Justice 1 Committee, 30 Jun 2004

Meeting date: Wednesday, June 30, 2004

Official Report 216KB pdf

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Civil Partnership Bill

I refer members to the paper that has been prepared by the clerk and which outlines a recent amendment to the Civil Partnership Bill in the House of Lords. The committee has received correspondence from the Deputy Minister for Justice, who states that the amendment fundamentally changes the bill. He assures the committee that if the amendment is not overturned in the House of Commons the Executive will return to the matter in the Scottish Parliament. The Executive is not proposing to reopen the debate on the provisions of the bill, but is commenting on an issue that I am sure the committee will be concerned about. We said specifically to the minister that any significant amendment should come back to the committee. We have a response from the minister, so I thought that the committee would want to address the matter.

I was keen to get the matter on the record before the recess because the amendment that has been agreed to in the House of Lords fundamentally changes the bill and fundamentally goes against what we agreed in the Sewel motion on 3 June, which specifically endorsed the principle of giving same-sex couples the opportunity to form civil partnerships. The amendment effectively endorses the principle of allowing family members over the age of 30 who have lived together for more than 12 years the opportunity to enter into a civil partnership. It goes well beyond what we agreed in the Sewel motion, which is why it is important that it be dealt with.

As the convener mentioned, the minister assured us that the Sewel motion would come back to Parliament if there were major changes to the bill. That is why I thought it important that we get a commitment on record from the minister before the summer recess to the effect that that is exactly what the Executive will do.

On timing, I understand that the bill will—after receiving its third reading in the House of Lords tomorrow—have its second reading in the House of Commons around 21 July. It is likely that the Government will try to overturn the amendment in the House of Commons, so the bill will probably reach committee stage in the House of Commons about when we return from our summer recess. At that point, we should have greater clarity about where we are, so we can consider then whether the Sewel motion needs to come back to us.

It is useful to get the matter on record now because the amendment fundamentally changes the bill and takes it into areas on which nobody has consulted. We do not know what impact the amendment will have. To be frank, it is a wrecking amendment; some of those who voted for the amendment may have done so for good motives, but others did not. However, the important thing is that we recognise that the bill now goes far beyond what we agreed to. It is good that at least we have on record a commitment from the Executive to come back to us after the recess, as it promised, if the amendment has not been overturned by that time.

It is all very well to welcome the Executive's commitment to bring the Sewel motion back to the Scottish Parliament if the fundamental change is not reversed, but that simply begs a question about what such a procedure in the Scottish Parliament can achieve. If the bill remains in its current form, we have no power to change it. I am not clear how the minister can bring back to the Scottish Parliament the Sewel motion that we have already agreed to. Even if we were to vote against the bill in another Sewel motion because the principles of the bill had changed, Westminster could still legislate on the matter. The Sewel motion is nothing more than a convention. That is an important legal point. The Scotland Act 1998 makes no provision for the Scottish Parliament to stop legislation by not agreeing to a Sewel motion. An important part of the make-up of our discussion must be to acknowledge that we cannot stop the bill, although we can bring back the Sewel motion. It would be wrong for us to give the impression that we can do that.

It is fair to say that this is new territory for everybody, including the committee and the minister. We just need to work our way through it as the circumstances arise. Our first response is to put the matter on record, as we are doing today. We have noted what has happened and we have received a response from the Deputy Minister for Justice. As a committee, we can make known any other concerns that we have.

As Michael Matheson has pointed out, the Sewel motion is only a convention whereby we agree to Westminster legislating on devolved issues. However, Westminster has not taken away those powers from us. I presume that it is open to the Executive to revise the legislation in the future if it is concerned about it.

I do not know Westminster's procedures, but I think that bills that start off in the House of Lords ultimately return to the House of Lords. I think that even if the Government successfully amended the bill in the House of Commons, it could be amended again in the House of Lords. Margaret Smith suggested that the House of Commons might reverse the amendment by the end of our summer recess, but if the bill is amended again when it returns to the House of Lords we will, in effect, come back to the position in which we find ourselves today. It will be useful to have clarification about procedures in Westminster.

Michael Matheson was absolutely correct to point out that the Sewel motion is no more than an agreement between this Parliament and Westminster. We have no powers whatsoever to deal with the bill. We have given up our competence and we have asked Westminster to legislate. As far as I am aware, that means that Westminster can go ahead and do that and that there is nothing that we can do to stop it.

A big debate was held in this committee and in the chamber about passing the matter to Westminster. It was inevitable that the situation that has arisen would happen at some point; the design of Sewel motions meant that they would cause that problem eventually. I am sure that that was not the intention when they were designed, but it was inevitable that we would eventually send legislation down to Westminster that was amended to our disagreement.

As the convener said, we could introduce further amending legislation. However, the Deputy Minister for Justice told us that he wanted the matter to go to Westminster because he wanted no inordinate delays in bringing the legislation into force. If having to legislate to resolve a problem that has been created at Westminster would not cause an inordinate delay in bringing the provisions into force, I do not know what would.

I am not surprised by this development, but we should for clarity seek information about the Westminster process. We should also ask the deputy minister what he intends to do if he brings the motion back to the Scottish Parliament. As Michael Matheson said, rather than just say that he will bring it back, the deputy minister should say what he will do when he brings it back. We need to know the Executive's intentions.

I do not want to prolong the debate, because we do not have time for that. I want members to concentrate on the action that they want or do not want to be taken to address the matter.

As the convener said, we are in new territory. It is right to note the situation. I see no reason why we cannot have the clarification that Stewart Maxwell seeks about Westminster procedures. However, the situation remains fluid—nothing is yet decided. The deputy minister said simply that he would, if necessary, bring back the motion. I hope that the Westminster procedures deal as expeditiously as possible with the wrecking amendment—Margaret Smith was right to call it that. If that happens, that will be all well and good.

As Asquith said, we should wait and see before we talk about matters constitutional. They are of some importance, but the main focus should be on ensuring that the bill, which is necessary, proceeds. To do anything else would be merely to indulge in more surmise.

Like Stewart Maxwell, I understand that once the bill has passed the committee stage in the House of Commons, it will return to the House of Lords, which would be able to amend the bill again. The political reality is that a two-line whip rather than a three-line whip was imposed. It is unlikely that that mistake would be made again. To ensure that we are ready if the situation that I described arises again, I would like more clarity. Michael Matheson said that we gave up competence on the issue.

I did not say that.

You said something similar.

I said that we had agreed to the principles; Stewart Maxwell talked about competence.

We have not agreed to the principles of the bill in its present form. The Sewel motion did not simply sign us up to the bill's principles; it signed us up specifically to giving same-sex couples the opportunity to form civil partnerships. Whatever happens from now will go beyond what the Scottish Parliament has agreed to. I would value legal advice from the Parliament's lawyers, because the Sewel motion was specifically drawn and we have gone beyond it.

Like Bill Butler, I think that we are in new territory. We should have a watching brief on the matter and wait to see what happens. It is quite likely that the matter will, at the end of the day, be dealt with. That might mean that the Government would have to return to the wider issue about carers, which I would welcome. At the moment, however, we are outwith the terms of the Sewel motion, so it would be useful to establish the legal position in relation to our consideration of the issue.

I will clarify the procedure. Both Westminster houses must agree to the bill, but obviously a ping-pong match is currently going on and we do not know how it will end. The committee should seek clarification. We might know the answers to some of our questions but we should put it to the minister that the bill now appears to go beyond the terms of the Sewel motion and we should ask whether she has concerns about that. All we can do at this stage is note our concerns and ask the Executive to anticipate whether the matter will be resolved.

If the bill remains as amended, what will the Executive do? I understand Bill Butler's point, but the Executive must have a game plan. The deputy minister said that he would bring the matter back, but it would be helpful to know what the procedure will be.

I was going to make the same point. As Michael Matheson asked, the deputy minister said that he would bring the matter back, but what will he do then? It is reasonable to ask the Executive what its intention is. Surely the Executive has a contingency plan.

It would be reasonable to ask the Executive what the options are. I do not think that it would necessarily be reasonable to ask the Executive what it plans to do months ahead—

I am clear about what the committee would ask, which is why I used the word "anticipate". The minister must anticipate that the matter might not be resolved and consider what might happen in that event. We need to clarify the procedure that would kick in at that point to bring the contents of the bill back to the Scottish Parliament. I think that we know the answer to that, but we need to ask the question for clarity so that we have in writing the Executive's understanding of the situation.

I propose that we have a short break before we go into private session.

Meeting suspended until 12:02 and thereafter continued in private until 13:37.