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Lord Simon of Glaisdale: My Lords, do not the questions that have been raised in the short time following the Statement show the immense importance of noble Lords being vouchsafed a debate? Has not the other place been told in the Statement that it will have a debate? Why should this House be denied one? Is it not proper for the noble Earl to say that there will be a debate, and at a convenient time to be arranged through the usual channels? Is not this hesitation symptomatic of much that is going on in the way of an attempt to marginalise this House in the legislative process? There were a minimum of three working days between Report and Third Reading of the Pensions Bill so that there was no time to correspond with the Ministers. The Finance Bill was put in on a Friday, on a day when the House does not normally sit, and at very short notice. Does not all that show that your Lordships' activities are being subordinated to the Government's desire to use your Lordships merely for processing a vast mass of government legislation? Should not the noble Earl now say, "Yes, there will be a debate and the place and time are for discussion through the usual channels"?
Earl Ferrers: My Lords, that was a forceful intervention by the noble and learned Lord. Indeed, he always makes forceful interventions on matters of constitutional propriety. He will realise that I was repeating a Statement. In the Statement, my right honourable friend said that in another place there would be a debate. But the other place has its own methods and system of arranging debates. It would be inappropriate for me to say that we in your Lordships' House will be guaranteed a debate. I shall undertake to consider very carefully and closely the concerns which have been expressed, not only by the noble and learned Lord but also by the noble Lord, Lord Marsh, my noble friend Lord Boyd-Carpenter and others. This is a subject which could and should be debated.
What I do not intend to doI hope that the noble and learned Lord will acquit me of discourtesyis give a guarantee that that will happen. That is not the way that such things are done in your Lordships' House. They are done through the usual channels and I believe that that is the right way. But I shall certainly bear in mind the concerns that your Lordships have expressed.
Perhaps I may also say that if the noble and learned Lord and indeed anybody else are concerned about this matter, they have the opportunity to table Questions and debates. It is not solely the responsibility of the Government. But I understand the concern that has been expressed.
Earl Ferrers: My Lords, I can assure the noble Lord that one of the ways in which a diminution of public debt is effected is by selling things that are in the public arena. That reduces public debt. There is nothing new about that.
The Earl of Mar and Kellie: My Lords, we have before us today the much heralded and welcome Children (Scotland) Bill, with which, due to effective lobbying, I feel that we have been living for the past six months. The Bill is the first comprehensive look at the Social Work (Scotland) Act 1968 which dominated the lives of my fellow social work students 26 years ago.
The Bill begins by making general statements about the position of children and their parents, upgrading a child's status and giving some guidance about how children should be brought up and parenting conducted even after estrangement. The Bill goes on to look at what happens when effective parenting and family life break down. The much admired children's panel system is overhauled in the light of practical experience and the reorganisation of local government. I am always surprised that, although the system earns so many accolades, it has not been implemented anywhere else in the world.
The vast majority of families who are assisted by the social work departments are helped on a voluntary basis. From the children's panel the Bill moves on to the local authority's duties as discharged by the social work and education authorities. The Bill places a duty on the social work department to prepare, publish and review its plans for child care services. That is set in the context of a new emphasis on the welfare of the child as the primary focus, with a proviso that the protection of the public allows for the use of secure accommodation.
The child's right to give an opinion about its future care is enshrined in the Bill. That increase in the child's right to consent to the care package must be limited to prevent the child from determining how it will be brought up. The child's background must be determined by its parents.
New assessment procedures are to be put into place for children with disabilities and those children affected by the disability of their carers. I am concerned that the "children in need" category may be too narrowly defined and open to misinterpretation. I believe that it should be extended and described as a general welfare duty to supply services to all children in the area. That will prevent a minimalist approach to child care services.
There are proposals to extend the aftercare of children brought up at some time in care. That is okay but I should prefer to see the local authority's duty to those young adults extended beyond 21 and up to 25. I believe that it would be more beneficial if the social work departments were able to keep open the cases of children formerly in care, so that they would, if needed, know who had been their social worker, rather than try to reopen the case with the intake and assessment team when difficulties have arisen.
Within the care system there is a popular belief that getting out of care and away from social workers is a priority. Unfortunately, that subcultural thought contributes to the disturbingly high incidence of homelessness among ex-care people. I strongly urge that those cases should be retained as open but perhaps dormant cases until age 25. That would mirror the continuing interest taken by parents in their children as they progress through adolescence and early adulthood and on to their own parenthood.
There is also new provision for the inspection of private schoolsI understand by the advice given by some lobbyists about the way that some of those schools may be conducted in a somewhat above-the-law style. It is not good enough to allow parents to hand over their children on an in loco parentis basis to people who may treat the children in a manner which may be traditional but may also be illegal. A licensing and inspection system would resolve those difficulties.
The Bill goes on to sharpen the measures for child protection, creating in its wake child assessment orders and child protection orders. That development of the current place of safety order hinges on the new exclusion order which enables the alleged abuser, rather than the child, to be removed from the home. That is a difficult legal rights situation. I am sure that the lawyers among us will be able to help us understand the dilemmas, as indeed they already have done.
I should like the exclusion orders to be on a 60:40 basis, as I recognise that there is a risk of false accusation. That has to be set against the appropriateness of such a measure where the allegation is true. There is also concern that there is no emergency provision for temporary exclusion if a sheriff cannot be contacted. That would result in the child's temporary removal from home for a couple of days after being abused. The provision is better than the status quo but is perhaps not ideal. Reports from abused children suggest that any removal from home is a double insult. It would be helpful if an exclusion allowance could be provided to the excluded person under Section 12.
The Bill moves on to deal with the final breakdown of family life. The local authority will be able to apply for a parental responsibility order. That is new terminology for the assumption of parental rights by the local authority. That measure has the merit of allowing continuing parental contact and perhaps even home placement. It deals with parental inadequacy rather than child behaviour.
Should the parental situation deteriorate totally, then adoption becomes a distinct possibility. The Bill allows adoption agencies to make available an adoption allowance to the adopters of older children who may not otherwise be acceptable for adoption. Recognising that
Finally, I return to the first clauses and the general guidance that the Bill gives to parents. I welcome any attempt to give guidance to parents as I believe that many of today's parents have lost confidence in their own ideas regarding the style and shape of family life. The ever-widening knowledge of different lifestyles which invades the home through all forms of media has knocked away traditional values and left uncertainty. Also, it would be helpful, for example, if the Bill confirmed that open-hand smacking is OK but that the use of closed hands or instruments such as sticks is not.
Lord Hope of Craighead: My Lords, I cannot conceal from your Lordships the pleasure which I feel in being able to contribute in a small way to this debate. My introduction to your Lordships' House came just too late for me to play any part in the debates on the Criminal Justice (Scotland) Bill. That is something which I regret. But I am fortunate in that I am the holder of two judicial offices, not one. I can change the colour of my robe according to the subject matter, rather like a chameleon. In criminal matters my eyes and ears are those of the Lord Justice General; in civil matters, especially those which affect the work of the Court of Session, my eyes and ears are those of the Lord President. It is a matter of particular pleasure to me that this Bill is dealing almost entirely with matters which affect my responsibilities as Lord President.
That is significant for one specific reason; it underlines one aspect of what has been achieved in the past 25 years as a result of the enactment of the Social Work (Scotland) Act 1968, which Part II of this measure will largely replace. As the noble and learned Lord the Minister reminded us earlier, the provisions relating to children are not restricted to children who have been the victims of abuse; they extend also to children who have committed an offence. We should not forget that that was one of the primary objects of the legislation which this measure is intended to strengthen.
The effect of those provisions was to remove almost entirely from the criminal law the activities of the juvenile offender. I can speak with experience as to the effect of those measures. I sit four days each month as chairman of a criminal appeal court in Scotland. We hear cases coming from every kind of court of criminal jurisdiction in Scotland, dealing with many matters. But, as I look back over my years as Lord Justice General, I can recall hardly any case which involved the position of a child offender. It is true that the procurator fiscal can prosecute in the
This important Bill has been the result of the work of many hands. From my perspective I pay tribute to two bodies which contributed so much to what we find in the Bill. The first is the work of the Scottish Law Commission which, as your Lordships were told, provided the basis for what we see in Part I. That was set out in a report in May 1992 and the measures contained in the clauses are largely those set out in the draft Bill appended to the report. The other tribute I wish to pay, through the Minister, is to the Social Work Services Group, which played an active role in Scotland and whose work has been reflected by much of what we see in later provisions in the Bill. I hope that it will continue to play a part in its implementation.
The work of the Scottish Law Commission in the field of family law has been outstanding since the date it was set up. It is no exaggeration to say that it has virtually transformed the structure and substance of family law in Scotland. Indeed, much of the language which was current only 30 years ago has been altered with a view to creating a better understanding of what the aims are of the various principles upon which family law is based. That we see in the provisions in Part I of the Bill, where Scottish lawyers will have to learn new words for familiar concepts. It is right that they should do so because it will help lawyers, and indeed judges, to understand the purpose of those concepts.
With the work which has been done by the Scottish Law Commission and the measures which have been enacted as a result of its reports, Scotland can look forward into the next century with confidence that it has a system of family law in keeping with the needs of modern society. No doubt there will be some who will say that that work is incomplete, and with that I am bound to say I would agree, for this reason. In this field one can never stand still; there will always be work to do. But the achievements are positive. I am delighted to see that the report has been implemented with comparative speed and that it has been possible to bring it forward before your Lordships in the form of Part I of the Bill.
In relation to the Social Work Services GroupI pay this compliment through the Minister, if I mayas the Minister hinted earlier today, in recent years Scotland has had to contend with a number of difficult cases. My own court sometimes had to deal with those cases in the exercise of the extraordinary power which the court in Scotland has to deal with situations for which legislation has not provided. I am not convinced that that is a satisfactory way to deal with these difficult matters, and for that reason we have a responsibility, so far as possible, to fill those gaps.
The cases which have caused concern have resulted in personal tragedy for many people who are particularly vulnerable. The clock cannot be turned back in these cases. One regrets that, but it is a fact of life. But what we can and must do is to learn from the mistakes and by all means possible strive to avoid anything like that happening in the future. So far as legislation is concerned,
Scotland is fortunate in one respect in particularits legal system. I use the words "legal system" in the broadest sense to include social workers, mediators, civil servants and other agents who all work together in this field. Distances are short, informal contacts at all levels are frequent and there are few informal barriers to overcome. I find that visitors from other jurisdictions are surprised by the ease with which we can communicate with each other and are impressed by the high degree of mutual trust which exists. That is a strength on which we can build in looking to the future. The work which has been done, with the encouragement of the Minister, has been very important in curing some of the difficulties that have been created for us in the past. I have tried where I can to give this work my support, and I hope very much that it will continue.
This is not the time to comment in detail on the Bill and I do not wish to detain your Lordships for much longer. There are, however, two matters which I should mention. The first is the provision about taking the views of children, to which the noble Lord, Lord Macaulay, referred earlier. The second is the provision about appeals. There is nothing new about taking the views of children so far as the court is concerned. Judges have attempted to do this in various ways in the past, frequently at second hand by means of reports and sometimes by interview, but views have varied as to the way in which this should be done and indeed have varied as to the effectiveness of the exercise. I see this clause as placing a responsibility on me to see that, by rule-making and, if necessary, by practice note, I can give the direction which is needed to unify practice so that we eliminate trial and error in this important field. But the request I make of the noble and learned Lord is that I may be offered the opportunity of consulting on this issue, because I would rather that we knew precisely where we were going before the measure leaves this House in case amendments are required to be made to the clause.
So far as appeals are concerned, there is a provision which will introduce an option of appeal to the sheriff principal. There will then be a choice of appeal direct to the Court of Session or, alternatively, to the sheriff principal. But if there is a decision of the sheriff principal with which either party is dissatisfied there will be the option of an appeal further to the Court of Session. I can see advantages and disadvantages in that system. I shall not trouble your Lordships with those just now but I am concerned at the risk that this may simply create an extra rung in the ladder of appeal, which would involve expense and delay. I can assure your Lordships that, in this field above all, both I and my officials work hard to try to eliminate precisely those features which can cause such damage in cases arising from family law.
Baroness Carnegy of Lour: My Lords, it is customary for the speaker following the maiden speaker to pay tribute to the maiden speaker's speech. For me it is a real and genuine privilege to have the job of congratulating the noble and learned Lord. I have a sense that today the mountain has come to Mahomet. We make the laws in this House. The head of the legal system in Scotland has come to us and has made a speech which has reminded us of that exciting new development.
The noble and learned Lord, Lord Hope of Craighead, is a most distinguished lawyer and a most distinguished Scot. He learnt some of the tricks of the trade when he did his national service in the Seaforth Highlanders. He has been an advocate in Scotland. He became an advocate 30 years ago. He has been Dean of the Faculty of Advocates and he has been the editor of and a contributor to a number of key and not particularly slim volumes about Scots law. Now, as he has reminded us, he is Lord Justice-General of Scotland and Lord President of the Court of Session. It is a real privilege to have him among us. We have been fascinated by his speech and we look forward to those speeches which are to come.
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