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SP 474

SL/S2/05/R46

46th Report, 2005 (Session 2)

Remit and membership

Remit:

  1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter,

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation; and

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

 (Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Dr Sylvia Jackson (Convener)
Mr Adam Ingram
Gordon Jackson (Deputy Convener)
Mr Kenneth Macintosh
Mr Stewart Maxwell
Murray Tosh

Committee Clerking Team:

Clerk to the Committee
Catherine Fergusson

Senior Assistant Clerk
David McLaren

Support Manager
Catherine Fergusson

46th Report, 2005 (Session 2)

Family Law (Scotland) Bill as amended at Stage 2

The Committee reports to the Parliament as follows—

Introduction

1. At its meeting on 13 December 2005, the Committee considered the inserted or substantially amended delegated powers provisions in the Family Law (Scotland) Bill as amended at stage 2.  The Committee reports to the Parliament on such provisions under Rule 9.7.9 of Standing Orders.

2. Under Rule 9.7.10, the Executive provided a supplementary delegated powers memorandum (“DPM”) to the Committee, which is published at Annex A to this report, and correspondence with the Executive is published at Annex B.

Delegated powers

3. The Committee considered all of the powers as set out in the DPM and is content with new section 13A, new section 14A(3), new section 32A and with the removal of section 17(3).

Section 14A(4) – Financial provision on divorce and dissolution of civil partnership: Pension Protection Fund

4. The Committee noted the unusual provision in section 14A(4), which it considered allowed Ministers to amend an order of the court.  The Committee was particularly concerned by the inserted subsection (7C)(b) which states "such other modifications as may be prescribed by regulations by the Scottish Ministers".  It considered that this provision gave Ministers a very wide and unrestricted power and that such a power should be limited.

5. The Committee sought the views of the Executive on the intended policy of the provision and asked for clarification of its reasoning for choosing to take such a wide power.

6. The Executive provided full explanation and additional information in relation to the taking of this power as reprinted at Annex B to this report. 

ANNEX A

SUPPLEMENTARY MEMORANDUM ON DELEGATED POWERS

FAMILY LAW (SCOTLAND) BILL

Purpose

1. This supplementary Memorandum has been prepared by the Scottish Executive to accompany the Family Law (Scotland) Bill following Stage 2 which commenced on 5th October 2005 and concluded on 30th November 2005.  It details further provisions in the Family Law (Scotland) Bill that confer powers to make subordinate legislation, and a power which has been removed from the Bill, introduced by way of amendment at Stage 2.  It describes the persons upon whom these powers are conferred, the form in which the powers are to be exercised, the Parliamentary procedure to which the powers are to be subject and why it is considered necessary to delegate the powers.  It explains why it is considered necessary to remove a delegated power from the Bill. It does not form part of the Bill and has not been endorsed by the Parliament. 

Further delegated powers

Section 13A Postponement of decree of divorce where religious impediment to remarry exists

Power conferred on:                     The Scottish Ministers
Power exercisable by:                  Regulations made by statutory instrument
Parliamentary procedure:            Negative resolution of the Scottish Parliament

2. Section 13A confers on Scottish Ministers the power to make regulations prescribing religious bodies for the purpose of the definition of “religious marriage” contained in the section.

Justification for taking this power

3. Section 13A was introduced into the Bill by way of non-Executive amendment at Stage 2.  The section inserts a new section 3A into the Divorce (Scotland) Act 1976 to give the court the power, where a party in an action of divorce is prevented by a religious impediment from undertaking a religious marriage, to postpone the grant of decree until the other party to the action has acted to remove or to assist in the removal of the impediment if he or she is able to do so. For the purposes of the section a religious marriage will be a marriage solemnised by a marriage celebrant of a religious body prescribed in regulations made by the Scottish Ministers. The section is intended to assist those who, as a matter of faith, can only remarry within their religion but who are currently prevented from doing so until an impediment is removed.

4. In terms of section 3A(9) of the Divorce (Scotland) Act 1976, as inserted by section 13A of the Bill, such regulations will be subject to annulment in pursuance of a resolution of the Scottish Parliament.  The negative resolution procedure is considered to offer an appropriate balance between, on the one hand, expedition and convenience and, on the other, the need for scrutiny for a provision of this nature. It is appropriate that this matter be dealt with by secondary legislation to provide for flexibility and the opportunity to consult with interested parties on the technical detail required in this area.

Section 14A(3) Financial provision on divorce and dissolution of civil partnership: Pension Protection Fund

Power conferred on:                     The Scottish Ministers
Power exercisable by:                  Regulations made by statutory instrument
Parliamentary procedure:            Negative resolution of the Scottish Parliament

5. Section 14A(3)(d) provides for the Scottish Ministers to make regulations prescribing a method for the verification and apportionment of compensation payable by the Board of the Pension Protection Fund which forms part of matrimonial property.

Justification for taking this power

6. In terms of the Pensions Act 2004 the Board of the Pension Protection Fund will, in respect of the pension schemes provided for in that Act, pay compensation to persons who have lost their pension as a result of the scheme having been wound up. Section 14A of the Bill seeks to amend section 10 of the Family Law (Scotland) Act 1985 so that where such compensation is payable it will form part of matrimonial property. The regulation making power will allow the Scottish Ministers to provide for verification of the compensation payable and the proportion which shall form part of matrimonial property for the purposes of financial provision on divorce. This power will sit alongside the existing power in section 10(8) and (8A) for Scottish Ministers to make regulations in relation to the calculation and verification of benefits in respect of a pension which forms part of matrimonial property.

7. In terms of section 10(9) of the Family Law (Scotland) Act 1985, such regulations will be subject to annulment in pursuance of a resolution of the Scottish Parliament. The technical nature of these provisions is more appropriately dealt with by secondary legislation. The negative resolution procedure is considered to offer an appropriate balance between, on the one hand, expedition and convenience in what is essentially a very technical area of the law and, on the other, the need for scrutiny for a provision of this nature.

Section 14A(4) Financial provision on divorce and dissolution of civil partnership: Pension Protection Fund

Power conferred on:                     The Scottish Ministers
Power exercisable by:                  Regulations made by statutory instrument
Parliamentary procedure:            Negative resolution of the Scottish Parliament

9. In the event that the Board of the Pension Protection Fund assumes responsibility for a pension scheme, section 14A(4)(a) makes provision for the Scottish Ministers to prescribe any modifications necessary to an order made under section 12A(2) of the Family Law (Scotland) Act 1985 to enable that order to be implemented by the Board.

Justification for taking this power

10. There may be cases where, at the time when the Board of the Pension Protection Fund assumes responsibility for a pension scheme, an order which has been made under section 12A(2) of the Family Law (Scotland) Act 1985 has not yet been implemented by the trustees or managers of that scheme. The regulation making power is necessary to ensure that in all cases where the Board has assumed responsibility for a pension scheme a court order made under section 12A(2) can be implemented by the Board.

11. In terms of section 12A(9) of the Family Law (Scotland) Act 1985, such regulations will be subject to annulment in pursuance of a resolution of the Scottish Parliament. The negative resolution procedure is considered to offer an appropriate balance between, on the one hand, expedition and convenience and, on the other, the need for scrutiny for a provision of this nature.

Section 32A Ancillary provision

Power conferred on:                     The Scottish Ministers
Power exercisable by:                  Order made by statutory instrument
Parliamentary procedure:            Negative resolution procedure or affirmative resolution procedure

12. Section 32A provides for the Scottish Ministers by order to make such consequential, transitional or saving provision as they consider appropriate in consequence of or to give full effect to the Family Law (Scotland) Bill as enacted.

Justification for taking this power

13. This order-making power is necessary to ensure that full effect can be given to the Bill once it is enacted. The power will allow the Scottish Ministers to make any modifications to primary legislation or subordinate legislation which are consequential on the Bill. It will ensure that any transitional or savings provisions which are necessary in relation to existing statutory rights or obligations can be made.

14. An order under this section which amends or modifies subordinate legislation will be subject to annulment in pursuance of a resolution of the Scottish Parliament.  The negative resolution procedure is considered to offer an appropriate balance between, on the one hand, expedition and convenience and, on the other, the need for scrutiny for a provision of this nature.

15. An order under this section which modifies primary legislation shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. The affirmative resolution procedure is considered to offer the appropriate level of scrutiny for a provision of this nature.

16. In consequence of the new ancillary provision at 32A of the Bill section 34(4) of the Bill is no longer required as the commencement order will not include any transitional or savings provisions. These, if required, will be made by a separate negative instrument and accordingly section 34(4) has been removed.

Delegated power removed from the Bill

Section 17(3) Parental responsibilities and rights of unmarried fathers

Power conferred on:                     The Scottish Ministers
Power exercisable by:                  Regulations made by statutory instrument
Parliamentary procedure:            Negative resolution of the Scottish Parliament

17. Section 17(3) of the Bill as introduced conferred on the Scottish Ministers the power to make regulations making provision for or in connection with specifying cases in which a father––

(a) who was not married to the mother at the time of the child’s conception or subsequently; and

(b) is not registered as the child’s father under any of the enactments mentioned in section 3(1A) of the Children (Scotland) Act 1995 (as inserted by section 17(3) of the Bill)

shall have parental responsibilities and rights in relation to the child.

Justification for removing the power

18. The regulation making power at section 17(3) was intended to allow the Scottish Ministers to make regulations to recognise the parental responsibilities and rights of fathers of children whose births were registered outside the United Kingdom, as long as the registration was made with the mother’s consent and conferred equivalent parental responsibilities and rights in the jurisdiction concerned. It was decided that this power is unnecessary as the concept of parental responsibilities and rights as enacted in the Children (Scotland) Act 1995 and similar legislation in other parts of the United Kingdom is unlikely to be replicated in similar form in other jurisdictions and accordingly such a power would never be used. 

ANNEX B

Letter to Deputy Minister for Justice from Convener of Subordinate Legislation Committee

Family Law (Scotland) Bill as amended at Stage 2

The Subordinate Legislation Committee met this morning to consider the delegated powers in the Family Law (Scotland) Bill as inserted or amended at Stage 2.

The Committee noted the unusual provision in section 14A(4), which allows Ministers to amend an order of the court.  The Committee is particularly concerned by the inserted subsection (7C)(b) where it states "such other modifications as may be prescribed by regulations by the Scottish Ministers".  It considers that this provision gives Ministers a very wide and unrestricted power and that such a power should be limited, for example by being expressed as allowing consequential amendment relating to the earlier provisions in 14A(4).  The Committee seeks the views of the Executive as to whether the intended policy of the power, as set out at paragraph 10 of the supplementary memorandum on delegated powers, could be achieved with such an amendment.

The Committee also urgently seeks clarification from the Executive as to its reasoning for choosing to take such a wide power and for explanation as to why it considers that this power is necessary.  

Response from Deputy Minister for Justice to Convener of Subordinate Legislation Committee

FAMILY LAW (SCOTLAND) BILL AS AMENDED AT STAGE 2

Thank you for your letter of 13th December, concerning the Subordinate Legislation Committee’s consideration of the Family Law (Scotland) Bill as amended at Stage 2. I trust the following response will prove helpful in clarifying the points you have raised.

Subsections (7B) and (7C) of section 12A of the Family Law (Scotland) Act 1985 (inserted by section 14A(4) of the Bill) are intended to deal with the situation where a court has made an earmarking order under subsection (2) of section 12A which has not been implemented at the time the trustees or managers of a pension scheme receive a transfer notice under section 160 of the Pensions Act 2004. In terms of section 161 of the Pensions Act 2004, the effect of such a transfer notice is that the trustees or managers are relieved of their pension obligations, the Board of the Pension Protection Fund (“the PPF Board”) becomes responsible for paying pension compensation in terms of the provisions in that Act and the pension scheme is treated as wound up.

A court order under section 12A(2) earmarks part or all of any lump sum to which the party with the pension is entitled so that, when the lump sum becomes due, part or all of it is payable to the other party. Where such an order has been made, but a transfer notice is given prior to the lump sum’s becoming due, subsections (7B) and (7C) will operate to allow the order to be implemented by the PPF Board.  However, subsections (7B) and (7C)(a) are cast in such a way that these provisions will operate only if the order imposes a requirement on the trustees or managers of a pension scheme to pay to the other party an amount by reference to the lump sum. These provisions are drafted in this way to correspond with the terms of section 12A(2).

The regulation-making power at (7C)(b) is necessary to allow Scottish Ministers to deal with cases where the terms of an order identifying the pension scheme or those responsible for it or the lump sum are not as cast in (7C)(a). For example, there might be cases where an earmarking order imposes a requirement on the trustees or managers of a pension scheme to pay a specific amount in terms of the lump sum, but the order itself does not say that the amount is by reference to the lump sum.

The regulation-making power is not, strictly speaking, a power to amend an order of court. It is a power to modify the order for the purposes of giving effect to it where otherwise that would not be possible. The rationale for having this power is the same as that for including subsections (7B) and (7C)(a) in the Bill, namely to enable earmarking orders which otherwise would be incapable of implementation to be implemented in so far as the amount of compensation allows.

The power requires to be wider than consequential on the earlier provisions to ensure that these court orders can be given effect to as not all modifications will necessarily be consequential on subsections (7B) and (7C). For example, an earmarking order might identify the pension scheme or the trustees and managers by reference to a trust deed or make no reference to a lump sum as such but merely specify an amount. Subsection (7B) provides that subsection (7C) applies where the court has made an earmarking order imposing requirements on the trustees or managers of an occupational pension scheme. To modify a court order to the effect that a specified amount is to be payable by reference to PPF compensation would not be consequential on subsection (7B). The intention is to allow provision to be made for earmarking orders under section 12A(2) that need more adaptation than subsection (7C)(a) would enable to be made.

Finally, the Committee may wish to note that subsections (7B) and (7C) are modelled on section 25E(2) and (3) of the Matrimonial Causes Act 1973 (inserted by paragraph 3 of Schedule 12 to the Pensions Act 2004).  In particular, there is a direct parallel between the regulation-making power in section 25E(3)(b) and that in new section 12A(7C)(b).