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Lord Fraser of Carmyllie: The amendment applies to conditions of examination or treatment included in a supervision requirement made by a children's hearing. It does not apply to conditions laid down in a child protection order made by the sheriff.

Clause 54(4) provides for direction in relation to the exercise of any parental responsibility which embraces matters of consent or refusal to examination or treatment.

I hope that fully explains the matter to the noble Earl, but perhaps he may wish to return to it.

On Question, amendment agreed to.

[Amendment No. 198 not moved.]

Clause 83, as amended, agreed to.

Lord Fraser of Carmyllie moved Amendment No. 199:


After Clause 83, insert the following new clause:

Procedural rules in relation to certain applications etc.

(".—(1) All proceedings to which this section applies are civil proceedings for the purposes of section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in the sheriff court).

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(2) Any reference in this Part of this Act to regulation or prescription by rules in relation to any proceedings to which this section applies shall be construed, unless the context otherwise requires, as a reference to regulation or prescription by rules made by virtue of subsection (1) above.
(3) In relation to any proceedings to which this section applies, rules may permit a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.
(4) This section applies to any application made to the sheriff, and any other proceeding before the sheriff (whether on appeal or otherwise), under any provision of this Part of this Act.").

The noble and learned Lord said: Part II of the Bill contains a number of provisions for applications and appeals to be made to the sheriff. Some of these provisions contain rule-making powers while others do not. The purpose of this new clause is to ensure that adequate provision is made for all the sheriff court procedure rules necessary to ensure the effective implementation of the provisions of this legislation and, at the same time, to gather all of the provisions for the rules into one clause in the Bill to facilitate reference.

My understanding is that in another place there was the usual complaint made that, where there are such rule-making powers, if they are spread in various places round the Bill it is extremely difficult to draw together any clear appreciation of what is allowed for. That is why this provision is included in this way in the form of a new clause and I certainly anticipate that it will be of great benefit and value to those who wish to know whether or not rules can properly be made in terms of this part of the Bill. I beg to move.

The Earl of Balfour: Grouped with Amendment No. 199 is the amendment to omit subsection (6) of Clause 84, which is the first three lines at the top of page 70. That was my guide to the amendment that I moved in Clause 58 where I started off by saying "at the top of page 70". I wonder in respect of the rules versus regulations problems that I have, whether this clause really deals with all the rules that are made by the courts as compared with regulations by the Secretary of State. I think perhaps the new clause is a better way of doing it and I am quite happy to accept it.

However, I again have a slight problem in that Clause 84, the interpretation clause, ceases to deal with these rules. In view of the amendment already spoken to with Amendment No. 195—it is an amendment to Clause 96 at the bottom of page 12 of the Marshalled List which talks about Orders in Council and refers to a number of clauses including Clause 84—I wonder whether this new clause which my noble and learned friend Lord Fraser has introduced should not be Clause 83A when we come to it at the end of the day.

As I am referring to that, there are regulations issued by the Secretary of State under Clause 68, mentioned in Amendment No. 206, and I wonder whether Clause 58, which also deals with regulations, should perhaps be included here as well. I know that the Minister has spoken to it but I felt that this was the easiest point at which I could raise these questions.

Lord Fraser of Carmyllie: I cannot say that I entirely followed the noble Earl in his detailed traverse through the Bill looking up the terminology of rules and

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regulations in all its respects, but I shall certainly look again to ensure that there is no duplication and at the same time ensure that there are no gaps because that would defeat the very purpose of the new clause, which is that we should try to draw together in a clear way what is allowed for.

What this new clause deals with, as shown by the reference in subsection (1) to Section 32 of the Sheriff Courts (Scotland) Act 1971, are those rules that are made in the Court of Session by the Lord President under acts of sederunt. The provisions contained in Amendment No. 199 are not intended to cover regulations—there are other regulations, as the noble Earl appreciates—which could be made at the hand of the Secretary of State. The new clause is designed, for acts of sederunt made by the Court of Session.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 199A:


After Clause 83, insert the following new clause:

Legal aid in respect of certain proceedings.

(". For section 29 of the Legal Aid (Scotland) Act 1986 substitute the following section—
29.—(1) This section applies to legal aid in connection with—
(a) proceedings before the sheriff (including, without prejudice to that generality, proceedings on an appeal to the sheriff principal from a decision of the sheriff) in respect of any matter arising under Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 (in this section referred to as "the 1995 Act"); or
(b) an appeal to the Court of Session in connection with such proceedings.
(2) Subject to subsections (3) to (5) below, legal aid to which this section applies shall be available to a child and any relevant person in relation to him in connection with—
(a) proceedings before the sheriff on an application for a child protection order or child assessment order, or for the variation or recall of such an order;
(b) an appeal to the sheriff under section 47 of the 1995 Act against—
(i) a decision of a children's hearing to grant a warrant such as is mentioned in subsection (5)(a) of that subsection; or
(ii) any other decision of a children's hearing;
(c) an application—
(i) by virtue of section 60(6) or (8) of the 1995 Act for a finding as to whether the grounds for a referral are established; or
(ii) under section (application for review of grounds of referral) of the 1995 Act for a review of such a finding;
(d) an appeal to the sheriff principal or to Court of Session under section 47 of the 1995 Act.
(3) Legal aid shall be available under subsection (2)(b)(i) above on an application made to the sheriff without inquiry into the resources of the child or the relevant person.
(4) Legal aid shall be available under subsection (2)(a),(b)(ii) or (c) above on an application made to the sheriff if the sheriff is satisfied—
(a) that it is in the interests of the child that legal aid be made available; and
(b) after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the case cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them.
(5) Legal aid shall be available under subsection (2)(d) above on an application made to the Board if it is satisfied—

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(a) after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the appeal cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them; and
(b) that the child, or as the case may be the relevant person has substantial grounds for making or responding to the appeal and it is reasonable, in the particular circumstances of the case, that legal aid should be made available accordingly.
(6) The Board may require a person receiving legal aid under subsection (2)(d) above or subsection (9) below to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive such legal aid.
(7) Subject to subsection (8) below, legal aid to which this section applies shall be available in connection with proceedings before the sheriff on an application for an exclusion order (or for the variation or recall of such an order) to—
(a) a child;
(b) a relevant person in relation to a child;
(c) a person who is a named person, or will be such a person if the application is granted;
(d) a spouse or partner of a person mentioned in paragraph (c) above; and
(e) a person who is an appropriate person, or will be such a person if the application is granted.
(8) Legal aid shall be available under subsection (7) above on an application to the sheriff if the sheriff is satisfied after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him that the expenses of the case cannot be met without undue hardship to the applicant or any dependent of the applicant.
(9) Legal aid shall be available in connection with any appeal to the Court of Session from a decision of the sheriff on an application for an exclusion order or for the variation or recall of such an order to any of the persons mentioned in paragraphs (a) to (e) of subsection (7) above on an application to the Board if it is satisfied—
(a) after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him, that the expenses of the appeal cannot be met without undue hardship to the applicant or any dependent of the applicant; and
(b) that the applicant has substantial grounds for making or responding to the appeal and that it is reasonable, in the particular circumstances of the case, that legal aid should be granted accordingly.
(10) Where in connection with any proceedings—
(a) the sheriff has been satisfied as is mentioned in subsection (4)(b) or subsection (8) above; or
(b) the Board has been satisfied as is mentioned in subsection (5)(a) or subsection (9)(a) above,
and has made legal aid available to any person, it shall not be necessary for the sheriff or, as the case may be, the Board to be so satisfied in respect of an application for legal aid by such a person in connection with any subsequent proceedings arising from such proceedings.
(11) Legal aid to which this section applies shall consist of representation by a solicitor and, where appropriate, by counsel in any proceedings (including any appeal) mentioned in subsection (1) above and shall include all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to such proceedings.
(12) In this section—
(a) "child" and "relevant person" have the meanings given by section 84(2)(b) of the 1995 Act;
(b) "child protection order", "child assessment order" and "exclusion order" have the meanings given by section 84(1) of that Act;
(c) "named person" and "appropriate person" have the meanings given by section 70 of that Act; and

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(d) "spouse or partner" shall be construed in accordance with section 73(4) of that Act.".").

The noble and learned Lord said: Amendment No. 199A has grouped with it a number of other amendments, namely Amendments Nos. 218A, 218B and 218C. For any of your Lordships looking at this formidable new clause for the first time, it would seem to be extremely complicated and difficult to follow. It may be helpful if I explain what the amendment does. It provides for technical amendments to the Legal Aid (Scotland) Act 1986. Section 29 of that Act provides for legal aid in certain proceedings relating to children. These are proceedings before the sheriff arising under Part III of the Social Work (Scotland) Act 1968 and related appeals. Part II of this Bill replaces and supplements Part III of the 1968 Act. It is therefore necessary to amend Section 29 of the 1986 Act to ensure that procedures in Part II are covered from the legal aid perspective.

Although this may seem an extensive and elaborate new clause, it should be noted that it begins by saying:


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