Justice 1 Committee, 08 Oct 2003

Meeting date: Wednesday, October 8, 2003

Official Report 249KB pdf

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Work Programme

Item 5 is our work programme. Members have quite a number of papers to refer to. We agreed previously that we should examine European law specifically regarding alternative dispute resolution. It is suggested that we could seek written and oral evidence to inform our consideration in advance of the formal production of any text on that legislation. Members will know that we chose that subject because it would give us a chance to get in early on in the procedure and see how we progressed with it.

It is suggested that we could, if there is time, take oral evidence from the relevant European Commission official. Alternatively, we could take oral evidence from an academic with an interest in the subject. There is also the Law Society of Scotland, which has an interest in European matters. Also suggested are Citizens Advice Scotland, Family Mediation Scotland and the Scottish branch of the Chartered Institute of Arbitrators. Those are some organisations that might have an interest in alternative dispute resolution. The main thing is for us to kick things off somewhere. I am happy to receive any suggestions, so that we can get started.

The list of organisations seems reasonable to me.

We will seek oral evidence from the relevant Commission official, and from Paul McKell and Jane Scoular of the University of Strathclyde, who are specialists in family mediation. We might have to prioritise some witnesses on the list if we do not have enough time to hear from them all.

If it turns out that we are tight for time, I would prefer to hear from the academic side first, on the grounds that the European Commission has not really started off down the alternative dispute resolution road yet. There will probably be value in hearing from the Commission official, but I would rather hear from the academic witnesses first.

Does anyone dissent from the view that we hear from Paul McKell and Jane Scoular first, if they are willing to attend?

Having spoken to the clerk, I should clarify that Paul McKell is the Commission official and Jane Scoular is from the University of Strathclyde. If we follow Stewart Maxwell's suggestion, we will ask Jane Scoular for evidence first. We will then seek to arrange for Paul McKell to give oral evidence. Is that agreed?

Members indicated agreement.

We move now to the European Union white paper on divorce. We expect the white paper to be published in November.

If we could go back to alternative dispute resolution for a moment, I presume that the committee also wishes to receive written evidence.

Members indicated agreement.

Sorry—we return now to the EU white paper on divorce. It is an interesting issue. I wonder why we have got to the stage of legislating on divorce at the EU level. I would really like to ask why we need to do it at all, rather than simply getting into the issue, examining it, ascertaining whether the white paper is compatible with our law and so on.

Perhaps we should shunt it into a siding at the moment.

Are you talking about the white paper on divorce?

Yes.

We could come back to the matter at an appropriate time.

We need to keep an eye on what is going on with the white paper. I wonder whether there is a mechanism through which we can ask why it might be necessary to legislate on divorce. Perhaps there is a specific matter at stake, such as access to children.

I think that we have informally asked why Europe looks as if it is meddling—for want of a better word—in something that falls within Scots family law. My recollection is that the white paper concerns such matters as child abduction across borders and differences in the legal positions of husbands and wives in different countries. If the proposals fall within that range, I can understand why the law is being examined. I can understand why we might want to take measures to protect parental rights with respect to a child who has been abducted. However, I share your concern that this might be the thin end of the wedge. We have to keep a careful eye on things and ensure that that is not the case.

We should perhaps wait until the publication of the white paper. We can consider its terms and decide whether it is appropriate for us to consider it.

I wonder whether we need to consider the EU white paper, when it is published, in the context of any Scottish family law bill. There might be some crossover between the proposed Scottish legislation and the white paper from Brussels. We should keep an eye on it and bear in mind which committee might be pursuing the family law bill. It might be more appropriate if the Justice 2 Committee takes on this issue.

I will try and pull that together. When the white paper is published, the committee will want to see what it looks like, although it might be better if we have a summary note of it. We could then examine it and see whether there is a big European dimension to it and decide from there. If there is not, we can decide whether it could or should be challenged. Is it agreed that that is what we will do for now?

Members indicated agreement.

I am keen that the committee see the end of the process of the regulation on parental responsibility so that we can decide on the approach we are going to take and whether we are happy with the regulation. Colin Imrie gave evidence that UK and Scottish officials are happy that enough changes have been made to the regulation and that it is compatible with UK law. I would like to see the Executive note on the regulation, although I do not know whether we have to write to the Executive to ask to see the note.

I am told that the note is on its way.

Members have got some information on how we could begin the sentencing inquiry. It is suggested that we take initial evidence on 19 November from Professor Neil Hutton, who is deputy head of the law school at the University of Strathclyde. We heard from him at the committee's away day.

We have secured a debate on the previous committee's report on alternatives to custody. That will take place on 12 November. We have not yet received a response from the Executive although we will have one, and that will allow Parliament to debate the issue. The debate will be in the name of the committee, although we decided that we would not formally adopt the report because it is not ours but the previous committee's.

Are members content to kick off the sentencing inquiry by hearing from Professor Neil Hutton? Are there any other suggestions?

That seems to be a reasonable way to proceed.

It is quite important that we hear from the Parole Board for Scotland, which could give some detailed information on how the licensing system works and on how it makes decisions. We do not have a lot of information on that at the moment. That could be our second choice for oral evidence. It would set the scene.

I do not think that there is anything further to say on alternatives to custody unless Michael Matheson has something to add. He was on the previous committee and can provide some continuity.

After Neil Hutton gives evidence, we can decide how to progress if we choose to do so. It might be helpful to have a paper following on from his evidence and telling us what our options are.

We move on to civil partnership registration. I invite the committee to consider whether it wants to have any input into the work of the Equal Opportunities Committee, which is conducting a consultation on civil partnership registration. The committee might decide that it is satisfied that the Equal Opportunities Committee should conduct the consultation without any involvement from ourselves, or it might be pertinent for us to appoint a reporter. Thankfully, we have two members who sit on the Equal Opportunities Committee and who may be prepared to play that role, although I do not know. I think that Margaret Smith wants to say something—I am not prompting her.

I am happy to be a reporter, if members agree to that. To bring members up to date, we have received the consultation document from the Executive after a delay in which we waited to find out what would happen. The Executive has decided to go down the Sewel route, although the devolved aspects of the legislation will be drafted in Scotland and will be based on Scots law. The Equal Opportunities Committee will take evidence at the beginning of November from lesbian, gay, bisexual and transgender groups; Couple Counselling Scotland; faith groups, including the Roman Catholic Church, the Church of Scotland and the Muslim community; the Law Society of Scotland; and one or two academics. The evidence-taking session will be pre-legislative scrutiny, because we will have only the consultation document to go on.

The Justice 1 Committee should keep an eye on a few issues. Sections of the consultation are on substantive parts of the law, but they do not receive much attention. For example, the section on aliment, property division on dissolution, intestacy, inheritance and damages is only seven lines. The evidence to the Equal Opportunities Committee on the basis of the consultation will be a shot in the dark because we will not know what will end up in the bill, which will probably contain around 70 to 100 clauses relating to devolved matters and to Scots family law.

To make the Sewel motion effective, we must ensure not only that the Equal Opportunities Committee considers the proposals in the consultation document, but that the Executive and the Westminster Government give the Scottish Parliament enough time between the introduction of the bill at Westminster and the debate on the Sewel motion to ensure that any loopholes or mistakes are picked up. Mistakes have already surfaced in the consultation document. I will not go into detail, but three or four points have been noticed. The document was published with at least two paragraphs that related to English divorce law—they mentioned decrees nisi and decrees absolute, which are part of English divorce law but which do not apply in Scotland. That mistake has been pointed out to the Executive. Another paragraph said that a divorce cannot take place within the first year of a marriage, which is not the case under Scots law, although it is true under English law.

The Equal Opportunities Committee will do its best and it is reasonable for the Justice 1 Committee to appoint a reporter, but it is also reasonable for us to have a specific locus on the matter, because the complexity of the legislation will make it difficult to proceed through a Sewel motion. In the several conversations on the issue that I have had with ministers and civil servants, I have been reassured that the process will work. However, we must make it clear to the Executive that, once the bill has been published, we will need time to ensure that if issues similar to the ones that I mentioned pop up, people can comment on them and the bill can be changed.

Reassurances were sought and given from the Executive that if substantive amendments are made to the bill as it goes through Westminster and the House of Lords—I suspect that that is where such changes will be made—the bill can be recalled to and debated in the Scottish Parliament to find out whether the amendments are acceptable. As far as I understand the situation, that procedure has a precedent, but it has been carried out only in relation to fairly minor technicalities. The complexity and size of the relevant part of the bill will involve us in a completely different way of working.

I am happy to be a reporter on the issue, if members think that that would be helpful, but the Justice 1 Committee should keep a watching brief on two or three points. I will do my best to keep people informed if I think that there are any points of family law on which we are going down a route that is against Scots law as it stands.

That is very helpful. As Margaret Smith said, we are talking at this stage about a Sewel motion, which means that there will be no lead or secondary committee. However, it is right that the Equal Opportunities Committee should in effect be the lead committee in relation to the Sewel motion process.

Whether the Justice 1 Committee or the Justice 2 Committee is involved, it is important that we be kept informed, although I do not suggest that that commits us to doing anything in particular. At some stage, I am certain that a justice committee will have to be involved if we are to consider the technicalities of Scots law in relation to intestacy, inheritance, degrees of prohibition and a host of other areas that we have not yet discovered that might connect with UK legislation. I am sure that interested parties will make strong representations to us. People will be quite happy for the UK to legislate on civil partnerships as long as they feel that they are being involved, informed and consulted and that there will be a way for them to influence matters. That is the crucial thing.

The timing is crucial, too.

I would be happy for Margaret Smith to take on the role of reporter. That might be quite onerous, so I would be willing to help out, especially as I am a member of both the Justice 1 Committee and the Equal Opportunities Committee. Such reporting could turn out to be a huge piece of work, but it would be interesting to see how matters progress from both points of view. In my view, if the Justice 1 Committee were to proceed with consideration of the issue, it would be sensible if Margaret Smith and I were involved because we are both members of the Justice 1 Committee and the Equal Opportunities Committee. Is that possible?

I take that as an expression of interest. Does anyone dissent from that suggestion?

No.

We agree to that suggestion. I have been advised that the convener of the Justice 2 Committee, Annabel Goldie, will be quite happy for us to pick up that work; however, we might not feel the same way in two months' time. It would be helpful for Margaret Smith to be the reporter and to have Marlyn Glen assist with that. Do members agree to that?

Members indicated agreement.

I would like some clarification. Is it the case that we are happy to keep the issue in abeyance until it is decided that the Justice 1 Committee will be involved, and that we will consider it again when the bill has been published?

I thought that we had agreed that, if there is scope for a justice committee to examine a specific area on civil registration, we will express an interest in doing that.

It would be up to me and Marlyn Glen to flag up such issues to the committee.

We would pick that up if you reported to us that it would be appropriate to timetable it in. Perhaps you should keep in touch with the clerks to let them know when it would be appropriate to have the report on the formal agenda.

We now turn to the Freedom of Information (Scotland) Act 2002. When we pass legislation in the Parliament, it is often the case that the code of practice has greater importance than the legislation itself. I have a strong view on that subject. If we are dealing with legislation to which codes and guidance are attached we must, as a general rule, be able to scrutinise them. Given that the code can affect the meaning of the legislation, there is no point in our scrutinising legislation if we cannot scrutinise the code.

We are being asked to consider the draft code of practice that will accompany the Freedom of Information (Scotland) Act 2002. I think that the Executive has made an oversight in formally notifying the committee of the draft code. Members will see that the draft code is dated July. That is unfortunate, because we would have wanted to consider the matter properly.

I would like to hear from Michael Matheson on the issue. I am sorry for asking him to contribute again, but he is the only member who was involved in the previous Justice 1 Committee's consideration of the Freedom of Information (Scotland) Bill. I am conscious that an increasing amount of work is being loaded on to members. However, as a point of principle we must ensure that we are happy with the code.

The code is fundamental to the effectiveness of the legislation. In effect, the Freedom of Information (Scotland) Act 2002 is enabling legislation. The code plays a key part in determining how effective a new freedom of information regime will be, so we need to consider the issue.

Rather than our simply taking written evidence, it would be worth appointing a reporter to examine the matter. I have concerns about the time scale for the consultation, because I am conscious that we are about to enter a fortnight's recess. In effect, that leaves the committee or a reporter with just over a week to consider the draft code in detail. Given that it was an oversight on the part of the Executive not to flag up the issue to the committee earlier, we probably have good grounds for asking the Executive to consider extending the consultation period to provide a reporter with sufficient time to gather evidence for the committee to consider.

I see that members are nodding in agreement. If members support what Michael Matheson and I have said about the importance of codes of practice, I would like to make that point in our response.

Having been involved in consideration of the Regulation of Care (Scotland) Bill, I agree totally.

If the Executive says that it will stick to its timetable, how might we respond? I suppose that we will simply have to write a very strongly worded letter.

I hope that the Executive will see sense, as it usually does.

Public dissent is part of the committee's role.

Bill Butler said "as it usually does".

Nobody is perfect.

These things happen. However, the Freedom of Information (Scotland) Act 2002 is important legislation and we do not want to set any precedents. We will write a strongly worded letter in the hope that we will get a little more time.

Is Michael Matheson prepared to act as the reporter on the issue?

Yes, but I do not want members to think that I do so with conditions attached. However, it would help if the Executive agreed to extend the time scale. I have a range of things lined up during the fortnight of the recess, so it would be very difficult for me to dedicate to the issue the time that I would need to do it justice.

I thank Michael Matheson for agreeing to act as reporter on the matter. Once we receive a reply to our letter, we will ensure that it is sent directly to him so that he knows how the Executive has responded. If the response is negative, we will bring the matter back to the committee for further consideration.