Official Report

 

  • Delegated Powers and Law Reform Committee 10 September 2013    
      • Interests
        • The Convener (Nigel Don):
          I welcome members to the 23rd meeting in 2013 of the Delegated Powers and Law Reform Committee and ask everyone to turn off their mobile phones. We have received apologies from Richard Baker.

          I am happy to welcome to the meeting Margaret McCulloch, who has been newly appointed to the committee, and Mary Fee, who is substituting for Richard Baker. I ask you good ladies to declare, in accordance with section 3 of the “Code of Conduct for Members of the Scottish Parliament”, any relevant interests.

        • Margaret McCulloch (Central Scotland) (Lab):
          I refer members to my declaration of interests on the Scottish Parliament website.

        • Mary Fee (West Scotland) (Lab):
          I, too, refer members to my declaration of interests on the Scottish Parliament website.

        • The Convener:
          Thank you very much.

      • Decision on Taking Business in Private
        • The Convener:
          Agenda item 2 is a decision on taking business in private. Do members agree to take in private item 8, which is consideration of the evidence that we are about to take on the Marriage and Civil Partnership (Scotland) Bill?

          Members indicated agreement.

      • Marriage and Civil Partnership (Scotland) Bill: Stage 1
        • The Convener:
          Agenda item 3 is stage 1 consideration of the Marriage and Civil Partnership (Scotland) Bill, and is an opportunity for members to ask Scottish Government officials questions about it. I welcome to the meeting Simon Stockwell, team leader, and Julia McCombie, policy officer, from the family and property law team; and Francesca Morton, who is a solicitor from the Scottish Government legal directorate. I thank the witnesses for coming along to answer our questions, which we will proceed straight to. The first is from Mary Fee.

        • Mary Fee:
          I have a brief question about sections 8 and 9 on the change from a qualifying civil partnership to a marriage. Section 8(2)(g) refers to

          “the effect of a qualifying civil partnership changing into a marriage in accordance with provision”

          that is made under section 8(1), and section 9 itself is entitled,

          “Effect of marriage between civil partners in a qualifying civil partnership”.

          What is the difference between the use of “effect” in section 8 and section 9? If section 8 does what section 9 says—or, indeed, vice versa—why have both sections been included?

        • Simon Stockwell (Scottish Government):
          In essence, the policy intention is that there should be no difference in effect. It is intended that when changing a civil partnership to a marriage under the administrative route that is established under section 8, the effect will be exactly the same as a marriage ceremony under section 9. Our intention is also that any regulations that will be made under section 8(2)(g) will mirror the provisions in, say, section 9. In other words, the policy intention is, as I have said, that there will be no difference. It will not matter whether you marry through an administrative route or in a ceremony; once you are in the marriage, the effect will be exactly the same.

        • Mary Fee:
          That was very helpful.

        • Mike MacKenzie (Highlands and Islands) (SNP):
          Good morning. The delegated powers memorandum offers examples of consequential changes that might be required to other legislation to accommodate the change in status or to ensure that obligations remain the same, notwithstanding the change. Can you clarify how you envisage that power being used?

        • Simon Stockwell:
          Which paragraph of the delegated powers memorandum are you referring to?

        • Mike MacKenzie:
          I understand that a number of examples are given in the memorandum; I am simply asking about your general sense of any consequential changes that might be required.

        • Simon Stockwell:
          Given that, in broad terms, the rights and responsibilities of civil partners and those of married couples are very similar, much of the debate around the bill relates to people’s ability to say that they are married instead of being in a civil partnership.

          However, although the rights and responsibilities in both instances are generally the same, they differ in respect of, for example, pensions. The fact is that married couples can have greater pension rights than civil partners, and our intention is for same-sex married couples to be treated the same as civil partners in relation to pensions. We might, in due course, need to make provision to achieve that policy intention and ensure that civil partners and same-sex married couples are treated the same for pensions purposes. That might require a contrary provision in the bill; after all, we would normally say that married couples should be treated the same whether they are in same-sex or opposite-sex marriage but—as I have said—there are differences, such as in pensions.

        • Mike MacKenzie:
          Are you able to point to legislation that is within the province of the Scottish Parliament with regard to pensions, for instance?

          10:15
        • Simon Stockwell:
          Most provisions in respect of pensions are reserved to Westminster, but the Scottish Government has some executive devolution in relation to pension schemes for the police, the fire service, local government employees, teachers and another group that I have forgotten. The Scottish Public Pensions Agency also has a role in the administration of some small pension schemes, including those of Scottish Enterprise and Highlands and Islands Enterprise. We might need to make changes in those areas to ensure that same-sex married couples are treated the same as civil partners.

        • Mike MacKenzie:
          There appears to be no limit on the power at section 8(2)(g). Can you explain why that power has been drawn so widely?

        • Simon Stockwell:
          The power is drawn widely simply to ensure that we can do everything that we need to do. Clearly, we need to reflect the provisions in section 9. For example, in Scotland the financial provision on divorce is based largely on the matrimonial property that a couple has acquired during the marriage. If a couple should divorce after they have changed a civil partnership to a marriage, we would want to ensure that any property that they acquired during the civil partnership also counted when they divorced, otherwise there could be strange results. If, for example, a couple had bought a house during the civil partnership, changed the relationship to a marriage and subsequently divorced, there might be a risk that that property would not count as matrimonial property for the purposes of Scots divorce law. The intention is to ensure that, in such examples, everything that the couple did during the civil partnership also counts towards the marriage.

        • Mike MacKenzie:
          Given the apparent breadth of the power, was any consideration given to applying the affirmative procedure?

        • Simon Stockwell:
          Yes. Obviously, the affirmative procedure will apply if we are modifying any enactments. If there are changes to primary legislation, the affirmative procedure will apply. Obviously, we considered the possibility of using affirmative procedure—we considered all the potential procedures—but we concluded that, on the whole, because the process is reasonably straightforward and is mirrored in provisions in the bill, negative procedure would be appropriate except for when we were amending primary legislation. However, I accept that arguments could be made the other way.

        • The Convener:
          You said that the intention is that the effect of the two arrangements will be the same. However, I still cannot see why you need to have provisions that would explain the effect of a marriage or civil partnership in the first place, because that is surely a state—a relationship—that does not need to have its effects modified.

        • Simon Stockwell:
          I have just given an example. If we were just to say that the qualifying civil partnership is a marriage, a question would arise about the matrimonial property regime, for example. Section 9(1)(b) says:

          “the civil partners are to be treated as having been married to each other since the date on which the qualifying civil partnership was registered”.

          That will ensure that the matrimonial property regime covers the period when they were in the qualifying civil partnership. We would want to do something similar in respect of civil partners who change under the administrative route in section 8, in order to ensure that any property that they had acquired in the civil partnership would count if they should divorce later on.

        • The Convener:
          So, it would be fair to say that the effects that you want to legislate on are the effects of the change from one state to another, rather than the state from which they came or the state to which they go, because, surely, the effect of being married is the effect of being married.

        • Simon Stockwell:
          Yes, the effect of being married is, indeed, that you are married. However, what does that mean in terms of being in the marriage? When does it date from? Are there other provisions to which we need to make specific reference in order to ensure that a couple is granted full rights and responsibilities?

        • The Convener:
          It is about the effect of the transformation from one to the other.

        • Simon Stockwell:
          Yes—it is about the effect of becoming married.

        • The Convener:
          I am grateful for that clarification.

        • Margaret McCulloch:
          Good morning. There are three parts to my question. Can you explain the legal implications of a renewed marriage ceremony or renewed civil partnership ceremony? What status would a renewed marriage or civil partnership have, and are they to be understood as new legal concepts?

        • Simon Stockwell:
          The legal status is that a couple would be regarded as married or in a civil partnership, but would not need to go through the marriage or the civil partnership ceremony to achieve that status. The bill already has a provision that states that when a couple undergo gender recognition, their marriage or civil partnership will continue. The legal effect of section 28 is simply to allow them to have a ceremony to reflect their newly acquired genders; it is not meant to change the legal status of their marriage or civil partnership. There would not be any obligation on a couple to undergo a renewed marriage or civil partnership ceremony; it is one option that would be open to them, if they wished to take it up, after they had acquired gender recognition.

          To an extent, we are borrowing from provisions that are already in place in the Marriage (Scotland) Act 1977. From memory, I think that section 20 of that act allows a couple who married overseas, but whose marriage is of doubtful validity, to have a second marriage ceremony in Scotland.

          The situation that we are discussing is not quite the same; we are saying that the couple will continue in their marriage or civil partnership. However, we are borrowing the broad concept that they could, if they wanted to, have a second ceremony in Scotland to reflect their acquired genders. Their status would be that they would simply continue to be married or in the civil partnership, as they would have been before they entered into the renewed marriage or civil partnership. Their status would not change.

          That is one way of enabling a couple to get a revised marriage or civil partnership certificate that reflects their newly acquired gender. Obviously, they would have married or entered into the civil partnership in their previous genders. The new provision will allow them to have a marriage or civil partnership certificate that reflects their acquired genders.

          One of the key things that we are trying to do in the bill more generally in respect of transgender people is to avoid outing them inadvertently. With the provision and other provisions in the bill, we are trying to ensure that any certificates that a couple has are as close as possible to other certificates that are held by married people or people in civil partnerships, in order to avoid outing transgender people as trans.

        • John Scott (Ayr) (Con):
          We are interested to know about the power at section 28(2)(h) to make provision

          “about the effect of entering into a renewed marriage or ... partnership.”

          Can you explain—perhaps you already have; I am not entirely sure—to the committee the intention behind that power? What sort of provision will it be used to make?

        • Simon Stockwell:
          The intention was to address any requirement to make provision for the effect of having a renewed marriage or civil partnership. That was the sort of area that we were looking at. We have continued with key stakeholders to discuss use of section 28. At the moment, our thinking is that we might not need to use section 28(2)(h) because—as I said earlier—the effect of a couple’s entering into a renewed marriage or civil partnership will be that they will continue in their marriage or civil partnership. We might need to say that in regulations, if we make any, for the avoidance of doubt.

          I do not think that we need to make specific provision beyond that, in terms of the effect of entering into a renewed marriage or civil partnership, because the effect in practice will be that the couple would simply continue in their current relationship.

        • John Scott:
          Is it envisaged that the power in section 28(2)(h) might alter a person’s legal status?

        • Simon Stockwell:
          We do not intend to alter people’s legal status. Once a person has acquired their full gender recognition certificate from the gender recognition panel, they will be legally recognised in their acquired gender and can then have a renewed marriage or civil partnership. We would not be changing their legal status by any provision made under that power.

        • John Scott:
          Given the potential significance of the power, was consideration given to applying the affirmative procedure at all times and not just when the primary legislation is to be modified?

        • Simon Stockwell:
          Yes—we considered the possibility of applying the affirmative procedure but, in general terms, the provision is mainly about the ceremony that people will need to go through for a renewed marriage or civil partnership. Traditionally, where the issue just relates to the ceremony that a couple has to go through, such changes would be subject to the negative procedure. I understand, however, that the committee might take a different view. I made the same point in response to Mr MacKenzie’s question.

        • John Scott:
          Was consideration given to providing in the bill detail on, or clarification of, the status of a renewed marriage or renewed civil partnership?

        • Simon Stockwell:
          We did not necessarily consider doing that in the bill. We have tried to provide explanatory material in the delegated powers memorandum. In broad terms, what we are doing in this respect is similar to what we are doing elsewhere in the bill in relation to changing civil partnerships to marriages. There are two routes for that—an administrative route and a ceremony route. In this case, the couple are not changing and are staying in their relationship, but it is a similar concept in that, again, there will be two routes for recognising their acquired gender. They can either have a renewed marriage or civil partnership ceremony to reflect their acquired gender, or there is provision elsewhere in the bill so that changes can be made to marriage and civil partnership certificates through the administrative route. We follow a similar concept throughout the bill. The circumstances vary, but the concept is the same.

        • John Scott:
          It is pretty fundamental.

        • Simon Stockwell:
          I accept that any provision that has the effect of changing somebody’s legal status would be fundamental. Yes.

        • John Scott:
          You argue, however, that the provision will not change their legal status, and that is your justification for not putting it in the bill.

        • Simon Stockwell:
          Yes. There is no intention here to change people’s legal status. Other provisions in the bill allow people to change a civil partnership to a marriage and there are provisions in respect of gender recognition that go into considerable detail on how a couple can acquire a full gender recognition certificate and stay in the marriage or civil partnership. Those are pretty fundamental principles in the bill. Gender recognition is a major feature in the bill because it is very important for the number of people whom it affects.

          We have quite a lot of detail elsewhere in the bill on those issues; I am not sure that we would necessarily accept that we need more. There is already quite a lot of detail on what the regulations provide for.

        • John Scott:
          Many thanks.

        • The Convener:
          I would like to pursue John Scott’s point a little. It is just possible to look at all the detail, all the transformations and all the options and to draw the conclusion that, because there will be different ways of doing things, there will be different states. If there are actually only two—or arguably three, if we include being single—why do we not just say so? Why do we not make it clear in the bill that there are only those states and that, regardless of how people get between one and the other, they are the same? I just wonder whether it might be worth saying that.

        • Simon Stockwell:
          That would have been an alternative approach. It depends, obviously, on our view of how best to do it. As I said to Mr Scott, in general, for such changes, we have provided two routes—the administrative route and the ceremony route—and provision is made within sections of the bill to reflect that.

          However, on the high-level policy, I am happy to say that we will not have different types of civil partners or marriages, depending on what route they have gone through. The message is that, once people are married, they are married. In that respect, it is similar to what happens with marriage ceremonies. People can have a religious ceremony or a civil ceremony, but once they are in the marriage, they are married. It does not matter how they got there. It will be the same in this case.

        • The Convener:
          Right. Our last set of questions comes from Stewart Stevenson.

        • Stewart Stevenson (Banffshire and Buchan Coast) (SNP):
          My questions are on changes to the Gender Recognition Act 2004, and particularly on paragraph 6 of schedule 2 to the bill, which inserts new section 5D into the 2004 act. First, what circumstances are covered by the phrase “additional circumstances”? It might not be possible to give a definitive and complete list, but some examples might be of modest help.

          10:30
        • Simon Stockwell:
          Yes, Mr Stevenson. We are struggling with that at the moment. Currently, the bill includes a couple of ways in which a civil partner can obtain gender recognition and change the relationship to a marriage.

          Civil partners who are undergoing gender recognition need to change their relationship to a marriage, because we are not introducing opposite-sex civil partnerships. The exception to that is if both civil partners change gender at the same time. They can stay in their relationship because they are staying in a same-sex relationship.

        • Stewart Stevenson:
          I will pick up on that immediately. They can stay in their civil partnership as distinct from their relationship.

        • Simon Stockwell:
          Yes, indeed. That is quite right.

        • Stewart Stevenson:
          “Relationship” is an informal word that you are accidentally using.

        • Simon Stockwell:
          That is quite right. They could stay in a relationship even if they did not stay in a civil partnership.

          What we are wondering with this power is whether there are simpler ways to allow a civil partner to obtain gender recognition and change to a marriage at the same time. The consultation paper set out one option, which was that a civil partner would apply to the gender recognition panel for gender recognition, obtain an interim gender recognition certificate in the normal way, use that certificate to get married, and thus have the change to the marriage status there and then. They would use the interim gender recognition certificate, which would show their acquired gender rather than their previous gender. There are arguments against that, the most pressing of which is whether it would give an additional status to interim gender recognition certificates that we would not want to give them. However, that is one potential use of the power.

          A variation on that is to allow the couple to get married with the acquired gender after they have received the full gender recognition certificate, but that certificate would not be signed off formally until they got married. There is an argument against that as well, as it raises questions about the nature of the full gender recognition certificate.

          We are going through similar options, but the aim of the power is really to see whether we can devise a procedure that would enable somebody in a civil partnership to obtain gender recognition and change to marriage in fewer steps than the current number, given that we are not introducing opposite-sex civil partnerships.

        • Stewart Stevenson:
          That leads neatly to my next question. Given that the complications that we are struggling with seem to derive from the impermissibility under the legislation for people who become of opposite gender to remain civil partners, was there a drafting or legal difficulty that inhibited the provision in the bill or elsewhere of civil partnerships of people of opposite genders, or was that a policy decision?

        • Simon Stockwell:
          Obviously, the policy is that the bill is not introducing opposite-sex civil partnerships. The cabinet secretary has announced a review of civil partnerships, in which that option and other options in relation to civil partnerships will clearly be looked at. Given that that is the general policy in relation to opposite-sex civil partnerships, we would not want a situation in which a person in a civil partnership could somehow claim to be in an opposite-sex civil partnership. The provisions reflect the fact that there is currently no intention of introducing opposite-sex civil partnerships.

        • Stewart Stevenson:
          For clarity, Mr Stockwell, you are not suggesting as an official that you would be unable to provide in a reasonable way for legislation that allowed civil partners to be of opposite genders. In other words, at this stage, the issue is purely a policy issue rather than an issue that lies with practical difficulties.

        • Simon Stockwell:
          In my experience, Mr Stevenson, parliamentary draftsmen can do anything, so if the policy was that we wanted to introduce opposite-sex civil partnerships, I am sure that they could produce provisions within the usual timescale. It is a matter of policy that we are not introducing opposite-sex civil partnerships, rather than a matter of drafting or law.

        • Stewart Stevenson:
          Right. That is helpful.

        • John Scott:
          My question is about that issue. As it is a matter of policy, I am not sure that we can stray into it, although the convener said earlier that he would not be too sore on those of us who strayed into such questions.

        • Simon Stockwell:
          I am happy to answer your question, Mr Scott.

        • John Scott:
          By not introducing opposite-sex civil partnerships, are you in some way disadvantaging those of opposite sex who wish to enter into civil partnerships?

        • The Convener:
          That is quite clearly a policy decision. To be fair to Mr Stockwell, I do not think that he is required to answer that question in the context of this committee. We might well find that he will be required to answer it in another committee, but it is not an issue for us. My point was that we need to understand the policy if we are to understand the detail of the questions that we have before us.

        • Simon Stockwell:
          The simple answer is that the cabinet secretary has announced that there will be a review of civil partnerships that will look at them in the round, whether it be opposite-sex civil partnerships, stopping new entrants into civil partnerships or any other variation in relation to partnerships. That is the simple answer to the question.

        • Stewart Stevenson:
          Has the cabinet secretary given a timetable for the review? In particular, is there an expectation that the review could be completed prior to the deadline for lodging stage 3 amendments for the bill?

        • Simon Stockwell:
          No, it will not be completed by then.

        • Stewart Stevenson:
          We already know that it will not be.

        • Simon Stockwell:
          It will not be. That is not the intention. We have begun the process and the cabinet secretary has written to ask the other party spokespersons for their views on the terms of remit of the review. We intend to publish the terms of remit fairly soon, but the bulk of the work during the next six months will concentrate on this bill, and the review will start in earnest once the bill has been passed.

        • Stewart Stevenson:
          Thank you.

        • The Convener:
          Thank you. As there are no further questions, I think that that is it. I thank the witnesses for their time.

        • Simon Stockwell:
          Very grateful, Mr Don.

        • The Convener:
          The committee will suspend for a couple of minutes to allow people to draw breath.

          10:36 Meeting suspended. 10:37 On resuming—
      • Instrument subject to Affirmative Procedure
        • National Health Service (Cross-Border Health Care) (Scotland) Regulations 2013 [Draft]


          • The committee agreed that no points arose on the instrument.

      • Instruments subject to Negative Procedure
        • Civil Contingencies Act 2004 (Contingency Planning) (Scotland) Amendment Regulations 2013 (SSI 2013/247)
        • Legal Aid and Advice and Assistance (Photocopying Fees and Welfare Reform) (Miscellaneous Amendments) (Scotland) Regulations 2013 (SSI 2013/250)
          • The committee agreed that no points arose on the instruments.

      • Instruments not subject to Parliamentary Procedure
        • Act of Sederunt (Registration Appeal Court) 2013 (SSI 2013/236)
        • Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules Amendment) (Policing and Crime Act 2009) 2013 (SSI 2013/241)
        • Aquaculture and Fisheries (Scotland) Act 2013 (Commencement and Transitional Provisions) Order 2013 (SSI 2013/249)
          • The committee agreed that no points arose on the instruments.

      • Children and Young People (Scotland) Bill: Stage 1
        • The Convener:
          The purpose of agenda item 7 is for the committee to consider the delegated powers in the bill at stage 1. Members have seen the briefing paper that outlines suggested questions. The committee is invited to consider its approach and agree the issues that it wishes to raise in written correspondence with the Scottish Government. A letter setting out those issues and the questions that they precipitate will be published on the committee’s web page later on today.

          With regard to the powers under sections 13(1)(b)(ii) and 17(6), which relate to children’s services plans and planning, the committee may wish to seek clarity on the effects of the powers, on the reasons for taking them and on the procedure attached to the power at section 13(1)(b).

          As members have no comments, do they agree to raise those issues with the Scottish Government?

          Members indicated agreement.

        • The Convener:
          The committee may wish to seek clarity on the purpose of the power under section 32, which relates to the interpretation of part 4 of the bill. The committee may wish to seek further information from the Scottish Government on the powers under sections 32(2) and 37(5), which relate to a child’s plan. In particular, the committee may wish to seek further information in relation to the accuracy and sufficiency of reasons provided in the delegated powers memorandum and the clarity of the power under section 32(2), and on the choice of procedure as regards both powers.

          As members have no comments, do they agree to raise those issues with the Scottish Government?

          Members indicated agreement.

        • The Convener:
          The committee may wish to seek further explanation of the choice of procedure applied to the powers under section 43(2)(c)(ii), which concerns the provision of early learning and childcare, section 61(3), which relates to eligibility for counselling services for parents and others, and section 64(4), which pertains to assistance in relation to kinship care orders.

        • Mary Fee:
          Before we consider those points, I have an issue in relation to paragraph 83 on page 15 of the briefing paper, which is on the management of a child’s plan. My concern is about the breadth of the power and the use of the negative procedure. I would be grateful if the committee could ask the Government for an explanation as to why it is using that specific power, given the breadth and scope of what is being talked about.

        • The Convener:
          Thank you. I think that I have just covered that point because I think that you are referring to section 37(5).

        • Mary Fee:
          I may well be, yes.

        • The Convener:
          I just suggested that we should address that section.

        • Mary Fee:
          Okay, sorry. I just wanted to make sure that that point was raised.

        • The Convener:
          That is fine.

          With regard to provisions on Scotland’s adoption register, which are contained in section 68 of the bill, the committee may wish to seek further explanation of the reasons for taking the powers, the scope of the powers and their intended effects. The committee may also wish to seek an explanation for the delegation of functions in relation to the register by arrangements.

          As members have no comments, do they agree to raise those themes with the Scottish Government?

          Members indicated agreement.

        • The Convener:
          The committee may wish to seek clarity on the choice of procedure and the overlap between the powers contained in section 78(b), which confers powers on the Scottish ministers to make separate ancillary provision, and section 79(2), which includes the power to make ancillary provision alongside provision for commencement.

          As members have no comments, do they agree to raise those themes with the Scottish Government?

          Members indicated agreement.

        • The Convener:
          Finally, the committee may wish to ask the Scottish Government whether it considers it appropriate that the guidance and directions that are provided for in sections 28(1), 29(1), 39(1), 40(1) and 74(3) should be published.

          As members have no comments, do they agree to raise those themes with the Scottish Government?

          Members indicated agreement.

        • The Convener:
          Based on what has been agreed today, the committee will write to the Scottish Government, setting out those questions. As previously mentioned, the letter will be published on the committee’s web page later today. The committee will consider a draft report on the basis of the responses at a later date.

          10:44 Meeting continued in private until 11:15.