Subordinate Legislation Committee,

Meeting date: Tuesday, May 14, 2002

Official Report 86KB pdf

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Executive Responses

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Marriage (Approval of Places) (Scotland) Regulations 2002 (draft)

We had many questions on the draft regulations for the Executive and it has given us a full response. Without going into detail, we can say that the Executive has supplied the further explanation that we asked for on points 1, 5, 7 and 10 from last week's legal briefing on the draft regulations.

On our points 2, 3, 8 and 9, the Executive has acknowledged that there was defective drafting.

I am sorry, that is my mistake. The Executive acknowledged defective drafting only in respect of point 9, but not in respect of points 2, 3 and 8. Therefore, we still have reservations about drafting and want to draw that to the attention of the lead committee and the Parliament. We might also want to air doubts about the Executive's response to point 4.

I am sorry, convener. Can I have a copy of the regulations? I have all the other documentation, but not the regulations. That is my fault. [Interruption.] Sorry, convener. We can go on.

In question 4 to the Executive, we drew its attention to our worries about the vires of regulations 7(4), 15(2)(c) and 17(2), which require a local authority to refuse to grant an approval and entitle it to revoke or suspend an approval if it is satisfied that the applicant is not

"a fit and proper person."

The bill is about the approval of places. We wonder whether it is ultra vires for the regulations to refer to approving people. Perhaps members would like to expand on that point.

I do not think that it is our function to pass judgment on individuals who choose to get married or on where they choose to get married. The provision of the approval of persons seems superfluous.

Are there any other comments?

I emphasise that the bill's policy was to license places rather than people. This provision seems to be to the contrary, which is rather strange.

The bill was passed by Parliament on the basis that its policy was the approval of places. This provision seems to be unusual and possibly ultra vires.

Who is the applicant to which the regulations refer? Who applies? Is it people who want to get married? Or could it be the owner of premises?

It might be the owner of premises. I think that that might be right.

It is perhaps a case of doubt being cast on the integrity of the owner of premises or on their record.

In case they are a bad person.

Who applies? If I want to get married, do I apply for a place to get married? Do I apply if I own a place where I think that people would like get married—such as the top of Ben Nevis?

It is both. If you owned a country house hotel and you regularly had weddings, you would be the applicant. However, if you wanted to get married on Arthur's Seat, you would apply for a one-off licence.

There must be a case for being able to knock back an application in the former situation. If some rascal decides to buy somewhere that he can market as a marrying place, why would the local authority not be entitled to knock him back if he is somebody who should not be let into that market?

Regulation 2 talks about applicants. Regulation 2(1) says:

"An application for a period approval may, following the procedures set out in regulation 3, be made to the authority by any person."

Regulation 2(2) says:

"An application for a temporary approval may, following the procedures set out in regulation 4, be made to the authority by either of the parties to an intended civil marriage in respect of any place which at the time of the application does not have a period approval, other than one that will expire before the date of the intended civil marriage."

That means that somebody can say, "That looks like a nice place for folk to have weddings in. I'll buy it, apply for a period licence, and put an advert in The Herald saying: ‘How would you like to get married here?'" If they are not a good person to get into that market—

Who is to decide whether they are a good person?

Who decides anything? People apply for licences all the time. They apply for pub licences, shotgun licenses and public entertainment licences. There is always a provision that says that the licensing authority does not have to license people if it does not consider them to be fit and proper.

The point is that there is no provision in the parent act for the approval of persons, only for the approval of places.

That is correct. The enabling act talks about place. We will draw to the attention of the lead committee and the Parliament our doubts about the vires and leave it to them to deal with. That is the procedure that we should follow.

Presumably, if somebody applied and was knocked back on the basis of the regulations, they could make an application to the courts that the power was ultra vires. Good luck to them.

There are provisions for appeals in the Marriage (Scotland) Act 2002.

We will consider point 6 briefly. It concerns poor drafting in relation to regulation 13(4). The legal advice on that is that we should draw it to the attention of the lead committee.

Point 11 concerns paragraph 6 of the schedule. That is also a matter that we can draw to the attention of the lead committee and the Parliament. The provision is not terribly clear. It deals with food and drink in the area of and at the time of the wedding. There is a restriction on the availability of food and drink at and around the place and time of the wedding. Does anybody have anything further to say on that?

Apart from the fact that it is terribly Scottish?

The point is that, if somebody gets approval for a wedding in a public park, for example, and people are out picnicking, how on earth can they get married if they have to wait for an hour until after people have finished their picnics?

I was in San Diego at new year. People get married all the time in the park and on the beachfront. We walked about and saw weddings. They were quite big weddings—40 or 50 people. People just come out, pop up a canopy, set out the chairs and get a wee band. The minister was there. People were getting married on a big esplanade or in a public park in La Jolla, which is just up from San Diego. I went up to people who were watching and asked how often it happens. They said that it happens three or four times every weekend. We stood and watched them.

Do people eat chips round about them?

Absolutely. People go about their normal lives. The weddings were proper ones, with the full gear and the whole set-up. It was wonderful because it was really friendly and looked nice. It can be done.

Will it transfer to Girvan?

In legal terms, we may feel that paragraph 6 of the schedule is an unexpected or unusual use of the enabling power as applied to a place in the open air. The Executive's intention is clearly to try to maintain some sort of solemnity and dignity, but perhaps it is a triumph of hope over experience.

We will draw that to the attention of the lead committee.