Justice 1 Committee, 31 Mar 2004

Meeting date: Wednesday, March 31, 2004

Official Report 180KB pdf

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Civil Partnership Registration

Item 5 is civil partnership registration. I refer members to the paper on the matter. The Civil Partnership Bill had its first reading in the House of Lords yesterday—which means that it was formally introduced—and its second reading has been provisionally scheduled to take place on 22 April. It is expected that a Sewel motion will be lodged in the Scottish Parliament before the summer recess.

The committee must consider its approach to the matter. Recently, as members know, we have considered Sewel motions and provided a report to the Parliament before a short debate. We could ask the Scottish Executive to provide an informal briefing on its input into the bill, we could take oral evidence from the minister, or we could simply take written evidence. We could appoint a reporter to consider the matter and we could set up further evidence sessions with interested parties.

It would be useful to take advice from the Law Society of Scotland, which will obviously be involved in one way or another in giving a view on the bill's impact on Scots law. I am persuaded that there are many technical issues that might have such an impact and that we should certainly highlight at the preliminary stages of the process the areas of law that might be affected by the proposed change to UK legislation.

It is for the committee to decide whether a Sewel motion would be adequate and whether the Westminster Parliament should consider the bill's knock-on effects on Scots law.

The convener's point about hearing from the Law Society is appropriate. I suggest that, given the technical nature of the bill's impact in Scotland, we first request an informal briefing and then take oral evidence from the minister, which is our normal practice. We can then construct a report. That would be a reasonable way in which to proceed.

I agree with most of that. There are a number of technicalities in the bill and the original consultation was very vague on a number of issues to do with Scots family law—indeed, it was vague on some of the issues that we have just been talking about. It would be useful to take up Bill Butler's suggestion and have an informal briefing from the Executive, followed by oral evidence from the minister, but there would also be some value in taking oral evidence from the Law Society earlier in the process rather than later, to ensure that we pick up on everything that we should. I think that in the past we asked for an audit of the potential impact on other legislation, but I do not know whether we received that.

The Equality Network's work on the matter has certainly raised a number of different issues. It would probably be useful to hear from the Equality Network as well as from the Law Society.

We should also bear in mind the fact that Hugh Henry has assured us that if substantive amendments are made to the bill during its passage through Westminster that impinge on Scots law, the matter will be brought back before the Scottish Parliament.

The sooner we get moving on the proposed legislation, the better, so that when the Sewel motion is lodged we do not find ourselves having to deal with a lot of technical aspects of different pieces of legislation without enough time to consider the matter properly. We have to get our act together now so that when we have the Sewel motion in front of us, we do not have to do what we have had to do in the past—receive briefings on the same morning as we are considering the Sewel motion.

You ask about the audit. Members should be aware that we have yet to see the bill; what we have is the consultation. We will have to wait and see how the bill is taking form before we can see how it will impact on Scots law. We may have to point out to the Executive that the committee really needs to see the bill as opposed to the consultation. There is no point in our taking evidence on the consultation if the bill is dramatically different.

There are at least two approaches that could be taken. One is to create a new set of rights; the other is to pull together legislation based on an old set of rights. We will need to see what is in the bill. Will we have to ask for that?

The committee will receive an Executive memorandum within a couple of weeks, we think.

I presume that that memorandum will give us a summary of the bill. We will want to see the bill itself. Part of the bill will relate to Scotland, so we will try to get hold of it for the committee.

Unfortunately, sometimes our intentions do not match our schedule. As members know, we have a busy schedule—what is new? When we come to our next agenda item, we will hear about our timetable for the Emergency Workers (Scotland) Bill. We will have to give some thought to how much time we can devote to all the subjects that we will be required to work on.

Before we move to item 6, I will summarise what we are going to do about civil partnership registration. We are agreed that we will have an informal briefing from the Scottish Executive and that we will take oral evidence from the minister. It has been suggested that we should also take oral evidence from the Law Society and the Equality Network. Are members happy with that?

Why are we taking evidence from those two groups? I just want to be clear on the exact purpose of taking evidence from them.

From what we have heard, the Law Society will certainly help us to address some of the technical issues. Members can correct me if they think differently, but I think that we will be taking evidence not with a view to supporting or not supporting the bill but with a view to learning about the technical aspects and the impact on Scots law. The Law Society will be helpful in that.

Margaret Smith said earlier that the Equality Network has done a lot of work on this issue, so it may have expertise to offer.

It has. The evidence that it gave to the Equal Opportunities Committee was a balance between the more human aspects and matters relating to existing Scots law. The Equality Network did not come at the issue purely from an anecdotal point of view. It had a balanced viewpoint.

I suggested taking evidence from those two organisations; my other suggestion, while I remember, was the chap who is the head of family law at the University of Strathclyde—a guy called Professor Kenneth Norrie. He is seen as one of the leading people in his field. His evidence to the Equal Opportunities Committee was very much grounded in the impact on law. It is up to colleagues to decide how they feel, but I feel that taking oral evidence simply from the Executive will not be enough. The question that then arises is whether it would be enough also to get evidence from the Law Society, or whether we should hear evidence from two or three lots of people? I see no reason why representatives from the Equality Network and the Law Society and the likes of Professor Norrie could not give evidence together. I do not think that a full morning of evidence would be needed. It would be useful to question people other than the Executive.

I raised the issue because I have just seen the responses to the Executive's consultation and the range of organisations and individuals who responded. I am happy for people to give evidence purely on technical legal aspects of the bill, but if the committee is to consider general issues, it will have to call a balance of witnesses. The obvious group that is missing from the parties that we have considered is churches, which have made submissions on the bill to the Executive. If we open up evidence to a wider group of organisations that might not be interested only in technicalities, we must be careful not to be drawn into not having balanced responses in oral evidence.

If the evidence that the Equal Opportunities Committee took has been used properly and the audit of the bill's effect on Scots law has been undertaken, the subject should not be time consuming. We will just consider whether something has been missed out. It is to be hoped that the Executive's memorandum says that it has picked up those matters and that we will not have to spend much time on the subject. I presume that we will not reopen the principles behind the bill and that we will consider only technicalities, which have been well covered.

Michael Matheson has a point. We do not want to stray from the technicalities. With the best will in the world, the churches or the Equality Network may tend to stray from the technicalities, without meaning to do so. Perhaps we should restrict ourselves to Professor Norrie and Law Society representatives, which Margaret Smith suggested, as they will tend not to stray, even inadvertently, from the technicalities. Hearing from those two parties would assist us.

I would be happy with that.

I agree with Bill Butler. We are not about to consider the bill's merits—whether it is good or bad. We will consider technical matters and the impact on various aspects of Scots law. We should restrict our consideration to that, as that is our role in the process. I am happy to support his suggestion of witnesses.

I am not sure whether Marlyn Glen's point that considering the bill will not take much time is correct. We have not yet received the audit. I understand that the audit has not been undertaken because the bill had not been published and only the consultation was taking place. We will not know until the bill is published and we have the audit and the evidence whether our consideration will take a lot of time or a little time. The jury is still out on that.

I support the idea of restricting our consideration to our role, which is to examine the impact on Scots law. We should deal with evidence on that basis.

I agree that we must be careful not to stray from the technicalities, so hearing from Scottish Executive officials and the Law Society would be good. Professor Norrie has definite views—he was my lecturer in family law at the University of Strathclyde. He will also be excellent on the technical aspects, so he is a welcome addition.

We all agree that we want to review the technical impact on Scots law as far as possible. If that proves impossible, the committee will have to be open minded on the point that Michael Matheson made. We assume that it is possible to consider the bill in the way that has been suggested. However, we should be mindful that if it becomes apparent that it is impossible to talk about the technicalities without straying into other areas, we might have to review the issue of balance that Michael Matheson raised. Our objective in taking evidence will be to consider the technicalities, and that will inform our report to Parliament on the Sewel motion—that is not a foregone conclusion, but that is what we will set out to do. Michael, now that you have heard the discussion, are you satisfied that we should take further evidence in addition to hearing from the Executive?

Yes.

Does the committee agree that we should hear from the Law Society of Scotland and from Professor Norrie, from the University of Strathclyde, who is a leader in the field of family law? Are we also happy to invite the Equality Network, which has developed expertise in relation to—

No, we are not.

Okay. Does the committee agree to invite the Law Society of Scotland and Professor Norrie to give evidence? It is open to the committee to review its decision later.

Members indicated agreement.