Justice 2 Committee, 05 Feb 2003

Meeting date: Wednesday, February 5, 2003

Official Report 96KB pdf

---

Subordinate Legislation

---

Child Support Appeals (Jurisdiction of Courts) (Scotland) Order 2003 (Draft)

We move to agenda item 3. Members have a note on the order. I welcome Hugh Henry to the committee. Minister, you may speak to motion S1M-3826.

Thank you, convener. The order concerns child support, which, as you know, is a reserved matter in terms of general policy. However, the order relates to the jurisdiction of the Scottish courts in dealing with child support appeals. As such, it relates to a matter that is devolved by virtue of section 45 of the Child Support Act 1991. That provision enabled the Lord Advocate and now enables the Scottish ministers to allocate certain child support appeals to the courts. The order is essentially a tidying-up exercise. It will not change existing child support policy. It merely re-enacts existing provision that allocates certain child support appeals to the courts.

When the child support system was introduced 10 years ago, its purpose was to take decisions about child maintenance out of court in order to speed up the process. It was decided at the time that appeals should be made through an out-of-court process involving a non-adversarial tribunal hearing. There was one exception—it was decided that the courts should deal with appeals that were based on parentage issues. That decision was taken because of the importance of issues beyond child support, such as immigration and inheritance, and because the courts were accustomed to dealing with such matters in determining issues of parental rights and responsibilities in the wider context of family matters.

The exception was originally given effect in a United Kingdom order made jointly in 1993 by the Lord Advocate and the Lord Chancellor. The present order will revoke and replace the 1993 order as it affects Scotland. The Scottish order will stand alone. Similar, separate orders have already been made for England and Wales and Northern Ireland. I stress that the policy on the courts' role will remain the same.

The order is necessary because the references in the existing order will be out of step with, and too general in regard to, changes that have been made to primary legislation that deals with appeals against child support decisions.

Convener, do you want me to go into any more detail?

There will certainly be some questions.

If it assists, convener, I have three questions that I suspect are relatively technical—the minister might find that he does not need to give me any further information.

Okay.

We will go straight to questions.

My questions are fairly straightforward. I am not seeking to oppose the order; I am seeking clarity.

First, the draft order does not have a number. Is the order number 1 or should it not be numbered? That is a minor drafting issue.

Secondly, article 4 refers to an appeal made to a court in Scotland and

"the care of the child … domiciled in Scotland on the date when the appeal is made".

How is it determined who has care of a child when we are talking about transnational issues? I expect that that is something that is well known, but it is not known to me.

Thirdly, I have a little, quirky point. I understand that there is a special register of births, deaths and marriages that applies to such events as take place in aircraft and vessels. Will the minister confirm that there is a distinctly Scottish version of that? I have the feeling that, even if someone is born in an aircraft in Scotland, the birth is registered in England for legal purposes.

Minister, I should explain that aircraft are Stewart Stevenson's specialist subject.

To add to Stewart Stevenson's question, is there a distinction between aircraft and helicopters? I know that children have been born in coastguard helicopters.

The first issue is fairly straightforward: we cannot allocate a number to the order until it is approved.

The determination of the care of a child who is domiciled in Scotland is a matter of fact. If there were a dispute about that, it would have to be determined through the court system on the basis of family law.

On births in planes, helicopters, ships—

And submarines.

—and submarines, the issue could well be one of domicile. The issue would relate to the jurisdiction of Scotland and the jurisdiction within which the vehicle was at a particular time. I will seek further guidance on the issue and get back to Stewart Stevenson through the convener.

If it assists, I point out that, although aircraft do not have a port of registry, vessels do, which might distinguish Scots from English vessels. The minister might bear that in mind.

With the convener's indulgence, I have a question that the minister might be able to answer on the negative instrument that we are to consider next. I do not know whether the minister is staying for the discussion of that instrument.

The minister is not here to answer such questions; it would be a matter of courtesy if he decided to stay. However, we should deal first with what we have in hand.

I have one point that might assist the minister. I think that it is established in law that, where births occur in sea-going vessels that are outwith the territorial limits of a nation, the country of domicile determines the nationality.

Motion moved,

That the Justice 2 Committee, in consideration of the draft Child Support Appeals (Jurisdiction of Courts) (Scotland) Order 2003, recommends that the Order be approved.—[Hugh Henry.]

Motion agreed to.

---

Police and Police (Special Constables) (Scotland) Amendment Regulations 2003 (SSI 2003/21)

Stewart Stevenson has a question on the regulations for the minister.

I have no information on them.

If you feel that your question is unresolved, Stewart, we can note the issue in the report.

That is fine—I wanted to ask my question of the minister only as a matter of convenience.

In that case, I thank the minister for coming.

I ask the committee to consider the regulations, on which members have a note from the clerk. Stewart Stevenson has a point to make.

I latched on to a point in the note provided by the clerk. The note describes the changes that are to be made, the first of which is that a police constable or special constable must be

"sufficiently competent in written and spoken English and sufficiently numerate".

To be candid about my intention, I am concerned about special constables. If that requirement did not exist previously, will its introduction exclude people who have a great deal to offer as special constables and are perfectly capable of doing the job in the area in which they are deployed but who might not meet that test? I wonder why that condition has been added to the regulations. In asking the question, I am not seeking to oppose or in any way inhibit the progress of the statutory instrument. In any event, I recognise that I would still have time to do that—I would not have to take any such action today.

Who might be excluded?

Gaelic speakers, for example. Moreover, in some areas of Glasgow, there might be members of our quite substantial immigrant communities who might well be able to do an excellent job as special constables. I would not wish them to be excluded from providing their services to the community if they could not meet that test. It would be up to the chief constable to decide what was appropriate.

Dyslexia might be an issue.

Dyslexia could indeed have an inhibiting effect on competence in written English. I am thinking about special constables in particular, as they will not necessarily be deployed in the general way in which constables are deployed. Special constables can be used in a specific and focused way.

Does any member of the committee know whether special constables give evidence at court?

Yes, they do. I would like to reinforce what Stewart Stevenson said. I can confirm that in Glasgow there are a number of special constables who come from the south Asian and Chinese ethnic communities.

It is almost inevitable that any special constable who did not speak English—I doubt whether there are any special constables who are in that position—would experience difficulties. I suspect that that would be the case in the Hebrides, too. In my experience, the vast majority of troublemakers tend to be English speakers.

Some Gaels—Mr Morrison, for example—are an exception.

No one would disagree with that.

I want to comment on the additional requirements that the new regulations will impose. Regulation 6 of the Police (Scotland) Regulations 1976 stipulates that the chief constable has to be satisfied that candidates for appointment as constables

"are sufficiently educated through the passing of an examination".

I am not sure what the difference is between that requirement and the requirement that someone should be literate and numerate. In what way do the new tests introduce an additional requirement that is not already covered by the stipulation that candidates should be "sufficiently educated"? A knowledge of Shakespeare is hardly necessary.

I am also curious about the assessment of whether someone is sufficiently competent in written and spoken English and whether they are sufficiently numerate. I would like to know where it is defined how that will be decided. As far as I can see, the new regulations make no reference to any particular tests, but I might have missed something. I would like to know, for example, whether a qualification that someone who had come from another country had obtained in that country would count.

The difficulty with negative instruments is that such questions are not answered. We have to make a judgment on whether we want to make any comment.

On page 3, under the heading "Competence in Oral and Written English and Numeracy", the Executive note states that the police standard entrance test

"forms part of the assessment process".

It says that the police standard entrance test

"already comprises papers in Language, Numeracy and Information Handling."

Does that not refer to the traditional test? We are talking about the additional test.

If the committee has doubts or wants to get questions answered, the best policy would be to write to the Executive to obtain clarification.

I would like to reiterate what Stewart Stevenson said. In asking questions, we do not intend to block the new regulations.

It is fair for the committee to seek as much information as it needs. We are being asked to comment on the regulations. If there are areas in which answers are required, it is perfectly valid to request such answers, provided that there is time to do so. We want to find out whether the requirement that we have discussed represents an additional test.

I make it clear that my focus is on the special constables. The Executive's note states that special constables will not

"necessarily be required to undertake an entrance examination."

If the proposed change is made, I presume that some kind of new assessment will be carried out. I am cautious about that.

I want to put on record the reason for my confusion. Although it is stated that it is not intended that the proposed amendments to the regulations will result in the imposition of any new test, the explanatory note to the new regulations states that the literacy and numeracy requirements are additional to the current requirement that candidates be "sufficiently educated". I am not sure how one could come to a view on whether those additional requirements were met without having an additional test.

That is a fair point. As there are no other points, we will obtain clarification on the points that have been raised.

Meeting continued in private until 11:50.