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Lord Rodger of Earlsferry: The noble Lord will be aware that the Title of the Bill refers to provision for the inadmissibility of certain matters. That is because, at present, all those matters are admissible. Therefore, the Bill seeks to introduce an area in which evidence will not be admissible. That is to assist the process of mediation, and so on. As the noble Lord has perceived, that does not apply to criminal proceedings. Therefore, the short answer to the noble Lord's question is that nothing in the Bill would render that inadmissible.

There must always be a balance in relation to these matters; but there are certain exceptions to the inroads that are being made in relation to admissibility of evidence. Those exceptions are set out in Clause 2(1). That is the general thrust of the Bill.

Lord Macaulay of Bragar: Before the noble and learned Lord sits down, is he saying as a matter of law that if, within the context of mediation, a person admits that he threatened to kill his wife with a knife and later

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does just that, what he said to the mediator in the course of the civil evidence family mediation procedure is admissible in criminal proceedings?

Lord Rodger of Earlsferry: I said that if it were otherwise admissible, then nothing in this Bill would render it inadmissible because Clause 2(1) deals with the exceptions.

7.45 p.m.

Baroness Carnegy of Lour: I believe that if the noble Lord, Lord Macaulay, studies the Law Commission's report, he will see that several of the points which he has raised are dealt with there. That report indicates why it has followed that approach in the Bill. That has not been changed since it left the Law Commission. I believe that that covers the point about somebody who talks about a criminal offence. I may be wrong. As the noble Lord knows, I am not a lawyer; but, speaking from memory, I believe that those points are covered in that report.

I shall read with great interest what the noble Lord has said. It may be that a meeting will be necessary. Certainly, we shall need to be clear about this matter. It is very important that we know how the child is to be approached in relation to that one issue which arises; namely, consent as a participant and whether what has occurred in the mediation is to be admissible or inadmissible.

Lord Macaulay of Bragar: I am grateful to the noble Baroness for her guidance, and of course I shall look again at the Law Commission's report. However, the courts are not concerned with interpreting Law Commission reports but with interpreting the Bill, or the Act as it will become in due course. I hope that the noble Baroness, myself and all those concerned with this matter will get together to discuss it.

Clause 2, as amended, agreed to.

Clause 3 [Short title, construction, commencement and extent]:

Baroness Carnegy of Lour moved Amendment No. 4:

Page 3, line 12, after (" "prescribe" ") insert (", except in relation to an Act of Sederunt,").

On Question, amendment agreed to.

Baroness Carnegy of Lour moved Amendment No. 5:

Page 3, leave out lines 15 to 17 and insert:
(" (3) This Act shall come into force on such day as the Lord Advocate may by order made by statutory instrument appoint; and such order may include such transitional or incidental provisions as appear to him to be necessary or expedient.").

The noble Baroness said: This amendment relates to two important points raised on Second Reading. First, it responds, at any rate in part, to the request made by the noble Lord, Lord Macaulay, to the Minister that he should look again at the question of the status of the child. The Minister's reply made the link with the Children (Scotland) Bill which is making its way through another place.

The amendment allows the Lord Advocate flexibility in bringing the Bill into force. Rather than the Bill coming into force two months after Royal Assent and

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then having to amend it subsequently to reflect provisions in the Children (Scotland) Bill, the amendment would make it possible to delay implementation of this Bill until the Children (Scotland) Bill has received Royal Assent.

That seems to be a sensible approach. I do not wish to hold up the progress of this Bill; but with regard to the status of the child and in a number of other respects, there may well need to be cross-referencing. That can best be done later—probably while the Children (Scotland) Bill is under consideration in this Chamber.

My noble and learned friend may wish to say more about that. For my part, I hope that the noble Lord, Lord Macaulay, and the noble Earl, Lord Mar and Kellie, who have a particular interest in this matter, will welcome that aspect of the amendment.

I also hope that the flexibility introduced by the amendment will, to some extent, meet another concern which I expressed on Second Reading and one about which Family Mediation Scotland is particularly anxious. Whenever the provisions of the Bill come into force, there will be a family mediation in progress. Clearly the legislation cannot be retrospective; but it is surely desirable that, once it is in force, mediation should be covered as soon as possible.

As the Bill stands, the legislation will apply to proceedings commenced on or after the day upon which it comes into force. The nature of proceedings varies and much time may elapse before proof begins—time during which mediation may take place. Can my noble and learned friend the Lord Advocate give me an assurance that the transitional provisions allowed for in the amendment will in fact be used to apply the protection of the Bill to mediation relating to cases where proof has not yet begun by the date of implementation? That was the approach suggested by my noble and learned friend Lord Fraser of Carmyllie on Second Reading.

I had hoped that I would be advised that that could, with advantage, be placed on the face of the Bill. However, my advice now is that the amendment would be more workable. I accept that fact. However, I should like to be sure that some arrangement can be made to meet the anxieties on that point raised by Family Mediation Scotland. I look forward to hearing any further explanation that my noble and learned friend can give Members of the Committee. I should especially like to receive the assurance that I have just requested. I beg to move.

The Earl of Mar and Kellie: The amendment alters the timing of the implementation of the Bill after enactment. It obviously relates to the passage of the important Children (Scotland) Bill through another place and, subsequently, through this Chamber. I should prefer a firmer commitment to the implementation of the Bill with a more precise date. I appreciate that the Bill may need to be modified in the light of the somewhat superior legislation contained in the potential Children (Scotland) Act.

We shall have to learn new terminology for failed relationships. Out will go the words "custody" and "access" and in will come residence and contact orders.

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That will reflect the changes in parental responsibilities and parental rights proposed in the Children (Scotland) Bill. A significant change will be the responsibility and right to regulate the residence of a child who is no longer living with the parent and also that parent's opportunity to participate in the estranged child's health, development and welfare.

I do not believe that a child has the right to decide the style of his upbringing. That must be the responsibility of the parents. I shall not oppose the amendment in Committee, in the hope that a more precise date of commencement will be forthcoming.

Lord Rodger of Earlsferry: The intention of the amendment is not to delay unnecessarily the commencement of the Bill, but rather to provide a certain measure of flexibility. It is a little difficult to foresee how far it will be necessary to have that flexibility in relation to the children Bill because it depends on whether or not it contains provisions which substantially affect the Bill now before us. Obviously it would be rather foolish if, for example, the legislation commenced and very shortly thereafter it needed to be amended. In those circumstances, it might be sensible to wait until the legislation had been amended before it was allowed to commence. However, I do not believe that that issue should cause any undue delay. It is certainly not intended that it should.

As regards the other matter, I understand the concerns of members of Family Mediation Scotland, who desire that the provisions of the Bill should come into force as soon as possible and should, therefore, affect their work as soon as possible.

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I hope that I can respond to the invitation from my noble friend by indicating that it would be my intention in framing the terms of the commencement order to consider whether it should contain a transitional provision whereby the Bill's provisions will apply to cases in which proof has not yet taken place—that is, in cases where the evidence has not yet been led—at the commencement date. We want to look at that aspect of the matter with a little more care. However, as my noble and learned friend Lord Fraser said on Second Reading, that is certainly our intention.

Baroness Carnegy of Lour: I thank my noble and learned friend for that response. I believe that Family Mediation Scotland and I perhaps cannot expect much more. I do not think that any Minister has ever given a cast-iron assurance as to what he will put in an order long before it is made. However, the fact that my noble and learned friend's response will be recorded in Hansard is most comforting to us. I shall read the report of the proceedings to ensure that that is indeed as far as we can go.

I am sorry that we cannot accommodate the noble Earl by including a more fixed date. I do not believe that that would be possible. After all, the children Bill might not reach the statute book and, if the fixed date were linked to that legislation, it would not be very helpful. On that score, I believe that we should leave the Bill as it stands.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

House resumed: Bill reported with amendments.

        House adjourned at three minutes before eight o'clock.

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