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The Lord Chancellor moved Amendment No. 23:


Page 13, line 16, leave out ("Part") and insert ("Parts II and").

The noble and learned Lord said: My Lords, the amendment provides that legal aid for mediation will be available for questions arising under Part II of the Act as well as those arising under Part IV. It is desirable to ensure that if any issues arise under any part of the Bill which are appropriate for mediation then funding for publicly supported mediation will be available. I beg to move.

On Question, amendment agreed to.

Clause 24 [Provision and availability of mediation]:

The Lord Chancellor moved Amendment No. 24:

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Page 14, line 20, leave out ("and").

The noble and learned Lord said: My Lords, in moving Amendment No. 24, I shall speak also to Amendment No. 25. The amendments amend subsection (6)(a) of Section 13B of the Legal Aid Act 1988, introduced by Clause 24. They provide that where the Legal Aid Board enters into a contract for the provision of mediation the contract must include provision requiring the mediator to have in place arrangements to ensure that each party is informed about the availability of independent legal advice.

I have put down the amendments in response to an amendment tabled at Report stage by the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Irvine of Lairg. I am grateful to them for drawing this matter to my attention, and have pleasure in moving Amendment No. 24. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 25:


Page 14, line 23, at end insert--
("(iii) that each party is informed about the availability of independent legal advice; and").

On Question, amendment agreed to.

Clause 25 [Payment for mediation]:

The Lord Chancellor moved Amendment No. 26:


Page 15, line 4, after ("is") insert (", except so far as the regulations otherwise provide,").

The noble and learned Lord said: My Lords, at Report stage I indicated my gratitude to the noble Earl, Lord Russell, for drawing my attention to a lacuna in the Bill as a result of which the statutory charge disregard did not apply in respect of legal aid for mediation. The amendment rectifies that.

The amendment extends the regulation-making power of the Lord Chancellor in respect of the statutory charge for mediation to mirror the current provisions in the Legal Aid Act 1988 which allow regulations to be made in respect of advice, assistance and representation in matrimonial matters where the statutory charge applies, to disregard the first £2,500 of property recovered or preserved in the calculation of the statutory charge.

As I indicated at Report stage, it would not be appropriate for that provision to appear on the face of the Bill: first, because that would make any changes which were necessary regarding the level of the disregard more difficult; and, secondly, because I believe that details such as this are appropriately left to regulations, as they are in relation to the disregard under the present provisions of the 1988 Act.

I reiterate that my intention has always been that, when the statutory charge is applied, through regulations, to mediation in family matters, there should be some replication of the statutory disregard which applies in matrimonial matters for advice, assistance and representation. I should like to express my thanks once again to the noble Earl, Lord Russell, for drawing this oversight to my attention. I beg to move.

Earl Russell: My Lords, I should like to thank the noble and learned Lord very warmly indeed for the

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amendment. To be able to make a concession to me in the form of a new regulation-making power must have afforded the noble and learned Lord considerable amusement, in which I share.

On Question, amendment agreed to.

8.45 p.m.

Clause 26 [Mediation and civil legal aid]:

Lord Irvine of Lairg had given notice of his intention to move Amendment No. 27:


Page 16, line 22, after ("matters") insert ("except where either party to the proceedings does not agree to take part in mediation").

The noble Lord said: My Lords, I have reflected on the assurances given by the noble and learned Lord at Report stage on 4th March in relation to the amendment, and shall not move the amendment at Third Reading.

[Amendment No. 27 not moved.]

Clause 30 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:

Baroness Young moved Amendment No. 28:


Page 20, line 34, after ("parties;") insert--
("( ) the conduct of the parties;").

The noble Baroness said: My Lords, in moving Amendment No. 28 I shall speak also to Amendment No. 31.

I am in some difficulty, as I am sure my noble and learned friend will appreciate, because I understand that his Amendment No. 30 to a large extent meets the purpose of Amendment No. 28. If that understanding is correct, I am very grateful. That is of value. There was anxiety that it might be possible for one spouse to turn the other out of the house without conduct being taken into account. I beg to move.

Lord Simon of Glaisdale: My Lords, I supported a similar amendment at Report stage, both on general grounds and invoking a technical canon of construction--the ejusdem generis rule--which I thought prevented the general rule, on which my noble and learned friend relied, covering the case of conduct.

I was remiss in not having given my noble and learned friend notice that I would raise that point. Therefore, understandably, he did not deal with it. As a result I wrote to him after the debate. As I understand it, my noble and learned friend has now completely met our point, and I join the noble Baroness in expressing thanks for that.

The Lord Chancellor: My Lords, I am grateful to my noble friend Lady Young and my noble and learned friend Lord Simon of Glaisdale for what they have said.

Reviewing what was said at Report stage, having regard to the pre-existing law, and looking at the most recent decision in this area, I came to the conclusion that the result of leaving out the reference to the conduct of the parties was probably to change the appearance of the law without changing its substance, and therefore it was wise simply to restore the phraseology of the existing law. I have therefore met the thrust of the amendments of my noble friend Lady Young and

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the technical point of my noble and learned friend Lord Simon of Glaisdale, which I would have met in more detail even without notice had I not thought, after hearing so much of the debate on the previous occasion, that I should be wise to go ahead on this basis. That is what I have done. I am grateful.

Baroness Young: My Lords, I am anxious to be constitutionally in order on this matter. I wonder whether I should be right now to withdraw my amendment in order that my noble and learned friend can move his. I am happy to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 29:


Page 20, line 34, leave out ("and").

The noble and learned Lord said: My Lords, Amendment No. 29 is the first of a rather large number of amendments that I wish to propose. The amendments in my name grouped between Amendments Nos. 28 to 38 and Amendments Nos. 40, 41, 43 to 46, and 48 to 50 are on this point generally.

The amendments are intended to emphasise the need for the court to take into account the conduct of the parties when making occupation orders under Part IV of the Bill. They also ensure that the balance of harm test or questions should apply where significant harm to an applicant or a relevant child is harm attributable to the conduct of the respondent.

As I said a little while ago, I have reflected further on the amendments tabled at Report stage by my noble friend Lady Young and have tabled these amendments to ensure that when the court is considering whether to make an occupation order under Clauses 30(3), 32, 33, 34 and 35 of the Bill it must take into account, in addition to the factors already specified in those clauses, the conduct of the parties in relation to each other and otherwise. I believe that in the previous wording they included notwithstanding the general point. But I think that it is quite wise to make it explicit. The amendments enable the Bill so far as possible to reflect the existing law on this point in the Matrimonial Homes Act 1983.

At Report stage I made amendments to the definition of harm in Clause 59 in respect of an adult applicant to provide that the harm in question would have to be the result of the conduct of the respondent. Your Lordships will remember that that arose out of an amendment proposed by the noble Lord, Lord Irvine of Lairg, which focused on the distinction between the harm as described for children, which included harm other than physical harm, and the adults where we did not have that introduction. In looking at that, it brought me to consider this question. After further consideration, I have decided that harm to children should be treated in a similar way. The later amendments therefore provide that where significant harm to an applicant or a relevant child is referred to in the Bill, it is significant harm attributable to the conduct of the respondent. However, where reference is made to harm to the respondent or a relevant child in the balance of harm test to be applied in relation to occupation orders, the harm will be harm as a consequence of the respondent's occupation being

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regulated by the occupation order. The later amendments therefore dealing with this matter amend the definition of harm in Clause 59 accordingly.

In the light of that explanation, I beg to move Amendment No. 29.

On Question, amendment agreed to.


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