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Access to Palliative Care and Treatment of Children Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 2:25 pm on 7th February 2020.

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Photo of Lord Balfe Lord Balfe Conservative 2:25 pm, 7th February 2020

I begin by congratulating the noble Baroness, Lady Finlay, an assiduous campaigner who has left her mark on this, the great dividing subject of our age, and will continue to do so. I welcome my noble friend Lord Brownlow and his excellent speech. We heard the voice of responsible capitalism—of a capitalism that pays its taxes, looks after its workers and benefits its country. I am delighted that he has joined us on these Benches and look forward to many future contributions from him.

I shall speak mainly about mediation. When I retired from the European Parliament, I took a course and became a commercial mediator. There is a distinction: a commercial mediator mediates commerce, while a family mediator mediates various bits of family law. The most important thing I learned as a trained commercial mediator was that when we got an agreement, the two parties signed something called a Tomlin order, which had the force of law and could be enforced. My group of mediators saw that one of the weaknesses of family mediation was that it often gave rise to second thoughts within hours of the agreement being reached. Some of our family mediators found it very frustrating that they could spend a huge amount of time coming to an agreement which then did not sustain itself for very long.

In this excellent Bill, there needs to be a clear determination of what is being mediated. Is it the treatment, the future or a particular point of the treatment? If you do not have the question “What are you mediating?” to put before the mediator, it will not work. Once you have decided what is being mediated, the second question that has to be answered is “Who decides the mediator?”. In commercial mediation, it is normally the two parties who have to agree. In our corner of the world in East Anglia, the judge in the Peterborough court was very fond of sending things to mediation. He would say to the parties, “If you bring this to court, you will have two sets of barristers’ fees for a least two or three days. In the end, I will make a decision; one of you will be dissatisfied because I can make a decision only on what is before me. If you take part in mediation, you can adjust what is decided; you can make a decision between you. You can have a legal basis for that decision, but you have to decide on the mediator.” There were panels from which mediators could be chosen. I never quite worked out what my USP was, but I did not go too short of work. I think it was because of having been in European institutions. People said, “He knows beyond East Anglia.” I do not know, but the important thing is that you have a clear perspective on how the mediator is to be chosen. Coming out of that, a question that needs addressing—I do not propose to table amendments—is the extent to which an NHS panel of mediators will automatically be acceptable, or whether something wider is needed. That will be quite important.

I take the point about Clause 2(4), but it is always very difficult to decide whose interest is there. A mediator cannot determine something in anyone’s interest. The first thing you have to do is sit people down and listen, generally completely separately in the beginning. My first stage was always a listening session, and it could go on for a couple of hours. The important thing was the people poured out their heart and said what the basis was. You could not cut them off; if you tried to do so, it would not work, because they did not feel committed or that you were listening. They felt you wanted to get home for tea, or something. You had to listen, and only after you had listened to both sides might you bring them together.

You might talk to them separately, but one of my key points is that mediation has to be a flexible weapon. You cannot just say, “You have to go and mediate”, because I would find that in about 7% or 8% of cases, people would walk into the room determined not to settle, and they would not settle. I found that in about 15% of cases, they walked into the room thinking that they certainly were not going to settle, but once you had coaxed them along, they often would. There was another percentage beyond that where, if you had handled it wrongly, they would have walked out on you and you would not have got anywhere.

I make these points about mediation because I think they are incredibly important for us to take on board. I would be very surprised if the Minister were to jump up and say, “This is a marvellous Bill. Don’t bother with Committee—I accept the lot”, but within the department I ask her to look at local experiments, as I think of them, or local actions, to see whether the basic principles are roadworthy, to what extent they could work and to what extent we can get feedback. Part of the reason for doing things locally—for experimenting—is to find out whether they work.

I hope that the Minister will at least give the Bill a good welcome and commit, in some form or other, to find a way forward, with the noble Baroness, Lady Finlay, and everybody else, to move this along the road. I end where I started: this is the great debate of the next 30 years. It is about senior citizens, the end of life and how we deal with perhaps the biggest scandal we have today: the lonely elderly.