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Lord Archer of Sandwell: Unless the noble Baroness, Lady Hamwee, or the noble Lord, Lord Meston, wish to reply in relation to their amendments, perhaps I may say that I am most grateful to the noble and learned Lord for his replies in relation to Amendments Nos. 172 and 173.

He expressed some puzzlement as to the distinction between the text in the Bill and the amendment. The distinction is as to who applies the judgment. Under the Bill it is the judgment of the mediator; it must appear to the mediator that mediation is the appropriate procedure. He makes the decision, taking into account the parties and the circumstances. The amendment transfers the party from the position of being the object of the consideration to being the subject, if I may put it in that slightly obscure way. The mediators and the parties together apply the judgment, and they apply it to the situation. It is a slightly different arrangement of the same three words. It transforms the judgment of the mediator alone into a joint judgment of the mediator and the parties.

As the noble and learned Lord has said, it is unlikely that mediation will go ahead unless the parties can be persuaded that it is the most appropriate course. I understand that. The real purpose of the amendment was so that the noble and learned Lord could say what, in effect, he did say.

I was particularly grateful in relation to the regulations under Clause 24 that the noble and learned Lord said that he was minded to set out the categories I cited. That will put a number of minds at rest. But, having taken out those categories, there still remain the other cases where someone still has to supply a judgment. If that is recognised, people will be quite happy about the situation.

The Lord Chancellor: I am not sure that I made an important point clear to the noble and learned Lord. The provision in the Bill includes a decision by the mediator as to whether mediation is suitable having regard to the parties. It is possible that the mediator will give a judgment on the parties which would preclude mediation. One can think of possible examples. I do not think the noble and learned Lord's amendment would permit that; I am not certain about that.

Lord Archer of Sandwell: I am grateful to the noble and learned Lord for pointing that out. As I said in introducing the amendment, sometimes the parties are not appropriate. For example, the mediator may take the view that a party has demonstrated a lack of commitment to the process of mediation. I think we are very much ad idem on that. I am happy to reconsider whether any doubt has been cast on that by the form of the amendment. It is something which we can each reconsider before Report stage.

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As to Amendment No. 173, I was a little puzzled when the noble and learned Lord said that he wanted to leave this flexible. I am not sure how to whom the contribution must be paid or who is responsible for collecting it can be left flexible. One has to make a decision one way or the other. I appreciate that there are arguments as to who should be landed with the duty of collection, but a decision has to be taken at some stage. However, I am perfectly content that we do not take it tonight.

Baroness Hamwee: On that last point, I think it was the flexibility of the charge to which the noble and learned Lord replied. I understood that he would consider further the question of collection, as to whether it should be the mediator or the Legal Aid Board.

Lord Archer of Sandwell: If I misunderstood what the noble and learned Lord said, it is because I am unusually somnolent at this hour of the evening.

The Lord Chancellor: The noble and learned Lord is not somnolent at all. I did say I would consider this matter. It may be that it should be left open, but I certainly want to consider it. Some of the views of those I have consulted may have changed a little--I am not unfamiliar with that happening--so it may be that we should make a change.

Lord Archer of Sandwell: I am grateful for that. It is a pleasure doing business with the noble and learned Lord.

I was not sure whether the noble and learned Lord was leaving flexible what was going to be the final form of the Bill, or whether it might be his intention that in the final form of the Bill the matter should be left flexible. That would be undesirable. As we have resolved that confusion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 172A not moved.]

Clause 22 agreed to.

Clause 23 [Payment for mediation]:

[Amendments Nos. 173 to 175D not moved.]

Clause 23 agreed to.

Clause 24 [Mediation and civil legal aid]:

[Amendments Nos. 175E and 176 not moved.]

Lord Irvine of Lairg moved Amendment No. 177:


Page 14, line 12, after ("matters,") insert ("except where either party to the proceedings does not agree under section 12 to take part in any mediation").

The noble Lord said: Clause 24 adds the following provision to the Legal Aid Act:


    "(3F) For the purposes of determining whether to grant representation for the purpose of any proceedings, recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except--


    (a) in relation to prescribed descriptions of proceedings; or


    (b) in prescribed circumstances".

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I emphasis the words, "is to be considered" as more appropriate than "taking proceedings". The effect of the provision is to place upon the Legal Aid Board in divorce cases the duty in the generality of case to refuse legal aid representation in favour of mediation. The clause means that the Legal Aid Board must--not may--refuse legal aid representation in family proceedings on the ground that mediation is to be considered as more appropriate than taking proceedings. That is the basic principle. The Bill states that it will be subject to exceptions, but they are not defined in the Bill. We invite the noble and learned Lord to tell us, broadly, what those exceptions are to be. We made the same invitation to the noble and learned Lord on Second Reading, but he did not find it appropriate then to respond. We hope that he will do so on this occasion.

In Committee on Tuesday last, when replying to my noble and learned friend Lord Archer of Sandwell who had moved Amendment No. 82, the noble and learned Lord the Lord Chancellor said:


    "The purpose of the later clauses which deal with mediation is to extend the remit of the Legal Aid Board to permit it to finance mediation. We have a clause that gives a degree of emphasis to mediation. However, the general principles of the Legal Aid Act, and the references in that Act to legal advice and representation, are not affected. It is an extension of the scope of legal aid. As everyone knows, I have proposals for a more radical reform of legal aid, but so far as this Bill is concerned the present Legal Aid Act applies".

The noble and learned Lord then added:


    "What I seek to do is to extend the scope of it to include the funding of mediation, with the principle in favour of mediation where that is appropriate".--[Official Report, 23/1/96; col. 1001].

However, Clause 24 does not enunciate a principle in favour of mediation where that is appropriate. It is a direction to the Legal Aid Board to consider mediation in family proceedings as more appropriate than taking court proceedings. The clause says in plain terms that, in considering the decision of whether to grant representation for the purposes of proceedings relating to family matters, mediation "is to be considered"--not may be considered--


    "as more appropriate than taking proceedings".

Therefore, that is the position that the Legal Aid Board must--not may--adopt. That is emphatically not a presumption. In the generality of case, the Legal Aid Board must regard mediation as more appropriate. If an exception applies, then mediation need not be regarded as more appropriate. But we do not, as yet, have the least idea what the exceptions will be. The point is that, in the generality of case where no exception applies, mediation is to be regarded as more appropriate than taking court proceedings. That is not a presumption. It is an invariable direction to the Legal Aid Board in the generality of case to which no exception applies.

Clause 24 will bite on cases where parties under the existing rules would be eligible for legal aid for representation in proceedings relating to family matters; for example, disputes about periodical payments, division of family assets or, more importantly, children. The Legal Aid Board is to be required to say: "We know that you do not agree to mediation; nonetheless, we are obliged to regard mediation as more appropriate, whatever you may think, so there will be no legal aid for court representation but we will support you in

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mediation". If that is to be stated, at the same time as it is asserted that mediation is voluntary, most people would think that the assertion was a hollow one.

The purpose of the amendment is to qualify the direction to the Legal Aid Board that is contained in Clause 24 by a provision that mediation is not to be considered as more appropriate than taking proceedings where either party to the proceedings does not agree under Clause 12 to take part in any mediation. Unless the amendment is agreed to, mediation will not truly be voluntary, because the Legal Aid Board will have to say to applicants who are asking for legal representation in proceedings relating to family matters: "It is up to you whether you agree to mediation, but legal aid is available only for mediation and, if you do not agree to it, there will be no legal aid for representation in court".

We look forward to the noble and learned Lord's response to the amendment. Noble Lords will recognise that it in no way increases public expenditure. Its object is to preserve the present position where legal aid is available for legal representation in cases where a party does not agree to take part in mediation. I beg to move.


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