Scottish Parliament, 15 December 2005

470 contributions from 74 members. The official report.

Official Report 15 December 2005

Family Law (Scotland) Bill: Stage 3

George Reid (None, Ochil)

Good morning. We start with stage 3 of the Family Law (Scotland) Bill. I will make the usual announcement about the procedures to be followed. First, we deal with amendments to the bill, and then we move on to the debate on the motion to pass the bill. For the first part, members should have before them the bill as amended at stage 2; the marshalled list, which contains the amendments that have been selected for debate; a supplement to the marshalled list, which contains one manuscript amendment that I have agreed may be moved during today's proceedings; and the groupings, which I have agreed.

The division bell will sound and proceedings will be suspended for five minutes before the first division this morning. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division following a debate. All other divisions will last 30 seconds.

George Reid (None, Ochil)

Group 1 is on void marriages and civil partnerships. Amendment 1 is grouped with amendments 2 and 5.

Hugh Henry (Labour, Paisley South)

Section 2 is concerned with putting on record certain elements of the common law in Scotland. It will place on a statutory footing the existing grounds at common law under which a marriage would be void. One of the key policy objectives in putting the rules for void marriage into statute was to dispense with tacit mental reservation as a ground for nullity, because it is considered to encourage sham marriages. Persuasive arguments have been received from the Scottish Law Commission that, due to a recent court case—which was reported after stage 2 consideration of section 2—the existing section is potentially flawed under certain circumstances, so amendments 1 and 2 have been lodged to ensure that the policy aims of the section will be met. Amendment 5 replicates the change in relation to civil partnership.

I move amendment 1.

Stewart Stevenson (Scottish National Party, Banff and Buchan)

What a welcome relief it is that we are at stage 3 at last. I will support all three of the amendments in the group. I welcome the rejection of a manuscript amendment that was submitted very late, because that promotes effective debate at this stage. I would like, with your indulgence, Presiding Officer, to ask whether the minister can confirm that manuscript amendment 55's not being selected for debate will not have any material effect on the bill.

Margaret Mitchell (Conservative, Central Scotland)

I confirm that I will support amendment 1, which is welcome in that it will fill a gap in current law.

Hugh Henry (Labour, Paisley South)

We do not believe that there will be any unforeseen consequences of manuscript amendment 55's not being selected. In effect, that amendment referred to something that was no longer there. At some point in the future, we will use a suitable legislative vehicle to effect the appropriate change.

I apologise to you, Presiding Officer, and to Parliament, for the lodging of that manuscript amendment. It was done without our knowledge, albeit with the best intentions, at a very late stage. Both Cathy Jamieson and I felt that it would be inappropriate for it to be debated and considered today. We felt that, given that there would essentially be no consequences of its not being agreed to, it would be better to deal with the matter at another time, rather than have it cause anxiety and confusion or create the impression of our trying to bounce Parliament into a decision.

Amendment 1 agreed to.

[Amendment 2 moved—[Hugh Henry]—and agreed to.]

George Reid (None, Ochil)

Group 2 is on circumstances in which marriage by cohabitation with habit and repute may have effect. Amendment 6, in the name of Pauline McNeill, is the only amendment in the group.

Pauline McNeill (Labour, Glasgow Kelvin)

The doctrine of marriage by cohabitation with habit and repute was defined by the Scottish Law Commission as follows:

"If a man and a woman who are free to marry each other cohabit as husband and wife in Scotland for a considerable time and are generally regarded as being husband and wife they are presumed to have consented to be married, even if only tacitly, and, if the presumption is not rebutted, will be held to be married by cohabitation with habit and repute ... without the need for a court decree".

In practice, a court decree of declarator is sometimes necessary before a third party will accept that the requirements for this type of marriage have been met.

It has been said that this form of marriage has little to commend it and that it has in reality been a way of conferring rights on cohabitants, particularly on the death of a partner. For that reason, the Scottish Law Commission and the Law Society of Scotland argue that we should abolish the doctrine.

The doctrine was used during world wars when people never got around to marrying but, to all intents and purposes, held themselves out as married. Other people have also relied on the provision. Times have changed and it is now socially acceptable to live in forms of relationship other than marriage. Given that we are to confer new rights on cohabiting couples, perhaps it is time to move on.

Some 57 per cent of people who were surveyed thought that people living in a common law marriage had the same rights as married couples, but that is clearly not the case. The Justice 1 Committee was keen for the Executive to make it clear to couples what type of relationship they are in and what the legal consequences are. The bill provides a good opportunity for it to do so.

Before stage 1, the Executive said that it was neutral on whether to abolish the doctrine, and sought the committee's view on whether the laws in question should be swept away. By and large, the committee was concerned only about whether any couple would be disadvantaged if the doctrine were swept away. During the stage 2 debate, the committee was advised that it would, in the case of foreign marriages, still be possible for couples to rely on the doctrine, but that later turned out not to be the case.

Other members of the committee and I were concerned that there might be disadvantage, albeit in only a few cases a year, to couples who married abroad but found out later that they were not legally married in that country; such couples would no longer be able to rely on the doctrine of marriage by cohabitation with habit and repute.

I am grateful to the Executive for the dialogue that we have had on the matter. Amendment 6 would simply retain the provision for some people. Proposed new subsection (4)(d) of section 2A states, as a condition, that

"in consequence of the purported marriage, A and B believed themselves to be married to each other and continued in that belief until B's death;

That means that we would still use the doctrine of marriage by cohabitation with habit and repute for the purposes of such marriages, on the death of one of the partners.

We should always be cautious about sweeping away a doctrine that has existed for several hundred years, even though there is consensus in the Scottish Law Commission and the Law Society that the provision is no longer required and that only a small number of people would be affected.

I hope that the Executive will support amendment 6 and I ask Parliament to do so, too.

I move amendment 6.

Stewart Stevenson (Scottish National Party, Banff and Buchan)

Like other Justice 1 Committee members, I have wrestled with the issue during our deliberations at previous stages. I concur with the view that has been expressed by the committee's convener and I will support amendment 6. To sum up the argument, when people believe that they are married and have been through a marriage ceremony elsewhere, but thereafter discover that their marriage is invalid for a technical reason, they can—if both are living—do something about it by having a civil ceremony in Scotland. However, if one partner dies there is a real disadvantage. Amendment 6 addresses that particular situation, which applies to very few people, and protects a potentially vulnerable minority.

Margaret Mitchell (Conservative, Central Scotland)

I am happy to support amendment 6. It would retain the provision in law relating to a couple who genuinely thought that they were married but who subsequently found out that that was not the case. The amendment would stop potential abuse of the status of marriage by cohabitation with habit and repute, which the Executive and the Law Society were concerned about when they first thought that it would be acceptable to do away with the provision entirely.

Hugh Henry (Labour, Paisley South)

In response to the request from the committee in its stage 1 report, the Executive reconsidered its decision to retain marriage by cohabitation with habit and repute and lodged an amendment at stage 2 for its abolition.

I appreciate that a number of committee members have expressed concern about difficulties that might face some Scottish couples who choose to marry abroad—members have heard about that in detail from Pauline McNeill. Stewart Stevenson was right to say that changes in that regard will affect few, if any, people. However, the point has been made well by Pauline McNeill. We are happy to support amendment 6, which is designed to address the particular circumstances that caused concern for the Justice 1 Committee.

Pauline McNeill (Labour, Glasgow Kelvin)

I am pleased that the Executive will accept amendment 6. It is clear that there will no longer be a doctrine of marriage by cohabitation with habit and repute other than for this saving provision for foreign marriages, in relation to which people will still have to go to court to plead their case as to why they did not know that, when then they got married in a foreign country, they would not be legally married in Scotland.

Amendment 6 agreed to.

George Reid (None, Ochil)

Group 3 is on occupancy rights: dealings with third parties. Amendment 7, in the name of Cathy Jamieson, is grouped with amendment 26.

Hugh Henry (Labour, Paisley South)

Amendment 7 will make a minor technical change to the wording of section 5 of the bill, which concerns the conveyancing of a matrimonial home and protection of the occupancy rights of a non-entitled spouse.

Section 5(3)(a) of the bill will operate on section 6(3)(e) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. It will do so by reference to the word "sale" but, in fact, there are two instances of that word in paragraph (e). By specifying that we are amending the word where it first occurs, we are removing any potential doubt as to precisely which part of the 1981 act will be being amended. The same problem arises in relation to the mirroring provision for civil partnerships, so an equivalent change to schedule 1 will be made by amendment 26.

I move amendment 7.

Amendment 7 agreed to.

George Reid (None, Ochil)

Group 4 is on divorce/dissolution of civil partnership: separation periods. Amendment 35, in the name of Brian Adam, is grouped with amendments 8, 9, 27, 28 and 54. If amendment 35 is agreed to, amendment 8 will be pre-empted and, if amendment 54 is agreed to, amendment 27 will be pre-empted.

Brian Adam (Scottish National Party, Aberdeen North)

This is one of the more controversial areas of the bill. At stage 2, I lodged an amendment that was similar to amendment 8, but I would not have lodged amendment 8 had the Executive been willing to accept the compromise position that was reached by the Justice 1 Committee. In fact, the committee only narrowly failed to support the amendment that I lodged at stage 2.

The effect of amendment 8 would be to retain two years as the amount of time of separation prior to a divorce when there is consent. The reasoning behind that is that I am not in any way convinced that it is unreasonable for a couple to seek a divorce when they have failed to cohabit for a consecutive period of two years. I accept that the current stipulation of five years in situations in which there is no consent is unreasonable.

Figures have been produced that show that, when the law on divorce has been liberalised, the number of divorces has increased. The committee was anxious not to change the law in a way that would increase or decrease the number of divorces; it wanted the law to be neutral in that regard. However, the effect of the Divorce (Scotland) Act 1976 was a 21 per cent increase in the number of divorces that took place in 1980 and a 30 per cent increase in 1982. The committee might want the law not to increase the number of divorces, but I suggest that evidence from previous liberalisation in the divorce laws shows that there is likely to be a further increase in divorce.

I also understand the argument that we should try to make the process as painless as possible and that a long period in the limbo of separation can lead to greater conflict, but I am not convinced that that is necessarily the case. After all, it can take people a long time to work through difficulties in their relationships.

I accept that we cannot make people stay together and I do not think that divorce should never happen—although that is a perfectly honourable position to take. I believe that there is a place for divorce, but we should not take steps that actively encourage it. When, at stage 2, I asked the minister how the bill's provisions would support and encourage marriage, his silence was deafening. In my view, section 10 will actively encourage more divorce.

A briefing from Couple Counselling Scotland delineates a number of the consequences that result—

Jim Wallace (Liberal Democrat, Orkney Islands)

Will the member give way?

Brian Adam (Scottish National Party, Aberdeen North)

I am more than happy to do so.

Jim Wallace (Liberal Democrat, Orkney Islands)

Figures suggest that, in Finland, where the non-cohabitation period is six months, the divorce rate is 1.8 per 1,000. However, in New Zealand, where the period is two years, the rate is 2.63 per 1,000. How can the member claim that there is a correlation between the period of co-habitation and the prevalence of divorce?

Brian Adam (Scottish National Party, Aberdeen North)

I beg to suggest that arguments that are based on the culture in Switzerland or New Zealand cannot necessarily be transferred to Scotland. Today, we are making significant changes to family law that successive Governments have shrunk away from implementing. I commend the Executive for having the courage to introduce the bill, but I simply feel that we should genuinely debate this matter—indeed, I lodged amendment 35 to allow us to air the whole range of views. I respect Mr Wallace's views; I just do not agree either with them or with his analysis. Evidence shows that, when divorce laws are liberalised, divorce rates increase. I am merely reiterating the committee's view that that should not happen.

The fact is that people's circumstances change. This morning, I heard on the radio that the Government has decided to put some more financial muscle behind organisations that seek to save marriages through reconciliation. I welcome that move.

Richard Lochhead (Scottish National Party, North East Scotland)

Does Brian Adam agree that, if children are involved in relationships that break down, it is sometimes to their benefit if their parents are allowed to move on with their lives as soon as possible?

Brian Adam (Scottish National Party, Aberdeen North)

Throughout the long debate on the bill, I kept hearing that the bill was about trying to help children, but there is very little focus on children and none of the proposals suggests that we should take different views in respect of whether children are or are not involved in such situations. I accept what my colleague Mr Lochhead said, but it does not automatically follow that a quick divorce is less painful, particularly for children.

I also understand the—I have to say, totally erroneous—argument that has sometimes been advanced against the terms of amendment 35 that, in cases of spousal abuse, waiting for two years could have dangerous consequences for the individual who is being abused. I draw members' attention to the fact that abuse is specifically in and of itself a ground for divorce. Under the Divorce (Scotland) Act 1976, where a marriage has broken down irretrievably, a divorce can be granted by the pursuer if one of five factual circumstances exists. In such cases, abuse is a ground for divorce in itself, so it would not have any influence in a situation in which there is consent.

I do not think that we will be able to get to a point at which things will be done and dusted within a year. If amendment 35 does not gather sufficient support to win the day, I shall urge colleagues to examine the bill as it has emerged from the Justice 1 Committee. The committee's position is reasonable and takes cognisance of the fact that many people are concerned about devaluation of marriage, which it is perceived might happen as a consequence of the change that is proposed by the Executive. I certainly do not want the arguments in favour of longer periods to go by default, just because there may have been stresses and strains in the Executive parties in delivering what they perceive to be a commitment.

I urge members to support amendment 35, which would leave the position as it is today. I believe that two years is a perfectly reasonable time and I do not accept that five years is reasonable. The Justice 1 Committee took the position that, for cases where consent is not given, three years is an appropriate time. I urge members to reject moves to introduce periods of one year and two years.

I move amendment 35.

Hugh Henry (Labour, Paisley South)

Section 10 has, understandably, attracted more attention and debate than any other part of the Family Law (Scotland) Bill. We recognise that divorce is always a sensitive issue and that for many people it touches on their core beliefs about the sanctity of marriage and its importance as one of the principal building blocks of society. There are others who disagree, but people have strong views on the matter.

Ministers have stated many times—I am happy to do so again—that the Executive values and supports marriage. We recognise its special status and the value that it contributes to so many families in Scotland. The Executive has not, does not and will not undermine marriage, and we certainly do not do so with the proposals that we are considering today.

However, it is equally right to say that the state cannot force people to remain married. A proportion of marriages will end in divorce for whatever reasons; in those circumstances it is important, as Richard Lochhead said, to support families so that the transition is as painless as possible, particularly where children are involved. Where the conflict is protracted and bitter, children will suffer.

I want to emphasise that relationship services are an important part of the Executive's overall effort to support stable families and to give children the best possible start in life. I believe that the best way is early intervention, through counselling to help couples to save their marriages or other committed relationships, where those marriages or relationships can be saved. I accept, however, that where separation is inevitable, mediation can help to ensure that parents work together sensibly to look after the best interests of their children. Parents should not use their children as pawns in their personal war.

I acknowledge that current services can be made to work more effectively for users. Our view is that counselling and mediation services are complementary and should be linked at national and local levels. We need integrated and cohesive services.

Phil Gallie (Conservative, South of Scotland)

I hear what the minister says about children and I accept his arguments, but does not evidence show that the great majority of children suffer when their parents are divorced, and does not he agree that it is better to give them the maximum opportunity to have their parents stay together?

Hugh Henry (Labour, Paisley South)

If people want the opportunity to stay together and to work things through in their own interests and those of their children, we want that to happen. Children suffer not so much from the process of divorce as from a wide range of factors including bitterness, fighting, arguments and distress. Many children go through a protracted period of suffering because of the agonies that have been inflicted on them by their parents. The Executive wants to try to remove that suffering. We hope that adults will behave like adults and behave responsibly, instead of seeing such situations as a surrogate war in which the children can be used to inflict harm and pain on the other individual. That is disgraceful and it happens in far too many cases.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

Will the minister take an intervention?

Hugh Henry (Labour, Paisley South)

I will move on. The member can come in later if he wishes.

We believe that people should have a range of relationship services to which to turn. The strategy on the ground for those services should be aligned with local authorities' overall goals for children and families. There should be easy access points and there should be flexibility to respond to families' changing needs. However, we need action in order to get the overall framework right, which is why we are encouraging and funding the national bodies to integrate their efforts and to build the capacity of local services to deliver more effectively. We have already made available some £500,000 this year and last year to the national family bodies, in addition to the existing grant funding of some £633,000 a year.

There is a particular challenge to develop the capacity of local family support services and to provide incentives for more joined-up working. Local services are at the sharp end—they deal with the people, with the fallout and with the breakdowns. I am pleased to announce that the Executive will provide an additional £300,000 for capacity building in local family support services in 2006-07. We will consider the details of how that investment will be made, but the key message is that more money will be available next year to fund proposals by local counselling and mediation services, acting together for capacity building, infrastructure development and joint working. I hope that that will put local services in a stronger position to contribute effectively to the wider agenda on integrated services for children and families that local authorities, with their partners, should be developing at local level.

Christine Grahame (Scottish National Party, South of Scotland)

Will the minister take an intervention?

Hugh Henry (Labour, Paisley South)

I will make one point and then let Christine Grahame in.

I acknowledge the concern that has been expressed by the Justice 1 Committee in a number of our discussions and by the national bodies and many of the local bodies, about gaps throughout Scotland. They are worried about the failure in some areas to provide adequate services.

Pauline McNeill (Labour, Glasgow Kelvin)

Will the minister take an intervention?

Hugh Henry (Labour, Paisley South)

I will finish this point and, if the Presiding Officer allows it, I will take both interventions.

I have asked the Convention of Scottish Local Authorities for a meeting to discuss that concern. The Justice 1 Committee is equally concerned—Pauline McNeill may develop that point. I am sure that it is something that the committee may consider. We need to consider the funding that the Executive has already provided under a number of headings, and we need to ask why that is not being used to deliver adequate local services. I hope that those discussions will lead to something productive.

Christine Grahame (Scottish National Party, South of Scotland)

In my many years as a family lawyer, one of the great problems was provision of contact centres, particularly in rural areas that have greatly dispersed communities, when there are disputatious arrangements for children. There is a huge difficulty in providing neutral territory at the early stages of separation and divorce where parents can have contact with their children. I ask the minister to consider that.

George Reid (None, Ochil)

We will have a separate debate on that.

Hugh Henry (Labour, Paisley South)

Christine Grahame's point is about local service delivery and local service provision. We are funding the national bodies but we recognise that there is a problem with local service delivery. There is concern about that—the Justice 1 Committee raised that issue on a number of occasions.

Pauline McNeill (Labour, Glasgow Kelvin)

I am sure that it is on behalf of the whole of the Justice 1 Committee that I record a whole-hearted welcome for the funding decision that has been announced this morning. The minister has said that the committee has argued hard for that, and it should be welcomed. Given that the debate is about divorce and relationships, will the minister say whether, as well as the support for families, some of the additional funding could be used to provide early intervention when there is evidence that a relationship can be saved if we intervene early?

Hugh Henry (Labour, Paisley South)

Exactly—we want there to be local capacity building. We acknowledge the contribution of mediation, but mediation comes at the end of the process, when people are negotiating how to part. We want to focus more attention and funding on counselling and conciliation, to help people to work through their difficulties. We will discuss with national bodies and local service providers exactly how that can be done.

Divorce is a process not an event. It does not happen overnight; it happens after relationships begin to break down and after people begin to argue, to move apart and to lose contact with each other.

Brian Adam said that things could not be "done and dusted" within a year. That is right, and our proposals do not suggest that they could. We are talking about a minimum of one year's separation before divorce can be contemplated, so there is no way that everything could be "done and dusted" within a year. Mr Adam also spoke about evidence, but he suggested that the evidence that Jim Wallace presented was not valid because the circumstances were different. I am not quite sure what Mr Adam's evidence is.

We know that many couples will have been unhappy and will have been working to resolve their relationship for a considerable time before they make the difficult and heartbreaking decision that their marriage is over and they want to separate. That decision made, the sole ground for divorce is the irretrievable breakdown of the marriage, as established by one of five facts. At present, one of the facts is separation. When there is consent, the period of separation that courts require to establish irretrievable breakdown is two years; when there is no consent, it is five years. It is important to understand that the separation periods represent the minimum time after the couple separate and before a divorce can be applied for. Even then, divorce is not granted automatically. Regardless of the length of the separation, the court must still be convinced that the marriage has irretrievably broken down. If the court considers that there is a reasonable prospect of reconciliation between the parties, it will not grant the divorce. Contrary to what may be said, divorce is never easy.

In reforming divorce laws, we have made it clear that we do not wish to change the nature of the divorce process. We want the law to continue to underline the importance of marriage. That is why couples will still have to prove to the court that their marriage has irretrievably broken down, and it is why a court will still not grant a divorce if it considers that there is a reasonable prospect of reconciliation.

Following the recommendations of the Scottish Law Commission, we looked closely at the statutory non-cohabitation period. We accepted the commission's proposals that the time periods should be reduced to one year when both parties consent and to two years when they do not. I accept that an element of judgment came into that. However, that is what politicians are elected to do—to judge what we think is best. We have based our decisions on the advice of the Scottish Law Commission and on the subsequent support of legal practitioners and academics in successive consultation exercises. We have not plucked the figures from thin air; we have consulted on divorce three times in the past five years. Parliament has also consulted.

The Executive's amendments 8 and 9 seek to return section 10 to its original form. We propose time periods that, first, were recommended by the Scottish Law Commission; secondly, have been in the public domain for more than a decade; thirdly, have been fully consulted on; and fourthly, have broad support among legal practitioners. The time periods that the Justice 1 Committee agreed at stage 2 were subject to no consultation whatever. The Parliament places great emphasis on consultation as a critical part of the legislative process. I would argue that to pick arbitrary time periods for such an important and significant issue without consultation and careful deliberation would be to do a disservice to our legislative process. I am not convinced that the alternative separation periods that were agreed at stage 2—or those that are proposed today by Brian Adam—have any foundation to support them like the foundation that supports our proposals.

Finally, I want to clarify an issue that many members may have found confusing. Our amendments 27, 28 and 54 seek to ensure that whatever decision Parliament makes on the separation periods for divorce, the same periods will apply to the dissolution of civil partnerships. We are concerned that if the arrangements for divorce do not mirror those for the dissolution of civil partnerships, the bill as a whole might not be compliant with the European convention on human rights and so might be defective. I am sure that members understand the principle that is at stake. We might not need to move amendments 27, 28 and 54, but we must have a fallback that will ensure that whatever decision Parliament makes, the bill is consistent.

George Reid (None, Ochil)

This is an important debate, which is heavily subscribed. I will try to fit everyone in, but speeches should be kept to about three minutes.

Stewart Stevenson (Scottish National Party, Banff and Buchan)

I hope that my speech will drop short of three minutes.

At the risk of pre-empting the debate on group 12, when we will talk about support services, I take an early opportunity to welcome the movement and—more important—the money that the Executive has offered. The minister obviously saw the formidable Liz Wallace from Family Mediation Grampian in the public gallery and realised that he would not escape alive if he did not take such action.

It is worth reminding ourselves that there is a consensus to reduce the length of time that it takes to divorce—not when there is agreement, of course, but when there is not agreement. No one is seriously suggesting that we should maintain the current five-year period for obtaining divorce when there is not agreement. That puts in context the debate that we are having about the relevant periods and indicates that, as a Parliament, we are seriously engaging with the subject, rather than just making knee-jerk reactions.

That said, at stage 2, I voted to keep the period of separation for divorce when there is agreement at two years. When that proposal failed, I supported a period of 18 months. One of the threads that must run through any such debate is what value we place on marriage. I have no hesitation in saying that in relationships and in building stable families, marriage is the gold standard. People who make other choices are perfectly capable of living good, useful lives and of bringing up children who will be useful members of the community, but the safest, most secure way of achieving those ends is through the bounds of marriage.

I will support only a small reduction in the length of time that it takes to divorce when there is agreement, to 18 months. In other words, I seek to maintain the position that the Justice 1 Committee adopted at stage 2. I will do so because I value marriage. That does not mean that all members Parliament will necessarily share my view. I think that the minister concedes that although the proposed periods of two years and one year were widely consulted on—I acknowledge that—and no other periods were consulted on, what periods are chosen is a matter of judgment. It will be impossible to prove, evidentially, that any particular figure has any particular outcome. Bluntly, we ain't gonna be able to do that.

I, as an individual, will support the proposal to which the committee eventually agreed at stage 2, but I am sure that colleagues will have other views.

Margaret Mitchell (Conservative, Central Scotland)

I am tremendously sympathetic towards, and agree totally with the sentiment behind, amendment 35, but from the evidence that has been taken at stage 1 and stage 2, I am convinced that the two-year period is slightly too long. However, I have grave concerns about the Executive's proposal. From the beginning of our consideration of the bill, there seems to have been an acceptance that as soon as a couple separates and files for divorce, it is inevitable that the divorce will go through, but all members probably know of situations in which although a couple has separated and divorced, the same people have gone on to remarry.

Stewart Maxwell (Scottish National Party, West of Scotland)

rose—

Margaret Mitchell (Conservative, Central Scotland)

I want to move on a little.

The huge problem with debating amendment 35 is that no empirical evidence has been produced, which means that we must consider such situations when we decide whether to support an increase in the timescales. From the beginning, there has been an emphasis on mediation as opposed to reconciliation and counselling to save the marriage. I believe that when the minister continues to talk about couples being intent on divorcing, he is making the same mistake.

I applaud the fact that resources will be put into local services for early intervention to try to solve any problems as they arise. However, I plead with the minister not to take away the opportunity for a husband and wife to have a one-year period, which can be considered as the bereavement process, during which time they go through a full year of changed circumstances, and, at the end of that time, an additional six months in which to decide whether they are absolutely sure that there is no prospect of reconciliation.

There seems to be an assumption that when people divorce, it will always be acrimonious. It will not. There will be myriad complex and varied reasons why relationships break down. The 18 months and the three years would ensure that the marriage is given every possible chance to survive.

The evidence of the Faculty of Advocates was that when one of the parties is still hoping for or seeking reconciliation, the two-year period is not long enough. Therefore, it is only sensible to give the extra year that the three-year period would give.

Today the Scottish Parliament will send out an important and powerful message about how we value the institution of marriage. The one-year and two-year periods have been referred to as "quickie divorces". That sends out the wrong message. It undermines the very important institution of marriage and I earnestly urge colleagues from all parts of the chamber to vote honestly with their consciences and not just to follow blindly any party-political line.

Pauline McNeill (Labour, Glasgow Kelvin)

This is a very personal debate for us all. Despite the press making it the most controversial issue, I am sure that we will continue to have a mature and responsible debate.

If I thought that my decision to support a reduction in the time limits for divorce would result in more divorces, I would not support it; I would support keeping the existing law. I do not believe that short time periods on no-fault grounds will lead to more divorces. I am a Christian and a Roman Catholic and I am also a legislator, so I have thought seriously about what the country needs.

What periods of separation should parties who are married have observed before the court will grant a dissolution of a civil partnership or a divorce? Jim Wallace has already demonstrated that there are no statistics to back up the assertion that a longer separation makes any difference to divorce.

Families of all shapes and sizes, whether there is a marriage or otherwise, go through difficult periods, so the only proviso that I make—and I welcome the Executive's commitment on this—is that professional support should be available, which is why the funding package is so important. It is much more important to try to save relationships at an early stage than to try to save them at the end, when most of the couples have gone through difficult and acrimonious times.

There are not even that many statistics to back up the Executive's assertion that longer time periods lead to more difficulties for children. Our gut instinct is that they probably do, but the committee really struggled with that point.

Through the years, couples have manipulated the grounds for divorce to get quicker divorces. The headline for today's debate should not say that the Executive supports quickie divorces. In certain cases, divorces might be quicker if Parliament passes the bill, but, certainly in my view, the bill will not lead to more divorces. There are other grounds for divorce, such as adultery, unreasonable behaviour, desertion and so on, which already get a couple into court quickly. Members must know that couples can get into court in a matter of months and couples have colluded on that; they might not know that the bill will remove the bar to collusion for adultery. Previously, it was against the law to collaborate with one's partner to get a quickie divorce on the ground of adultery. By passing the bill, we will remove that bar—and rightly so.

The five-year period when one party wants to get divorced and the other does not is a bit too long for contemplation. I do not believe that it is right to hold someone to a marriage for that long who does not want to be in it. I did not support Margaret Mitchell's amendment at stage 2 because I felt that three years is also a long time.

I had concerns about the shorter period of a year for couples who consent to divorce, but given the Executive's commitment on funding for family mediation and reconciliation services, I am much happier.

We know that divorce is an emotive issue, although I am sure that members will make the right decision at the end of the day. We all know of difficult cases and we know of all the different reasons why people get divorced, but we should not make the mistake of thinking that the law can force couples to remain together.

Mary Mulligan (Labour, Linlithgow)

As members have said, divorce is a sensitive issue, and many of us will have had painful experience of family and friends going through it. Today, we need to think about divorce and give it the same careful consideration that the committee has given it. I have every confidence that the Parliament will do that.

Let us be clear: we are talking about no-fault divorce. That does not include adultery or unreasonable behaviour, including domestic abuse. Why are we trying to reduce the time period? The reason most commonly given is that it will reduce acrimony, and Mr Lochhead said that it would also reduce the acrimony for the children who get caught up in their parents' divorce. Many of us would instinctively recognise that as a problem; however, there is no proof that reducing the time period lessens the acrimony of divorce. In considering the bill, our experience was that warring couples who are determined to end their marriage acrimoniously will continue on that path regardless of the timescale for the divorce. There is no evidence to support the claims made for shortening the time period, which was one of the problems that we faced.

Where is the support for reducing the time period? The minister made something of the consultations that have taken place over a substantial period. However, of the 190 individuals and organisations that responded to the Executive's most recent consultation, 74 per cent were against reducing the time period and only 26 per cent were in favour. I accept that those figures break down into individual and professional responses, but the Parliament should take them into consideration nevertheless. I have been considering the bill for the past few months, yet it was not until last Thursday that I got an e-mail from someone who suggested that I should support the Executive's position.

What do the amendments that the committee agreed to at stage 2 say? They say that, where there is agreement, the two-year limit should be reduced to 18 months and that, where there is no agreement, the five-year limit should be reduced to three years. The committee accepts the need to move on. There is no great difference between its position and the Executive's; the committee is perhaps a little more cautious.

The Executive has always said—and, as Pauline McNeill said, the committee has agreed—that the bill should be neutral on the number of divorces. However, experience has shown that liberalisation has led to more divorces. I heard the figures that Jim Wallace quoted this morning, but we would have to dig deeper to find out the points from which those countries started to get the full picture.

I welcome the minister's announcement that £300,000 will be given to family support services. It will be a boost, and we will discuss it in more detail later. I hope that it will cover issues such as pre-marriage advice, reconciliation services, mediation and family contact centres. The Executive and the Parliament say that they value families, but we must demonstrate that we value them by supporting them.

The findings of the consultation were far from overwhelming and there is not much difference between the Executive's position and the committee's position. I accept that the Executive perceives that there is a desire to reduce the time limits, but the data to support that are sparse. I ask the Executive to be a little more cautious in its approach to divorce and to recognise the damage that its extension might cause.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

The debates at stages 1 and 2 and, so far, at stage 3 have been conducted with a great deal of sensitivity by all those who have taken part. We hold different views on the topic but those views are not a matter of party politics. My view has always been that the people of Scotland do not expect us to vote on such issues on party lines. Our decisions are entirely a matter of judgment.

I disagree strongly with the minister's suggestion that there is relevance in the fact that there has not been a consultation on the proposed reduction. As Mary Mulligan pointed out, the overwhelming majority of people who took the trouble to respond to the consultation and express their views were opposed to a reduction in the period of non-cohabitation that is required to found the irretrievable breakdown of marriage.

John Swinburne (SSCUP, Central Scotland)

Will the member take an intervention?

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I am sorry. I have very little time.

I am no expert, but my experience as a family lawyer for a couple of decades is that, when someone comes to seek advice about a divorce, they face a momentous decision, which is not taken without a great deal of thought and pain. It involves a difficult discussion about private and deeply personal matters. It takes a long time for most people to undergo that process. To me, the idea that there is a host of people who desperately want a divorce after the first month but are frustrated by the law is wrong.

As I said at stage 1, I accept that five years is probably too long. Some people are probably waiting after two or three years, having gone through the torment and turmoil of the process, so the committee's compromise of three years is a good one. Some regard should be had to the fact that a committee of the Parliament has examined the issues in much more detail than we have. I am not saying that its view should be binding, but it should be persuasive to those who are thinking carefully about which way to vote.

I fundamentally disagree with the suggestion that changing the law can remove acrimony. For what it is worth, my experience is that there is a tendency for some litigants—often male litigants, I have to say—to use the grounds of adultery and unreasonable behaviour to create an embarrassment. They use it as a lever or as a weapon to try to get a better financial deal. That is wholly wrong, but if the minister really wanted to remove that possibility he would have removed the grounds of adultery and unreasonable behaviour so that they could not be used as a weapon. He has not done that, so he cannot argue that acrimony will be removed. To argue that the law on the page will remove acrimony from such situations is a misconception of the role of law.

I have never argued that if divorce is made easier and quicker, that will fundamentally undermine the institution of marriage. To argue that would be to overstate the position. However, if we change the law to allow divorce after as short a time as one year, we will be chipping away at the foundation columns of marriage, which is the bedrock and foundation of society and which offers the best possible chance for the upbringing of children. The majority opinion in the Parliament may be in favour of the shorter periods, but I do not think that there is such a majority in the nation that we represent.

Jim Wallace (Liberal Democrat, Orkney Islands)

I echo Fergus Ewing's views on the sensitivity with which the debate is being carried out. I certainly respect the views of members who propose different time periods, which I know are sincerely held. However, I disagree with Fergus Ewing and Margaret Mitchell in that I do not agree that the proposal in some way undermines marriage.

People do not just wake up one morning and say, "We're going to separate." Separation comes after a period, after which it is proposed that a year must elapse before parties who agree can start a divorce action in court. The welcome additional support that the minister announced for agencies that are engaged in counselling and reconciliation underlines a commitment to marriage. The briefings that we have had from Couple Counselling Scotland and Scottish Marriage Care show that when efforts are made to reconcile—the process is not easy—the success rate can be very high. Early intervention is important, as is the opportunity that the debate and the bill offer to flag up the availability of those services. I hope that the additional money will make them available in parts of Scotland in which they have not necessarily been provided.

I quoted figures to Brian Adam that, like other figures, show that there is no correlation between the length of the separation before divorce and the divorce rate. That is not scientific but, as Hugh Henry said, the periods in amendments 8 and 9 in Cathy Jamieson's name—which were in the bill originally—are based on recommendations in a Scottish Law Commission report from as long ago as 1989 and on several white papers that were published before and after devolution. Amendment 8 specifies one year of separation before divorce proceedings with consent can start. Hugh Henry was right to say that, under the Divorce (Scotland) Act 1976, a court will still have to be satisfied that there is no prospect of a reconciliation between the parties before it grants divorce.

As a practising advocate many years ago, I dealt with divorce cases when proceedings were held in the Court of Session. I know that divorce on whatever ground is a serious matter for people and is not something that they enter into lightly. People take no particular relish in ending a marriage. Many tragic stories and sadness lay behind the cases that I dealt with.

If the separation period were longer, people might use another ground of divorce, such as unreasonable behaviour, to try to obtain a so-called quickie divorce. We want to avoid that situation. It is right and proper for the unreasonable behaviour ground of divorce to be available for serious domestic abuse. However, showing unreasonable behaviour has often meant that a small incident is blown out of proportion to be used as a lever. Children can be drawn into such situations and used as pawns. Even if they are not, they have to live through the acrimony that develops between the divorcing spouses. By reducing the periods as proposed in Cathy Jamieson's amendments, we can help to remove some of that acrimony. We will never eliminate it, but we can mitigate it. That is why I strongly support the amendments that Hugh Henry proposed.

Murdo Fraser (Conservative, Mid Scotland and Fife)

I will oppose Executive amendments 8 and 9. The starting point for the debate and for all of us is that marriage is good for society—all the objective evidence points in that direction. As a Parliament, we should be clear and unapologetic about that in the face of political correctness. As a responsible Parliament, we should be nervous of taking any measures that might weaken or undermine marriage, even if to do so is not the bill's intention.

I have listened to the arguments on both sides and I simply do not know whether the measures, if passed, would undermine marriage and make divorce rates rise or fall. There is not enough evidence on either side to support either contention. However, we know that many couples change their minds about divorce during the process. I fear that the Executive's proposed reductions in separation periods go too far and so should be opposed. An important principle in a liberal democracy is that, before we change the law, a persuasive case should be made and compelling reasons should be given for the change. I do not think that the reasons for the proposed changes are compelling or that the evidence supports them.

I listened with interest to Brian Adam and I have much sympathy for his position, but it is fair to say that he takes an absolutist view—he believes that the current position should not be changed. Similarly, the Executive takes an absolutist view in the opposite direction—it believes that we should go right down to a one-year separation period with consent.

If there is a lack of clear evidence, it is entirely wrong to take an absolutist view in either direction. There is a case for reducing the periods, but not for reducing them by as much as the Executive proposes. If there is a lack of available evidence, it is surely sensible and responsible not to take an absolutist position; rather, a sensible middle road should be taken, which is what the bill currently takes.

We should remember that the Justice 1 Committee properly and thoroughly discussed the matters that we are considering. That committee reached the view that there is insufficient social research to support the reduction in periods to one and two years respectively, but the Executive is seeking to overturn that committee's decision. Not for the first time, we must ask what the point is of having a committee system in the Parliament. A strong committee system was supposed to be one of the Parliament's jewels. It was supposed to allow parties to consider difficult issues and the evidence on a cross-party basis. However, again an attempt is being made to ride roughshod over a committee's opinions. I cannot believe that doing so is in the Parliament's best interests.

I have one more point to make. It is a long-standing convention in Parliaments that Governments do not whip on matters of conscience. The Conservatives will have a free vote today and I think that the Scottish nationalists will have a free vote. We should allow people to make their own judgments on matters of conscience. If it is true that the Executive is whipping on the matter that we are discussing—and I believe that it is true—that is deeply regrettable and will do the reputation of the Parliament no good at all. I did not campaign to have a Scottish Parliament; indeed, I campaigned against it. I accept that I lost that argument, but I cannot believe that those who campaigned to have a Scottish Parliament would have wanted to see a day on which the Executive is prepared to whip members on an issue of conscience that is important to people throughout the country. If members vote according to their conscience and against the amendments, the Parliament's stature will be enhanced in the eyes of the Scottish people.

Patrick Harvie (Green, Glasgow)

All of us can welcome what Hugh Henry said about increasing the resources that are available to support services—we all see the value of doing so. However, getting the resources right is one thing; overcoming the cultural barriers and attitudes in society that prevent people from taking up those services is another thing. We must get things right and ensure that the quality of all the services in question is first class. We must all sign up to that agenda because the earlier that people access those services—whether because they want to stay together and reduce their problems in doing so, or because they have decided that they want to separate but recognise that maintaining a parental relationship is in the best interests of the children—the better.

However, there is a fundamental disagreement that is perhaps not being fully articulated. One position is that marriage is simply better than anything else. Perhaps Stewart Stevenson came closest to that position when he said:

"marriage is the gold standard."

The position is that marriage is a sacred act between man and woman and that civil, state arrangements should fall in line behind that. I fundamentally disagree with that standpoint. However, the policy position of those who support it should be the same as that of the Executive and the one that I will support when we press our buttons. People should be given the support that they need to make their relationships work when they are working. We should not say that we will increase the value of marriage, civil partnerships or of any other relationships by locking people into relationships when they have gone wrong.

Margaret Mitchell (Conservative, Central Scotland)

Will the member take an intervention?

Patrick Harvie (Green, Glasgow)

I am sorry, but all members have a short time to speak.

We should say that we will increase the value of those relationships in society by giving people time off work to spend with their kids and by giving them good homes to live in and good schools to go to. We should achieve that objective by getting our other jobs right in the chamber, rather than by locking people into relationships for a little bit longer when their marriage has failed and they have separated and decided to divorce. That seems to me to be utterly wrong. If members want to increase the value of commitment, love and relationships in our society, we should recognise that those come in many shapes and forms and we should support them on their own terms, rather than locking people into legal arrangements once their relationships have broken down.

The Greens are free to vote with their consciences on every vote; we do not have a disciplinary whip. However, I am happy to say that we will all support the Executive's position, because we believe in it.

George Reid (None, Ochil)

I said that this is an important debate, and I want the issue to be thoroughly debated. I therefore propose to use my discretion, under rule 9.8.4A(c) of standing orders, to extend the debate until 10.45. That should just about get everyone in.

Margaret Jamieson (Labour, Kilmarnock and Loudoun)

I fully support amendments 8 and 9, in the name of Cathy Jamieson. I am concerned that the debate appears to be turning into a discussion of whether we value marriage and whether the bill undermines marriage. To my mind, we are required to ensure that the legislation exists to move the process on when a marriage is over.

No one enters into a marriage with the thought that it will end in divorce. I ask members who have not decided how they will vote to consider the impact of further delay on people who have decided that their marriage is over. I ask members also to consider that it is not always children aged under 16 who are involved; young adults are sometimes more affected than children are when their parents make the monumental decision to divorce. A young adult's education can be severely affected, as can their ability to deal with everyday issues and their own relationships.

I ask members to consider all those issues. I have certainly done so, and I have a wee bit of experience. My daughter was 17 when her father and I decided that divorce was our only option, after 25 years of marriage. Divorce is not an issue that any individual takes lightly. I ask members to consider not just their religious beliefs but the impact that our decision will have on society. We have an opportunity to help our children and young people to establish themselves in stable, new relationships or in relationships of their own. It would be remiss of us to pass up that opportunity by asking people who have already decided to divorce to stay together or to delay the final process that would allow everyone—not just the two people who make the decision, but everyone in their family, including their extended family—to move on in their lives.

Kenny MacAskill (Scottish National Party, Lothians)

I speak as an individual, not as an SNP front-bench spokesman, as this is a matter on which the party is not whipped. I do not agree with my colleagues who have spoken before me; I concur with the views of the minister and—as we are talking about legal issues—I adopt the points that were made by Jim Wallace.

Divorce is always a tragedy. Even if it is justified on moral or legal grounds, it is a tragedy for the individuals concerned, as there will always have been something that made them enter into a relationship. It also has a significant effect on others, especially dependent children and, as Margaret Jamieson has said, non-dependent children in due course. We must try to enable people to separate and go onwards, bearing in mind the good things that brought them into the relationship but allowing matters to proceed with as little acrimony as possible.

In an ideal world, we would make it harder to enter into marriage, rather than harder to get out, but we do not live in that society. We need to counsel people and provide not just mediation but aspects of reconciliation. Like others, I welcome the minister's earlier pronouncements. As Jim Wallace mentioned, this is a cultural matter, which is why there are differences between societies—it is not so much the legislation as the counselling that is important. We need to get across to the people of Scotland that marriage is a significant and serious matter that should not be entered into lightly or discarded on a whim or a fancy—not that I believe that people do that. However, there is a growing perception that marriage is only a minor impediment that people can get out of. Obligations and responsibilities go with marriage, but if it breaks down for whatever reason, our society will not be served well by a law that seeks to impose unnecessary impediments.

It would take the wisdom of Solomon to work out whether the separation period should be 12 months, 18 months or two years. It is difficult to find any tangible evidence for those periods. However, I concur with the minister because the matter has been considered by the Scottish Law Commission, which has not made its recommendation on a whim or a fancy. It has given significant consideration to the matter by looking to those people on the front line who are regularly involved with divorce and separation, such as the judiciary, the shrieval bench and the Law Society of Scotland.

It might be that in due course we will seek to change the separation period again. At present, however, we need to bring our legislative process into the 21st century, we need to make changes, and we should have some trust in the Law Commission. We are not making it more difficult to get out of marriage, but we should simply remind the people of Scotland that marriage is to be valued—whether as a gold standard or whatever else—that it carries with it obligations and responsibilities and that the law is made to recognise that and to mediate.

Mike Pringle (Liberal Democrat, Edinburgh South)

When I got married 35 years ago, it was accepted that everybody got married. Luckily, I have a happy relationship and I am still married. However, society has changed and we have to change with it.

Murdo Fraser talked about whether the vote on this group was a whipping or a conscience issue. If we were discussing divorce alone, it would be a conscience issue and I would probably vote differently from some other people. Divorce is the conscience issue and not whether the separation period should be a year, 18 months or two years. As Kenny MacAskill mentioned, members of the Scottish Law Commission—better people than I—have looked at the length of the separation period. The Executive eventually said that setting the period at between one and two years was the right way forward. It is unfortunate that I was not present for the relevant part of the stage 2 debate; if I had been, I would have asked what the difference is between one year and 18 months. I think that somebody has climbed on the bandwagon and decided to change the period for the sake of change.

As Fergus Ewing said, when he was a solicitor people did not come to him 10 minutes after they had separated; it took them months. When representatives of Couple Counselling Scotland came to give evidence, they said that people speak to them and decide to get divorced only after many months in some cases and years in others. Therefore, once people have come to the decision to divorce, which they do not take lightly, surely we should be able to say to them, "Okay, if you've made the decision, we should now make the separation period easier." I think that one year is the right length. People have jumped on a bandwagon of change for the sake of change, but extending the period to 18 months would be arbitrary. I support the Executive's aim to reduce the period from two years to one year because that is the right thing to do.

George Reid (None, Ochil)

If John Swinburne can restrict his comments to two minutes, there will also be two minutes for Maureen Macmillan.

John Swinburne (SSCUP, Central Scotland)

It will not take me two minutes to put across my thoughts. I believe in the sanctity of marriage and am glad to say that I have been married for 52 happy years. Margaret Jamieson touched on the most important topic in today's discussion—the children. We are great at publishing consultations, but how do children reply to a consultation? Kenny MacAskill spoke about the wisdom of Solomon. It will take more than the wisdom of Solomon to get the correct answer on this issue. The question is whether children are damaged more by a short divorce or by a long divorce. In this case, I am inclined to come down in favour of the Executive.

Maureen Macmillan (Labour, Highlands and Islands)

I cannot quite match John Swinburne's record in marriage, but I have been married for 40 years. A good marriage and a happy family life are above price. I have been very fortunate, but some women have not been as fortunate as I have been. In last week's debate on domestic violence, Malcolm Chisholm spoke about having met a woman who had suffered the violence of an abusive husband for 40 years, which is almost unimaginable suffering.

What options for divorce are open to a woman who has been bullied and humiliated for the whole of her married life, has left her husband and is afraid of facing him again? I want to talk not about divorce with consent, but about divorce where there is no consent. There is not a church in this country that would not agree that divorce is acceptable to ensure the safety of one partner in a marriage. If a woman's husband says that he will contest the divorce in order to seek to continue to control her, she may be afraid to petition for divorce on the ground of unreasonable behaviour, in case she has to face him in court—just as a rape victim would fear her rapist. We should remember that the vulnerable witness legislation does not apply to civil cases.

A woman may be unwilling, for the sake of her wider family, to make public what went on in the marriage. That is one reason why I do not support the amendment that was agreed to at stage 2 and that proposes a separation period of three years, rather than two, for a contested divorce. I want abused women whose husbands will not let them go to be able to divorce in the least traumatic way possible. Three years is too long to wait to be free of such a relationship.

There is also a financial consideration that no member has mentioned. Women who are entitled to a proportion of their husband's pension have their share frozen when the separation takes place, but the husband's share continues to increase in value, so that the longer the divorce takes to be finalised, the greater is the financial imbalance between the wife's and the husband's shares.

I have set out two reasons why I support amendment 9, which would restore the original provision for a two-year separation period in cases of contested divorce, rather than a three-year period. As a corollary to that, uncontested divorces must be allowed to take place a year after separation. Very few couples reconcile after separation—by then, it is too late. Conciliation needs to take place before separation. I was very pleased to hear the Executive's announcement today of support for conciliation services within marriage and other relationships. Back benchers have been pressing the minister on the issue for a while and I am glad that he has come through.

George Reid (None, Ochil)

We can just squeeze in two minutes of Christine Grahame, if it is only two minutes.

Christine Grahame (Scottish National Party, South of Scotland)

You make that sound terribly exciting, Presiding Officer.

As I have said before, I practised as a family lawyer for 12 years. In my unfortunate experience, only one couple reconciled. The duty of a solicitor is to reconcile—it is not to rubber-stamp divorces. Divorces are always painful, personal and individual. However, the reality of life is that, when one party has decided that a marriage is at an end, it is at an end. I welcome the Executive's amendments, which I will support.

It is proposed that there should be a minimum separation period of one year in cases of uncontested divorce, but consent can be withdrawn at any time. If that happens, people will have to wait two years to divorce. There are also fault divorces. The problem has been with the five-year separation period that is currently required in cases of contested divorce. Over all my years as a family lawyer, my experience was that, the longer a divorce took, the more bitter disputes over children and property became and the messier the situation became. One partner may have moved on to a new partner and may have another family.

Margaret Mitchell mentioned the Faculty of Advocates, but these days it handles very few divorces. It handles only those divorces that involve complex, perhaps international, law, severe difficulties with children or vast numbers of complex property rights. It does not really deal with—I hate to call them this—the run-of-the-mill divorces that many of us have been through. Like Margaret Mitchell, I divorced after 25 years of marriage. [Interruption.] I am sorry—I meant to say Margaret Jamieson. I assure members that divorce was not a step taken lightly, either in my experience or in that of the clients who came over my doorstep.

I welcome the position that has been adopted. I would add that no sheriff will grant a divorce of consent if they are not satisfied as to the welfare of the children. That is an important point to remember.

Hugh Henry (Labour, Paisley South)

Murdo Fraser spoke about the primacy of committee decisions on this matter. Could that be a member of the same Conservative group that regularly votes against committee decisions when they come back to the chamber? He suggested that we should take the decision that was made at stage 2 as being the line that should be held and said that it would not do anything for the reputation of the Parliament if we ignored that. If we followed that argument to its logical conclusion, we would not bother with any votes at stage 3 at all. This is about Parliament coming to an informed decision and, on the basis of the discussion that we have had today, I believe that the decision that we will take will be an informed one. We have had a very good, measured debate from all sides.

I recognise the difficulties that many members face when contemplating the issue. John Swinburne made a valid point about how we can hear the views of children on this subject. That might be one of the matters that Scotland's commissioner for children and young people should consider when establishing what children think on a range of issues. Divorce, in common with all aspects of family law, is a sensitive issue. I recognise the range of views that exist. I emphasise yet again that our reform of family law is not intended to devalue the importance of marriage; it intends to reflect the changing shape of our society and to protect the interests of children.

I come from a tradition in which divorce is not recognised. When I grew up, I did not know anyone who had divorced and there was no one to whom I was related who was divorced. It was just not something that featured in our lives. Today, it is entirely different. The question for us, as legislators, is this: do we legislate for what we believe in, personally, individually or religiously, or do we legislate for Scotland as we find it? Do we legislate in the best interests of people, irrespective of what we individually think about the decisions that they choose to make in whatever way, shape or form? That is what we as legislators need the courage to do to reflect the best interests of Scotland and the rights of people, wherever they are in Scotland and whatever they believe. I believe that it is also right to put children at the centre of our reform. We are confident that our approach strikes the right balance.

We want relationships to work and we recognise the special place that marriage holds for so many people in our society. That is why we will increase our support to those who help to resolve problems in relationships. I say this to those who believe so strongly in the value of marriage: if someone has decided that there is no longer any point in making a relationship work, if that person then meets someone else and wants to move on to a new relationship, and if that person believes fundamentally in the value of marriage, are we seriously saying that we will prevent them from marrying again and that we will force them to continue living with the same person? That would seem to fly in the face of everything that people argue if they believe in marriage. We should let people move on and live their lives to the fullest. Let us put some of the problems of the past behind us.

If two people are intent on divorcing, we believe that it is necessary for that to happen with the minimum possible bitterness and acrimony. Far be it from me to agree with Fergus Ewing on anything, but if I gave the impression that we believed that our proposals would remove acrimony, I apologise—they will not. They are about trying to reduce it and minimise it. We want that parting of the ways to take into account the best interests of the children, not the personal anger and animosity of the adults. Our proposals are based on long-held values that reflect the central role of children in family life. The amendments are based on the principle that is central to everything that we stand for as a country and as a society: the best interests of children.

George Reid (None, Ochil)

The final speech is from Brian Adam. You have until 10.45 exactly, Mr Adam.

Brian Adam (Scottish National Party, Aberdeen North)

We do not have any proposals before us to abolish divorce or to extend the period of time following separation prior to divorce. Various speakers, such as Patrick Harvie, suggested that the proposals would lock people in for longer, but there are no such proposals.

Others—I cannot remember who—suggested that there would be further delay but, again, there are no such proposals before us today.

There is a recognition that society has moved on since 1976. Sadly, we are having the debate against a background of little evidence, whether from Jim Wallace or from me, about the implications for the number of divorces. There is no evidence about whether the changes to separation periods will reduce—or otherwise affect—acrimony or about the impact on children. Sadly, that is the background that we have before us.

The Scottish Law Commission might well have come up with a set of proposals. Westminster has ignored the issue, although it was sitting waiting to be acted on. It has taken the Executive almost seven years to get to this point. I do not criticise the Executive for that, because the issue is contentious. I accept that there are a range of views, which are not necessarily as well informed as many of us would like, given the lack of evidence. It comes down to a judgment call.

On one side are those who parade the evidence of the Scottish Law Commission and the practitioners, but the great majority of those who took part in the most recent consultation did not agree with the commission's proposals.

It was suggested at some point—perhaps by Mr Wallace, who I think did the same at stage 2—that there could be an increase in the number of applications for divorce on the ground of unreasonable behaviour, but there is no evidence for that. If there were lots of concerns about a five-year separation period where there is no consent and a two-year separation period where there is consent being too long, surely there would have been a great increase in the number of applications for divorce on the ground of unreasonable behaviour or on the other grounds. There is no evidence for such an increase.

Although we have had a challenging and, at times, heated debate about that, there is not the groundswell of support from the public for the proposed changes on the basis of the actions that they are taking, which the proposers of the change to two years without consent and one year with consent would have us believe.

I do not take an absolutist position, as Mr Fraser suggested that I do. I am willing to change and recognise that five years is too long. An absolutist position would be to oppose divorce, which I do not. I believe that the choice is up to us all as individuals. Regardless of whether this is a conscience issue, there are a range of views in all our parties, with the possible exception of the Greens, who have said that they have all arrived at the same conclusion independently. It would have enhanced the debate if we had reflected those views by having a free vote on the issue. I do not think that whether the issue is one of conscience is particularly important.

I thank the Executive for lodging amendments 27, 28 and 54, which I failed to lodge. I commend amendments 35, 27, 28 and 54 and urge members to vote against amendments 8 and 9.

George Reid (None, Ochil)

The question is, that amendment 35 be agreed to. Are we agreed?

George Reid (None, Ochil)

There will be a division. As this is the first division of the day, there will be a five-minute suspension before we vote.

George Reid (None, Ochil)

We will now proceed with the division.

George Reid (None, Ochil)

The result of the division is: For 13, Against 111, Abstentions 1.

Amendment 35 disagreed to.

[Amendment 8 moved—[Hugh Henry].]

George Reid (None, Ochil)

The question is, that amendment 8 be agreed to. Are we agreed?

George Reid (None, Ochil)

There will be a division.

George Reid (None, Ochil)

The result of the division is: For 91, Against 34, Abstentions 0.

Amendment 8 agreed to.

[Amendment 9 moved—[Hugh Henry].]

George Reid (None, Ochil)

The question is, that amendment 9 be agreed to. Are we agreed?

George Reid (None, Ochil)

There will be a division.

George Reid (None, Ochil)

The result of the division is: For 93, Against 31, Abstentions 1.

Amendment 9 agreed to.

George Reid (None, Ochil)

Trish Marwick will now chair group 5. [ Laughter. ] Surprise, surprise—Trish Godman will chair group 5.

Trish Godman (Labour, West Renfrewshire)

That was a Freudian slip.

Trish Godman (Labour, West Renfrewshire)

Group 5 concerns the postponement of a decree of divorce where a religious impediment to remarry exists. Amendment 36, in the name of Stewart Stevenson, is grouped with amendments 37, 38 and 10.

Stewart Stevenson (Scottish National Party, Banff and Buchan)

I hope that the minister will address the substance of amendment 36, which is a relatively technical, probing amendment. It seeks to remove the need to introduce additional secondary legislation describing the religions that might be affected by these provisions by using the list that has already been produced in secondary legislation made under the Marriage (Scotland) Act 1977. I understand that there may be some difficulties with my amendment on ECHR grounds, but it would be useful to confirm why it is necessary to have additional secondary legislation to cover the provisions of section 13A. That is what amendment 36 and consequential amendments 37 and 38 are about.

I will refer briefly to Mike Rumbles's proposal to delete section 13A entirely, but I will retain my main remarks for my closing comments at the end of the debate on this group, because I know that other members will develop lines of argument as to why section 13A is important. It is a matter that considerably taxed the committee. It is difficult and sensitive, and I hope that in our discussion now we will treat the matter with the appropriate care and attention.

I think that the argument against section 13A is misplaced and stems from a misunderstanding based on a secularist view that we are somehow interfering in religious matters. On the contrary, we are supporting people who are in religious marriages, and that is the important thing to bear in mind. Section 13A is in the bill to address inequality issues that exist in some circumstances and to protect the rights of women in some circumstances where the existence of a religious marriage can give the man some power to frustrate the decisions of the civil court in relation to a divorce. Other members will develop the point and I will return to the issue when I sum up on the group.

I move amendment 36.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

Section 13A was inserted into the bill at stage 2. It is there at the specific request of the Jewish community. It allows the court to postpone the grant of a divorce until it is satisfied that the religious divorce has been sorted out.

The committee took evidence on the matter for the stage 1 report, which was debated and approved earlier this year. The committee's conclusion, highlighted in bold in paragraph 70 of its report, was:

"The Committee also wishes to state that there are strong arguments that, as a matter of principle, the law should not conflate civil and religious divorces."

Hang on a minute. What happened in committee at stage 2? Suddenly there is a whole new section—section 13A—which does just that. The bill that the Executive introduced now includes section 13A, which gives the court the power, if it thinks it reasonable and just to do so, to block a civil divorce by postponement, with no time limit, until the religious divorce is sorted.

In my view, that is wrong. For all the best reasons, the advocates of section 13A have introduced it to tackle injustices within the Jewish community. I do not criticise Stewart Stevenson or Ken Macintosh, or anyone else who supports section 13A. Their motives, I believe, are absolutely honourable. What is not recognised, however, is the danger inherent in section 13A of conflating church and state in divorce proceedings. It is a danger that the committee warned us about in its stage 1 report. What is that danger? It is simple enough. Once we start legislating in civil law to accommodate the religious beliefs or practices of one faith community, how long will it be before other faith groups ask us to legislate for them? If we do not restore the Executive's original position, I believe that we run the real danger of opening up a Pandora's box.

Pauline McNeill (Labour, Glasgow Kelvin)

I should say a word about why the committee changed its view. I am sure that Ken Macintosh will speak at length on the matter, but the Jewish community apologised to the committee because it did not make it clear in its evidence for our stage 1 report what the specific problem was and how it could be fixed. What Mike Rumbles is saying is absolutely right and he should not think for a minute that members who voted for section 13A took that decision lightly. I voted for it because I believed—

Trish Godman (Labour, West Renfrewshire)

Ms McNeill, is this an intervention or a speech?

Pauline McNeill (Labour, Glasgow Kelvin)

I believed that there was no other way to resolve the problem, and we did not feel that section 13A was as dangerous as Mike Rumbles suggests. I just thought that I should clear that up.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

In fact, the Jewish community suggested other ways of resolving the problem, but we can perhaps talk about that another time. There are good reasons why we should always separate church and state in our laws.

Jim Wallace (Liberal Democrat, Orkney Islands)

Will Mr Rumbles give way?

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

I have just given way. I want to make progress.

To argue that that separation does not matter in this case, or indeed to argue that we already conflate civil and religious marriage, is to miss the point entirely. In marriage, the law allows recognised ministers of religion to act for the state. That is entirely different from allowing an individual in the civil court to ask for a postponement of their divorce on religious grounds. The issue is clear-cut. Heaven knows why, without taking further evidence—

Stewart Stevenson (Scottish National Party, Banff and Buchan)

Will the member take an intervention?

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

Mr Stevenson has already had two bites at the cherry.

The majority of Justice 1 Committee members changed their minds about what they said in the stage 1 report and agreed the amendment at stage 2. As Marlyn Glen, a member of the committee, said at the stage 2 meeting:

"At the time, the committee decided that it was a mistake to conflate the two laws and that it would be much better to leave them apart. ... The committee talks about evidence a lot and about why we should not move forward without it. However, we do not have the evidence from the English changes to consider properly before making what will be a fundamental change to our laws."—[Official Report, Justice 1 Committee, 2 November 2005; c 2227.]

I could not agree more. This is not a good way to make law. Earlier in the debate, on the issue of separation periods, Hugh Henry said on behalf of the Executive that there had been no consultation and no careful consideration of the committee's move to periods of 18 months and 3 years respectively. We have the same situation here. Hugh Henry should be using the arguments that he used previously, in the Executive response today. The proposal represents a fundamental change to our law. The committee reversed its view between stage 1 and stage 2. Why, when no new evidence was taken, did it do that? This is not the right way to legislate. There has been little, if any, scrutiny of the proposal. I urge members to reflect on the bigger picture, to restore the bill to its original position and to remove section 13A.

Kenneth Macintosh (Labour, Eastwood)

I refer Mr Rumbles to comments that I made in the Justice 1 Committee at stage 2 about the fact that much of the discussion on this matter has gone on outwith the bounds of the committee. That is unfortunate, but that is what happened. There was a great deal of discussion on that point. I recognise that some members still have anxieties about section 13A, but I believe that those anxieties are misplaced. I hope that I can offer some reassurance. The concerns, as I understand them and as Mike Rumbles has just outlined them, centre on three points: first, the principle that we should not confuse or conflate religious and civil law; secondly, that we should not introduce an unlimited delay to divorce because of religious beliefs; and thirdly, that we should not give one group—religious or not—special treatment. The bill does none of those things.

We are not amending, interfering, confusing, conflating or muddling civil and religious law; we are simply recognising religious divorce in exactly the way that we already recognise religious marriage. In fact, the wording used in section 13A is an exact copy of that used in the Marriage (Scotland) Act 1977. Section 13A does not prevent one partner from granting the other a divorce; quite the reverse. It merely builds in to the formal civil process the ability for the sheriff to grant a delay, not an indefinite postponement. It treats the existence of a religious impediment to remarriage in exactly the same way as property or custody of children: as an issue that can create acrimony and upset and that needs to be resolved.

Although section 13A would in practice be used by divorcing Jewish couples who find themselves in the difficult position of not being able to remarry, the bill applies equally to any religious body as prescribed in the 1977 marriage regulations. Although Pauline McNeill said that I would speak at length on this issue, I will not repeat the many arguments in favour of section 13A that were discussed in some detail at stage 2, other than to highlight that section 13A was overwhelmingly agreed to by Justice 1 Committee members; it has the support of all the main party leaders, if not officially of the parties themselves; and it is a proposal that has been actively pursued by the Jewish community, with my support, since at least 1999.

Members should not think that section 13A is unimportant just because few people will be affected by it. Surely no one here believes that a man should be able to exercise control over his former partner after the two have separated. That is what happens in a few cases at the moment, and it will continue to happen if we do not retain the section.

This is about allowing Scottish families going through a divorce to reach a fair and just settlement just like any other Scottish families. I urge members to reject Mike Rumbles's amendment 10.

Margaret Mitchell (Conservative, Central Scotland)

I will not support Stewart Stevenson's amendment 36, which I do not think is necessary; nor will I support Mike Rumbles's amendment 10. Mike asks why the Justice 1 Committee changed its view after stage 1. There was not enough time to discuss the issue at stage 1, but various meetings were held after that and, as a result, the issue was properly considered at stage 2. I am content that section 13A will not open a Pandora's box and will not lead to unnecessary delays, because of religious considerations, in the granting of divorce. Section 13A will allow us to flush out a situation in which one party can deliberately use the terms and conditions necessary for the recognition of a religious divorce to delay the granting of a civil divorce.

Mike Rumbles mentioned conflation. It seems only common sense to me that, if both religious and civil aspects are considered when people marry, the same aspects should be considered when they divorce.

Jim Wallace (Liberal Democrat, Orkney Islands)

I wish to make three points, mostly to endorse what Ken Macintosh said. First, the fact that extensive evidence was not taken should not blind us to the fact that this issue has been widely aired. When, as Minister for Justice, I introduced one of the white papers on family law, I remember Ken Macintosh raising this issue in the chamber. It has been widely debated, and a very good debate took place in the Justice 1 Committee.

Secondly, on conflation, Mike Rumbles cannot really get away with the idea that when the Marriage (Scotland) Act 2002 allows a pastor, a rabbi or another religious person to act on behalf of the state, that is not conflation. I cannot think of any example that represents conflation more than having a religious person acting on behalf of the state. If Mike Rumbles were consistent, he would have lodged amendments to this bill in order to remove the religious parts of the Marriage (Scotland) Act 2002.

Thirdly, if we are talking about principles—and Mike Rumbles is always keen to do so—I would say that in a liberal democracy a fundamental principle is that the Parliament should take measures to safeguard the vulnerable and the weak. We have heard that there are situations—albeit very few—in which Jewish law can be used to overturn a decision of the civil courts on access or financial arrangements. I believe that that is an abuse of power and it is proper for this Parliament to tackle such abuse when it has the means to do so.

Donald Gorrie (Liberal Democrat, Central Scotland)

Jim Wallace has just made some of the points that I wanted to. Section 13A, introduced by Ken Macintosh, does not confuse church and state; we are keeping them apart.

It is our duty to legislate for the real world—a phrase that occurs in lots of cliché-ridden speeches, no doubt including mine. In the real world, some Jews are able to misuse Jewish religious law to ignore the will of this Parliament during a couple's divorce. As Ken has said, we are talking about power being exerted by a man over a woman for what I believe are base motives. In the real world, we have to legislate for such situations, and Ken Macintosh's section 13A is a reasonable way of doing so. The sheriff will take account of the section and, in the end, the divorce will go through as intended. If we remove section 13A, as Mike Rumbles's amendment 10 seeks to do, we might prevent a woman from ever remarrying. It is a civil matter and section 13A is sensible. I strongly support Ken Macintosh's ideas on this, as I have done in the past.

Cathy Jamieson (Labour, Carrick, Cumnock and Doon Valley)

Many of the arguments have been eloquently made so I will try to keep my speech brief. As Hugh Henry outlined clearly earlier this morning, an overarching aim of the bill is to ensure that, when marriages break down, acrimony can be reduced for all concerned, especially the children. We are obviously concerned about situations in which marriages have broken down completely, but the parties remain unable to make new lives for themselves. That is far from ideal and we have heard about the distressing consequences that can arise.

Section 13A was introduced at stage 2 as a result of an amendment that Ken Macintosh lodged in direct response to concerns that the Jewish community had raised. Jim Wallace has told us the history of the situation and how far back it stretches. We are well aware of those concerns and we believe that section 13A will provide a useful and practical solution. I put on record my thanks to the Justice 1 Committee for its deliberations on the matter.

Jeremy Purvis (Liberal Democrat, Tweeddale, Ettrick and Lauderdale)

As the bill stands, it will not make it an offence for a Jewish man to deny his wife the get, but if a Jewish man denied his wife the get for financial purposes, for example, would that not be an offence of extortion?

Cathy Jamieson (Labour, Carrick, Cumnock and Doon Valley)

I am sure that we could have an extensive debate about what that set of circumstances would constitute, but we must take a decision on the amendments that are in front of us. Amendment 10 seeks to remove section 13A from the bill, but I do not believe that, as an Executive, we should support an amendment that would deny members of the Jewish community recourse to a useful and valuable remedy that is designed to combat the inequalities that can arise in such cases. As a result of what the committee agreed at stage 2, we have an opportunity to deal with the issue here and now.

I understand what Stewart Stevenson is trying to do with his amendments—they are designed to remove from section 13A the power to prescribe to which religious bodies the section applies; instead, the existing provisions in the Marriage (Scotland) Act 1977 would be relied on to define which religions were relevant for the purposes of the section. Although that approach may at first glance seem appealing, it would have further, more wide-reaching ramifications—Stewart Stevenson is nodding his head, so he has probably realised that. Amendments 36 to 38 would turn a provision that was designed to address the specific and discrete concerns of the Jewish community into one that would apply to the vast majority of religious bodies that have an authorised celebrant. I am sure that that was not Stewart Stevenson's initial intention.

I hope that we are able to find a resolution that deals with the specific issues that face the Jewish community, but does not have wider ramifications than were originally intended. In those circumstances, I invite Stewart Stevenson to consider withdrawing amendment 36 and not moving amendments 37 and 38.

Trish Godman (Labour, West Renfrewshire)

I give Mr Stevenson half a minute to indicate whether he intends to press or to withdraw amendment 36.

Stewart Stevenson (Scottish National Party, Banff and Buchan)

I say to Jeremy Purvis that the situation is complicated. In Jewish law, if coercion is involved in the provision of a get, it is invalid. That is why we cannot do what the member suggests.

I have three points to make. We as parliamentarians should not interfere in the profession and practice of faith, but we should work with all people of all faiths in Scotland and the wider world and we should support people of faith when they require it. This is precisely such an occasion.

I have listened to what the minister has said about my amendments and I seek the Parliament's consent to withdraw amendment 36.

Amendment 36, by agreement, withdrawn.

Amendments 37 and 38 not moved.

Amendment 10 moved—[Mike Rumbles].

Trish Godman (Labour, West Renfrewshire)

The question is, that amendment 10 be agreed to. Are we agreed?

Trish Godman (Labour, West Renfrewshire)

There will be a division.

Trish Godman (Labour, West Renfrewshire)

The result of the division is: For 7, Against 108, Abstentions 1.

Amendment 10 disagreed to.

Trish Godman (Labour, West Renfrewshire)

Group 6 is on the breakdown of communication between partners and the effect of that on children. Amendment 39, in the name of Margaret Mitchell, is grouped with amendment 52.

Margaret Mitchell (Conservative, Central Scotland)

Amendment 39 is a probing amendment that focuses on situations where there has been a breakdown in communication between spouses that has resulted in one or both parties indulging in hostile or obstructive behaviour to the detriment of any children of the marriage. The amendment seeks to concentrate both parents' minds on the needs of the children as opposed to any grievance that might be obscuring their ability to see the potential damage to children resulting from such behaviour.

The emphasis is therefore on trying to achieve a voluntary agreement as a result of which both spouses, despite the fact that they might be divorcing or divorced, will have quality parenting time and will remain united in being involved in their children's upbringing and future. Amendment 39 has at its heart the interests of the child and proposes that prior to the bill coming into force, there would be a campaign to cover those issues and promote the benefits of the excellent provisions contained in the parenting agreement and the grandparents charter, which are firmly focused on achieving agreements and arrangements for contact that are in the children's interests.

Amendment 52 is consequential to amendment 39.

I move amendment 39.

Stewart Stevenson (Scottish National Party, Banff and Buchan)

I welcome the Tories' commitment to spending public money. If we are going to do so, I suggest that it would be better if we simply increased the budget that Hugh Henry has announced for family mediation contact centres and conciliation.

Cathy Jamieson (Labour, Carrick, Cumnock and Doon Valley)

I appreciate the sentiment that has prompted amendment 39, and I recognise that Margaret Mitchell said that it is a probing amendment. I hope that I will be able to give her the reassurances that will persuade her not to press the amendment. I do not believe that the provision should be on the face of the bill.

Amendment 39 suggests that a new provision would be required in statute so that we could take an information campaign to the public. I am sure that Margaret Mitchell understands that we already have the power to provide advice and information on any policy matter within our devolved competence.

We have heard a lot this morning from those who have experience as family law practitioners. Although I do not share that experience, I spent a considerable amount of my professional life working as an advocate for children whose circumstances, in some cases, had been brought about by that very breakdown—of communication and of the relationship between partners—that has caused so much concern to members. For the children in the middle of those situations it can be a living nightmare to watch their parents battle over several years and to see that battle, rather than their interests, become their parents' focus. That has informed all the work that we have tried to do with this legislation.

As has been mentioned, we have been working on a parenting agreement for Scotland and on a charter for grandchildren. They are designed to help those families where there is a separation—and particularly the children in those families. The parenting agreement aims to encourage parents at or around the painful point of separation to agree on the arrangements for the future care and welfare of their children and to put that at the centre of their considerations. It also seeks to persuade parents of the importance of putting aside their differences and not allowing them to cause problems for their children. That would include information on the negative effects that a breakdown in communications between the parties could have on the children of a relationship. The grandchildren's charter also aims at highlighting the role that the wider family can play in supporting children, especially at the point of family separation. In doing that, it focuses on the effect that a breakdown in communication—not just between partners but also within the wider family—can have on children.

Those two documents, which have been generally welcomed, were drawn up with the involvement of people who have experience of the circumstances that we are discussing today. The Executive believes that they will provide parents and families—and children—with useful and practical tools to help them through difficult times. We intend to launch an information and communication campaign to raise awareness of family law, to inform people about the non-legislative options that are available to them, and to detail the many organisations that can offer support and advice at difficult times.

I hope that, with those assurances, Margaret Mitchell will not feel it necessary to press her amendment.

Margaret Mitchell (Conservative, Central Scotland)

I will press my amendment. I welcome everything that the minister said, but the amendment is designed to tackle entrenched attitudes. It is designed to tackle situations in which there is no co-operation and in which contact orders are either not being enforced, or in which there are huge difficulties in enforcing them.

We agree that the parenting agreement and the grandchildren's charter are excellent documents. However, my amendment would give them more prominence and would, I hope, encourage a difference in attitudes.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

Have the Tories costed this commitment?

Margaret Mitchell (Conservative, Central Scotland)

I would look to the money coming from the same pool as money for mediation and counselling services. It would be on the same basis as the successful campaigns to tackle domestic violence and drink-driving. For those reasons, I believe it to be an important and worthwhile step that the Parliament could take to promote the grandchildren's charter and the parenting agreement. Similar campaigns have made drink-driving substantially unacceptable and have highlighted issues of domestic abuse.

Trish Godman (Labour, West Renfrewshire)

The question is, that amendment 39 be agreed to. Are we agreed?

Trish Godman (Labour, West Renfrewshire)

There will be a division.

Trish Godman (Labour, West Renfrewshire)

The result of the division is: For 10, Against 95, Abstentions 8.

Amendment 39 disagreed to.

Trish Godman (Labour, West Renfrewshire)

I propose to invoke rule 9.8.4A to allow the debates on groups 7 and 8 to take place. The debate on group 8 must conclude by 11:38.

Trish Godman (Labour, West Renfrewshire)

Group 7 is on special destinations. Amendment 11, in the name of the minister, is grouped with amendments 29 and 30.

Cathy Jamieson (Labour, Carrick, Cumnock and Doon Valley)

The amendments originate from proposals by the Scottish Law Commission. They rectify an existing problem relating to the division of matrimonial property when a couple has divorced or when a marriage has been annulled.

It is common practice for spouses to take the title to their home in joint names, with the house passing to the survivor in the event of the death of one of the spouses. If, however, the couple divorces or the marriage is annulled, the provision for the house to pass to the surviving spouse must be revoked. In such situations, the solicitor who conveys the property to one of the spouses after the divorce will evacuate the destination when they convey the property to the person who will remain in the family home.

However, the Law Society of Scotland and others have pointed out cases in which that did not happen and the continued effect of a survivorship destination after divorce gave rise to substantial injustice. For example, if, on divorce, a husband transfers his half share of the matrimonial home to his former wife and she subsequently dies, her half share—if nothing has been done about the special destination—will pass to her former husband even though all parties intended her to be the sole owner of the house after divorce.

The Executive's amendment 11 rectifies that problem for married couples by ensuring that divorce or annulment has the effect of revoking any special destination. Amendment 29 replicates that for civil partners. Amendment 30 protects the Keeper of the Registers of Scotland from a claim by the deceased ex-spouse's executors, as the keeper cannot rectify the land register against a third party. Amendment 30 also applies to civil partners.

I move amendment 11.

David McLetchie (Conservative, Edinburgh Pentlands)

I rise not to bury the Scottish Executive, as is my wont, but to praise it for lodging at this late stage an amendment that will remedy a serious injustice that was suffered by one of my constituents. The minister is aware of the case to which I refer.

To put it briefly, on the death of my constituent's husband, whose will bequeathed to her the whole of their matrimonial home, a half share in the property passed, by virtue of a survivorship destination in the title, to her late husband's ex-wife, notwithstanding the fact that the ex-wife's half share in the property was bought out by the husband as part of their divorce settlement. In other words, notwithstanding the divorce, the survivorship provision in the title deed carried the husband's original half share in the property to his former wife. The situation could and should have been resolved at the time but, regrettably, it was not. That meant that my constituent, on the death of her husband, was forced to sell the house and split the proceeds with her late husband's ex-wife. She had no legal redress in respect of the situation in which she found herself.

As the minister indicated, my constituent's case is not unique; others have fallen foul of the same quirk in the law. Amendments 11 and 29 will ensure that that does not happen again, because they provide that such destinations are automatically revoked on divorce, annulment or the dissolution of a civil partnership. My constituent has campaigned for that change to the law, although she knows that it will not have retrospective effect and that it will not remedy the injustice that she suffered.

The change was first recommended by the Scottish Law Commission in its report on the law of succession, which was published in 1990. I have lobbied ministers on the matter and the change has the support of the Law Society of Scotland. I congratulate the ministerial team and thank it for taking the matter on board and including the provision in the bill. I urge members to support amendments 11, 29 and 30.

Pauline McNeill (Labour, Glasgow Kelvin)

I support the amendments, which make good sense. The Justice 1 Committee did not have a chance to consider the matter at stages 1 or 2. Given that the proposed change is a recommendation from the Scottish Law Commission, it would have been helpful to have had a chance to consider it a bit sooner. Today is the first time that I have heard the arguments. I have no difficulty with what I heard, so I will support the amendments, but, as a precaution, I ask the minister to assure me that, if any issues arise, there will be a further opportunity to consider the matter, particularly if we are to examine the law on wills and succession.

Christine Grahame (Scottish National Party, South of Scotland)

I, too, welcome the amendments. I share Pauline McNeill's concern about the lodging of substantial new amendments at stage 3. Nevertheless, the amendments have arrived and they are welcome. They remedy an injustice that is a consequence of people not realising what will happen on divorce—or, sometimes, unfortunately, of a solicitor's negligence, if they have not looked carefully at all the documents. The amendments are welcome because they will ensure that the true intentions of the deceased are reflected.

Cathy Jamieson (Labour, Carrick, Cumnock and Doon Valley)

I acknowledge on the record the work that David McLetchie has done. He wrote to the Executive about the matter; other members have dealt with similar cases.

I reassure Pauline McNeill that we will keep the matter under review. I recognise that the committee did not have the opportunity to examine the amendments in detail but, having considered all the facts of the case, I thought it better to resolve an injustice now, while we have the opportunity. We will of course keep the matter under review when considering any future legislation on wills and succession.

Amendment 11 agreed to.

Trish Godman (Labour, West Renfrewshire)

Group 8 is on payments towards the maintenance of children. Amendment 40, in the name of Phil Gallie, is the only amendment in the group. I ask Mr Gallie to be brief.

Phil Gallie (Conservative, South of Scotland)

I will be as brief as I can be.

Amendment 40 deals with an issue that constituents have raised with me many times over the years. When parents are absent for whatever reason, children are often best looked after by those who are closest to them, such as grandparents, brothers, aunts or uncles. Local authority social work departments throughout the country generally accept that. In many cases, parents can make provision for such care without the involvement of social workers or anyone else. On that basis, things can move along nicely.

However, when a situation develops in which grandparents take care of children, they do so late in life, when their incomes do not match their responsibility to look after the children. The shortfall in support for the children means that both grandparents and children can suffer considerably.

I apologise to Pauline McNeill for injecting the issue at a late stage and for not giving the committee the opportunity to debate it, but I felt that the bill, which I welcome, gave me the opportunity to raise the matter.

I have contacted the Executive about such payments. When Euan Robson was the Deputy Minister for Education and Young People, he was extremely helpful. He emphasised that he felt that local authorities operated the existing legislation in different ways. They can choose whether to give a grant for the maintenance of children in such circumstances. Some authorities take a blanket approach and do not consider giving any support—they simply say no. That is wrong.

My amendment would place on local authorities a duty to make an offer. It would not set a level of offer; that would be left to local authorities' discretion. However, the amendment would remove a local authority's ability to ignore the Children Act 1975 and the Scottish Executive's guidance notes.

I hope that the Parliament will go along with me on the amendment. As far as I can see, it would have a more or less neutral effect on local authority budgets, given that benefits could result from saving fostering costs.

I move amendment 40.

Margaret Mitchell (Conservative, Central Scotland)

I support the amendment, which would ensure that the financial contribution that grandparents and sometimes other relatives make in some circumstances was recognised.

Cathy Jamieson (Labour, Carrick, Cumnock and Doon Valley)

I understand why Phil Gallie lodged the amendment and I have some sympathy with his arguments, particularly in relation to grandparents and other family members who take on the care of children. I am sure that he will appreciate that looking after children has a particular meaning in legislation.

Under existing legislation, local authorities have the discretion to pay allowances to such relatives when children are formally in their care and when relatives have stepped in before children have become looked after by local authorities. The legislation gives local authorities the flexibility to decide on types and scales of payment to foster carers according to local child care needs and circumstances. I recognise that Phil Gallie and other members have had constituency cases when that has caused some difficulty.

On the face of it, an element of compulsion on local authorities might seem an attractive proposition. However, as Phil Gallie recognises, the Executive is currently considering fostering allowances. Moreover, the Social Work Inspection Agency has commissioned research on looked-after children. That research will cover a study by Professor Jane Aldgate on kinship care, which is among the subjects that we are discussing. It is right and proper that ministers should consider that report and thereafter reach a view on the action that is required. In addition, the recent consultation exercise on the Executive's proposals to reform adoption indicated widespread support for a national system of fostering allowances.

As a result, we believe that kinship care would be better dealt with in another bill. The Executive is still considering responses on fostering allowances. I ask Phil Gallie to accept the arguments on why his proposal should not be included in the Family Law (Scotland) Bill and to accept that his amendment 40 would not necessarily have the effect that he wishes it to have. I ask him to seek to withdraw amendment 40.

Phil Gallie (Conservative, South of Scotland)

I saw the bill as an opportunity, but I hear what the minister says and am encouraged by it. If the Executive is prepared to address the issue in another bill that will be introduced not too far in the future, it would be irresponsible of me to press amendment 40. Given the minister's assurance, I therefore seek members' agreement to withdraw it.

Amendment 40, by agreement, withdrawn.

Trish Godman (Labour, West Renfrewshire)

I must now suspend the meeting until 11.40 am.

Question Time — Scottish Executive — General Questions

Bill Butler (Labour, Glasgow Anniesland)

To ask the Scottish Executive what action is being taken to promote the teaching of co-operative principles in schools. (S2O-8475)

Peter Peacock (Labour, Highlands and Islands)

The Executive's determined to succeed team is working with the Co-operative Education Trust Scotland on the development of a comprehensive co-operative enterprise in education project in schools.

Bill Butler (Labour, Glasgow Anniesland)

I welcome the minister's encouraging response. Does he agree that there is more to enterprise than individual entrepreneurship? Does he recognise the need to encourage enterprise education in which more emphasis is given to the co-operative model of common ownership and which teaches young people not only about the benefits that enterprise can bring them as individuals, but about the benefits that can accrue to their local community and the wider world?

Peter Peacock (Labour, Highlands and Islands)

I support the principle behind what Bill Butler says. He is quite right that there is more to enterprise than individual entrepreneurship, although we want to see all sorts of enterprising activity in our schools. A lot is going on in that regard, some of which I mentioned in my first answer. In addition, 10 schools are active in the young co-operatives pilot scheme and 30 schools have co-operative businesses. On Monday, I visited a school in which young people are organising a series of enterprise projects and, a couple of weeks ago, I visited a school in which there was a similar range of activity. Schools now undertake a range of initiatives and our focus on citizenship education is adding to young people's belief in the importance of co-operation in a general sense as well as in an enterprising sense.

Rob Gibson (Scottish National Party, Highlands and Islands)

To ask the Scottish Executive what conclusions have been reached by NHS Scotland about concerns raised at public meetings in Stornoway on 30 November and 1 December 2005 in respect of the financial and clinical governance of NHS Western Isles. (S2O-8426)

Andy Kerr (Labour, East Kilbride)

I conducted the annual review of NHS Western Isles in public in Stornoway on 12 September. At that time, the board's chairman gave me his personal assurances in relation to action to restore financial balance as quickly as possible and to maintain safe, high-quality and sustainable services for Western Isles residents. It is now for the board to deliver on the assurances that were given to me and for everyone to work together in the best interests of patient care in the Western Isles.

Rob Gibson (Scottish National Party, Highlands and Islands)

I wonder whether the minister understands what is behind the widespread public disquiet and fears about the future of NHS Western Isles. Does he recognise the underlying staff concern that the chairman and chief executive are not the appropriate officers to deal with the 90-page dossier that was put together by the Institute of Healthcare Management, as that would place those gentlemen, Messrs Currie and Manson, in the role of judge and jury? Will he help the people of the Western Isles to achieve a breakthrough by setting up an external inquiry to restore staff harmony and a common purpose in the delivery of high-quality health services based in the Western Isles?

Andy Kerr (Labour, East Kilbride)

Judging by your ill-informed and ill-advised comments, we are much more in touch with the issue than you are. Moreover, you have come somewhat belatedly to the matter. I have been focusing on the issue for a number of months, unlike you, who have been focusing on it for a matter of weeks. I will take the side of patients and not any interests—vested or otherwise—on the board. Your misplaced comments inappropriately seek to bolster one side of the debate. I advise you very strongly to take cognisance of other voices in the Western Isles in relation to these matters, including some very senior councillors who have written to their colleagues about the conduct of those meetings. Are you aware that, although members of the health board were invited by the organisers to attend those meetings, they were unable to do so?

Phil Gallie (Conservative, South of Scotland)

On a point of order, Presiding Officer. Surely the minister should know by now that "you" means the Presiding Officer. He has used the terms "you" and "your" throughout his answer. Surely it is time that the minister recognised the procedures of the Parliament.

Andy Kerr (Labour, East Kilbride)

With respect, Presiding Officer, the comment was directed at me around the issue raised by the member about my role and his and my knowledge of the matter.

Alasdair Morrison (Labour, Western Isles)

During a recent visit to the Western Isles, the minister saw for himself the first-class care that is experienced by patients in the islands. However, he will be aware of the concerns of some members of staff about their continued employment. Will he reassure me and my constituents that any redesign of services will not result in a diminution of services or job losses?

Andy Kerr (Labour, East Kilbride)

That has been a continuing concern, but the board has made its view clear. As recently as 15 December, the hospital manager pledged that there would be no staff redundancies and no effect on the quality of care. We are focusing on the wrong place for this debate. NHS Western Isles recently got renal dialysis facilities, it has retained and improved maternity services and it has an efficiently run hospital with redesign under way. Moreover, radiography services and telemedicine have improved and joint working with the local authority is going well, as is the dental practice that I visited. Therefore, I suggest to Alasdair Morrison that the services not only are safe and secure, but are being developed positively for patients.

Jamie McGrigor (Conservative, Highlands and Islands)

It has been reported that NHS Western Isles failed to report costs accurately and made late adjustments to its accounts. In that light, what will be done to strengthen financial management in NHS Western Isles? Will the minister reassure the public that the health board will not go down the same path as NHS Argyll and Clyde, which, as we know, lost £80 million of public money?

Andy Kerr (Labour, East Kilbride)

I can reassure the member through you, Presiding Officer, that I do not equate those two boards when it comes to financial and mismanagement issues. In the Western Isles, financial systems are now in place to support financial recovery. The board officials will meet the Health Department either today or tomorrow to discuss the financial recovery plans. I am absolutely certain that the board will continue to deliver high-quality services and that the Health Department will support it in doing so. I am confident about the future outlook for NHS Western Isles.

Donald Gorrie (Liberal Democrat, Central Scotland)

To ask the Scottish Executive what action it is taking to monitor the amount of green-belt land being rezoned for housing in new structure plans. (S2O-8459)

Malcolm Chisholm (Labour, Edinburgh North and Leith)

Structure plans do not allocate sites for development. The allocation of specific sites for development is a matter for local plans. The Scottish Executive does not actively monitor the amount of green-belt land that is allocated for housing in local plans.

Donald Gorrie (Liberal Democrat, Central Scotland)

Does the minister accept that it would be helpful to have more factual information when he prepares the bill to improve the planning system? It would help to know the extent of the invasion of the green belt, which concerns many people, so that he could decide what sort of inducements should be offered to councils to make more use of brown-field sites or to jump over the green belt and develop in the communities beyond it. Some factual information would also be a helpful start in considering when some intrusion into the green belt should be allowed.

Malcolm Chisholm (Labour, Edinburgh North and Leith)

In general, the amount of green-belt land has increased in most relevant places over the past 20 years, with the big exception of Aberdeen. We take the green belt seriously, which is why we issued a draft Scottish planning policy on it in the summer. We have received 170 responses, which we will look at carefully before we issue the final SPP. The SPP aims to strengthen and enhance the role of the green belt and to encourage greater stability to increase its effectiveness. That will improve the quality of life for local people and manage land carefully to guide growth of our settlements.

There should continue to be a strong presumption against development in the green belt. Where it is considered necessary, the proposed release of green-belt land should be developed as part of a long-term strategy in the development plan. In that way, local people can engage closely with the process at an early stage in view of our proposals for involvement in development planning.

Robin Harper (Green, Lothians)

Has the minister consulted the Minister for Education and Young People on the impact of the roll-out of the public-private partnership schools programme, which will result in the loss of green amenity space as well as sports fields?

Malcolm Chisholm (Labour, Edinburgh North and Leith)

That matter is being looked at in the context of specific planning applications. As I said in my previous answer, we take the green belt seriously. The new SPP will ensure that a long-term view is taken of the green belt and that local people are involved in decisions at an early stage.

Pauline McNeill (Labour, Glasgow Kelvin)

To ask the Scottish Executive what lessons public sector agencies can learn from recent cases of racial discrimination upheld by the Court of Session. (S2O-8494)

Malcolm Chisholm (Labour, Edinburgh North and Leith)

Although significant advances have been made in the past few years to tackle race discrimination, those cases provide a stark reminder to all employers, not just those in the public sector, of the need to ensure that they are not unlawfully discriminating. The statutory duty on the public sector to eliminate race discrimination and to promote race equality came into force shortly after those cases were brought and is designed to prevent discrimination from happening before it occurs.

Pauline McNeill (Labour, Glasgow Kelvin)

The minister will be aware that the two cases to which I referred are the first cases in which the burden of proof has shifted to the employer, which must show that it has race equality procedures in place. The cases happen to have been in the public sector, but they could have been in the private sector. Does he agree that more work needs to be done in both sectors to remind all employers of their responsibilities in respect of race equality? Crucially, does he agree that the Executive should work with employers, the trade unions and the Commission for Racial Equality to get better outcomes?

Malcolm Chisholm (Labour, Edinburgh North and Leith)

I agree absolutely with Pauline McNeill. In our recent review of race equality work, we produced a series of recommendations to drive up public sector performance on race equality. The new public sector duty will help in that regard and is actively monitored by the Commission for Racial Equality. As Pauline McNeill reminds us, the private sector also has responsibilities. We recently set up a group to examine the issue of race equality and employment. The first meeting of the group will take place soon and both Allan Wilson and I will attend it. We are determined to drive forward action in the private sector, as well as in the public sector.

Sandra White (Scottish National Party, Glasgow)

Does the minister agree that, despite the obligations that the Executive has placed on public bodies, especially local authorities, and the promises that have been made, the recent racial discrimination rulings strengthen the case for having statutory inspection bodies monitor and audit fully the duty to promote racial equality? Will he give a commitment to that today, to ensure that public bodies adhere to equality legislation?

Malcolm Chisholm (Labour, Edinburgh North and Leith)

There is already a statutory body that monitors the public sector duty—the Commission for Racial Equality. I am sure that Sandra White agrees that it will be actively involved in ensuring that the duty is enforced. There are no grounds for complacency. The cases that we are discussing arose a few years ago, before the public sector duty was introduced, but we know that there is still a great deal to do.

Frank McAveety (Labour, Glasgow Shettleston)

To ask the Scottish Executive what plans it has for further reducing truancy rates in schools. (S2O-8490)

Peter Peacock (Labour, Highlands and Islands)

The Scottish Executive is committed to working in partnership with education authorities and schools to ensure good practice in all aspects of monitoring attendance and absence and tackling truancy.

Frank McAveety (Labour, Glasgow Shettleston)

I recognise the obvious importance of the enforcement role of attendance officers, but the critical issue is why so many young people feel disengaged from schools in the first place. In my constituency, there have been improvements year on year, largely because of innovation in the curriculum choice that is available to students, to ensure that they can feel comfortable attending school. What is the Executive's attitude towards encouraging further flexibility in the curriculum review, so that we make education as relevant as possible to young people in Scotland?

Peter Peacock (Labour, Highlands and Islands)

Frank McAveety is right to highlight the importance of making learning for young people, especially boys in secondary 1 and 2, much more engaging and relevant, with more pace and challenge, in order to capture their interest in education so that they turn up for school because they want to be in school and are finding it productive. Sadly, too many young people are disengaging at that point in school life. That is why we are taking forward our reforms of the curriculum. We are trying to ensure that there is more choice and flexibility and that schools have more freedom to determine what they teach, when they teach it, what exams young people sit and when they sit those exams. We are creating more space in our education system for drama, sport, arts activity and the like. That is part of a process of improving education and, therefore, reducing truancy.

Fiona Hyslop (Scottish National Party, Lothians)

Does the minister acknowledge that truancy rates remain persistently high? Does he recognise the success of the automatic messaging service that many schools have introduced? What plans does he have to roll that out? In seeking to have parents take up their parental responsibilities, does he see a role for any reformed school board or new parent council in developing policy for parental responsibility with regard to truancy rates?

Peter Peacock (Labour, Highlands and Islands)

I think that there were three questions in that. On the general point, I have made it clear that I think that levels of truancy are too high. Any time lost from learning is a lost opportunity for young people that has a profound implication for the rest of their lives. However, we have been collecting the statistics for only the past two years and the increase from last year to this year was 0.1 per cent. The current figure is too high, which is why we are doing all the things that we are doing. I have already referred to curriculum reform. We are also installing automated call systems in more than 300 schools to catch truancy early and to try to nip it in the bud, ensuring that we get the people who are trying to truant for the first time caught in the process of doing so and that we discourage them from doing it in the future.

I agree that parents have a role to perform. Ultimately, parents have a legal responsibility to get their children to school, as well as a wider moral responsibility for their children. Under the new arrangements for parental involvement in schools, one thing that ought to be discussed is how parents can impact on truancy and support their school and their children more effectively.

Rosemary Byrne (SSP, South of Scotland)

I welcome the more flexible curriculum, but does the minister agree that one way of reducing truancy and engaging young people in the education system, so giving them access to that more flexible curriculum, would be to reduce class sizes dramatically to no more than 20? In that way, the Executive would get the engagement that it desires.

Peter Peacock (Labour, Highlands and Islands)

There is mixed evidence about the impact of class size reductions at certain stages in school. Through an Executive programme, we are recruiting more teachers than we have ever recruited in the past and our universities are bulging at the seams with new teachers in training. It is always our intention to reduce class sizes at key stages in primary and secondary school. Beyond the question of class size reductions, however, the key is to make learning more engaging for young people, so that they want to be in school because they see the benefit of that. That is why we are driving forward other reforms.

Euan Robson (Liberal Democrat, Roxburgh and Berwickshire)

To ask the Scottish Executive whether it will review the statutory definition of overcrowding in social rented housing. (S2O-8457)

Malcolm Chisholm (Labour, Edinburgh North and Leith)

We have no plans to review the statutory definition of overcrowding.

Euan Robson (Liberal Democrat, Roxburgh and Berwickshire)

The minister will be aware of cases in which overcrowded households are unable to move to a house with more accommodation that has become available because that house does not technically fulfil the needs of the family concerned. For example, two-bedroomed or three-bedroomed accommodation could become available, but four-bedroomed accommodation is required. Is there any bar on housing associations allowing moves to accommodation that, although it would still technically be overcrowded, is better than the accommodation in which a family might currently reside?

Malcolm Chisholm (Labour, Edinburgh North and Leith)

I do not think that changing the statutory definition of overcrowding would help in that situation. I believe that there is sufficient flexibility in the current system to prevent the problem that Euan Robson highlights from arising. I know that Communities Scotland would be critical of any landlord that knowingly placed a family in overcrowded accommodation if accommodation that better met the family's needs was available. Communities Scotland, which I mention because it is the regulator, would also be critical of a landlord that did not offer partial or interim relief from overcrowding by rigidly adhering to a policy of knowingly overcrowding when no accommodation that met the family's needs would be available in the near future. In other words, it should be possible for families to be moved in the situation that Euan Robson describes. Indeed, Communities Scotland would welcome that.

Linda Fabiani (Scottish National Party, Central Scotland)

To ask the Scottish Executive what guidance has been given to national health service boards in respect of the identification and prevention of osteoporosis. (S2O-8508)

Lewis Macdonald (Labour, Aberdeen Central)

NHS boards can draw on good practice guidelines on the prevention and management of hip fractures in older people and on the management of osteoporosis. Both those sets of guidelines were produced by the Scottish intercollegiate guidelines network.

Linda Fabiani (Scottish National Party, Central Scotland)

I think that the minister would agree that there is variation in services across the country in the identification, treatment and management of osteoporosis. Will he consider drawing up a national strategy to combat osteoporosis? Does he recognise that, in the long term, that would give a better quality of life to those with the condition, as well as creating both time and cost savings for the health service throughout Scotland?

Lewis Macdonald (Labour, Aberdeen Central)

NHS Quality Improvement Scotland recently produced a useful report, of which I am sure Linda Fabiani is aware. I know that the National Osteoporosis Society is holding a series of workshops around Scotland to help NHS boards with the implementation of the SIGN osteoporosis guidelines, which are clearly intended as good practice advice, rather than as instructions to boards. It is appropriate that boards should take all that advice into account in determining how to proceed with the management of osteoporosis and related conditions in their respective areas.

First Minister's Question Time

Nicola Sturgeon (Scottish National Party, Glasgow)

To ask the First Minister what issues will be discussed at the next meeting of the Scottish Executive's Cabinet. (S2F-1999)

Jack McConnell (Labour, Motherwell and Wishaw)

At the next meeting of the Cabinet, we will discuss many important issues. I have given notice to the other party groups of one such issue, which is that the bid from Scotland and Glasgow to host the 2014 Commonwealth games enters a new phase today when the chairman of the Commonwealth Games Council for Scotland submits formally the intention to bid to the Commonwealth Games Federation. I am sure that all members of all parties would want to welcome that step. [ Applause. ]

At the games we will seek to showcase Glasgow and Scotland and demonstrate the level of support for the bid throughout the whole of Scotland. Hosting the games will provide the opportunity for Scots to show their pride in their country and their history and the warmth and welcoming nature for which they are rightly famous. It will also provide the opportunity for them to show that if we work together, there are few limits to what our small nation can achieve.

Nicola Sturgeon (Scottish National Party, Glasgow)

I wish Glasgow, my home city, every success in its bid to host the 2014 Commonwealth games. I am sure that those games will be a resounding success.

I remind the First Minister of an exchange that we had around this time last year. I asked him to allow councils to keep the money that they saved through efficiency measures and use it to keep council tax down. In the spirit of consensus that always marks these occasions, he said no. Now that the cross-party Finance Committee of the Parliament has recommended exactly the same thing, will he reconsider?

Jack McConnell (Labour, Motherwell and Wishaw)

It is important that the local authority budgets of the Executive—we contribute 80 per cent to local authority spend in Scotland—should make their contribution to the savings targets that we have met. That, in turn, finances the expansion in education and other vital local services that are funded by our Scottish Government. It is also important that councils have an incentive to save in order to keep some of the money for themselves and reinvest it in local services or in keeping council tax down. For both those measures, we have set realistic, sensible targets for local government in Scotland, which councils are perfectly capable of meeting. I hope that they will do so.

Nicola Sturgeon (Scottish National Party, Glasgow)

I asked the First Minister whether councils could keep all the money. He clearly still thinks that the answer should be no. I point out to him that, according to the Finance Committee, the Executive cannot specify what the money is being spent on. He talks about front-line services, but the Finance Committee said:

"it cannot be demonstrated to Parliament that growth in frontline service has been delivered as a direct result of ... savings".

The question is why councils cannot keep the money to lower council tax. Councils in England keep the money to do so. The Finance Committee also said that without that money, council tax will have to rise by 6.6 per cent next year, or front-line services will have to be cut.

Will the First Minister now concede what everyone else in Scotland knows to be the case, which is that his commitment to keep council tax rises to 2.5 per cent next year is, as things stand, pie in the sky?

Jack McConnell (Labour, Motherwell and Wishaw)

I have every respect for the committees of this Parliament, for their place in our arrangements and, normally, for the content of their reports, but if what Nicola Sturgeon reports is accurate, in this case the Finance Committee is wrong. The reality is that even our councils, which normally predict much higher rises at this time of year than eventually occur when the budgets are set in February or March, estimate currently that rises will be significantly lower than the figure to which she referred.

We have not only the efficiency savings, which are essential to our central Government expenditure and local government expenditure, but significant additional expenditure on: new teachers; school buildings; new equipment; new arrangements for our schools; new opportunities for our young people; our social services; our health service; and the many other services for which this Parliament and local government in Scotland are responsible. We will continue to make that investment and increase expenditure by above the rate of inflation, but we will improve the situation by demanding efficiency savings at the same time. That is the right course of action. Anything else would be irresponsible.

Nicola Sturgeon (Scottish National Party, Glasgow)

I note that the First Minister did not, anywhere in his answer, use the words, "2.5 per cent increases". I assume that that is because the only people who think that council tax increases next year will be as low as that are the same people who think that Scotland made a profit out of the G8 summit. It is, frankly, delusional.

A Labour colleague of the First Minister, Pat Watters of the Convention of Scottish Local Authorities, summed it up best when he said:

"Jack is speaking in a vacuum."

Isn't he just? The Minister for Finance and Public Service Reform will not say that there will be an increase of only 2.5 per cent, the Deputy Minister for Finance, Public Service Reform and Parliamentary Business says that the increase will be at least 4 per cent and now the Finance Committee has blown the First Minister's comment out of the water.

Will the First Minister finally take his head out of the sand and address the harsh reality that council tax payers are facing next year?

Jack McConnell (Labour, Motherwell and Wishaw)

The contribution from central Government to local services through local councils in Scotland has increased by about 50 per cent in the past six years. That is a substantial increase in expenditure that local councils have been able to use to improve their local services in communities across Scotland. In addition to that, it is important that we make savings as we continue to invest. It is absolutely essential that local councils keep their council tax increases to the minimum. There will be those that can go below the target figure that we have set. I hope that others aim for that target figure and make it.

I must say that, if the Scottish National Party seriously seeks ever to hold positions of Government in Scotland, it is not a sensible option for it to have an absolute free-for-all for local government, with no targets and no savings, as part of its national expenditure plans. That is not a sensible approach to the use of public money and would certainly not lead to the improvements in local services that we wish to see and which it claims it wishes to see.

I hope that, rather than castigate an independent report on the economic benefits of the G8, Ms Sturgeon will take seriously the issues of national budgeting, of ensuring that local services have the investment that they need and of ensuring that those services are partly financed by efficiency savings that every level of government and organisation involved in government in Scotland can and should be delivering.

Nicola Sturgeon (Scottish National Party, Glasgow)

I want local councils to make savings but I want those savings to go into the pockets of council tax payers. Let me tell the First Minister what has gone up by more than 50 per cent: council tax, which has more than doubled since 1997. Does he not understand that hard-pressed families and pensioners cannot cope with another inflation-busting increase? The Finance Committee makes clear that, if he does nothing, that is exactly what they will get.

I suggest to the First Minister that, if he does not understand what the Finance Committee has spelled out in black and white, he ask his colleague, Wendy Alexander, for advice. She is a member of the Finance Committee; perhaps she can explain it to him.

Jack McConnell (Labour, Motherwell and Wishaw)

Members of all parties are perfectly at liberty to disagree with my analysis, but I hold firmly to it. I believe that local authorities in Scotland should keep their council tax increases down. In pursuing that policy, we have been successful in recent years in comparison with any other part of the United Kingdom and in comparison with every one of the final years of the last Tory Administration. No matter how often Ms Sturgeon tries to compare the last Tory rise with that in any year since the Labour Government took office in 1997, she is not going to be able to do it. In every year since devolution, council tax rises in Scotland have been lower than they were in England and lower than they were in the last five years of the last Tory Government.

We are proud of that record, but it is not sufficient simply to be proud of it; it is important that we keep the pressure on. It is also important for Opposition parties not to call for a free-for-all. It is absolutely essential that our local authorities deliver good, quality services that are efficiently run and that they get the additional investment that is delivered as a result of that efficiency. That is what we will achieve.

Wendy Alexander (Labour, Paisley North)

I think that the leader of the SNP misrepresents the Finance Committee's all-party report when she suggests that it implies that there would be a 6.5 per cent council tax increase this year. What the Finance Committee argued—

George Reid (None, Ochil)

You have to put a question, Ms Alexander.

Wendy Alexander (Labour, Paisley North)

The Finance Committee argued for an equal approach to services. I think the Minister for Finance and Public Service Reform—

George Reid (None, Ochil)

Question, please.

Wendy Alexander (Labour, Paisley North)

—and indeed the First Minister might want to look in detail at what the all-party report has to say—

George Reid (None, Ochil)

Question, please.

Wendy Alexander (Labour, Paisley North)

—and not rely on what the leader of the Opposition says.

George Reid (None, Ochil)

We will move to question 2.

Annabel Goldie (Conservative, West of Scotland)

I, too, endorse the First Minister's comments about the city of Glasgow's bid for the Commonwealth games. My party certainly extends its very best wishes to the city in its endeavours.

To ask the First Minister when he will next meet the Prime Minister and what issues they will discuss. (S2F-2000)

Jack McConnell (Labour, Motherwell and Wishaw)

I do not expect to see the Prime Minister before Christmas, but if I do I will wish him a very merry Christmas and a happy new year.

Annabel Goldie (Conservative, West of Scotland)

I am sure that that message will be received with far more accord than any discussion of education policy.

Perhaps when the First Minister next meets the Prime Minister he might raise with him the Scottish Executive's homicide statistics, which were published yesterday. They disclose that the figure for 2004-05 was an appalling 10-year high, and show that the single biggest category of killings involved the use of a sharp instrument—in other words, knife crimes. Another very disturbing statistic is that 29 per cent of all those killings happened in Glasgow. How have things in Scotland got so bad after six and a half years of Labour-Liberal Democrat Government?

Jack McConnell (Labour, Motherwell and Wishaw)

A whole range of factors has influenced this matter. From all the expert comment that we heard yesterday and, indeed, that we have heard in the past, it is clear that a serious problem exists in the culture in parts of Scotland and among certain groups, especially young men. That problem is the combination of attitudes to alcohol and, in particular, knives—one police officer yesterday suggested that knives have replaced medallions as the mark of manhood among some young men in certain parts of Scotland—and an inability to resolve even the most minor arguments by any means other than violence.

The high incidence of knife crime is the main reason why we are introducing legislative proposals to double the maximum sentence for knife crime; why we are ensuring that police officers are able to stop and search people who they think might be carrying offensive weapons; why we are raising the age at which people can buy knives; and why we are consulting on introducing further restrictions on shops and commercial premises that sell knives and other things that can be used as weapons.

However, although action is being taken in all those areas, those measures alone will not solve the problem. Not only do we need to change the culture—indeed, we recently instituted a change in our drinking laws to reduce binge drinking and levels of drunkenness—but we need a change in the attitudes of young men, in particular, and how they conduct themselves not just on Saturday night but during the rest of the week.

Annabel Goldie (Conservative, West of Scotland)

Nothing can obscure the fact that this unhappy and tragic situation has unfolded over six and a half years of Government from Labour and the Liberal Democrats. Yesterday's figures show that knife crimes account for more than 50 per cent of all killings.

The First Minister referred to provisions to increase sentences in the Police, Public Order and Criminal Justice (Scotland) Bill, which is currently before Parliament. However, the tragic thing is that certain convicted criminals who are already out of prison under automatic early release have contributed to the very figures that I have just highlighted. The same discredited practice will apply to any increased sentences that are introduced as a result of the bill. In other words, two years will mean one year and four years will mean two. As a result, does the First Minister accept that, as long as automatic early release prevails for long-term and short-term prisoners, there is no sentencing deterrent?

Jack McConnell (Labour, Motherwell and Wishaw)

I certainly suspect that the legislation on automatic early release that the Tories introduced in Scotland, which allows people to leave prison early automatically and without any conditions attached to their release, has contributed in recent years to the situation in Scotland. That is precisely we are committed to ending the current law and replacing it with a far more rational and effective solution.

Over the year, we have consistently said that we expect the independent Sentencing Commission for Scotland, which we established, to report by the end of the year on these matters in a way that I hope all parties will take seriously. We expect to receive that report and will, as soon as possible thereafter, bring forward legislative proposals that will change that Tory legislation and will mean that we have better legislation in Scotland to ensure that sentencing means what it says and is more effective in stopping people committing crimes in future.

Annabel Goldie (Conservative, West of Scotland)

I will not flinch from criticism where it is merited. The Tories in Government repealed that legislation, recognising its deficiencies, eight years ago, but the incoming Labour Government refused to implement that repeal. That is why we are where we are today. Even worse, this Executive shower has compounded the problems by refusing on four occasions in this Parliament to end that discredited practice. How many more murders have to be committed and how many more families have to be decimated before this blockheaded Administration faces the inevitable? Six and a half years of blunder, bluster and inertia have brought us to where we are, and if the First Minister is still going to drag his feet on ending automatic early release, will he and the Lord Advocate review the whole basis on which knife crime is charged to ensure that far more of those crimes are prosecuted on indictment in our higher courts, where our judges have much stiffer sentencing powers available to them?

Jack McConnell (Labour, Motherwell and Wishaw)

I have to say that, at a time when corrections to previous mistakes in sentencing policy are being implemented by the Labour and Liberal Democrat coalition Government to ensure that sentences in this country are more effective and that they mean more to members of the public and to the individuals sentenced, so that our prisons and community sentences can provide more effective programmes to stop people reoffending and to cut Scotland's disastrous rate of reoffending, it does not fit well with Miss Goldie's new consensual image for her to exaggerate and to refer to bluster and delay.

I can absolutely assure Miss Goldie, as I assured her predecessor, that this Administration will end automatic early release. We shall do so not in the cack-handed way in which Michael Forsyth tried to do it, but properly. We shall do it in such as way as to ensure that judges who have to implement the policy understand it, are involved with it, agree with it and therefore implement it effectively. We shall do it in such a way as to ensure that our prisons can implement the policy and cut reoffending at the same time. We shall do it in a way that I hope will secure cross-party support in this Parliament and which will therefore stand the test of time. We will not do it either in the way in which the Tories did it when they introduced the legislation in the first place, or in the cack-handed way in which Michael Forsyth tried to amend it, simply to create an election gimmick rather than to solve the problems of Scotland.

Phil Gallie (Conservative, South of Scotland)

Pure waffle.

George Reid (None, Ochil)

Mr Gallie.

Colin Fox (SSP, Lothians)

Given the terrific news, announced this morning, that City of Edinburgh Council tenants have voted overwhelmingly to reject stock transfer plans, will the First Minister accept that the result is, first of all, a hammer blow to plans to privatise Scotland's public housing stock and, further, that he is now morally and politically obliged to ensure that the £1 billion carrot dangled in front of a yes vote is now made available to tenants in the city of Edinburgh to write off the debt, to invest in improved housing and to build publicly owned rented accommodation for city tenants?

Jack McConnell (Labour, Motherwell and Wishaw)

I enthusiastically support community ownership of housing in Scotland. I do so because, as a socialist all my life, I believe that people should have more control over their own affairs. I also believe that a fundamental principle of our socialism is that people should have that democratic control over their own lives and the places in which they live. They would get that through community ownership and housing stock transfer. It is tragic that, probably because of misrepresentation by people such as Colin Fox, the tenants of Edinburgh have voted down a proposal that would have led to 10,000 new homes in the city, significant improvements in the quality of the housing stock and stability in rent levels. As the council leader said yesterday, it is likely that the decision—following misrepresentation by Colin Fox and others—will lead to substantial rent increases, a cutback in new housing in the city and deterioration of the housing stock. That is a tragedy for Edinburgh, and I hope that those responsible will reflect on it today.

Robin Harper (Green, Lothians)

To ask the First Minister when he last met the Secretary of State for Scotland and what issues were discussed. (S2F-2005)

Jack McConnell (Labour, Motherwell and Wishaw)

I met the Secretary of State for Scotland recently. We discussed a number of issues that are important to the people of Scotland.

Robin Harper (Green, Lothians)

I add my voice and that of my party to the considerable joy that the bid has been lodged and wish Glasgow the very best of luck in a process that will require a great deal of support from the people of Scotland and the Executive.

On a less salubrious aspect of international affairs, the First Minister will be aware that the Council of Europe has considered the evidence available so far that rendition flights pass through European airports, including Scotland, and has concluded that that evidence is credible and justifies a thorough inquiry. There is considerable concern in Scotland that crimes under United Nations and European Union law have been committed on Scottish soil. Given that the evidence is credible, does the First Minister think that those allegations should be investigated?

Jack McConnell (Labour, Motherwell and Wishaw)

The Council of Europe is perfectly free to investigate. I hope that if it investigates, any investigation that it conducts will be thorough. We and all citizens of Europe will consider its report with interest. The Lord Advocate and others have said clearly in the chamber in the past that it is simply not possible to issue search warrants in Scotland or to prosecute in Scottish courts without the necessary evidence. If anyone has evidence, in relation to this or any other matter, of an alleged crime taking place on Scottish soil, they should put that evidence into the hands of Strathclyde police or the Lord Advocate, and the necessary action will result.

Robin Harper (Green, Lothians)

I am well aware that the First Minister cannot issue instructions to the police or to the Lord Advocate, but what we are calling for is an investigation. The rapporteur to the Parliamentary Assembly of the Council of Europe's Committee on Legal Affairs and Human Rights yesterday asked whether all European Governments will co-operate with an investigation into exactly what is going on. Will the First Minister give a commitment to play his part in helping with that investigation?

Jack McConnell (Labour, Motherwell and Wishaw)

If we had any reasonable request from the Council of Europe to provide information or to assist with any investigation that it was carrying out, that is what we would do. We are rational human beings who are willing to assist any international organisation in that way. However, I reiterate that for any allegation of a crime on Scottish soil to be substantiated, for any search warrant to be issued or even for a court to be approached, it is vital that the appropriate evidence is given to Strathclyde police, to one of the other police forces in Scotland, or to the Lord Advocate, so that he can make inquiries. That is the right way for us in Scotland to run an independent police and judiciary system, and we do that with the absolute best of intentions. We are of course concerned about the debate around this issue and the other concerns that have been expressed, but we must also ensure that our system operates independently. That is one of the reasons why we are one of the best small countries in the world.

Maureen Macmillan (Labour, Highlands and Islands)

To ask the First Minister what impact the United Kingdom Government's adoption of a similar scheme will have on Scotland's fresh talent initiative. (S2F-2010)