§ House again in Committee.
§ Clause 19 [Interpretation of Part 1 etc.]:
§ [Amendment No. 163B not moved.]1189
§ Baroness Faithfull moved Amendment No. 164:
Page 10, line 12, at end insert—
(""mediation" means family mediation conducted by a person accredited as a mediator in family mediation to an organisation which is concerned with such mediation and which is approved for the purposes of this Part by the Lord Chancellor;").
§ The noble Baroness said: On the groupings list, Amendments Nos. 164 and 169 are down as having been dealt with. Unless I was fast asleep I did not deal with them and I therefore deal with them now. I will take Amendment No. 164 together with Amendment No. 171.
§ Both the National Family Mediation and the Family Mediators Association are currently regulated by their own joint code of practice, and we discussed the question of codes of practice earlier. The mediation organisations consider it important that, in addition to a code of practice, there should be a structure of accountability to ensure that the public can be certain that the standards of mediation are high and will remain high. That is in line with what my noble and learned friend has set out in paragraph 6 of the White Paper Looking to the Future.
§ There are two amendments because Part I of the Bill deals with the introduction of mediation into the divorce process and Part II deals with the legal aid funding of mediation through the Legal Aid Board. In Part I it is important that every couple referred to mediation should know that the mediator will be an accredited mediator. In Part II it is important that public money—legal aid funds—should go only to accredited mediators. One of the organisations which may be referred to in these amendments is the newly-formed United Kingdom College of Family Mediators. However, it is a new body and it is not at present clear whether it will regulate all the mediation carried out in the United Kingdom. Possibly other regulatory bodies will come into being.
§ That is the reason for the rather convoluted language of the amendments, which is drawn from the Civil Evidence (Family Mediation) (Scotland) Act 1995 which was taken so ably through your Lordships' House last year by my noble friend the Baroness Carnegy of Lour. We should not presume necessarily to lift legislative language from the Scots, but where they have succeeded we might well follow. I am sure my noble and learned friend will agree.
§ If my noble and learned friend agrees with me that something similar to these amendments should appear in the Bill, one amendment to cover both Parts I and II, perhaps with rather shorter wording, would be welcome.
§ As to mediation itself, I regret that there seems to be some misunderstanding of what is involved. It is true that mediation begins when couples have come to the conclusion that their marriage has ended, but it is not true that the mediation process is insensitive or unprofessional, as some have felt it necessary to imply.
§ Always at the outset of mediation, the mediator will explore with the couple, either separately or together, whether they are really convinced that the marriage has broken down irretrievably. If there is any indication that that may not be the case, the couple will be referred for 1190 marriage guidance if they are willing. If the marriage has indeed broken down, infinite pains are taken with the couple to work out arrangements for the children with the best interests of the latter forming the basis of these often very painful discussions.
§ The mediators carrying out such work are all carefully selected according to strict criteria. They receive both broad training in core skills and specialist training in particular areas, such as consultation with children and screening for domestic violence, as well as the technicalities of financial and other practical matters. After training, they are supervised for a considerable period before being accredited; but they are not accredited if they do not reach the standards required. The current training methods and requirements for standards are similar to those adopted in the United States of America and the rest of Europe, as well as being in line with the approach taken in the United Kingdom. Mediation in this country is carried out to very high standards. The amendments would ensure that those standards are maintained and that the public would know that the standards are high. I beg to move.
§ The Lord Chancellor
I fully understand what my noble friend wishes to achieve. I believe that it will be clear that public money will not go to any body or profession, except in so far as they are satisfactory to the Legal Aid Board which will be working on the Lord Chancellor's behalf in that connection. As I said earlier—and I believe that this is right—it would be a good idea for the Lord Chancellor to have power under the Bill to make a code of practice which might well be along the lines of that which the professional bodies will issue. Nevertheless, it would be quite good for the Lord Chancellor to have such a power. In my view, it would be right for the Legal Aid Board to be confined to those services which acted in accordance with, and adopted, the code. As with legal services, we would wish to have arrangements under which the quality would be of a proper kind.
The first part of the Bill is a little more difficult to regulate. Outside people who want to start up a service could offer such services to people; indeed, they may have different ways of doing so. The public would be able to know which bodies were approved by the Lord Chancellor and the Legal Aid Board for the purposes of legal aid. Therefore, they would have confidence in contacting them. However, I feel somewhat reluctant to attempt to regulate the whole profession. I say that because it is a developing profession and, just as is the case with the legal profession, it would be quite wrong to regulate it at government level. I do not believe that the Government should be in the position of, so to speak, dictating to the profession precisely how it should go about matters.
On the other hand, where public money is being used for the purpose of purchasing particular services, it is clear that the Government need to be satisfied on behalf of the public purse that that is an appropriate position. Therefore, I intend to make it clear that the legal aid money—that is, in the second part of the Bill—is regulated in that way. Nevertheless, in the light of what I have said in relation to the first part, I hope that my 1191 noble friend will feel that it would be right to allow that to develop and give people the indication that there will be services which are provided for legal aid which would also be available for other people and which would, therefore, have a stamp of quality upon them. That might be a reasonable guarantee to people that the services were of the appropriate standard.
§ Baroness Faithfull
I thank my noble and learned friend for that explanation. I agree with him as regards the second part, but, as for the first part, I think that it is most important, even at the beginning of the service, that the public should have complete confidence in the mediators. It is also important that the professional people working in the field should have complete confidence and that the mediators are well trained and accredited.
I understand that my noble and learned friend feels that such a task should not be undertaken by his or any other government department. I shall, therefore, give thought to the matter and discuss with the mediation service how the public could be helped to understand that it is a professional service; as, indeed, it is. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 165 to 167 not moved.]
§ Clause 19 agreed to.
§ Clause 20 [Connected proceedings]:
§ [Amendment No. 168 not moved.]
§ Clause 20 agreed to.
§ [Amendment No. 169 not moved.]
§ 8.30 p.m.
§ Clause 21 [Legal Aid for mediation in family matters]:
§ Lord Stallard moved Amendment No. 169A:
Page 11, line 15, after ("to") insert ("reconciliation or").
§ The noble Lord said: In moving the above amendment I shall, with the leave of the Committee, speak also to Amendments Nos. 169B to 169D, 171A to 171E, 172A and 175A to 175E. I grouped the amendments together because there is a link which runs through all of them and it is quite just that they should be dealt with as a group. The aim of the amendments is to promote the possibility of reconciliation right up until the time of divorce. I first mooted the question of reconciliation at Second Reading. Since then I have received shoals of correspondence. That carried on right up until the Committee stage and the very first amendment. From the correspondence that I have received from organisations and individuals, I am convinced that there is an overwhelming desire for reconciliation to form part of the Bill.
§ Therefore, my amendments want to take the matter to the last stage. In promoting reconciliation, I want to provide legal aid for such services. I want to encourage reconciliation during the first six months after one or both of the spouses have made a statement of marriage breakdown. My amendments would provide for the funding of reconciliation on the same basis as applies for mediation. If a person's financial circumstances 1192 qualify him for legal aid in mediation, then he would automatically qualify for legal aid for reconciliation purposes. In Amendment No. 171D, I am restricting the legal aid funding for mediation during the first six months of the one-year waiting period.
§ Amendment No. 171E makes it clear that reconciliation is voluntary. Both parties and the counsellor must consent before legal aid funding can be used. I know that I do not have to go into a long and lengthy speech about the need for reconciliation, as I have already made two or three such speeches which, I believe, attracted some support even from the Opposition Front Bench. Indeed, on the first day of Committee I was delighted to hear my noble friend Lord Irvine of Lairg say that the Bill did not promote reconciliation and that he felt it ought to do so. Of course, he is quite right. I welcome his support.
§ The amendments would guarantee funding for reconciliation as of right to every person who is also qualified for mediation funding. Funding for reconciliation services is vital. People who qualify for legal aid will be able to use the conciliation or mediation service.
§ There was a lengthy discussion on mediation in relation to Amendment No. 162. We heard the response of the noble and learned Lord the Lord Chancellor. Reconciliation is not dealt with adequately in that amendment because it deals with organisations. I agree that organisations concerned with reconciliation should be funded, whether or not they are affiliated to the Church. Amendment No. 162 does not give any guarantees to individuals that they will be assisted in the process of reconciliation. It is essential that individuals are consulted and given the opportunity to seek reconciliation and that they can obtain legal aid for that process. The amendments deal specifically with the needs of individuals and their entitlements.
§ The right reverend Prelate supported Amendment No. 162. We have been critical of some statements that have been made by the right reverend Prelates, but some of us are worried about what they have not said and that they have not been taking any lead in saving marriages. That is the concern, how to save marriages.
§ It has been stated that the first marriage failed because children did not listen to parents, and that the second marriage was a far better marriage. My experience is not dissimilar. I have discovered that first marriages often break up because children did not listen to their parents' advice and the second marriage was a success because they realised that they should have listened to parents in the first place. That is a slightly different slant to the matter, but there are as many cases of that as for other reasons.
§ From my research I have found that the state spends over £3 billion per year on the consequences of divorce. If the amendments are carried, they will save marriages and save money. Income support and social security benefits, for example, will be saved, so saving marriages is more economic for the Government than financing the consequences of divorce.1193
§ I ask that the amendments be given serious consideration. They can be included in the Bill as they are because they are very simple and self-explanatory. We have debated the need for reconciliation. Amendment No. 175E puts legal aid funding for reconciliation on the same basis as mediation, and I do not think there can be any argument about that.
§ I hope that the noble and learned Lord the Lord Chancellor will accept the amendments; if not, I shall be grateful if he can give reasons as to why they cannot be accepted. I beg to move.
§ Baroness Faithfull
I am a patron of the National Mediation Service together with the noble Lord, Lord Habgood. I have spent some time with the officers of that service and I understand that the purpose of mediation is to help people to come to terms amicably with what will happen to the assets, the children, living arrangements et cetera. That is quite different from the specific reconciliation that is done by the voluntary organisations mentioned in Amendment No. 162.
Mediation has a different goal from that of reconciliation. I understand that a proportion of those involved in mediation withdraw when they know what is involved in mediation and divorce. Therefore, by a strange quirk there is an element of reconciliation, but that is not the goal of mediation.
§ Baroness Young
I support the noble Lord, Lord Stallard, on these very important amendments. They are in line with amendments that I moved at an earlier stage in Committee. Many noble Lords are concerned that the Bill does not find a place for reconciliation in the timetable that is set out in the process of divorce. My noble friend Lady Faithfull has pointed out that mediation is not the same as reconciliation but it is concerned with the division of assets. It may be possible to divide them up in a more amicable way than in a court but, nevertheless, that is its purpose.
As I understand the matter, the noble and learned Lord the Lord Chancellor hopes that at some stage in the mediation process something will happen and the mediator can stop the process and say, you should go to reconciliation because all is well. Noble Lords should be very pleased that a proportion of couples attending mediation withdraw. One of the more encouraging statistics that we have heard is that between 20,000 and 30,000 couples per year contemplate divorce, stop and return to their marriages.
Reconciliation, which is a different process, is not included in the Bill. The amendments address this point and ask for reconciliation and that it should be funded from legal aid. Noble Lords know the costs involved in divorce and the figure will probably rise as a result of the Bill. Relatively small sums are spent in supporting marriage, which would be a more useful exercise. Therefore, if we are going to take the matter seriously it should be given support. Can the noble and learned Lord look at the amendments in relation to Amendment No. 162 which concerns support for marriage services? 1194 The noble Lord, Lord Stoddart, made an extremely important point about the tax system in relation to Amendment No. 162. If we are really serious about wanting to do something to reverse divorce we should first have a complete overhaul of the tax and benefits system. One is constantly sent papers which indicate that married couples are in many ways greatly disadvantaged by the tax and benefits system and that married couples are paying for other cohabiting couples or single parents. This is not the time to go into that aspect and I do not intend to. However, I leave the matter with my noble and learned friend because I believe that we should consider this matter very seriously indeed if we want to do something about it.
Not only should we state that we believe in marriage, we believe in supporting marriage. We do not believe in making divorce easier—as I think the Bill does—and we should have a tax and benefits system which supports marriage. We should make that point absolutely clear. I am happy to support the amendments of the noble Lord, Lord Stallard.
§ The Lord Bishop of Worcester
I support the noble Baroness, Lady Young, and the noble Lord, Lord Stallard. We must probe with an open mind into the causes of the breakdown of marriage. There must be no holds barred. The issue is far more important than some of those we have debated in this House. I very much support what has been said. I am glad to do so because I am sorry when Christian people disagree over a matter such as the Bill.
I hope that the word "reconciliation" can appear somewhere in the Bill. However, the point about mediation is that it encourages people to enter into it with perhaps an open mind. If the word "reconciliation" is used from the start, people feel that the issue has been prejudged and they will not begin to consider the consequences. When they do consider those consequences, with the terrible uprooting for them and the children, and the investment that they have put into their marriage over 15 or 20 years, then they often seek reconciliation. But the word "mediation" is used because it has an attractive appeal to those who wish to enter into it, to begin with, with an open mind.
At Second Reading, I cited that research indicated that 50 per cent. of men and 30 per cent. of women regretted that they went for divorce. People are divorcing in haste and repenting at leisure. Mediation is an endeavour to prevent that.
§ Lord Stoddart of Swindon
I listened carefully and with great interest to the intervention by the right reverend Prelate. However, I have to disagree with him. My noble friend Lord Stallard is seeking to put the horse before the cart. In other words, he seeks to say that before the irreconcilable breakdown of marriage—we have been told that mediation means arranging the consequences of the breakdown of the marriage—we want to try to reconcile the differences between the husband and wife in order that they do not have to reach the mediation stage. We believe that that is the way to save marriages. Once one has gone to the mediation stage one has accepted that reconciliation may not be possible.
1195 I am sorry to disagree with the right reverend Prelate. I have said a few unkind words about the Church during the course of debates. However, the reason is that I believe that too many institutions, as we have heard so often in debates, say, "We have to take things as they are". That is an abrogation of leadership. If the Church is not about leadership, politics is not about leadership, the House of Commons is not about leadership, the Prime Minister is not about leadership, and the Lord Chancellor is not about leadership, what are we here for?
§ The Lord Bishop of Worcester
Perhaps the noble Lord will give way. I quite agree on leadership. But if a colonel says to the troops, "Over the top, lads" and turns round to find that they have not come with him, is that leadership?
§ Lord Stoddart of Swindon
You do not lead by following. That is precisely what so many institutions have been doing. Instead of leading they have been following. Instead of pointing to the right road, they have allowed people to take the wrong road without correction. I believe that that is the fundamental flaw about this Bill.
My noble friend's amendments make some attempt to say, "Isn't there something you can do to save this marriage?" As I said, he is trying to put the horse before the cart; and I believe, as always, that that is the proper place for the horse to be.
§ 8.45 p.m.
§ Baroness Elles
I support the amendment and the noble Lord, Lord Stoddart. The wording is difficult. The right reverend Prelate said that reconciliation already implies that the marriage has broken down. But how many couples do we know who say that they would like to speak to some independent person, perhaps not connected with "marriage guidance", or using the word "reconciliation", but providing the work of reconciliation?
§ Lord Stallard
The noble Baroness seems to say that reconciliation means that the marriage has broken down. It is the opposite. Mediation starts when the marriage has broken down. According to the Bill, the White Paper and elsewhere, when one person says that the marriage has irretrievably broken down, mediation starts then. They start to discuss property, money, access and so on. Reconciliation is in the opposite direction. It starts before the breakdown point is reached to see whether the issue can be resolved before the marriage breaks down.
§ Baroness Elles
I do not think that the noble Lord quite heard what I said. I said that the right reverend Prelate had said that reconciliation was the stage at which the marriage was breaking down. Like the noble Lord, Lord Stallard, I believe that reconciliation should come long before that stage is reached. It is the nomenclature of organisations available for so many young people who wish to be able to turn to a third party for advice. I support the amendments.
§ Baroness Seear
Perhaps I may ask a brief question arising from the amendment. I believe that the noble and 1196 learned Lord is anxious that no one should be unable to go for conciliation through lack of money. Under Amendment No. 162, when the Lord Chancellor obtains his money from the Treasury will it be allocated in such a way that people who really cannot afford to pay for reconciliation will be able to obtain it free? It is an important point. We do not want anyone excluded from reconciliation through inability to pay.
§ Lord Simon of Glaisdale
I, too, support the amendment. The more our discussions proceed, the more apparent it is that these terms need to be statutorily defined.
Mediation was described accurately by the noble Lord, Lord Irvine of Lairg. It is a preparation for, or, better still, a substitute for litigation. Mediation helps parties to narrow and, if possible, to resolve the issues between them. In so far as it does not succeed completely, the matter has to go for adjudication.
Reconciliation is quite different. It is designed to bring together the parties whose marriage is in crisis so that their life together can be reconstituted. I agree that it is particularly necessary at the earliest stage of crisis. It is also very necessary at the last stage, when the parties see what divorce might involve for them. It should also be available throughout. I draw particular attention to what the noble Baroness, Lady Faithfull, told us on the last occasion—that in Scotland the reconciliatory agent and the mediator occupy the same office. Thus at any moment there is a chance of reconciliation.
However, mediation is quite different and, as I see it, a substitute for adjudication, helping the parties to resolve their differences. If they succeed, it is likely to be much more successful than anything that is imposed by the court. That was always my experience as regards children. Practically anything that the parties agreed was better for the children than anything one imposed on them.
Mediation goes beyond children. It is particularly relevant to the property and financial differences involved in the fall-out from a divorce. To my mind, what the noble Lord, Lord Stallard, suggested is entirely salutary, except that it points to the necessity for definition of the terms.
§ The Lord Chancellor
Reconciliation is highly desirable. It is a misunderstanding to suggest that there is not already reference to it in the Bill. It underlies the statement in the heading about the period for reflection and consideration,to reflect on whether the marriage can be saved".In the plainest words that I can find, it makes it clear that there must be an attempt to reconcile. If it does not, if that is not what it means, then I do not understand English.
§ Lord Simon of Glaisdale
Will my noble and learned friend agree that the difference between mediation and reconciliation is that there is an outside agent which 1197 helps? Whether the marriage can be saved is left to the parties themselves, but they can be helped. That is the difference.
§ The Lord Chancellor
I believe that reconciliation is an outcome; namely, that the difficult differences between the parties have been resolved. That is what reconciliation is. It is not a process but a result. I would happily pay for it if I could be sure that that was always the result, but sadly it is not the situation. The purpose is to reflect on whether the marriage can be saved. I have explained or sought to explain that the purpose of the information session is to draw people's attention to the services that are available to help them in that connection. It will include outside help with reflecting on whether the marriage can be saved.
As regards mediation, as my noble and learned friend and others said, it is a process under which people consider—in substitution for litigation—what the future has for them if they should go forward to divorce. As I have often said and as has been agreed by a number of speakers, that may well be the best way of effecting reconciliation late in the day.
The point about reconciliation is that it may be helped by services such as marriage counselling or other types of counselling. I gave some examples earlier and will not repeat them because it is desirable to make progress, if we can. As regards marriage guidance, it is quite wrong to think of it as applying only after a statement has been lodged that the marriage has broken down. The best hope for marriage guidance and help is before one comes to that stage, when people are in crisis. Therefore, to give special funding to marriage guidance, which is resorted to at the end, is to invite people to go to the end in order to obtain the funding.
A great variety of services are needed in this connection. For example, I mentioned bereavement counselling in some situations. Those services are better provided by voluntary organisations funded by grants. As I said earlier in the debate, many provide people with services for nothing, sometimes there is a donation, sometimes charging is in accordance with a sliding scale, depending on people's needs. Many people who find themselves in this situation could well afford to secure the services themselves. So I do not think it right to use the mechanism of legal aid for the purposes of helping to pay for marriage guidance or counselling. That is better done by funding a voluntary body. I shall take good care that the voluntary bodies which are funded to provide such services receive the funding on the basis that they attempt to get into the situation as early as possible and do not wait until the process of divorce has been begun.
Although I understand well the spirit behind the amendments, I do not believe that they are appropriate in the circumstances of this case, because I believe that help coming early is best. Therefore, to put a premium on later marriage guidance is not suitable. What is suitable is that organisations which provide the kind of support I have described should be given grants and left to make their own decision as to how the priorities in respect of providing their services should be determined.
1198 As my noble and learned friend Lord Simon said, referring to something which my noble friend Lady Faithful] said earlier, I too believe that it is a good idea to treat marriage counselling and mediation as complementary. There are combined services in Scotland as well as a combined counselling and mediation service in Northern Ireland. There are six combined services in England and Wales, with others being developed. So there is a degree of complementary development taking place.
I strongly support the idea that the parties should try to be reconciled. My train of thought was slightly broken, I referred earlier to Clause 7 and said that at the very start of the process there was a period in which to reflect on whether the marriage can be saved. Then I provide for breaking the period off, stopping it if parties require time to attempt reconciliation. The word "reconciliation" is in the Bill in terms. I believe that it comes twice in the provisions. So it is referred to and I intend to refer to it again in relation to the code that I hope to have for mediation.
§ Lord Stoddart of Swindon
Before the noble and learned Lord sits down, I have been reflecting on what he said about reflection while he was speaking. I cannot reconcile reflection with reconciliation. The noble and learned Lord has not convinced me that they mean the same thing. If they do, would he have any objection to re-heading Clause 7 "reconciliation"? Would that meet his point?
§ The Lord Chancellor
No, the two are quite different. The purpose of reflecting is so that the marriage can be saved. Let us suppose that a marriage is in difficulty and then the marriage is saved. I do not know how the noble Lord would describe that, but for my part I am perfectly prepared to describe it as reconciliation. If a marriage has broken down and then that marriage is saved, that has resulted in reconciliation. That is precisely what Clause 7(1)(a) is about. As my noble and learned friend Lord Simon said, people may need help to become reconciled; they may need help with reflection; they may need help in a number of ways. That help is marriage counselling or a marriage support service of some kind.
§ 9 p.m.
§ Lord Irvine of Lairg
Before the noble and learned Lord sits down, I wonder whether he can assist the Committee on this point. He indicated earlier that a reason for withholding legal aid for attempting reconciliation was that the reconciliation might not succeed. Legal aid will be available for mediation which may not succeed. Why, therefore, should it not be available for attempted reconciliation which may not succeed? What is the rationale of making legal aid available for mediation but then, if the mediation has to stop because the mediator learns from the parties that they would like to attempt a reconciliation, continuing to make public money available for the ongoing process 1199 of mediation but not available to assist them in attempting a reconciliation when they have indicated that they desire to make that attempt?
§ The Lord Chancellor
I do not believe I said the reason was that it might not succeed. If I did, I certainly cannot think of a context in which I would say that. No doubt Hansard will tell me. Obviously, I am not reading from a piece of paper.
The rationale is this. Mediation is at the stage where people are considering, the marriage having broken down, what arrangements should be made for the future. That is a substitute for litigation. Therefore, it is appropriate that legal aid should be available. But attempts at reconciliation and the services that assist in that are available not only at that stage but much earlier. People often meet with crises in their marriage before there is any thought of divorce. That is the best time for them to use the service and get help. Therefore, there should be no distinction between the treatment given for reconciliation attempts and the assistance available for that at whichever time in the history of the marriage it comes along. Consequently, I believe that it is right to provide the same system for help in reconciliation at whatever stage in the marriage that help may be required.
To provide help at the expense of the state only at the late stage is to invert the priorities, when the more successful attempts at reconciliation are more likely to be at earlier stages in the crisis. Those are the reasons why the situation in regard to reconciliation is quite different from the question of providing mediation, which is in effect a substitute for the legal process because the issues that are the subject matter of mediation are themselves justiciable.
§ Lord Stallard
I thank all who participated in this short debate and offered support. The whole matter is becoming more and more confused as the two words are bandied about as though they were interchangeable. They are not. I do not even accept that reconciliation is the end of the process. The end of the process of reconciliation is that the couple are reconciled. That is the difference. The noble and learned Lord the Lord Chancellor said that reconciliation was the end of the process. It is not. It is the beginning of a period of discussion to see whether the marriage can be saved. If the period that I call reconciliation is successful and if, at the end, the parties are reconciled, there is no need for mediation. That process of reconciliation should be funded and encouraged if we are really serious about saving marriages. If we are concerned only with speeding up divorce, or making it tidier and easier for divorce to take place, reconciliation will not be needed. But if we are serious about saving marriages, there has to be a period during which people can attempt reconciliation. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 169B to 171 not moved.]
§ Clause 21 agreed to.1200
§ Clause 22 [Provision and availability of mediation]:
§ [Amendments Nos. 171A to 171E not moved.]
§ Lord Archer of Sandwell moved Amendment No. 172:
Page 12, leave out lines 14 and 15 and insert ("and the parties suitable to the dispute having regard to all the circumstances of the case").
§ The noble and learned Lord said: Once again the Committee is confronted with a grouping for which the kindest adjective that springs to mind is "eccentric". The Committee may, however, wish to discuss with this amendment Amendments Nos. 173 to 175, 176 and 178. Amendment No. 177, in the name of my noble friend Lord Irvine will he spoken to by him separately when its turn is reached on the Marshalled List.
§ I think the most helpful way in which I can introduce this debate is to speak specifically to the two amendments standing in my name. I do not think there is any way in which one can give a preface, as it were, to the whole of this debate. Other Members of the Committee will then speak to amendments standing in their names.
§ Amendment No. 172 may appear to be a drafting amendment. It is proposed in order to emphasise what I hope is the intention of the clause. First, the intention, I hope, is that mediation is not to proceed unless it appears appropriate not only to the mediator but also the parties. Secondly, and separately, I hope that the intention is to bring into prominence the requirement that deciding whether it is appropriate depends on the circumstances.
§ I hesitate to say for the hundredth time that we are discussing mediation and not conciliation. I hope that there is not a danger1 that, like so many other admirable remedies mediation may become the automatic answer to every problem, even after the proceedings have begun. There is a danger that one has a Pavlovian reaction whenever confronted with the question of what to do next.
§ National Family Mediation points out that some situations do not admit of mediation. It says that it is possible to categorise a number of types of situation in which, from the outset, one can say that it is not appropriate.
§ First, it says that the dispute may be incapable of being negotiated because, for example, the parties are not agreed on the facts. Someone may have to agree with one of the parties and simply adjudicate on what are the facts. Secondly, there may be irreversible imbalances of power; for example, where there is domestic violence or where a woman from a minority ethnic group may find culturally that she is not in a position to be able to bargain with her husband. Thirdly, one of the parties may suffer from some mental or other impairment, with the result that he or she cannot meaningfully negotiate. Fourthly, one of the parties may feel coerced if he or she had to attend any kind of mediation process. Fifthly, there may be criminal child protection issues.
§ There one can categorise the situations. One simply looks at the situation and says that mediation is not appropriate in that case. But, of course, there are other 1201 situations which depend on the attitude of the parties. Even when the case does not fall into one of those categories, National Family Mediation emphasises that the case may not be suitable for mediation if one partner, even after agreeing to participate, demonstrates a lack of commitment by failing to keep appointments, to produce the necessary information or to abide by any agreements which have been made. I doubt whether any of that is controversial. I do not believe that we need a vote on whether there are situations which do not readily admit of mediation. But there has been some anxiety expressed in the country that the Government are anxious to make mediation a blanket remedy to the exclusion of such other remedies as legal advice.
§ I know that that is not the intention. The noble and learned Lord has said very helpfully on more than one occasion that one looks to see what is appropriate. I hope that he can assist by saying that today, and that he can assure the Committee that, if he pursues his suggestion—I believe that it was his own suggestion—to issue a code of conduct for mediators, he will include a specific direction to mediators to direct their minds to those questions at the outset.
§ May I make one other suggestion which may not fall squarely within the intent of this amendment. Perhaps the noble and learned Lord could include in the code a requirement that the mediator "shall make known" to the parties the availability of legal advice where that is appropriate and advise them to go down that path. That deals with Amendment No. 172.
§ Amendment No. 173 is directed to a very different question, although it relates to mediation. I suppose that that is why it has been included within this suggested grouping. It is intended to suggest a better mechanism than is found in the Bill for the collection of whatever contribution is assessed from the legally assisted party when legal aid is granted for mediation. The Bill proposes that it should be paid directly to the mediator. The noble Lord, Lord Meston, and the noble Baroness, Lady Hamwee, are more familiar with this matter than I am, but as I understand it, when legal aid is granted for legal advice and assistance from a solicitor, any contribution that is levied is paid not to the solicitor but to the Legal Aid Board which, in due course, pays the solicitor his or her proper costs and fees.
§ That has two fairly obvious advantages. First, the Legal Aid Board is likely to have a more cost effective mechanism for collecting what is due. Collecting money, as we all know in a number of contexts, requires letters and accountancy processes and reminders. All that costs money. So there is a cost element in the process of collecting. If the contribution is a small one, the cost of collecting it may be in danger of becoming disproportionate to the amount to be collected. Is it not better, I ask rhetorically, to use machinery which is already in place and to take advantage of the experience of the Legal Aid Board? That is the first reason behind the amendment.
§ Secondly, and even more importantly, if the recipient of legal aid and advice is in arrear with the contribution instalments, the solicitor who is doing the work for the assisted person may be required to cease doing any 1202 further work or incurring any further costs. It is the Legal Aid Board which notifies the solicitor and then takes whatever other action is necessary to see whether it is possible to recover the contribution. If the solicitor had to collect the contributions and then remind his or her own client that he or she was in arrear and that if those contributions were not paid further services would cease, it might create an undesirable conflict of interest for the solicitor. I assume that that is one reason why collection is carried out by the Legal Aid Board.
§ So a question naturally occurs and it is this: is there any distinction for that purpose between the position of the solicitor and the mediator? May the mediator, too, not be faced with that kind of conflict of interest? These were the considerations which were common both to National Family Mediation and the Law Society when they made representations on this issue.
§ From National Family Mediation there comes one further consideration, which is this. If the mediator can look forward to a block payment from the Legal Aid Board for a whole sector of work, then it can be sure of a cash flow and can plan its workload, investment in training and staffing. Therefore, for all these reasons it appears better that payment from clients should be received and processed by the Legal Aid Board.
§ I have added my name to Amendment No. 174, but it stands in the name of the noble Baroness, Lady Hamwee. I think it would be more sensible if I were to leave its introduction to her, reserving the right to say that I agree with her, if that arises. I beg to move.
§ 9.15 p.m.
§ Baroness Hamwee
The noble and learned Lord, Lord Archer of Sandwell, has acted as the straight man for my amendment. I agree with what he has said as regards Amendments Nos. 172 and 173. He may have different reasons for promoting Amendment No. 174 as regards the statutory charge which applies when someone gains or retains property in dispute as a result of services provided by the Legal Aid Board, with the board having a charge on that property so that it can claw back its payment in respect of the services.
In the information guide published by the Lord Chancellor's Department on this Bill the comment is made that:The statutory charge will not apply to mediation costs from the outset of the new system because the application of the charge is complicated and the Government and the Legal Aid Board will want to monitor how mediation works in practice before deciding how best to implement the statutory charge for mediation costs".I read that paragraph because it seems to me that it is not quite what Clause 23(4) provides. It states "Regulations may provide" for the statutory charge. If the noble and learned Lord's view was that the statutory charge should apply but that the mechanism by which it should be implemented was to be considered, that is something rather different.
If there is no statutory charge, there is a danger of penalising those who cannot pay rather than those who will not pay. Clearly there are those for whom mediation is unsuitable—that has been agreed during the course of the debate—such as victims of domestic violence. 1203 Certain people for whom mediation may not be suitable may, through no fault of their own, be liable to repay their costs whereas others will not.
It is worth considering whether those in receipt of legal aid should have a financial stake in the outcome of the matter in order to encourage a cost-effective approach to mediation in the same way as one must consider a cost-effective approach to litigation. I recognise that I am treading on sensitive ground in making that statement, but it is certainly a matter worth considering.
Also, if the statutory charge were not to apply, it might be regarded as being a financial incentive to mediate, or rather not to negotiate or litigate. I am concerned that mediation through the back-door, as it were, may come to be regarded as compulsory when it is agreed that, though desirable, it should not be compulsory. For those reasons and also in order to discover whether the intention is that there should he a statutory charge, with the implementation as a matter to be considered, or whether this is still an open matter, I have put down this amendment.
§ Lord Meston
In fully supporting every remark made by the noble and learned Lord, Lord Archer, may I also speak to my amendments in this group, beginning with the second, No. 176, which is designed to moderate in some way the provisions of Clause 24. Clause 24 provides that legal aid for representation will generally riot be granted because mediation is considered more appropriate than taking proceedings, except in classes of proceedings or other circumstances to be prescribed. That means that a party of modest means will not have a straight choice between mediation and legal representation, and it is really part of the pressure for mediation which was referred to earlier in our debate in relation to Clauses 12 and 13. It overlooks the fact that lawyers are often the best mediators, particularly in financial disputes. I would readily accept that mediation has an increasing respectability, but I suggest that the presumption in favour of mediation should be modified until the workings of this Bill are tried and tested in practice. The noble Baroness, Lady Faithfull, referred, quite properly, to the increasing confidence in mediation. She is right, but it is not yet universal.
It is also unclear as to what is to he the extent of legally aided advice short of representation. If legal advice short of representation is available throughout the mediation process, so much the better; but one must not lose sight of the fact that the mediators, in financial situations particularly, will be trying to mediate within the existing framework of statutory law governing financial provision and property adjustment. It is not clear, to me at any rate, what are to be the exceptions under Clause 24. We must remember that it is not just in cases where there is a lot of money around that there is complexity. People should have the ability to have recourse to law rather than to mediation. They should certainly have the ability quickly to go to court in the circumstances to which the noble and learned Lord, Lord Archer, referred, where there is obstructive behaviour or non-co-operation or indeed where there may he dissipation of assets to frustrate the mediation 1204 so that an injunction is necessary. Without the fall-back of recourse to law with proper legal representation, the vulnerability of the weaker party to accept a less-than-perfect mediated settlement may be very hard to resist.
The other amendment I wish to speak to is No. 175. Clause 23(6) says that for the purposes of subsection (4) the nature of the property and where it is situated are immaterial. That, as I understand it, is not stated in the existing provisions of the Legal Aid Act. It has never been thought necessary by the Legal Aid Board or its predecessor, the Law Society, in administering the Legal Aid Fund. As I have always understood it, a common-sense view has been taken of what realistically the statutory charge can be enforced against.
Although in theory the statutory charge may be applicable to many of the assets, many practitioners have to argue about including the family budgerigar in its cage or the picture in the smallest room of the house. In practice, the Legal Aid Board takes a practical view. But I wonder what is the utility of subsection (6) of Clause 23. Presumably it is not envisaged that washing machines in Timbuktu will be subject to the statutory charge and we seem to have managed pretty well without that provision so far.
§ Lord Archer of Sandwell
Perhaps I can delay the Committee for one further moment for two purposes. First, I wish to express my agreement with what was said by the noble Lord, Lord Meston, particularly in relation to what he said about the danger that a vulnerable party may be coerced into accepting a mediated settlement. This has been described as a "rogue's charter". For example, a husband may say to his wife, "You will accept the settlement which I am now proposing or you will have to go by way of legal proceedings and you will suffer the clawback".
The other point I want to make is that I agree, as I anticipated I would, with what was said by the noble Baroness, Lady Hamwee. Perhaps I can add one further reason to the reasons she listed. I believe that there is general agreement that when the parties choose mediation in preference to legal advice, that should be for good reasons; because it is the more appropriate course of action. It would be disastrous if they chose it not for reasons relating to merit, but because there is a financial incentive for doing so.
§ The Lord Bishop of Worcester
I heartily agree with what was said by the noble and learned Lord, Lord Archer of Sandwell, in relation to the choosing of mediation because it is the most appropriate course and not because it is the cheapest. However, I should like to ask the noble and learned Lord the Lord Chancellor whether he agrees that to impose the statutory charge on property that has been recovered or preserved, fits with the process of mediation—because mediation is not a matter of competitive "win or lose". It is a matter of helping to allocate property suitably so that resources are for the benefit of the children. For that reason it is a good argument for exempting couples who mediate from the imposition of the statutory charge. That is what the Bill allows as it stands, making it possible but not 1205 mandatory for regulations to require such a charge to be made. I therefore prefer the Bill to remain as it is.
I am aware that some may argue that that may persuade some people into mediation who are not suited to it, which is what the noble and learned Lord, Lord Archer, was saying. They may seek mediation only in order to avoid repaying moneys to the Legal Aid Board. That is not an objection which can be upheld. I am sure that mediators always assure themselves that those entering mediation are suited to it; that they would not be able to mediate for those who are not prepared to take a constructive part. Therefore, mediation would not continue where an aggressive spouse was involved who was making demands and bullying the other spouse. Indeed, that is confirmed in Clause 22 of the Bill which inserts a new Section 13B into the 1988 Act. Subsection (3) of the Clause states: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".I hope that your Lordships will agree that the amendment may not be helpful. I look forward to hearing what the noble and learned Lord the Lord Chancellor has to say on the matter.
§ 9.30 p.m.
§ Lord Simon of Glaisdale
Perhaps I may say a brief word about the relevance of legal aid, legal advice and legal representation to the processes with which the Committee is concerned. In mediation, legal advice may well be needed. I would hope that the mediator would indicate to the parties where he thinks that legal advice would help them. In my view, legal representation is entirely alien to the mediatory process. If the matter cannot be entirely mediated and some issue has to go to adjudication, it is at that stage that, for the first time, legal representation becomes necessary or at any rate appropriate in many cases. However, legal representation is an alien influence which cannot help the ordinary mediatory process. The Scottish procedures would be helpful in this respect because I believe that in Scotland there is official recognition of mediation. One would like to know how far Scotland has at all invoked or admitted legal representation or legal advice.
§ The Lord Chancellor
I think that I should try to take the amendments more or less in the order in which they appear on the Marshalled List. Therefore, I turn first to Amendment No. 172. I am not sure that I fully understand the distinction that this amendment brings into the clause as drafted compared to what we have already. It is intended that the situation should appear to the mediator as suitable to the dispute, the parties and the circumstances. Obviously, if there is to be legal aid for the mediation, somebody has to apply for it. It is intended that that should be the party. The result is that mediation would not be granted unless it appeared to the mediator that it was suitable to the dispute, the parties and the circumstances.
In so far as I understand the amendment, it would provide for joint decision-making. I should have thought that the decision should take account of whether it 1206 would be suitable for those parties to engage in mediation. There might be many problems about a particular party that would make it unsuitable for that party to be involved in mediation. The potential mediator would probably be the best judge of that. Therefore, I am not sure that the amendment improves matters.
Turning to the other points raised by the noble and learned Lord, Lord Archer, when speaking to his amendment, I have taken the power in Clause 24 to exempt from the principles set out "prescribed descriptions of proceedings" or "prescribed circumstances". I have in mind the kind of circumstances that the noble and learned Lord mentioned, where it is plain that mediation would not be suitable. He mentioned a number and, so far as I recall them, all those he mentioned would be circumstances where it may well be right to make regulations to exempt the application of the principle.
Amendment No. 173 is an entirely different matter; namely, whether the payment should be to the mediator or the Legal Aid Board. When this was in preparation, we had discussions about it with the mediation organisations and the Legal Aid Board. It may be a matter that should be left fairly flexible. I thought that it might well be convenient for the person who is going to mediation to pay at that time. I can see that certain problems might arise in some circumstances in relation to that.
So far as concerns the legal aid matter, at present I think I am right in saying that where legal aid is given for advice and assistance—for example, ABWOR—the contribution is paid to the solicitor, but where contributions are payable in relation to civil legal aid they are payable to the Legal Aid Board. I believe that the size of the contributions has something to do with that distinction in practice. I am content to consider this matter further in the light of the present attitude of the mediation organisations. It is an important issue, and I am grateful to the noble and learned Lord for raising it.
We come to Amendment No. 174. In a way I am slightly surprised to find the noble Baroness seeking to force me to apply the statutory charge to mediation. She obviously has a concern for Her Majesty's Treasury, which is interesting, but I should have thought it wise to leave that as a discretionary power, because I want to see how the whole thing works. Apart from anything else, mediation will apply to children's disputes where there is no question of the statutory charge applying, because no property is recovered or retained. There are pressures to apply the charge. Obviously the public purse might be interested in that. On the other hand, I am anxious to see how the mediation works in practice before deciding what should happen in relation to the statutory charge, and how it should apply if it is decided to apply it in respect of mediation costs.
Apart from anything else, the statutory charge, if it goes on, involves a degree of cost of enforcement, and so on. It is not a straightforward matter. Costs are involved in relation to the statutory charge. Depending upon the level of the mediation charges and costs, we may need to be careful.
1207 I was asked about the provision of legal advice in relation to mediation. As my noble and learned friend Lord Simon of Glaisdale said, there can be no question of representation covering the same area as mediation. That would not be appropriate. On the other hand, legal advice may he required in relation to mediation; for example, on the question of whether or not a mediated settlement is a reasonable one having regard to all the circumstances. I hope that I may be able to develop a standard way of handling that by having a standard fee for the sort of legal advice that might be required on average. There may be exceptional cases, but it may be possible to deal with them. All that is covered under the present Legal Aid Act. We are extending that to mediation but all the machineries of the Legal Aid Act continue to apply.
In Amendment No. 175 the noble Lord, Lord Meston, took us to Hong Kong and to the washing machine. My understanding is that Section 16 of the Legal Aid Act 1988 does the same in respect of the charge for legal aid and I have slavishly followed that provision. If one were to impose a statutory charge in respect of mediation, as his noble friend would wish and oblige me to do, it would seem right to apply the same kind of conditions as apply to legal aid.
I do not believe that Amendment No. 176 adds a great deal. The idea of Clause 24 is to suggest that proceedings relating to family matters are more appropriate for mediation than for litigation. That is the general principle, but obviously it would yield to particular circumstances. That is what the insertion of the word "usually" is intended to do, but I believe that it is implicit in the present situation.
I do not believe that the noble Earl, Lord Russell, mentioned Amendment No. 178. Perhaps I may say for brevity that the circumstance mentioned there would be covered by the regulations which would proscribe descriptions of proceedings. I believe that the noble and learned Lord, Lord Archer, mentioned that circumstance as one of his examples, most of which it would be perfectly appropriate to cover in the regulations. I believe that I have dealt with most of the amendments.
As I am dealing with mediation and what that involves, it may be worth while to put on the record a note which was issued earlier today by the Family Mediators Association and the National Family Mediation. They stated:It is the current practice of family mediators to establish with the couple at the outset of mediation whether they each believe that the marriage has broken down. If there is any indication that they are not agreed, or that they are not certain, then the mediator will explore this and refer them if they are willing for marriage counselling. Throughout the mediation process the possibility of reconciliation is kept under review by the mediator and if any uncertainty emerges about whether the marriage is over or not, he or she will explore this with the couple".That puts more eloquently what I was trying to say about the process of mediation.
I believe that in respect of Clause 24 there are good reasons in principle why mediation is to be preferred in the interests of all the parties. However, it is right to allow certain types of proceedings to be taken out. That is best done by a regulation-making power because 1208 experience might suggest some new type of circumstance emerging. Rather than trying to achieve everything in primary legislation, that seems appropriate. I believe that the Delegated Powers Scrutiny Committee had no adverse comment to make on this aspect of the Bill.
§ Lord Archer of Sandwell
Unless the noble Baroness, Lady Hamwee, or the noble Lord, Lord Meston, wish to reply in relation to their amendments, perhaps I may say that I am most grateful to the noble and learned Lord for his replies in relation to Amendments Nos. 172 and 173.
He expressed some puzzlement as to the distinction between the text in the Bill and the amendment. The distinction is as to who applies the judgment. Under the Bill it is the judgment of the mediator; it must appear to the mediator that mediation is the appropriate procedure. He makes the decision, taking into account the parties and the circumstances. The amendment transfers the party from the position of being the object of the consideration to being the subject, if I may put it in that slightly obscure way. The mediators and the parties together apply the judgment, and they apply it to the situation. It is a slightly different arrangement of the same three words. It transforms the judgment of the mediator alone into a joint judgment of the mediator and the parties.
As the noble and learned Lord has said, it is unlikely that mediation will go ahead unless the parties can be persuaded that it is the most appropriate course. I understand that. The real purpose of the amendment was so that the noble and learned Lord could say what, in effect, he did say.
I was particularly grateful in relation to the regulations under Clause 24 that the noble and learned Lord said that he was minded to set out the categories I cited. That will put a number of minds at rest. But, having taken out those categories, there still remain the other cases where someone still has to supply a judgment. If that is recognised, people will he quite happy about the situation.
§ The Lord Chancellor
I am not sure that I made an important point clear to the noble and learned Lord. The provision in the Bill includes a decision by the mediator as to whether mediation is suitable having regard to the parties. It is possible that the mediator will give a judgment on the parties which would preclude mediation. One can think of possible examples. I do not think the noble and learned Lord's amendment would permit that; I am not certain about that.
§ Lord Archer of Sandwell
I am grateful to the noble and learned Lord for pointing that out. As I said in introducing the amendment, sometimes the parties are not appropriate. For example, the mediator may take the view that a party has demonstrated a lack of commitment to the process of mediation. I think we are very much ad idem on that. I am happy to reconsider whether any doubt has been cast on that by the form of the amendment. It is something which we can each reconsider before Report stage.
1209 As to Amendment No. 173, I was a little puzzled when the noble and learned Lord said that he wanted to leave this flexible. I am not sure how to whom the contribution must he paid or who is responsible for collecting it can be left flexible. One has to make a decision one way or the other. I appreciate that there are arguments as to who should be landed with the duty of collection, but a decision has to be taken at some stage. However, I am perfectly content that we do not take it tonight.
§ Baroness Hamwee
On that last point, I think it was the flexibility of the charge to which the noble and learned Lord replied. I understood that he would consider further the question of collection, as to whether it should be the mediator or the Legal Aid Board.
§ Lord Archer of Sandwell
If I misunderstood what the noble and learned Lord said, it is because I am unusually somnolent at this hour of the evening.
§ The Lord Chancellor
The noble and learned Lord is not somnolent at all. I did say I would consider this matter. It may be that it should be left open, but I certainly want to consider it. Some of the views of those I have consulted may have changed a little—I am not unfamiliar with that happening—so it may be that we should make a change.
§ Lord Archer of Sandwell
I am grateful for that. It is a pleasure doing business with the noble and learned Lord.
I was not sure whether the noble and learned Lord was leaving flexible what was going to be the final form of the Bill, or whether it might be his intention that in the final form of the Bill the matter should be left flexible. That would be undesirable. As we have resolved that confusion, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 172A not moved.]
§ Clause 22 agreed to.
§ Clause 23 [Payment for mediation]:
§ [Amendments Nos. 173 to 175D not moved.]
§ Clause 23 agreed to.
§ Clause 24 [Mediation and civil legal aid]:
§ [Amendments Nos. 175E and 176 not moved.]
§ Lord Irvine of Lairg moved Amendment No. 177:
Page 14, line 12, after ("matters,") insert ("except where either party to the proceedings does not agree under section 12 to take part in any mediation").
The noble Lord said: Clause 24 adds the following provision to the Legal Aid Act:
(3F) For the purposes of determining whether to grant representation for the purpose of any proceedings, recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except—
I emphasis the words, "is to be considered" as more appropriate than "taking proceedings". The effect of the provision is to place upon the Legal Aid Board in divorce cases the duty in the generality of case to refuse legal aid representation in favour of mediation. The clause means that the Legal Aid Board must—not may—refuse legal aid representation in family proceedings on the ground that mediation is to he considered as more appropriate than taking proceedings. That is the basic principle. The Bill states that it will be subject to exceptions, but they are not defined in the Bill. We invite the noble and learned Lord to tell us, broadly, what those exceptions are to be. We made the same invitation to the noble and learned Lord on Second Reading, but he did not find it appropriate then to respond. We hope that he will do so on this occasion.
In Committee on Tuesday last, when replying to my noble and learned friend Lord Archer of Sandwell who had moved Amendment No. 82, the noble and learned Lord the Lord Chancellor said:
The purpose of the later clauses which deal with mediation is to extend the remit of the Legal Aid Board to permit it to finance mediation. We have a clause that gives a degree of emphasis to mediation. However, the general principles of the Legal Aid Act, and the references in that Act to legal advice and representation, are not affected. It is an extension of the scope of legal aid. As everyone knows, I have proposals for a more radical reform of legal aid, but so far as this Bill is concerned the present Legal Aid Act applies".
The noble and learned Lord then added:
What I seek to do is to extend the scope of it to include the funding of mediation, with the principle in favour of mediation where that is appropriate".—[Official Report, 23/1/96; col. 1001].
However, Clause 24 does not enunciate a principle in favour of mediation where that is appropriate. It is a direction to the Legal Aid Board to consider mediation in family proceedings as more appropriate than taking court proceedings. The clause says in plain terms that, in considering the decision of whether to grant representation for the purposes of proceedings relating to family matters, mediation "is to be considered"—not may be considered—
as more appropriate than taking proceedings".
§ Therefore, that is the position that the Legal Aid Board must—not may—adopt. That is emphatically not a presumption. In the generality of case, the Legal Aid Board must regard mediation as more appropriate. If an exception applies, then mediation need not be regarded as more appropriate. But we do not, as yet, have the least idea what the exceptions will be. The point is that, in the generality of case where no exception applies, mediation is to be regarded as more appropriate than taking court proceedings. That is not a presumption. It is an invariable direction to the Legal Aid Board in the generality of case to which no exception applies.
§ Clause 24 will bite on cases where parties under the existing rules would be eligible for legal aid for representation in proceedings relating to family matters; for example, disputes about periodical payments, division of family assets or, more importantly, children. The Legal Aid Board is to be required to say: "We know that you do not agree to mediation; nonetheless, we are obliged to regard mediation as more appropriate, whatever you may think, so there will be no legal aid for court representation but we will support you in 1211 mediation". If that is to be stated, at the same time as it is asserted that mediation is voluntary, most people would think that the assertion was a hollow one.
§ The purpose of the amendment is to qualify the direction to the Legal Aid Board that is contained in Clause 24 by a provision that mediation is not to be considered as more appropriate than taking proceedings where either party to the proceedings does not agree under Clause 12 to take part in any mediation. Unless the amendment is agreed to, mediation will not truly be voluntary, because the Legal Aid Board will have to say to applicants who are asking for legal representation in proceedings relating to family matters: "It is up to you whether you agree to mediation, but legal aid is available only for mediation and, if you do not agree to it, there will be no legal aid for representation in court".
§ We look forward to the noble and learned Lord's response to the amendment. Noble Lords will recognise that it in no way increases public expenditure. Its object is to preserve the present position where legal aid is available for legal representation in cases where a party does not agree to take part in mediation. I beg to move.
§ Lord Coleraine
In reply to the last amendment the noble and learned Lord stated that the inclusion of the word "usually" by the noble Lord, Lord Meston, was not necessary. I thought that he was disagreeing in advance with the statement that the noble Lord, Lord Irvine of Lairg, has just made. However, at the time I realised that that could not be correct and that the noble Lord, Lord Irvine of Lairg, is right. Assuming that he is correct, what will happen when one party is willing to mediate and the other party is forced to go to court? I presume that one or both of the parties would be entitled to legal aid.
Having said that, I think that the noble Lord, Lord Irvine, is mistaken about Clause 12 because it does not impose on any party a liability to mediate. It enables the court to send parties away, once they have started to litigate, to be told the advantages of mediation. At the end of that process the person who gives that explanation has to produce to the court a report stating that they have done so and stating whether or not the parties have complied with the direction and, if they have, whether they have agreed to take part in any mediation. The clause does not contain any threat, inducement, incentive or compulsion on the parties to mediate. The final part of the clause is merely for the purposes of giving information to the court which would want to know the situation when the parties went away to be told about mediation.
§ Baroness Hamwee
I should like to support the noble Lord in his amendment, which goes to my decision to put down a Motion that the clause should not stand part of the Bill. It may be possible to debate the two together. I hope that we receive a sympathetic hearing by the noble and learned Lord the Lord Chancellor.
I should like the provision to make clear that either party can withdraw the agreement to mediation at any time and then the legal aid for representation kicks in.
1212 I, too, had marked the passage in Hansard which has been quoted and a passage at Second Reading. The noble and learned Lord, the Lord Chancellor, said at col. 704 of the Official Report of 30th November 1995:I am not intending that mediation should become compulsory—compulsory mediation quite simply does not work, and is a contradiction in terms".One cannot begin to argue with that. He also stated:Legal representation will be available for eligible parties when mediation is not suitable for the parties or appropriate for the circumstances of the case".On re-reading that passage, I realised that the noble and learned Lord was suggesting that legal representation and mediation were being described as alternatives. That is where I become concerned.
I shall not take up the time of the Committee by repeating the arguments so powerfully made by the noble and learned Lord. I believe that the prescribed circumstances are of such importance that we should look at the detail at this stage if we are to consider the clause without the proposed amendment. The amendment is fundamental to our acceptance of the clause. It would be entirely wrong to introduce what might become a two tier system—proper legal advice and representation for those who can pay for it and compulsory mediation for those who do not have the funds.
We are all concerned about the size of the fund available. I know that the noble and learned Lord the Lord Chancellor shares that concern. I referred earlier to the explanatory and financial information which commented that the Bill was designed to be cost neutral. As we were reminded earlier, that was with regard to the Bill as presented; that is, direct legal aid. Therefore, it is suggested that no additional legal aid funds will be available in total. Legal aid is rationed now, but if it has to be rationed also with regard to mediation and legal advice, the point should be made that in general men will buy advice and women will not receive it. There is a discrepancy between the assets of men and women and as regards eligibility between men and women.
The noble and learned Lord the Lord Chancellor said that he was surprised at my amendment on the statutory charge, and wondered about my concern for the public purse. I do have a concern; that the public purse is adequate for its purpose and its size is a material consideration.
It used to be advantageous for tax reasons to get married at a specific point in the financial year. If those contesting for legal aid funds have to take account of the fact that the fund may run out at some particular point they may have to consider getting divorced at a specific point in the financial year before the available funds have run out. I support the amendment.
§ 10 p.m.
§ Earl Russell
Not having spoken for nearly five hours I hope that I may be forgiven for taking enough of the Committee's time to congratulate the noble and learned Lord on his stamina, which is truly formidable. I should like to thank him for proving me right in not taking the 1213 time to speak to my Amendment No. 178. I am entirely reassured by what he said about it and I am most grateful.
However, on this amendment I share a number of the concerns expressed by my noble friend Lady Hamwee. The noble and learned Lord may remember, although it is a long time, about two years ago, kindly giving me a meeting on the subject, before the White Paper. He was extremely helpful then and I was concerned to know how far mediation would be voluntary. He gave me the assurance that it would be and if I remember rightly he used the phrase that "You can take a horse to water but you cannot make it drink". That is clear. However, to be truly voluntary it must be such that you can refuse to undertake it without suffering any evil consequences. That is where I am worried by the wording of Clause 24. On 10th January the noble and learned Lord kindly sent me a long and extremely helpful letter which I have read many times. He wrote:The effective clause is not intended to be that the Legal Aid Board is under a duty to refuse legal aid representation in favour of mediation".I shall be interested in the resolution of the technical conflict between him and the noble Lord, Lord Irvine of Lairg, on that point. If the wording is ambiguous, then it needs clarifying.
The noble and learned Lord's letter continued:Clause 24 is intended to be read as a presumption in favour of mediation which may not apply in certain types of cases or may he rebutted in certain circumstances. The effect is intended to be that, all things being equal, mediation should be considered more appropriate than representation".I understand his point that exceptions are to be made to that by regulation. I appreciate what he said about the content of the regulation, but what worries me is that, with those people for whom there is a presumption in favour of mediation, if they do not wish to accept that presumption and go into mediation, exactly what happens to them? The noble and learned Lord is quite right that you cannot have effective mediation between unwilling parties. The right reverend Prelate mentioned the danger of people with financial difficulties being pushed unwillingly into mediation because it is cheaper. For unwilling people, mediation can be an extremely intrusive process and may create a sense of impertinence which will not help with making progress. If possible, I shall want clear assurances that, if people decide that mediation is not appropriate for them, they may do without mediation without suffering for what they do. It is only with that assurance that I would truly be convinced that mediation is voluntary.
§ The Lord Chancellor
The noble Earl, Lord Russell, quoted from my letter written some time ago. It explained the position as I understand it. First, Members of the Committee must read Clause 24 in the light of Clause 22, particularly the part which was the subject of Amendment No. 172 tabled by the noble and learned Lord, Lord Archer of Sandwell. It states that: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".1214 That is our condition which is to be taken into account before one comes to Clause 24. I understand by Clause 24 that the Legal Aid Board has to have in mind that,recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except … in relation to prescribed descriptions of proceedings or … in prescribed circumstances".Certainly it is clear that, where either party to the proceedings is not prepared to take part in mediation, mediation is not suitable to the dispute, the parties and all the circumstances. I cannot see that a mediator could possibly regard mediation as suitable for a dispute where either party was not prepared to take part in it. That seems to me to dispose of that particular matter. I certainly intend that Clause 24 should apply, subject to that clause. That is what is intended. In other words, it is intended that in relation to family matters mediation is more appropriate than taking proceedings. It would be more appropriate only in cases to which Clause 22 applied. I have been kindly handed a copy of the letter, but I think I remember what the circumstances were.
The noble Lord, Lord Irvine of Lairg, said that I have not given any indication of the circumstances to which this would apply. I tried to do so in reply to the noble and learned Lord, Lord Archer of Sandwell, who kindly provided me, as a good start, with a list of circumstances of his own. Very many of the circumstances are pretty obvious. Certainly in situations where the parties are apt to be violent towards one another it might be all right for a court, as my noble and learned friend Lord Simon of Glaisdale said earlier, but I do not believe a mediator would have quite the same position in relation to that situation as would a judge.
My main point in regard to mediation is that for it to work people have to be willing to speak, to communicate. Mediation relates effectively to communication. It is difficult to mediate in a communication if neither party, or one of the parties, is not prepared to speak at all. That is my basic approach.
My noble and learned friend Lord Simon of Glaisdale believes that it is possible to have compulsory mediation. I do not find it easy to disagree with him on many points, but I do find it necessary to disagree with him in this respect, for the reason I just sought to explain.
This amendment, as was pointed out, is inappropriate in its reference to Clause 12. I think that would probably be accepted. So far as I am concerned it is inappropriate in the light of Clause 22. If the noble Lord is not satisfied with my explanation so far, I can certainly readily deal with the matter by undertaking that it would be one of the clauses of the excepting regulations just to put the matter beyond all doubt. That is one of the reasons why it is quite good to have a flexible power in this connection. Other circumstances might appear in which that would be so. That is why I say it is a matter of principle, and then the exceptions are provided under the regulation-making power.
§ 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, 1215A 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; 1216 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 1217 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.
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.
§ 10.30 p.m.
§ Lord Simon of Glaisdale moved Amendment No. 179:
Before Clause 25 insert the following new Clause—
(" . Schedule (Matrimonial Homes (Co-ownership)), which makes provision for statutory co-ownership of matrimonial homes and other provision as to the rights of husbands and wives (whether during the marriage or after its termination), and to extend to engaged couples certain rules applying to married couples, shall have effect.").
§ The noble and learned Lord said: I am moving Amendment No. 179 and with it speaking to Amendments Nos. 180 and 181. They introduce three new schedules. I am speaking also to Amendment No. 207 at pages 16 to 24 of the Marshalled List, which deals with co-ownership of the matrimonial home. Amendment No. 208, pages 34 to 39, deals with co-ownership of the matrimonial goods and Amendment No. 209, page 40, deals with other matters relating to matrimonial property.
§ All three schedules reproduce Bills which were recommended and drafted by the Law Commission. I would have preferred to insert them in the Bill as separate parts, Parts IV, V and VI. But I was advised by the Public Bill Office that the only way to introduce them—they fall within the scope of this Bill—was by making them schedules.
§ I am grateful to the noble Lord, Lord McGregor of Durris, for adding his name, though he cannot be here, and to the noble Baroness, Lady Faithfull. My noble and learned friend, who also, under most unhappy circumstances, cannot be here, has written to support me.
§ I propose to deal with these matters more shortly than the Committee is entitled to expect in view of the importance, length and complexity of the first two schedules. But it is very late at night and I shall not go into the details of any of them. I hope the Committee will excuse that course; it is not to be taken as any slight to the Law Commission or to minimise the importance of these, its recommendations.
§ I must say a word about the background of the schedules and the Bills that were drafted. In 1979 the Law Commission made a third report on matrimonial property and annexed to it three draft Bills; the first related to the co-ownership of the matrimonial home, which is now Amendment No. 207; the second to assuring rights of occupation in the matrimonial home, which really completed the work of the late Lady Summerskill and was subsequently enacted as part of our law of matrimonial property after divorce. The third Bill related to co-ownership of matrimonial goods; in other words, Amendment No. 208.
§ In July 1979 I introduced a debate in your Lordships' Chamber on that report and therefore on the Bill. There was strong support for the home co-ownership Bill and considerable support for the goods co-ownership Bill, though less unanimous and less unreserved than that relating to the home. But in view of that debate, I introduced a home co-ownership Bill early in the following year. In the meantime, or perhaps a little before, there had been a survey 1219 commissioned by the Law Commission which showed that more than 90 per cent. of all married men canvassed and more than 90 per cent. of all married women canvassed approved of the principle of co-ownership.
§ The Second Reading was in February 1980 and again there was strong support for that Bill on home co-ownership. The noble Lord, Lord Boston of Faversham, was the Labour spokesman and on behalf of his party he strongly supported the Bill. I hope that that will be echoed by the noble Lord, Lord Irvine of Lairg. Perhaps I should point out that there are some electoral lollipops in this because in February 1976 a general election in New Zealand was won on the basis of the co-ownership of homes and goods. I say that merely to encourage the noble Lord.
§ Apart from the noble Lord, Lord Boston, the noble Baroness, Lady Seear—I am glad to see that she is still in her place—supported the Bill strongly on behalf of her party, and a great many noble Lords in all parts of the House, including my noble and learned friend Lord Scarman, also supported the principle.
§ There were two reservations. The noble Lord, Lord Middleton, on behalf of the Historic Houses Association was worried about the effect on historic houses. My view was that the Bill took care of that, but in any case I negotiated an amendment with the association's legal adviser. It is not in the schedule because nobody could find the correspondence until after I had tabled the schedule, but its provisions could be introduced at a later stage if necessary.
§ The other reservation came from the then Lord Chancellor, my noble and learned friend Lord Hailsham, who in view of the strong support—indeed, it was unanimous support, with the exception of the noble Lord, Lord Middleton—felt it necessary to act on that occasion as, as he described it, "devil's advocate".
§ The subsequent history was this: my noble and learned friend asked me later in the Session whether I would withdraw the Bill so that it could be considered further by the Law Commission in the light of a case in your Lordships' House involving Williams & Glynn Bank which dealt with the highly technical matter of overriding interest. I did not think that any amendment was necessary, but naturally I agreed with my noble and learned friend and withdrew the Bill.
§ I had an additional reason. As your Lordships can see from Amendment No. 207, that Bill was highly technical property legislation and was by no means within my sphere of experience and I thought myself inadequate to carry it through without assistance. If I felt inadequate when I was 70, your Lordships can imagine what I now feel 15 years later. However, I thought it right to lay it before your Lordships.
§ Why is that desirable? It has been common ground in our debates that the law can affirm and strengthen the institution of marriage. In the debate on the Queen's Speech I suggested two fiscal ways in which that could he done: the married couple's allowance and a differential succession duty in place of inheritance duty. I mentioned also these two outstanding Bills. There is also the attraction of the Scottish law of succession 1220 which takes much more notice of family relations than ours, but I was advised that that was outside the scope of the Bill.
§ Secondly, co-ownership reflects the concept of marriage as a partnership of two equals. Thirdly, the matrimonial home is essentially the sphere of a married woman. Fourthly, and arising out of that, as the Law Commission pointed out, in order to enjoy legal rights in her sphere (the matrimonial home) the married woman would have to become either a widow or a divorcee. Obviously the law cannot decently be left in that condition, hence these amendments. Divorce by unilateral repudiation has made this reform more than ever necessary.
§ I must say a brief word about the third new schedule (Amendment No. 209). That is a recent provision drafted by the Law Commission in its report of 1988. In a still more recent Written Answer in reply to a planted Question in each House, the Government do not accept that Law Commission proposal. They assign no reason for saying that. I have added that schedule so that my noble and learned friend can explain why that has been rejected, and whether he accepts reform in this branch of the law, because, after all, the proper priority would seem to be measures to affirm marriage rather than measures facilitating—to put it at its lowest—dissolution of marriage.
§ What course should be taken in regard to the Bills which are now Amendments Nos. 207 and 208? The most satisfactory course would be for my noble and learned friend to accept the amendments, to assume responsibility for them, taking them out of my grateful hands and probably referring them to a Jellicoe Committee. Next to that would be for my noble and learned friend to say that he will, at an early opportunity, bring in a Bill, at any rate in relation to the matrimonial home, and also, desirably, in relation to matrimonial goods. I have skirted over this matter. I hope that at this hour the Committee will excuse that. I beg to move.
§ Baroness Faithfull
I shall make the shortest speech on record. I support the noble and learned Lord, Lord Simon of Glaisdale.
§ 10.45 p.m.
§ The Lord Chancellor
I am grateful to my noble and learned friend for raising these matters. The amendments bring forward the results of three reports by the Law Commission relating to the matrimonial home and matrimonial property. The situation as I see it is that at present in England and Wales we have a system of separate ownership of property during marriage. There is no regime whereby spouses automatically become co-owners of the home by virtue of marriage. However, on the whole, spouses are free to decide for themselves how they wish to hold property during marriage. The ordinary rules of property apply. There are few exceptions; for example, the presumption of advancement can mean that a husband who transfers property to his wife is presumed to have intended the transfer to be a gift.
1221 The main advantage of our current system is that spouses have complete freedom of choice as to how they should own property during marriage and also freedom as to the timing of when they should make decisions regarding such matters. There is nothing to stop spouses deciding to be joint legal owners of the matrimonial home or to agree that certain chattels should belong to one party or the other.
Although spouses have no automatic right of ownership of either's property during marriage that does not mean that they have no rights in respect of that property at all. If, for example, the husband is the legal owner of the home and the wife has no interest in it she does have automatic occupation rights under the Matrimonial Homes Act 1983, which is re-enacted in Part III of the Bill. Such rights are referred to in this Bill as matrimonial home rights. These rights of occupation give the wife, among other things, the right to apply for an order ousting her husband from the home. Once the rights are registered no prudent purchaser of the home will proceed to completion until such time as the rights are released. If a spouse has an interest in the home which is registered land, she will have a measure of protection for her interest, even though it is not registered, so long as she is in actual occupation of the property. If the husband should fail to make reasonable provision for the wife on his death she can make an application for such provision under the Inheritance (Provision for Family and Dependants) Act 1975.
§ The Lord Chancellor
I believe that it depends whether she is a dependant. The way in which I put it implies that she would be a widow because I said that, if the husband should fail to make reasonable financial provision for his wife on his death, she can make an application for such provision under the Inheritance (Provision for Family and Dependants) Act 1975. A provision for the wife on the husband's death would seem to imply—
§ Lord Simon of Glaisdale
That was exactly the point that the Law Commission made. She must either be a widow or a divorcee to acquire rights to the matrimonial home.
§ The Lord Chancellor
By virtue of inheritance she can obtain occupation rights as a wife in occupation, as I said.
As regards the matrimonial home, the Law Commission, in its report on matrimonial property in 1988, questioned whether further statutory intervention was needed. The reasons for doubting whether further intervention was required were threefold. First, there is the automatic protection given to a spouse who has an interest in registered land if she is in actual occupation of the home, to which I have referred. Secondly, a substantial number of matrimonial homes were at that time and still are purchased in joint names. Thirdly, 1222 spouses are more likely to receive legal advice when purchasing a home than when purchasing other property.
That position means that under our present system husbands and wives are free to agree the way in which any property in which either of them has an interest is held as between them. As my noble and learned friend knows, the exemptions in relation to the capital taxes allow transfers as between husband and wife to he free from such taxation in respect of these transfers. So there is a complete freedom during marriage for parties to arrange property rights between them.
I understand well the considerations which led the Law Commission to make these proposals. I intended in the Bill to deal with the divorce process and the other matters connected with the support of marriage which have now been dealt with, and the extension of legal aid to mediation in relation to matrimonial disputes. I did not intend to deal with the detailed provisions in respect of the family property at this stage.
There are arguments, as my noble and learned friend has said, for considering this matter further. The present situation, if it were to be changed in the way the Law Commission suggest, would involve quite a degree of transitional difficulty for fairly long-term consequences. I intend that the Law Commission should review the whole of this area and bring these matters up to date. The first two of the reports referred to are now quite elderly.
In that situation, I hope that my noble and learned friend will feel that he has served an important purpose by bringing these matters again fully to our attention. I am glad that the 15 years which my noble and learned friend referred to, at least from my perspective, does not seem to have produced any diminution in his powers of advocacy or analysis.
It would be unwise to embark in this Bill on a detailed review or a detailed change of this area without a more modern consultation upon it than we have as yet.
§ Lord Simon of Glaisdale
Will my noble and learned friend deal with why the Government rejected the 1988 proposal? He will correct me if I have misunderstood, but he implied that it was because he had asked the Law Commission for a fresh appraisal of the whole situation. Perhaps he will clear that matter up.
§ The Lord Chancellor
I think the reason we had in mind was what I have indicated—that the Law Commission itself in 1988 questioned whether further statutory intervention was needed in respect of the matrimonial home, which, in a way, is the central part of these proposals. It is not the only part but it is the central part, for the reasons that I indicated, and I believe that those were quite good reasons.
However, an additional factor which I mentioned in the course of my submission to the Committee was that a change of this magnitude in property rights as between spouses would involve a good deal of transitional difficulty and possibly litigation and we were not, at that stage at any rate, assured that the difficulties would be 1223 ultimately, as it were, repaid by the benefits to be reaped after some considerable time before this new regime would settle down.
§ Lord Simon of Glaisdale
I am most grateful to my noble and learned friend for replying to the debate. I am sorry that we did not have a contribution from either of the Opposition Front Benches. Perhaps the noble Lord, Lord Irvine, modestly felt that he could not improve on the commitment of the noble Lord, Lord Boston of Faversham—a commitment of his party. Moreover, perhaps the noble Baroness, Lady Seear, was too modest to repeat what she said so effectively when I introduced the Bill.
My noble and learned friend said that the parties are entirely free at present to make what arrangements they may wish to make as to ownership of the matrimonial home. That is absolutely true. The Law Commission, both in its Bill and in its report, expressly left open the right to any couple to make their own arrangements. The Bill was only intended for use in default. The situation is that the law does not really exist for those who do not need it—that is, those who live in amity and make their proper arrangements as to the matrimonial home. The law exists primarily to deal with social, pathological situations; indeed, the sort of situations where the married woman is left without any right in her matrimonial home.
I gather that my noble and learned friend—no doubt he will correct me if I misheard him—is prepared to ask, or has asked, the Law Commission to re-examine the whole situation. We have now waited 15 years—indeed, married women have waited 15 years—for elementary justice. There is no reason why they should be kept waiting much longer. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 180 and 181 not moved.]1224
§ Clause 25 [Rights concerning matrimonial home where one spouse has no estate etc.]:
§ The Lord Chancellor moved Amendment No. 182:
Page 15, line 17, leave out ("(6)") and insert ("(5)").
§ The noble and learned Lord said: In moving the amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 183, 186, 187 and 210. The amendments arc grouped together because they are all of a technical nature and are being made to correct drafting matters arising out of the putting together of the Family Homes and Domestic Violence Bill from the former Session.
§ Of course, when Parts I and II of this Bill were drafted, I intended to present them separately from Part III which I had hoped might have achieved Royal Assent by that time. However, Members of the Committee know well that, due to an unforseen circumstance, my expectation was not realised. As I said, the amendments are of a technical nature. Obviously, I am in a position to explain them further to anyone who may wish me to do so. But, in the absence of such a request, I beg leave to move the amendment.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 183:
Page 15, line 21, leave out ("the spouses in question") and insert ("theirs").
§ On Question, amendment agreed to.
§ Clause 25, as amended, agreed to.
§ Clauses 26 to 29 agreed to.
§ Lord Lucas I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at eleven o'clock.