Adults with Incapacity (Scotland) Bill: Stage 2
I have havered long enough, Phil. Are you about ready to start?
Yes.
Section 72—Future appointment of curator bonis etc. incompetent
We will begin with amendment 115, which is grouped with amendment 116. Both amendments are in the name of Phil Gallie.
Thank you, convener, for giving me time to find my spot.
Amendment 115 is a consequential amendment. The principal amendment to which I will speak is amendment 116, which ensures that the bill applies to all those with incapacity, not simply to those over the age of 16.
The Law Society of Scotland is of the view that it should not be competent to appoint curators bonis, tutors dative or tutors at law to any person, of whatever age, after the commencement of the act. All persons, of whatever age, should be subject to the regime that is set out in the bill.
If a curator bonis, tutor, or whoever is appointed under the authority of another statute, when the person reaches the age of 16 the curator may be assumed to be still in place. Is it intended that the curator would continue for that person after the age of 16, or will there be transitional provisions to ensure that the person acting as curator becomes a guardian under the terms of the bill?
I move amendment 115.
Minister, do you have any comments?
Thank you, convener. [Interruption.]
I caught you by surprise, minister.
The minister needs a bit of time as well.
Would you like me to wait for a minute or two?
I confess that I am suffering from a quite heavy cold and so I might not be as on the ball as usual. Forgive me if I stutter today, convener.
I take the points that Mr Gallie raises in these amendments. The Executive's position is that the bill applies only to adults, that is, to those who have reached the age of 16. The amendments that Mr Gallie lodged would provide that, once the bill becomes law, it should not be possible to appoint a curator or a tutor to a child in the same way that those offices are being abolished for adults.
In fact, it is beyond the scope of the bill to legislate for children. However, I understand that curators and tutors to children have been replaced by the provisions of the Children (Scotland) Act 1995. Therefore, the amendments appear to be unnecessary. On that basis, I ask Mr Gallie to consider withdrawing his amendments.
Thank you, minister. I have a further query; perhaps I did not pick you up fully. Once the child reaches the age of 16, does the role of the guardian terminate? Should someone else be appointed, or should the appointed guardian continue?
If the purpose of the amendment is to ensure that curators to children have to reapply for their powers once the child has reached the age of 16, it is the Executive's intention that, under arrangements at schedule 3 of the bill, curators appointed to children will become guardians when the child reaches 16. They will have to reapply to the court within five years if they wish their powers to continue, which is a process that also applies to former curators to adults. The Executive considers that the transitional arrangements offer adequate protection to both adults and children to whom curators have been appointed.
If no one else wants to come in—
On a point of clarification, minister. While I took in what you were saying, will you advise where the transitional arrangements to which you referred are found?
They are found in schedule 3.
Thank you for that intervention, Christine.
Given the minister's comments, it seems that he has responded to the points raised in my amendments. His comments were interesting. The parents of such children, or whoever looks after them, will take some comfort from the fact that an extension is possible but that somewhere along the line a review must take place. On that basis, I am prepared to withdraw the amendments.
Amendment 115, by leave, withdrawn.
Amendment 116 not moved.
Section 72 agreed to.
After section 72
Amendment 148 moved—[Angus MacKay]—and agreed to.
Section 73—Limitation of liability
Amendment 117, in the name of Phil Gallie, was debated with amendment 94.
It seems that we will cover the subject of duty of care when we come to debate amendments to part 5.
Amendment 117 not moved.
Sections 73 and 74 agreed to.
After section 74
Next is amendment 269, which is grouped with amendments 273 and 280. All amendments in this group are in the name of the Minister for Justice.
These amendments simplify the way in which the bill makes necessary changes to guardianship under the Criminal Procedure (Scotland) Act 1995. Committee members may know that, under the 1995 act, it is possible for a criminal court to appoint a mental health guardian to an adult with mental disorder who has been convicted of an offence that is punishable by imprisonment. Changes to the 1995 act are required as the Adults with Incapacity (Scotland) Bill replaces mental health guardians with a new form of welfare guardian.
Once appointed, a guardian under the 1995 act is like any other guardian under the bill. It is important that that type of guardianship is seen as for the adult's benefit, not as a punishment. The amendments will ensure that the necessary changes to the 1995 act are made in such a way that that act is as clear and easy to use as possible.
I move amendment 269.
Amendment 269 agreed to.
We come to amendment 288, which is grouped with amendment 289.
Thank you, convener. In the circumstances of my colleague's heavy cold, I will purport to be an expert on private international law for the next few minutes. I hope that the committee will bear with me.
During the debate on stage 1 of the bill, the Deputy First Minister mentioned that the Executive planned to lodge amendments at stage 2 to include provisions for private international law, of which these amendments are the most important. We will lodge further consequential amendments at stage 3.
Also during the stage 1 debate, Christine Grahame referred to The Hague Conference on Private International Law and to Professor Eric Clive. Ms Grahame indicated that, in her view,
"it would be good for Parliament to take account of that international legislation".—[Official Report, 9 December 1999; Vol 3, c 1422.]
These Executive amendments relate to provisions for international and domestic arrangements for jurisdiction, and international arrangements for applicable law and recognition and enforcement of measures taken in relation to adults.
The provisions in the proposed new schedule are derived in large measure from the Convention on the International Protection of Adults, which was signed at The Hague on 2 October 1999. The convention was made under the auspices of The Hague Conference on Private International Law, which, since 1893, has been the leading international organisation that deals with the complex but necessary arrangements for relations between legal systems throughout the world.
The convention has been ratified by the Netherlands, but, because a minimum of three states is required to ratify it, it is not yet in force. We expect the UK to ratify the convention in due course, although that will require legislation in England and Wales. We take the view that it is sensible to pave the way for application of the convention in Scotland. The bill gives us an ideal legislative opportunity to do that now, given that there may not be another suitable legislative vehicle for some time. Although most of the provisions are derived from the convention, some are not dependent on its ratification. It is also possible for ratification to take place for Scotland on its own as one of the convention's provisions enables a state with more than one legal system to ratify in respect of only one of its legal systems. Therefore, it is possible, although unlikely, for the UK to ratify only in respect of Scotland. In any event, the convention's provisions are useful now for dealing with any cases that arise.
Before the final session of the special commission at The Hague that led to the signing of the convention, there was full consultation on its terms. The overwhelming majority of responses were favourable with only some minor points of detail suggested for negotiation. The majority of those points were incorporated in the final text.
The convention covers jurisdictional competence of courts and other public authorities; recognition and enforcement of measures such as guardianship taken by judicial and administrative authorities; applicable law in relation to those measures and to the granting, for example, of powers of attorney and co-operation between the authorities of the contracting states. In this schedule the Executive introduces into the law of Scotland arrangements based on the convention text that include appropriate measures taken in Scotland under the bill, powers of attorney granted by adults in Scotland, and measures and similar powers granted outwith Scotland that may need to be applied here.
It is appropriate that Christine Grahame mentioned Professor Clive, as he was a member of the Scottish Law Commission in 1995 and was active in the negotiations that led to the conclusion of the convention. As leader of the UK delegation and then as chairman of the special commission that prepared the convention, Professor Clive was fully involved in the process that led up to the text being agreed. The justice department was also represented on the UK delegation to The Hague. I should put on record the Executive's gratitude to Professor Clive for his very considerable help and support in preparing these amendments.
I will give a brief description of the provisions proposed in the new schedule. It is necessary to ensure that measures such as guardianship taken by Scottish authorities will be enforceable in other countries. Equally, it is important that measures properly taken in other legal systems should be recognised and enforced in Scotland. It is important for us that powers of representation such as continuing and welfare powers of attorney should operate outside Scotland. The provisions of the new schedule are intended to make that clear.
Once the convention is ratified, its provisions as applied through the schedule will have effect in relation to other contracting states under the convention. At present, the provisions enable Scottish courts to recognise and enforce measures taken abroad where the convention jurisdiction arrangements apply. They also enable the Scottish authorities not to recognise and enforce certain measures; for example, if the jurisdiction arrangements do not conform to the convention, or on certain other grounds such as where the appropriate procedures have not been carried out, such as where a welfare attorney has powers to have the granter detained against their will in their own country, but could not do so under our law.
The purpose of the provisions on applicable law is to make clear which system of law applies to measures taken and powers granted in respect of an adult. Thus, paragraphs 3 to 6 of the new schedule make it clear that, where an adult is habitually resident in Scotland and grants a continuing or welfare power of attorney, the law of Scotland will apply in relation to it. The only exceptions relate to the manner in which any powers are exercised; for example, if an attorney has powers to carry out transactions in relation to land, the law of the place where the land is will apply. In Scotland that would mean that, for example, our property law would apply if a foreign attorney's decision had to be enforced in relation to property here. That is appropriate and sensible.
In due course there will be other provisions in relation to international co-operation, including the establishment of a Scottish central authority that will have functions, under the convention, of co-operation and liaison with the central authorities of other contracting states.
We anticipate that if and when the other countries of the United Kingdom incorporate the provisions of the convention in their domestic law, there will be similar arrangements for relations among the UK legal systems that, in turn, will be based on the convention. That must await transposition of the convention into the law of England and Wales, which is a matter for the UK Government.
I hope that committee members will agree that these provisions are sensible and useful and that it is appropriate to take advantage of the recently completed convention.
I move amendment 288.
The Deputy Minister for Health and Community Care will be looking forward to committee members' questions.
I am indeed.
I am delighted that the new schedule has been included. In general, it shows the important link between consultation from outside Parliament—Professor Clive—and the committee and the Parliament at stage 1, so that this very important amendment is now introduced. It is more than sensible; it is pioneering. We are ahead of the rest of the UK in incorporating a convention into our law in advance, and it shows Scots law in an international context. I am delighted that it is happening.
Sorry, minister, I did not follow every word. I am confused. Is this aimed at ensuring that, when somebody has a welfare or continuing attorney, the attorney's influence extends beyond our shores? The minister reflected on other states that have signed the convention. What states are and are not party to it?
In recent times, it has been apparent that individuals—children in particular—who are removed from this country have no protection under the laws of other countries and that someone can usurp the power of a parent or a guardian in such circumstances. Will the convention prevent that for the incapable adult? What steps can we take to ensure that the law passed in this country extends elsewhere?
Mr Gallie's understanding is essentially correct. The purpose of the convention is to ensure consistency of protection, in this case for adults, across the countries that sign it. Over 40 states are members of The Hague Conference, although only one has actually ratified the convention as far as we know, that is, the Netherlands. The UK has yet to ratify it, as I said.
We are assuming, as is likely, that the UK will sign up to the convention, and ensuring that the legislation that we are considering today will be consistent with that when it happens. We believe the provision made by the amendment is, in any case, helpful to the legislation. At the moment, however, only one country has signed up to the convention and it needs three to have done so before it comes into force. Our expectation is that that will happen relatively soon.
If that is the case, I recognise that there is some merit in including the amendment, but its effects are pretty minimal if there is only one other state involved. What further steps can be taken to protect the interests of incapable adults and their appointed attorneys if they leave our shores? Individuals have the right to a passport and it could well be that, temporarily, responsibility for looking after someone is passed to another person. I would like to think that there was provision made for that.
The position at present is that there are informal arrangements, as the kind of circumstance that you describe has to be dealt with. I tried to make clear that not all the procedures referred to in the amendment await the convention coming into force. I gave the example of the sale of land in Scotland, which would happen under Scottish law.
We are ensuring the maximum protection possible but also paving the way for the stronger and more consistent protection that the convention will enable when it comes into force. That will happen automatically, rather than us having to add provisions to the legislation at that time. It is the strongest protection possible at the moment.
Thank you. I recognise that it is probably the best we can achieve. Will the minister add something about the situation within the UK? There should be little doubt that someone appointed to look after the interests of another by a Scottish court will be recognised in England, Wales and Northern Ireland. Perhaps that should also be the case throughout the European Community, given the role of the European Court of Human Rights.
The European convention on human rights is in force within our legislation so, as Mr Gallie knows, all our legislation must be compliant with it. Because we have different legal systems, the situation in the UK is the same as the international situation that I have described. Informal arrangements apply. Were the UK to sign up on behalf of all its legal systems, the convention would apply between the legal systems as it would between the legal system of Scotland and that of another country.
Sorry, minister, but that gives me cause for concern. Are you saying that if someone is appointed a guardian in, let us say, Dumfries and if the incapable adult moves across the border to, for example, Carlisle, there would be no rights for the attorney to look after that incapable adult's affairs?
There are informal arrangements at the moment and there have been discussions about recognising the provisions of this legislation with, for example, Northern Ireland. However, until the convention comes into force, they remain informal arrangements.
I am sorry, but—
I am not sure that we will get any further on this.
Just one final point. Should we not be talking to the UK Government to see if something can be set up to take care of the problem? If so, should the minister lodge a later amendment to take account of it?
We have been talking to the UK Government; it would have to legislate. The UK delegation's part in the discussions leading up to the convention is part of that dialogue. For clarity, I return to the previous point. We are talking about a consequence of different legal systems within the UK rather than a consequence of devolution. The convention will regularise that so that we are moving towards a stronger position, which I think is what Mr Gallie wants.
Amendment 288 agreed to.
Section 75 agreed to.
Section 76—Interpretation
Amendment 80 moved—[Angus MacKay]—and agreed to.
Amendment 149 not moved.
Amendment 150 is grouped with amendments 151 and 152 in the name of the Minister for Justice, and amendment 152A in the name of Nora Radcliffe.
This is an important group of amendments. Amendment 151 is fairly straightforward and corrects a cross-reference with regard to the definition of "nearest relative" in the Mental Health (Scotland) Act 1984. In the bill, it is not intended, as it was in the 1984 act, to give priority to a relative who is the adult's day-to-day carer when determining who should be treated as the nearest relative.
Amendments 150 and 152 honour a commitment made by Jim Wallace in the stage 1 debate on 9 December to allow an adult's same-sex partner to be treated as their nearest relative. Although members of the committee are now familiar with the role of the nearest relative, it may be useful if I remind us briefly about that. The nearest relative is important in the bill because, along with others close to the adult, they are likely to have close knowledge of the adult and to be able to provide information that helps proxy decision makers and the statutory authorities make good decisions for the adult's benefit. Under section 1(4), the nearest relative should have their views taken into account
"in so far as it is reasonable and practicable to do so"
by anyone making an intervention in an adult's affairs.
The nearest relative is one of a series of people who should be consulted, including the adult's primary carer, any guardian, continuing attorney or welfare attorney, and any other person whom the sheriff has directed to be consulted. Other people with an interest in the adult's affairs who make their views known will also have their views taken into account, although their opinion need not be sought actively by the person responsible for the decision.
In the bill there are other specific references to the nearest relative. For example, the public guardian must consult the nearest relative and the adult's primary carer when considering whether to allow a guardian to make gifts out of the adult's estate. Similarly, the public guardian must consult the nearest relative and the primary carer when he is considering whether a guardian may buy or sell a house for the adult. Under section 48, which deals with medical research, when there is no guardian or welfare attorney, the nearest relative may consent to the adult's participating in research.
The bill adopts the definition of nearest relative in the Mental Health (Scotland) Act 1984, with the proviso only that the nearest relative need not be caring for the adult, as in mental health legislation. The Mental Health (Scotland) Act 1984 definition sets out a hierarchy of relatives, with a spouse being given highest priority, followed by parents, children, siblings and others. A person living with the adult as husband and wife for at least six months may take the place of the adult's spouse if the adult has no husband or wife or the marriage has ended. A person with whom the adult has "ordinarily resided" for at least five years may also be treated as the nearest relative, so long as the adult is not married to anyone else. Such a long-term companion is treated as the last of the relatives in the list of those from whom the nearest relative is selected. This type of relationship can be important, and I will return to it later.
The Executive is aware that there has been criticism of the 1984 act's definition of nearest relative, and we know that the Millan committee is examining this issue thoroughly in the context of mental health legislation. It has been agreed with Bruce Millan that the Executive will reconsider the definition in incapacity legislation following his committee's recommendations, if changes are proposed.
The Executive has considered very carefully the representations that were made at stage 1 about same-sex partners, including the comments in the Justice and Home Affairs Committee's stage 1 report that the existing definition does not meet the requirements of today's society. As Jim Wallace announced in the stage 1 debate, we have been persuaded by those representations to amend the definition so that, when certain conditions are met, a same-sex partner may be treated as the nearest relative for the purposes of the bill. The committee has already agreed amendment 131, which allows, in certain circumstances, an adult to seek to have their nearest relative removed from that position. However, that is a different issue.
Amendment 152 inserts in section 76 a reference to a same-sex partner. A qualifying condition is required before a same-sex partner may be treated as the nearest relative. Such a condition is also required for an opposite-sex partner to whom the adult is not married—that the adult should have no married partner or that the marriage should have ended. The Executive considers that that is equitable and non-discriminatory.
We believe that a same-sex partner should have the same status with regard to the right to be consulted as a person who is living as the adult's husband or wife within the definition of nearest relative in the bill. In law, however, two people living together as husband and wife must be of opposite sexes, so it is not possible to use such a description to characterise a same-sex relationship. We have, therefore, tried in amendment 152 to describe the characteristics of the relationship with a same-sex partner in a more appropriate way. In drawing up the definition, we have been guided by case law about what makes otherwise unrelated people partners as opposed to platonic friends. The characteristics of such a relationship are described in the new subsection (1A), to be inserted by amendment 152.
The Executive has found it particularly helpful to study the recent House of Lords decision in the Fitzpatrick v Sterling Housing Association case of 1999. In that case, it was held that a same-sex partner might take on a housing tenancy from his deceased partner. The House of Lords judgment offers a helpful consideration of what constitutes a same-sex relationship. The hallmarks of such a relationship were described as intimate mutual love and affection, long-term commitment and mutual support in times of need. Their lordships agreed that those criteria would have to be met, whether the partners were of the same or the opposite sex. The House of Lords also agreed that they would be unlikely to be met in the absence of a sexual relationship, either present or past. Without one, there would be nothing to distinguish the special nature of a partnership from the relationship of close friends. It is not necessary to define exactly what is meant by a sexual relationship, nor is that done anywhere in statute.
The Executive has considered amendment 152A very carefully, and we know that it has been given a good deal of thought by the Equal Opportunities Committee and those advising that committee. I want to explain why the Executive does not wish to support the amendment in the form in which it is drafted, even though the end result of it would, in practical terms, be the same as that of our amendment 152.
Our difficulty with amendment 152A is that it appears to equate same-sex relationships with the position of husbands and wives. As I have said, in our law husbands and wives must be of the opposite sex. A cohabiting opposite-sex couple cannot be exactly equivalent to a husband and wife, as the partners are not married. In some cases, they may not even be free to marry, as one or both partners might be married to someone else. The Executive would not wish to discriminate against opposite-sex couples, but we think that that might be the unintentional effect of the amendment that Nora Radcliffe has proposed.
Amendment 152 deals with same-sex partnerships without discrimination, by putting accepted case law in partnerships of either sex into primary legislation. I hope that this explanation is helpful to the committee and that members will agree amendment 152 in the terms in which it is drafted and reject amendment 152A. However, I repeat that we recognise and understand that both amendments are attempting to achieve the same aim.
I move amendment 150.
Amendment 152A is intended to achieve equality of treatment of same-gender and opposite-gender couples. We felt that any qualification or extension of the description of the relationship was, in itself, discriminatory. Our amendment was intended to make the description as simple as possible, to minimise the scope for interpretation or challenge.
The new subsection (1A)(b)(i) that is proposed by amendment 152 stipulates
"a period of not less than six months"
as the time during which
"a person of the same sex as the adult"
must have been living with the adult. I am unhappy about such a time being set, when there is nothing in the new subsection that allows the sheriff any flexibility. It might be worth adding a phrase along the lines of "failing that, in circumstances" such as those that are then described. Someone who had been living with the adult for five and a half months would be excluded from this provision, when all the other circumstances showed that it was a serious, committed relationship in which one partner had been placed in the position of an incapable adult by some chance occurrence, such as a road-traffic accident. I would be happier if somewhere in the subsection there were a catch-all phrase that allowed the sheriff to say that, although the partner of the same sex had not been living with the adult for six months, everything else indicated that they should be recognised as the nearest relative.
Minister, as other members wish to speak, we will sweep up all the questions for you to answer at the end.
The best advice that the Equal Opportunities Committee has is that amendment 152 would enshrine discrimination in the new legislation. Subsection (1A)(b)(i), in particular, includes conditions that are difficult to prove. I do not see how "mutual affection" or
"a subsisting or previous sexual relationship"
can be demonstrated. Our advice is—
I am sorry to butt in, but when you and Nora Radcliffe say "we", will you make clear that you are referring to the Equal Opportunities Committee?
I am sorry—I was referring to the Equal Opportunities Committee. That committee feels that amendment 152A would deal with the difficulties that it has identified. The criterion that the amendment proposes is used in other instances. If there is dubiety about it, the Equal Opportunities Committee would be happy for it to be looked at again. If not, I would be minded to support Nora Radcliffe's amendment.
I understand what the Equal Opportunities Committee is doing, but I think it is wrong. What the minister is proposing is not discriminatory against same-sex couples in the sense that has been suggested. The distinction is not between same-sex partners and different-sex partners, but between people who are legally married and those who are not. Under our law, same-sex couples cannot go through a form of marriage, but many opposite-sex couples do not go through a form of marriage either. The language that the minister has proposed is a way of indicating that such couples should be in the same position as legally married people, whether they are of the same sex or of different sex. Although what is proposed here applies to same-sex couples, it could apply equally to different-sex couples.
I feel that, ironically, Nora Radcliffe's amendment would make the situation more difficult for same-sex couples, rather than easier. Under amendment 152, all that is required is for a partner of the same sex to have been living with the adult for six months under the conditions described. Although, as has been said, those conditions may be difficult to prove, people can identify them when they see them. Proving that partners were in
"a relationship equivalent to that between a man and a woman living together as husband and wife"
would, in my judgment, be more difficult.
When do people become the equivalent of husband and wife? Certainly, that does not happen within six months of their living together. If by the equivalent of husband and wife we mean people who live together, have sex with each other and eat together, the issue is quite simple. However, couples would never be accorded the status of married people within six months of living together.
There was a recent case in Scotland in which a judge refused to accept that two people were living together as husband and wife even though they had been living together for years. The requirement of living together for six months in the circumstances described in amendment 152 would give security to same-sex couples, whereas it might be very difficult for them to prove that their relationship is equivalent to that between husband and wife. Ironically, the Equal Opportunities Committee's amendment does not help.
I welcome the Executive's amendment. This committee should note that it represents a major progressive step in Scots law. I agree with Gordon Jackson. In a recent High Court case it proved very difficult for a man and woman to pass the test of being a common law married couple. Can you clarify, Nora, whether that is what amendment 152A refers to?
We think that that description—
We try not to have dialogues between committee members.
I beg your pardon.
Perhaps Nora Radcliffe could confirm that the couple referred to in amendment 152A does not have to be married. I agree with Gordon Jackson that, in essence, the Executive amendment covers what we are trying to achieve.
The Equal Opportunities Committee felt that amendment 152A came as close as possible, as simply as possible, to a description that equates to a common law husband and wife, who are not married but live together as husband and wife. The intention was that people who live together as a couple, whether they are the same or the opposite gender, should be treated the same.
Amendment 152 is flawed, although I agree entirely with the principle that underlies it. I think that the minister and others acknowledge that there is an omission. When one talks only about same-sex couples living together, one excludes individuals of opposite sex who live together but are not married. What goes for one group goes for the other.
On the matter of sexual relationships, it would be difficult, as Kate MacLean says, to prove what happens between couples—also it would be the couple's own business. Therefore, Nora Radcliffe's amendment is probably more appropriate, although perhaps there should be a full stop after
"a man and a woman living together".
Six months might be too short a period for people of the same or opposite sex living together to establish a long-term bond. That may be another aspect that should be changed.
The problem lies in the difference between a colloquial and a legal definition. I understand what Nora Radcliffe means by defining the required relationship as being like that between
"a man and a woman living together as husband and wife."
People may say in the pub that they live together like husband and wife and may call themselves common law husband and wife, but the courts interpret that term in a legal sense. To be a husband and wife in a legal sense, people must have lived together for years. The legal definition would cause problems.
Christine Grahame indicated disagreement.
Christine disagrees with me, but the courts will not accept that there is a marriage by habit and repute unless the man and woman have been together for years.
I will try to respond to the points that members have raised—perhaps, convener, you will remind me if I miss any.
On the definition of husband and wife, about which Gordon Jackson and Nora Radcliffe spoke, it is my understanding—I am no lawyer—that common law marriage does not simply mean living together by habit or repute, but that it requires people to go to court to produce a legal declaration that it is the case. I think that that often happens in cases in which a person claims on their deceased common law spouse's estate. Nora Radcliffe's amendment is wrong to assume that a common law marriage is constituted simply by two people living together. That is part of the problem with amendment 152A. There is a logical inconsistency in that amendment.
One of the definitions of
"a man and woman living together as husband and wife"
is that they have gone through a ceremony of marriage. In law, that is not possible for same-sex partners, so the required relationship cannot be equivalent in law to that between husband and wife. Although there is a concern that the definition in our amendment is discriminatory, I am unconvinced by the arguments that that is the case. The requirements in subsection (1A)(b)(i) would also apply to an opposite-sex couple who wished to be considered nearest relatives.
Gordon Jackson is right: this is not a question of same-sex or opposite-sex couples who have not gone through a form of marriage being equivalent to a husband and wife; it is about a same-sex couple being equivalent to an opposite-sex couple who have not gone through a form of marriage. Neither of those couples is equivalent in law to a husband and wife.
The six-month requirement applies to opposite-sex couples because it is in the mental health legislation definition of nearest relative. As we have said, the Millan committee is examining the definitions in mental health legislation, and its conclusions may affect what we are considering. If they do, and if this amendment has been carried, any change will apply equally to same-sex or opposite-sex couples.
It remains our belief that amendment 152 does not discriminate between same-sex and opposite-sex couples, as it applies the same criteria. I appreciate that it is difficult to know how it can be shown that there has been a previous sexual relationship, but it seems clear to us that the law must make some distinction between partnership of the kind that we are discussing and platonic friendship. The evidence from the application of existing legislation, such as that on mental health, is that it is not necessary to demonstrate that there has been a sexual relationship; what must be shown if the relationship is challenged is mutual commitment and so on. I repeat that the requirements would apply to same-sex and opposite-sex couples.
As Pauline McNeill said, this is a significant progressive step in Scottish legislation. Christine Grahame spoke about the demonstration of the power of the consultative process, the committee structure and pre-legislative scrutiny. This is another example of how that power can be used to produce modern law that is better and more tolerant. Although amendment 152A aims to do that, we sincerely believe that amendment 152 will do it more effectively.
It is my understanding that the criteria in subsection 1A(b)(i) do not always apply when the courts try to define different-sex relationships. A professor in family law at the University of Strathclyde advised the Equal Opportunities Committee on amendment 152A. The Equal Opportunities Committee feels that amendment 152 could introduce inequality to new legislation and that amendment 152A addresses that problem.
The Equal Opportunities Committee welcomes the fact that the bill recognises same-sex relationships. It is a major step forward that is welcomed by organisations that deal with sexual orientation issues, but it is crucial that we get new legislation right. If it is not possible to re-examine the question, I am minded to support Nora Radcliffe's amendment.
Do you wish to come back on any point, minister, or will we move to the vote?
I wish to make a point.
We have now discussed this question for half an hour.
It is a very important issue.
I am not sure that we are progressing the debate in any way, shape or form. We have reached an impasse. If they are brief, Christine Grahame and Phil Gallie may speak.
I do not think that the minister addressed the point that I raised about the absolute nature of the six-month requirement—he may have covered it when he discussed the forthcoming legislation on mental welfare. Can I take it from what the minister said that other circumstances may be taken into consideration? There might be cases of injustice if an absolute limit of six months is introduced.
I disagree entirely with what the minister said about sexual relationships being the all-important factor; there are genuine lifelong friendships that are built on commitment and affection. That is why amendment 152 should not be accepted.
I do not disagree with Phil Gallie on this. The legislation covers the kind of companionship on which he spoke very eloquently in the stage 1 debate, although the defining period is five years rather than six months.
On Christine Grahame's point, six months is an absolute limit, which the sheriff does not have the power to vary. That is the current position in mental health legislation, on which the nearest relative definition is based. That matter is being considered by the Millan committee, which may decide to change it.
Both the committees and the Executive are aiming to achieve the same end. Our discussion this morning suggests that the debate is not played out, so we are prepared to take amendment 152 away and return to the issue at stage 3, if Nora Radcliffe does not press amendment 152A. The principle to which we are all committed is clear.
Is it in order for me to say that I welcome the minister's proposal very much?
It is in order, but we could have reached this point a little sooner.
Amendment 150, by agreement, withdrawn.
Amendment 151 moved—[Angus MacKay]—and agreed to.
Executive amendments 261, 262 and 263 are entirely technical and stylistic. Section 76 defines terms that are used throughout the bill, including the word "prescribed". This is used on many occasions in the bill to indicate matters that might be or will be prescribed by the public guardian or those that will be prescribed in regulations made by Scottish ministers.
The amendments effect the simple drafting change to define the word "prescribe" rather than "prescribed". That is more correct in terms of parliamentary drafting.
I move amendment 261.
Amendment 261 agreed to.
Amendments 262 and 263 moved—[Angus MacKay]—and agreed to.
Amendment 152 not moved.
Section 76, as amended, agreed to.
Section 77 agreed to.
Before schedule 3
Amendment 289 moved—[Angus MacKay]—and agreed to.
Schedule 3
Continuation of Existing Curators, Tutors, Guardians and Attorneys Under This Act
Amendment 290 is grouped with amendments 291, 292, 293 and 294.
These Executive amendments have been suggested by Adrian Ward of the alliance for the promotion of the bill. As a solicitor who is extremely knowledgeable in this field, he has helpfully identified some problems with the provisions of paragraph 4 of schedule 3, which deals with the position of attorneys when the bill comes into force.
The effect of the amendments is to ensure that attorneys, whose powers are intended to continue when the granter loses capacity, will become continuing or welfare attorneys under the bill. Where attorneys are exercising both types of power, they will become both welfare and continuing attorneys. They will have to act according to the general principles and might be subject to court orders and supervision by the statutory authorities if they do not carry out those duties properly. In the case of welfare attorneys, their powers will be limited, as the committee has already discussed in relation to sensitive medical treatments and the detention of the adult.
It is not intended, however, that attorneys appointed before the incapacity legislation comes into force should have to have their powers registered by the public guardian. That would be difficult to enforce. The Executive also believes that it would be wrong in principle to impose such a requirement, which was not part of the law in force at the time the powers were granted. We are confident that the bill offers sufficient protection to the granters of such pre-act powers, through the other safeguards such as the role of the courts and the statutory authorities.
I move amendment 290.
Amendment 290 agreed to.
Since we have a series of amendments that follow on from that amendment, we will try a slightly different procedure. Opportunity for a debate on the amendments has been allowed, in effect. I invite the minister to move amendments 291 to 294 en bloc. If any member of the committee objects to the question being put in this form, they can say so now.
Amendments 291 to 294 moved—[Angus MacKay]—and agreed to.
Amendment 264 ensures that hospital managers looking after patients' funds under current statutory arrangements may continue to do so under the old arrangements for a limited period only. After a period of no more than three years, the provisions of part 4 will apply. For example, a fresh certificate of incapacity would be required. The period of three years is consistent with the review period provided under section 35(7) for residents of care establishments.
I move amendment 264.
Amendment 264 agreed to.
Amendments 270, 271 and 272 are designed to rationalise the transitional arrangements under the bill for curators bonis, tutors at law and tutors dative who are converted into guardians under schedule 3. At present, there is an unnecessary distinction between what happens to converted welfare guardians and converted financial guardians when it comes to the renewal of their powers. These amendments ensure that all converted guardians will have to apply for renewal within five years of their appointment under the provisions of section 54. Mental Health Act guardians will be able to continue as guardians until the expiry of their appointment under the 1984 act but any renewal of their status must be sought under section 54.
I move amendment 270.
Amendment 270 agreed to.
Amendments 271 and 272 moved—[Angus MacKay]—and agreed to.
Amendment 265 inserts provisions in the bill that allow for different parts coming into force on different dates. Jim Wallace announced in the stage 1 debate on 9 December 1999 that the Executive intends to implement the provisions for attorneys, withdrawers and care establishments in 2001 and those for guardians and intervention orders in 2002.
For example, section 21 of the bill requires a continuing or welfare attorney wishing to resign to notify, amongst other people, any guardian or the adult's primary carer. The amendment provides that, between 2001 and 2002, when guardianship under the bill has not started, only the primary carer need be informed.
The other parts of the new provision inserted by the amendment deal with similar matters before the new form of guardianship comes into effect.
I move amendment 265.
Amendment 265 agreed to.
Schedule 3, as amended, agreed to.
Schedule 4
Guardianship Orders under the Criminal Procedures (Scotland) Act 1995
Amendment 273 moved—[Angus MacKay]—and agreed to.
Schedule 5
Minor and Consequential Amendments
Amendments 274 and 275 are entirely technical amendments, dealing with consequential amendments to other legislation. The paragraphs affected remove references to tutors and curators from existing legislation. The current text of the bill's amendments to the Judicial Factors Acts 1849, 1880 and 1889 does not reflect amendments made by the Children (Scotland) Act 1995 in relation to guardians of children. With these guardians removed by the act, many of the consequential amendments are not required and the aim can be met by simple repeal. Amendments 281 to 285 provide accompanying repeals to the Judicial Factors Act 1849 and will be debated later this morning.
Amendments 274 and 275 therefore alter the text of the bill to take account of the changes made by the 1995 act.
I move amendment 274.
Amendment 274 agreed to.
Amendment 275 moved—[Angus MacKay]—and agreed to.
Amendment 295, which is entirely technical, affects paragraph 8 of schedule 5, which amends the Heritable Securities (Scotland) Act 1894. The current text of that act was amended by the Children (Scotland) Act 1995. Amendment 295 ensures that our amendment to the 1894 act suits the style of its current text and that it will read clearly.
I move amendment 295.
Amendment 295 agreed to.
The consequential amendment to the Trusts (Scotland) Act 1921 in paragraph 9 of schedule 5 is designed to ensure that the 1921 act no longer refers to curators or tutors and makes it clear that it is not the intention to substitute references to guardians under the bill. However, changes made by the Children (Scotland) Act 1995 to the 1921 act have altered what is required. Only repeals to the current text of the Trusts (Scotland) Act 1921 are now required to give the same effect and those are provided in schedule 6, through amendments 304, 305 and 306. Amendment to the 1921 act in schedule 5 is now unnecessary.
I move amendment 296.
Amendment 296 agreed to.
Amendments 266 and 267 moved—[Angus MacKay]—and agreed to.
Amendment 276 is a technical amendment to ensure that a correct reference in the Social Work (Scotland) Act 1968 is made.
Section 68 of the 1968 act gives local authorities a duty to visit people living in residential establishments in their area
"in the interests of their well-being."
This is part of the inspection process. The section is being amended by the bill to add a requirement to visit to check that residents' financial affairs are being properly managed, where the establishment has the power to do so.
The amendment will enable the extended wording, describing the local authority's duty, to be inserted into section 68(1), where it belongs, rather than into section 68(3).
I move amendment 276.
Amendment 276 agreed to.
Amendment 268 to the Land Registrations (Scotland) Act 1979 is required following the provisions about protection of third parties inserted by amendments 22, 45 and 114, already discussed by the committee as part of group 15 on 25 January.
Amendment 268 prevents the adult whose property has been wrongly sold from seeking compensation from public funds—the keeper's indemnity. It does not, however, stop the adult from seeking recourse from the attorney, intervener or guardian who has wrongly sold his or her heritable property.
I move amendment 268.
Amendment 268 agreed to.
Amendment 277 is grouped with amendments 278, 297, 298, 299 and 300, all in the name of the minister.
These changes ensure that the bill correctly amends the Mental Health (Scotland) Act 1984 in respect of the new flexible form of guardianship that the bill creates.
Amendment 278 corrects a typing error in the bill which refers to "guardianship" rather than "guardian".
Amendments 297 and 298 ensure that changes made by the bill to the detention provisions of the Mental Health (Scotland) Act 1984 work correctly. The bill allows guardians and welfare attorneys with relevant powers to have a role in applications for formal detention and subsequent matters relevant to detention similar to that of the patient's nearest relative.
Amendment 299 provides that welfare attorneys and guardians are informed and consulted, as is the patient's nearest relative, about various matters to do with community care orders made under the 1984 act.
Amendment 300 ensures that statutory provisions for transfers of people under mental health guardianship between different parts of the UK will work correctly when the bill becomes law.
I move amendment 277.
Amendment 277 agreed to.
I invite the minister to move amendments 278, 297, 298, 299 and 300 en bloc. If any member of the committee objects to the question being put in this way, they may say so.
Amendments 278 and 297 to 300 moved—[Iain Gray]—and agreed to.
The provisions of the bill are extremely complex in attempting to provide adults with incapacity with a number of new rights. Amendment 301 builds on existing legal aid provision and ensures that legal aid, subject to the usual statutory tests, will be available for all proceedings under the bill to attorneys, guardians and persons claiming an interest in the personal welfare of the adult. In assessing whether a legal aid application satisfies the financial eligibility test, it is usual to assess the means of the applicant; however, there will be a number of proceedings under the bill where that would be inappropriate, for example, where a guardian intends to raise a court action on behalf of an adult with incapacity.
The Executive believes that, in those situations, the means assessment should be carried out on the assets of the adult. A further Executive amendment will be lodged, before the stage 3 debate. That amendment will ensure that, subject to the usual statutory tests, legal aid will be available not only to a person with an interest in the personal welfare of an adult, but to a person with an interest in the adult's property or financial affairs. The resulting regulations will be laid before the Parliament.
I move amendment 301.
Amendment 301 agreed to.
Amendment 279 reinstates a provision from the Scottish Law Commission's draft bill, which was mistakenly deleted. The Executive is grateful to the Mental Welfare Commission for pointing out that omission. The Access to Health Records Act 1990 already provides for some circumstances in which people can apply for access to another person's health records. That includes any person appointed by a court to manage the affairs of a patient who lacks capacity. The 1990 act would therefore cover guardians or those authorised under intervention orders in the bill. However, it would not include welfare attorneys, who are equally likely to require access to an adult's health records. This amendment ensures that attorneys are included.
I move amendment 279.
Amendment 279 agreed to.
Amendments 302 and 303 are purely technical amendments, which affect sections of the Child Support Act 1991 and the Social Security Administration Act 1992, concerning hospital managers looking after patients' funds, under section 94 of the Mental Health (Scotland) Act 1984. Section 94 is replaced by part 4 of the bill, and references to it in the social security legislation will be replaced by references to a guardian, or anyone else appointed to act for the adult under the bill.
I move amendment 302.
Amendment 302 agreed to.
Amendment 303 moved—[Angus MacKay]—and agreed to.
Amendment 280 moved—[Angus MacKay]—and agreed to.
Schedule 5, as amended, agreed to.
Schedule 6
Repeals
Amendment 281 is grouped with amendments 282, 283, 284, 285, 304, 305, 306, 286, 287 and 307.
Amendments 281 to 285 are purely technical amendments, repealing references to tutors and curators from the Judicial Factors Act 1849. The current text of the bill does not reflect amendments made by the Children (Scotland) Act 1995 in relation to guardians of children. These amendments alter the text of the bill, to take account of the changes the 1995 act made.
The 1995 act removed references to guardians, which the bill would otherwise have left in place. Therefore, changes that would have been amendments that appeared in schedule 5 are now simply repeals, and amendments 281 to 285 insert the repeals into schedule 6.
On amendments 304, 305 and 306, the consequential amendment to the Trusts (Scotland) Act 1921 in paragraph 9 of schedule 5 was designed to ensure that the 1921 act no longer refers to curators or tutors and made it clear that it is not our intention to substitute references to guardians under the bill.
However, the Children (Scotland) Act 1995 also amended the 1921 act, and this has altered which amendments are required. Therefore, amendment 296 removed paragraph 9 from schedule 5, and amendments 304, 305 and 306 provide the relevant repeals to the current text of the Trusts (Scotland) Act 1921. These ensure that the 1921 act does not refer to tutors, curators or guardians.
Amendment 286 provides purely technical changes to English mental health legislation, to deal with the abolition under the bill of curators and tutors to adults.
Amendment 287 ensures that the bill correctly amends the Mental Health (Scotland) Act 1984, where it refers to the Mental Welfare Commission's remit.
Amendment 307 ensures that statutory provisions for transfers of people under mental health guardianship between different parts of the UK will work correctly when the bill becomes law. It is currently possible for such transfers to be made both into and out of Scotland without requiring a fresh application for guardianship through the courts. When the adult and guardian move to another country within the UK, this is possible because all Mental Health Act guardians in the UK have the same three powers: to decide where the adult lives; to decide who has access to the adult; and to decide where they attend perhaps for education or training.
However, once the new, flexible form of guardianship comes into effect in Scotland, it will not be possible to transfer adults under guardianship from Scotland to guardianship in other UK countries in the same way. Scottish guardians are likely, in future, to have different powers to the current standard package, since powers will be tailored to meet the adult's individual needs. The guardian's powers would not be recognised elsewhere in the UK. Amendment 307 therefore removes provisions for transfers from Scotland from the Mental Health (Scotland) Act 1984.
I move amendment 281.
Amendment 281 agreed to.
I invite the minister to move amendments 282, 283, 284, 285, 304, 305, 306, 286, 287 and 307 en bloc. If any member of the committee objects to a single question being put, will they indicate so now.
Amendments 282 to 285, 304 to 306, 286, 287 and 307 moved—[Angus MacKay]—and agreed to.
Schedule 6, as amended, agreed to.
Section 78 agreed to.
That takes us to the end of part 7. I understand that we will not return to the bill until 29 February. I thank members, ministers and the Executive team. Everyone will be relieved to have a small break. The ministers and the Executive team are invited to join us, even though they are no longer involved in the meeting.
Meeting adjourned.
On resuming—