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Lord Fraser of Carmyllie: My Lords, the only time I have felt a frisson of irritation during the course of the Bill is over this matter. I am as anxious as other noble Lords to ensure that the unique system that we have in Scotland of children's hearings should be maintained and improved wherever possible.

Why I indicated previously that we have to introduce this arrangement is that a children's hearing is an informal body. It is quasi-judicial and as such does not follow judicial procedure. It does not conform to the European Convention on Human Rights which, in Article 6, guarantees a fair hearing by an independent and impartial tribunal established by law which provides the procedural safeguards required by that article. This leaves hearing decisions open to challenge under the convention.

We are bound to take this matter very seriously because of our obligations under the European Convention on Human Rights. A wider range of disposals on appeal to the sheriff is necessary and this is provided in subsection (5) (c) (iii) of Clause 50. That, in our view, is the best way to preserve the hearings system, while meeting our international obligations.

This is a matter which we have considered with the greatest care, since we are, as the White Paper affirmed, strongly committed to the hearings system. With those strongest of reassurances, I hope the noble Lord can withdraw his amendment.

Lord Hope of Craighead: My Lords, I support the Minister on this point. I had experience of the difficulty of dealing with these matters on appeal. It is largely with the benefit of that background that the wording of the clause was constructed. This provision is necessary in order to give the court the power to deal with some difficult matters without the necessity to go back before the children's hearing, which may find it difficult to accept the factual basis upon which the court has to proceed, having allowed the appeal.

This is an extremely technical matter to explain. However, I can assure your Lordships that my experience tells me that this clause is valuable and I suggest that the Government have made the right decision to include it in the Bill.

Lord Macaulay of Bragar: My Lords, I am grateful to the Minister and the noble and learned Lord, Lord Hope, in connection with these matters. What concerns the people involved with child welfare and children's hearings is whether this is the best way to test the European Convention on children's rights.

As far as I am aware, no case has been taken to the European Court. According to a radio broadcast I listened to last week, it takes three to four years to obtain a decision from the European Court, but it is hoped to speed up that process by cutting out the Commission and therefore getting to the European Court fairly quickly.

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I still maintain—with the greatest respect, despite the views expressed in this short debate—that this provision runs contrary to Kilbrandon. Once we start running contrary to Kilbrandon on one view, we may as well give up the children's hearing system altogether. That may be a cynical view, but it is a view I express. It is perhaps a sad view that the criminal courts, the sheriff court, the High Court and so forth, including the European Court, are to be brought into the matter. Why cannot the children's hearing exercise a quasi-judicial decision which is open to judicial review? That is an entirely different animal from the sheriff being allowed to impose his own views on the children's hearing.

There is a lot of work to be done on this matter between now and Third Reading, if not afterwards. I cannot for the life of me see why the sheriff has been brought into this procedure to impose his decision on the panel and on the child. I hope that the Government will have another look at it. We should let one of the cases go to the European Court and let the European Court tell the children's panel that it is acting in contravention of the law. I am not convinced that this section is based on any European Convention. No doubt the Minister will attempt to convince me otherwise.

I am extremely unhappy about the intervention of the sheriff in what is, as the Minister said, a system unique to Scotland for dealing with children. If we are going to take them out of the children's system and dump them into the sheriff court, let us forget about children's hearings and get on with it. Let us put the children back into the sheriff courts as they used to be when I started practice; when the sheriff took off his wig and we all went into a room with the mother and father and discussed the situation. That is the easy way to do it. That is expressing a personal view, but I can see what the end result of this approach to the children's panel system will be. With those perhaps rather cynical observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 68:


Page 36, line 23, leave out ("or").

The noble and learned Lord said: My Lords, in moving Amendment No. 49, we spoke also to Amendment No. 68. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 69 and 70:


Page 36, line 25, after ("Act;") insert ("or
(iii) on an application made under section 82(1) of this Act;").
Page 36, line 27, leave out ("and (ii)") and insert ("to (iii)").

The noble Earl said: My Lords, in moving Amendment No. 49, we spoke also to Amendments Nos. 69 and 70. With the leave of the House, I shall move them en bloc. I beg to move.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 71:


Page 36, line 28, after ("and") insert (", with leave of the sheriff principal,").

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The noble and learned Lord said: My Lords, this amendment will be of interest not only to those of your Lordships who have been consistently active in the passage of the Bill but also, and in particular, to the noble and learned Lord, Lord Hope of Craighead. Those of your Lordships who were present at the Second Reading of the Bill will recall that he raised a number of issues on the Bill, including those in relation to the appeal procedure.

In response, my right honourable and learned friend the Lord Advocate entered into discussion with the Lord President of the Court of Session as to how the latter's concerns might be met in relation to the problem of the dual route of appeal. The result of those discussions, in which I also participated, has been to agree that we should not jeopardise the availability locally of appeals in the sheriff courts through the appeal route provided in Clause 50(11) to the sheriff principal from decisions of the sheriff.

It was also agreed that we should not jeopardise the opportunity of direct appeal to the Court of Session in those cases where it seemed appropriate for such an appeal to be brought, say, where there were major issues. However, there did seem some question as to whether it was necessary to allow an unlimited right of appeal from the sheriff principal in every case.

As a result, it has been decided that there should continue to be an appeal route from the sheriff principal but that this should only be with leave of the sheriff principal. I am pleased that the outcome of our helpful discussions has led to this straightforward conclusion and a relatively simple amendment. I beg to move.

On Question, amendment agreed to.

Clause 51 [Children requiring compulsory measures of supervision]:

The Earl of Lindsay moved Amendment No. 72:


Page 37, line 36, leave out paragraph (l).

The noble Earl said: My Lords, this is a technical amendment which removes a condition which is not now necessary. I beg to move.

On Question, amendment agreed to.

Clause 52 [Provision of information to the Principal Reporter]:

The Earl of Lindsay moved Amendment No. 73:


Page 38, line 23, leave out from ("Where") to end of line 24 and insert ("an application has been made to the sheriff—
(a) by the Principal Reporter in accordance with a direction given by a children's hearing under section 63(6) or (8) of this Act; or
(b) by any person entitled to make an application under section 82 of this Act,").

The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 49. I beg to move.

On Question, amendment agreed to.

Clause 54 [Child assessment orders]:

The Earl of Lindsay moved Amendment No. 74:


Page 40, line 10, leave out subsection (6).

The noble Earl said: My Lords, in moving Amendment No. 74, I shall speak also to Amendments Nos. 78, 89, 90, 141, 143, 144, 146, 153, 154, 156, 157

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and 160. This group of amendments has one common aim—to rationalise the provisions in Part II of the Bill in relation to the making of court procedure rules for the purposes of that part. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begin again not earlier than 7.45 p.m. but as soon as possible thereafter.

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


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