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Lord Irvine of Lairg: That is a helpful response from the noble and learned Lord. His substantive reply was to refer me to Clause 22(3) which provides that,

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    "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".

He then says that it is inconceivable that any mediator would regard mediation as suitable if one party did not want to play. He then moves from that proposition to the proposition that in those circumstances the Legal Aid Board, despite the language of Clause 24, could not possibly consider mediation as more appropriate than taking proceedings. I would hope that that would be so. With respect, I agree with the noble and learned Lord and welcome his undertaking that these matters should not be left, as it were, to a process of reasoning, but should be made clear. I therefore welcome his assurance that one of the prescribed circumstances when we come to the regulations will be where one of the parties does not agree to mediation.

10.15 p.m.

Earl Russell: I am grateful to the noble and learned Lord for what he said, but it fell short of the assurances for which I was asking in two crucial points.

First, the noble and learned Lord drew our attention to Clause 22(3). But there we are dealing with cases where mediation does not appear to the mediator to be suitable to the dispute. I was interested in the situation where mediation does not appear to the party to be suitable to the dispute. I entirely take his point that, where one person is not willing to take part in the mediation, the mediator may--not will--decide that mediation is not appropriate. I say "may" because all of us are capable of error, all of us are capable of impatience and all of us are capable of the mistaken belief that the party is simply being obstructive and may be persuaded otherwise.

I still want to know, in a case which appears to the mediator to be suitable for mediation but does not so appear to the party, what will in fact happen to the party who will not go into mediation. The answer to that question is, to me, absolutely crucial. I should be very grateful if it could be spelt out exactly.

Baroness Hamwee: Before the noble and learned Lord responds to my noble friend, perhaps I may ask him to comment on how Clauses 24 and new Section 13B(4) (as introduced in Clause 22) interrelate. I think it is part of the same issue. New Section 13B(4) provides for withdrawal or revocation of a grant of mediation. On the amendment of the noble Lord, Lord Irvine, I queried the position in which one of the parties changed his or her view during the process and, having started on a course of mediation, felt that it was no longer appropriate to continue. I asked whether one could then move on, with the benefit of legal aid, into proceedings. That is perhaps another slant on my noble friend's question.

The Lord Chancellor: It may depend somewhat on the circumstances. The tests for the grant of legal aid generally include the merits test in respect of which the Legal Aid Board would have to make a judgment. I can readily foresee circumstances--I refer principally at the moment to the question of the noble Baroness, Lady Hamwee--in which difficulties arise in the mediation;

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for example, if it is not clear that a full disclosure has been made of all the assets. Then the mediation would have to stop and an application be made to the court in order to obtain full disclosure. In my view, it is right that in that situation legal aid would be available in appropriate circumstances for those proceedings.

In situations in which the person suddenly decides that he or she has had enough and wants to stop, the circumstances might vary. The person who so decided might be the person who had legal aid. If he (or she) decided without good reason just to stop, the Legal Aid Board might wish to revoke the certificate for mediation. The noble Earl shakes his head, but I cannot see any option to that. If the person who wanted to mediate decided that he did not want to go any further, and that is the person who has legal aid for that, then the legal aid certificate would have to be withdrawn in respect of mediation.

What would happen then would depend on the situation in which that person was, and the application to the circumstances of the tests that presently exist under the Legal Aid Act. That is the answer that I have to give to the noble Earl, Lord Russell. The mediation is certainly not compulsory. But that is not the same as saying that unnecessary expense should be incurred by the taxpayer at the whim of unreasonable litigants. The whole underlying basis on which legal aid is granted is that the conduct of the litigant and the litigation should be reasonable and that unnecessary expense would not be put on the public purse. In my view those circumstances also would be relevant to the question. That does not mean that mediation would be compulsory, but that the public purse might not fund it if the situation came out of an unreasonable attitude on the part of the party seeking legal aid.

Lord Irvine of Lairg: I am not entirely happy with that answer. It is a point of detail raised by the noble and learned Lord in developing his answer that concerns me. I do not see how mediation can truly be described as voluntary unless the initial and continued participation of the parties to it is voluntary. I got the whiff of a suggestion from the noble and learned Lord that if someone had legal aid for mediation and half-way through it decided that he or she did not wish to continue to participate in mediation, that could, as it were, be a black mark against that individual which the Legal Aid Board could take into account as a ground for refusing legal aid for court representation. If that is what the noble and learned Lord was saying, I suggest that he is seriously trenching on the proposition that mediation is voluntary.

However, I shall leave that point of detail to one side. As I understand it, the noble and learned Lord has given me an assurance that he will state, as one of the prescribed circumstances constituting an exception in the regulations, where a party does not wish from the outset to participate in mediation. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No 178 not moved.]

Clause 24 agreed to.

Lord Simon of Glaisdale: Before moving the next group of six amendments, I believe that it will be

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convenient if I move that the House do now resume, in order to give the Government business managers the opportunity of letting us know what their plans are. In asking that question I venture to remind them of the importance of the issues which are now to be discussed: the importance of the Bill; the assurances that were given to the House at the time we discussed the Rippon Report on the hours of sitting and, finally, the practice of your Lordships' House in allowing the Government to get their business through which is reciprocal to the Government conceding adequate and proper time for it to be discussed. The hours between 10.30 p.m. and midnight are, I venture to say, quite improper times. In the meantime, I beg to move that the House do now resume.

Moved, that the House do now resume.--(Lord Simon of Glaisdale.)

Lord Graham of Edmonton: The situation, as I see it--and indeed as the usual channels see it too--is that we are attempting to get to a point where we can leave the business tonight and have sufficient business left to ensure that we can have a reasonable stab at concluding it at some other time to be determined next week. It is of little use for those who have not sat in the Chamber--of course, the noble and learned Lord, Lord Simon, has--for eight hours today to feel that it is reasonable to look to the rest of the groupings and feel that they can be accommodated in a reasonable time. They cannot, and the Motion should be resisted.

There are two factors which one has to be brutally frank about. There is the convenience not only of the Members but also of the staff, and there are certain matters which hang on the time at which we conclude our business. It is felt that if in fact we deal with Amendment No. 179 and the other amendments they may very well take us to between 10.30 and 11 p.m., in which case that may be a sensible time to conclude the business. Of course it may even be that we would deal with the other amendment, No. 182. The conclusion that the usual channels have come to is that it is not unreasonable to proceed perhaps from now for 30 minutes and then conclude the business for today, leaving the rest to be determined at another time.

Lord Lucas: I am very happy to confirm from this side of the House that the noble Lord the Opposition Chief Whip has expressed with his usual clarity the agreement that the usual channels have come to. We must make progress with this Bill, and if we do not do more tonight we shall merely find ourselves sitting at an unreasonable hour on some other night.

Lord Simon of Glaisdale: I must just say this. The noble Baroness, Lady Young, has on several occasions referred to the sort of message we are sending out about marriage, but by sitting these sorts of hours on this sort of Bill we should consider also what sort of message we are sending out about parliamentary government and your Lordships' place in the Constitution. Having said that, with as much indignation as I can muster, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

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10.30 p.m.

Lord Simon of Glaisdale moved Amendment No. 179:


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