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Lord Macaulay of Bragar: My Lords, I join with the noble and learned Lord, Lord Simon of Glaisdale, in extending congratulations from this side of the Chamber to the noble Baroness for the work that she has done in this difficult area of society. The noble and learned Lord has put many propositions before your Lordships' House. I am sure that when we have an opportunity to study them in greater depth noble Lords will find them fascinating. Indeed, perhaps some government departments may even find them fascinating. If I may say so, he certainly raised some interesting matters.
However, as I understand it, the essence of the Bill is simplicity. I would hope that simplicity will be the keynote of family mediation. The noble and learned Lord raised issues which seem to have been matters of correspondence between himself, the noble and learned Lord the Lord Advocate and the noble Baroness to which I have not been privy. Therefore I do not choose to trespass on that ground. No doubt the noble and learned Lord, Lord Rodger of Earlsferry, will deal with those matters when he speaks.
I congratulate the noble Baroness not only on introducing this important socio-legal Bill but also on guiding it through the House with considerable negotiating and presentational skill. I do not wish this to become a mutual admiration society, but I am grateful to her for the kind remarks she made about my contributions to the Bill as it progressed through your Lordships' House. I entirely agree with her that it is a small Bill, but it has large implications. It is hoped that in operation it will bring a civilising influence into an area of life which was, and perhaps still is, associated with animosity and antagonism between parties. Very often the children were the victims while the parties fought their own battles.
During the passage of the Bill reservations have been expressed about certain areas. I know that those have been considered. While the final shape of the Bill will be subject to further scrutinyfor example, in relation to the child under Clause 2 of the BillI agree with the noble Baroness that, as amended, it is a practical Bill. It gives a statutory foundation upon which the people involved in the mediation process can operate. I am sure that the agencies to which the noble Baroness referred will be grateful to your Lordships' House. We hope that the Bill will receive the same consideration in another place.
As is the custom and practice in your Lordships' House, we hope that the Bill has benefited from the scrutiny to which it has been subjected. Once the Bill is brought into operation, its practical functioning will be the real test. Any serious defect which comes to light may be considered in the context of the Children (Scotland) Bill when that legislation comes from another place to your Lordships' House.
The relevance of the proceedings to criminal proceedings is a matter which I raised. Perhaps I sounded a little tedious, but I wanted the point clarified. That has now been done without shadow of doubt, with
The Bill is a good example of non-controversial, purely Scottish legislation which, with co-operation and common sense all round, has been seen through your Lordships' House without undue delay after its introduction. The noble Baroness indicated that she is somewhat intimidated when intervening on Bills of a basically legal content. However, the resolution which she has shown indicates that she need no longer fear lawyers and as time goes on it may be the lawyers will have to fear her. With that concluding remark, I repeat my congratulations to the noble Baroness on the work she has done.
The Earl of Mar and Kellie: My Lords, I join other noble Lords in continuing to support the Bill and in thanking the noble Baroness, Lady Carnegy, for the vigour, energy and enthusiasm with which she introduced it, encouraging us all within and outside the Chamber. I also wish to express my thanks to Susan Matheson, the director of Family Mediation Scotland, for her help and encouragement.
The Bill makes a useful contribution to the social work task of converting the sad area of failed adult relationships and broken homes into the possibility of continuing family life within estrangement. The contribution of the Bill, when enacted, can be characterised in this way. First, I believe that there will be more joint minutes of agreement presented in the divorce courts, both before the sheriff and before the Court of Session. Secondly, I believe that the process will enable separating couples to make workable agreements, workable arrangements for the care of their children in the future and help them become effective parents in estrangement rather than bickering adults. I commend the Bill, not only here but in its passage through another place.
Lord Rodger of Earlsferry: My Lords, I too support my noble friend Lady Carnegy in her Bill. I join other noble Lords in congratulating her on the tact and skill which she has shown in dealing with the various issues which have arisen during discussions in your Lordships' House.
The Bill is relatively straightforward in principle but points were made in our debates which were not without difficulty. As a result of them being raised, the Bill has been greatly improved, but they were not altogether straightforward to resolve. We are grateful to the noble Baroness for all she did to ensure that the difficulties were resolved.
Today the noble and learned Lord, Lord Simon, intervened and, far from that being unwelcome, it is always good to hear him. At the weekend it happened that I was reading one of his most distinguished contributions to Scots law on an appeal some years ago on a matter of assythment. He referred to the "legal Brunnhilde" of assythment in Scotland a very elegant way of putting it. He has intervened to effect in Scots law in the past. He made several points today and I am sure we all agree that, whatever the scope for judge-made law, it was an area in which legislation was required.
The noble and learned Lord raised a question with my noble friend Lady Carnegy as to the precise scope for retrospection in relation to the Bill. For the reasons I gave in correspondence with him, we envisage that it would be best to apply the Bill so that it comes into effect on cases where the evidence is heard after the date of commencement but not those where the evidence has been partly heard, because that could lead to injustice. Subject to that, we are anxious for the legislation to come into force as quickly as possible.
The noble and learned Lord, Lord Simon, also mentioned the general principle that mediation and informal resolution are better than litigation. I am sure that noble Lords agree and there are now facilities for alternative dispute resolution which we hope will lead to such matters being resolved. The noble and learned Lord particularly referred to the role of the family courts. In Scotland, the sheriff court has traditionally been thought of as the best way of dealing with the matters. There are problems over jurisdiction in Scotland, where the smaller population makes it more difficult to have a family court. However, the points which he made will certainly have been noted by us and also by others because his experience in family law is unrivalled. The points made in that connection may arise in relation to the Children (Scotland) Bill.
Finally, it is hoped that the Bill will contribute to strengthening the whole system of mediation. In that spirit, I, like others, hope that the Bill will commend itself to those who deal with it in another place.
Baroness Carnegy of Lour: My Lords, I thank all those who have contributed to the short debate and particularly the noble and learned Lord, Lord Simon of Glaisdale. Having listened to us at some length, he at last spoke and we were extremely interested in what he said. Some of it I shall only understand when I read itif then. I am glad that he agrees with the Scottish Law Commission that in this instance there is no time to wait for judge-made law and that it is right to intervene with legislation for Scotland.
As regards retrospection, I am sure that my noble and learned friend the Lord Advocate will bear what the noble and learned Lord said in mind when, in due time, he makes the order for the commencement of the Bill.
The noble Lord, Lord Macaulay, revealed to me that I had omitted to let him see the letter from the noble and learned Lord, Lord Simon. I thought I had done so and apologise to him. If he would like to see the letter retrospectively, I should be only too glad to provide a copy! The first copy disappearedI know not where. The noble and learned Lord, Lord Simon, forgave me and sent another. He suspects the wastepaper basket, but I am not sure.
The noble Lord, Lord Macaulay, has been anxious about the position of the child right through the proceedings on the Bill. I am sure that he and all of us in the Housecertainly myselfwill pay careful attention when we take the Children (Scotland) Bill through its stages, to ascertain whether the necessary cross references to this Bill have to be made.
I simply say to the noble Lord that the day when lawyers do not intimidate me has not yet arrived. It may come one day, but I find it rather an alarming business when we get into the deep arguments in which we often engage in this House and in which we have been involved in relation to this Bill. I thank the noble Earl, Lord Mar and Kellie, for his kind remarks.
The noble and learned Lord the Lord Advocate responded in part to the noble and learned Lord, Lord Simon of Glaisdale. It will be interesting to see, as the Bill proceeds, and as the Children (Scotland) Bill proceeds, how he can take account of the noble and learned Lord's remarks. I thank all noble Lords for their kind remarks. I commend this Bill to the House.