s functions of planning a transport network to meet social needs and of setting and enforcing appropriate standards of services would be transferred to a new public transport regulatory body. That body would be appointed by, and report directly to, the Minister for Regional Development. Initially, it would be set up in shadow form in the Department for Regional Development, but once formally established, it would have its own staff and resources and would operate at arm’s length from the Department.
The proposal’s aim is to make the planning and delivery of public transport more rational and objective, and to give the operating companies an independent challenge. The establishment of a regulatory body would rectify the current conflicting role whereby I, as Minister, am the public owner, policy maker and part regulator of public transport.
Under my proposals the regulatory body would take on the licensing of bus routes as part of the overall economic regulation of the bus network. The Department of the Environment carries out that function at present, and I welcome the Minister of the Environment’s agreement that the proposal be included in the consultation paper. The Department of the Environment would, however, continue to regulate the safety and operating standards of road passenger transport providers under a revised licensing system.
I have considered public transport arrangements in other countries. Experience suggests that independent or quasi-independent regulation is essential in developing a market in public transport. However, there is no one-size-fits-all model for the roles and responsibilities that a regulatory body should hold. Although the consultation paper lists some possible functions that a regulatory body might perform, the most appropriate arrangements for the Northern Ireland market have still to be worked out. Ultimately, the precise role of the body will be determined after the public response on how far Translink services should be open to the market. Changes to the functions of the Transport Holding Company and the establishment of a regulatory body will require new legislation. I intend to review the Transport Act (Northern Ireland) 1967 and other relevant legislation and in due course introduce a Bill for the Assembly to give effect to an agreed package of reforms. That is unlikely to happen before 2004. Members will have the opportunity to scrutinise the proposed finer details for the new institutions at that time.
I turn now to how private sector finance might be introduced to the public transport market. There are many models in use across Europe. At one end of the spectrum there is the closed market, in which a public sector operator is protected from competition. Such an absence of competitive pressures can give rise to cost and other inefficiencies and act as a barrier to new forms of finance. However, there are mechanisms whereby the public sector operator can be given scope to franchise services to private sector providers or can introduce private investment through borrowing. Under that model, it may be possible for the public sector operator to engage the private sector in the development of major schemes such as the proposed rapid transit initiative for Belfast.
At the other end of the spectrum is the deregulated free market with minimal barriers to entry by anyone and direct competition between operators. That model operates in the rest of the United Kingdom outside London. Although deregulation has undoubtedly resulted in operating efficiencies, the market turmoil that it has caused is well documented. Between those two models there are various permutations of controlled competition, where operators have exclusive rights to deliver services for fixed periods after the award of a contract through competition. Under that model, a publicly owned public transport company would compete actively with the private sector for tendered services.
In the consultation paper I do not advocate unfettered deregulation as in Great Britain but rather a model that retains a publicly owned public transport company subject to the possible progressive injection of private sector finance in a manner acceptable to the community. Some key strengths in the present model of delivering public transport must be considered when new arrangements are being developed. For example, Translink’s near monopoly of bus services enables it to cross-subsidise uneconomic services from profitable services without the need for further revenue support from the Assembly’s Budget. Furthermore, through its control of rail and bus services, Translink has the potential to plan and deliver public transport in a wholly integrated manner.
At the same time, we cannot overlook the findings of recent studies of public transport systems in Europe. Those found that cities whose public transport services were regulated under controlled competition experienced higher rates of growth in passenger trips and better recovery of operating costs through fare income than those with closed public transport markets. Those studies concluded that controlled competition helps to maintain stability in the public transport market at a lower cost and with better prospects for permanent involvement.
Controlled competition, in which Transport Northern Ireland would play a major part, has the potential to ensure more transparency in the allocation of the Assembly’s resources and better value for money for taxpayers and passengers. I posed the question in the consultation paper of how far and how quickly the public transport market should be opened up to private sector participation. No doubt I shall receive a range of views. Whatever the outcome of the consultation, the timetable for introducing greater private sector participation is likely to be influenced by European Union liberalisation measures now in draft form. EU Regulations on public service requirements and the awarding of public transport service contracts are under consideration. If adopted, they will move us away from the virtual closed market model.
Challenging years lie ahead of us in implementing the agreed vision for public transport set out in the regional transportation strategy. Today’s consultation paper outlines a bold new framework to help us to plan and deliver the modern transport services that the people of Northern Ireland deserve. We are faced with the real opportunity of shaping a new start.
I look forward to the paper stimulating a lively debate and encouraging a broad cross-section of the public to come forward with their views. It is my intention to publish the findings of the consultation process by the end of the year. Thereafter, I shall reflect carefully on the responses, and, in due course, I shall introduce a set of detailed proposals for consideration by the Assembly.
The Chairperson of the Committee for Regional Development (Mr A Maginness):
The Committee for Regional Development has been kept informed of the Minister’s views, and for that we are grateful. The nub of the statement is the creation of a new, dynamic, publicly owned operating company, Transport Northern Ireland, and the setting up of an independent public transport regulatory body. Both developments are to be generally welcomed. The detail is for discussion and careful scrutiny by the Committee.
Although the closed market makes people uncomfortable and has not worked to the advantage of public transport in Northern Ireland, many people fear the opening up of the market to private operators, given what has happened in England and elsewhere.
The Member must ask his question.
Mr A Maginness:
Can the Minister assure the House that the introduction of the private sector into public transport will not affect the quality of service and will not undermine the publicly owned transport system in Northern Ireland?
Mr P Robinson:
I shall consider the Committee’s views with great interest when I receive them. Committee members may have the opportunity to speak to other stakeholders before making their own comments.
My purpose in introducing the proposals is to approve the public transport service. The principle of opening up public transport to private sector involvement is an attempt to move away from having the service that the provider decides is appropriate to one that is more responsive to the consumer — in this case, the passenger.
There should be no fear of the outcome. The purpose is to improve service delivery in a way that responds to user demand. The consultation paper’s underlying principle is that we are not suggesting unfettered deregulation. We are considering a controlled environment. Worldwide evidence suggests that the best results are achieved in controlled circumstances. EU documentation shows an increase in public transport usage in areas with a controlled private sector involvement. It also shows a reduction in public transport usage when there was either total deregulation or total public ownership.
The Deputy Chairperson of the Committee for Regional Development (Mr McFarland):
I welcome the paper, and although I recognise the good work done by Translink, it is clear that Northern Ireland needs a new management system for the twenty-first century. Private sector operators will be interested in the most lucrative routes, and that will affect the service on lesser-used routes. Translink subsidised the less valuable routes with the more lucrative ones. How does the Minister envisage private sector involvement dealing with that?
I acknowledge the good work of the General Consumer Council for Northern Ireland, but has the Minister given any thought to introducing an independent transport users’ group to look after the interests of passengers and support the management of the proposed system?
Mr P Robinson:
I will not rule anything out at this stage. The need for a users’ group is a legitimate point that can be considered during the consultation exercise. The Deputy Chairperson of the Regional Development Committee will know from his interest in the subject that about 4% of usage on Northern Ireland’s roads is by public transport. I stated that 32% of the proposed funding would be allocated to public transport. However, that allocation was increased to 35% between the draft and the final regional transportation strategy, so there is significant development potential in public transport under the regional transportation strategy and opportunities for public transport to progress.
The large scale of investment envisaged requires the Department to examine the model and make progress in institutional terms. I do not want to be prescriptive in how I envisage the handling of various routes, but section 4.5 of the consultation paper acknowledges that Translink can cross-subsidise uneconomic services from profitable ones. That is a key element that the regulator will have to consider, because it is only on the regulator’s analysis that any decisions will be taken on the involvement of the private sector. The Department must ensure that the regulator can examine the data, analyse it and make recommendations. Those decisions will be the key to at least two issues — one of which the Deputy Chairperson has mentioned.
The 10-year regional transportation strategy is a vital component of the regional development strategy. The Committee for Regional Development has stated that new management structures are required to deliver the vision that all Members have for public transport. Does the Minister see any merit in consulting the private operator on the new structures and on the vision that the Department and the Committee have for the future of transport in Northern Ireland?
Mr P Robinson:
Private operators will have an interest in the consultation exercise and will want to give the Department their views, which will be considered with all others. However, there is a range of possible permutations from the public sector operator to the possibility of introducing private investment through borrowing and the franchising of services to the private sector and thence right through to the private sector operator. There is a range of possible outcomes. Anyone who has been in my position will have respect for the role that Translink staff have played in difficult circumstances.
The immense new opportunities should be highlighted. The number of routes and trips on public transport will increase substantially, and that will provide a good future for the people who are involved. Public transport will not operate to the detriment of the people who are working in the system.
Mr McNamee: Go raibh maith agat, a Cheann Comhairle. Gabhaim mo bhuíochas leis an Aire as a ráiteas. I welcome the Minister’s announcement of the consultation paper ‘A New Start for Public Transport in Northern Ireland’ and the proposals to improve the management of our transportation system. If we are to have the public transport system envisaged in the regional transportation strategy, we will need a new vision of how that is managed.
The Minister says that he proposes to proceed with his injection of private sector funding into the transportation system. Has he considered proposals that involve public sector finance? If so, can he assure the House that his proposals will represent good value for the spending of public funds? Has the Minister fully considered the long-term implications that private sector finance would have for his Department’s spending of public moneys?
Mr P Robinson:
One of the first conundrums that I faced in the Department was the issue of trains. I had visits from the Northern Ireland Transport Holding Company and from Translink. They wanted to lease new trains, but could not do so under the present arrangements. I am not going to be prescriptive about the extent of private sector involvement.
There is a danger that, the more questions I answer, the more it might seem that my mind is closed on the issue. That would reduce the effectiveness of the consultation process. My mind is not closed; I am avoiding responding to some questions simply to leave the issues open, because legitimate views will emerge on a range of issues.
There is a qualification in the statement and in the consultation document in relation to the injection of private sector interest and involvement, which is the extent to which the community in Northern Ireland felt comfortable with it. The key gauge for the consultation exercise is to find out how much the community believes the issue should be opened up.
My experiences of travelling outside Northern Ireland are that the private sector has become increasingly involved in public transport and that higher standards have been created through that competition. That is to the advantage of the consumer, and more people are now using public transport. That is a key objective in the regional transportation strategy. Much of the process flows directly from the regional transportation strategy and its objectives to encourage the use of public transport and to make Northern Ireland transportation less dependent on the car.
Can the Minister guarantee that proposals such as that in section 4.7 of the consultation document would not lead to the further demise of public transport through the closure of uneconomic routes?
In my constituency of Lagan Valley, people are conscious that an axe hangs over the Knockmore railway line. It is ironic that the Minister can talk about a new start while contemplating the closure of some lines. I hope that this is not an extension of a closure policy and that the Minister, who referred to rationality and objectivity, will ensure that lines are kept open, rather than introduce the private sector and allow it to close more lines.
Mr P Robinson:
I never cease to be amazed at Mr Close’s ingenious inclusion of the Antrim-Knockmore line in every question.
If a consultation exercise were to result in the recommendation that routes be opened up to private sector involvement, that option would be scrutinised by the regulator. Experience has shown that regulators, such as the water industry commissioner, Alan Sutherland, in Scotland or the electricity regulator, Douglas McIldoon, are friendly to the consumer. Mr Close will find that the regulator is an independent champion of the consumer. I would have thought, therefore, that he would have been applauding me from the Benches for adopting an approach that will surely assist the consumers’ case.
Undoubtedly, the service is in dire need of a shake-up. I therefore welcome the long-awaited attempt to make a fresh start. However, the Minister admitted that he is the public owner, the policy maker and part regulator of public transport, so he must be responsible for the mess that it is in.
First, how much will the regional transportation strategy cost? Secondly, how long will it take to implement, and, in the meantime, what will he do to ensure that the buses in Bangor link up with the trains and that the trains run on time?
Jawohl, mein Herr.
That should be "meine Dame".
Mr P Robinson:
I did not confess to operating the trains and buses, so Ms Morrice has reached an unwarranted conclusion. However, she said that the service is dire and in need of a shake-up, and the General Consumer Council for Northern Ireland made remarks about the attractiveness of the service. Even if the Member and the Consumer Council had not made those comments, it is clear that services in Northern Ireland could be improved.
The increased funding, the institutional changes and changes in arrangements, which I proposed in the regional transportation strategy, are precisely intended to give the service a shake-up. However, as to who is responsible for the mess, the Member ought to recognise that the mess did not start in December 1999. It existed before I took responsibility for the Department.
The Department is trying to draw in private finance, thereby reducing the amount of public expenditure required. Until I know what model will be adopted, I cannot say what the reduction in public sector funding might be. The costs of providing the type of public transport system that we require are set out in the regional transportation strategy document, which I am sure the Member has read in detail.
I welcome the aspirational aspects of the Minister’s statement — I use the word "aspirational" advisedly, and in no way as a criticism of the Minister. Yesterday, when the First Minister presented the working group’s review of the opportunities for public-private partnership, he said that there was a major deficit in public investment that would require £6 billion over the next 10 years.
Last Monday, the Minister for Regional Development, when answering questions about water and sewerage, indicated that £3 billion would be required over the next 20 years — or £1·5 billion over the next 10 years. If my arithmetic is correct, his Department will require £5 billion over the next 10 years for water, sewerage and transport. That leaves £1 billion for the major spending Departments — Health and Education.
Does the Minister agree that whether the money comes from public-private partnerships, Treasury loans or elsewhere, the capital and the interest on that money must be repaid? Does he envisage that that repayment will come from increasing the rates, with a tap tax on water or possibly a toilet tax on effluent? If not, where will the money come from to meet what the Minister — properly and correctly — described as a major requirement? Are we back to the position where there is no way we can reasonably fund, without screwing the people of Northern Ireland, the terrible deficit left by the British Government, which was accepted by those who negotiated the agreement?
Mr P Robinson:
My Department requires £3 billion over the next 20 years. Over 10 years, that is £0·5 billion more than we might get through public expenditure normally, if one were to extrapolate the figures over that period. It is not an additional £3 billion over 20 years — that is the amount we require over 20 years. Therefore, in the next 10 years it would be only £0·5 billion, rather than £3 billion, that would be counted in the £6 billion mentioned by the First Minister yesterday.
The underlying message, however, is accurate: there is no free money. If one borrows from, or involves, the private sector, there is a payback. The private sector is not renowned for being so altruistic that it provides the public sector with services without getting a return. The Minister of Finance and Personnel — and I had better be careful to get my facts right because he is in the Chamber — will tell you that, if the reinvestment and reform initiative is used, a new stream of income must be identified. Therefore, that would be additional to the regional rate.
If a PPP is used, that can be covered under the departmental expenditure limit to the extent that there is room for manoeuvre with regard to additional expenditure. Undoubtedly, if the reinvestment and reform initiative is used, an additional stream of income will be required. Therefore, an increase in rates may be required.
I welcome the Minister’s statement, particularly the proposals to set up a single transport company in Northern Ireland and to establish a new regulatory body.
There will be anxiety among the employees of the bus and rail companies, and they need some reassurance. Their fear would be that we might have privatisation of bus and rail by the back door. Can the Minister assure us that that is not his primary intention and that there is a commitment to retain a substantially publicly owned transport system?
Does the Minister favour a controlled competition system for Northern Ireland, so that all areas of the region can enjoy some level of public transport provision? How can the number of passengers using public transport be increased, and will clear targets be set for the new company?
Mr P Robinson:
I made it clear in the statement that there would be a public transport company, which would be opened up to private sector involvement. I understand the concerns of those employed in public transport. There is always a concern when someone proposes the consideration of something new. However, if those involved look at the regional transportation strategy and the consultation paper, they will see that there will be an enormous uplift of employment prospects in public transportation.
Expenditure on public transport has significantly increased in the regional transport strategy. Although it accounts for 4% of road usage at present, it has taken about 16% of public expenditure over the past 10 years. That was increased to 32% in the draft and to 35% in the final document. With regard to expenditure, therefore, there has been a massive uplift in the potential of public transport.
If I worked in public transport and saw that the percentage of spend would more than double, that the number of routes in the Province would increase, that the frequency of journeys would improve and that a new rapid transport system had been proposed, I would see opportunities rather than doors closing behind me. There are real opportunities, and people who work in public transport should not be afraid of the document. They should grasp the challenge and the opportunity that it presents and move forward to the advantage of public transport users here.
Mr R Hutchinson:
I welcome the Minister’s statement and especially his recognition that Translink has had a difficult time during the past 30 years and has made the best of a bad job. How will the new transport body be appointed?
Mr P Robinson:
I have views on how it could happen. However, how it will happen is a decision that will be taken after proper consultation. I want to hear the Member’s proposals and those of others.
If the new arrangement that he refers to is the overseeing body, Transport Northern Ireland, I expect that it will be established through ministerial appointment. Ministerial appointment has always involved those who are closely connected with public transportation. At present, I am delighted with the equality on the new Northern Ireland Transport Holding Company (NITHCo) board. We have managed to bring in expertise from areas where the interest in public transport has been much wider at a higher level. That body of people immediately responded to the challenge of a new start and has been prepared to embrace it.
If the arrangement that the Member refers to is the regulator, I believe that that body will, at first, be set up in shadow mode under the Department. As the statutory basis of the regulator will go through the House, clearly he will have to be at arm’s length from the Department.
I welcome the Minister’s statement and his praise for those who worked in Northern Ireland’s public transport services during the troubles, to which must be added the name of the chief executive, Mr Ted Hesketh. I share the concerns of the hon Member for North Down about where the finance for the proposals will come from. We look forward to hearing about that in the months ahead. However, it is great to see new thinking being directed towards our public transport system.
I have, for many years, been interested in the resumption of a rail system linking Dundonald, Comber and Newtownards. I welcome, therefore, the proposed establishment of a public transport regulatory body. I know that it will be a shadow body at first. However, can the Minister give the House some idea of when it will become a separate independent body to which Members will be able to feed their thoughts on new routes that are required in Northern Ireland?
Mr P Robinson:
I welcome the Member who is visiting the Assembly today. We are always delighted to have him in the Chamber.
It was the hon Member for North Down who was not here yesterday. I know that he hinted that that should be mentioned.
Mr P Robinson:
The Member for North Down was here yesterday — I had the pleasure of having a conversation with him then.
I voted as well.
Mr P Robinson:
Having read the Member for Strangford’s newspaper, which is going around the constituency, I hope that he will not use the next issue to take credit for this initiative, in the way that he took credit for my decisions on free fares for senior citizens, the Comber bypass and Castlebawn. [Laughter].
Mr P Robinson:
However, the Member rightly draws attention to the significant role that the workforce at every level of Translink has played over recent years. One is apt to forget, or it may diminish in one’s memory, the very difficult role that the workforce has had to perform in the past 10 or 20 years to keep a public transport system going amid the level of conflict on our streets. The community has much to be proud of in its public servants and has much for which to commend the workforce at Translink.
Sadly, the difficulties that the workforce faces continue, with regular attacks on bus and train drivers. I know the view of the House in its condemnation of such activity. I join the right hon Gentleman in welcoming the honour received by Ted Hesketh recently. The CBE was a fitting reward for his services to public transport and to the community in Northern Ireland.
The Member mentioned the prospect of a rail line between Dundonald and Newtownards or Comber. The future for that entire area best lies in the development of a rapid transit network. If a decision is eventually taken to run rapid transit down the Comber railway line from Dundonald into Belfast, there must be opportunities for Newtownards or Comber to link into that line. That is much more viable than any heavy rail options for those areas. There are massive opportunities for people in those areas to benefit from rapid transit should it run from Dundonald into Belfast.
The Minister for Regional Development (Mr P Robinson):
I beg leave to lay before the Assembly a Bill [NIA 5/02] to confer functions on the Department for Regional Development in relation to the regulation of certain harbour authorities; and for connected purposes.
Bill passed First Stage and ordered to be printed.
Mr Speaker: The Bill will be put on the list of pending business until a date for its Second Stage has been determined.
The Minister of Finance and Personnel (Dr Farren):
I beg to move
That the Second Stage of the Family Law (Divorce etc.) Bill (NIA 01/02) be passed.
The Bill deals with two aspects of family law. The first is divorce, which is a sad reality of life for many in Northern Ireland. The second concerns three outdated and anomalous provisions of the law on family property, which I shall deal with presently.
The Executive, in their Programme for Government, are committed to supporting children and their families. The Executive’s children’s fund has been created to develop services that will help children and their families in Northern Ireland. The Children’s Commissioner Bill is another example of our concern for children. Supporting families should be one of our main concerns. However, support comes in many forms, and we must face reality. Sadly, marriages do break down, and all sorts of families are affected by breakdowns that occur for all sorts of reasons. Experience shows that people in Northern Ireland do not enter into divorce lightly. I can assure the Assembly that research commissioned by the Office of Law Reform shows that couples tend to divorce using the separation facts and over a relatively long period. In contrast to the position in England, our divorce rate is around the European Union average. Divorce rates have remained almost the same over the last decade, although, as the statistics show, the numbers fluctuate from year to year.
Divorce law has evolved over many years to cater for the needs of society. In the nineteenth century, industrial injury and the perils of childbirth meant that most marriages were short-lived — often they did not last beyond 10 or 20 years. For those whose marriages broke down, divorce was available only at great cost by a private Act of Parliament. Parliamentarians felt that divorce should be made difficult and expensive to keep it out of the hands of the so-called feckless poor.
Despite that policy, marriages broke down, and people sought different ways of handling the situation. Men in particular simply deserted their families and started a new life in another part of the country leaving their wives and children to be cared for by the local poor law committee. However, society has evolved since then and is no longer prepared to allow people to act in that way. Although marriage breakdown is not a new problem, divorce law must be periodically reviewed to ensure that it meets modern-day requirements and protects people. The Bill follows wide consultation with people across Northern Ireland and is informed by long and detailed research on how people here use the divorce system.
The research and consultation processes showed that the divorce system here works fairly well most of the time. However, there is room for improvement. In particular, the system could do more to promote good post-divorce relationships for the sake of the children and to minimise, in so far as primary legislation can, the bitterness and acrimony of divorce. Children could, and should, be more central to the system, and the law could be made easier for users to understand.
The Bill does not make divorce easier. It seeks to refine the divorce system so that it can better achieve its objectives. It strikes a balance between fears about maintaining family life and ensuring that no one is left outside the law’s protection during a difficult period.
The Law Commission for England and Wales made a famous statement in 1966:
"A good divorce law should aim to save saveable marriages and to ensure that where a marriage has irretrievably broken down, the empty legal shell should be destroyed with the maximum of fairness and the minimum of bitterness, distress and humiliation."
I would like to add to that. A good divorce law, like a team of paramedics, is called upon in the aftermath of the disaster of marriage breakdown. It does not cause the disaster, but it will be judged on how well it deals with the aftermath and on how it facilitates the resumption of normal life.
Although some acrimony is unavoidable, an effective divorce system can help to lower the tension between the parties. In many cases, after they cease to be husband and wife they will still be father and mother. A good divorce system does not worsen relationships between them so that they are unable to maintain a relationship as parents for life.
The Bill, therefore, fine-tunes the procedures for divorce in Northern Ireland. I want to ensure that those procedures do not make a difficult situation even harder for the parties and children affected by the breakdown of a marriage.
In the main provisions of the Bill, clause 1 sets out a statement of principles. That is designed as an interpretive aid for the court and for any persons exercising functions under the divorce legislation. The principles are that where a marriage has irretrievably broken down and is being brought to an end, it should be done with the minimum distress to the parties and children affected; that questions should be dealt with in a manner designed to promote as good as possible a continuing relationship between the parties and children affected; and that in those cases where there is a risk of domestic violence, it should be removed or diminished as far as is reasonably practicable.
Currently, the only ground for divorce in Northern Ireland is the irretrievable breakdown of marriage. The Bill does not seek to change that. Under the present law, irretrievable breakdown of marriage is proved by using one of five facts. Those are adultery, unreasonable behaviour, desertion for a continuous period of two years, two years’ separation with the consent of the respondent, or five years’ separation. Three quarters of Northern Irish petitioners use separation facts, in sharp contrast to England where three quarters of petitioners use fault facts. When people in Northern Ireland use fault facts, they are most likely to use unreasonable behaviour.
Our research showed that the most common behaviours complained of were violence and alcoholism. Although many consultees felt that separation was an appropriate basis for divorce, there was also a strong feeling that the law must protect those who had suffered during their marriages because of their spouses’ behaviour. A fault fact, therefore, had to remain available.
Clause 2 of the Bill, therefore, retains irretrievable breakdown of marriage as the sole ground for divorce in Northern Ireland, as evidenced by three facts: two years’ separation with the respondent’s consent; three years’ separation; and unreasonable behaviour.
The periods of separation balance the need for enough time to prove irretrievable breakdown with the need to avoid delay for an unreasonable time in accessing financial remedies and arrangements for children. Consultees thought that the existing two-year period with the respondent’s consent was appropriate, and I concur. A wider range of views was taken in relation to the five-year fact, but there was a strong feeling among consultees that five years was too long to deny people remedies from the divorce courts. I have, therefore, chosen three years. That period is long enough to demonstrate that the marriage has indubitably died, but not so long as to deny access to court.
As consultees identified, some petitioners require divorce to be on the basis of fault for religious reasons or because they suffered greatly while married. Some actions so destroy the soul of a marriage that as a result a reasonable person would conclude that the petitioner could not be expected to live with his or her partner. Present law formulates that sentiment as:
"The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him/her".
In legal shorthand, that is referred to as "unreasonable behaviour", which is broad enough to cover the variety of behaviours that can cause a marriage to break down. I intend to retain that definition as the fault ground.
Members should not be concerned that the adultery fact will no longer appear in the primary legislation. Adultery strikes at the heart of marriage and cannot be tolerated. It is not my intention to detract from the seriousness of adulterous acts or to belittle their effect on the wronged party or on the trust that is the foundation of marriage.
The legal definition of adultery is limited. In the law only the act of full, penetrative vaginal intercourse counts as adultery, and proof of that act is required. Other forms of sexual infidelity are not legally regarded as adultery. Providing proof of adultery is prurient, difficult and often degrading for the petitioner. Under the Bill, adultery will still appear in the divorce petition, but the petitioner could also include any other connected behaviour that he or she had to endure, such as unexplained absences, changes in mood and sums of money spent in mysterious and unexplained ways.
The substantive law, therefore, has not changed. Adultery is still grounds for a divorce. The law takes sexual infidelity seriously and condemns it. Including adultery in the "unreasonable behaviour" fact will make the law easier to understand and will remove the technical and illogical legal differences between acts of sexual betrayal.
The Bill removes the legal fact of desertion, which is infrequently used, complex and difficult to prove. In all but the rarest cases, a petitioner who can rely on the fact of desertion could also use two years' separation with consent or unreasonable behaviour as grounds for divorce. The exceptional and, perhaps, hypothetical petitioner who cannot rely on those grounds will be able to obtain a divorce using the three-year separation fact.
In line with proposals for divorce, the Bill amends the grounds for judicial separation to maintain parity. To maintain consistency throughout family law, it also amends the grounds on which a maintenance order may be obtained in the domestic proceedings court.
Clause 3 provides that in certain strictly judicially controlled cases, the oral hearing for divorce may be dispensed with. That would be available only in separation cases where arrangements for children are settled and where the respondent consents to that course of action. Consultees indicated that in some cases hearings are a stressful and unnecessary part of the process. However, the correct checks and balances must be put in place to ensure that the system protects parties and their children, especially those whose parents have not settled and made sensible decisions about their future. That is why the court is given discretion to decide whether a case is suitable for the no-hearing route, taking into account the respondent's consent as well as the children's interests.
There is also a catch-all provision, which has always existed, that allows a judge to dispense with oral testimony for special reasons; for example, if the petitioner is seriously incapacitated and unable to attend court.
Clause 4 allows the decree absolute, which is the final decree that dissolves the marriage, to be automatically generated after six weeks. That removes the onus from the petitioner to apply to the court office. However, the decree can be delayed by an application by either party under the Children (Northern Ireland) Order 1995 or by the respondent for financial provision in separation cases.