HL Deb 14 March 1995 vol 562 cc794-800

7.33 p.m.

Report received.

Clause 1 [Inadmissability in civil proceedings of information as to what occurred during family mediation]:

The Lord Advocate (Lord Rodger of Earlsferry) moved Amendment No. 1:

Page 2, line 9, at end insert:

("(5) A document purporting to be a certificate by the Lord President for the purposes of this Act shall be accepted by the court as such unless the contrary is proved.").

The noble and learned Lord said: My Lords, at the Committee stage of this Bill on 21st February, the noble and learned Lord, Lord McCluskey, suggested that it would be wise to consider inserting a provision into Clause 1 to the effect that a document purporting to be a certificate by the Lord President of the Court of Session approving an organisation should be accepted by the court as such unless the contrary is proved. We are most grateful to the noble and learned Lord for making that point. We have been happy to take his advice. Indeed, there is a precedent in statute for such a provision. Therefore, I hope that the amendment will be acceptable to your Lordships and, in that spirit, I beg to move.

Baroness Carnegy of Lour

My Lords, it may be helpful if I intervene at this stage to express my gratitude to the noble and learned Lord, Lord McCluskey, for the advice that he offered on this matter in Committee. I am also grateful to my noble and learned friend for his response. I am happy to accept the amendment and hope that other noble Lords will do likewise.

The Earl of Mar and Kellie

My Lords, I have some questions for the noble and learned Lord the Lord Advocate about the amendment. I have read the Official Report of the last stage of our deliberations when I raised the issue of exactly how the Lord President would decide whether an organisation was appropriate to qualify as a mediator. Having read Hansard, I believe that the noble and learned Lord suggested that it was not up to the Lord President to make that decision. I therefore wonder what value the measure has and from where the criteria for approving an organisation will come. Indeed, should we be considering deleting subsections (3) to (5) of Clause 1?

Lord Rodger of Earlsferry

My Lords, with the leave of the House, perhaps I may reply that I made the slightly more specific point that whereas the noble Earl had indicated that he envisaged that the Lord President might have a wide-ranging responsibility for keeping organisations up to standard, so to speak, I did not think that that was the function of the Lord President. In broad terms, the Lord President has to be satisfied that such organisations are responsible and operating properly in the mediation service. He has to be satisfied that their proceedings are suitable and can attract the evidential immunity that is in question. As I said in Committee, the Bill relates entirely to evidential matters, not to wider matters. It is within that general framework that I think that it is important that the Lord President should be involved in this way. It is important that that immunity should arise only for approved organisations.

Lord Macaulay of Bragar

My Lords, before the noble and learned Lord sits down, can he confirm that before making decisions about such organisations, the Lord President will engage in wide consultation?

Lord Rodger of Earlsferry

My Lords, again with the leave of the House, it is not for me to prescribe what the Lord President will do. I am sure that he will be alive to the necessity of ensuring that the organisations that he approves are suitable and that he will take the necessary steps to that end.

On Question, amendment agreed to.

Clause 2 [Exceptions to general rule of inadmissibility]:

Baroness Carnegy of Lour

moved Amendment No. 2: Page 2, leave out lines 24 to 26 and insert: ("(a) of information as to any contract entered into during family mediation or of the fact that no contract was entered into during such mediation;"). The noble Baroness said: My Lords, in moving Amendment No. 2, perhaps it will be for the convenience of the House if I were to speak also to Amendment No. 3. I tabled these amendments to address the concerns about the existing text of paragraphs (a) and (b) of Clause 2(1) which were made known to me by both Family Mediation Scotland and Comprehensive Accredited Lawyer Mediators, known respectively as FMS and CALM. Put briefly, they feared that the words, agreement (whether written or oral)", which appear in Clause 2(1) (a), would allow one party who wished to lead evidence as to what occurred during mediation to aver or claim that there was an oral agreement. That could lead to the other party to the mediation challenging the existence of such an agreement. In an examination of that, the so-called "sealed room" of mediation would be opened without the agreement of all the parties, as is provided for in Clause 2(1) (c).

I understand that FMS and CALM mediators have described their anxieties to the Scottish Law Commission, which concluded that it would be reasonable to try to meet the anxieties of those involved in the mediation process. As a result, the Scottish Law Commission suggested the amendments that we are now considering. They are acceptable to FMS. It tells me that it will require to adjust its practice slightly in order to ensure that clients understand clearly the difference between oral or written contracts which are intended to be binding and other kinds of agreements which more often emerge from family mediation. The CALM lawyers had proposed a different approach, but I am sure that they will recognise that this is a fair compromise and, like FMS, will be able to adjust their practice to work within the law.

I am sure that your Lordships are as grateful as I am to CALM for pointing out the problem and to FMS for backing it in its request to the Scottish Law Commission. Likewise, I am sure that we are all grateful to the Scottish Law Commission for responding as it has. I beg to move.

The Earl of Mar and Kellie

My Lords, the two amendments put the wording of the Bill onto a better footing. They pave the way for a wider range of decisions, as characterised by Clause 1(2) (b) to (e). I had initially spoken about the Bill as though only Clause 1(2) (a) existed; that is, that family mediation was only about determining the children's future. While I recognise that we are dealing with a wide range of issues, I believe that the word "contract" is a more businesslike description of what needs to be achieved. After all, many of the decisions that must be taken on the dismantling of a marriage are similar to those taken in dismantling a partnership in business.

As informal agreements are not to be regarded as contracts, less evidence will become admissible. However, I believe that more agreement will appear in the joint minute when it arrives at the divorce court. That is a plus, and therefore I am keen to support the amendment.

Lord Lyell

My Lords, I thank my noble neighbour for explaining admirably clearly all the thoughts in my mind. I wish her success with the amendment.

Lord Macaulay of Bragar

My Lords, I have spoken to the noble Baroness, Lady Carnegy, about the Bill and have made it clear that I am not trying to stop its process. However, I wonder whether we are moving away from the informality of mediation and into the legalism of contract. The source of the word "contract" has come from the Scottish Law Commission in a learned dissertation by one of its members. The more I consider the matter, the more I believe that the word "contract" is too legalistic to sit happily with the concept of mediation. I make that point in passing and perhaps it can be considered in another place.

7.45 p.m.

Lord Rodger of Earlsferry

My Lords, I am happy to agree with the comments made by my noble friend Lady Carnegy as regards the amendment. The issue touched upon was discussed on Second Reading and was raised by the mediation organisations. We are anxious that the privacy of mediation should not be disturbed by spurious allegations after the event that an agreement had been entered into when no such thing had taken place.

I appreciate the anxieties that the mediation organisations have in this regard. Nonetheless, I must have regard to the overall needs of the law of evidence in Scotland and to the need to ensure a balance of justice to all concerned. I am aware that the proposed amendments have been the subject of extensive discussions with Dr. Clive of the Scottish Law Commission, but I believe that they affect the balance. I believe that there would be a risk of injustice if, where the parties had entered into a contract which they intended should be binding upon them, thereafter one party sought to escape from such a contract without the other party being able to put the matter into the proof in a civil proceeding.

With respect to the noble Lord, Lord Macaulay, the word "contract" is well chosen. It is only where in the course of mediation proceedings a legal and binding contract has been entered into—and that may not occur often—it is right that thereafter evidence of the contract should be able to be led. Otherwise there would be a risk of injustice. It is precisely in order to allow for the fact that more often there may be informal agreements about which evidence will not subsequently be led that the word has been well chosen.

My noble friend has pointed out that the mediation organisations will have regard to the terms of the legislation when deciding the particular forms of procedure to adopt. For those reasons, I take the view that it is justified to have the exception in the way now defined and I am happy to support my noble friend's amendment.

Baroness Carnegy of Lour

My Lords, I thank the noble Earl, Lord Mar and Kellie, for his support and for his explanation of the reason for that support. His experience adds value to the discussions. The noble Lord, Lord Macaulay, was right to clarify the amendment because it is the main change being made to the Bill on Report. I am grateful to my noble and learned friend the Lord Advocate for explaining the meaning behind the proposal of the Scottish Law Commission.

I understand that no one can stop people making a contract if they so wish, and I believe that the noble Lord, Lord Macaulay, will agree with that. It seldom happens in mediation, but no one can stop people doing so. It will not be a usual occurrence, but it would be wrong if a contract were made and no one could lead evidence about it in court in later civil proceedings. I hope that the House will approve the amendment.

Lord Macaulay of Bragar

My Lords, before the noble Baroness sits down, perhaps I may make a technical point. I understand that in making representations on the matter Dr. Clive was not representing the views of the Scottish Law Commission but was merely trying to assist the passage of the Bill through your Lordships' House.

On Question, amendment agreed to.

Baroness Carnegy of Lour moved Amendment No. 3:

Page 2, line 27, leave out ("written agreement") and insert ("contract").

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 4:

Page 3, line 8, leave out ("in a case where") and insert ("insofar as").

The noble and learned Lord said: My Lords, in moving Amendment No. 4, I shall speak also to Amendments Nos. 5, 6 and 7. Again, we are grateful to the noble and learned Lord, Lord McCluskey, who, in Committee, voiced certain concerns that, as drafted. Clause 2(2) might interfere with the intended operation of Clause 2(1) (c). The clear intention of the Scottish Law Commission as described in recommendation 13(d) of its report is that the arrangement set out in Clause 2(1) (c) should not extend to a child participant who is the subject of the mediation but who is too young to understand the nature and significance of the matters involved. It would not be right that such a child should have a veto.

In addition, it is only proper that the child should be able to agree to the admission as evidence of information that directly concerns him or her. These would include matters such as where the child is to reside, maintaining personal relations and direct contact with his or her parents or matters concerning the control, direction, guidance, guardianship or legal representation of the child.

Thus, both to highlight the useful concerns expressed by the noble and learned Lord, Lord McCluskey, and to make full provision for the policy as set out by the Scottish Law Commission, I have brought forward these amendments. I beg to move.

Baroness Carnegy of Lour

My Lords, perhaps it may be convenient for me to intervene at this point to say that I am grateful to the noble and learned Lord, Lord McCluskey, for pointing out in Committee that this part of Clause 2 does not quite say what it was intended to say.

It was always the intention that children who are the subject of mediation about matters directly affecting them and who are capable of understanding the meaning of what is discussed should be able to agree that such information should be admitted as evidence. I am grateful to my noble and learned friend Lord the Lord Advocate for clarifying that point and for bringing forward these amendments to provide the necessary alterations. I am happy to accept the amendment.

Lord Macaulay of Bragar

My Lords, I should like to express my personal reservations as regards the representation of the child. That point has not been met at all by the amendment. I shall not table a counter amendment but I hope that the matter will be looked at in due course. I know that an amendment has been tabled in another place by Family Mediation (Scotland) about the child having representation in the mediation process. At the moment, the child is regarded as a participant in the family mediation with a legal capacity when he would have nothing of the kind. I wonder whether the Bill goes far enough as regards representation for the child. I hope that that will be given some consideration when the Bill goes to another place.

The Earl of Mar and Kellie

My Lords, I support these amendments. They tidy up the Bill. However, they seem to rely on an amendment to the Children (Scotland) Bill which is at present in another place. That amendment deals with how the child will be represented. I like the idea that an appropriate person should be appointed to interview the child and report back. I hope that this amendment will be accepted within the Children (Scotland) Bill so that it carries on into this Bill. The amendment clarifies the fact that the more mature child should be consulted when admissibility is sought. I support the amendment.

Lord Rodger of Earlsferry

My Lords, I recognise all the anxieties expressed by the noble Lord, Lord Macaulay, and the noble Earl. I accept that they are expressing anxieties about the way in which children are represented in connection with mediation. I reiterate that that is a matter to be considered in relation to the substance of mediation proceedings. Here we are considering the question of the admissibility of evidence as to what went on at the proceedings. As has been indicated, there may be another opportunity on which to raise those matters which I accept are matters of substance because if mediation is to be a recognised part of the procedures for dealing with family disputes, and so on, it is important that everyone should be satisfied about the way in which children's interests are satisfied. However, that is another matter which does not fall squarely within the terms of the Bill. I commend the amendment.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendments Nos. 5 to 7:

Page 3, line 9, after ("who") insert ("— (i)") .

Page 3, line 10, at end insert ("; and

(ii) at the time the family mediation took place was capable of understanding the nature and significance of the matters to which the information which is sought to be admitted as evidence relates").

Page 3, line 15, leave out from ("evidence") to end of line 17.

On Question, amendments agreed to.

The Earl of Lindsay

My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.56 to 8.30 p.m.]