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SL/S3/10/R67

67th Report, 2010 (Session 3)

Forced Marriages etc. (Protection and Jurisdiction) (Scotland) Bill

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;

(iii) Pension or grants motion as described in Rule 8.11A.1;

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:

Bob Doris
Helen Eadie
Rhoda Grant
Alex Johnstone
Ian McKee (Deputy Convener)
Elaine Smith
Jamie Stone (Convener)

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Jake Thomas

Support Manager
Lori Gray

Forced Marriages etc. (Protection and Jurisdiction) (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. At its meetings on 23 November and 7 December 2010, the Subordinate Legislation Committee considered the delegated powers provisions in the Forced Marriages etc. (Protection and Jurisdiction) (Scotland) Bill at Stage 1. The Committee submits this report to the Equal Opportunities Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

overview of the bill

2. The Forced Marriages etc. (Protection and Jurisdiction) (Scotland) Bill (“the Bill”) was introduced in the Parliament on 29 September 2010 by the Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon MSP.

3. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”).1

4. Correspondence between the Committee and the Scottish Government is reproduced in the Annexe.

5. The Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in sections: 10(1), 11, 15(1) and 18(2).

Delegated powers provisions

Section 3(7)(c) - Power to specify a person, or a person falling within a description of persons, as a relevant third party

Power conferred on: Scottish Ministers

Power exercisable by: Order

Parliamentary procedure: Negative

6. In addition to protected persons only “relevant third parties” have an automatic right to apply for a forced marriage protection order (“FMPO”). Other persons need to apply for the permission of the court before they are entitled to do so. Local authorities and the Lord Advocate are specified in the Bill as relevant third parties. Section 3(7)(c) enables the Scottish Ministers to specify a person, or person falling within a description of persons, as additional relevant third parties who would not need the court’s permission to apply for a FMPO.

7. The DPM advises that in the future it may be felt appropriate to specify representative voluntary sector organisations as relevant third parties. It is considered it would be preferable to be able to do so using subordinate legislation rather than awaiting primary legislation. The Committee accepts that some flexibility may be required as the system beds in. The DPM states that “since any specification made under this section would remove the discretion of the court to refuse to consider applications from third parties specified, it is thought appropriate that any such specification is subject to annulment.”.

8. The Committee considered that since restricting the right to apply for a FMPO is clearly considered a necessary part of the regime, alteration of that aspect of the regime should properly involve scrutiny by the Parliament as opposed to no scrutiny procedure at all.

9. The question is therefore whether negative procedure is sufficient as opposed to the higher level of scrutiny afforded by affirmative procedure. There is no assessment of the difference between the two in the DPM or as to whether the subject matter of the order is an issue which might have significant practical implications for the operation and/or effectiveness of the FMPO system.

10. The Committee therefore asked the Scottish Government for more information as to why negative procedure is considered the appropriate level of scrutiny before it considered whether it is content with this power.

11. The Government have provided a fuller explanation. Their response indicates that it is thought that the power to add additional third parties with automatic rights to apply for a FMPO would be used only rarely, that the police are perhaps the only candidate for specification and those parties which would be specified by Ministers would only be those to whom the court would be likely to grant permission.

12. The response differs from the DPM in terms of who are considered the most likely candidates as additional third parties - which suggests to the Committee that policy on this matter is still evolving. However, having considered the further information provided, the Committee agrees that negative procedure would be sufficient scrutiny were the Parliament clear that the courts had been consulted on the proposed change.

13. The Committee therefore accepts negative procedure but recommends that the Government amend the power so that it is subject to a requirement on Ministers to consult the Lord President prior to making an order.

Section 11 - Guidance

14. Section 11 permits the Scottish Ministers to issue guidance about the effect of the Bill or forced marriage generally to persons they consider appropriate (other than a court or tribunal). The Committee did not consider that this guidance should take the form of subordinate legislation but sought the views of the Scottish Government on whether the guidance should be laid before the Parliament in the interests of transparency and so that the Parliament should be aware of its terms.

15. The Scottish Government considers that given the limited scope and effect of the guidance in this case, and since separate guidance may be issued from time to time for different purposes, it was not thought appropriate to require the guidance to be laid before the Parliament. While it is not a statutory requirement, as a matter of practice, the Scottish Government intends to submit a final draft of the first substantive guidance to the Equal Opportunities Committee for consideration prior to publication.

16. The Committee is content with this response.


Footnotes: