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Lord Coleraine: In reply to the last amendment the noble and learned Lord stated that the inclusion of the word "usually" by the noble Lord, Lord Meston, was not necessary. I thought that he was disagreeing in advance with the statement that the noble Lord, Lord Irvine of Lairg, has just made. However, at the time I realised that that could not be correct and that the noble Lord, Lord Irvine of Lairg, is right. Assuming that he is correct, what will happen when one party is willing to mediate and the other party is forced to go to court? I presume that one or both of the parties would be entitled to legal aid.

Having said that, I think that the noble Lord, Lord Irvine, is mistaken about Clause 12 because it does not impose on any party a liability to mediate. It enables the court to send parties away, once they have started to litigate, to be told the advantages of mediation. At the end of that process the person who gives that explanation has to produce to the court a report stating that they have done so and stating whether or not the parties have complied with the direction and, if they have, whether they have agreed to take part in any mediation. The clause does not contain any threat, inducement, incentive or compulsion on the parties to mediate. The final part of the clause is merely for the purposes of giving information to the court which would want to know the situation when the parties went away to be told about mediation.

Baroness Hamwee: I should like to support the noble Lord in his amendment, which goes to my decision to put down a Motion that the clause should not stand part of the Bill. It may be possible to debate the two together. I hope that we receive a sympathetic hearing by the noble and learned Lord the Lord Chancellor.

I should like the provision to make clear that either party can withdraw the agreement to mediation at any time and then the legal aid for representation kicks in.

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I, too, had marked the passage in Hansard which has been quoted and a passage at Second Reading. The noble and learned Lord, the Lord Chancellor, said at col. 704 of the Official Report of 30th November 1995:

    "I am not intending that mediation should become compulsory--compulsory mediation quite simply does not work, and is a contradiction in terms".

One cannot begin to argue with that. He also stated:

    "Legal representation will be available for eligible parties when mediation is not suitable for the parties or appropriate for the circumstances of the case".

On re-reading that passage, I realised that the noble and learned Lord was suggesting that legal representation and mediation were being described as alternatives. That is where I become concerned.

I shall not take up the time of the Committee by repeating the arguments so powerfully made by the noble and learned Lord. I believe that the prescribed circumstances are of such importance that we should look at the detail at this stage if we are to consider the clause without the proposed amendment. The amendment is fundamental to our acceptance of the clause. It would be entirely wrong to introduce what might become a two tier system--proper legal advice and representation for those who can pay for it and compulsory mediation for those who do not have the funds.

We are all concerned about the size of the fund available. I know that the noble and learned Lord the Lord Chancellor shares that concern. I referred earlier to the explanatory and financial information which commented that the Bill was designed to be cost neutral. As we were reminded earlier, that was with regard to the Bill as presented; that is, direct legal aid. Therefore, it is suggested that no additional legal aid funds will be available in total. Legal aid is rationed now, but if it has to be rationed also with regard to mediation and legal advice, the point should be made that in general men will buy advice and women will not receive it. There is a discrepancy between the assets of men and women and as regards eligibility between men and women.

The noble and learned Lord the Lord Chancellor said that he was surprised at my amendment on the statutory charge, and wondered about my concern for the public purse. I do have a concern; that the public purse is adequate for its purpose and its size is a material consideration.

It used to be advantageous for tax reasons to get married at a specific point in the financial year. If those contesting for legal aid funds have to take account of the fact that the fund may run out at some particular point they may have to consider getting divorced at a specific point in the financial year before the available funds have run out. I support the amendment.

10 p.m.

Earl Russell: Not having spoken for nearly five hours I hope that I may be forgiven for taking enough of the Committee's time to congratulate the noble and learned Lord on his stamina, which is truly formidable. I should like to thank him for proving me right in not taking the

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time to speak to my Amendment No. 178. I am entirely reassured by what he said about it and I am most grateful.

However, on this amendment I share a number of the concerns expressed by my noble friend Lady Hamwee. The noble and learned Lord may remember, although it is a long time, about two years ago, kindly giving me a meeting on the subject, before the White Paper. He was extremely helpful then and I was concerned to know how far mediation would be voluntary. He gave me the assurance that it would be and if I remember rightly he used the phrase that "You can take a horse to water but you cannot make it drink". That is clear. However, to be truly voluntary it must be such that you can refuse to undertake it without suffering any evil consequences. That is where I am worried by the wording of Clause 24. On 10th January the noble and learned Lord kindly sent me a long and extremely helpful letter which I have read many times. He wrote:

    "The effective clause is not intended to be that the Legal Aid Board is under a duty to refuse legal aid representation in favour of mediation".

I shall be interested in the resolution of the technical conflict between him and the noble Lord, Lord Irvine of Lairg, on that point. If the wording is ambiguous, then it needs clarifying.

The noble and learned Lord's letter continued:

    "Clause 24 is intended to be read as a presumption in favour of mediation which may not apply in certain types of cases or may be rebutted in certain circumstances. The effect is intended to be that, all things being equal, mediation should be considered more appropriate than representation".

I understand his point that exceptions are to be made to that by regulation. I appreciate what he said about the content of the regulation, but what worries me is that, with those people for whom there is a presumption in favour of mediation, if they do not wish to accept that presumption and go into mediation, exactly what happens to them? The noble and learned Lord is quite right that you cannot have effective mediation between unwilling parties. The right reverend Prelate mentioned the danger of people with financial difficulties being pushed unwillingly into mediation because it is cheaper. For unwilling people, mediation can be an extremely intrusive process and may create a sense of impertinence which will not help with making progress. If possible, I shall want clear assurances that, if people decide that mediation is not appropriate for them, they may do without mediation without suffering for what they do. It is only with that assurance that I would truly be convinced that mediation is voluntary.

The Lord Chancellor: The noble Earl, Lord Russell, quoted from my letter written some time ago. It explained the position as I understand it. First, Members of the Committee must read Clause 24 in the light of Clause 22, particularly the part which was the subject of Amendment No. 172 tabled by the noble and learned Lord, Lord Archer of Sandwell. It states that:

    "A person is not to be granted mediation in relation to any dispute unless mediation appears to the mediator suitable to the dispute and the parties and all the circumstances".

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That is our condition which is to be taken into account before one comes to Clause 24. I understand by Clause 24 that the Legal Aid Board has to have in mind that,

    "recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except ... in relation to prescribed descriptions of proceedings or ... in prescribed circumstances".

Certainly it is clear that, where either party to the proceedings is not prepared to take part in mediation, mediation is not suitable to the dispute, the parties and all the circumstances. I cannot see that a mediator could possibly regard mediation as suitable for a dispute where either party was not prepared to take part in it. That seems to me to dispose of that particular matter. I certainly intend that Clause 24 should apply, subject to that clause. That is what is intended. In other words, it is intended that in relation to family matters mediation is more appropriate than taking proceedings. It would be more appropriate only in cases to which Clause 22 applied. I have been kindly handed a copy of the letter, but I think I remember what the circumstances were.

The noble Lord, Lord Irvine of Lairg, said that I have not given any indication of the circumstances to which this would apply. I tried to do so in reply to the noble and learned Lord, Lord Archer of Sandwell, who kindly provided me, as a good start, with a list of circumstances of his own. Very many of the circumstances are pretty obvious. Certainly in situations where the parties are apt to be violent towards one another it might be all right for a court, as my noble and learned friend Lord Simon of Glaisdale said earlier, but I do not believe a mediator would have quite the same position in relation to that situation as would a judge.

My main point in regard to mediation is that for it to work people have to be willing to speak, to communicate. Mediation relates effectively to communication. It is difficult to mediate in a communication if neither party, or one of the parties, is not prepared to speak at all. That is my basic approach.

My noble and learned friend Lord Simon of Glaisdale believes that it is possible to have compulsory mediation. I do not find it easy to disagree with him on many points, but I do find it necessary to disagree with him in this respect, for the reason I just sought to explain.

This amendment, as was pointed out, is inappropriate in its reference to Clause 12. I think that would probably be accepted. So far as I am concerned it is inappropriate in the light of Clause 22. If the noble Lord is not satisfied with my explanation so far, I can certainly readily deal with the matter by undertaking that it would be one of the clauses of the excepting regulations just to put the matter beyond all doubt. That is one of the reasons why it is quite good to have a flexible power in this connection. Other circumstances might appear in which that would be so. That is why I say it is a matter of principle, and then the exceptions are provided under the regulation-making power.

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