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The Earl of Lindsay moved Amendment No. 49:


Page 31, line 3, leave out ("or section 73(1)") and insert (", section 73(1) or section 82(1)").

The noble Earl said: My Lords, in moving Amendment No. 49, I also wish to speak to Amendments Nos. 64 to 66, 68, 69, 70, 73, 113, 115, 119, 120 and 121. These amendments are also minor and consequential. I beg to move.

On Question, amendment agreed to.

5 Jul 1995 : Column 1147

Lord Macaulay of Bragar moved Amendment No. 50:


Page 31, line 22, leave out subsection (5).

The noble Lord said: My Lords, this is an amendment to Clause 43 of the Bill in relation to the publication of proceedings at children's hearings. Its objective in leaving out subsection (5) of this particular clause is that no proceedings in a children's hearing should be published at all. As was discussed in Committee, the Secretary of State for Scotland has a power to order the publication of children's hearings, but it has never to my knowledge been used.

It is important to remember that the whole purpose of children's hearings in Scotland was to contain dealings with children within the community, with access between the Children's Panel, the parents and the child and with reference to the sheriff to find out whether grounds of referral were justified. To allow publication of the hearings in any shape, manner or form would be contrary to the proposals of Lord Kilbrandon, who set out the guidelines that children should be dealt with within the community.

Children are sent to a hearing for a variety of reasons. If they have committed some horrible crime such as murder, rape or arson, they will not be dealt with within the children's hearing system; they will be dealt with through the normal court process, assuming that they are over the age of criminal responsibility. It would not help the running of the children's hearing system if anyone were allowed to report the basis or the decision of the hearing or to name the children or their parents. That is why this amendment was tabled.

Many people will say that children would not be at the children's hearing if they had not done something wrong. But that is not the point at issue. The whole point of a children's hearing is to set a child who has gone wrong in whatever way back on the right road. The worst approach is to publicise his or her appearance before the children's hearing and let neighbours and peers at school know that the child has been before the hearing and has been dealt with. This amendment was tabled for the protection of children. That is an essential ingredient of the Bill. On that basis, I beg to move.

Lord Fraser of Carmyllie: My Lords, this amendment is identical to one that the noble Lord tabled at Committee stage. It remains my view that a dispensing power is necessary to provide for exceptional cases in the interests of justice.

The noble Lord will be aware that the Secretary of State already has such a general power in the 1968 Act. The Children Act 1989 extends such a power to both the court and the Secretary of State. The noble Lord is absolutely right: these powers are not to be used lightly; nor have they been used in the past. But there may be circumstances, however rare, where it may be appropriate to dispense with the prohibition. This long-stop provision ensures that, should such a situation arise, either the court or the Secretary of State has the necessary powers available. I stress that it is very much a long-stop provision. With that assurance, and knowing the history of this provision, I hope that the noble Lord will withdraw his amendment.

5 Jul 1995 : Column 1148

Lord Macaulay of Bragar: My Lords, I am always very intrigued by the phrase "the interests of justice". The question is: justice to whom? Is it justice to the individual or to what we care to call society? Obviously the amendment is not acceptable to the Government, so there is no point in my pressing it. I have not yet heard who is to be Secretary of State for Scotland. I hope that whoever it is will take on board the Minister's remarks. I am sure that whoever he is—and I have a suspicion who it might be—will exercise his humanity and will not allow to be broadcast anything that happens within the children's hearing system subject to the guidelines provided by the Minister. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 [Attendance of child and relevant person at children's hearing]:

Lord Fraser of Carmyllie moved Amendment No. 51:


Page 31, line 34, after ("shall") insert ("—
(a) have the right to attend at all stages of the hearing; and
(b) subject to subsection (2) below,").

The noble and learned Lord said: My Lords, government Amendments Nos. 51, 53, 55 and 58 are grouped with a number of other amendments tabled by other noble Lords. An undertaking was given in another place to consider the introduction of a provision that would extend to a child the right to attend all stages of a children's hearing. Following an amendment in Committee by the noble Lord, Lord Macaulay, we undertook to bring forward these amendments. They fulfil the commitment by giving the child an unqualified right of attendance. The amendments also ensure, however, that the hearing may proceed in the absence of the child.

The later amendments in my name introduce a similar right for the child to attend a hearing of an application before a sheriff to establish the grounds of referral. I beg to move my Amendment No. 51. Given that explanation, I hope that the noble Lord will feel that he need not bother to move his amendments.

On Question, amendment agreed to.

[Amendment No. 52 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 53:


Page 31, line 34, leave out ("that hearing") and insert ("those stages").

On Question, amendment agreed to.

[Amendment No. 54 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 55:


Page 31, line 36, leave out ("the provisions of") and insert ("subsection (1) (a) above and").

On Question, amendment agreed to.

[Amendments Nos. 56 and 57 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 58:


Page 31, leave out line 44 and insert ("they may release the child from the obligation imposed by subsection (1) (b) above.").

On Question, amendment agreed to.

5 Jul 1995 : Column 1149

[Amendment No. 59 not moved.]

Clause 48 [Referral or remission to children's hearing on conviction]:

Lord Fraser of Carmyllie moved Amendments Nos. 60 to 63:


Page 33, line 31, leave out from ("requirement") to end of line 33.
Page 33, line 40, at end insert:
("(1) Where a person, who is charged with an offence and pleads guilty to, or is found guilty of, that offence, is aged sixteen years or over and is subject to a supervision requirement, the court if it is—
(a) the High Court, may; and
(b) the sheriff court, shall,
proceed in accordance with either paragraph (i) or (ii) of subsection (1) above.").
Page 34, line 18, leave out from ("requirement") to end of line 20.
Page 34, line 27, at end insert:
("(1) Where a person, who is charged with an offence and pleads guilty to, or is found guilty of, that offence, is aged sixteen years or over and is subject to a supervision requirement, the court shall proceed in accordance with either paragraph (i) or (ii) of subsection (1) above.").

The noble and learned Lord said: My Lords, Clause 48 amends Section 173 of the Criminal Procedure Act 1975 to extend the involvement of the children's hearing where a court is considering the case of a young person who has committed an offence. It was pointed out that the amendments to that section remove an existing obligation on the court to take the advice of the children's hearing in respect of young people aged 16 years and over who are subject to a supervision requirement. These amendments reintroduce that obligation. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 50 [Appeal against decision of children's hearing or sheriff]:

Lord Fraser of Carmyllie moved Amendments Nos. 64 to 66:


Page 35, line 20, leave out from ("generality") to end of line 21 and insert (", the sheriff may—
(a) examine the Principal Reporter;").
Page 35, line 22, leave out ("the sheriff may").
Page 35, line 24, leave out ("may").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 49, my noble friend also spoke to Amendment No. 64. I beg to move.

Lord Macaulay of Bragar moved Amendment No. 67:


Page 35, line 42, leave out from ("case") to end of line 45.

The noble Lord said: My Lords, this is an amendment to Clause 50 of the Bill under consideration. Its basis is that the sheriff who hears a case should not be allowed to substitute his own decision in place of decisions that might be made by the children's hearing.

I return to the point that I made earlier. The whole point of the children's hearing is that children should be dealt with within the community and on the basis of the children's hearing. To allow the sheriff to enter the process and impose his own view of the case is quite contrary to the Kilbrandon principles. If that is to be allowed, it is the thin end of the wedge—taking the disposal of children in Scotland out of the children's

5 Jul 1995 : Column 1150

hearing system and into the ordinary courts. The whole purpose of the Kilbrandon Report in setting up the children's hearings in 1968 was to keep children out of the courts. On that basis, I beg to move Amendment No. 67.


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