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Tomorrow the Justice and Home Affairs Committee will begin to consider amendments to the Adults with Incapacity (Scotland) Bill. Martin Verity has circulated a policy memorandum and a copy of amendment 152, in the name of Jim Wallace. The amendment covers same-sex relationships, on which the committee took evidence from the Equality Network. There is also a short report. It is up to this committee to decide whether it wants to propose any further amendments for consideration or to propose amendments that would amend existing amendments.
Can you elaborate on that?
The amendment refers to
I agree with you. I would change the wording of the amendment to
Do you know what reference is made to heterosexual relationships?
I do not think that there is one. This provision has been added in. I welcome the fact that Jim Wallace has proposed the amendment and has recognised same-sex relationships within the context of next of kin and primary carers, but I suspect that there is no equivalent definition of heterosexual relationships. I would prefer the amendment to refer to
Like you, convener, I welcome in principle the fact that this amendment has been brought forward to recognise same-sex relationships. However, the Justice and Home Affairs Committee was aware of the need to differentiate between someone living under the same roof as someone else for a period and someone who was in a relationship—heterosexual or homosexual—with that person and therefore next of kin.
I am not sure whether anything apart from the period of time is specified for mixed-sex relationships.
We need to check the wording. As Tommy Sheridan said, there must be something to distinguish between people who are living together because they are sharing a flat and people who are in a relationship. That goes for both same-sex and different-sex relationships. If there is no such provision elsewhere in the bill, there needs to be; there must be some provision that would prevent someone who just happens to live under the same roof as an adult with incapacity from attempting to take responsibility for that person.
The difference is that there is already a legal definition of cohabitee, which does not include same-sex couples.
If that is the case, and if that is the understanding behind the other part of the bill, there has to be something in here to distinguish the type of relationship, for protection of the individual if nothing else. However, I agree that the wording in Jim Wallace's amendment leaves a lot to be desired. It would probably be impossible to prove, legally, that there has been mutual affection, commitment, support and so on. The language of the amendment should be tighter and perhaps less loaded.
The bill says:
What is the time scale?
The amendments start being considered tomorrow, but because this is a bit further on, it will not be heard then. The Justice and Home Affairs Committee is meeting twice a week. How long the amendment takes depends on how many amendments come in for each part. I do not know the time scale. That committee may have to meet twice a week for three months.
Earlier, we discussed having a special meeting next week. Would it be practical to ask Jim Wallace to come and explain this amendment?
It would be difficult to have an official meeting, because other committees will be meeting and the official report will have to deal with them. If we have a meeting next Tuesday or Wednesday, it will have to be unofficial, although we could ask Jim Wallace along.
It is vital that he is here.
The dilemma could be resolved by extending the same definition that applied to cohabitees to same-sex couples. Common-law marriage is recognised, so there must be a definition of cohabitee. Maybe we should do a bit of homework and find out its wording.
Why would it have to be an unofficial meeting? If we are scheduled to meet on a Tuesday morning—
We are not. Neither a room nor the official report has been booked. We have Tuesday mornings in our diaries for reporters groups, which are scheduled to meet every fortnight. There are committee meetings on Tuesday and Wednesday, so it would be difficult to organise an official meeting of the committee for those days.
If some effort could be made to have an official meeting of the committee, and if Jim Wallace were invited, we could deal with the census issue at the same time.
I ask Martin Verity's advice about that, because he knows more than I do about organising meetings.
In principle, I do not see any difficulty in having a formal meeting of the committee. However, it would be difficult to get the Deputy First Minister along at such short notice, and on a Tuesday morning when the cabinet meets. Alternatively, the convener could write to the minister, outlining the concerns of the committee and asking for an explanation.
He has not replied to my last letter, and we are a bit short of time.
I suggest that you write to the minister, perhaps enclosing your concerns about the other area that we have discussed. When the matter is discussed by the Justice and Home Affairs Committee, we could raise the points that have been made here with it, almost as if making a formal representation on our views.
If the conditions in Jim Wallace's amendment are different to sections 53 and 57 of the 1984 act, we can lodge an amendment, asking for the section to be amended to add in same-sex couples, without all the conditions.
One of the reporters groups is dealing with sexual orientation issues, while the full committee has heard a number of representations. Could we have a formal meeting and invite a representative from one of the groups that has given us a presentation? I am trying to remember the name—
Tim Hopkins from the Equality Network—
The Equality Network was good—it said that it would be looking at the bill in detail. It would be helpful to hear what the network has to say.
I wonder if the act's definition of cohabitees is that they are couples. If so, it is fair enough just to apply the definition to same-sex couples.
The 1984 definition of cohabitee is quite old, so if that is the existing definition, we should challenge it. I hope that we have all questioned the idea that mutual affection, commitment and support and so on, has to be
It looks like that is trying to define a marriage that has not been formalised, which leads me to believe that that might well be the definition of cohabitee.
We will clarify that for the next meeting.
Am I right that we would have to lodge our own amendment? We cannot amend an amendment.
We would lodge our own amendment.
It would be an amendment to Jim Wallace's amendment. Where his amendment does not mention same-sex relationships, we would leave in or take out whatever we wanted or did not want.
If we arrange a meeting, we can deal with all this.
Did we have a meeting on a Wednesday once? If we are going to meet next Tuesday or Wednesday—
I do not mind whether it is Tuesday or Wednesday. We have to try to do the best we can with what is already there.
Could we arrange the date and time now, while we are all here?
We cannot, because we have to allow Martin Verity to get a room and the official report sorted out. If people would prefer Wednesday, we could agree on that, but that is as much as we can do now.
The last time we met on a Wednesday, it was a lunch time or an evening.
We will have to sort it out as best as we can. Anything else on that?
On the Adults with Incapacity (Scotland) Bill—
Just on that bill?
Yes. Tricia Marwick probably thinks that she escaped from the bill when she came here, but I have two items of correspondence relating to it, which raise one of its fundamental controversies. The correspondence is relevant to the committee in the sense that it is the carers of adults with profound learning difficulties who are being affected by the bill.
What amendments will you suggest?
I will support the position that is in the bill because Jim Wallace said that he would amend the bill to let a second medical opinion override the wishes of someone who has gone to the court and become a guardian.
Has he done that?
He has not lodged the amendment yet but he announced that he would do so.
Is there anything else on this item of business? We will have time during the next couple of weeks to deal with anything that crops up.
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