Justice 1 Committee, 30 Nov 2005

Meeting date: Wednesday, November 30, 2005

Official Report 147KB pdf

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Family Law (Scotland) Bill: Stage 2

Welcome to the 39th meeting of the Justice 1 Committee in 2005.

Our first item of business is the continuation of stage 2 of the Family Law (Scotland) Bill. I welcome Hugh Henry, the Deputy Minister for Justice, and his legal team: Carol Duncan, Moira Wilson, Kirsty Finlay and David McLeish.

Section 8—Matrimonial interdicts

Amendment 84, in the name of the minister, is grouped with amendments 85, 90 to 92, 40, 97 and 98.

These amendments are of a technical nature and seek to clarify the provisions on matrimonial and domestic interdicts. I believe that the amendments will make the law more straightforward, cohesive and user-friendly. More important, they will extend protection to the vulnerable. They will not in any manner dilute the existing powers that are available to the courts.

By introducing the concept of domestic interdicts in section 24, we are removing the need for cohabiting partners to depend on matrimonial interdicts when seeking the protection of the courts from domestic abuse. At the same time, we are extending legal provisions that already exist for opposite-sex cohabiting couples through the Matrimonial Homes (Family Protection) (Scotland) Act 1981 to include same-sex cohabiting couples. By doing that, we are ensuring fair and equitable treatment for all, regardless of their sex or sexual orientation.

Through the amendments, Parliament will be meeting its obligations under the European convention on human rights to ensure that same-sex couples are afforded the same protection as opposite-sex couples and are not discriminated against on the basis of their sexual orientation.

I move amendment 84.

Brian Adam has already intimated that he does not intend to move amendment 40 and no other member appears to wish to move it instead of him.

I welcome the amendments that the minister outlined. It is important that we have equitable treatment for all with no discrimination in legislation.

Amendment 84 agreed to.

Amendment 85 moved—[Hugh Henry]—and agreed to.

Section 8, as amended, agreed to.

Section 9—Powers of arrest

Amendment 86, in the name of the minister, is grouped with amendments 87, 89, 93, 94, 99, 114, 116 and 117.

The committee had expressed concern that, in practice, the law on interdicts was becoming increasingly complex and that the provisions of the bill, particularly those in section 24, would add to that complexity.

Domestic abuse is a scourge on society and the situation calls for readily accessible remedies. The law on interdicts has developed over the past 20 years or so. The 1981 act was a radical piece of legislation in its day and tackled the problems of domestic abuse head on. Since then, subsequent legislation has enhanced the provisions in the 1981 act.

I recognise that the present regimes overlap and that the committee has made some valid points in that regard. Having said that, I should say that each regime separately addresses different aspects of affording protection to victims. We have listened closely to what has been said on this matter, including representations that have been made by the Law Society of Scotland, Scottish Women's Aid and Professor Eric Clive. In particular, we have considered both the Law Society's submission that the bill presents an opportunity to rationalise and simplify the law on the attachment of powers to interdicts and its suggested amendment to the bill.

We have concluded that the Law Society's proposals have much to commend them and merit serious consideration. Accordingly, I have lodged these amendments, many of which are of a technical nature and will have the effect that only one act—namely, the Protection from Abuse (Scotland) Act 2001—will allow courts to attach powers of arrest to all interdicts, regardless of their nature. The 2001 act has operated well since it came into force, in that it deals directly and appropriately with all the matters that are dealt with by other legislative provisions.

The amendments will consolidate, in part, the present legislation. That will help to tackle many of the key concerns that have been raised by stakeholders. They will clarify the law and, most important, extend protection to the vulnerable.

I move amendment 86.

I welcome this set of amendments, which clarifies and simplifies for lawyers and victims the way in which interdicts work and their effect. I know that, in my constituency surgeries, I have, on a significant number of occasions, pointed people to the 2001 act as it seemed to me—as a layman—the one that would most easily apply to some of the issues that are brought to me. I suspect that I am not alone in that. I will, of course, support the amendments.

We are amending the 2001 act to amalgamate the previous list of interdicts. However, the 1981 act will still exist and will contain a power of interdict.

That is correct.

I raise that because when the Scottish Women's Aid witnesses gave evidence to the committee they seemed to be under the impression that a slightly lower test was used in applying for an interdict under the 1981 act. They might have been wrong. I just wanted to seek clarification.

We have attended to that point. We have discussed the issue with Scottish Women's Aid. No rights or opportunities are diluted as a result of these amendments. As Stewart Stevenson said, they provide clarification and are a simplification.

So both acts will continue to apply and if it was more appropriate to use the 1981 act, rather than the 2001 act, that is what would happen.

That is correct.

Amendment 86 agreed to.

Section 24—Domestic interdicts

Amendment 87 moved—[Hugh Henry]—and agreed to.

Amendment 88, in the name of the minister, is grouped with amendments 95, 126, 124, 101, 113, 125 and 118 to 120.

These amendments will make consequential or technical amendments to the provisions in the bill relating to civil partners, to the Civil Partnership Act 2004 and to other legislation to take account of the 2004 act.

Amendments 88 and 119 reflect for civil partners amendments debated earlier in connection with interdicts and powers of arrest. Amendments 95 and 118 correct an error in schedule 3 to the bill, which would have had an unintended effect on step-parent forbidden degrees where one party to a civil partnership had undergone gender recognition.

Amendment 120 makes two minor, technical corrections to the Civil Partnership Act 2004. One corrects an omission in the provisions repealing desertion as a ground for dissolution and the other corrects an error in the description of "family home".

Amendment 113 is a minor, consequential amendment that has the purpose of including same-sex cohabitants in the Civil Evidence (Family Mediation) (Scotland) Act 1995.

Amendment 124 amends the 2004 act to bring the circumstances under which civil partnerships are void into line with the circumstances under which marriages are void by virtue of section 2 of the bill.

Amendment 125 amends section 12 of the Children (Scotland) Act 1995 to make reference to the children of civil partners.

Amendment 101 amends the definition of same-sex cohabitants in section 26 of the bill to make reference to civil partners.

I turn to amendment 126, in the name of Marlyn Glen, which seeks to change the definition of the term "child of the family" in the provision in the Civil Partnership Act 2004 on occupancy rights. Although we do not believe that the amendment to the form of words makes any material change to the definition, it will ensure more consistency with the equivalent definition of "child of the family" that appears in the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Given that the Executive's policy has always been that the law relating to civil partners should mirror that for spouses, we are content to support the amendment.

I pay tribute to Marlyn Glen. We did not always agree that the change was required, but she has pursued the matter persistently and doggedly and has persuaded us that she is correct.

I move amendment 88.

The aim of amendment 126 is the same as that of the rest of the amendments in the group: to remove the differential wording of legislation and protect the children of civil partnerships. As the minister explained, that fits with the Scottish Executive's intentions, which I welcome. I add my thanks for all the detailed work done on the comparisons, which the convener mentioned last week. I am confident that the minister will check between now and stage 3 that no other amendments are needed in this respect. I assure him that my persistence will persist. I get good legal advice too, which is absolutely necessary with such detailed legislation.

I wish to raise an issue that I think might be too complex to deal with today. I will describe a constituency case. This is an actual case, by the way—it is in the public domain. A husband murdered his wife, with whom he had two children, and was sent to jail for life. The children did not have residency in the house and, under the 1981 act, the husband inherited the sole rights. Very fortunately, he signed the house across to the grandparents; they were allowed to have the house and look after the children.

Despite that outcome, a difficult hole remains in the law. In a sense, the husband benefited from a criminal act in a way that could have been to the detriment of the children. Will the minister consider such issues at some future stage? Such circumstances occur extremely rarely, but any cases of that sort are very hard to deal with. In this case, there was a shred of decency left in the person who was in prison, who did the right thing, but he was not legally required to do so.

I am not sure that that is entirely a question for this group of amendments. Nevertheless, I invite the minister to comment if he wishes to.

Thank you, convener. You are so kind. The situation that Stewart Stevenson raises is fairly unusual. It is a complex matter. I suggest that the best way to proceed would be for Stewart Stevenson to raise the issue with me in a letter—without necessarily giving all the details—and we will look at that. If the bill can do anything about such cases—I doubt that it can—we will look into that before stage 3. If provisions elsewhere need to be attended to, we will of course seek an opportunity to consider them in future. Without being able to examine the detail, however, I hesitate to pronounce on the case.

Amendment 88 agreed to.

Amendments 89 to 93 moved—[Hugh Henry]—and agreed to.

Amendment 40 not moved.

Section 24, as amended, agreed to.

After section 24

Amendment 94 moved—[Hugh Henry]—and agreed to.

Section 25 agreed to.

Schedule 1

Amendments of the Civil Partnership Act 2004

Amendment 95 moved—[Hugh Henry]—and agreed to.

Amendment 96 has been withdrawn from the marshalled list.

Amendment 126 moved—[Marlyn Glen]—and agreed to.

Amendments 13, 97 to 99, 124 and 8 moved—[Hugh Henry]—and agreed to.

Schedule 1, as amended, agreed to.

Section 26—Application of 1981 Act to cohabiting couples of same sex

Amendment 101 moved—[Hugh Henry]—and agreed to.

Section 26, as amended, agreed to.

After section 26

Amendment 102, in the name of the minister, is grouped with amendments 112, 115, 121 and 123.

This series of amendments amends the Damages (Scotland) Act 1976.

Amendment 102 addresses current anomalies, such as brothers and sisters being unable to sue for non-patrimonial loss while relatives such as parents-in-law can, and a stepchild or step-parent being entitled to sue for non-patrimonial loss even when the marriage has taken place after the child has become an adult.

From both the Scottish Law Commission report and the response to letters that we issued to relevant organisations to inform them of the proposals, in which we invited comment if they had concerns, it is clear that the list of persons who currently make up the deceased's immediate family needs to be updated to reflect the family structures found in modern-day Scotland.

We believe that the proposals for change both develop and extend existing policy by ensuring that relatives closest to the deceased have title to sue for non-patrimonial loss. That is why we decided to lodge amendment 102.

Amendment 112 corrects an error made in taking forward, through the Civil Partnership Act 2004, an amendment that the same-sex cohabitant of the deceased should be entitled to sue for both patrimonial and non-patrimonial loss.

Amendment 115 is consequential to amendment 102.

Amendment 121 repeals paragraph 4 of schedule 28 to the Civil Partnership Act 2004, which was incorrect.

Amendment 123 amends the long title of the bill to include reference to the amendments made to the Damages (Scotland) Act 1976.

I move amendment 102.

I seek clarification. There was not much discussion at stage 1 of amendments to the 1976 act. Can you tell the committee more about where the consensus has come from on amending the 1976 act?

There were comments from the Scottish Law Commission, which consulted widely on the proposals for reform. Its report took into account the views of the respondents to that consultation. The vast majority of respondents agreed with the policy aim to retain the concept of the deceased's immediate family.

We recently issued letters to 33 organisations, including ones that represent victims. We informed them of our proposal to accept the recommendations in the Scottish Law Commission report and invited them to comment where they had concerns. Only one respondent voiced any concerns. We thought that the 1976 act should be amended and we attempted to consult as widely as we could.

Does the amendment of the 1976 act mean that it will include an additional list of persons: stepchildren, step-parents, stepbrothers or stepsisters?

The amendment of the 1976 act changes the list; it tries to reflect the relationships that I outlined.

This is the first time that I have heard about the matter and I am trying to understand it. Who comes out of the list?

Nobody comes out of the list. We are amending the list to reflect the fact that some close relationships have previously been overlooked or disadvantaged. We think that it is relevant to amend the list. It seems to be an anomaly that siblings can currently sue for patrimonial loss but, under the 1976 act, are unable to sue for non-patrimonial loss although, as I explained earlier, relatives by affinity—for example, a father-in-law or a son-in-law—can do so. That does not seem right. We think that amending the 1976 act is the right thing to do.

The provision seems sensible. My only comment is that bringing in the amendments at this stage has not given the committee a chance to look underneath to see whether there are any problems and fully satisfy itself that there is none. That is not a desirable precedent to set.

I stand to be corrected, but I think that I raised the matter in a letter to the committee. I will double-check.

I can clarify that you did so; you said that you wanted to amend the 1976 act. However, prior to the amendments being lodged, we were not clear about why you wanted to amend the 1976 act, which is why we wanted to draw that out today. There is no opposition to what you seek to do, but today has been our only opportunity to understand what the substantial amendment to the 1976 act would do.

I accept the point.

Amendment 102 agreed to.

Section 27—Jurisdiction: actions for declarator of recognition of certain foreign decrees

Amendment 103, in the name of the minister, is grouped with amendments 104 to 108.

These amendments seek to make technical changes to section 27. At present, there are no clear jurisdictional rules to determine when Scottish courts are competent to deal with proceedings that relate to the recognition here of a foreign matrimonial judgment from outside the European Union. Within the EU, the matter is governed by the regulation that is commonly known as Brussels 2A, which came into effect in March this year.

Section 27 aims to rectify the situation by creating jurisdictional rules for that type of case. However, as drafted, it would apply only where the proceedings were for a declarator that the foreign judgment should be recognised here. There might also be circumstances in which it would be in the interests of a party to seek a declarator that the foreign judgment should not be recognised.

Amendments 103 to 108 expand the wording of section 27 to cover the situation.

I move amendment 103.

Amendment 103 agreed to.

Amendments 104 to 108 moved—[Hugh Henry]—and agreed to.

Section 27, as amended, agreed to.

Section 28—Validity of marriages

Amendment 109, in the name of the minister, is grouped with amendment 110.

Amendments 109 and 110 introduce a public policy provision to section 28. Section 28 provides that a person's capacity to marry is governed by the law of his or her domicile immediately before the marriage. It is right that the law of an individual's long-term home should regulate the matter. It is legitimate that different countries take slightly different views about aspects of capacity, such as prohibited degrees of relationship. It would be wrong for the validity of a marriage that was entered into by a foreign couple abroad to be subjected to the internal rules of Scots law rather than to the legal systems that were relevant at the time of the marriage.

However, there might be situations in which a Scottish court might feel that the content of a foreign law on capacity was unacceptable—an example of that might be a law that regarded young children as having the capacity to marry. Although the provision is likely to be invoked rarely, the courts here need to be able to disapply foreign law on the ground of public policy. The general rules about the validity of international marriages are included in section 28, so it is appropriate also to include there an express provision in relation to this matter.

The Parliament has spoken out strongly in other legislation about the need to protect children from the dangers of sexual exploitation and abuse. Although we recognise that there might be cultural differences in some countries, there is nevertheless potential for some relationships to be unacceptable here. It is right that we take steps to ensure that protection can be afforded.

I move amendment 109.

I support what the minister is trying to do. I just have a technical point about the drafting. Amendment 110 uses the phrase

"where, immediately before the marriage, the person was domiciled",

whereas section 28(4) uses the phrase

"in which a person is domiciled".

What is the distinction between someone being domiciled somewhere else and getting married in Scotland, and proposed subsection 3A, which refers to their domicile immediately before the marriage? What is the technical effect of that difference? I am not 100 per cent sure that I know what "immediately before the marriage" means. Does it mean up to the day before the marriage or a month before? Is it simply an accepted form of words that will be fully understood by the courts?

We are not aware of any significant difference. It means just prior to the marriage. We will reflect on whether any different inferences would be made, although we do not think that they would be.

I am concerned that there are different constructs in what will become adjacent subsections. I am quite content to support amendment 110 at this stage, as long as the minister re-examines it.

We will look at that. If, for whatever reason, we think that there is a need for consistency, we will lodge an amendment. If we think that there is no problem, we will leave it as it stands.

I presumed that, with amendment 110, you were trying to establish domicile as where the marriage took place, whereas the section to which Stewart Stevenson referred is the general rule on domicile. Are you trying to establish where the marriage took place?

We are looking at where someone was resident and where they were married. A person could seek to claim domicile or residence in a country that affords them the opportunity to marry someone whom we would regard as a young child but whom that country does not. We are seeking to ensure that we can address that problem.

How far will public policy extend? You gave one example, but it would not be the only one. Recently, a United Nations report was published on a country that encouraged rapists to marry the women whom they had raped. Would that be a public policy ground on which a marriage would not be recognised?

It could be.

So the provision is broad.

Yes. The situation that you describe could be included. The provision could include parties to the marriage being within prohibited degrees of relationship that are unacceptable here. It could include either party already being married, which might be acceptable elsewhere but not here. It could deal with either party being under 16 years of age, which would be unacceptable to us. In addition, a marriage could be considered void if either party could not give effective consent. A range of issues could be covered.

Will the courts be given guidance? How will they determine what is public policy?

Normally, such things are within judicial knowledge. Although we use the term "public policy", we are talking about matters that start from a legal basis and which are not legally acceptable here but are acceptable elsewhere. If something that is legally acceptable elsewhere is not legally acceptable here, the public policy conclusion is that it would not be applied here. That conclusion is founded not just on personal or political opinion—it has to be founded on the legal basis of what we find acceptable in this country.

Amendment 109 agreed to.

Amendment 110 moved—[Hugh Henry]—and agreed to.

Section 28, as amended, agreed to.

Sections 29 and 30 agreed to.

After section 30

Amendment 22 moved—[Hugh Henry]—and agreed to.

Sections 31 and 32 agreed to.

After section 32

Amendment 111, in the name of the minister, is grouped with amendment 122.

Section 34 details the short title and the commencement provisions. The Subordinate Legislation Committee noted that section 34 allows the commencement order to be combined with transitional and saving provisions. While that approach is not unprecedented, the Subordinate Legislation Committee considers it to be bad practice, a view that the Justice 1 Committee supported in its stage 1 report. Accordingly, the Executive has lodged amendments to separate the power to commence the act from the power to make transitional or saving provisions. As is usual practice, the commencement order will not be subject to parliamentary procedure and the transitional and saving provisions will be subject to the negative resolution procedure.

I move amendment 111.

I understand what a commencement order is, but what is a transitional and saving provision?

Anything that needs to be kept alive until the act comes into effect would be regarded as a transitional provision.

Would anything else be included? When I first read amendment 111, I thought that the powers were wide, but that is not what you suggest.

The amendments in the group respond to the concerns of the Subordinate Legislation Committee and the Justice 1 Committee.

To be clear, would any transitional orders be made prior to the act coming into effect and not subsequent to that?

That is my understanding.

I am satisfied with the assurance that nothing too fundamental will be done. If anything fundamental were required, the affirmative procedure would be better, but I am happy to accept the assurance that that is not required.

I give that assurance.

Amendment 111 agreed to.

Section 33 agreed to.

Schedule 2

Minor and consequential amendments

Amendments 112, 23 to 25, 113, 125 and 114 moved—[Hugh Henry]—and agreed to.

Schedule 2, as amended, agreed to.

Schedule 3

Repeals

Amendments 26, 27, 41, 115, 29, 116, 30, 31 and 117 to 121 moved—[Hugh Henry]—and agreed to.

Schedule 3, as amended, agreed to.

Section 34—Short title and commencement

Amendment 122 moved—[Hugh Henry]—and agreed to.

Section 34, as amended, agreed to.

Long title

Amendments 71 and 123 moved—[Hugh Henry]—and agreed to.

Long title, as amended, agreed to.

Members will be pleased to note that that ends our stage 2 consideration of the Family Law (Scotland) Bill, which did not take too long. I thank the minister and his officials for clarifying a substantial number of issues that the committee had raised. We appreciate all the work that went into doing that.

We still have some questions outstanding, so we will meet the minister next Tuesday to run through them.

I look forward to that.

We know that you mean it.