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Lord Phillips of Sudbury: On that basis, the noble and learned Lord the Lord Chancellor has entirely satisfied the movers of the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 117 and 118 not moved.]

Lord Kingsland moved Amendment No. 119:

Page 6, line 5, at end insert (", provided that assistance for representation shall not be refused on the grounds that mediation is more appropriate unless the circumstances are such that a privately paying individual would be likely to opt for mediation.").

The noble Lord said: This amendment is based on the principle that those who cannot afford the full cost of legal services should have the same access to the system of justice as those who pay privately. If we apply that principle to Clause 9, at line 5 on page 6 of the Bill, we should reach the conclusion that it would only be appropriate to require mediation from public funds, rather than defray the costs of negotiations through solicitors, if a private party were likely to take the same approach. In other words, we do not wish to see mediation introduced as a poor relation to a procedure that would have been used were the parties to the action or the dispute both private parties. That is the purpose of the amendment. I beg to move.

Lord Hacking: I am sure that it is not the intention of my noble and learned friend to treat mediation as a poor relation in the resolution of disputes. The starting-point is the guidance. As I have said several times, the guidance notes are very helpful. Paragraph 83 states the principles which it is intended that the code should follow. Perhaps I may read the paragraph as I believe it is important. It states:

"The Code is required to reflect the principle that in many family disputes mediation is more appropriate than court proceedings. This is intended to reinforce the development, under the Family Law Act 1996, of mediation as a means of resolving private law family disputes in a way that promotes as good a continuing relationship between the parties concerned as is possible in the circumstances. The Government believes that mediation is more constructive than adversarial court proceedings, and that litigation in these cases usually serves only to reinforce already entrenched positions and further damage the relationship between the parties. In addition, the cost of court proceedings is higher than that of mediation and additional costs have to be borne by the property of the family, reducing the amount available to the parties and their children in future".

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Those are important principles. Neither the Bill nor the guidance note indicates that mediation is mandatory; nor do they indicate that there should be some obligatory appropriateness test. Indeed, if the code did so, it would be going beyond the powers given to it by Parliament under the Bill.

Secondly, I am not sure that the test proposed by the noble Lord who moved the amendment is entirely satisfactory. It is the test of what private litigators would do. Unfortunately, experience shows that some private litigators who have the funds can be pretty bloody-minded in matrimonial and other civil cases and go for court proceedings for reasons of vindictiveness. To attempt to apply this test to what a private vindictive person would do is surely not sensible in any degree. For those reasons I oppose the amendment.

Baroness Crawley: I, too, oppose the amendment. I do so simply because it would cut across the proposition that, in order to increase access to justice for more people while keeping an eye on best value for money for the taxpayer, it would be better for people to try mediation first, before becoming eligible for other services. Such a course of action would seem eminently sensible, certainly from the point of view of the distinct advantages of mediation in conflict resolution.

Lord Simon of Glaisdale: Perhaps I may speak briefly from the point of view of family law. My remarks are made in the knowledge that the noble Lords, Lord Meston and Lord Hacking, and the noble Baroness, Lady Scotland, have more recent experience than I.

As regards family disputes, we are concerned only with the financial and property repercussions, where mediation is of particular value because passions are frequently more virulent in such disputes. Indeed, they may poison whole relationships, particularly those of the parties as regards their children. One should not regard mediation as a poor relation, or even as a first step to litigation. On the contrary, in family disputes mediation will frequently be in the interests of the parties.

The Lord Chancellor: The noble Lord, Lord Kingsland, was more economical in his recommendation of this amendment to the Committee than even the noble and learned Lord, Lord Simon of Glaisdale, would wish the statute book to be.

The noble Lord, Lord Hacking, put the matter in context. Clause 9 as a whole provides for a code that reflects priorities and under which the commission seeks to ensure that the most appropriate types of service for an individual case are funded. It is a discretionary framework, as it must be under a controlled budget.

The amendment to Clause 9(3) cuts across that discretionary framework. The clause provides that,

"The criteria set out in the code shall reflect the principle that in many family disputes mediation will be more appropriate than court proceedings".

The amendment would add,

"provided that assistance for representation shall not be refused on the grounds that mediation is more appropriate unless the circumstances are such that a privately paying individual would be likely to opt for mediation".

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So the amendment cuts across the discretionary approach by laying down an iron rule that assistance for representation shall not be refused on the grounds that mediation is more appropriate unless the circumstances are such that a privately paying individual would be likely to opt for mediation in the circumstances.

I do not accept that this is a test that the commission should have to apply in addressing the allocation of scarce public resources for the benefit of people who do not have the resources to be privately paying clients.

The noble Lord, Lord Hacking, made sound points. It may be that the acrimony in a particular marriage relationship between well-off partners who can afford to litigate would mean that they would be likely to insist on a set-piece confrontation in the courts instead of mediation. The result would be costly litigation from which their lawyers would benefit. That would do nothing but harm their long-term relationship. It would be likely to be damaging to the interests of the children, with whom they must both continue a relationship after the marriage and property disputes have been resolved.

It would be entirely reasonable for the commission in its discretion to take the view that people should try mediation in these property disputes first, and become eligible for representation only if that failed. The fact that well-off people who could afford to litigate might be likely to prefer an Olympian confrontation in the courts should not deter the commission from promoting a more sensible course. So I am afraid that the Government cannot accept this amendment, because it cuts across a discretionary system based on clear criteria which the Government believe does command popular assent to achieve access to justice for the many while maintaining best value for taxpayers' money. Traditional litigation in this area does not, because of lawyers' costs, make a persuasive appeal to claims on scarce public resources. On that basis I invite the noble Lord, Lord Kingsland, to withdraw his amendment.

7 p.m.

Lord Kingsland: I should like to thank the noble and learned Lord for his response and, although I am not happy with it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 120 not moved.]

The Deputy Chairman of Committees (Lord Brougham and Vaux): Amendment No. 121 has already been debated.

[Amendment No. 121 not moved.]

Lord Kingsland moved Amendment No. 122:

Page 6, line 16, at end insert ("and procedures for informing the individual applying for funding about the decision, the reasons for that decision, and where funding has been refused what help should be given to that individual to find alternative ways of resolving the dispute.").

The noble Lord said: This amendment requires the code to contain procedures for informing applicants of the reasons for decisions and provisions concerning what help should be given to applicants who are refused

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funding to find alternative ways of resolving their disputes. As your Lordships are aware, the Bill replaces the merits test with a funding assessment which takes into account a large number of considerations. There are the Government's priorities; the availability of finance; the strength of the case; the importance of the case to the client; public interest in bringing the case; whether there is another way of funding the case; and whether there is another way of resolving it.

Depending upon the particular priority given to the area of law which is the subject of the decision, different weights will be given to each of these factors. So the task of balancing all these weights against each other is an extremely complex one in each individual case. There are likely to be very many dissimilar instances. In those circumstances, if the application is refused it is my submission that very clear reasons should be given so that, first of all, the applicant knows exactly where he stands. Secondly, if that funding is refused the applicant is given a very full opportunity to consider all the other options that may or may not be at his disposal.

The noble and learned Lord the Lord Chancellor has spoken on several occasions during the course of this Committee stage about the importance of open government and of an open approach to decision-making. In my submission, that principle is more important in relation to Clause 9 than in relation to any other clause. I beg to move.

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