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Marriage and Civil Partnership (Scotland) Act 2014 (Commencement No 2 and Saving Provisions) Order 2014 (SSI 2014/212)
In addition, the order fails to bring into force for a limited purpose sections 12(1), 13(1), 14(1) and 24(1) of the Marriage and Civil Partnership (Scotland) Act 2014 and paragraph 1(1) of schedule 1 and paragraph 1 of schedule 2 to that act. Those provisions introduce the various amendments that the order seeks to bring into force and specify which act is being amended. In commencing the amendments without the introductory provisions, the order may create uncertainty for users of the legislation.
Does the committee therefore agree to draw the order to the attention of the Parliament under the general reporting ground?
Members indicated agreement.
Does the committee also agree to note that the Scottish Government has laid an amending instrument before Parliament in order to remedy both of the points raised?
Members indicated agreement.
We have two instruments to consider under agenda item 2.
On the first, SSI 2014/212, our legal advisers have raised a couple of points. The word “on” has been omitted between “commence” and “or after that date” in article 3(2)(a). The effect is that the provision makes a saving in respect of any marriages or purported marriages entered into before 1 September 2014, and any prosecution in relation to such marriages or purported marriages
“where proceedings commence or after that date”
rather than when they commence on or after that date.
Does the committee therefore agree to draw the order to the attention of the Parliament under reporting ground (h), as there is a lack of clarity in the meaning of article 3(2)(a)?
Members indicated agreement.
Victims and Witnesses (Scotland) Act 2014 (Commencement No 2 and Transitional Provision) Order 2014 (SSI 2014/210)
I agree with Stewart Stevenson. I think that the length of time that has been provided is not reasonable to allow our legal assistants to consider the provisions in question, given that they are complex. I am concerned about that, and I am concerned about the process almost breaking down. Even though no fault can be found with the provisions, it was only after a bit of to-ing and fro-ing that they have been explained, so there is a process issue that needs to be addressed.
I suggest that we write to the Standards, Procedures and Public Appointments Committee about the issue as part of that committee’s investigation into parliamentary processes with a view to improving them.
Do members agree that we should at least draw that element to the SPPA Committee’s attention?
Members indicated agreement.
I am also concerned that these are complex provisions that have, as Stewart Stevenson said, come before us only as a matter of happenstance. The relevant policy committee will not see the order before it comes into force tomorrow. That does not sound like a good procedure, albeit that we believe that the order is okay.
I am with Stewart Stevenson on the view that, if the policy note was inadequate for our legal advisers and they had to go back and ask other questions, it is plainly inadequate for any legal adviser outside the Parliament. Therefore, if there is more explanation, it seems sensible that it should be in the public domain for those who may have to advise their clients. That would seem to be a good way of legislating.
I suggest to members that I write to the Government along those lines. We will also write to the SPPA Committee as suggested.
There will be two letters: one to the Government and one to the SPPA Committee.
No points have been raised by our legal advisers on the order, but the committee may wish to note that article 3 contains complex transitional provisions that will enable persons who had rights prior to 13 August to receive information in relation to offenders under the Criminal Justice (Scotland) Act 2003, as amended, to benefit from the enhanced information and representation provisions commenced by the order.
Given the complexity and length of those provisions, it would have been useful for the scrutiny of the order if the policy note or the explanatory note had contained more detail on the effects and purpose of the existing legislation that is affected by article 3, and the effects of the article. It might also have been useful if, when the timing of the order was being planned, a period of longer than 19 days had been allowed between the date on which the order was laid before Parliament and the date on which the provisions are brought into force, given that the Scottish Government aims, whenever possible, to allow a period of 40 days when an instrument contains complex transitional provisions.
Do members have any comments?
Absolutely. Do members, having heard those comments, otherwise agree to register their contentment with the instrument?
Members indicated agreement.
I have a brief comment to make on the 19-day period. Even had the period been 40 days, our ability to consider the order would still have been the result of happenstance, because at this time of year we are normally in recess. I am glad that we have had the opportunity to consider the order.
My main point is about the fact that the policy note, which is the only public record of how the order is intended to work, does not explain the substantial complexities. I understand that further information has been supplied but that the policy note has not been reissued. A reissued policy note would put into the public domain an enhanced description of the effect of the quite complex changes that are being made. Therefore, I think that it would be appropriate for the committee to consider whether it should encourage the Government to reissue the policy note in order to provide a full and more adequate description of the policy that it is introducing so that lawyers who operate within the framework and, indeed, the courts can have the benefit of that when they apply the legal provision that we are discussing.