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I am very grateful to the Minister for allowing good access to the civil servants involved and I am grateful for the advice they have given in the run-up to this stage of the Bill.

Finally, if this part of the Bill goes through, will the Minister say how the voices of children will be fully involved in any review process? Does she agree that the Children Act 1989, brought forward by the Conservative Party, was an exemplar of how good legislation is made? Does she agree that, if there is a review, something along those lines should be initiated so that there is a very carefully adapted process to ensure that all concerned parties are listened to?

Baroness Butler-Sloss: My Lords, I declare an interest as a former president of the Family Division, so I have some experience of dealing with the press from time to time. I am not in favour of secret courts. Throughout my time as president, I pushed for court judgments to be provided to the public and the press. However, I share the views of the noble Baroness, Lady Walmsley, and the noble Earl, Lord Listowel, and express my own concerns about Part 2 of this legislation being presented to this Committee when it has not been debated in either of the two Houses of Parliament. We are dealing with information concerning children, as the noble Baroness, Lady Walmsley, said.

In my view, the whole of Part 2 should be excluded but there are two things about which I am concerned. One is the identification of witnesses-particularly medical and other expert witnesses. It is very difficult to get medical and health professionals to give evidence, but if they are to be identified in the courts they will continue to keep their heads below the parapet and will not give evidence. There are others in this Chamber who know exactly what I am talking about. This is a very serious matter. When I was president, I had real concerns about getting sufficient doctors to come forward. I discussed this with the medical colleges and the BMA in an attempt to get doctors to give evidence in child abuse cases. At least they knew that their names would not be made known but under this proposed legislation it is almost certain that their names will be given. It will be very difficult for judges to stop that happening.

The other and even more worrying aspect relates to the groups of cases that are included. Clause 33 includes adoption proceedings. If ever there is a group of cases

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where no information of any sort should be given to the press or the public, it is that. I appreciate how late it is but it will take me one minute to tell the Committee of a case that I tried where, unfortunately, after the adopters received the child, the natural parents somehow found out and pursued them for more than a year. The adopters had to move five times to get away, and the child's opportunity to settle with them was ruined by the unfortunate disclosure of the evidence indicating who they were. Perhaps judges will not ever give that information in adoption cases, but the possibility of them doing so should not even be in legislation. No part of family proceedings is more important to protect than the law in relation to adoption.

I am shocked that this should come before us in the wash-up without any debate or any scrutiny in either of the two Houses of Parliament. I beg noble Lords to oppose Part 2.

Baroness Finlay of Llandaff: My Lords, I want to support the eloquent speech of the noble Baroness, Lady Walmsley, who has fought for the rights of children. We run a very grave risk of making things worse for the most vulnerable in our population unless we ditch this part of the Bill.

Lord Mackay of Clashfern: My Lords, as the person who had the honour and the responsibility of bringing the Children Bill 1989 to this House, I, too, share the views of the noble and learned Baroness, Lady Butler-Sloss, on finding this kind of provision in this Bill, without full consultation on the matter. I believe it is extremely dangerous to allow this to go forward in its present form without discussion. The only thing I notice about it is that Part 2 is to be brought into force only by order of the Lord Chancellor. Therefore, I hope that whatever decision we come to this evening, the Lord Chancellor, whoever he or she may be in the days to come, will hesitate long before introducing this in its present form.

The Earl of Onslow: My Lords, some 20 years ago, Lord Whitelaw was sitting where the noble Baroness, Lady Royall, is sitting now and Lord Belstead was answering a question, but I cannot remember what it was about. However, I remember that everyone around the House was saying the same sort of things as we are now saying about this Bill. Lord Belstead's brief said, "Resist, resist", and I heard Lord Whitelaw say, "Give way, I will square the Cabinet". I hope that the noble Baroness, Lady Royall, can change her name to Lord Whitelaw.

Baroness Morgan of Drefelin: My Lords, I shall first respond to the specific question asked by the noble and learned Baroness, Lady Butler-Sloss, about the naming of experts. I am aware that she and others see that as a key issue. Only experts who are paid a fee specifically to give evidence will be named by courts. Courts will still be able to withhold the identity, if necessary, of medical practitioners, social workers and teachers who are called in the course of their normal work.

Baroness Butler-Sloss: Forgive me for interrupting. The problem is that the experts will not raise their heads above the parapet, so that will not do any good at all.

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Baroness Morgan of Drefelin: My Lords, it will be possible for the review to look at those provisions and to review, as the noble and learned Lord suggested, any problems that arise because of that. This part of the Bill was debated in the other place and was amended quite significantly in response to concerns raised by, for example, the President of the Family Division and others concerned with the interests of children. I hope that I can offer the reassurances that noble Lords seek.

As I have said, on Report in the other place, we made a considerable number of amendments to these clauses. We made them because we recognised that there were concerns about how the changes could affect the operation of the courts, the discretion of the judiciary and the people who come into contact with the family courts, especially children. I know that noble Lords are concerned about the interests of children. If we did not believe that these changes were in the interests of children, we would not have made them.

The clauses will make the family courts more open by increasing the information that may be reported. The media can already attend most family proceedings, so the question is not about keeping the media out of family courts but about making sure that they can report more sensibly what they see and hear during the proceedings. We will be looking to the media to make sensitive and intelligent use of those new freedoms-[Laughter.] That is the truth of it. There will be a serious penalty for contempt if they do not. That is something that the media live with now in other arenas.

11.45 pm

The Government have spent a number of years considering how to make family courts more open and transparent. We believe that the provisions are a balanced reflection of that process. We have been patient and cautious in bringing forward the proposals.

The clauses set up three steps to making family courts more transparent. The first step relaxes only slightly what can currently be reported. It will allow reporting of what might be said in court or witnessed in the court room. Those relaxations bring with them stronger safeguards for children and their families. For me, that is absolutely key. They will give children indefinite anonymity, changing the current position where automatic anonymity ends when the proceedings end. That is an important, significant step. This phase also introduces a list of information that cannot be reported, including reviews of children, medical reports and other sensitive information. Courts will continue to have a critical role to play, retaining discretion to prohibit or allow publication of information and, importantly, the power to exclude the media completely where they decide that publication is not in the child's best interest. That is the first step.

The second step is a thorough review of the impact of the changes brought about by phase 1. We have gone a long way towards meeting concerns expressed across the House and elsewhere. Importantly, we have ensured that any review of phase 1 is independent and we have given a commitment that the terms of the review will be agreed with the Justice Committee. We want to ensure that any review considers the impact on those children involved in the family courts, so it is

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important, as the noble Earl, Lord Listowel, said, that the voices of those children are considered and that their views and thoughts are given the weight that they deserve in the review.

The clauses represent a cautious approach, with robust safeguards to ensure that there will be no move to a more open phase 2 unless Ministers and Parliament agree that there should be. An affirmative resolution of both Houses would be needed to move to the final step, so your Lordships can see that the changes are neither reckless nor speedy; they are cautious and patient.

The third step is a move to a more open reporting regime where personal, sensitive information could be published, but only with significant safeguards. Courts will be able to use their discretion to prohibit publication where, for example, it is an unacceptable intrusion into someone's privacy or, importantly, where publication would prejudice the welfare of the child. The anonymity provisions for children and families would continue to apply indefinitely. The Bill's provisions would strengthen the protection of children's identity, not diminish it. The right to indefinite anonymity for children is an important provision of the Bill. Without it, children are already at risk of identification. I do not believe that anyone here agrees that that is in their best interest.

We want to make the family courts more transparent. We know that the recent history of tragic deaths of children, some of whom were involved in the family courts, leaves the public rightly wanting to understand how the systems work and how decisions are reached. A family justice system that works well is in the best interests of all children. Making the family justice system more transparent is in the interests of all children. The provisions help to do that. They provide the platform for change. They also offer strengthened protection for children and their families. They are cautious and patient. I therefore urge that the clauses remain part of the Bill.

Baroness Walmsley: My Lords, the Minister has stuck valiantly to her brief, but when the House hears such serious warnings from eminent lawyers such as the noble and learned Baroness, Lady Butler-Sloss, a former President of the Family Division, and the noble and learned Lord, Lord Mackay of Clashfern, a former Lord Chancellor, it would be well advised to heed those warnings. A little earlier this evening, noble Lords saw fit to delete Clauses 11 to 14 because they felt that the matter was too controversial for the wash-up. I beg your Lordships to be consistent in that and to vote to remove these clauses from the Bill. They are not safe.

11.51 pm

Division on Clause 32

Contents 96; Not-Contents 70.

Clause 32 agreed.

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Division No. 5


Andrews, B.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Bach, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Bilston, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Cathcart, E.
Clark of Windermere, L.
Colwyn, L.
Cope of Berkeley, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Dubs, L.
Elder, L.
Elton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ferrers, E.
Foster of Bishop Auckland, L.
Freud, L.
Gale, B.
Gardner of Parkes, B.
Geddes, L.
Golding, B.
Gordon of Strathblane, L.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Hanham, B.
Harris of Haringey, L.
Harrison, L.
Henley, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kinnock, L.
Luke, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Mancroft, L.
Maxton, L.
Mayhew of Twysden, L.
Montrose, D.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Neville-Jones, B.
Norton of Louth, L.
O'Neill of Clackmannan, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Rawlings, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Seccombe, B.
Sewel, L.
Soley, L.
Stoddart of Swindon, L.
Strathclyde, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Verma, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitty, L.
Wilcox, B.
Young of Norwood Green, L.


Addington, L. [Teller]
Alderdice, L.
Alton of Liverpool, L.
Armstrong of Ilminster, L.
Avebury, L.
Barker, B.
Best, L.
Bonham-Carter of Yarnbury, B.
Burnett, L.
Butler-Sloss, B.
Chidgey, L.
Clement-Jones, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Falkland, V.
Fellowes, L.
Finlay of Llandaff, B.
Forsyth of Drumlean, L.
Garden of Frognal, B.
Gilbert, L.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Howe of Idlicote, B.
Kirkwood of Kirkhope, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Listowel, E.
Low of Dalston, L.
Lucas, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marlesford, L.
Miller of Chilthorne Domer, B.
Morrow, L.
Nicholson of Winterbourne, B.
Northbourne, L.

7 Apr 2010 : Column 1607

Northover, B.
Oakeshott of Seagrove Bay, L.
O'Loan, B.
Onslow, E.
Paisley of St George's, B.
Palmer, L.
Phillips of Sudbury, L.
Ramsbotham, L.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
Rogan, L.
Sandwich, E.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Slim, V.
Steel of Aikwood, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Trefgarne, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Waverley, V.
Williamson of Horton, L.

Clauses 33 to 40 agreed.

Schedule 2 agreed.

Clauses 41 and 42 agreed.

Schedule 3 agreed.

Clauses 43 and 44 agreed.

Clause 45 : Interpretation of Act

Amendment 41

Moved by Baroness Morgan of Drefelin

41: Clause 45, page 37, leave out line 6

Baroness Morgan of Drefelin: My Lords, these merely technical and tidying amendments are to ensure that other changes agreed by this House are reflected appropriately in the final clauses of the Bill. Noble Lords have laid further amendments in this group seeking to ensure that all commencement orders in Part 1 are subject to the affirmative procedure. While I recognise that this House may have wanted further opportunity to debate aspects of the implementation of this Bill, I do not believe, given the changes that we have agreed tonight, that there is any longer a need for this. I therefore hope very much that the noble Lord will consider not moving his final amendments.

Amendment 41 agreed.

Amendments 42 and 43

Moved by Baroness Morgan of Drefelin

42: Clause 45, page 37, line 14, leave out "sections 1 and" and insert "section"

43: Clause 45, page 37, line 14, leave out "those sections" and insert "that section"

Amendments 42 and 43 agreed.

Clause 45, as amended, agreed.

Clause 46 agreed.

7 Apr 2010 : Column 1608

Schedule 4 : Minor and consequential amendments

Amendments 44 to 46

Moved by Baroness Morgan of Drefelin

44: Schedule 4, page 49, line 33, leave out paragraphs 2 to 4

45: Schedule 4, page 50, line 7, leave out sub-paragraphs (2) and (3)

46: Schedule 4, page 50, line 13, leave out paragraphs 6 to 18

Amendments 44 to 46 agreed.

Schedule 4, as amended, agreed.

Schedule 5 : Repeals

Amendment 47

Moved by Baroness Morgan of Drefelin

47: Schedule 5, page 54, line 24, leave out from beginning to end of line 34 on page 55

Amendment 47 agreed.

Schedule 5, as amended, agreed.

Clauses 47 to 49 agreed.

Clause 50 : Commencement

Amendment 48

Moved by Baroness Morgan of Drefelin

48: Clause 50, page 38, line 3, leave out "Sections 27 and 44 come" and insert "Section 44 comes"

Amendment 48 agreed.

Amendments 49 and 50 not moved.

Clause 50, as amended, agreed.

Clause 51 agreed.

In the Title

Amendments 51 to 54

Moved by Baroness Morgan of Drefelin

51: Clause 55, page 32, line 1, leave out subsection (3)

52: Clause 55, page 32, line 8, leave out subsection (4)

53: Clause 55, page 32, line 15, leave out subsection (5)

54: Clause 55, page 32, line 15, leave out "An expulsion resolution or a suspension resolution" and insert "A resolution for the purposes of subsection (1)"

Amendments 51 to 54 agreed.

Title, as amended, agreed.

House resumed.

Bill reported with amendments. Report and Third Reading agreed without debate. Bill passed and returned to the Commons with amendments.

7 Apr 2010 : Column 1609

Constitutional Reform and Governance Bill

Bill Main Page
Copy of the Bill
Explanatory Notes

Committee (and remaining stages)

12.06 am

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, with the leave of the Committee, perhaps I may say a few words on the position in which we find ourselves now. Following the debate earlier this afternoon on the Business of the House Motion and the assurances given by my noble friend the Leader of the House, my right honourable friend the Secretary of State for Justice and I have held a series of extremely constructive discussions with a number of Members of the House. As a result of those discussions, the Government now propose to proceed with the Constitutional Reform and Governance Bill this evening but to leave out a number of clauses, which I will detail in a moment.

For the most part, this has been done with the agreement of all who participated, but I owe an apology to the Liberal Democrats and their leader, the noble Lord, Lord McNally, and particularly the noble Lord, Lord Tyler, who saw us this afternoon and who did not agree to one item, although the document made available in the Printed Paper Office suggested that they had. Once again, I apologise to them for that.

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