Subordinate Legislation Committee, 08 Mar 2005

Meeting date: Tuesday, March 8, 2005

Official Report 118KB pdf

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Delegated Powers Scrutiny

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Family Law (Scotland) Bill: Stage 1

The Family Law (Scotland) Bill was introduced only recently and we are dealing with the two provisions, in section 17(3) and section 34, that confer delegated powers. Section 17(3) deals with the parental responsibilities and rights—referred to as PRRs—of unmarried fathers. If I understand correctly, section 17(3) relates to situations where PRRs could be given to unmarried fathers whose child's birth is registered outwith the area that the bill provides for, which is Scotland and the rest of the United Kingdom.

However, it seems from our legal advice and from my reading of the bill that the power is in fact not limited to what is covered by the policy memorandum and to what I have just described; the power could also allow PRRs to be given to, say, unmarried fathers who were not registered on the birth certificate. I ask members for their ideas about that and how we should proceed. The legal advisers have made various suggestions.

The problem is that the Executive's intention is far from clear. The policy memorandum seems to be clear enough on what the Executive intends but, as you have rightly said, convener, the power is not limited in the way that the policy memorandum suggests.

Given that that is the case, and that we are at the very beginning of the process of scrutinising the bill, which was published within the past week, the best thing would be to seek clarification of the Executive's intention. Is the Executive's intention as it is stated in the policy memorandum, meaning that having an unlimited power in the bill is inappropriate, or does the Executive in fact intend for the power to be very wide, as it seems to have been drafted to be? If that is the case, there needs to be a discussion about whether we think that the subordinate legislation is appropriate. Given that we are so early on in the process, I think that we should simply ask the Executive for clarification.

Yes. I gather that we have time to do that. Do we agree on that?

Members indicated agreement.

I welcome Gordon Jackson. I said that he would be joining us shortly and his arrival is well timed.

The second delegated power in the bill is in section 34, and concerns the short title and commencement. The only problem is that the section deals not only with the commencement date, but with transitional or saving provisions. As members may be aware, a commencement date is normally not open to parliamentary intervention, whereas transitional and other provisions are. One of the suggestions that has been made is that, instead of the powers all being put together as one delegated power, they should be separated. I am open to the committee's recommendations.

I note that a number of options have been put before us. In this instance, given that it is not usual for Scottish statutory instruments dealing with commencement to be subject to scrutiny, the powers should be separated out. Issues may well arise if the powers are combined and we would not want members of the Parliament to be prevented from having an opportunity to address any such issues. Nor do we want to break with precedent and open up the commencement of the bill to such scrutiny.

I agree. Although it might be commendable to reduce the amount of paperwork and the number of SSIs that go through, it is not reasonable, in this case, to give those who might object to the bill a second bite at the cherry through the commencement order. I support what Christine May has said: we should split the powers under two SSIs.

So we will go with the first option as presented in our legal advice.

Members indicated agreement.

Those were the only two delegated powers in the bill, so there is not too much involvement for the committee.