Orders of the Day — Civil Evidence (Scotland) Bill [Lords]

– in the House of Commons at 12:00 am on 4th July 1988.

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As amended (in the Standing Committee), considered.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 3:34 pm, 4th July 1988

I beg to move, That the Bill be now read the Third time.

In fairness to the House, I should mention that the hon. Member for Glasgow, Garscadden (Mr. Dewar) pointed out that I spoke for a substantial time on Second Reading. We also had full debate on four mornings in Committee. I shall speak more briefly today.

Hon. Members have given a general welcome to the Bill and I am glad that they have done so. As the hon. Member for Garscadden said on Second Reading, the Bill is a significant law reform measure"—[Official Report, 16 May 1988; Vol. 133, c. 743.] It implements, with certain changes, the Scottish Law Commission's report entitled "Corroboration, Hearsay and Related Matters in Civil Proceedings." I give the full title of the report as it makes clear that the Bill has no relevance to criminal proceedings.

A particular aim of the Bill is to ensure that a court should, generally speaking, have available to it all the relevant evidence from whatever source. The Bill seeks to achieve that by the two provisions which appear at the beginning of the Bill. The requirement for corroboration in civil proceedings is abolished in clause 1, while clause 2 provides that evidence is not to be excluded solely on the ground that it is hearsay. I am sure that the Bill will be regarded as a welcome simplification of the law. It will have the result that cases which previously would not have been heard in court will now be heard as a result of the admissibility of hearsay evidence and the removal of the often technical barrier of the requirement of corroboration.

My noble and learned Friend the Lord Advocate remarked in the other place that the Bill contains what some may regard as radical changes to the law of civil evidence. It seems, however, that we in Scotland have set a precedent for our colleagues south of the border. As hon. Members may have noticed, the recent report of the Lord Chancellor's review body on civil justice referred to the present Bill and concluded that it appeared that an inquiry was needed to consider whether the hearsay rule should be abolished in England and Wales also

On Second Reading the hon. Member for Paisley. South (Mr. Buchan) told us of his nostalgic memories of the Law Reform (Miscellaneous Provisions) (Scotland) Bill 1968. The subsequent 1968 Act led to the removal of the requirement for corroboration in actions for damages. for personal injuries. The hon. Gentleman recorded his pleasure in listening to the rustle of dead leaves. From the official records we have evidence of more than the rustle of dead leaves. The 1968 Act has burgeoned. The Bill under consideration achieves the abolition of the requirement of corroboration in civil proceedings.

We considered fully the Bill's provisions on Second Reading and in Committee. The wide-ranging debate has led us into some matters at the edges of the Bill's provisions or even perhaps beyond them. However, the result has been a full consideration of the Bill's provisions and I am grateful to all hon. Members who have contributed to our debates. On Second Reading my hon. Friend the Member for Dumfries (Sir, H. Monro) congratulated the commission on bringing forward the report on which this Bill is based. He was right to do so. I am sure that the Bill will be regarded as a further important contribution to the reform of the law of Scotland

Photo of Donald Dewar Donald Dewar , Glasgow Garscadden 3:38 pm, 4th July 1988

This will be a brief speech because, although we did not have a long Committee stage, it was an adequate one in which most of the points were given a reasonable airing. That in itself is interesting because only a few years ago this would have been a contentious Bill. The fact that it is no longer so shows our more pragmatic approach to the problems of law reform.

I had a little innocent entertainment on Second Reading and in Committee by referring to the debates on the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. I would never talk about the rustling of dead leaves, but on that occasion the Conservative Opposition spokesman—now Lord Wylie—expressed horror at that modest loosening of the requirements of corroboration, which he described as offensive. His reaction was entirely genuine and no one could accuse him of taking a reactionary view, but it shows how far we have moved. On this occasion, no one had a serious objection to the concept that hearsay and corroboration should be relaxed more generally—not just for some actions for personal damages, but across the scope of civil actions in Scotland.

As the House will remember, although the Scottish Law Commission, whose report was the basis of the Bill, paused and considered a different approach in consistorial actions, it came to the conclusion—rightly—that that distinction could not properly be maintained. Although at least one submission suggested that there was a risk of civil proofs being decided on one piece of uncorroborated hearsay evidence, few people doubted that, at least in broad terms, the Bill was a move in the right direction and that we should welcome it.

In Committee our arguments were limited. I expressed some doubts—he Minister worked long and hard to assure me that they were unfounded—about cases in which people were ambushed by hearsay evidence in the middle of a proof. One party's evidence may throw up a hearsay statement that is not likely to be the subject of further evidence from the person who is alleged to have made it, and I was anxious about the right to challenge and cross-examine, which is fundamental to the search for truth in the courts. The Minister relied heavily on clause 4, which he thought was sufficient to provide an unfettered right for the party at the wrong end of the hearsay evidence to produce a relevant witness to speak to that statement. I am reasonably satisfied with that

I make no complaint about it, because we have moved quickly with the Bill, but I note that in Committee the Minister said: There is no question that, in principle, additional witnesses can be called right up to the commencement of closing submissions. Regarding the citation of witnesses, if aparty is taken by surprise by hearsay evidence, he could say that he wanted to call the witness involved. It is more likely that the witness is available, but not called. In those circumstances, the other party could make it clear to the court that the best available evidence had not been relied upon in that the witness involved had not been called.The hon. Member for Garscadden asked what procedural steps would be taken. I shall make inquiries about what the relevant motion and form should be and I shall send him a letter about that."—[Official Report, First Scottish Standing Committee; 21 June 1988, c. 56.] The letter has not yet reached me, and I am still not clear. There seemed to be a slight difference in the advice being offered by the Minister. First, he said that there was no problem because under the normal rules of procedure in clause 4 the party with an interest in rebutting or minimising the impact of the hearsay statement would have no difficulty producing the necessary witness or witnesses. But then he said that the party can make hay by commenting that it was hearsay, that the witness could have been produced and that the best evidence had not been put before the court. I recognise that the Minister has hardly had time to catch up with what has happened, so it may be a matter for further correspondence.

In Committee, amendment No. 6 was an attempt to deal with a case in which someone has gone back on a precognition in the box, but because a precognition is not included in the definition of a statement in the interpretation clause, in effect one cannot put to him the facts contained in the precognition. The Minister seems to be saying that the precognition clerk can always be called, but I am not sure how that would work, so perhaps he will say something about it.

I have no wish to delay the House with a highly technical matter, so I conclude with a few words about something that we touched on but did not discuss, largely because the Minister said that he wanted to think about it. It is a matter of some moment. In the interpretation clause, clause 9, there is a definition of civil proceedings, which deals with any hearing by the sheriff under section 42 of the Social Work (Scotland) Act 1968. The definition makes it clear that these are civil proceedings, so corroboration and hearsay would not apply, but it excludes a referral under section 32(2)(g) of the 1968 Act.

Those who follow these matters will know that this is a circumstance in which the ground for referral is based upon an alleged criminal offence. I tabled a probing amendment to include one other ground—section 32(2)(d), which refers to offences for which the grounds for referral are offences under schedule 1 of the Criminal Procedure (Scotland) Act 1978, which are a series of offences involving physical and sexual abuse of children. If that had been proceeded with, the relaxation of hearsay and corroboration rules would not apply in this case either. That narrow category would have been removed from the definition of civil proceedings.

I recognised that this was likely to be controversial; for unfortunate reasons, this whole subject is particularly sensitive at the moment, but that is genuinely coincidental. I tabled the amendment because I thought there was a case for debating the subject. I know that my hon. Friend the Member for Aberdeen, South (Mr. Doran) made a well informed and combative contribution on it in Committee in which, to put it in legal language, he made it clear that he would not have touched the amendment with a barge pole, and I can understand that. I am aware that there are tremendous sensitivities about this issue. I know of a number of experiences from my constituency, and I am sure that my hon. Friends have heard of similar ones. There is no doubt that any allegation of sexual abuse of children must be taken with enormous seriousness by the authorities. There was unanimity in Committee about the fact that the interests of the child are and must be paramount in such circumstances.

I mention another aspect in passing. If such an allegation is made, and even if no formal proceedings in the courts or by a children's panel are taken, the stigma that results often continues for a considerable time. If there is a finding on the ground of referral after a section 42 proof, that stigma will be a serious matter for the entire family. It was to discuss this difficult area that I tabled the amendment. I accepted that it would be controversial, but I felt that it should be examined. It arose directly in the definition clause of the Bill.

As my hon. Friend the Member for Aberdeen, South and the Minister have said, this is a matter of some significance. The view of the Association of Reporters to Children's Panels is that in some cases a finding of a referral being established would succeed with the relaxation of the corroboration and hearsay evidence, but would not if the normal rules, as we have known them until this Bill, continued. Perhaps it is a small number of anxious cases, but the balance is important, and clearly it will be affected by the Bill.

The Minister truncated out debate—I make no complaint about that—by saying that he wanted to think about the amendment, consult and then come back to us. He has come back with astonishing speed, because we debated the matter only 10 days ago, towards the end of June. The Minister wrote to me on 30 June saying that he had no intention of changing the Bill as it stands, which will come as no surprise. However, as he has been courteous enough to write to me, and as I know that the matter has attracted some interest and is so sensitive, it would be no bad thing if, during this debate, his defence and the fact that he has decided to rely on the contents of the Bill and the definition of "civil proceedings" in clause 9 were recorded.

The Minister argues in his letter to me that a change would be "neither necessary nor desirable". I understand the force of what he says. I gather that he has had the opportunity to discuss the matter with the Association of Reporters to Children's Panels. He also relies on the original consultation, the Scottish Law Commission report, in which there was consideration of that point. Having spoken to the reporters, the Minister is satisfied that there is no need for change. I would not necessarily quarrel with that.

I notice that, in his letter, the Minister argues that if the change went through relatively fewer of the cases under ground (d), as compared with cases under the other grounds (other than ground (g)) would be the subject of a referral. In other words, the Minister's fear is that, if the amendment had been incorporated, reporters would recognise that if one was dealing with a schedule 1 offence or the allegation of a schedule 1 offence, one would not have been able to go to proof in the knowledge that corroboration and hearsay had been relaxed and that there might therefore be a tendency to look for other grounds of referral. I can see that, although I should be a little surprised if it was a major consideration.

It was worth discussing this matter. The Minister is saying that allegation of those offences will now be taken on the new standard of evidence, although at a later date criminal prosecutions might not or could not be mounted in the same set of circumstances. There is a gap and a difference of perception, which could lead to some difficulties.

However, I am content to let the matter rest. I accept that there is an obvious distinction between the offence grounds—that is, section 32(2)(g)—and all the other grounds under section 32 of the 1968 Act, which is that the standard of proof is different. In other words, under section 32(2)(g) one has to prove beyond reasonable doubt, while in all the other matters, including ground (d) based on schedule 1 offences, it is on the balance of probabilities. If one had been going to alter the present Bill to retain hearsay and corroboration in that wider group of offences when they constitute a ground of referral, almost inevitably one would have had to look at the standard of proof as well, or one would have had a strange stepped and staired situation. I accept that there is probably no case for doing that.

On balance, I must accept the advice from the professionals that the best way to maintain a flexible legal capacity to take powers to protect a child who is at risk is to leave the Bill as it stands. I am prepared to do so—indeed, I must, as the Bill is at the end of its road. In any event, I should not wish to pursue that point, although it was worth raising; it was important. It was right that the Committee should consider it, however briefly. It tempted the Minister to write in a considered way, after some thought, on the lines that I described to the House.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Defence), Shadow Spokesperson (Defence) 3:54 pm, 4th July 1988

The Bill enjoys all-party support which in no small measure is due to the rigorous analysis and presentation of the Scottish Law Commission, whose recommendations form the basis of the Bill. Some hon. Members may be aware that the present chairman of the Scottish Law Commission, Lord Maxwell, is shortly to retire. Those of us who have had any dealings with him or who are aware of the quality of the work under his chairmanship of the commission will wish to congratulate him on that work and to extend good wishes to his equally illustrious successor, Lord Davidson, who will take up his responsibilities at the beginning of October.

This Bill is a necessary and desirable reform of rules of evidence which were once seen as the bulwark of our civil law, but which are now seen as obstacles standing in the way of justice. I retain the same views as I expressed on Second Reading about the extent to which civil proceedings are defined in the Bill. I have a suspicion that they are insufficiently defined and that some controversy may yet arise in practice about whether the definition is apt to embrace all the circumstances which may arise.

I take this opportunity yet again to draw to the Minister's attention a point which I made previously. The effect of relaxing the rules of corroboration and hearsay means that a person may now sue for £10 million, for example, in the sheriff court without any corroboration, while before a tribunal of another kind concerned, for example, with whether a patient obtained faulty treatment from a dentist—that example has recently come within my knowledge in respect of a constituent—such a party seeking to establish faulty treatment will still be met by the need for corroboration and by the exclusion of hearsay evidence.

When that matter was raised on Second Reading the Minister responded favourably to my request to consider it, and since then the Minister with responsibility for health in Scotland has made clear in correspondence a similar willingness to consider the point. I hope that the Minister will stress that these assurances are genuine and that the approach taken will reflect in degree the substantial alteration in the rules of evidence which we are about to enforce today.

I cannot conclude without reminding the Minister that the welcome given to the relaxation of the rules on corroboration and hearsay is expressly and advisedly confined to civil proceedings. The need for corroboration in criminal proceedings remains paramount. I invite the Minister in his reply to respond in a way which will alleviate any doubts that some of us may have that these proposals are the forerunner for similar proposals in criminal law. If the rule requiring corroboration and against hearsay were ever removed, either expressly or by implication, from the criminal procedure in Scotland, it would create a wholly unacceptable disturbance of the balance of that legal system, which is separate and distinct from the criminal law which pertains in England and Wales.

With those reservations, I welcome the Bill. I do not believe that there will be a Division on it. The Bill will bring necessary progress in an area of our law where existing rules have become obstacles. For those reasons, I commend the Bill to the House.

Photo of Andrew Welsh Andrew Welsh , Angus East 3:59 pm, 4th July 1988

In some ways this has been a very strange Bill. The lawyers to whom I spoke gave it a general welcome, although they always added "but" and never quite finished the sentence. There were some individual doubts and reservations, but none of great substance, and that is probably as much success as any legislation will ever receive. It is perhaps a compliment to the Scottish Law Commission, which has produced a report and recommendations that the Government could follow without too much major variation.

There are, however, some lingering doubts, especially on the question of the new rules of evidence applying to civil as opposed to criminal law. Although the changes in the Bill with regard to civil procedure are acceptable and welcome, hearsay evidence would not be welcomed if transferred to criminal procedure. Although the Minister has given some assurances, he still has not categorically denied that any such switch in procedure will be made. He should be well warned that there would be opposition on both sides of the House to any such move.

Another major problem—perhaps slightly outside the scope of the Bill—was reflected in relation to the difficulties involving the Scottish Legal Aid Board. The Bill has allowed the problem to be aired. I hope that the difficulties alluded to have been taken on board by the Government, and will be dealt with in detail when changes are made in the near future.

May I thank the hon. Member for Glasgow, Garscadden (Mr. Dewar) for the series of excellent legal seminars with which he graced the Committee? No doubt legal students in Scotland were following his words. It is a rare joy to watch a politician who is happy in his work, and the hon. Gentleman was certainly happy in his Committee work.

I also thank the Minister for his customary courtesy in dealing with a Bill which I hope will bring to reality the promised reforms that it seeks to promote.

Photo of Alistair Darling Alistair Darling Shadow Spokesperson (Home Affairs)

As has been said, the Bill is largely non-controversial and has been welcomed by hon. Members on both sides of the House.

I should like to raise three points. The first, which was mentioned in Committee, is the question of procedure before tribunals. As was said by the hon. and learned Member for Fife, North-East (Mr. Campbell), it would be quite wrong if a claim could be pursued through the Court of Session or the sheriff courts in Scotland without being bound by the rules of corroboration and with the admission of hearsay evidence. On the other hand, if someone appearing before a social security tribunal, for instance, did not have that advantage, his case could be seriously prejudiced.

The Minister will realise that the vast majority of those who appear before tribunals are not legally represented, and often have to fund the expense of appearing themselves. It would be grossly unfair to penalise them simply because the Bill as now drafted means that they might have to obtain corroboration, and might not be allowed hearsay evidence. The Minister said in Committee that he did not believe that that would be a problem, and that being bound by corroboration would be the exception rather than the rule. Nevertheless, I would like to press him on the point. A great deal of hardship may be caused, along with natural and justfiable resentment on the part of those who are often least able to protect themselves. I should not be surprised, given the Government's present attitude towards social security claimants in general, if they sought to use a sledgehammer to have a go at those who might dare to claim against the social security fund.

My second point is worth emphasising, because we live in times in which many things previously thought impossible have become possible under the present Government. I should like the Minister to reiterate that there is no question of corroboration being relaxed in criminal proceedings. He gave a sort of undertaking at the beginning of the Committee stage, and we were all surprised to find when we read the proceedings that they were headed not Civil Evidence (Scotland) Bill but Criminal Evidence (Scotland) Bill. We were naturally concerned in view of the Minister's fervent denials only 48 hours before. It is important that the Minister states categorically on behalf of the Government that there will be no question of corroboration being dispensed with in criminal cases. It is a cardinal rule on both sides of the border, and should never be thrown away.

On the first day of the Committee proceedings, I mentioned no-fault liability and the Minister undertook to look into it. I was not able to take part in the second half of the Committee's deliberations, for reasons of which I think that the Minister is aware. I read in the proceedings, however, that he had said that the Lord Chancellor was considering a scheme of no-fault liability in regard to motor accidents.

I am not sure how much of an extension that is of the existing knock-for-knock scheme operated by insurance companies, but I welcome the fact that at long last the door has been opened. While such a scheme is not without difficulties, it would relieve considerable suffering and hardship if it could be established to allow someone to receive compensation, and then allow an organisation funded by the state to act against the wrongdoer. Years of hardship and uncertainty could be relieved, and I am glad that, although the Minister has not opened the door as wide as I should like, he has at least opened it a little. In years to come, we may look back on these proceedings as a time when the Government showed themselves willing to consider the possibility.

The Bill goes a long way towards alleviating some of the difficulties that have been experienced in Scotland, but such schemes as no-fault liability ought to be considered. This is the first opportunity that I have had to thank the Minister for considering the matter in Committee. I look forward particularly, however, to his undertakings on tribunals.

Photo of Frank Doran Frank Doran Shadow Spokesperson (Energy and Climate Change) 4:06 pm, 4th July 1988

I apologise to the Minister, who clearly thought that his ordeal was over!

I want to concentrate on one simple point: the effect of the Bill on the children's hearings system. Given the comments made by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), it is important to consider the position in Scotland. Later this week, the House will consider the results of the Cleveland inquiry. Many of the faults that that report will throw up were considered a long time ago in Scotland, and, although the children's hearings system there is not perfect, I think that on examination it will be shown to be dealing very satisfactorily with all the problems referred to in the Cleveland report.

For example, we have the unique post of the reporter of the children's panel, who is independent of the courts, the police and the social services. That system operates far more speedily than the English system, and there is a right of appeal from the earliest stages. The courts are statutorily obliged to hear appeals as quickly as possible, and the "place of safety" procedures allow the parents to become involved very early. I hope that those who speak for the Government will he present when we discuss the Cleveland report so that the benefits of the Scottish system can be made plain to them.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

I have listened carefully to what my hon. Friend has said about the children's hearings system. There is also the important concept of the role of the safeguarder, who is concerned directly with the interests of the child. That concept ought to be developed further in the Scottish system.

Photo of Frank Doran Frank Doran Shadow Spokesperson (Energy and Climate Change)

I agree entirely. In fact, I was one of the first safeguarders appointed in the Tayside region, and I operated for a couple of years in that capacity, so I have some experience. My hon. Friend is right to point out that where there is a conflict between the interests of the parent and those of the child we have that special officer, who is appointed by either the court or the children's hearings system.

We debated on Second Reading and in Committee how much easier it would be for the reporter to obtain evidence and establish grounds—particularly those of child sexual abuse—as a result of the inclusion of the grounds under the Social Work (Scotland) Act 1968 and the application of this Bill. Let me say how grateful I am for this opportunity, as are all those who have been involved with the child care system in Scotland, for this opportunity. In Committee, I gave a graphic example of how this could operate in practice. Any measure which adds to our ability to protect extremely vulnerable children while safeguarding the rights of the parents must be applauded. I am therefore grateful that the Minister has not sought to bring back the amendment to which my hon. Friend the Member for Garscadden referred and that the way has been opened for more successful prosecution of offenders and protection of children who are abused.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 4:10 pm, 4th July 1988

I thank hon. Members for their general welcome for the Bill. I congratulate the hon. Member for Edinburgh. Central (Mr. Darling) on becoming a father, which was why he could not be present when I made my statement on no-fault liability.

Strong views have been expressed in the House about the need for corroboration in criminal law. Those views will be imparted to the Scottish Law Commission, which is carrying out a study of the subject, and I am sure that they will be taken into account. I do not wish to say anything that would limit the remit of that study.

With regard to tribunal proceedings, the final paragraph of the notes on clauses in relation to clause 9 states: In its application to arbitrations, tribunals, inquiries and other proceedings conducted under a procedure agreed between the parties an exception is made for proceedings in relation to which specific provision has been made as regards the rules of evidence which are to apply. But generally the relaxation brought about by the Bill would apply.

I thank the hon. Member for Angus, East (Mr. Welsh) for his general welcome for the Bill. I answered his points on the last day of the Committee when he was not present.

The hon. and learned Member for Fife, North-East (Mr. Campbell) raised a number of other points. I can only say that they will be taken into account in the Scottish Law Commission report.

The hon. Member for Glasgow, Garscadden (Mr. Dewar) raised a couple of very serious matters. He said, first, that we should have a search for the truth and, secondly, that allegations which lead to a stigma should be very carefully considered. The hon. Gentleman's comments on the first point are covered by clause 4. The Committee agreed that a precognition may not report precisely the words of the person precognosced. As such, that would be an unreliable basis on which to attack credibility. The hon. Member for Garscadden asked how credibility could be attacked in those circumstances. Clause 4 provides that, with the leave of the court, the person may be called or recalled as a witness at any time before the presentation of evidence is concluded. The fact that a person has previously been in court is no bar to such calling or recalling. Therefore, if it is desired to challenge a witness's credibility by reference to what that person is reported in the precognition as having said, it can be done by calling as a witness the precognoscer—that is, the person who interviewed the witness and wrote the precognition.

I promised to write to the hon. Member for Garscadden about the procedural points, but I have made inquiries and can give him a reply now. There are no court procedural rules about this. As I said, it is a matter for the discretion of the judge. If the hon. Gentleman wishes to pursue the matter further in correspondence, he can do so. Strictly speaking, responsibility for making rules both for the Court of Session and for the sheriff court is that of the Court of Session. The rules are made by the Court of Session as recommended by the Court of Session and sheriff court rules councils, which are independent bodies.

We are bound to take very seriously the extremely important issue of child abuse, especially as the numbers of cases have been increasing. The hon. Member for Garscadden stressed his concern about the stigma that might be placed on other members of the family when a child is referred following a children's hearing but without there being adequate evidence for criminal prosecution of another member of the family. As the law stands, there are already different standards of proof for children's hearings and criminal proceedings. With one exception, all the grounds for referral of a child as in need of compulsory measures of care are on a "balance of probabilities" rather than "beyond reasonable doubt". The exception relates to the case of an offence by a child, where the test of "beyond reasonable doubt" would apply. In all other cases, the test would be that of the "balance of probabilities". That distinction is not introduced by the Bill—it has existed for almost 20 years. Under the 1968 Act, the standard of proof remains the "balance of probabilities" and in criminal proceedings it remains "beyond reasonable doubt". The Bill will make it easier for a child to be referred as referral will be possible on hearsay or uncorroborated evidence. That is clearly in the best interests of the child. If a reporter has been over-zealous in referring a child to a children's hearing, application can be made to the sheriff for the evidence to be considered afresh.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

With regard to the prosecution of child abuse cases, will not a wide gap open up between the English and Scottish procedures? Clause 31 of the English Criminal Justice Bill introduces closed-circuit television recording of evidence given by child witnesses in such cases. Is that gap to remain, or does the Minister intend to plug it in the near future?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I shall look into that and write to the hon. Gentleman. If there is the possibility of a criminal case, discretion would be in the hands of the procurator fiscal, depending on the evidence. If it is thought that there has been criminal action but there is inadequate evidence to bring the matter to court, it would go to a children's referral. This is an extremely sensitive area. I will look into the point raised by the hon. Gentleman and write to him about it.

If there are different standards of proof, there will inevitably be circumstances in which events within a family will merit the referral of a child but will not justify criminal prosecution of another member of the family. The child may require measures of care and protection even though the evidence available does not justify a criminal trial. Regrettably, there are cases in which there is insufficient evidence for a criminal prosecution but sufficient evidence for steps to be taken to protect the child.

The reference to stigma implies that a neighbour will readily know what has been said at a children's hearing relating to another family, but that is not so. The Social Work (Scotland) Act 1968 expressly prohibits publication of a report of proceedings at a children's hearing or before the sheriff. That Act prohibits revelation of the name, address or school of the child or the inclusion of any particulars calculated to lead to identification of the child. That is an important safeguard. Proceedings before a hearing are strictly confidential and members of hearings may not keep any report supplied to a hearing. Thus, if neighbours find out about unfortunate events within a family, it will not be from a report of what has happened at a children's hearing.

The hon. Member for Garscadden asked whether the subsequent consultation had been a little hasty. We consulted earlier with the Convention of Scottish Local Authorities, the regional and islands reporters groups and the Association of Reporters to Children's Panels. After further discussions, the reporters to children's panels made it clear that they were content with the Bill as it now stands and did not wish further amendment.

The hon. Member for Aberdeen, South (Mr. Doran) fairly and correctly pointed out that the ultimate aim should be the protection of the child. He made it absolutely clear that he believed that the majority of professionals working in this area—reporters, social workers and police—greatly welcomed the fact that the Bill would do away with a major difficulty in the proof of child abuse. He stated his opposition to the amendment mentioned earlier and was concerned that I was considering the matter further. Having considered the matter further, I should state that the weight of evidence is clearly in one direction, and I hope that the House will accept the position on that very important point.

I recommend that the Bill be given a Third Reading.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.