Subordinate Legislation
Evidence in Civil Partnership and Divorce Actions (Scotland) Order 2012 [draft]
Agenda item 2 is subordinate legislation. There is one affirmative instrument for the committee to consider: the draft Evidence in Civil Partnership and Divorce Actions (Scotland) Order 2012. The Subordinate Legislation Committee did not draw the Parliament’s attention to any concerns in its report on the draft order.
I welcome to the meeting the Cabinet Secretary for Health, Wellbeing and Cities Strategy—that is some title—and the two Scottish Government officials who are accompanying her: Simon Stockwell, who is head of the family and property law branch; and Felicity Cullen, who is a solicitor in the legal directorate.
This is an evidence session. I invite the cabinet secretary to make a short opening statement before I invite questions from members.
Thank you.
The matter is quite technical. With your permission, convener, I will explain exactly what the issue behind the draft order is. The main point of the draft order is to correct an omission from the implementation of the Civil Partnership Act 2004.
By way of background, when a couple wish to divorce or dissolve their civil partnership, they must apply to the court for a decree. In certain cases—for example, where there are no children or there is no dispute over finances—they can seek a court decree by means of a simplified procedure. Just over half of all divorces in Scotland are granted using that procedure.
Under the Civil Evidence (Scotland) Act 1988, the court has to see evidence from a third party before it can grant a decree of divorce or dissolution. However, the 1988 act contains the power to disapply the requirement for the court to see third-party evidence.
In 1989, the Lord Advocate made an order that removed that requirement in relation to divorces under the simplified procedure. When the Civil Partnership Act 2004 was being implemented in 2005, an order should have been made to remove the need for third-party evidence for the dissolution of civil partnerships under the simplified procedure, but, unfortunately, that was not done. The draft order that is before the committee makes that provision.
Around 150 couples have used the simplified procedure to obtain decrees that dissolve their civil partnership without the court seeing third-party evidence. The Scottish Government’s view is that the court decrees in those cases are legally effective, but it would be possible for someone to ask a court to reduce a decree of dissolution because the court that granted it did not see evidence from a third party. I believe that the risk of challenge to a decree of dissolution on that basis and the possibility of successful challenge are low, but we recognise that the consequences of a successful challenge would be serious.
We cannot do anything in secondary legislation about existing dissolutions, because we do not have the power to do that in secondary legislation. However, as the Executive note makes clear, we are committed to introduce primary legislation to prevent a challenge to any decree on the ground that the court did not see any third-party evidence. We will do that as soon as a suitable opportunity arises.
Finally, the draft order makes a minor technical change to the 1989 order so that it refers to the periods of time that spouses must live apart in order for the court to grant a divorce on the basis of their non-cohabitation. The amendment to the 1989 order reflects changes that were made to divorce legislation by the Family Law (Scotland) Act 2006.
I am happy to answer any questions.
Who first noticed that 150 dissolutions had been wrongly granted?
The omission to which I referred in my opening remarks was spotted by officials within the Scottish Government when they were looking at the legislation generally.
It is not for me to ask supplementary questions, but I suppose that a reasonable supplementary question would be why the issue was missed in 2005. As members know, the Civil Partnership Act 2004 is a large and complex piece of legislation. It spans both reserved and devolved matters and has an impact on many different areas of law. The omission is unfortunate, but it happened in the context of the implementation of that large and complex piece of legislation.
So it was not identified by any of the sheriff clerks who normally process affidavit divorces or dissolution applications.
No. My understanding is that the omission and its implications were not brought to our attention by any outside organisation.
So it was not brought to your attention by anybody in the courts. Right. Thank you very much.
Do I take it that the primary legislation will be retrospective?
The draft order under consideration will deal with the issue for the future. The primary legislation would protect the decrees that have already been granted from challenges.
When will that legislation be in train?
We have not yet identified the appropriate vehicle in that respect. As I said in my opening remarks, we consider the risks to be very low, although any successful challenge will, of course, have serious implications. Nevertheless, we will identify an appropriate legislative vehicle at the earliest opportunity and I am happy to keep the committee apprised of what that vehicle might be and when it might be introduced.
That is very helpful.
Just for the record, does this mean that, procedurally, there will be equality between dissolutions of civil partnerships and divorces?
I am sorry—did you say “inequality”?
No, I said “equality”.
Although up until now courts have been dealing with these cases on the basis of equality, the law itself did not permit such equality. Under the simplified procedure, the position with dissolutions of civil partnerships and divorces will be the same in the sense that no third-party evidence will be required.
I note that it was all lawyers who wanted to ask questions on the draft order.
The next item on the agenda is the formal debate on the draft order. I invite the cabinet secretary to speak to and move the motion.
Motion moved,
That the Justice Committee recommends that the Evidence in Civil Partnership and Divorce Actions (Scotland) Order 2012 [draft] be approved.—[Nicola Sturgeon.]
Motion agreed to.
We will consider a report on the draft order at next week’s meeting. I thank the cabinet secretary and her officials and suspend the meeting briefly to allow a changeover of witnesses.
09:51
Meeting suspended.
09:53
On resuming—
Police Pensions (Contributions) Amendment (Scotland) Regulations 2012 (SSI 2012/71)
The next item on the agenda is consideration of a negative instrument. The Subordinate Legislation Committee has drawn the Parliament’s attention to the regulations on the ground of drafting errors, and the Scottish Government has undertaken to correct those errors when it makes the next set of amending regulations. Do members have any comments?
I have two comments. First of all, this has not been a very good day for parliamentary draftsmen, given that the first two substantive items on the agenda have concerned drafting errors in regulations—or, in the case of item 2, non-regulations.
More to the point, I note that the regulations are designed to increase police officers’ pension contributions in the forthcoming financial year. I suggest that, in view of the hoo-hah over contributions to public sector pension schemes, we defer consideration of the regulations for a week and ask for specific information about the increases that we are being asked to approve and how they relate to increases that are proposed for other parts of the public sector. I am sure that I am not the only member who has received correspondence from a number of teachers who are concerned about proposed increases in their pension contributions, and the principle of equity suggests that, instead of considering these matters in isolation, we should consider specific proposals against some overview of the Scottish Government’s intentions in relation to these schemes. I am sure that those members of the Parliament who were not on a picket line will remember the great song-and-dance about public sector pension contributions that the Scottish Government made in the debate that we had towards the end of last year. Instead of simply highlighting a few unfortunate drafting errors, the papers should make explicit what police officers are going to be asked to pay in future and I request a one-week deferral in order to get that additional information.
I confirm that it is possible to defer consideration of the regulations for a week and to write to the Cabinet Secretary for Justice for clarification on the points that you have raised. Instead of taking any more questions, I wonder whether the committee is happy simply to agree to that proposal and consider the matter next week.
I should declare an interest as a police pensioner.
I find it unfortunate that, as David McLetchie rightly said, the rather Victorian term “police officer” is used in the regulations and that the opportunity to correct that has been missed.
As for Mr McLetchie’s proposal, I have no issue with it, but I think that he is being a bit mischievous. I am not sure that the wider issues fall within this committee’s remit.
Heaven forfend! There is no mischief in Mr McLetchie.
I am very happy to discuss public sector pensions and was very happy to be on the picket line.
We all have a little mischief in us, John.
You were not on the picket line—you were in the chamber.
Yes, I was.
Now, gentlemen.
Given that the Scottish Government is working on arrangements for different contributions to firefighters’ pensions and given that we are considering the bill that will introduce single police and fire and rescue services, I wonder whether it would be worth while to ask the Scottish Parliament information centre to brief us on contributions made by both services in order to keep abreast of these issues.
I do not think that we need to ask SPICe for that. Instead, we will just ask about the pension contributions made by all elements of the public sector, including teachers, firefighters and the police, and we will have that information available for next week’s meeting.
Are you about to get up to mischief again, John?
Not at all, convener.
Oh—I was beginning to enjoy myself.
I was just wondering whether we would also ask about the financial implications of the Chief Secretary to the Treasury’s comments on the removal of £5 million a month from funding.
We will seek a full response from the Cabinet Secretary for Justice about the pros and cons. That will not be a problem.