HL Deb 21 July 1994 vol 557 cc404-23

5.45 p.m.

The Minister of State, Scottish Office (Lord Eraser of Carmyllie)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Fraser of Carmyllie. )

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]

Lord Carmichael of Kelvingrove moved Amendment No. 132: Before Clause 126, insert the following new clause:

("Children's Panels

. In Schedule 3 to the Social Work (Scotland) Act 1968 (Children's Panels), after paragraph 1 there shall be inserted—

  1. "1A.—(1) Two or more local authorities may make arrangements to form a joint Children's Panel for their areas.
  2. (2) A joint Children's Panel shall not be formed in pursuance of the arrangements made under sub-paragraph (1) above unless the authorities have obtained the consent in writing of the Secretary of State.
  3. (3) The Secretary of State may give a direction to two or more local authorities requiring them to form a joint Children's Panel; and the local authorities shall comply with any such direction.
  4. (4) The provisions of this Act shall apply, subject to any necessary modification, to a joint Children's Panel as they apply to a Children's Panel formed under paragraph 1 of this Schedule".").

The noble Lord said: In moving this amendment, it may be convenient for the Committee if I also speak to Amendments Nos. 133, 133A, 135 and 144A.

With knowledge gained from hindsight, this amendment seeks to retain as much as possible of the present system of children's panels that operate in Scotland. The Committee will be aware that they were created after much research into children's welfare in Scotland under the Social Work (Scotland) Act 1968. For all their problems and despite tales that are sometimes heard about the children's panels, by and large most people in Scotland who are involved with them and with the children who have got into trouble believe that they have been a great success. We wish that to continue.

The amendments deal with the many facets of children's panels which we believe could be improved. With the break-up of local authorities, some provision has to be made for joint bodies to operate the children's panels. Some areas are too small and perhaps too intimate to run a children's panel for a very small local authority. So a joint panel will be formed. The Secretary of State will give his consent in writing to the formation of the panel and to the necessary arrangements for a joint panel. He will also give his consent to whatever area he believes will be a reasonable and workable area to use for that purpose.

I turn to the other amendments and in particular Amendment No. 135 which encompasses many of the matters about which we are concerned in this Bill. It ensures responsibility for the appointment of a reporter, which is a very important and key post in the whole set-up. He is responsible for the closely related functions of social work and education. The whole group of amendments tries to preserve the independence of local reporters. The amendments are consistent with the fundamental principle that the system of children's hearings should be locally based, although that local base must not be too narrow.

This group of amendments, and Amendment No. 135 in particular, would enable the Island authorities and the new unitary authorities to continue as the responsible authorities, but would empower the Secretary of State to create joint boards if he considers that the reporting functions could more appropriately be discharged on a joint basis. Under this amendment, if any joint board were established by the Secretary of State, it would consist wholly of elected members of the new unitary authorities within the area of the joint boards.

As presently drafted, Part III of the Bill would establish a national reporter service with no local accountability. Our amendment seeks to avoid the disadvantages that might thereby be created. Furthermore, the Government's consideration of the future of the reporter service has been detailed and ongoing for some time. That included publication of the Finlayson Report in 1992 which strongly recommended that the office of reporter should remain a local authority function and should not be transferred to a national body.

One point on which I should like personal assurance is that the reporter and the children's panel will remain a local and not an all-Scotland appointment. The Minister will be aware that there are dangers in having an all-Scotland post just as there are dangers in having too small a grouping of local authorities. It is disappointing that, despite the advice, the Government appear to be seeking to establish a national body.

If a national reporter service is established, a number of important facets of the present system will be lost. For instance, reporters are currently significant local officials ranking as chief officers of local authorities. Although their practice varies at present between authorities, when operated at their best the position gives reporters real influence over the policy of child-care and of resources. That input is appropriate given the importance of the reporter and the juvenile justice system. What real influence will a national service be able to exercise over such crucial local authority decisions? To try to do that would be a recipe for tension, and the last thing we want is to increase the tension in this field.

Local accountability is so important that the loss of it will be to the detriment of the whole system if the Government's projected—I hope they are projected and not decided—proposals are enacted. The best thing we can do is to hear what the Minister says about these fairly crucial points before we make any decisions. I beg to move.

Lord Kirkhill

With an open mind—I can assure the noble and learned Lord that I do have that on this issue—I should like the Minister, when he replies, to give justification for this significant change of policy as evinced by the present Administration. He is as aware as I am of the serious criticism which his party faces in Scotland on the whole crucial issue of local government reform. He is also aware, as I am, living as he does in Scotland, as I do, that a serious argument is constantly being levelled against the Government of which he is a member to the effect that they are continuing to over-centralise. This is another example of that, but I am willing to listen to his justification for it.

Baroness Faithfull

I should like to ask my noble and learned friend, first, if the service is to be centralised, how the panel members will be chosen. Will they be chosen by central or local government? Secondly, who will be responsible for training reporters and panel members? Will that come from the centre or from the local authorities?

The Earl of Balfour

I am certain that the provisions within the legislation will help the reporter system to carry on and be efficient. Because the local authorities are smaller, that will be important. In relation to Amendment No. 132, the combined effort of two or more local authorities is provided for by an amendment to the Social Work (Scotland) Act 1968, Chapter 49, on page 187, Schedule 13, paragraph 5B of the Bill. In respect of Amendment No. 135—on "suitable accommodation" —I believe that that is satisfactorily provided for under the Government's ideas within Clause 131.

Lord Fraser of Carmyllie

I am glad to be given the opportunity to clear up exactly what is proposed in Scotland in relation to the way in which our system of children's panels should continue after the reorganisation of local government. I am pleased to be able to do that because, as our short debate revealed, there is something of a misunderstanding about what is being proposed.

I can say to my noble friend Lady Faithfull that we have no intention whatever of centralising the arrangements for the children's panels. The children's panels will still be formed within each local authority area; they will still be part and parcel of the arrangements that exist at the moment. What is changed, and we consider it to be both an important and valuable change, is that there should be a reporter's system in service in Scotland headed by a principal reporter.

This matter was examined some time ago by a distinguished reporter who used to be in Lothian—Mr. Finlayson. It is certainly the case that, as he concluded in his report published by the Scottish Office in 1992, the reporters, as opposed to the children's panels, themselves should stay part of the local authority structure. But what must be appreciated is that his recommendations were based on what was the current local authority map in Scotland. His report made it clear that different considerations would need to be applied in the event of any fragmentation of local authorities. Given that there will be over 30 authorities in Scotland with these responsibilities, we propose that the reporter system should be run on a national basis with a principal reporter at the head.

It needs to be clearly understood that the proposal is warmly approved by the reporters themselves—around 85 per cent. or more in Scotland approved the proposal. I am not sure whether your Lordships are aware, among the voluminous briefing that was made available to the Committee, of the reporters' representations under the name of the Association of Children's Reporters. They said, The Reporter's Service has unique needs that require attention, irrespective of Local Government Reform, to ensure the necessary quality of service is provided for children and families. Part III of the Bill provides a positive means of meeting these specific needs". The second point that the reporters made was that, The proposals under Part III of the Bill should not in any way diminish the local identity of the Reporter, but rather better equip the Reporter to serve the needs of the children in his/her community". A number of concerns were expressed in some parts of Scotland in this regard—one was raised by my noble friend Lady Faithfull who asked about training. It is particularly in respect of training that reporters in Scotland wish to see change. They say that, Training—almost all Reporter's Departments are far too small to achieve effective and efficient in-house training. The obvious answer is a national programme but 18 years of discussion with CoSLA have produced nothing". It is not as though there is a clear and distinguished record of training for these people who have extremely difficult responsibilities, and that that may be damaged; on the contrary, it is their belief that at long last they will be able to secure consistency in the training that they require.

Another worry is that they will in some way lose their local influence. Again, that is a view that is open to question. The reporter from the Highland Region, writing to Mr. Robert Maclennan, MP, and a number of other noble Lords, said: Because of our small size it is easy to overstate the actual influence that we have with regards to services provided by other much larger local authority departments such as Social Work and Education". He concludes: In fact it may well enhance reporter's ability to comment objectively on local authority services"; that is, as part of this national scheme.

In our view there is a very clear purpose behind the scheme and it is clearly desirable. What needs to be emphasised is that, while there will be an administration that backs up the principal reporter and the reporters throughout Scotland, that administration will not have any right to interfere with the decisions that reporters take day in and day out and in respect of which they exercise what might be described as a quasi-judicial function. The administration is there only to provide the administrative support.

What is being suggested in Amendments Nos. 133A and 135 is that reporters would be employed by different local authorities, but once again, rather surprisingly given the dislike that there is for joint boards and such arrangements, the Secretary of State would be ordering combinations of authorities to employ reporters. We do not believe that that is the right way forward. The new clauses seek an unsatisfactory half-way house between reporters employed by separate authorities and our central reporter service. Perhaps I may say in passing that, for some reason or other in the way the clause has been framed, it would appear that Dumfries and Galloway are not to be part of any reporter system at all.

That is the centre of all these provisions. The other two amendments—Amendments Nos. 132 and 133— seem to have an apprehension which I understand but which I believe is ill-founded. Section 33 of and Schedule 3 to the Social Work (Scotland) Act 1968 require the formation of a children's panel for every local authority area. That reflects the intention that children's hearings be conducted by members residing in the locality from which the families attend. I have no doubt that that principle would be broadly approved of.

I suspect that this new clause has been introduced as a result of the anxiety expressed by some that as there are certain areas within the existing larger regional authorities where it is currently difficult to recruit new members, the new authorities in these areas will be unable to maintain the required number of members. While I understand the anxiety, I should say that from the time of the introduction of the system in 1971 until regional authorities were introduced, the previous smaller authorities are not recorded as having any major difficulty in recruiting panel members. The remedy which the new clause proposes seems to run counter to the community basis of panels and it would complicate the responsibilities of individual local authorities in administering children's panels.

It is important to recognise that the new unitary authorities will restore the local identity in many ways and will have a new and, we believe, sharper focus on panel membership which will help to overcome any fears and problems over recruitment. Therefore, along with the other two amendments, I invite the Committee to reject Amendment No. 132.

As my noble friend Lord Balfour pointed out, Amendment No. 133 is at least in part met by an amendment put down at Report stage in another place and accepted for inclusion in the Bill. The amendment is therefore unnecessary, the point having been made and accepted.

6 p.m.

Lord Kirkhill

I cannot forbear intervening yet again to say to the noble and learned Lord that I find his reply to my earlier remarks disingenuous to say the least. The two principal arguments which the Committee is being asked to accept apparently, among a number of other arguments which are perfectly tolerable, are, first, that a cadre of officialdom—namely, about 85 per cent. of the reporters—have found that they like the new idea. Well, professionals are craven the world over. They would say that to maintain their area of professional security. It leaves me totally unimpressed. Secondly, we are being asked to believe that a reform of local government which is uncalled for and is entirely unnecessary is of such a fragmented character in terms of authority size that this has to be taken back to central control. That is a sad indictment of the whole of the Bill as it now stands.

Lord Carmichael of Kelvingrove

I thank my noble friend Lord Kirkhill for intervening on this point because much of what he said I was going to say. Not just in relation to this but in relation to many aspects of the organisation of life in Scotland the Government are trying to patch up what they have attempted to destroy. My noble friend used the word "fragmented". Now the Government are trying to find a way round it.

I cannot help being amused when amateurs like ourselves—I mean noble Lords on this side of the Committee—miss out Dumfries and Galloway. When one thinks that rooms and houses in Barrhead and Newton Mearns were missed out by the experts, it is hardly surprising that we, with very little back up, make the odd mistake.

I should like to have one point cleared up. The Government continue to quote a referendum of reporters which was held some years ago as supporting the Government's proposals with a favourable vote in excess of 80 per cent. My information is that the referendum was not concerned with the Government's proposals as they presently exist. At that time there was no suggestion that there would be joint boards as is now intended for police and fire. The reporters were voting against the possibility of being reduced from the present local government structure to anything up to 50 separate small unitary authorities. They believed that that would not work and they are very conscious of the work that they do. The reporters have never voted on the issue of continuing the present framework with the additional refinement of joint authorities to answer the problems of the four smallest of the existing councils.

There may be a reason for the misunderstanding. A misquotation of the reporters' referendum was used during the Committee stage in another place and it was probably provided to the noble and learned Lord mistakenly. The point should be cleared up. It needs to be clear and correct that it was an error. I hope the Minister will accept the fact—I am not sure that I am correct but I am fairly sure—that it was a misquotation that the reporters voted in the way that he suggested. The noble and learned Lord will be able to check and perhaps tell us later. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 133 and 133A not moved. ]

Clause 126 agreed to.

Lord Macaulay of Bragar moved Amendment No. 134: After Clause 126, insert the following new clause:

("Social Work: Reporter's Charter

. In section 36 of the Social Work (Scotland) Act 1968 (the Reporter), after subsection (3) there shall be inserted— (4) Each Reporter will produce a Charter relating to such issues as the Secretary of State may by order define, including statements of the standards of service and hearings accommodation which are to be provided, and implementing an effective complaints procedure to ensure these standards arc met." ").

The noble Lord said: This amendment calls upon the Government to set upon the reporter the obligation to produce a charter indicating what standard:; the reporter system will achieve. It is a part of the Citizen's Charter which noble Lords on both sides of the Committee are quite prepared to accept. The amendment is grouped with Amendment No. 135A. The noble Earl, Lord Balfour, will no doubt have something to say about it. I beg to move.

The Earl of Balfour

I tabled Amendment No. 136 to leave out subsection (8) of Clause 127 because I felt that there needs to be, and I hope will be, close co-operation between the principal reporter and the administration. I was surprised to read, Nothing in this section or … this Act shall be taken as authorising the Administration to direct or guide the Principal Reporter in the performance of his functions". I am surprised to see these words written into the statute. I very much hope that they can co-operate. It is purely on that point that I tabled this amendment.

Lord Fraser of Carmyllie

Perhaps I may deal with Amendment No. 134 first. In the fullness of time it may be wholly appropriate for the principal reporter and the board of administration to introduce a charter for the administration. It may be that there will be charters for each and every reporter in the service of the administration. I am sure that, in the same way, the noble Lord is aware that the Procurator Fiscal service in Scotland and how it performs, is part of the justice charter there. It would be not only unusual but inappropriate to prescribe in legislation that such a charter must be introduced. It is of prime importance to get the new service up and running as smoothly as possible. Once that is done, I would very much hope that such a charter would be produced along the lines which the noble Lord has suggested. On that basis, I take the view that it would not be right to include it within statute.

Amendment No. 135A appears to be a new tack by noble Lords in that it seeks to remove the general purpose of the administration to facilitate the performance of the principal reporter in carrying out his functions. Giving the principal reporter a list of functions to perform without the essential support which he would need to carry them out, seems to be unhelpful. It seems to be basically unsound to fail to define the essential purpose of the administration as designed to allow the principal reporter to perform effectively the full range of functions which the Bill provides for him. It should be borne in mind also that Clause 127(8) makes it explicit that nothing authorises the administration to direct or guide the principal reporter in the carrying out of his functions under the Social Work (Scotland) Act 1968 and the Criminal Procedure (Scotland) Act 1975.

Amendment No. 136 would remove the independence of the principal reporter in the exercise of his professional decision-making in relation to his statutory functions under these two Acts.

I would have considered that to be a separation and an independence of quite crucial importance. We want to leave the principal reporter within the system in Scotland in a position where he can exercise his important professional decision-making independent of any interference. That has been an important element in the operation of the hearings system since its inception. It has ensured that reporters exercise decisions on cases referred to them without being exposed to external influence and do so solely in the best interest of the children. They are not a craven bunch of officials, as the noble Lord, Lord Kirkhill, indicated, but serious-minded, independent people who have a number of very difficult decisions to take; for example, particularly when they have to determine what should happen when information or evidence is brought to them about child abuse within the home.

It would be very dangerous to change that safeguard and there is certainly no need to do so because of the changeover to a reporter's administration. It would be vested in the principal reporter and in his staff who would deal by delegation with the local referrals made to them.

It will be necessary for the new administration to be able to direct or guide the principal reporter as to how the various duties and management functions of his task are carried out but in the exercise of professional decision-making on individual cases it would seem right that there is no pressure that can be brought to bear on him. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Kirkhill

I intervene to say to the noble and learned Lord that I have no objection at all to his making reference to any comments I made earlier; but he should be more accurate in his reference. As far as craven officialdom is concerned, I said "all officials as well as these". I did not specifically refer to reporters.

Lord Macaulay of Bragar

Having heard the explanation of the Minister, I have no doubt that it will be read with interest by those concerned with the exercise of juvenile justice. We shall return at a later stage and see how things stand then. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135 not moved. ]

Clause 127[The Scottish Children's Reporter Administration]

[Amendments Nos. 135A and 136 not moved. ]

Clause 27 agreed to.

Schedule 12 [Status, constitution and proceedings of the Scottish Children's Reporter Administration]:

[Amendments Nos. 137 to 139 not moved. ]

Lord Carmichael of Kelvingrove moved Amendment No. 140:

Page 159, line 36, at end insert: ("(4) The Administration shall keep account of all transactions and shall prepare and publish a statement of accounts for each financial year to 31st March to be audited by an officer of the Commission of Local Authority Accounts or an approved auditor appointed by the Commissioner.").

The noble Lord said: This is a technical amendment and in some ways one is surprised that it has not appeared automatically in the Bill. The administration should make sure that the financial affairs of the organisation are subject to independent audit. The justification is that it will be dealing with significant public funds and statutory provision should be made for the appointment of an independent auditor by the Commission of Local Authority Accounts which will be in a position to ensure propriety and accountability. I should have thought that that was an automatic thing. The Minister may say that it will be automatic, but it would be better if we were told that that was the case. I beg to move.

Lord Fraser of Carmyllie

As I understand it, Amendment No. 140 would seek to impose an arrangement for auditing in the event of the earlier proposals in Amendments Nos. 137, 138 and 139 being introduced whereby the board was made up of elected local authority members. If I now understand the noble Lord to be suggesting that this should be imposed independently of any change that might be made to the composition of the administration, that would seem to be unnecessary because in any event there would be clear auditing and accountability in relation to any sums expended by that administration.

Lord Carmichael of Kelvingrove

I thank the Minister for his reply. He has given the assurance that I was asking for. I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 12 agreed to.

Clauses 128 to 130 agreed to.

Clause 131 [Duty of Administration to provide accommodation etc. for children's hearings]:

[Amendment No. 140A not moved. ]

Clause 131 agreed to.

Clauses 132 and 133 agreed to.

Clause 134 [Government grants to the Administration]:

[Amendment No. 140B not moved. ]

Clause 134 agreed to.

Clauses 135 to 137 agreed to.

Lady Saltoun of Abernethy moved Amendment No. 141: Before Clause 138, insert the following new clause:

("Community care planning

. In subsection (3) of section 5A of the Social Work (Scotland) Act 1968, after paragraph (a) there shall be inserted— (b) any other local authority, in so far as it appears to the authority that the plan or, as the case may be, the review may affect or be affected by the provision or availability of community care services or housing within the area of the other authority."").

The noble Lady said: Any noble Lord who has looked at the Social Work (Scotland) Act 1968 may wonder how on earth these amendments fit into it. In fact, Amendment No. 141 slots into Section 5A, as amended by Section 52 of the National Health Service and Community Care Act 1990, and Amendment No. 142 slots in after Section 12A, as amended by Section 55 of the National Health Service and Community Care Act 1990.

Amendment No. 141 highlights what appears to be a technical omission from the Bill but also raises issues of real importance about how community care services will be planned following reorganisation. As recently as 1992, the Government introduced a new system of community care planning by social work departments. The aim was to ensure that there were clear strategic three-year plans for the development of community care and that councils would be accountable to the public for producing and meeting those plans. That development had widespread support. It meant that it was possible to compare the services that were available with those that were needed, particularly for groups such as people coming out of long-stay hospitals and the increasing numbers of elderly people.

Before the community care plan is produced, the social work department must consult with a range of agencies, including health boards, housing departments and the voluntary sector. In Schedule 14, the requirement to consult housing departments is deleted since they will be part of the same council in the future. The aim of the amendment is to replace that requirement with a new duty to consult other neighbouring councils where appropriate. That is needed because many of the new authorities will be too small either to prepare a strategic plan or to provide all the specialised social work services that are needed in their area.

The Government expect those authorities to buy in services from other councils using the new powers in Clause 57. Therefore, if a small council, like Inverclyde, is to prepare a practicable community care plan, it will need to know what it will be able to buy from a large council like Glasgow. Similarly, a council which sells services to other councils needs to know what the likely demand will be before planning future developments. It is also important that service users in other council areas have some mechanism to influence plans for services which affect them. No doubt many councils will consult informally with other councils, but surely it would be better to have a formal requirement to ensure that plans are not produced without proper consultation of the wider consequences for other councils.

The amendment also gives the Government an opportunity to clarify how health boards fit into the new system. Currently, the Government place great emphasis on the desirability of health boards and social work departments agreeing a joint plan. That will be much more difficult with many of the new boundaries. Will the Government create incentives to encourage smaller councils to plan together, perhaps over a health board area?

Amendment No. 142 places a duty on local authorities to co-operate in providing social services. It is similar to the existing duties of housing and social work departments to co-operate to meet the needs of homeless people. Indeed, the health boards and social work departments have a duty to co-operate in community care. The new clause is needed because not all the new authorities will be able to provide the specialised services that are required for those whose needs for care are profound or complex, such as children who are both blind and deaf, or people with profound learning disabilities. A council may seek to buy the service from another council or another agency. However, there are two concerns: whether the service will be available and what type of service it will be.

Social work departments are under great financial pressure and naturally tend to give priority to those things which they have a statutory duty to do. The first priority of the new councils must be their own population. A council may want to buy in a service from another council but the other council may not want to sell it. A duty to co-operate would make it more likely that the council with the appropriate service would consider selling that service or expanding the service to meet the needs of other areas. As far as the quality of the services is concerned, the proposed duty may help to counteract a threat of the new arrangements—that of a return to greater institutional provision.

The Government, the social work profession and the voluntary sector all advocate small-scale local services designed to help children and adults to live in their own communities with as much independence as possible. However, if small authorities are planning to buy in services from elsewhere —for example, for a young person with severe learning disabilities and physical disabilities—it is much easier to enter a contract to place that person in a residential home than to arrange for someone else to provide the specialised day care, respite, adaptation and other support in the area where that person lives. The duty to co-operate will provide a framework for joint provision for those services.

Those fears are not merely hypothetical. In its submission on the Bill, the Association of Directors of Social Work stated: Past experience of joint arrangements is not good, being too fragile and vulnerable to political expediencies. In addition, such arrangements in the past often led to services being provided at a considerable distance from the clients".

We want to ensure that that is not the consequence of the new reform, particularly for services in the first few years following reorganisation when uncertainty is bound to be at its height. I beg to move.

Lord Fraser of Carmyllie

The amendments seek to ensure that the new authorities suitably inform and co-operate with one another over the purchase and provision of community care services. I say immediately that I fully concur with the aims of the amendments.

The re-organisation of local government may well increase the amount of contracting for services by authorities and the level of inter-agency trading but, as the noble Lady indicated, that is not an entirely new phenomenon for social work departments. For many years they have been co-operating with and purchasing services from one another and from the voluntary and private sectors. Expertise in such transactions and, as important, good will in co-operating with each other have long been evident in the development of social work services.

The amendment on community care plans would require local authorities, where cross-boundary purchasing was in prospect or in practice, to consult one another on their community care plans.

These plans take a strategic view of the needs of the area and how these are to be met. The procuring of a service, on the other hand, is generally an operational activity and while community care plans address the purchasing of services they do so from a strategic perspective. In most instances of cross-boundary activity, purchasing will not be of strategic importance but part of the effective delivery of a service. I am not therefore in favour of a mandatory requirement to consult, which is what the amendment suggests, but I accept that there will be a need for fresh guidance on the preparation of certain parts of authorities' community care plans.

The amendment requiring an authority to co-operate in provision of a service for a resident of another authority could interfere with the good sense which we believe already governs the co-operation between authorities on such matters. Unless such an amendment was accompanied by extensive rules on the extent of co-operation which should be considered reasonable, the amendment could lead to a local authority losing control of its own resources. No one would want to burden social work departments with unnecessary and extensive rules. I imagine that we would all prefer to see any co-operation being voluntary.

I hope with that brief explanation of our standpoint on the amendment that I have gone some way towards allaying the noble Lady's concerns. The purpose lying behind her worthwhile amendment can be achieved through current legislation and working practices, together, as I said a moment ago, with revised guidance. I hope that with that indication the noble Lady will feel able to withdraw her amendment.

6.30 p.m.

Lord Macaulay of Bragar

Before the Minister sits down, will he tell us something about the costing of everything that is happening with local authorities? I know that it might annoy the Minister that we keep asking about the costing of care in the community, but one day that bird will come home to roost, and we shall have a great many people out in the community dependent upon the local authority to cost their viability within the community. The word "strategic" was used three or four times by the Minister in his answer. What will the government strategy be when money becomes short and people are left walking the streets? I can assure the Committee that some people will be left doing that. I have seen one or two of them in my area.

Lord Fraser of Carmyllie

The noble Lord takes me slightly wide of the amendment. We have now completed the first year of the changes to care in the community in Scotland. Generally speaking, they have gone much better than was thought by central government and local government. I compliment those who have worked so hard to make the change so much more successful than some feared it would be at the outset.

I do not believe that accusations levelled against the Government in Scotland that the funding provided for the change of responsibility to local government for taking on care in the community can be justified. We provided last year, and are providing this year, more money than would have been payable had the existing arrangements through the DSS persisted. When I have met those responsible for the delivery of the services in Scotland, they have asked me to continue with the existing ringfencing arrangements. From that I take it that they have discovered that they have sufficient money. They were concerned that, were the ringfencing not to persist, some of the funding that should properly have gone to care in the community might have been deployed to other services. I do not accept that there can be any criticism of the funding at present.

Lord Macaulay of Bragar

Perhaps I could ask for clarification. We are not accusing anyone of anything. We all have the common purpose to ensure that people are cared for properly in the community. I do not like the word "accusation". We are not accusing anyone of anything. We are trying to do our best for the unfortunate people who have to be catered for within the community.

Lord Hughes

The Minister said that mandatory arrangements could result in a local authority losing control of its resources. But the last words of Amendment No. 142 seem to prevent that because the local authority has to do only such: as is reasonable in the circumstances". If the effect of the co-operation would be that a local authority would lose control of its resources that could not be regarded as a reasonable position.

Lord Fraser of Carmyllie

With respect to the noble Lord, he might like to consider what I said. When I talked about a mandatory requirement, I was talking about one of the earlier amendments. I accept the point that the noble Lord makes—that Amendment No. 142 is so qualified in that the co-operation should be: as is reasonable in the circumstances". What I said about that was that it concerned me that we would have to set out extensive and elaborate rules to determine what was reasonable. It was in that context that I offered my objection to the amendment. It was not on the basis of a mandatory requirement. That was in respect of the earlier amendment.

Lord Kirkhill

Will the Minister add something to the reply he gave to my noble friend Lord Macaulay of Bragar? The Minister said that the present policy is more successful than central government thought that it would be. I think I am right in saying that he said that it was probably more successful than many of its critics thought it likely to be. Does the Minister think that it is more successful than the policy which preceded it? That is the key question. It is the question to which critics turn increasingly.

Lord Fraser of Carmyllie

I believe that it is more satisfactory. I was not aware that there was any political party in the United Kingdom that took objection to the general thrust of care in the community. When I referred to suspicions about it, I was saying that social work departments were being given a new and important responsibility. In some respects they were taking over responsibility from the NHS. I believe that there were suspicions on both sides. There were suspicions among social workers about the NHS and vice versa. I am pleased again to place on record that some of those concerns have proved to be illusory. Much of the co-operation when people have come out of long-stay hospitals has been excellent. I do not know whether the noble Lord is aware of a proposal in Edinburgh in relation to those who have learning difficulties. Elaborate plans have been put together there by Lothian Health Board and Lothian Region. It is a good example of good co-operation.

Lady Saltoun of Abernethy

I listened carefully to what was said and, in particular, to what the Minister said. If most local authorities are already co-operating, I can see no great difficulty in putting the duty to co-operate on to the face of the Bill. Most may be co-operating well, but I have quoted the reservations on the subject of the Association of Directors of Social Work. I should be much happier to see something definite on the face of the Bill, even if a few rules and regulations do have to be provided.

The Minister referred to guidelines. Will it be possible to see a draft of those guidelines?

Lord Fraser of Carmyllie

Perhaps I may elaborate on that point a little. Guidance is already issued to regional and Highland and Island authorities at present on how they should set out their community care plans. I am suggesting that that guidance should be revised. The guidance to local authorities will in no sense be secret. It will be for all to see. If there are directors of social work who have proposals or recommendations to offer as to how that guidance should be set out, I should be pleased to hear them.

Lady Saltoun of Abernethy

I am grateful to the Minister for that reply. In the meantime, I am happy to withdraw the amendment, reserving, of course, the right to come back to this on Report.

Amendment, by leave, withdrawn.

[Amendment No. 142 not moved. ]

Clause 138 agreed to.

Lord Carmichael of Kelvingrove

had given notice of his intention to move Amendment No. 143: After Clause 138, insert the following new clause:

("Local authority social work committee

.;—(1) Every local authority shall establish a social work committee for the purposes of their functions under the Social Work (Scotland) Act 1968.

(2) Except as otherwise expressly provided, all matters relating to the performance of their functions under the following enactments—

  1. (a) this Act as read with sections 1 and 2(1) of the Chronically Sick and Disabled Persons Act 1970 and the Disabled Persons (Services, Consultation and Representations) Act 1986,
  2. (b) Part IV of the Children and Young Persons (Scotland) Act 1937,
  3. (c) the Disabled Persons (Employment) Act 1958,
  4. (d) sections 10 to 12 of the Matrimonial Proceedings (Children) Act 1958 and sections 11 and 12 of the Guardianship Act 1973,
  5. (e) the Foster Children (Scotland) Act 1984,
  6. (f) the Adoption Act 1958,
  7. (g) section 101(1) of the Housing Act 1964,
  8. (h) section 9(1) (b) of the Housing (Homeless Persons) Act 1977 and the enactments mentioned in subsection (4) of that section,
  9. (i) the Children Act 1975,
  10. (j) the Adoption (Scotland) Act 1978,
  11. (k) section 19 and Part X of the Children Act 1989,
  12. (l) sections 21 to 23 of the Health and Social Services and Social Security Adjudications Act 1983, and
  13. (m) the Access to Personal Files Act 1987,
shall stand referred to the social work committee, and before exercising any of the said functions the authority shall, unless the matter is urgent, consider a report of the social work committee with respect thereto.").

The noble Lord said: I understand that this amendment has already been debated. I do not doubt that, but in many ways the Bill is a mishmash. We are used to that these days. Will the Minister say when the amendment was debated in order that I can read it in Hansard before the Report stage?

The Earl of Balfour

It was discussed last night, after Clause 46, with Amendment No. 95E.

Lord Fraser of Carmyllie

I was aware that it had been discussed earlier and I am grateful to my noble friend for being so precise.

[Amendment No. 143 not moved. ]

[Amendments Nos. 144 and 144A not moved. ]

Clause 139 agreed to.

Clause 140 [Byelaws under section 121 of the Civic Government (Scotland) Act 1982]:

Lady Saltoun of Abernethy moved Amendment No. 144B:

Page 97, line 27, at end insert: ("(d) in subsection (5) at the end there shall be inserted— and the local authority shall not proceed to make the byelaws if, within that period, one third or more of the persons having a proprietorial interest such as is mentioned, in relation to the byelaws, in paragraph (a) above have submitted written objection to the byelaws to the local authority."").

The noble Lady said: First, I had better declare a non-interest before I am taken to task for not doing so by the noble Lord, Lord Mowbray and Stourton, after he has read Hansard. My family have about six miles of the upper River Dee but I have no interest in the trust to which it belongs. I have about half a mile of river, which has nothing in it, in another part of Scotland.

Clause 140 was introduced by the Government in order to amend the existing legislation which required 100 per cent. approval of riparian owners before a by-law could be made. That has made it extremely difficult for local authorities to introduce the necessary by-laws in relation to, for instance, Loch Lomond, which are desired by both the public at large and by a vast majority of the riparian owners themselves. The principle of the new Clause 140 is therefore widely accepted by the Scottish Landowners' Federation, and in particular by riparian owners around Loch Tay and Loch Lomond.

However, the wording has gone too far. It now dispenses with the need for any approval by riparian owners and provides no alternative method of dealing with their interests, such as providing for a right of protection. That is unsatisfactory, in particular as the Civic Government (Scotland) Act 1982 recognises that the interests of landowners are important. After all, they are ultimately responsible for the economic and environmental management of not only the shore but also the loch itself and the fish therein.

On the basis of the legislation as it is currently proposed, riparian owners who object to the making of a by-law would have to vote that the Secretary of State, at the stage of deciding whether to confirm the by-laws, would take proper account of their objections. The legislation should provide proper protection for these interests but at the same time it should not present any undue difficulty or delay in the making of by-laws.

My amendment provides that the local authority may make the by-laws unless at least one-third of the proprietors object. I am sure that Members of the Committee will agree that if there were such strong objection, it would not be appropriate for the by-laws to be made and confirmed, and it would therefore be distinctly preferable for that to be enshrined in statute rather than left to the discretion of the Secretary of State.

The amendment has the support of riparian owners around Loch Lomond. It will allow for the very necessary flexibility that is now needed by local authorities to introduce by-laws in these important areas while at the same time making sure that the interests of those who are ultimately responsible for the economic and environmental management of the shore and the loch are properly safeguarded. I beg to move.

6.45 p.m.

The Earl of Balfour

I support the principle behind the amendment. I realise what the Government are trying to do in amending Section 121 of the Civic Government (Scotland) Act 1982. The difficulty is that under that section a single objector, who is a proprietor too, can object to the local authority making a by-law dealing with environmental health, people driving cars over the beach or whatever. Section 121(5) (b) of the Act states: Byelaws may be made under this section only if … subject to subsection (7) below, every person having a proprietorial interest such as is mentioned, in relation to the byelaws, in paragraph (a) above has consented to their being made". That means that the local authority can be penalised by one awkward person.

Subsection (5) (b) of the Act is being replaced by Clause 140 of the Bill. Under the new clause, all the adjoining proprietors can object and the local authority can still make the by-laws. That is equally unfair. At least a proportion of the adjoining proprietors should have the opportunity of objecting to those by-laws being made.

Lord Fraser of Carmyllie

We have given much careful thought to the amendment proposed by the noble Lady. We recognise that there is a genuine fear among certain proprietors that the clause as it currently stands removes their previous right to have their views taken into account when local authorities are making by-laws on these waters.

It may be helpful if I explain that the purpose of this clause is to make it possible, once again, for the local authorities to make by-laws on the seashore, adjacent waters and inland waters. As the legislation currently stands, one individual with a proprietorial interest in the water, the area of which could be as large as Loch Lomond, can block the process of making by-laws. The existing legislation does not allow local authorities to proceed while any objections are maintained.

That is not just a theoretical difficulty. In Loch Lomond the authorities have been trying for three years, without success, to make by-laws. Some of those by-laws control speedboats. Members of the Committee who live in Scotland will remember that last year there was an unpleasant and unfortunate fatal accident on Loch Lomond involving speedboats.

This new clause is designed to do away with the automatic right of an individual or group of individuals to thwart the by-law-making process. However, what has been omitted from our discussions on the provision is that, as a safeguard, by-laws come before the Secretary of State for confirmation. In turn, he may hold a public inquiry should he deem that necessary or desirable.

I believe that that is the correct way for decisions of that nature to be made. The views of those with a proprietorial interest in the water will be considered carefully by the relevant local authorities. It would be short-sighted and foolish of them not to do so. But equally, the needs of the general public must be balanced alongside those who have a proprietorial interest and their needs must sometimes come before the particular needs and interests of proprietors.

The amendment offers a system which, administratively, would be extremely difficult to operate, given that the clause will apply to the seashore, adjacent waters and inland waters throughout Scotland. In popular areas it may be not merely difficult but impossible to establish how many people have a proprietorial interest. Clearly, one cannot establish what is a third unless the number of all those with a proprietorial interest is known.

Perhaps I may use again the example of a loch. The proposed by-law may be in relation to speedboats. A speedboat club may have 200 or 250 members but the club may own only a very small frontage on to the water. Therefore, those members have an interest in the water but they could provide the blocking minority in circumstances where other proprietors with much larger frontages agreed with the proposal.

While I understand what drives the noble Lady to bring forward the amendment, I believe that there would be a great deal of administrative difficulty in trying to operate it. I hope that the noble Lady will accept that the amendment is unnecessary and that she will be reassured by the requirement that the Secretary of State shall confirm by-laws. Clearly, when he is looking to see whether he should make that confirmation or whether there should be a public inquiry, it would be part of his responsibility to have regard to any representations from those with a proprietorial interest.

Lady Saltoun of Abernethy

I have listened very carefully to what the noble and learned Lord has said. I shall read it with care. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 140 agreed to.

Clauses 141 and 142 agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 144C:

After Clause 142, insert the following new clause: (" . After section 28A(4) of the Education (Scotland) Act 1980, there shall be inserted—

Restricted admission to schools

"( ) If, notwithstanding subsection (3) (a) to (e) above, the education authority, having regard to historical patterns of migration existing planning permissions for residential development in their area, considers it necessary in exceptional circumstances to restrict admission to a stage of education at the specified school in order to secure the availability of places for pupils ordinarily resident within the delineated area of the specified school at any time during the school year; provided that the education authority shall not so restrict admission beyond the minimum number of places reasonably anticipated by them as necessary for that purpose at any stage and that a statement of reasons is provided to any person whose placing request has been refused on these grounds".").

The noble Lord said: This is a probing amendment. The Minister has been a Member of the other place and, having had a constituency to look after, he must be aware that school placements is one of the most difficult and intractable problems that there can be. A school may have a reputation which is 40 or 50 years old. It may no longer live up to that reputation but then; may still be certain eagerness on the part of parents to send their children to that school.

I understand the point about new building and that if an area is to be released for housing, that will affect schools. But how does the Minister expect the clause to help parents who wish to send their children to one school as opposed to another? Of course, that is a problem which is more likely to arise in a city rather than in a country area. I know that there are selective schools which are usually fee paying and they set their own standards. I am sure that the Minister will understand the problems in this regard. When one writes to Ministers about such matters one receives nice gentle replies but, when one reads them, one realises that not a great deal has been said. Therefore, I repeat that this is a probing amendment and I beg to move.

Lord Fraser of Carmyllie

I am happy to respond to the noble Lord on what is a difficult issue. Nevertheless, I should point out that the policy of allowing placing requests has been extremely successful. Some 250,000 children in Scotland have benefited from the scheme since it was started in 1981. Before we overstate the difficulties which may arise, it is worth recording that over 90 per cent. of all placing requests have been successful. That is a popular policy because parents like the opportunity to make a choice.

I can see why education authorities might favour an amendment of this nature. But I do not believe that changes should lightly be made to the placing request system. I also have to say that the matter is not straightforward and, indeed, that there are drawbacks to the amendment which has been tabled.

The amendment is intended to permit authorities to hold back places at a specified school against the possibility of pupils moving during the school year into the area served by that school either into existing housing stock or into housing not yet built but for which planning permission has been granted.

There is clearly an element of speculation in that. Migration of pupils into existing housing stock may not be as anticipated. Houses for which planning permission has been granted may not be built in the year concerned. Or fewer children may move into them than anticipated.

In saying that, I recognise that the amendment does endeavour to address the possibility of authorities overestimating the need to hold back places by providing that restrictions on admissions should be at a minimum and that a statement of reasons for so doing should be provided to any person whose placing request has been refused on those grounds. Nevertheless, there is clearly an element of speculation and an amendment of this nature could lead to some places at popular schools simply lying unused.

Moreover, essentially this amendment would allow authorities to turn down different pupils from those who might be turned down at present. Where there is surplus demand for a school, some parents are always going to be disappointed, no matter what arrangements apply.

So I have to say that the Government are not at present persuaded that the intention behind this particular amendment should be implemented, or indeed that the case has been made that the placing request system should be amended at all. There is undoubtedly force in the view generally that the present arrangements allowing maximum parental choice are preferable to restrictions which would inevitably have the effect of reducing choice.

But in this debate I do not wish to go further than to express reservations about what is proposed. The noble Lord said that this was a probing amendment. Of course we are dealing with a Bill relating to local government reform. In our view, matters which are not strictly related to that subject should be inserted into the Bill only in exceptional circumstances. Also, although I realise that it is a probing amendment, I should point out that there is a drafting defect in it. However, in the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove

I thank the Minister for that reply, which I shall read with great care. It may be that the amendment does not cover as much ground as we hoped it would do, even as a probing amendment. However, I cannot think of any words which could be used to clarify that.

What sort of consultation was carried out before some of the decisions were made? The Minister said that 90 per cent. of placing requests had been successful. I wonder how many parents have been discouraged before they even reached the point of making a choice.

I shall read the Minister's response and look forward, perhaps, to him returning at the next stage with some sort of revision if he thinks that it is necessary. Otherwise, because of the pressure placed upon us, we may find it necessary to raise the matter again. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 143 agreed to.

7 p.m.

Lord Lucas

I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begin again not before 8 p.m.

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

House resumed.