Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Rodger of Earlsferry: It is certainly the case that there is nothing on the face of the Bill to deal with that.

Baroness Carnegy of Lour: I thank my noble and learned friend for his comments, and am grateful also to the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Macaulay. On the question of how the Lord President will proceed, I take it that it will be a matter for him unless something is set down in the Bill which compels him to take some action.

I shall go a little further into this and let the noble Lord, Lord Macaulay, know of any helpful information that I discover. I hope that that will satisfy him and that it will not be necessary to amend the Bill further. In the meantime, I commend the amendment to the Committee.

On Question, amendment agreed to.

21 Feb 1995 : Column 1100

7.15 p.m.

Baroness Carnegy of Lour moved Amendment No. 2:


Page 2, line 4, at end insert:
("(5) The Lord President may, in connection with the performance of any of his functions under this Act, require an organisation which is seeking, or has been granted, approval under subsection (2) above to provide him with such information as he thinks fit.").

The noble Baroness said: This amendment allows the Lord President either when he is considering approval of an organisation or, having previously approved an organisation, to require it to submit such information as he finds necessary. As with Amendment No. 1, the need for this amendment has come to light in the course of discussion about the detailed working of the Bill. I take it from what my noble and learned friend said that that includes discussion with the Lord President.

Clearly, for the Lord President to make a judgment as to whether to approve an organisation for the purposes of the Act he must have the information that he needs. In addition, at Clause 1(3) the Lord President can approve an organisation for a fixed period of time and has the power to withdraw approval at any time. He must therefore be able to require an organisation being considered for approval (or one which is already approved) to submit whatever information he needs for proper consideration or review. I am advised that it would not be a tenable position for the Lord President to have to rely on organisations supplying information voluntarily. As the Bill stands, should necessary information not be forthcoming, his only sanction would be to refuse approval or to withdraw approval. That might well be seen as heavy-handed—and perhaps controversial. I hope that this amendment will strike the Committee as necessary. I beg to move.

The Earl of Mar and Kellie: This amendment to Clause 1 seeks to add subsection (5), which would spell out the powers of the Lord President to determine which agencies in family mediation are acceptable to the Court of Session. The process of approval should lead to the achievement and maintenance of high standards of performance. The Lord President will decide if an organisation can be approved, based on his investigation of the organisation, its aims, methods, training practices and arrangements.

I visited Family Mediation Central last week at its Stirling accommodation. I learnt that it speaks with many new referrals, some of which become mediations lasting between three and eight sessions. Family Mediation Central also runs an access centre in Alloa. The training programme for mediators requires attendance at a basic training course for 11 days, followed by supervised mediation practice of at least 50 hours. To be accepted as an experienced mediator, a probationary mediator will have to gain considerable experience in mediation. Mediation is, of course, different from counselling, advice, guidance and education. Family mediation is the management of other people's negotiations.

The Lord President will also be able to scrutinise and reassess currently approved organisations should there be grounds for concern. In the worst case, he will be

21 Feb 1995 : Column 1101

able to determine disapproval and subsequently to withdraw the certificate which was mentioned in Amendment No. 1. I support the amendment, which will keep approved organisations on their mettle.

Lord Macaulay of Bragar: I make the same point. There is nothing in the Bill as drafted to allow people to make representations against a particular organisation being approved as mediator. I hope that it will be a matter for discussion. I shall not take up the Committee's time discussing the whys and wherefores of that; I am just making the point. I hope that it will be taken on board by the Government.

Lord Rodger of Earlsferry: As my noble friend has made clear, the amendment provides the Lord President with the power to require from organisations which are seeking approval for the purposes of the Bill any information which he thinks fit. It would also allow him to require that information when he is monitoring the performance of the approved mediation organisation.

The amendment is desirable. One has to be a little cautious in that all that the Lord President is doing is approving these organisations for the purposes of the Bill—that is to say, so that they attract the particular evidential status. One could not expect the Lord President to act as some sort of guardian of the whole standard of mediation organisations. That is not something that he would be able to do.

Baroness Carnegy of Lour: I listened to what my noble and learned friend said. When we are discussing the Bill, we must keep reminding ourselves that it has a limited purpose. The approval of mediation organisations has to be seen in that light. Again, if anything further comes to hand, I shall let the noble Lord, Lord Macaulay, know. The noble Earl, Lord Mar and Kellie, said that the arrangement will keep the organisations on their mettle. I am sure that he is right. It has to do with standards, and that is a very good thing. I am glad that he said that.

On Question, amendment agreed to.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord McCluskey: I want to say one thing that I would have said had I been here on Second Reading—that is, I am entirely in favour of the principle, and congratulate the noble Baroness on introducing the Bill. A technical matter arises in relation to Clause 1 as it stands amended. It is that subsection (4) refers to:


    "A certificate by the Lord President".

It might be wise to consider putting in a provision to the effect that a document purporting to be such a certificate under the clause shall be accepted as such unless the contrary is proved. So if a document emerges signed by the Lord President, in whatever signature he may be sporting at that time, it will be deemed to be a certificate under the Bill unless the contrary is proved. That might avoid some awkwardness which one might occasionally have with a particular kind of case.

21 Feb 1995 : Column 1102

There is one other thing I would like to say. The principle embodied in the Bill is one which I should like to see extended, if it works here, to other forms of litigation.

Baroness Carnegy of Lour: I thank the noble and learned Lord for his remarks. I do not know whether it is a coincidence but it is a happy fact that we have such a distinguished judge to help us with the Bill. I am sure that my noble and learned friend on the Front Bench will note what he has said. I shall consult him to see whether the Government agree that this approach should be extended. I do not believe that I can be expected to know the merits of the case at the moment. It is quite beyond me, as I am sure the Committee will appreciate.

Lord Macaulay of Bragar: Before the noble Baroness sits down, it may be my ignorance but a definition of a "purported marriage" is not included in the Bill. Is it proposed to define a "purported marriage"? It may be in the Law Commission's report, which I have not yet had a chance to look at in detail. Perhaps we might look at that between now and Report stage. "Purported marriage" is a contradiction in terms. I do not know what it means. As it is part of the Bill, perhaps we may have it defined in a definition clause. I know what purported marriages are, but I should like to have them defined.

Baroness Carnegy of Lour: I asked the same question. I was told that it was a supposed or apparent marriage. It may, for example, be a bigamous marriage which is not a marriage in law. I do not want to get into all that. I was told that it was not necessary to define the words. Again, I shall find out and ensure that the Bill is right.

Lord Macaulay of Bragar: I appreciate the noble Baroness's difficulty. We are dealing in precise terms with questions of mediation, and with whom the mediator has to deal. If two people come in and the mediator says, "Who are you?", and they say, "We are a purported marriage", what is the mediator supposed to do? It may be unnecessary to put such a phrase into a modern Bill. Perhaps we should just forget about it and say that the mediator shall mediate between parties involving the child, as was said on Second Reading. It may be a matter for consideration. I am not trying to be facetious in any way; but I can see the problems that might occur when people come before the mediator and say, "We are a purported marriage. This is a product of a purported marriage". The product of a purported marriage could be a purported child.


Next Section Back to Table of Contents Lords Hansard Home Page