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Lord McIntosh of Haringey: My Lords, the noble and learned Lord the Lord Advocate has fallen straight into my trap. He did not repeat the speech made in another place. Instead he is guilty of what Fowler's Modern English Usage calls elegant variation. He cannot win whatever he does. As with the previous order, we commend the arrangements whereby the independence of the boundary commissions is secure. As I should have done in relation to the previous order, we congratulate the boundary commissions for both Wales and Scotland on the way they have carried out their work which has met with widespread approval from those particularly in another place who are most concerned with the recommendations.
But, again, the position in Scotland is that we have an order which will be shortlived. It will apply for the next election but it is most unlikely to apply without modification for any further election. The noble and learned Lord the Lord Advocate told the House that the Boundary Commission for Scotland had greater freedom with regard to crossing boundaries than the boundary commissions for England and Wales. But although it has taken the opportunity to cross regional boundaries in two cases by combining Lothian and Borders on the one hand and Central and Tayside on the other, it has taken the decisionwhich it need not have takento stick to regional electoral divisions. That may not matter too much in most of Scotland where the electoral divisions are relatively smallsay 3,000 or 4,000but in Strathclyde, for reasons that I do not fully understand (although I am sure my noble friends on the Front Bench understand them very well) these divisions are very large. Often they comprise 17,000 or 18,000. That certainly has led to anomalies. It has led to a particular anomaly as between Carrick, Cumnock and Doon Valley on the one hand and Ayr on the other hand. The Carrick, Cumnock and Doon Valley constituency, which is 10 times the size in area of the Ayr constituency, also has a very much larger electorate because the electoral district next to Ayr, which includes Alloway, is so large at 17,000 that if it were transferred to Ayr from the other constituency the imbalance in population would be even
Therefore, there are anomalies still in the way these matters are considered. Of course, as with Wales, the ongoing reformif that is the right wordof local government in Scotland will affect regional boundaries and boundaries of individual districts and will make it necessary to have the interim orders which the noble and learned Lord referred to in his speech. But, again, as regards the principle of these orders and as regards the independence with which the boundary commission has carried out its duties, we have no quarrel.
The Earl of Balfour: My Lords, I hope I may be permitted to ask my noble and learned friend one question. Assuming that this order in respect of Scotland is accepted, will the boundaries be on an Ordnance Survey map of the area? That is quite important to people who are trying to find out exactly where the boundaries lie. I know they appeared in the much older maps. I am perhaps asking an unfair question, not having given my noble and learned friend any notice of this, but I would like to have an answer at some time.
Lord Rodger of Earlsferry: My Lords, I do not think I can say that my noble friend's question is unfair. It is challenging and it is not one I can answer. I just do not know whether it is the intention to put the boundaries on the Ordnance Survey. I shall certainly find out and write to my noble friend while taking this opportunity to say that I am sure all noble Lords are happy to see him back in his place after his recent illness.
The noble Lord, Lord McIntosh, while welcoming the order, made points again about the particular problems which arise. I acknowledge that in particular in Scotland, with its regional electoral divisions, there have been anomalies. Indeed, as he knows, there were two judicial reviews brought, one arising out of Ayr in particular. But in the end the decision of the boundary commission was upheld. I think it recognises that the solutions are not ideal, but they partly arose because the local government boundary commission had not yet finished its work on the district wards. For that reason in future it will be open to the boundary commission to undertake further interim reviews of such scope as it considers appropriate. In the meantime, I commend the order to the House.
This is a small Bill with a single, limited purpose. At the same time, in order to scrutinise the Bill properly and to get it right, it has been necessary to take some account of the wider context in which the Bill is set
Because the Bill is important to the success of family mediation and because, sadly, as noble Lords have said, family mediation is increasingly important to many people, and notably to their children, it has been most encouraging that during our discussions the Bill has received support from all sides of this House, including the Cross Benches. The Government have been extremely helpful and supportive by making available the expertise of officials and parliamentary draftsmen, and, of course, in what Ministers themselves have said from the Dispatch Box.
I should like to place on record my appreciation of the contributions made by many people, both inside and outside this House, during the passage of the Bill. I am grateful to the Law Society of Scotland for its advice and support for the Bill; to the Comprehensive Accredited Lawyer Mediators (CALM) for the thoughtful, helpful and co-operative way they have contributed their experience and wise thinking which has led to useful amendments to the Bill; to Dr. Eric Clive of the Scottish Law Commission for his expert help in suggesting amendments; and to the Lord President of the Court of Session for his advice. I am sure that we all look forward to the introduction of the Lord President as a Life Peer in this House tomorrow.
I am also extremely grateful to noble Lords who have spoken so helpfully and constructively in our debates. From the Labour Front Bench the noble Lord, Lord Macaulay, with his usual skill and thoughtfulness, raised important points which have led to significant amendments to the Bill. From the Liberal Democrat Front Bench the noble Earl, Lord Mar and Kellie, has brought his supportive and professional social work experience to bear in a most useful way. The noble and learned Lord, Lord McCluskey, from his long experience as a High Court judge, in commending the Bill, pointed out a desirable improvement that might be made. The noble and learned Lord the Lord Advocate was subsequently able to respond with amendments which the House accepted on Report. The noble and learned Lord, Lord Simon of Glaisdale, who I am delighted to see is again in his place, has taken a close interest in our proceedings and has written to me about one point. My noble friend and neighbour, Lord Lyell, has given support with characteristic enthusiasm, for which I am grateful.
Above all, I am grateful to my noble and learned friends the Lord Advocate and Lord Fraser of Carmyllie for the work they have put in on the Bill, and to the officials of the Scottish Courts Administration and the Scottish Home and Health Department who have given generously of their skill and expertise and shown great patience and tolerance in so doing.
Last but by no means least, I pay tribute to Family Mediation Scotland, and notably to its director Susan Matheson, who is my principal adviser on the Bill and has done her best to assist other noble Lords who have asked for advice. Being a voluntary organisation, Family Mediation Scotland has limited resources at its disposal but its expertise and professionalism are of the highest
During its passage through this House we have amended the Bill in a number of important ways and, I believe, have improved it considerably so that it is now a workable piece of legislation within which mediators, with small adjustments to their present practice, will be able to work more successfully than ever before and with even more fruitful outcomes for their clients in Scotland.
Lord Simon of Glaisdale: My Lords, the noble Baroness, Lady Carnegy, periodically makes forays over the Border, and the noble and learned Lord the Lord Advocate, to general acclaim, carried through the Local Government (Wales) Bill. Flushed with that success, he has today carried through a measure of Welsh law. Despite that fact I am conscious that any contribution by English lawyers on matters of Scots law are rarely received with enthusiasm. I intervene at this stage to make three short points, and I do so early so that anything that I say which is incorrect may be corrected by the famous Scots lawyers who are present in your Lordships' Chamber.
My first point concerns a matter of general agreement, namely to congratulate the noble Baroness on having carried through this Bill. In England we have the same problem, namely the confidentiality of statements made during the course of marriage conciliation. My predecessor in office set up a small body of welfare officers founded on the probation service to assist in family conciliation, particularly as regards children. During my time that was extended because the various marriage guidance agencies were prepared to help. The National Marriage Guidance Council (now called Relate), the similar Roman Catholic body and the Jewish Marriage Council were all agreed that, if their work was to proceed, it was essential that it should be undertaken under the cover of confidentiality. Otherwise, parties would simply not be prepared to make candid statements to the person engaged in helping them. That is the problem that faced the noble Baroness.
In England we managed to proceed by judge-made law. I believe that in this branch of the law that is generally preferable. The judge-made law made it plain that statements made in the course of marriage conciliation would be privileged and would not be disclosed in subsequent proceedings. Although I have preference for judge-made law in this regard, I wholly agree with the recommendation of the Scottish Law Commission that in this case it was essential to have legislation. That is because judge-made law can proceed only when the suitable case comes up. It was impossible
I wish to mention a matter that I raised with the noble Baroness. She sent my second letter (she having thrown the first into the wastepaper basket) to the noble and learned Lord the Lord Advocate. He promptly answered it, and I am grateful. He will forgive me if I say that I am not sure that I entirely agree, for this reason. It is a question of retrospection. The issue was raised at Committee stage. It seems to me important that this veil of confidentiality should be drawn over conciliation whenever it takes place.
The normal English lawI do not know whether it is the same in Scotland; I believe that it isregarding construing statutes is that where a provision affects substantive law, there is a presumption against it being retrospective; but when it affects procedural law, there is a presumption that it is retrospective. Matters of evidence generally, and certainly in this case, are considered as matters of procedure. I believe that it is desirable that the Bill should be retrospective.
In his letter, the noble and learned Lord the Lord Advocate pointed out a complication. When I wrote to the noble Baroness I suggested that the point should be dealt with expressly on the face of the Bill. I do not now believe that that is desirable. I believe that the Bill should go through the other place on the nod. I apprehend that, if it does not do so, it would have great difficulty in being carried into law this Session. I merely ask the noble and learned Lord the Lord Advocate to keep open the possibility of argument for retrospection if I am right in thinking that that is desirable.
The last point that I wish to make arises from a remark by my noble and learned friend Lord McCluskey at Committee stage. He hoped that the system of mediation would be carried beyond the matrimonial law into the general civil law. I strongly agree with that. It seems to me highly desirable that no one should be embroiled in litigation if mediation, counselling, can avoid the conflict.
As for conciliation in matrimonial affairs, there have been overwhelming arguments in favour of a family court. That was suggested as long ago as the 1950s in evidence to the Morton Royal Commission on Marriage and Divorce. It has been taken up repeatedly ever since by persons of the highest authority. For example, the Law Society Family Law Committee has endorsed it. The only department which I know is opposed to it is the Lord Chancellor's Department. I venture once again to urge the value of a family court. In particular, I envisage that it should have two sides: a welfare side and a judicial side, rather like the Conseil d'Etat in France. The welfare side would have a conciliation department; and only after conciliation and counselling have failed would the matter go for resolution by the judge himself.
With those suggestions, I end as I began by congratulating the noble Baroness on having carried this far what I regard as an important and valuable measure.
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