HL Deb 27 March 1995 vol 562 cc1438-45

5.9 p.m.

Baroness Carnegy of Lour

My Lords, I beg to move that this Bill be now read a third time.

This is a small Bill with a single, limited purpose. At the same time, in order to scrutinise the Bill properly and to get it right, it has been necessary to take some account of the wider context in which the Bill is set— how family mediation is practised in Scotland and how the courts operate in Scotland when dealing with the civil cases to which the Bill relates.

Because the Bill is important to the success of family mediation and because, sadly, as noble Lords have said, family mediation is increasingly important to many people, and notably to their children, it has been most encouraging that during our discussions the Bill has received support from all sides of this House, including the Cross Benches. The Government have been extremely helpful and supportive by making available the expertise of officials and parliamentary draftsmen, and, of course, in what Ministers themselves have said from the Dispatch Box.

I should like to place on record my appreciation of the contributions made by many people, both inside and outside this House, during the passage of the Bill. I am grateful to the Law Society of Scotland for its advice and support for the Bill; to the Comprehensive Accredited Lawyer Mediators (CALM) for the thoughtful, helpful and co-operative way they have contributed their experience and wise thinking which has led to useful amendments to the Bill; to Dr. Eric Clive of the Scottish Law Commission for his expert help in suggesting amendments; and to the Lord President of the Court of Session for his advice. I am sure that we all look forward to the introduction of the Lord President as a Life Peer in this House tomorrow.

I am also extremely grateful to noble Lords who have spoken so helpfully and constructively in our debates. From the Labour Front Bench the noble Lord, Lord Macaulay, with his usual skill and thoughtfulness, raised important points which have led to significant amendments to the Bill. From the Liberal Democrat Front Bench the noble Earl, Lord Mar and Kellie, has brought his supportive and professional social work experience to bear in a most useful way. The noble and learned Lord, Lord McCluskey, from his long experience as a High Court judge, in commending the Bill, pointed out a desirable improvement that might be made. The noble and learned Lord the Lord Advocate was subsequently able to respond with amendments which the House accepted on Report. The noble and learned Lord, Lord Simon of Glaisdale, who I am delighted to see is again in his place, has taken a close interest in our proceedings and has written to me about one point. My noble friend and neighbour, Lord Lyell, has given support with characteristic enthusiasm, for which I am grateful.

Above all, I am grateful to my noble and learned friends the Lord Advocate and Lord Fraser of Carmyllie for the work they have put in on the Bill, and to the officials of the Scottish Courts Administration and the Scottish Home and Health Department who have given generously of their skill and expertise and shown great patience and tolerance in so doing.

Last but by no means least, I pay tribute to Family Mediation Scotland, and notably to its director Susan Matheson, who is my principal adviser on the Bill and has done her best to assist other noble Lords who have asked for advice. Being a voluntary organisation, Family Mediation Scotland has limited resources at its disposal but its expertise and professionalism are of the highest quality. That, coupled with copious energy and dedication, has made it possible for me to steer the Bill thus far. I pay tribute to all concerned in Family Mediation Scotland.

During its passage through this House we have amended the Bill in a number of important ways and, I believe, have improved it considerably so that it is now a workable piece of legislation within which mediators, with small adjustments to their present practice, will be able to work more successfully than ever before and with even more fruitful outcomes for their clients in Scotland.

I hope that your Lordships will give the Bill a Third Reading and a fair wind to continuing all-party support in the other place. I commend the Bill to the House.

Moved, That the Bill be now read a third time.—(Baroness Carnegy of Lour.)

5.15 p.m.

Lord Simon of Glaisdale

My Lords, the noble Baroness, Lady Carnegy, periodically makes forays over the Border, and the noble and learned Lord the Lord Advocate, to general acclaim, carried through the Local Government (Wales) Bill. Flushed with that success, he has today carried through a measure of Welsh law. Despite that fact I am conscious that any contribution by English lawyers on matters of Scots law are rarely received with enthusiasm. I intervene at this stage to make three short points, and I do so early so that anything that I say which is incorrect may be corrected by the famous Scots lawyers who are present in your Lordships' Chamber.

My first point concerns a matter of general agreement, namely to congratulate the noble Baroness on having carried through this Bill. In England we have the same problem, namely the confidentiality of statements made during the course of marriage conciliation. My predecessor in office set up a small body of welfare officers founded on the probation service to assist in family conciliation, particularly as regards children. During my time that was extended because the various marriage guidance agencies were prepared to help. The National Marriage Guidance Council (now called Relate), the similar Roman Catholic body and the Jewish Marriage Council were all agreed that, if their work was to proceed, it was essential that it should be undertaken under the cover of confidentiality. Otherwise, parties would simply not be prepared to make candid statements to the person engaged in helping them. That is the problem that faced the noble Baroness.

In England we managed to proceed by judge-made law. I believe that in this branch of the law that is generally preferable. The judge-made law made it plain that statements made in the course of marriage conciliation would be privileged and would not be disclosed in subsequent proceedings. Although I have preference for judge-made law in this regard, I wholly agree with the recommendation of the Scottish Law Commission that in this case it was essential to have legislation. That is because judge-made law can proceed only when the suitable case comes up. It was impossible to wait for that in the sphere which this Bill covers. I entirely agree that that was the right way to proceed; and I congratulate the noble Baroness.

I wish to mention a matter that I raised with the noble Baroness. She sent my second letter (she having thrown the first into the wastepaper basket) to the noble and learned Lord the Lord Advocate. He promptly answered it, and I am grateful. He will forgive me if I say that I am not sure that I entirely agree, for this reason. It is a question of retrospection. The issue was raised at Committee stage. It seems to me important that this veil of confidentiality should be drawn over conciliation whenever it takes place.

The normal English law—I do not know whether it is the same in Scotland; I believe that it is—regarding construing statutes is that where a provision affects substantive law, there is a presumption against it being retrospective; but when it affects procedural law, there is a presumption that it is retrospective. Matters of evidence generally, and certainly in this case, are considered as matters of procedure. I believe that it is desirable that the Bill should be retrospective.

In his letter, the noble and learned Lord the Lord Advocate pointed out a complication. When I wrote to the noble Baroness I suggested that the point should be dealt with expressly on the face of the Bill. I do not now believe that that is desirable. I believe that the Bill should go through the other place on the nod. I apprehend that, if it does not do so, it would have great difficulty in being carried into law this Session. I merely ask the noble and learned Lord the Lord Advocate to keep open the possibility of argument for retrospection if I am right in thinking that that is desirable.

The last point that I wish to make arises from a remark by my noble and learned friend Lord McCluskey at Committee stage. He hoped that the system of mediation would be carried beyond the matrimonial law into the general civil law. I strongly agree with that. It seems to me highly desirable that no one should be embroiled in litigation if mediation, counselling, can avoid the conflict.

As for conciliation in matrimonial affairs, there have been overwhelming arguments in favour of a family court. That was suggested as long ago as the 1950s in evidence to the Morton Royal Commission on Marriage and Divorce. It has been taken up repeatedly ever since by persons of the highest authority. For example, the Law Society Family Law Committee has endorsed it. The only department which I know is opposed to it is the Lord Chancellor's Department. I venture once again to urge the value of a family court. In particular, I envisage that it should have two sides: a welfare side and a judicial side, rather like the Conseil d'Etat in France. The welfare side would have a conciliation department; and only after conciliation and counselling have failed would the matter go for resolution by the judge himself.

With those suggestions, I end as I began by congratulating the noble Baroness on having carried this far what I regard as an important and valuable measure.

Lord Macaulay of Bragar

My Lords, I join with the noble and learned Lord, Lord Simon of Glaisdale, in extending congratulations from this side of the Chamber to the noble Baroness for the work that she has done in this difficult area of society. The noble and learned Lord has put many propositions before your Lordships' House. I am sure that when we have an opportunity to study them in greater depth noble Lords will find them fascinating. Indeed, perhaps some government departments may even find them fascinating. If I may say so, he certainly raised some interesting matters.

However, as I understand it, the essence of the Bill is simplicity. I would hope that simplicity will be the keynote of family mediation. The noble and learned Lord raised issues which seem to have been matters of correspondence between himself, the noble and learned Lord the Lord Advocate and the noble Baroness to which I have not been privy. Therefore I do not choose to trespass on that ground. No doubt the noble and learned Lord, Lord Rodger of Earlsferry, will deal with those matters when he speaks.

I congratulate the noble Baroness not only on introducing this important socio-legal Bill but also on guiding it through the House with considerable negotiating and presentational skill. I do not wish this to become a mutual admiration society, but I am grateful to her for the kind remarks she made about my contributions to the Bill as it progressed through your Lordships' House. I entirely agree with her that it is a small Bill, but it has large implications. It is hoped that in operation it will bring a civilising influence into an area of life which was, and perhaps still is, associated with animosity and antagonism between parties. Very often the children were the victims while the parties fought their own battles.

During the passage of the Bill reservations have been expressed about certain areas. I know that those have been considered. While the final shape of the Bill will be subject to further scrutiny—for example, in relation to the child under Clause 2 of the Bill—I agree with the noble Baroness that, as amended, it is a practical Bill. It gives a statutory foundation upon which the people involved in the mediation process can operate. I am sure that the agencies to which the noble Baroness referred will be grateful to your Lordships' House. We hope that the Bill will receive the same consideration in another place.

As is the custom and practice in your Lordships' House, we hope that the Bill has benefited from the scrutiny to which it has been subjected. Once the Bill is brought into operation, its practical functioning will be the real test. Any serious defect which comes to light may be considered in the context of the Children (Scotland) Bill when that legislation comes from another place to your Lordships' House.

The relevance of the proceedings to criminal proceedings is a matter which I raised. Perhaps I sounded a little tedious, but I wanted the point clarified. That has now been done without shadow of doubt, with the result that the form which persons attending mediation signed beforehand and which stated that all matters which had passed during the mediation would he confidential, will be altered. Thus the parties coming into the mediation process will know that any matters which arise can be admitted in criminal proceedings. It is to be hoped that, if family mediation means anything and is successful, the number of cases to which the point may apply will be few.

The Bill is a good example of non-controversial, purely Scottish legislation which, with co-operation and common sense all round, has been seen through your Lordships' House without undue delay after its introduction. The noble Baroness indicated that she is somewhat intimidated when intervening on Bills of a basically legal content. However, the resolution which she has shown indicates that she need no longer fear lawyers and as time goes on it may be the lawyers will have to fear her. With that concluding remark, I repeat my congratulations to the noble Baroness on the work she has done.

5.30 p.m.

The Earl of Mar and Kellie

My Lords, I join other noble Lords in continuing to support the Bill and in thanking the noble Baroness, Lady Carnegy, for the vigour, energy and enthusiasm with which she introduced it, encouraging us all within and outside the Chamber. I also wish to express my thanks to Susan Matheson, the director of Family Mediation Scotland, for her help and encouragement.

The Bill makes a useful contribution to the social work task of converting the sad area of failed adult relationships and broken homes into the possibility of continuing family life within estrangement. The contribution of the Bill, when enacted, can be characterised in this way. First, I believe that there will be more joint minutes of agreement presented in the divorce courts, both before the sheriff and before the Court of Session. Secondly, I believe that the process will enable separating couples to make workable agreements, workable arrangements for the care of their children in the future and help them become effective parents in estrangement rather than bickering adults. I commend the Bill, not only here but in its passage through another place.

Lord Rodger of Earlsferry

My Lords, I too support my noble friend Lady Carnegy in her Bill. I join other noble Lords in congratulating her on the tact and skill which she has shown in dealing with the various issues which have arisen during discussions in your Lordships' House.

The Bill is relatively straightforward in principle but points were made in our debates which were not without difficulty. As a result of them being raised, the Bill has been greatly improved, but they were not altogether straightforward to resolve. We are grateful to the noble Baroness for all she did to ensure that the difficulties were resolved.

Many people outside this House who helped with the Bill have been mentioned. I concur in thanking them and express particular appreciation to Dr. Eric Clive of the Scottish Law Commission, who was helpful in resolving some points raised at short notice. His knowledge of the area of family law was invaluable. Like others, I thank all those who contributed to the work on the Bill, in particular the noble and learned Lord, Lord McCluskey, the noble Lord, Lord Macaulay, and the noble Earl, Lord Mar and Kellie. In their own ways, they all brought their experience to bear.

Today the noble and learned Lord, Lord Simon, intervened and, far from that being unwelcome, it is always good to hear him. At the weekend it happened that I was reading one of his most distinguished contributions to Scots law on an appeal some years ago on a matter of assythment. He referred to the "legal Briinnhilde" of assythment in Scotland —a very elegant way of putting it. He has intervened to effect in Scots law in the past. He made several points today and I am sure we all agree that, whatever the scope for judge-made law, it was an area in which legislation was required.

The noble and learned Lord raised a question with my noble friend Lady Carnegy as to the precise scope for retrospection in relation to the Bill. For the reasons I gave in correspondence with him, we envisage that it would be best to apply the Bill so that it comes into effect on cases where the evidence is heard after the date of commencement but not those where the evidence has been partly heard, because that could lead to injustice. Subject to that, we are anxious for the legislation to come into force as quickly as possible.

The noble and learned Lord, Lord Simon, also mentioned the general principle that mediation and informal resolution are better than litigation. I am sure that noble Lords agree and there are now facilities for alternative dispute resolution which we hope will lead to such matters being resolved. The noble and learned Lord particularly referred to the role of the family courts. In Scotland, the sheriff court has traditionally been thought of as the best way of dealing with the matters. There are problems over jurisdiction in Scotland, where the smaller population makes it more difficult to have a family court. However, the points which he made will certainly have been noted by us and also by others because his experience in family law is unrivalled. The points made in that connection may arise in relation to the Children (Scotland) Bill.

Finally, it is hoped that the Bill will contribute to strengthening the whole system of mediation. In that spirit, I, like others, hope that the Bill will commend itself to those who deal with it in another place.

Baroness Carnegy of Lour

My Lords, I thank all those who have contributed to the short debate and particularly the noble and learned Lord, Lord Simon of Glaisdale. Having listened to us at some length, he at last spoke and we were extremely interested in what he said. Some of it I shall only understand when I read it—if then. I am glad that he agrees with the Scottish Law Commission that in this instance there is no time to wait for judge-made law and that it is right to intervene with legislation for Scotland.

As regards retrospection, I am sure that my noble and learned friend the Lord Advocate will bear what the noble and learned Lord said in mind when, in due time, he makes the order for the commencement of the Bill.

The noble Lord, Lord Macaulay, revealed to me that I had omitted to let him see the letter from the noble and learned Lord, Lord Simon. I thought I had done so and apologise to him. If he would like to see the letter retrospectively, I should be only too glad to provide a copy! The first copy disappeared—I know not where. The noble and learned Lord, Lord Simon, forgave me and sent another. He suspects the wastepaper basket, but I am not sure.

The noble Lord, Lord Macaulay, has been anxious about the position of the child right through the proceedings on the Bill. I am sure that he and all of us in the House—certainly myself—will pay careful attention when we take the Children (Scotland) Bill through its stages, to ascertain whether the necessary cross references to this Bill have to be made.

I simply say to the noble Lord that the day when lawyers do not intimidate me has not yet arrived. It may come one day, but I find it rather an alarming business when we get into the deep arguments in which we often engage in this House and in which we have been involved in relation to this Bill. I thank the noble Earl, Lord Mar and Kellie, for his kind remarks.

The noble and learned Lord the Lord Advocate responded in part to the noble and learned Lord, Lord Simon of Glaisdale. It will be interesting to see, as the Bill proceeds, and as the Children (Scotland) Bill proceeds, how he can take account of the noble and learned Lord's remarks. I thank all noble Lords for their kind remarks. I commend this Bill to the House.

On Question, Bill read a third time, and passed, and sent to the Commons.