Education Lifelong Learning and Culture
Committee
Children's Hearing (Scotland) Bill
Written Submission from the GBA
We write with our submissions in relation to the Children's
Hearing (Scotland) Bill.
Our submission is set out on the following pages. We have
restricted our comments to points of principle rather than a
detailed review. The headings under which our submission is
presented are as follows:-
Definitions
GBA
Legal Aid
We submit as follows:-
Definitions
GBA means Glasgow Bar Association
SLAB means Scottish Legal Aid Board
The words "we" and "our" refer to the Executive Committee of the
Glasgow Bar Association which has approved this submission to the
Justice Committee in relation to Summary Justice Reform.
GBA
The Glasgow Bar Association was formed in 1959. The
objects of the Association, as contained in its constitution,
include the promotion of access to legal services and to justice
and to consider and, if necessary, formulate proposals and initiate
action for law reform and to consider and monitor proposals made by
other bodies for law reform. The GBA also offers legal
education programmes and sponsors and supports legal education and
debate at Scotland's Universities. We are an independent
representative body although by statute compelled as individuals to
be members of the LSS.
Today the GBA remains a strong, independent body. It has
just amended its constitution to allow Corporate Membership and
current member levels sit at around three hundred, by far the
biggest Bar Association in the country. The contents of the
submission are based on detailed information and experience which
has been obtained through GBA members practising in the Summ
Sheriff Courts in Glasgow on a daily basis. In short, GBA
members are at the coal face.
In dealing with many of the issues which arise in this Bill, it
seems to the GBA that there are two fundamental principles which
must prevail to ensure that justice is done within the Children's
Hearing system. First, the system, and those appointed to positions
within the system, must be independent of Government and be free
from any fettered discretion from Government. At a time when the
profession feels that the Government is trying to exercise more and
more control over independent lawyers, it is imperative, in the
view of the GBA that e.g. the position of National Convener is
allowed to be fulfilled without interference from Government. The
National Convener will be responsible for a system which allows the
courts, and those within the system, incomparable access to the
private lives of families and children. Those rights must be
respected and it is therefore vital that the Government power
within the system is controlled by the Bill.
Secondly, there is little doubt that the legal aid provisions
within the Bill transfer power from the Sheriff Court to the SLAB,
and indeed potentially create new, unrestricted powers for SLAB.
The GBA would recommend that the provisions of the Bill which
empower SLAB to effectively control the conduct of solicitors and
others involved in cases which are litigated within the Hearings
system, be withdrawn. There is a feeling within the profession that
the SLAB are seeking to control as many aspects of legal
representation as is possible. The idea that civil servants with no
relevant qualifications, employed to administer payments to
solicitors for work reasonably undertaken on any case, should
decide what is in "the best interests of a child" is frankly
ridiculous. It is the view of the GBA that the SLAB administering,
or setting, a Code of Conduct for solicitors involved in the
Children's Hearing system will lead to a huge increase in
bureaucracy at SLAB. That is exactly what has happened in criminal
legal aid. Given time, the already difficult relationship between
the profession and SLAB will worsen. That will duly impact on "the
best interests of the child". Similarly, the test to be applied to
any applicant wishing to appeal the outcome of any Hearing is
higher for the purposes of obtaining legal aid, than it is to
actually successfully appeal. That is clearly unfair.
Dealing specifically with some of the sections, the GBA has
concerns about what appears to be a shift in the decision making
principles to be applied by the hearing. At present, the paramount
consideration of any disposal is what is deemed to be for the
welfare of the child. However, s25 shifts that consideration to
what is best for the protection of the public. This consideration
is already present in the event of any supervision requirement
being imposed. Why does this need to change?
The GBA welcomes national standards for safeguarders providing
the added responsibility is met with ample remuneration. A
safeguarder provides a hugely important service to the court in
often difficult conditions and at difficult times.
The GBA would wish to question the basis and reason why child
protection orders can now be dealt with by a Justice of the
Peace(not legally qualified) as opposed to a sheriff. The
parliament should consider carefully before legislating to allow
police constables to remove children from their families in these
circumstances. It is not obvious what safeguards are in place to
protect families in such a situation, nor is it clear in what
circumstances interim compulsion supervision orders are to be
invoked(s.89).
Tagging for children (s.144) is a concerning measure. Doubtless
there will be circumstances where it is appropriate but the Bill
does not set these out and if the liberty of children is to be
restricted in such a fundamental way then we would submit that this
section needs further explanation.
GBA Committee
Sheriff Court, Glasgow
8th April 2010
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