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Lord Kingsland: My Lords I rise to support the amendment, which also stands in my name. I support what the noble Lord, Lord Clinton-Davis, said about mediation. Mediation should be available to all clients, whether or not they are meeting the costs of legal disputes themselves.

Lawyers--especially in family cases--need to be aware of the value of mediation and should be prepared to advise clients to attempt it where appropriate. However, it is important to ensure that the mediation is used in cases where it is suitable for the clients, rather than it being foisted on those who cannot afford the costs of legal services as a cheap alternative to publicly-funded representation.

During the Committee stage, your Lordships considered an amendment which would have precluded the code from requiring applicants to attempt mediation, save in circumstances where a privately paying client would be likely to opt for it. Some of your Lordships may recall that that was criticised on the ground that private clients may be free to make unwise decisions which will incur greater costs than necessary. The amendment tackles this issue by enabling the code to require applicants to attempt mediation wherever a privately-paying client would be advised to do so, rather than only where a privately paying client would be likely to opt to do so.

This strikes the right balance between the need to ensure prudent use of public funds and the need to ensure that the services available to the lesser off are, as nearly as possible, the same as those available to those meeting the costs themselves.

The Lord Chancellor: My Lords, this amendment is similar to the one proposed by the noble Lords, Lord

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Kingsland and Lord Phillips of Sudbury, at Committee stage. As I explained then, I cannot accept the amendment as it would cut across the discretionary framework of the code by imposing an entitlement to representation rather than mediation in certain, rather vague, circumstances where a privately paying client would be advised to attempt mediation. I do not know how that could be a workable criterion. I do not know how you could possibly evaluate whether a privately paying client who could afford a court battle--and perhaps desired it--would be likely to be advised not to go for it but to attempt mediation.

Under a controlled budget there can be no entitlement to particular services. Instead, the commission must seek to ensure that the most appropriate types of services are funded for individual cases, taking account of priorities and achieving value for taxpayers' money. I would stress to my noble friend Lord Clinton-Davis that there is no question of compelling people to mediate when they do not wish to do so. But if in the commission's judgment a particular type of service is the most appropriate for a particular circumstance, then it should be entitled to fund that service but decline to fund other services.

It is the Government's belief that in many family proceedings mediation is more constructive than adversarial court proceedings. The commission should be entitled to provide help for mediation but not for litigation where it is more likely that mediation will provide the more satisfactory outcome. That is likely in many family proceedings where future co-operation between the parties will clearly be in the interests of the children. Mediation encourages co-operation whereas litigation often serves only to fuel passions and create continuing acrimony. Experience shows that parties to a mediated outcome share a sense of ownership in the outcome which is very often absent in court-imposed solutions.

It is also a fact that mediation is cheaper than court proceedings. That will, of course, not deter some privately paying clients who would be likely to want their Olympian confrontation in court regardless of the cost and perhaps be likely to be advised by lawyers to proceed in that way. That is their choice. It is their money. However, the money that the commission is spending is the public's money and it therefore has a duty to ensure that the services that it purchases are not only effective but also offer good value for money. It is the Government's belief that for many family proceedings, though not all, mediation services will fulfil both these criteria and therefore the code should reflect that. I therefore invite my noble friend to withdraw his amendment.

11.30 p.m.

Lord Clinton-Davis: My Lords, I listened with interest to my noble and learned friend. I thank him for the care with which he has looked at this issue. I was encouraged by many of the things he said. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley: My Lords, before Amendment No. 74 is called, perhaps I may ask the noble and learned Lord

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the Lord Chancellor or the noble Lord the Deputy Chief Whip what their intentions are in terms of how late we should sit. It is now 11.30 p.m. While Amendment No. 73 was being discussed I tried to find the noble Lord the Government Chief Whip to ask him what his intentions are. It is getting very late. A number of important amendments are coming up. I know that some noble Lords feel we should not go beyond Clause 10 tonight so that we can start later amendments on another day. I should be very grateful if I could hear from either the noble Lord the Deputy Chief Whip or from the noble and learned Lord the Lord Chancellor what the Government's intentions are.

Lord McIntosh of Haringey: My Lords, it is somewhat unfortunate that this kind of exchange should take place across the Floor of the Chamber rather than through the usual channels. If I may conduct the Opposition Chief Whip to the Government Chief Whip, perhaps we can discuss the matter in a more convenient and suitable place.

Lord Falconer of Thoroton moved Amendments Nos. 74 to 77:

Page 6, line 15, after ("funding") insert--
("( ) provision requiring applicants to be informed of the reasons for any decision to refuse an application,
( ) provision for the giving of information to individuals whose applications are refused about alternative ways of obtaining or funding services,").
Page 6, line 16, at end insert ("and for the giving of information about those procedures").
Page 6, line 19, leave out from first ("code") to end of line 27 and insert--
("( ) Before preparing the code the Commission shall undertake such consultation as appears to it to be appropriate; and before revising the code the Commission shall undertake such consultation as appears to it to be appropriate unless it considers that it is desirable for the revised version to come into force without delay.
( ) The Lord Chancellor may by order require the Commission to discharge its functions relating to the code in accordance with the order.").
After Clause 9, insert the following new clause--

Procedure relating to funding code

(".--(1) After preparing the code or a revised version of the code the Commission shall send a copy to the Lord Chancellor.
(2) If he approves it he shall lay it before each House of Parliament.
(3) The Commission shall publish--
(a) the code as first approved by the Lord Chancellor, and
(b) where he approves a revised version, either the revisions or the revised code as appropriate.
(4) The code as first approved by the Lord Chancellor shall not come into force until it has been approved by a resolution of each House of Parliament.
(5) A revised version of the code which does not contain changes in the criteria set out in the code shall not come into force until it has been laid before each House of Parliament.
(6) Subject as follows, a revised version of the code which does contain such changes shall not come into force until it has been approved by a resolution of each House of Parliament.
(7) Where the Lord Chancellor considers that it is desirable for a revised version of the code containing such changes to come into force without delay, he may (when laying the revised version before Parliament) also lay before each House a statement of his reasons for so considering.

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(8) In that event the revised version of the code--
(a) shall not come into force until it has been laid before each House of Parliament, and
(b) shall cease to have effect at the end of the period of 120 days beginning with the day on which it comes into force unless a resolution approving it has been made by each House (but without that affecting anything previously done in accordance with it).").

On Question, amendments agreed to.

Clause 10 [Terms of provision of funded services]:

Lord Archer of Sandwell moved Amendment No. 78:

Page 6, line 33, after ("individual") insert ("other than a person who is in receipt of income support, income-based jobseeker's allowance or family credit").

The noble and learned Lord said: My Lords, in Committee I set down amendments to provide that no contribution should be payable in respect of services funded by the commission from someone in receipt of means-tested social security benefits, as it would already have been ascertained that he was not in a position to pay. In reply my noble and learned friend Lord Falconer made two points (at col. 748 of Hansard of 21st January). First, he said that those in receipt of income support and income-based jobseeker's allowance are already passported through the legal aid means test.

Secondly, he said that there are other social security benefits which, although they are means-tested, do not necessarily entail the occupier being on a very low income. He instanced family credit. These are not at present passported. He indicated that it was proposed in regulations to replicate the existing position. I promised to go away and consider what my noble and learned friend had said, and I did. On reflection, his argument does not appear so persuasive as it did the first time round.

It is true that family credit may be paid to someone who is not on the lowest income, but it is paid because by reason of the number of children a man has to support his income is too low for his needs. It follows that it is paid only to people who by definition have no money to spare and, if legal assistance is made conditional on paying a contribution, they may have to decline the offer and lose their right to redress.

Your Lordships may remember that in 1993 there was a restructuring of the legal aid contribution system. It is true that no contribution was required if someone on income support applied, but someone on family credit could be made to pay a contribution, as my noble and learned friend said.

In 1996 the Legal Aid Board, which was troubled by what it was finding, commissioned research into the consequences. It was found that the reduction in eligibility had affected some 12 million people, many of whom could no longer afford to take up an offer of legal aid. Of those interviewed who were in receipt of family credit, invalidity benefit and similar benefits in that category, 77 per cent. said that paying contributions would have left them without sufficient money for food, heating and rent. Typical was a divorced mother of two, who was quoted as saying,

    "If you are on family credit of £46 a week, to find £91 per month for legal aid is impossible".

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On page 35 of the White Paper, Modernising Justice, the Government announced their intention to increase the number of people potentially eligible for advice and assistance under this scheme. This provision would deny justice to a large number of people who have already been dealt a rough hand from life. I hope that in the light of that my noble and learned friend will feel able to reconsider what he said. I beg to move.

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