Subordinate Legislation
Marriage (Approval of Places) (Scotland) Regulations 2002 (draft)
Comrades, we will proceed. We are now joined by Euan Robson, who is Deputy Minister for Parliamentary Business; Paul Parr, who is head of registration at the General Register Office for Scotland; and Neil Taylor, who is the principal legal officer at the Scottish Executive solicitors.
The draft regulations were sent to members on 1 May and no comments have been received. However, the Subordinate Legislation Committee's report, which is included in the papers that members have received, draws our attention to the regulations on a number of grounds. The Subordinate Legislation Committee wrote a letter to the Executive and its answers are included in the papers. The committee is asked to note question 4, which relates to the regulations that require a local authority to refuse to grant a period approval and entitle a local authority to revoke or suspend such an approval if it is satisfied that the applicant is not
"a fit and proper person".
The Subordinate Legislation Committee noted that there appeared to be nothing in the parent act—the Marriage (Scotland) Act 2002—to justify those provisions. The power in the act enables ministers to make regulations
"for or in connection with the approval by local authorities of places in their areas".
The act says nothing about approval of persons. Members may want to ask for clarification. The Subordinate Legislation Committee considers that there is doubt as to whether the regulations are intra vires.
I do not need to outline the procedure; it is the usual procedure. I will allow the minister a short time to present the instrument and members can then ask questions of clarification. I will ask the minister to move the motion formally, or speak again if he wants to, and I will open it up for debate. I will then put the question on the motion.
I ask the minister to give us a briefing.
I am pleased to be here. I reiterate my thanks to members of the committee for their help, advice and support when the Marriage (Scotland) Bill went through, particularly for some of the remarks that they made at stage 3.
The regulations that are before the committee are very similar to those that were circulated in draft before stage 3. One or two minor textual amendments have been made since then.
It is important to note that the regulations are the product of a working group. I put on record my appreciation of the work of the working group, which laboured long and hard on the regulations. The working group comprised the GROS, representatives of the Convention of Scottish Local Authorities and representatives of registrars. Those are the practitioners who will have to put the regulations into effect. I appreciate the work that they have done.
I hope that the regulations have been written in as open and clear a manner as possible. It just remains for me to say that I am happy to try to answer questions. I might need to take advice on some of the more technical points, but I shall do my best to answer members' questions about the detail.
I shall start. I would like clarification because there were some questions in the letter that we saw. The second question was about the definition of place. The Subordinate Legislation Committee suggested that it considered that that definition was defectively drafted. Did you agree with that? Was it changed?
As far as the Executive is concerned, the policy expressed in the bill and during the stages of the bill will be introduced by the regulations. The Subordinate Legislation Committee seems to have interpreted the regulations differently, but the Executive is content that what is before you is effective and will work.
Answers were submitted to all the points made by the Subordinate Legislation Committee. I understand that those answers have been circulated to the members.
An explanation of the definition of place was given. All the practitioners were content that that would be an appropriate definition that would be workable in practice and that it was within the powers granted by the parent act. There is nothing more I can add about that. We were quite satisfied that the definition would be acceptable.
Okay.
We move to question 4. The Subordinate Legislation Committee states:
"in so far as the regulations authorise local authorities to make a judgement as to … a ‘fit and proper person' to hold an approval, they represent at best an unusual or unexpected use of the power. At worst, there is a doubt as to whether they are intra vires."
I do not remember that phrase being in the bill.
It might be worth repeating what we said in our answer to question 4. Regulations 7(4), 15(2)(c) and 17(2) are intra vires. The enabling power is for ministers to make regulations
"for or in connection with"
the approval by local authorities of places. The phrase "in connection with" covers the point about "fit and proper" persons. The phrase
"a fit and proper person"
is included to ensure that someone who might be considered to be disreputable in some way and is well known to be so would not be able to apply for a licence under the regulations.
We believe that the parent act covers the point that the Subordinate Legislation Committee was making by the use of the phrase "or in connection with" approval by local authorities. The provision was requested by the working group, as it was felt to be helpful to the means of processing applications.
Further to the point that you made, convener, I want to ask for clarification of what constitutes
"a fit and proper person"
under regulation 7(4). The minister has clarified the point, but not to my satisfaction. Can I get any more information from you, minister?
The definition of
"a fit and proper person"
does not refer to the person who is to be married, but to the person making the application. The practitioners sensibly felt that, in line with the parent act, there should be an ability to say that someone who was felt to be unfit should not be granted an application. Having that ability would ensure the solemnity and dignity of the occasion.
Can you give me an idea of someone who would be thought to be unfit?
That is for the discretion of the local authorities. I am advised that the provision is in line with the same requirement in licensing law. It is not as if the concept is an alien concept that has been introduced suddenly. The provision is drawn from an equivalent concept in licensing law under which someone may not be considered to be a fit and proper person to hold a licence for a public house.
On a further point of clarification, I understand the position with regard to the licensing laws and I understand that the draft regulations do not apply to the person who is to be married. Will you clarify that the regulations apply to applications for a licence to hold the ceremony in a marquee or on a piece of land? I understand that the person making such an application is doing so on behalf of the person who is to be married.
The regulations relate to what are called period approvals, which are given to applicants such as the manager of a hotel. Such approvals relate to people who are in some form of business. The regulations cover licences that are granted for a period of three years. They do not apply to a person who would apply for a temporary licence to hold a ceremony in their back garden. The regulations do not relate to temporary approvals—they affect only some of those who will be applicants. I am sorry. I should have made that clear.
I want to ask about question 11 in the Subordinate Legislation Committee's report, which relates to the purpose of paragraph 6 of the schedule. The report sets out that the regulations apply also to places in the open air. The Subordinate Legislation Committee stated that the meaning of the phrase "similarly defined space" is not clear in such circumstances.
The Subordinate Legislation Committee considers that paragraph 6 of the schedule represents an unexpected or unusual use of the power as applied to a place in the open air. That committee drew that point to our attention.
Paragraph 6 of the schedule relates to the prohibition on food and drink. If I remember correctly, the example that was given was Arthur's Seat, which might be used as a place for a civil marriage. The condition has been included in the schedule to provide a parallel provision to the one that applies in a hotel where a room may be made available for the marriage to take place.
We do not envisage that the whole of Arthur's Seat would be involved and that people would have to stop picnicking because a civil marriage was taking place on one part of it. We envisage a small area being roped off for that occasion. That would create a "similarly defined space"—a small area where the ceremony takes place. The condition is included to ensure nothing more and nothing less than the solemnity and dignity of the occasion. It is included to ensure that the whole of an open space is not caught up in the provision.
Okay. Do members have further points of clarification?
The convener made a point earlier about water.
Yes. That was in respect of the definition of place.
I was wondering about that. Are the boundaries that run through lochs clearly defined? Do they follow local authority or other boundaries? In other words, if someone wanted to be married on the water—on a vessel—would that present difficulties?
I do not believe so. I am reminded that every registration district has a distinct geographical boundary that runs through deep waters.
What would happen if someone sailed over that boundary by mistake?
They would be half married and half not.
What would happen if one part of the boat was within the boundary, but people got married in the wrong part of it?
That is the $64,000 question.
It would be grounds for divorce—I am only joking.
The convener is right—one would have to ensure that when the ceremony was being conducted the boat was within the registration district concerned. Similarly, people on land who were close to the boundary of the registration district would have to ensure that they were in the right district. That would be taken into account in planning with the registrar. I do not envisage the issue that the convener raises being a practical difficulty. If practical difficulties arise in the operation of the regulations, they can be amended at a later date.
The arrangements that are made by the approval holder for a civil marriage ceremony must have the prior written approval of the district registrar for the registration district concerned. In other words, if people were on a steamer that was heading towards the boundary, the registrar would have to ensure that the ceremony was completed before the boat crossed that boundary.
What would happen if a boat were suddenly blown over the boundary?
If weather conditions were seriously inclement, the ceremony might not take place at all.
The Marriage (Scotland) Act 1977 does not mention local registration authorities.
That technicality was explained and the Subordinate Legislation Committee accepted our explanation of it. The other phraseology that is used in the regulations comes from the Marriage (Scotland) Act 1977. The regulations are entirely workable in practical terms.
As members have no further questions, I ask the minister to make some concluding remarks and to move the motion.
A minor queue is developing at registration offices. The Marriage (Scotland) Act 2002 has been well received and I hope that it will contribute to the general happiness of a number of couples.
I move,
That the Local Government Committee recommends that the draft Marriage (Approval of Places) (Scotland) Regulations 2002 be approved.
Motion agreed to.
I am very grateful to the committee.
Meeting continued in private until 16:14.