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Lord Macaulay of Bragar: My Lords, before the Minister sits down, can he say whether he will consider looking at the question of the status of the child within European law and under the European Convention of Human Rights before the next stage of the Bill's proceedings? As I see it, the child is really neglected in the legislation. I shall not take the matter further at this point, but I hope that the Minister, with the resources at his disposal, will be able to provide an answer as to whether the Bill (where the parents of the child determine what is going to happen to the child) is in contravention of the European Convention on Human Rights.

Lord Fraser of Carmyllie: My Lords, I do not believe that there is any risk of that. However, there is a Bill beginning its passage in the other place—namely, the Children (Scotland) Bill—which may take some time. If this Bill completes all its stages through both Houses of Parliament, it may then be necessary to ensure that there is appropriate cross-referencing between this measure and the one being considered in another place.

Baroness Carnegy of Lour: My Lords, I have a question for my noble and learned friend the Minister.

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Am I right in understanding—it is impertinent of me to suggest it, bearing in mind the great knowledge of the noble Lord, Lord Macaulay—that where the child is mentioned in the Bill that will also include the representative of the child? Is that correct? I believe I understood from one source or another that reference to the child means the child or his representative.

Lord Fraser of Carmyllie: My Lords, it is important to understand what is to be determined for the limited exceptions in Clause 2. In other words, what needs to be determined is whether or not the child has given his or her agreement. The provision to which my noble friend needs to have regard is subsection (3) which would indicate:


    "Notwithstanding anything in the Age of Legal Capacity (Scotland) Act 1991"

a child under that age,


    "shall have legal capacity to agree that information should be admitted",

provided that it is clear that the child is,


    "capable of understanding the nature and significance of the matters to which the information relates".

I can certainly think of many circumstances where such a child, if such an agreement was required, would have had to have the advantage of legal advice.

7.44 p.m.

Baroness Carnegy of Lour: My Lords, I am enormously grateful to everyone who has spoken in the debate. First, I must say that I am extremely grateful to my noble and learned friend for saying for the first time that the Government are willing to support the Bill through its various stages in Parliament. That is, indeed, good news and is most helpful. Likewise, it is very good news to receive support for the Bill as a whole from the Benches opposite. I am greatly encouraged by that and I am sure that Family Mediation Scotland will be similarly encouraged.

The noble Earl, Lord Mar and Kellie, made a most interesting short speech with, if I may say so, all his professional knowledge. He said that he has a little personal knowledge as well, but his professional knowledge came through very clearly. The noble Earl gave us very interesting, detailed examples of the need for family mediation which brought the Bill to life in a very illuminating way.

The noble Earl made the point that participants will need to be aware of the exceptions to the inadmissibility rule before they start mediating. I am sure that that must be a very important rule for mediators. I am very grateful to the noble Earl for making that point. The noble Earl made an additional point which he is very well placed to make because he lives in Clackmannanshire. He said that the reorganisation of local government in Scotland would probably mean considerable reorganisation of Family Mediation Scotland and its affiliated services. I believe that the organisation is well aware of that fact. I do not quite know how those concerned will make it work, but it is good that the noble Earl made the point because it is most relevant to the Bill.

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My noble friend Lord Lyell gave me his usual enthusiastic encouragement. I am sure that he is right to say that the Bill is important not only to the people in Angus but also throughout Scotland. I am most grateful to him.

The noble Lord, Lord Macaulay, made a number of points, some of which, as he knows, it would be very much easier for a lawyer to understand; indeed, my noble and learned friend on the Front Bench answered some of them. I shall read the Hansard report of what the noble Lord said with great care. It was extremely interesting. I shall understand some of it better when I have discussed the matter with my advisers.

The concern of the solicitor-lawyers who have written to me, and to whom the noble Lord has doubtless spoken, about whether the agreements contained in the Bill should be only written agreements is a matter that I shall discuss with him. I have not as yet had a chance to do so. I shall also discuss it with Family Mediation Scotland and with the Law Society. They are interesting points but I rather think that they have already been thought of and that there are arguments which may come to light of which I am not yet aware.

The question of funding is an interesting one. At present, lawyer-mediators are paid. I believe that the noble Lord indicated the difference in that Family Mediation Scotland mediators are mostly voluntary. Lawyer-mediators can be quite expensive. Indeed, as I understand it, they are paid quite a large sum per hour. Doubtless that is a matter which will arise in the context of the Bill once it becomes law, as I hope it will. Obviously it is not possible at the moment for my noble and learned friend to answer such questions. It is interesting to read the Green Paper that the noble and learned Lord the Lord Chancellor has issued, which is now under discussion, and see what he is saying about that. I take it that in Scotland we shall not necessarily do the same thing, but the arguments are certainly applicable to both sides of the Border.

The question of the child, the child's representative and the relationship to the children's Bill which is now in another place are matters we shall follow with interest. However, it is good to know that the Bill can be brought into line with the children's Bill at later stages of that Bill so that if the legislative circumstances change, that will not be a problem. There is plenty of time for that. We have the whole parliamentary year to do it.

My noble and learned friend filled in some additional interesting background from the point of view of the Government with all the facilities at his disposal. I shall read that with much interest. His reply on the commencement date interested me. His letter has not yet reached Family Mediation Scotland either. Therefore, I think I can be forgiven for not having really examined what he told me about a little earlier verbally. I shall again read that with care and discuss it with my advisers.

I am extremely grateful to everyone who has joined in this debate. I think it bodes well for the future of the Bill. I hope my own contribution will not confuse anyone who understands the law better than I do. I am

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trying hard to grasp not only the legal points but also the social points. The noble Lord, Lord Macaulay, made some social points with which I heartily agree. I would not say that the parents do not matter. I think that that is an unfortunate thing to say because everyone matters. We must not think so much about children—we have to think a lot about children at the moment—that we forget the parents. Quite a lot of mediation will not be about children: it will be about other things to do with the break-up of a marriage. That is of importance to everyone. I am very grateful to everyone who has spoken. I hope the Bill will have a fair passage in Committee and beyond.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.53 to 8 p.m.]

Environment Bill [H.L.]

House again in Committee on Clause 59.

Viscount Addison moved Amendment No. 257:


Page 65, line 27, leave out ("if it appears that there is a") and insert ("where the relevant National Park Authority deems there to be an irreconcilable").

The noble Viscount said: Subsection (2) of Clause 59 is intended to implement what is known as the "Sandford principle". The Sandford Report of 1974 stated that where there is irreconcilable conflict between the two national park purposes of conservation and recreation the former should be given priority over the latter. In 1991 the National Parks Review Panel endorsed that recommendation, saying that it should be reflected in legislation.

As drafted, subsection 59(2) is not sufficiently precise to fulfil the recommendations of the Sandford and Edwards Reports. The amendment attempts to address two of the drafting problems.

The clause as drafted states that if it appears that there is a conflict between the two purposes conservation shall be given greater weight. That is too vague and begs the question, if it appears to whom? Therefore, the first part of the amendment attempts to clarify the position by giving the role of arbiter to the national park authority as the most appropriate executive body.

The clause also omits the concept of irreconcilability. That appears to be a fundamental change of policy from the current position and is not what Sandford or Edwards intended.

Much concern was expressed at Second Reading that every incentive should be given to explore all means of reconciling conflict before having to invoke the principle. That could be through careful planning of recreational facilities and providing adequate resources for management, as Edwards recommended. The amendment therefore includes the idea of irreconcilable conflict to ensure that this is a last resort which does not replace reconciliation by other means first.

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Government guidance is likely to include some clarification of what is intended in the clause. However, including in the guidance the concept of reconciliation through management would not be consistent with the clause as drafted. The present drafting of the clause changes the balance of policy and there is a danger that one test could exist in primary legislation and another in the guidance. Therefore, the legislation must include the idea of irreconcilability to provide the right policy context for the guidance. I beg to move.


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