COMMONS AMENDMENTS (Hansard, 8 November 1989)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 272 and 273. I wish also to speak to Amendment No. 411. These amendments deal with transitional aspects of the Bill; Amendment No. 411 inserts transitional provisions into the Bill. On the private law side, the general result is that existing orders will be preserved. It will be inappropriate to convert them into new style orders because of the conceptual dissimilarity between old and new orders. On the public law side, however, there is a higher degree of correspondence between old and new orders and therefore many existing orders will be deemed to be the equivalent new orders.
Amendment No. 272 is a technical amendment and Amendment No. 273 will enable a commencement order to make further transitional provisions and modify existing ones. Such an order will also be capable of making further consequential amendments to enactments. The knock-on effects of the Bill are so far-reaching, even in areas ostensibly remote from family law, that we cannot be absolutely sure that we have tracked down all the references that need to be amended consequentially. This power will enable the Lord Chancellor to deal with any 853 such obscu re references that eventually come to his attention. I believe that that is a reasonable course for us to take in the circumstances.
Moved, That the House do agree with the Commons in the said amendments. —(The Lord Chancellor.)

§ Lord Renton
My Lords, I think that we should take special note of this group of amendments. It is a very unusual way for us to be legislating. The matter starts on page 68 with Clause 77(2), which states: This Act shall come into force on such date as may be appointed by order made by the Secretary of State". Then we find in Amendment No. 273 that an order made under that subsection: may make such transitional provisions or savings as appear to the person making the order to be necessary or expedient in connection with the provisions brought into force by the order", including those mentioned in Schedule 10.
So, to begin with, we find that the common provision that power should be given to bring the Act into force on the particular date that the Secretary of State shall decide is accompanied by the power given to him —a very wide power indeed —to make transitional provisions as indicated in Schedule 10.
As it left your Lordships' House, the tenth schedule consisted of ten lines. A new tenth schedule has been brought back consisting of 17 pages, dealing with the most fundamental matters some of which could hardly be described as "merely transitional", because they are pretty fundamental. Your Lordships will find that they start at the foot of page 113 of the list of Commons amendments. There we find the cross-heading, "Pending Proceedings, etc." Then on the next page we find transitional provisions relating to, "Custody Orders, etc.". There are references to about eight previous Acts. Then we move on several pages further and find reference to "Guardians". The sub-heading is, Existing guardians to be guardians under this Act". Fair enough. But again there are a number of cross-references. The next cross-heading is, "Children in Care", with the sub-heading, "Children in compulsory care".
That provision continues for six pages. Then we have as the next cross-heading, "Supervision Orders". Under that heading there are a number of no doubt necessary cross-references to a number of existing Acts of Parliament.
At the foot of page 125 is the heading "Place of Safety Orders". Over the page is the heading "Recovery of Children". That is followed by the heading: Voluntary Organisations: Parental Rights Resolutions". This is an unusual situation which, if we had time at this late hour, we should think through. Then we come to a cross-heading entitled "Foster Children" and another one entitled "Nurseries and Child Minding". There is a further heading entitled: Children Accommodated in Certain Establishments". Then there is a rather important cross-heading entitled, "Criminal Care Orders".
854 My suggestion is that the Government are not giving enough time for the preparation of this fundamental legislation, and that these transitional provisions are of a kind which should have been thought through before the Bill ever saw the light of day and before it was ever presented to Parliament.
I do not blame my noble and learned friend the Lord Chancellor personally for this, but it is not a satisfactory way to legislate if we as legislators, and your Lordships in particular as Members of a revising Chamber, are expected to follow through all the implications of these complicated afterthoughts. In any event, I think it is so strange —it is not within my recollection that it has been done before —to make the simple provision dealing with giving power to the Secretary of State to make an appointed day order and at the same time to provide that he should be given very wide powers not only to apply the transitional provisions detailed in the Act which I burdened your Lordships with mentioning, but also under Amendment No. 273 any other transitional provisions that he considers ought to be made. It is a very strange way to legislate, and I feel obliged to draw attention to it.

§ The Lord Chancellor
My Lords, my noble friend suggests that we should have got all the transitional provisions right in advance. One of the great difficulties about making progress in a fundamental area is that no matter how carefully consultation proceeds before one begins, once the parliamentary process starts a great deal of interest is excited in the matter and there are considerable debates concerning what the provisions should be. One can only decide what the transitional provisions are and what transitional provisions may be necessary in the light of what it is one finishes up with.
As we go through the parliamentary consideration of the main matters, it follows that we have to consider and make detailed provisions to give effect to the kind of transitional circumstances which may be raised. This Bill was desired urgently on all sides of the House, particularly following the situation in Cleveland. However, there were earlier situations than that in Cleveland which made the Bill necessary. It would not have been practicable to prepare in advance transitional provisions in detail. As I have said, because of the kind of consideration that this Bill and anything like it has to have, it is natural that major changes on the substantive provisions should take place as the Bill progresses.
We have done our very best to ensure that the Bill conforms with what the House and the other place wish in this very important area. The technical amendments which come towards the end to deal with the transitional provisions are complicated because of the very fundamental nature of what has been accomplished.

§ Baroness Faithfull
My Lords, while I understand perfectly the comments of my noble friend Lord Renton, I should like to congratulate the civil servants on the tremendous amount of consultation that has taken place over the pasi: two years. 855 Furthermore, when the Bill was published at least four or five meetings were held with various voluntary organisations and the statutory organisations. It was not until the Bill was printed that it was possible to hold those meetings in order to discuss the many points which arose.
Therefore, although I understand my noble friend's comments, nevertheless there has been a great deal of consultation between the civil servants, the noble and learned Lord and those concerned with the wellbeing of children. Perhaps the very success of those consultations has led to the difficulty to which my noble friend Lord Renton has referred.
On Question, Motion agreed to.