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Baroness Nicol: I regret to have to say that I consider that there is evidence that government departments do not feel bound by the implication of the national park designation. The amendment would provide the incentive needed to ensure that national interest in national parks was given the consideration that government policy promises when other national interests are being weighed in the balance. A duty to "have regard to" was not what Edwards recommended and does not go far enough in giving the clear signal required. I support the amendment.
Viscount Addison: I support the amendment. The Government stated in their response to the National Parks Review Panel in 1992 that they afforded national parks the highest status of landscape protection. Therefore, it would seem consistent if a duty were placed on all public bodies to further the national park purposes so far as their activities affect the park. The national park clauses in the Bill make it clear that the national park purposes are of overriding importance in the operation of the parks. It would therefore be consistent in the context of the Bill as well as with government policy on national parks that furthering the national park purposes should be an integral consideration in the activities of public bodies. That will enhance the level of protection afforded to national parks and ensure that the national responsibility for them is taken seriously by all public bodies.
Lord Wise: Section 2 of the Countryside Act 1968 already gives a duty to Ministers, government departments and public bodies to have regard to the desirability of conserving the natural beauty and amenity of the countryside. However, as has been stated, the National Parks Review Panel was quite clear that this obligation was not strong enough to enable all public bodies to pursue the national park purposes wherever they have power to do so.
It is possible that my noble friend the Minister is concerned that not all government departments would be able to further national park purposes because of the inherent conflict of their activities with the purposes.
Viscount Ullswater: The Bill introduces a new duty on public bodies which will require them to take into account national park purposes where their actions may affect the parks. In coming to decisions, we shall expect them to demonstrate that they have done so. What divides the Government from my noble friends is whether the words should be "have regard to" or "further". But this is a new duty placed on public bodies. I understand the importance which is placed upon national park purposes and the wish among some noble Lords that they should override any other activity which may have to take place in the parks. Nevertheless, I do not believe that Amendment No. 256 introduced by my noble friend Lord Norrie could be applied in practice. There are agencies which are required to undertake activities in the parks in order to provide services to park communities such as the supply of electricity or clean water.
The administration of a modern state is subject to many pressures, and decisions very frequently involve finding the best balance among differing, and sometimes downright conflicting, interests. Against that background, we consider that a duty to have regard to national park purposes is appropriate to the kind of balancing exercise which is so often needed. Indeed, the law requires that a wide range of decisions are taken having regard to all material considerations affecting them. Facilities such as new roads, housing and schools may be needed from time to time in or near national parks, as anywhere else, and real difficulties could arise if the authorities concerned were to be required to further the park purposes when taking decisions respecting them. We shall of course expect public bodies making relevant decisions to demonstrate that in coming to those decisions they have taken park purposes properly into account. With that explanation, I hope that my noble friend will withdraw his amendment.
The purpose of this Private Member's Bill is to ensure that, with a few necessary exceptions, information as to what occurs during family mediation cannot subsequently be brought as evidence in civil cases in a court of law. The Bill originated with the Scottish Law Commission. It applies to Scotland only. South of the Border your Lordships may know that case law giving a large measure of protection to mediation is already in place.
I now turn to the background to the Bill. Noble Lords are well aware that in this country increasing numbers of couples decide to split up and have somehow to settle the arrangements for their financial affairs, their house, their possessions and, above all, their children. In Scotland in 1993 there were no less than 12,700 divorces involving nearly 10,000 children, with 2,000 or more under five years of age. Fifty per cent. of those children lose touch completely with one parent after two or three years. There would have been others, of course, besides those who separated without divorcing or indeed without ever having been married at all.
Whatever one's views of this trend, it is only too clear that for the couples concerned splitting up can be extremely painful, traumatic and often a bitter process: for the children it causes very special problems and anguish. It is also frequently extremely costly in court time and in lawyers' fees.
Through the years it has emerged that divorcing or separating couples can be greatly helped in coming to mutually acceptable arrangements if they, and possibly their children, can meet in a neutral place with an impartial third person who has the knowledge and skills to provide information to assist in looking at the practical options and, if possible, getting at least some agreement.
During the past decade a network of affiliated local voluntary organisations has developed family mediation services across Scotland. They work under the umbrella body known as Family Mediation Scotland which,
Mediation is used increasingly. Last year 3,644 families contacted Family Mediation Scotland and the organisation hopes to move to a situation where services are available to all who require them. In addition, the Law Society of Scotland has its own separate system for training and accrediting solicitor mediators.
Family mediation is not a formal part of the legal system, but it is now widely recognised as an extremely useful tool. To make use of it is mainly voluntary. Couples may be put in touch with the service through a citizens advice bureau, their solicitor, a social worker, a general practitioner or perhaps a friend, or they may simply make contact themselves. The process usually involves some two or three sessions of two hours' duration each.
Since the introduction five years ago of a new rule of court, if parties are still in dispute when their case comes to the sheriff court, the sheriff can insist that they go to mediation for an information session. Should they then decide that mediation is what they want, they go ahead with it: if it is not, the case is simply returned to court. In the Court of Session the judge must obtain both parties' consent before referring them to the mediation service.
Here we come to the need for this Bill and how it came about. For family mediation to be effective those participating must be able to talk frankly and without fear that what they say may later be used in evidence against them. At the present time, while mediators regard the information revealed to them as confidential, it is not clear in Scots law that they or their clients can subsequently refuse to disclose such information were they requested to do so in court. Mediators have been cited to appear on a number of occasions, but so far the matter has not in fact been put to the test.
In 1990, because of the increasing importance of mediation and of the awkward dubiety in the law, Family Mediation Scotland asked the Scottish Law Commission to look at the problem. The commission did so. In 1991 it published Discussion Paper No. 92, entitled Confidentiality in Family Mediation. That was followed in 1992 by its report No. 136 entitled Report of Evidence: Protection of Family Mediation. That report took the view that to await adequate clarification through Scots case law might take some time. The matter was urgent and legislation was the preferable route. A suggested draft Bill was appended to the report.
In early 1994 Family Mediation Scotland invited me to carry the Bill forward. The Scottish Courts Administration Department and the Scottish Office have been asked to have a look at and give drafting help on the Bill. As a result, the original draft has been re-ordered and the Bill's scope slightly widened to match the developing nature of mediation as now practised in Scotland. I am most grateful for that assistance, and hope that when my noble and learned friend the Minister replies he may be able to confirm that the Government are now willing to give the Bill their full support.
Turning to the BillI hope that noble Lords will forgive my non-lawyer's powers of explanationyour Lordships will see that Clause 1 is the key clause. Subsection (1) provides that, with the exceptions which are defined in Clause 2, no information as to what occurs in family mediation is admissible in civil court proceedings.
Subsection (2) defines what is the family mediation to which the Bill applies. It does that by setting out the various categories of people who mediate, and the qualifications required of the person who conducts the mediation. The first category of those who mediate is defined at paragraph (a) as "two or more individuals" who are considering matters relating to a child in whom they have an interest. The following paragraphs cover spouses or former spouses, parties to a purported marriage, co-habitants or former co-habitants, as they consider matters arising from their splitting up. Paragraph (e) makes provision for the Secretary of State to add to those categories by regulation should the need arise.
Clause 2(1) sets out the exceptions to the general rule of inadmissibility. The need for paragraphs (a), (b) and (c) is self-evident. In, say, a divorce case, the court and the solicitors concerned will need to know whether there has been an agreement during mediation and, if there is an agreement, what it is. Likewise, when the content of an agreement is challenged in court, it will probably be necessary to discuss the various points which are the subject of the challenge. If the participants other than the mediator agree that information can be brought before the court, clearly it should be admissible and it would be inappropriate if the mediator could block such a wish. Paragraphs (a), (b) and (c) allow for those various circumstances.
Paragraph (d) continues the exceptions by listing the civil proceedings at which family mediation information would be admissible. Sub-paragraphs (i) to (iv) relate to proceedings concerning children where the children's interests could clearly be damaged if mediation information was not forthcoming. Sub-paragraph (v) concerns proceedings alleging violence by a participant during mediation. Should one of the parties wish to sue, clearly evidence would be required. Sub-paragraph (vi) is there in case the mediator is sued or wishes to suean unlikely circumstance, but possible.
Subsections (2) and (3) of Clause 2 establish who are to be regarded as participants for the purpose of the clause. Following the recommendation of the Scottish Law Commission, the participants can include the child where matters concerning that child are the subject of mediation and, provided he or she has sufficient understanding of the issues, that child can be under 16, which is the age of legal capacity.
Clause 3 contains the short title, provides for the negative resolution procedure and limits the Bill to Scotland. Subsection (3) states that the Bill comes into force two months after it becomes an Act and that it shall apply only to court proceedings commencing on or after that date.
I have a question to ask my noble and learned friend the Minister. I believe that Family Mediation Scotland has given him notice of this. Family Mediation Scotland is concerned that, where long drawn out civil proceedings have begun some time before the Bill takes effect but, for whatever reason, mediation relating to those proceedings takes place after the Bill's commencement date and then the proceedings continue, that mediation will not be protected. Would it perhaps be better if it was the first mediation after the commencement that was protected rather than the first proceedings? I should be most grateful if my noble and learned friend could give me and the House a view on that point.
I have heard from the Scottish Law Commission that it is happy with the general thrust of the Bill, although it may wish to pursue one or two points in Committee. The lawyer mediators have written only today with one or two of their concerns which I shall look at with those who advise me. It may be necessary to deal with those in Committee. I look forward very much to hearing what subsequent speakers have to say and particularly to the Government's comments. I commend the Bill to the House.
The Earl of Mar and Kellie: My Lords, I begin by congratulating the noble Baroness, Lady Carnegy of Lour, on introducing this useful Bill. I should declare an interest. I am a step-parent of 21 years standing. I am also a one-time supervisor of matrimonial supervision orders.
The Bill seeks to establish in Scots law the concept that whatever is said during the difficult discussions within professionally conducted family mediation should not be admissible as evidence, and rather that the court should be informed of the decisions achieved or, indeed, not achieved.
A decade ago it was recognised that there was a need for a properly constituted mediation service to enable parents to explore the possibilities and resolve the difficulties that they were facing in planning for the upbringing of their children within the context of their failed relationshipbe it a marriage, co-habitation or other style of relationship. It is the result of changing social trends that the traditional remedy of "She will live in the family home and bring up the kids and he will live elsewhere, pay maintenance and have access" is no longer the only expectation which is valid. Changes in
Any idea that there can be winners and losers in such decisions is unhelpful in the extreme. I suggest that unless there is a mutually acceptable and workable series of agreements made and implemented, the childindeed, the whole familywill be the loser. That is especially true if the parents split up when the children are very young. They will then have to be active but separated parents for very many years ahead. The child will generally suffer socially and economically if the parenting is not sorted out mutually.
Similarly, there are decisions to be made about access to the children for grandparents, uncles, aunts, and cousins. That is not to mention access to children for incoming step-parents and new step-relations. The latter arrangements seem to be very tricky.
I wish also to establish the fact that parents who cannot agree about their children's future life in separation put the court in a difficult position when seeking a judicial solution to their family organisation. They will not achieve the best arrangement for their family's future because they will not jointly own the decision and the plan behind it. It will be a life of living with imposed court judgments rather than mutually agreed decisions.
The provision of family meditation is already supplying a better solution to those problems. A trained mediator will try to enable the parents to address all the issues, leaving none put off because it is too difficult. The provision of family mediation is thinly scattered over the nine regions and three islands councils of Scotland on a voluntary-sector basis. As we move to 32 unitary authoritiesand I shall not propose that we have 32 family mediation servicesthe proven activity should remain in the voluntary sector and be funded properly to enable a more geographically comprehensive service to be achieved soon.
I suspect that the list of exceptions in Clause 2 will come into force quite often. Social work departments, voluntary agencies and adoption agencies are likely to be part of the family breakdown scenario, especially as other problems such as truancy, vandalism and poor relationships may be rearing their heads within the malfunctioning family set-up. Parents entering family mediation and its inadmissible evidence zone will need to understand the possibilities of exception. That is relevant in particular to parents who do not achieve mutual arrangements and then pursue vindictive campaigns against each other.
In conclusion, it is in the best interests of the children that whatever is said in the undoubtedly raw, fraught and no-holds-barred mediation sessions, it should not be used in court in evidence. It is far more important that the court be informed about the decisions reached by the
Lord Lyell: My Lords, I apologise for not having my name on the printed list. However, as my noble friend and neighbour will know, at this time in the week it is normal that, except when there are important measures such as that introduced tonight, some of us living in the far reaches of Angus head north. I apologise to my noble friend and to your Lordships for intervening but I make no apology for attempting to give my noble friend some assistance in this important and complicated Bill.
The noble Earl, Lord Mar and Kellie, drew attention to Clause 2(d) (iii) (vi). It is important that in proceedings of this kind one should take care to shield the children. Naturally, the proceedings will be somewhat delicate but, where children are concerned, the measures spelt out by my noble friendand supported by the noble Earl, who has expertise in this areaare of great importance.
I have no personal evidence of family mediation because the doors of marriage, let alone divorce and the activities set out in the Bill, have not yet opened to me. I hope that your Lordships will forgive my intervention but I believe that the Bill is important and that it will be of considerable assistance to the people of Scotland. I support it.
Lord Macaulay of Bragar: My Lords, the contribution made by the noble Lord, Lord Lyell, was of interest. He underlined the fact that this is an important Bill for families in Scotland. Without being pompous, perhaps I may say that this is a sad Bill because it is necessary to control the communings between parents, partners and children in the breakdown of marriages throughout Scotland. Some people are lucky and their marriages are sustained and for one reason or another some people are unlucky in that their marriage falls apart, but the victims of all these marriage processes, whether they succeed or fail, are the children. I hope that the Bill is welcomed on all sides of the House as being the best that we can achieve by legislation to exercise a civilising influence over what are usually acrimonious proceedings.
Unfortunately, the Bill does not face up to the problem of representation of the child. That may be a matter for debate at a later stage. It refers to the child being old enough to understand what is happening. However, those of us who have worked in divorce courtsand I am sure that the Minister has been involved in many divorce cases in the Court of Session in Edinburghknow that, although in one sense children may understand what is happening, they cannot agree to it. They are the innocent victims of the traumatic failure of the relationship between their parents.
I congratulate the noble Baroness on introducing the Bill. No one in your Lordships' House would reject it as being unnecessary in trying to guide the relationship between husbands and wives. Clause 1 deals with who
As a result of representations made to me, I understand the inference to be that the lawyers will grab the goodies, so to speak. Of course, that will not happen. The Law Society of Scotland does not envisage only lawyers being mediators. There is a great wealth of experience throughout the country. There are many retired peoplefor instance, doctors, psychologists and so forthwho I am sure will have a great input into the process.
The problem with Clause 2 is difficult because it deals with written and oral agreements. I am sure that the noble Baroness has received representations about the weakness of the wording of the clause. In allowing an oral agreement to be founded upon merely opens the door to another argy-bargy about who said what during the mediation proceedings. Perhaps oral agreements should be omitted and the only agreement that can be founded upon arising out of mediation proceedings should be a written agreement. It should be a written agreement to which the parties agree in the presence of the mediator, which is included in another clause of the Bill, or after taking legal advice.
Several questions arise now which may arise also in Committee. The most important is the question of funding. I know that the Minister is recognised as a caring Minister. Through his influence within the Scottish Office he has helped many voluntary organisations. But, as the rate of breakdown of marriages increases, there will be a commensurate increase in the work of the mediator. Therefore, I wonder where the funding is to come from.
We are facing a reorganisation of local government in Scotland and we know that there is the economy of scale in areas like Strathclyde, Lothian and Grampian. But once there is a breakdown into the smaller areas in Scotland, the question will arise as to where the funding will come from if the Scottish Office reaches its budget limit and says, "There is no more. It is up to the local authorities to fund it". That is one matter which concerns me.
The second matter is the legal aid implications. Is a partner, husband or wife who goes before the mediator to be granted legal aid in order to be represented by a lawyer? If so, on what basis? I know that at present that perhaps impinges on the concept of voluntary work being done by mediators. That is all right up to a point but we may reach the stage at which the voluntary sector cannot cope with that work. We shall have to look at the question of whether legal aid will be available. I do not expect the noble and learned Lord to answer immediately but in due course perhaps he will given an indication as to whether the legal aid scheme will cover mediation as envisaged by the Bill.
It may be that in Committee we should move amendments to make it mandatory for a child involved in mediation proceedings to be represented at those proceedings so that the child's interests are preserved properly. We must ensure that the child is not left on the sidelines while the parents battle it out and reach an agreement which suits them but which may very well not suit the child at the end of the day.
Lord Fraser of Carmyllie: My Lords, I take this opportunity to congratulate my noble friend Lady Carnegy on introducing the Bill before your Lordships this evening. At the outset I am pleased to be able to indicate on behalf of the Government their agreement that the Bill should proceed unopposed through this House. We accept the principle of the Bill and subject only to any amendments of a minor or technical nature which may prove necessary or which may occur to your Lordships we hope that it will reach the statute book in early course.
I am grateful also to the two noble Lords on the Opposition Front Benches for the warm welcome which they have accorded the Bill. It is undoubtedly an important measure. I repeat the compliment which my noble friend Lady Carnegy extended to Family Mediation (Scotland) for the keen interest it has taken in this matter and the skilful and professional fashion in which it has advanced the argument for the Bill.
My noble friend has put forward such a lucid and concise explanation of the background to the Bill that I need not rehearse that. As she rightly indicates, the Bill implements a report of the Scottish Law Commission. It was asked, on reference, to consider whether a rule of law might be introduced to prevent evidence of mediation being available in subsequent court proceedings, thereby preserving the confidentiality of those proceedings.
In considering that, the Law Commission took the view that there would need to be a provision for identifying those mediators whose activities would be protected. That is why the Bill provides for approval of mediation organisations by the Lord President of the Court of Session. In turn, those mediators will have their mediation protected by the inadmissibility rule.
The approval of mediation organisations by the Lord President of the Court of Session is appropriate. He has responsibility for regulating matters pertaining to procedures in the courts in Scotland and his approval of mediation organisations is provided in the Bill for the purpose of providing that the evidence of mediators will not generally be admissible. I should make clear that the approval of a mediation organisation by the Lord President does not confer any other form of approbation or recommendation. In practical terms the Bill will enable the Lord President to approve organisations which are concerned with family mediation. It will then be for such organisations to ensure that their individual family mediators are properly accredited to the organisation so that their mediation activities can obtain the protection granted by the Bill. That relatively light level of control is in keeping with the limited scope of the provisions of the Bill.
The Bill makes clear that, in general, what takes place during mediation will not be admissible as evidence in subsequent civil proceedings. Thus all the participants in the mediation process will be able to speak in confidence, knowing that what they say cannot be used against them.
The noble Lord, Lord Macaulay, asked a number of questions about the extension of legal aid and the representation of children. At the core of mediation is the idea that a large number of matters in the unfortunate circumstances which the noble Lord vividly described, where one wishes to try to seek a resolution, can be dealt with without resort to the formality of the law or the formality of representation which may be appropriate within the court room. One hopes that by preserving that confidentiality, there will be an opportunity to excuse children from the ordeal of having their affairs taken openly through the courts, which may be extremely disturbing for them.
I should perhaps emphasise that this Bill, which applies to Scotland only, is not intended nor has it the effect of extending mediation into any new areas. Nor does it require mediation to take place other than in the situations where it might take place now. I recognise that there will always be situations where mediation is not suitable, and I wish to make clear that the Bill in no way seeks to create any obligation on people to seek mediation. It should not be seen as any indicator as to what my right honourable and learned friend the Lord Chancellor may wish to propose in relation to rules of evidence or accreditation procedures in England and Wales.
A few detailed points were put forward in the course of the debate. Perhaps I may deal briefly with two of them. Before doing so, I should say that my noble friend Lady Carnegy had the kindness to indicate to me prior to the debate that she had some anxieties about Clause 2(2) (b) and what is the definition of a child in terms of being a participant. If we are to have a Committee stage, I recognise that that is a point we shall have to consider.
I turn now to the points raised by the noble Lord, Lord Macaulay of Bragar. I recognise that proof of an oral agreement may be more difficult; nevertheless the Scottish Law Commission recommended that we should allow for that to be an exception to the inadmissibility
The principal point upon which my noble friend Lady Carnegy of Lour invited me to give a direct response concerned the provision relating to commencement, which is to be found in Clause 3(3). Put shortly, the question is whether the Bill's provisions should protect mediation which takes place after the legislation comes into force. I can confirm that I received a letter from Family Mediation (Scotland) on that very point to which I replied yesterday. I understand that my noble friend may not yet have had the opportunity of reading that reply. I hope that it will answer her concerns. The suggestion made by Family Mediation (Scotland) may not, in fact, achieve the desired result. However, it will be for the organisation and for my noble friend to consider whether an amendment should be proposed.
In our considered view, the Bill as it stands gives adequate protection, albeit that there may be a slight risk that mediation commenced before the Bill is enforced may not be protected in civil proceedings which have already commenced by the time the legislation comes into force. However, I should like to tell my noble friend that I am open to persuasion on that issue. In this particular instance, I believe that the answer might be to ensure that the Bill's provisions apply where proofthat is, the trial in court has not yet taken place at the date of the legislation coming into force. However, before the next stage of the Bill's proceedings, doubtless my noble friend and those who advise her will wish to reflect further on that aspect.
With those few words I conclude by saying again that I am grateful to my noble friend Lady Carnegy of Lour for introducing the Bill. I invite the House to give the Bill a Second Reading.
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