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SL/S3/11/R21

21st Report, 2011 (Session 3)

Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill as amended at Stage 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;

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

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Jake Thomas

Support Manager
Lori Gray

Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill as amended at Stage 2

The Committee reports to the Parliament as follows—

1. The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill was introduced into the Parliament on 29 September 2010 by Nicola Sturgeon MSP. The Bill completed Stage 2 on 1 March 2011 and Stage 3 will be held on 22 March 2011.

2. The Committee is content with the power in section 11 to issue guidance about the effect of the Bill or forced marriage generally to such persons as Ministers consider appropriate (other than a court or tribunal).

Stage 1 Report

3. In its stage 1 report the Committee recommended that the power under section 3(7)(c) to specify additional persons who have an automatic right to apply for a forced marriage protection order (FMPO) should be subject to a requirement to consult the Lord President before it is exercised. At present the only third parties who have the right to apply for a FMPO are the Lord Advocate and local authorities. Other third parties have to apply to the court for permission before they can make an application. The effect of an order under section 3(7)(c) is therefore to remove the court’s discretion over whether to hear such an application. On that basis the Committee considered that it would be appropriate for Ministers to consult the Lord President before making the order. This approach was endorsed by the lead committee in their stage 1 report.

4. In his response to the Committee’s report, the Minister in charge, Alex Neil says:

“The power to extend the group of relevant third parties in section 3(7)(c) is expected to be used only sparingly and in relation to persons with a clear interest in seeking a FMPO on behalf of victims of forced marriage. Consequently, it is not considered necessary for the Lord President to be consulted whenever the power is exercised, notwithstanding the removal of the courts’ discretion to entertain an application form a person designated a relevant third party.”

5. It is not clear why the Government is resisting this proposal. It seems sensible for the Government to have heard the Lord President’s views on whether or not any particular group of persons should be given an automatic right to make an application. The courts will be the place in which the merits of applications from such parties will already have been discussed. When considering the order extending rights to make applications the Parliament may find it helpful to know that the Lord President has already made his views known. The Government need not follow the Lord President’s advice if it does not agree with it, but the Parliament may wish to know that he has had the opportunity to comment.

6. The Committee repeats its recommendation that before exercising the power to specify additional relevant third parties the Scottish Ministers should be required to consult the Lord President.