If this Bill is passed, it will change the law so that mixed sex couples can enter into 'civil partnership'. This is a legal relationship that provides couples with certain rights.
In Scotland, same sex couples can marry or enter into a civil partnership. However, civil partnership is not available to mixed sex couples. This Bill seeks to change that.
You can find out more in the Explanatory Notes document that explains the Bill.
Why the Bill was created
In 2004 the Civil Partnership Act allowed same sex couples to enter into a civil partnership.
In 2014 the Marriage and Civil Partnership (Scotland) Act allowed same sex couples to marry. This means that same sex couples have a choice between marriage and civil partnership.
The UK Supreme Court found this difference in treatment to be incompatible with the European Convention on Human Rights (ECHR). This Bill will remove that difference in Scotland by allowing mixed sex couples to enter into a civil partnership.
You can find out more in the Policy Memorandum document that explains the Bill.
Where do laws come from?
The Scottish Parliament can make decisions about many things like:
- agriculture and fisheries
- education and training
- health and social services
- justice and policing
- local government
- some aspects of tax and social security
These are 'devolved matters'.
Laws that are decided by the Scottish Parliament come from:
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Delegated Powers and Law Reform committee
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 17 January 2020.
Who spoke to the lead committee about the Bill
First meeting transcript
Agenda item 2 is an oral evidence session on the Civil Partnership (Scotland) Bill at stage 1. I welcome Dr Andy Hayward, associate professor in family law at Durham Law School; Dr Kelly Kollman, senior lecturer in politics at the University of Glasgow; Professor Kenneth Norrie, professor of law at the University of Strathclyde; and Martin Loat, chair of the Equal Civil Partnerships campaign.
Morag Driscoll, convener of the child and family law committee of the Law Society of Scotland, will join us shortly. We have received apologies from Professor Elaine Sutherland, who is unfortunately unwell.
I ask the witnesses to spend a couple of minutes telling the committee about their knowledge and interest in civil partnerships, and also to tell us whether they support the principles of the bill.
Dr Kelly Kollman (University of Glasgow)
I am a political scientist, and I have studied same-sex unions for a number of years, largely in Europe and North America—in western democracies, broadly defined. I have looked quite a bit at the civil partnership laws in the United Kingdom and Scotland, from a comparative perspective. What I can offer to the committee is an insight into what other liberal democracies have done.
As I stated in my written testimony, I support the bill’s approach. I want to end the discrimination that has been highlighted by the UK Supreme Court’s decision. I like the option of addressing discrimination by extending civil partnerships to mixed-sex or different-sex couples, because we need not only to address human rights and discrimination issues but to pluralise family policy and offer couples, of the same or of different sex, more choice. Civil partnership does that.
Dr Andy Hayward (Durham Law School)
I am a lawyer with a background and interests that are similar to those of Dr Kollman. I look at the issues slightly differently. I am based in England, so my specialism is around the long journey that we took when introducing equal civil partnerships there, and I use a comparative perspective, drawing on different models for civil partnership reform.
I support the Scottish bill, just as I supported the equal civil partnerships campaign and the legislation that was introduced in England and Wales. The basis for that support was twofold. From a lesbian, gay, bisexual and transgender perspective, it was to ensure that same-sex couples who were in a civil partnership—and did not convert it but chose it, when they had the option of marriage or civil partnership—should not have a relationship status that had diminished validity. I also welcomed it from the perspective of equality and choice, so that people were able to formalise a relationship in the way that they chose.
Martin Loat (Equal Civil Partnerships)
I am the chair of the Equal Civil Partnerships campaign south of the border. I have been involved for five years, the past two as chair. I have been supporting Rebecca Steinfeld and Charles Keidan, the couple who won the Supreme Court ruling about 20 months ago, as members will know.
I, of course, support the bill. Our campaign has 140,000 registered supporters, and the anecdotal evidence is that about 400 to 500 couples have already entered into mixed-sex civil partnerships in England and Wales since they were introduced on 31 December. I congratulate the Scottish Parliament on the terminology around different-sex and mixed-sex partnerships. The Westminster Government’s documentation still says “opposite-sex civil partnerships”, which does not allow for any gender or transitioning that may be involved—Scotland is ahead on that.
I am not an academic but a practical campaigner, and, in practice, a number of the couples who have got involved are in middle or later life. They may be divorcees or widowed or have lost a partner, and it has been moving to see the outpouring of emotion and joy on our Facebook and other social media pages when they have found that they are able to have a valid legal union with their partner due to the law change in England and Wales. Scotland should not underestimate that group, because people in their 50s, 60s and 70s have thought about the issue for a long time and know what they are doing. They are not dabbling; they have waited 20 or 30 years and now they can have a mixed-sex civil partnership. It would be tremendous if Parliament could bring that to an equivalent number of couples in Scotland.
Professor Kenneth Norrie (University of Strathclyde)
I have taught and researched Scottish family law for almost 30 years. In the past 15 years, the major legal development in family law across the world has been dealing with LGBT people, in particular, with regard to civil partnership and then the opening of marriage to same-sex couples. That has been a major focus of my research for a long time.
I support the bill, but my support is possibly a little more ambivalent than that of my colleagues here today. It is far better than the current situation; it was clear even before the Supreme Court told us so that giving same-sex couples more apparent choice than opposite-sex couples was unsustainable. It is a good bill in the sense that it tackles that issue. I would have preferred it to do something else, but I can live with the fact that it is not doing that—I am perfectly happy with that. As the parliamentary process progresses, details may need to be tweaked a little, particularly in relation to gender recognition.
We will certainly have the opportunity to explore all the detail as we go on.
Alex Cole-Hamilton (Edinburgh Western) (LD)
I thank the witnesses for their introductory remarks, which were very interesting. Before I ask my substantive question, I will follow up with a brief supplementary question on Professor Norrie’s statement. You said that you would rather the bill had been something else. For the benefit of the committee, can you define what that something else might look like?
Given that the status quo was unacceptable—that is clearly the case—the options were to either follow the Scandinavian or Irish approach, which effectively involves winding down civil partnership, or to adopt the approach that has been taken by countries such as New Zealand and England, which is to open civil partnerships to mixed-sex couples. Purely from a legal perspective, it seems to me that it is inefficient law to have two institutions to do the job of one, which leads me to a preference for having one institution. Personally, I do not terribly care what it is called.
It is efficient law reform to have one institution to which everyone can have equal access—although I must keep emphasising that the bill is much better than the status quo. We currently have two institutions and the bill will make those two institutions virtually indistinguishable, except in name and the social and emotional values that the name carries.
You referred to two institutions and, obviously, the other one is marriage. Do you accept that, for many people, the term and concept of marriage carries with it a great deal of baggage and even stigma that they would wish to avoid, although they would still like to unify in the eyes of the law and the people who care about them, and that those people would rather have two options? No one in the political universe is going to suggest that we wind down the institution of marriage.
Okay—you can plead the fifth amendment on that.
My substantive question is for the whole panel. From the English experience and in the Scottish context, when we first created civil partnerships, it was obviously a political answer, as much as anything else, to meet the desire of same-sex couples for their unions to be recognised in law. What are your reflections on why, when the original civil partnership legislation was introduced, the inclusion of mixed-sex couples was not considered?
Perhaps I can answer that question, having been involved in the campaign in England and Wales for a few years. My understanding is that David Cameron, who was Prime Minister at the time of the introduction of same-sex marriage, insisted that it was all about promoting marriage and rejected all ideas that were put to him in favour of full equalisation. So, the Marriage (Same Sex Couples) Act 2013 in England and Wales was passed without the fourth component—the full equalisation of mixed-sex civil partnership.
My question was not really about the legislation that brought in same-sex marriage; it was about the precursor legislation that introduced civil partnerships. Right out of the traps, civil partnerships were only for same-sex couples, but was the inclusion of mixed-sex couples considered at the time?
I do not know for sure, but that was in 2004, which is 16 years ago. My sense is that a desire for a civil partnership option for mixed-sex couples is a more recent movement. There was no campaign for it and there are no records that we can find of anyone in 2004 doing what we have been doing for the past two years. I do not know for sure, but I think that it was just not a talking point.
Before the Civil Partnership Act 2004, there were two private member’s bills on the subject: Lord Lester of Herne Hill introduced one and Jane Griffiths MP introduced one in the House of Commons. Those bills included mixed-sex civil partnerships. It was felt at the time that it would be better to tackle the issue for same-sex couples directly, because they did not have any access to any method of formalisation. It was felt that addressing the detriment that same-sex couples suffered was a greater priority than the need to find an alternative to marriage.
The bills had some support—particularly Lord Lester’s bill. However, Lord Lester decided to withdraw his bill in order to pave the way for the bill that became the 2004 act.
Given that there was a body of support for that approach in Westminster, were there no attempts during the passage of the 2004 act to introduce amendments to make such civil partnerships available to mixed-sex couples?09:15
There were attempts, which you can read in Hansard—the issue was raised in Parliament—but it was felt that that bill did not provide the opportunity to deal with the issue and that it was not right to use it as a method of protecting mixed-sex couples. It was felt that the Law Commission should review cohabitation and should focus on mixed-sex couples in that arena. We adopted a similar approach to that of the Scandinavian and Nordic countries by focusing on a functional equivalent to marriage at a time when same-sex marriage was not politically viable.
In 2004, when the Civil Partnership Bill was going through Parliament, the major political imperative to ensure the passage of the bill was to insulate it from marriage. There were comments from Jacqui Smith, who was the lead minister at Westminster, that the bill was not about marriage and that it did not attack that ancient and wonderful institution. There was a political imperative at the time to say that same-sex couples were different to mixed-sex couples. That argument was used to glean support for the bill. However, that was 16 years ago and the world, particularly in this area, has been transformed. Those debates would have far less purchase today, but they were important at the time.
There were attempts to amend and widen the bill. Generally, those came from people who were opposed to the whole idea: they were wrecking amendments. For example, there was an amendment calling for any two people, such as brothers and sisters, to be able to have a civil partnership. People talked about spinster sisters. Why should spinster sisters not get an inheritance tax benefit when all those gay people are being given it? That was the sort of argument we heard. That was all peripheral to the main issue of allowing same-sex couples to access all the legal rights, remedies, obligations and responsibilities that opposite-sex couples have had for centuries.
Mary Fee (West Scotland) (Lab)
Professor Norrie, your answer to the last question leads on to my first, which is about the legal and social differences between marriage and civil partnership. You touched on survivor benefits, which is one key difference that we have heard about. Can you expand on the legal and social differences between marriage and civil partnership?
When it comes to issues such as survivor benefits, the major difference is not between the institution of marriage and the institution of civil partnership. The problem is that the Civil Partnership Act 2004 and the Marriage and Civil Partnership (Scotland) Act 2014 were not retrospective. That meant that, when same-sex couples who had been living for decades as if they had entered into one of those institutions were finally able to do so, any benefits that they had built up—for example in pension contributions—were not counted. It took a Supreme Court decision—using European Union law, by the way—to say that that approach was unlawful. That retrospectivity is an issue.
If I can give a personal example, I have been in a partnership for 31 years. If one of us dies, or if we separate and there is a divorce, the law will only recognise 10 years of togetherness. That is a much more important issue than the differences between marriage and civil partnerships.
In relation to the legal differences between marriage and civil partnership, the two institutions have been designed to be as close as possible, which is good. One major legal difference—but, really, who cares?—is on the grounds for divorce or dissolution; for mixed-sex and same-sex marriage, adultery is one of the grounds, but it is not a ground for dissolving civil partnerships. However, you can get round that by other means.
The other major difference—which I would much prefer was tackled in the bill, because the issue has a real effect rather than an emotional effect—involves access to religious marriage. The 2014 act opened religious marriages to same-sex couples, and we thought that that gave us equal marriage. However, it did not, because each religious organisation has to opt in. There are something like 25 religious bodies in Scotland that have registered with the registrar general for Scotland as being willing to offer mixed-sex marriages; same-sex couples have the choice of about three. That approach is written into the 2014 act and it really limits the choice that same-sex couples have compared with mixed-sex couples. That is the sort of thing that I would much prefer to be tackled in the bill, instead of having a good bill that simply allows people to call their relationship what they want to call it.
That is interesting. We will come to the issue of adultery later. On the issue that you raised on retrospective rights, do you foresee a time when that will be addressed? Would that be done through a stand-alone piece of legislation? Would there need to be lots of tweaks done to existing marriage laws to fix that?
It is not to do with marriage laws; it is in the Equality Act 2010. It would be a simple and relatively straightforward process to amend that. There are jurisdictional issues between the two Parliaments, but there is no need to go into the marriage legislation or the civil partnership legislation, except that the Marriage and Civil Partnership (Scotland) Act 2014 contains the provision that says something like, “This is not contrary to the Equality Act 2010 if we don’t make it retrospective.”
I will make a couple of points on the experience in England and Wales. I depart from Professor Norrie’s view to some extent. He has stated that the technical legal differences between civil partnership and marriage are very minimal, but I want to focus more on the emotional, cultural and symbolic differences between the two institutions, and the meaning that marriage and civil partnership have for some people.
I appreciate that the Scottish legislation is slightly different to that in England and Wales but, on the point about adultery being a ground for divorce and non-consummation being a ground for annulment, in both cases you are, in effect, entering into an institution in which an outside party is making a comment on the sex lives of the individuals. Civil partnership legislation is silent on that matter, leaving it up to the couple to decide how they want to organise things. Particularly for an older couple coming together for a union, their knowing that if their marriage was not consummated it would not be valid might put them under undue pressure.
We do not have consummation in Scotland—well, we have consummation—[Laughter.]
To some extent, yes—
—but it is not a legal ground.
Yes, in relation to the legislation, there is a difference. Thank you, Professor Norrie.
The other point that I will make is that, when same-sex marriage was introduced, many couples who had been in a same-sex civil partnership understandably wanted to change that to a marriage. That means that they must have seen a difference that, to them, made it worth moving from one institution to the other.
If there is another group who are married but see that a mixed-sex civil partnership is the choice for them, I would argue that the emotional differences must work both ways. I do not remember people saying to same-sex couples when same-sex marriage was introduced, “Well, you’ve already got civil partnership. Why do you want to get married then?” and being given arguments about the legal definitions being quite similar. People understood the emotional differences, so I would argue that the reverse should apply.
Does Dr Hayward or Dr Coleman have any comments to make?
I echo what Martin Loat has just said. The legal differences between the two institutions are not huge, either in Scotland or in England and Wales, but the symbolism matters a great deal; indeed, as Martin Loat just said, it matters both ways. The symbolism of marriage obviously meant a lot for the legitimacy of same-sex couples but, on the other hand, it comes with a history that still has consequences for behaviour today. Some people embrace that history, but others do not. The choice is therefore an important one.
I agree with that. The legal distinctions between civil partnership and same-sex marriage are very tight—indeed, they are insignificant. However, the important idea—bearing in mind that formalised statuses are meant to evolve in society—is that the Civil Partnership Act 2004 enables couples to imprint their values on their relationship. Yes, there are some echoes of marriage in terms of the 2004 act, but that act can evolve and give parties the ability to express themselves through that act. I agree with Martin Loat and Dr Kollman that the symbolic values cannot just be sidelined but are quite significant for the couples.
That is helpful. Thank you. I am conscious of the time, so I will just briefly cover the issue of adultery, because a couple of other witnesses have already touched on it. Do you think that, in order to have true equality across whatever kind of institution couples want to enter into, adultery should be a ground for dissolution of any kind of partnership?
I would say the reverse. I completely agree with Martin Loat that the law should not be getting involved in looking at people’s sex lives. I would remove the issue of adultery from the legislation. I would remove any interest that our legislation has in the sex lives of adults who are involved in personal relationships.
I agree with Professor Norrie that adultery should not be a consideration in relation to marriage or civil partnership. However, I would recommend, as an interim measure, that civil partnerships should not recognise adultery at all for mixed-sex and same-sex partnerships. We should also consider down the line—some of the consultation responses touch on this—an overhaul of divorce law. We have a bill currently before the House of Lords—the Divorce, Dissolution and Separation Bill—that would remove the issue of fault completely from our divorce law and get rid of the issue of adultery completely. There would simply be a statement of marital breakdown, subject to a time period. That would be a much more progressive, modern approach.
Okay. That is helpful. Thank you.
Oliver Mundell (Dumfriesshire) (Con)
I want to come back to Professor Norrie on the question of legal efficiency and push it slightly further. Is there an element of the law having to take into account the social and emotional feelings of the people that it is meant to govern? Is that a different form of efficiency?
Do not get me wrong, because I agree that the law has a symbolic role to play. A really good example of that is the Marriage and Civil Partnership (Scotland) Act 2014, which, in reality, gave to same-sex couples very little that they did not already have under the 2004 act in terms of legal consequence. The party that you have to create the relationship, the involvement of ministers and all those sorts of things are different. However, in terms of actual legal consequences, the 2014 act did virtually nothing. That was not the point of the 2014 act, though; the point of that act was symbolism. It declared very clearly that 2,000 years of discrimination against LGBT people, official disparagement of LGBT people and a status-based assumption in the law were all over. It was a very powerful and important piece of Scottish Parliament legislation.09:30
There is symbolism in the Civil Partnership (Scotland) Bill but, for me, it does not have the same purchase. Some people reject marriage because it has a patriarchal, religious history—of course, that is true. However, to me, it is a bit like a woman saying, “I’m not going to vote, because the voting rules used to be patriarchal and were designed to keep men in power and women out of power.” The world has moved on and marriage has evolved. I dislike the phrase “equal marriage”, which was the big, powerful slogan that was used. It served its purpose, but I much prefer the term “gender-neutral marriage”. I think that the 2014 act has created gender-neutral marriage.
In my view, marriage has been saved as an institution that is open to everybody as a result of the 2014 act. Because of that, I see the Civil Partnership (Scotland) Bill as being far less powerful. Nevertheless, I acknowledge that it has symbolic and emotional purchase for some people.
From a legal point of view, that would be a legitimate ground for doing something.
I just wanted to clarify that, for the sake of balance.
Before you go on, Oliver, Dr Kollman would like to comment.
I agree with a lot of what Professor Norrie has just said. It is true that, from the point of view of symbolism and opening up marriage, the 2014 act had more punch. However, I do not agree completely with the analogy with voting for women. The history of women being excluded from voting does not necessarily impact on women’s behaviour today when they think about voting or participating in politics, whereas the history of marriage—of course marriage has evolved a lot; I am not saying anything against marriage today—still has an impact on how people behave today. That is a big difference. That is why the symbolism of the bill is important.
Do you have any concerns about the interim plan to recognise different-sex civil partnerships from the rest of the UK as marriages in Scotland?
As I read the bill, the interim plan is that if different-sex civil partnerships come into force in the rest of the UK before they do in Scotland, those partnerships will be treated as marriages in Scotland until such time as our bill becomes effective. I see no conceptual difficulty with that whatsoever. For 10 years between 2004 and 2014, our legislatures were perfectly comfortable in telling same-sex couples who married abroad that, when they came to this country, they were in civil partnerships and would be treated as such. A lot of people did not like that, but the law managed and accommodated the situation. That was a mechanism—a clumsy and unfortunate mechanism—to allow people’s legal rights and responsibilities to flow, and that is what the interim measures in the bill will do. In that respect, the bill is simply following a pattern.
I need to comment, not just because of my role in the Equal Civil Partnerships campaign but as somebody who is in a mixed-sex civil partnership that is recognised in England and Wales. I am in the target group and, given everything that we have been through on a campaigning level, I would have a huge problem in principle with the proposal that, in the interim period, the relationship that I am in would be treated as a marriage if I were to move to or operate in Scotland. That would undercut what I have spent five years campaigning for, to the point that I might not want to come to Scotland until the position changed. I have not gone through all of that just to be treated as married for technical expediency. It is not for me to tell you how to run your laws, but I urge you to either rethink the position or move very quickly through the process so that it becomes a purely theoretical point. It sticks in my throat that the relationship that I am in would be treated as marriage, given that I am a campaigner for mixed-sex civil partnerships.
Following on from that, is there a similar concern about how civil partnerships are seen and whether they are recognised overseas? I know that that is already an issue for some people. For both forms of civil partnership—mixed sex and same sex—are there concerns about how they are seen in other jurisdictions and what rights extend to civil partners?
It is an inevitable problem that, if the Scottish Parliament creates or expands an institution, the Scottish Parliament has no power to tell the rest of the world to recognise that institution. I do not think that we should be hung up about that; we have to do what is right for Scotland and for people who live in and come to Scotland. We cannot influence Iran, Iraq, Saudi Arabia or any other country that is not going to recognise our relationships. I have sympathy for Martin Loat if he feels that his relationship is not properly recognised in Scotland. If I go to half of the countries in the world, not only would I not be regarded as being in a legally recognised relationship that is called something that I do not want it to be called, my relationship would not be recognised at all. I would effectively be divorced every time I got off an aeroplane in some countries. Some years ago, I was told by immigration officers in some countries that I was no longer in a relationship simply because I crossed a border.
No Parliament on this planet can tell every other country what to do—that is an inevitable consequence of different legal systems having different problems. The issue is the reverse one: what we do when people come to Scotland. That is the important issue. Again, I have sympathy for Martin Loat and I understand the issue because, in a sense I have also faced it, although, frankly, in a more severe form. It would not be technically problematic for the bill to be amended to say that mixed-sex civil partnerships that are validly created abroad will be recognised here, even though people cannot enter into one here yet. I would draw an analogy with polygamous marriages. You cannot enter into a polygamous marriage in this country; however, if parties validly enter into a polygamous marriage in a country that allows it, and if the parties are domiciled there or are nationals, and they come here, they will still be married. I see no technical problem with the bill being amended in the way that Martin Loat wants it to be. I would support such an amendment.
That is helpful, thank you.
Angela Constance (Almond Valley) (SNP)
I am keen that we distil the benefits surrounding different-sex partnerships. The panel has touched on the benefits, and Oliver Mundell has spoken about the social and emotional aspects. In answer to Mary Fee’s questions, some of the more practical benefits for pension rights were touched on. In thinking about the benefits of different-sex partnerships, can we focus on the rights that they give people? I am particularly thinking about the different rights that people have in comparison to those that they would have if they were cohabiting. Even in Scotland, where rights are enhanced, if people cohabit for a lengthy period of time, that is still not the same as marriage.
I will leave the detail to the family law academics. In England and Wales, we faced a challenge in educating people that there is no such thing as a common-law marriage. Many couples who were cohabiting thought that they had rights, although that number might be reducing now. In practical terms, that often affects the woman in the relationship more if the man works, has accrued some wealth and has then left. The woman might think that she will get equal shares, but that might not be the case. We have argued that the civil partnership for mixed-sex couples provides a lighter and easier way to get the legal recognition and protection that would apply to both sides of the couple in that example and protect the children.
I will leave it to others to talk about the fine detail but, from the point of view of our campaign, a mixed-sex civil partnership is an easy and doable way to get equal rights. It costs £46.
We have touched on some of the legal benefits, but there is also the idea that the mixed-sex civil partnership is a status. There is formalisation. There is a start date and potentially an end date, and that will generate the ability to calculate and accrue benefits. There are the standard benefits of protection on relationship breakdown, which are really important. I note that section 28 of the Family Law (Scotland) Act 2006 allows for a cohabitation claim. I know that the Scottish Law Commission is reviewing that. We do not have that in England. Although I welcome cohabitation reform in England and Wales and think that it is the next area for us to go into, the fact that you have that here is quite important. However, reform is needed.
Civil partnerships will certainly be attractive in protecting vulnerable couples. They will be popular in England and Wales—we will probably have a surge in demand—but they will not remove the pressing need for a broader, blanket safety net for all couples.
Andy Hayward is quite right that the approach does not tackle the real issue in England. There is an argument that opening up civil partnerships to mixed-sex couples is more urgent in England and Wales than it is in Scotland because they do not have cohabitation provisions in the way that we do. We have succession claims, claims on separation, and financial adjustments at those difficult periods of people’s lives.
The real issue is the choice between a registered relationship—whether that is a marriage or a civil partnership—and an unregistered relationship. One of the real problems in England is that Parliament has consistently refused to deal with the issue of unregistered relationships. If a person does not register with whichever institution, they are left in an extremely vulnerable position.
Martin Loat is quite right to say that all the research and statistics show that people believe that they have a so-called common-law marriage, but they do not: they have nothing. In Scotland, it is quite different. People already have a choice of whether to register their relationship and get the full gamut of rights and responsibilities or not to register their relationship, in which case the law will protect the vulnerable.
The bill is all about registered relationships. It does not address—and it is not the place to address—any further amendments in relation to cohabiting, unregistered couples.09:45
Professor Norrie, are there enhanced rights in Scotland for people in a civil partnership or a marriage compared with the situation for people who cohabit? Am I right in thinking that that is because of issues to do with pensions and exclusion orders for perpetrators of domestic violence and that there are other quite discrete nuances?
You are right, except in relation to the domestic violence legislation, which is very carefully designed to cover all types of couples. Your fundamental point is absolutely right: if a person is in a registered relationship, they have enhanced protections. In 2006, the Scottish Parliament deliberately chose to keep lesser protections for cohabiting couples in order not to undermine the institution of marriage. That is how the argument went at the time. Therefore, there is a hierarchy with marriage and civil partnership at the top, then cohabitants, and then people who perhaps do not live together but are in long-term relationships.
Thank you. That is helpful.
I will not talk members through the details of the different laws, because the family lawyers can do that. However, on policy needs, it is very clear that family types are continually diversifying and that cohabitants in particular are becoming a much more common family type. The law on cohabitants here is very helpful but, as Andy Hayward has already said, the Scottish Law Commission is looking into whether it is adequate, given that quite a bit has changed since 2006 with regard to how people live their lives and form families. It is worth looking at whether the law on cohabitants is really doing the job that we need it to do, given how society is today.
I want to return to the issue of gender recognition, which Professor Norrie touched on in an earlier response. In your submission, Professor Norrie, you questioned whether the full implications have been worked out for the situation in which one party to an existing civil partnership or marriage changes gender. Will you expand on your comments and explain what difficulties you envisage? Perhaps the rest of the panel can then give their views.
The practical difficulty is that there are currently two bills before the Scottish Parliament: the Civil Partnership (Scotland) Bill, which we are considering today, and the gender recognition reform (Scotland) bill, which may be just a draft bill—I cannot remember. The situation is a repeat of what happened in 2004, when the Civil Partnership Bill was going through Westminster. That was followed very quickly thereafter by the Gender Recognition Act 2004. The interplay between those pieces of legislation became very clumsy. The Scottish Parliament faces the same clumsiness this year, which is really unfortunate. If you could combine the two pieces of legislation, many of the problems would be resolved. The main problem is that the situation is overly complex. It seems to me that, once marriage—
If I may interrupt you, is the situation overly complex by necessity, because of the law, or because we have made it overly complex?
We have made it overly complex, but the approach was designed to deal with the fact that, in 2004, there was a complete separation of same-sex relationships and mixed-sex relationships and civil partnerships and marriage. Therefore, if one of the parties in either a civil partnership or a marriage changed gender, that relationship had to come to an end because we could not accommodate a different gender mix in either of the relationships. The marriage legislation half dealt with the problem because, with marriage, gender does not matter now. That is why I prefer the term “gender neutral”.
The Civil Partnership (Scotland) Bill will make civil partnership gender neutral, which is good. If we had started from the point that both relationships are gender neutral, the transgender issue simply would not arise, because it would not matter. However, instead, we are trying to replicate the complex provisions of interim gender recognition certificates while people are in a relationship in order to protect the other party and so on. We do not need all that. If a person in a relationship changes gender and the other person cannot accept or accommodate that and no longer wishes to be in that relationship, the divorce courts can deal with it. That is not a difficult thing. Instead, we are trying to replicate the sensitivities that we created in 2004 in a different world to deal with a different situation.
What are the views of the rest of the panel on that?
I broadly agree with Professor Norrie. I have another point to make in a moment, so I will save time by passing on this one.
I, too, am broadly in agreement with Professor Norrie.
Part 5 of the Civil Partnership (Opposite-sex Couples) Regulations 2019—those are the regulations that brought in mixed-sex civil partnerships in England and Wales—has allowed an individual with a full gender recognition certificate to be able to have a mixed-sex civil partnership without having to dissolve the original civil partnership, provided that their partner consents to that. There is an alignment so that there is no break in the relationship—people can switch between the different types of status, which is welcome.
We are consulting on the issue. I hope that we will be able to change the Gender Recognition Act 2004 through consultation, but that process has stalled. It might be premature to move on that.
Professor Norrie, are you suggesting that the draft gender recognition reform (Scotland) bill, which is out for consultation, is the means to remedy the issue? If an amendment were made to that bill when it reaches the Scottish Parliament, would something need to be done to the Civil Partnership (Scotland) Bill so that they mirror each other, or would the gender recognition reform (Scotland) bill be the only one that needed to be changed?
I do not know. As I said in my written submission, the committee needs to look at the matter carefully. The clean and sensible place to deal with it is probably in the gender recognition reform (Scotland) bill. In that case, the provisions in the Civil Partnjership (Scotland) Bill amending the Gender Recognition Act 2004 would need to be reconsidered.
Thank you. That is very helpful.
Annie Wells (Glasgow) (Con)
Good morning, panel. What are your views on allowing married couples to convert their marriage to a civil partnership and vice versa?
I very much want to come in on that point. The Westminster Government has got itself into knots on the issue, specifically in relation to converting a mixed-sex or traditional marriage to a mixed-sex civil partnership. That is still out for consultation in England and Wales—it was kicked out of the Westminster bill at the last minute, perhaps because it was seen as controversial and possibly opening the door to objections from the church and other religious groups. There is an opportunity in Scotland to neaten things up and get it all clarified.
There is an argument that couples who find themselves in traditional marriages and realise that they would have had a mixed-sex civil partnership had it been available should be able to convert. The Equal Civil Partnerships campaign position is that we totally agree with that. We do not want there to be any time limit on that—we do not want people to have only two years or 18 months in which to make their decision.
We have two main reasons for saying that, the first of which is practical. A couple might be living and working overseas in a jurisdiction that does not recognise mixed-sex civil partnerships, so they might feel that they have to get married. In five years’ time, they might move back here—to Scotland, England or Wales—and find that the ship has sailed on the conversion opportunity.
The other reason is more a social or societal one. We feel that we are on the verge of seeing a new social construct in the mixed-sex civil partnership. Who knows how that might mature or develop? My view is that support for it is silently building and that it will become more popular. In five, 10 or 15 years from now, it could become the norm for many people, who might see others in their peer group entering into such partnerships. If, at that time, a married couple were to decide that they understood the differences and that they would rather be in a civil partnership and wanted to convert to one, the Equal Civil Partnerships campaign would not want that not to be allowed. To me, that would be like saying that we made provisions for veganism 20 years ago but that, if someone now declares that they are vegan, they can be one for evermore. We know that society changes and that things suddenly become more popular and other people want to join in. We would argue for an open-ended ability to convert from a traditional marriage to a mixed-sex civil partnership.
I broadly agree. The issue is partly about increasing people’s choices in how they structure their lives. Leaving such choices open for as long as we can and making the options as liberal as we can would be good.
I echo what Martin Loat said. It would also be useful to consider examples from other countries. In France, the pacte civil de solidarité—PACS—is what we might call a registered partnership-lite arrangement. It has become increasingly popular over the years—so much so that, for every five marriages, there are now four PACs. The form of registered partnership that is available in the Netherlands, which is open to both mixed-sex and same-sex couples, was previously never all that popular for a variety of reasons, but it has recently become increasingly more so. Things are changing. In other European countries, the direction of travel is similar in that registered partnerships have become more popular for mixed-sex couples.
There is a fundamental flaw in the bill that will come back to haunt the Parliament. The idea is to do for mixed-sex couples what we previously did for same-sex couples. That is fine. However, when same-sex marriage came in, what we did for those couples was to give those who were already in civil partnerships the choice of either staying in them or converting to marriage. Conversion could be done through two mechanisms: by a purely administrative one or by getting married. I do not think that the marriage option is available in England. At any rate, the point is that people in same-sex civil partnerships can convert to marriage. I think that, for the first year, all fees were waived on the ground that those people had previously had only one option but now had two and that, if they wanted to take the second option, they should not have to pay for that. That model should have been adopted here.
From my reading of the policy memorandum, I think that the Scottish Government has deliberately chosen not to allow people in marriages to convert to civil partnerships. I presume that that was through fear of undermining the institution of marriage, but it should have done so. If the whole point of the exercise is to do for opposite-sex couples what has previously been done for same-sex couples, we should do it all. We should allow mixed-sex couples who married but would now prefer to have civil partnerships the opportunity to have them. For the first year, we should not charge them for doing that. We should simply follow the model that we successfully adopted in 2014.
I think that all my questions have been answered. Thank you very much.
If Oliver Mundell’s supplementary question is brief, we can probably fit it in.
I think that Professor Norrie has captured the point that I was going to make.
Okay. That brings our session to an end. I thank our witnesses very much for giving their evidence, which has been very helpful. I suspend the meeting briefly to allow for a change of witnesses.09:59 Meeting suspended.
10:02 On resuming—
20 February 2020
Second meeting transcript
Agenda item 2 is the Civil Partnership (Scotland) Bill, on which we will take oral evidence from two panels. I welcome our first panel: Fiona Blair, president of the Association of Registrars of Scotland; Rod Burns, deputy registrar general at the National Records of Scotland; Fraser Sutherland, chief executive of the Humanist Society Scotland; and Ephraim Borowski, director of the Scottish Council of Jewish Communities. You are all very welcome this morning, and I thank you for being with us.
I will start off by asking you to tell us briefly about your organisation and whether you support the general principles of the bill.
Fiona Blair (Association of Registrars of Scotland)
I am the president of the Association of Registrars of Scotland, which is also known as AROS. We have been representing Scottish local authority registrars since 1865. AROS provides a valuable networking group for registrars and assistant registrars and, as an association, we are very proactive in contributing towards a workable and customer-friendly registration system. We work closely with National Records of Scotland, provide professional advice on registration procedures and take part in working groups such as this. We are in favour of opening up civil partnerships to mixed-sex couples.
Fraser Sutherland (Humanist Society Scotland)
The Humanist Society Scotland is the national body for humanists in Scotland. We have 15,000 members across the country, and many people know us for providing ceremonies at weddings, funerals and naming ceremonies. We are very supportive of opening up civil partnerships to mixed-sex couples.
Ephraim Borowski (Scottish Council of Jewish Communities)
I am the director of the Scottish Council of Jewish Communities, or SCoJeC. We are an umbrella body for all the organised Jewish communities in Scotland, which are the ones in the cities. We also work very closely with the scattered Jewish population in more remote areas. We have just finished a piece of research that looks not at this kind of issue but at the issues that concern Jewish people in Scotland in general.
Do you support the general principles of the bill?
I should put on record that there are political issues—with a small “p”—on which it is not possible to speak with a single view on behalf of an ethnically and religiously diverse community such as the Jewish community. Therefore, I will probably be speaking for a kind of consensus, which is that we are unlikely to be very much engaged with this but do not have any objections to it. However, individuals and groups in the community have diverse views.
Rod Burns (National Records of Scotland)
National Records of Scotland is a non-ministerial department of the Scottish Government. We oversee the registration system and provide support and training in relation to the information technology process and that kind of thing, in order to implement Scottish Government policy around registration. We support the bill.
What implications, if any, might the bill have for your organisations?
We do not think that there will be many implications apart from the initial set-up. Our social work departments would need to incorporate forced civil partnership along with forced marriage. That would mean a change to their interagency guidance and, possibly, training, which would mean releasing registrars to come down to Edinburgh to do centralised training, with the associated travel costs. However, apart from that, we cannot think of anything that would impact on our service.
The implications for us would be much the same as those that Fiona Blair has described. We would update the training and information that we provide. Many of our celebrants are already trained to provide civil partnerships for same-sex couples, and the procedures would be the same; we would just update our celebrants on what was available.
There may well be two points where the bill will affect us. First, we have a semi-official role through a concordat with NRS. If a couple in which one partner is from Scotland and the other is from anywhere else in the world want to be married by a rabbi from “back home”, wherever that is, NRS is required to check the bona fides of that individual. However, it does not—quite rightly—want to get involved in the internal divisions between groups in the Jewish community, so it has a single, one-stop shop: SCoJeC. NRS asks us to go to the relevant branch of Judaism and check out the individual. That will apply for civil partnerships just as it does, at the moment, for marriage.
The second, more important, point concerns the inclusion of section 9 of the bill, which is about religious divorce. I very much welcome that section. At the moment, the only listed faith is Judaism, but the same provision might be available for other faiths if they wanted it, which is why the provision is written in general terms. That is important, because it mirrors the clause in the Divorce (Scotland) Act 1976, which has been extremely useful and has, as far as we are aware, put an end to the abuse that there used to be.
For NRS, adding mixed-sex civil partnerships will simply add a complementary new function. As Fiona Blair said, there will resource implications in the initial set-up. We will make changes to the forward electronic register, which is the national electronic database for registration; system changes will have to be made; there will be training of registrars; the process will have to be amended; and our handbook will need to be updated. We will have to devote resources to setting up the system, but, once it is up and running, it will become part of business as usual. It will be complementary to same-sex civil partnerships, which Fiona Blair would agree have become a regular part of registration business and are completely unproblematic.
Good morning. What are the legal and social differences between marriage and civil partnership? Can you explain those?
It is confusing for the public, who often ask us what the differences are. I understand that adultery cannot be cited as a reason for the dissolution of a civil partnership, whereas it can be cited in a divorce case. There is very little difference between civil partnership and marriage regarding legal rights, which have been protected and changed over time. It is confusing for the public, and it would be good to have clear guidance.
I will not speak much about the legal side; you have people who are far more expert than me here to do that.
You have received quite a lot of written evidence from couples and individuals who see the historical context of marriage as something they do not want to enter into. Civil partnership is more attractive to them because of how marriage has historically been framed.
It is interesting that, since the introduction of same-sex marriage, a lot of same-sex couples have chosen to get married rather than to opt for civil partnerships when they have that choice. There has been historical discrimination against lesbian, gay, bisexual and transgender people, who have been unable to have a wedding. That is no longer an issue, which may have changed some of the social aspect of marriage.
The social aspect changed dramatically during the 20th century. Marriage used to be a religious thing; then registration services, on behalf of the Government, became the most popular choice. From the turn of the century, since 2005, humanist marriages have become a thing. There is a growing popular demand for humanist marriage, which, in the words of the Marriage and Civil Partnership (Scotland) Act 2014, is a “belief marriage” as opposed to a religious or Government-based service. The social landscape of marriage changed considerably over the 20th century and has also changed since the 2005 decision to allow for a belief body and following the 2014 change in the law to recognise belief marriages.
The difference for the Jewish community would be minimal. The reason why we need section 9 is that, in the case of marriage, a single ceremony creates two marriages: civil marriage and religious marriage. If a marriage is going to come to an end, both marriages will need to be terminated, and the processes are different.
The reason why I said that the bill would not have much practical impact is that the reasons that people give for wanting civil partnerships rather than marriage would make it almost contradictory for them also to want to have a religious marriage ceremony. It may be that this does not come about, but, in effect, Judaism recognises marriage by custom and repute—for want of a better phrase—in that publicly living together still requires a religious divorce. From that point of view, if someone were to go down the new path envisaged by the bill, it would make very little difference at all.
We work quite closely with the Scottish Government and provide input when it is developing new policy on something like this. However, we set ourselves squarely in the role of implementing whatever the law ends up being. In general, NRS refrains from taking a view on the social impact of something, even though people who work in NRS are quite interested in marriage and civil partnership. We are at the receiving end of settled policy, and we work carefully with registrars, the Scottish Government and other stakeholders to ensure that we are implementing things fairly and transparently.
Civil marriage was introduced in 1940 and, since then, we have had civil partnerships and the introduction of the category of belief marriages—those are all staging posts along the way of new settled policy, which we are working to implement. We do not take a view on the social benefits, although there clearly are social benefits; we just crack on with doing a good job of implementation.
Fiona Blair mentioned that one of the differences between marriage and civil partnership is in the grounds for divorce or dissolution, specifically in relation to adultery. Do the panel members have any views on that specific subject?
I have no views on that; I would never get involved in the divorce or dissolution aspect of a marriage—that would be dealt with legally.
There is a wider question about reviewing the whole of the divorce legislation and how it sits at the moment. Many voices are saying that the separation requirements in divorce legislation are not modern and up-to-date in relation to how people’s lives work. There have been some high-profile cases down south. It is time for a wholesale review of that legislation, rather than just of that issue.
I agree with that. In Judaism, marriage is entered into voluntarily and the contract is ended equally voluntarily by the parties. Therefore, in a sense, the only ground for religious divorce is irretrievable breakdown—the parties say, “This marriage has come to an end.” Anything that goes towards that level playing field would be consistent with where we are coming from.
We do not have a view on that issue.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I want to ask about the benefits of introducing different-sex civil partnerships. What might the impact be on different equality groups? We have had submissions from Engender, Children in Scotland and others, letting us know what they think the benefits might be. Do you have any views on that?09:15
I think that the introduction of the ability to recognise mixed-sex civil partnerships will be good from an equality point of view and will give us parity with other areas of the United Kingdom. It is already possible to enter into such partnerships in England. Since that law has been implemented in England, as registrars, we have had 47 inquiries in 11 local authority areas from people who want to enter into a mixed-sex civil partnership in Scotland. That is just a small sample that I took before coming to the meeting.
The reasons that people give for wanting to do that vary. For some, it is their personal preference; they see marriage as a one-time thing and they want something different. Some people do not want to have a ceremony—with marriage it is necessary to have some form of ceremony, whereas with a civil partnership it is just a case of registration. Some people whose marriage ended with a death do not want to get married again because they think that, if they did so, that would be seen as not honouring their first husband or wife. Many different reasons are given for wanting to enter into a mixed-sex civil partnership. From an equality point of view, I think that the introduction of the ability to do that is a good thing.
From our point of view, it is important to give couples the opportunity to decide for themselves. At the moment, we have a mixed system in which some couples can choose between the two options and some couples cannot. We do not favour that, and the bill seeks to repair the situation.
Fiona Blair has highlighted some of the reasons why people might choose a civil partnership over a wedding. At the heart of the matter, it is a question of giving couples the choice and allowing them to decide what is right for them. A couple might have a myriad of reasons for making their choice, but it is important that we recognise that choice when they form their relationship in a legal context.
I can speak for only one equality group. Beyond that, all I would say is that, if other groups feel that the ability to enter into a mixed-sex civil partnership would benefit them, our default position is to be in favour of equality.
It is clear that having a wider range of legal unions available to people brings a range of benefits, but there are some key groups who will benefit quite strongly, such as people who are undergoing the gender recognition process. Under the current rules, the process has always seemed quite harsh. At NRS, we take the end results of the UK gender recognition panel and implement them by making an entry in the gender recognition register. We are involved in the practical, business end of changing people’s birth certificates and facilitating the official legal recognition of their new status.
It has always seemed quite harsh and rather against the general drift on equalities that someone who was in an existing civil partnership had to dissolve it. For me, a key benefit of the bill is that it will address that. Although only a small number of people will benefit in that way, we are talking about a key equalities group.
I agree with the comments of the other panel members.
What do you think are the specific benefits of civil partnership compared with cohabitation?
Civil partnership provides couples with better financial and legal status. Entering a civil partnership gives a couple a recognised certificate that enables them to prove that they are a couple, whereas cohabiting couples must prove that they have been together for a certain period of time.
As humanists, we would favour a system in which it did not matter what the legal status of a couple’s relationship was. People should be treated as equal in the eyes of the law. Lawyers would probably roll their eyes at that and say, “That would be a nightmare—how would you police that?”
As a belief body, for want of a better expression, we would say that the important thing in a relationship is the commitment between the partners. It does not really matter whether a couple has a piece of paper that says that they are in a civil partnership or a marriage or are cohabiting. What matters is the relationship at the heart of that and the commitment of the partners to each other, rather than the fact that they have a bit of paper.
I hear what you are saying about the idealist point of view, but do you think that the current system provides more financial security?
There are people who have excluded themselves from the marriage landscape because they do not feel that they fit into it. The civil partnership gives them the option to access the legal advantages that they would not get because they do not want to enter into marriage. That can only be a good thing.
Over the years, a number of people who have wanted to enter into civil partnerships have not had that option. Some of those people might change their mind and decide they want to have a marriage instead, but some might decide they do not want any legal ceremony, so they just continue to cohabit. The civil partnership will be another option for them. Fiona Blair has highlighted how registrars have already received a number of inquiries, and, since the legal changes down south, we have had people getting in touch and asking how long it will be before they can have civil partnership as an option.
I understand that there is very little practical legal difference between the two. The reason that somebody might opt for a civil partnership is that, on the one hand, they want recognition, but, on the other hand, they reject—and this is quite clear from the English court cases on the topic—some of the baggage that comes with the term “marriage”. If that was a reason for not formalising the relationship at all, having this option, which allows them to get that recognition, and formalising it in a way that will affect children, property and so on is obviously a good thing.
I echo that stress on recognition. With many apologies to Fraser Sutherland, I do not want to disagree publicly, but NRS is in the business of producing and standing behind bits of paper, so we think that they are quite important. They are no reflection of the strength of a relationship, but they are the means by which people can rely on the formal legal recognition of their union. As I said, we think that expanding the number of options that people have to acquire that legal recognition is a good thing.
I do not have any specific comment on the underlying issue.
Angela Constance (Almond Valley) (SNP)
The bill replicates the provisions for religious and belief bodies to opt in if they wish to register different-sex civil partnerships. What are the witnesses’ views on those provisions? I would like to start with Mr Borowski.
I thought that you might.
Obviously, that is at the interface between the NRS and the community. It will not be an issue for a couple both of whom are Scots. If they are members of the Jewish community, whatever clergy their community has will automatically be recognised by the NRS as able to solemnise marriages and, if it wishes to, solemnise civil partnerships.
The problem that arises is purely practical. If the celebrant has to be somehow certified to the NRS for it to recognise the religious ceremony as creating a civil marriage or a civil partnership, the new wrinkle will be that, if one member of a couple comes from elsewhere, such as England, or from one of the different umbrella communities—the orthodox, reform or liberal community in Scotland—or potentially another branch of Judaism that does not exist in Scotland, they might want to bring a celebrant from their own community. The issue might be to do with the branch of Judaism not recognising, or not wishing to participate in, civil partnership ceremonies of any kind.
We have suggested a couple of tweaks to the wording in order to handle a case in which an individual rabbi or member of the clergy is prepared to carry out the ceremonies, but belongs to a branch that has turned its face against them. We take the view that two checks—not just one—would need to happen. If somebody performs a religious ceremony, they do so on behalf of their faith community, and therefore they cannot dissent from that community’s view while supposedly representing it. That is the thinking behind our suggested tweaks to the wording.
Will you summarise what you think the solution is, given that—correct me if I am making wrong assumptions—pluralism will continue to exist within the Jewish community? You have made suggestions about the wording. For the record, will you explain what would help?
Let us start with marriage. Currently, if somebody wants to bring their rabbi from Patagonia, the NRS will ask us about the bona fides of the individual. We will then check with whichever UK or Scotland branch the individual purports to be affiliated with whether it accepts that they are affiliated, and we will pass on the answer to the NRS.
The same thing that currently happens in the case of marriage would happen in the case of a civil partnership. However, we suggest that two checks need to happen rather than just one. It should be checked that the individual is willing to conduct the ceremony—I presume that they have already been asked, otherwise the couple would not have suggested it—and that the branch that the individual claims to be affiliated with does not have a policy that would prevent one of its local members from carrying out that ceremony. That extra check would be carried out by us rather than by the NRS. We would then report to it.
Okay. Thank you for that.
Mr Sutherland, would you like to add anything in reply to my root question?
There is nothing specific to add. Obviously, the bill will replicate our organisation’s prescribed status under the existing legislation, which allows us to nominate celebrants in order to carry out humanist ceremonies. Nothing major would change in that process with regard to civil partnerships—things would be the same. We do not have quite the same issue that Ephraim Borowski has pointed out.
Quite a lot of couples come to Scotland in order to specifically access humanist marriage, because not many countries around the world offer it. It is, notably, not available in England and Wales. The majority of the couples who want a legal humanist marriage in our sister organisation, which is based down south, choose to come to Scotland to enter into that, because they cannot have that in and England or Wales. Other European states and some US states recognise humanist marriages, but we still get quite a lot of people for them. Scotland is seen as a wedding destination—Fiona Blair could give members the statistics for that. A lot of couples choose to come to Scotland to get married for a variety of reasons, and we do only a small part of the belief marriages. However, that is important.
The option for more couples might or might not drive extra people coming to Scotland. It certainly will not do so from England and Wales, but it might from further afield, where civil partnerships for mixed-sex couples are not available.
Do other members of the panel want to add anything? I know that neither Ms Blair nor Mr Burns is representing religious or belief bodies, but they might wish to add something, given what they have heard.09:30
Yes. I simply want to add that the opt-in principle is important. We have done a bit of research, as Fiona Blair has done, on how many bodies have opted in to do the existing civil partnership ceremonies. According to our records, only 13 religious and belief bodies have opted in to the list to do them, whereas there are quite a lot more that do opposite-sex marriages, for instance.
It would be dangerous to presume that all bodies that put forward celebrants for authorisation will automatically want to do the new civil partnership ceremonies. As Ephraim Borowski said, it is not just about the body; it is also about individual celebrants. There should be no compulsion on a body to provide celebrants to do the new civil partnership ceremonies or on individual celebrants to do them. The principle of voluntary engagement has worked very well so far with the existing civil partnerships, and our general principle would be that, if that is working well for same-sex civil partnerships, we should probably replicate the process for mixed-sex civil partnerships, given that it is tried and tested.
Until 2014, civil partnerships were carried out by a registrar or an assistant registrar. Under the Marriage and Civil Partnership (Scotland) Act 2014, it was opened up for religious and belief groups to carry them out. From looking at the statistics, I note that only nine civil partnership ceremonies have been conducted by a religious or belief body. The majority have been carried out by a registrar or an assistant registrar. I do not know whether people associate the word “civil” with registration services. However, it is good to give people choice across the board. That is my view.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Good morning, and thank you for your remarks so far, which have been very interesting. It has been clear to the committee since the bill was introduced that one of the drivers behind extending civil partnerships to mixed-sex couples is the not inconsiderable baggage that some people attach to the term “marriage” or the institution of marriage. For many reasons, people find it off-putting, and they do not want to go down that route. Fiona Blair articulated very well a reason that I had not heard of before, which is that, in the case of widowhood, somebody might want to honour the marriage that has gone before but solemnise the relationship that they are in now. I think that that is exactly right.
Section 3 of the bill, which is entitled
“Interim recognition of different sex relationships formed outwith Scotland”,
refers to jurisdictions that already have mixed-sex civil partnerships, such as England. Section 3(2)(a) suggests that a couple who have such a civil partnership and come to Scotland are, until the bill is adopted and implemented,
“to be treated as being in a marriage”.
Last week, it came out quite strongly that that would be a real concern to people because, as I have said, that is not what they went into and they do not want to be thought of as being in a marriage. What are your views on that? Do you see any way round it? Could we regard such people differently on implementation of the bill?
I cannot say that I have thought about that. At present, registrars would not recognise a mixed-sex civil partnership in Scotland, but I do not really have any strong views on the subject. In the interim, recognising such civil partnerships as marriage would be difficult for people who entered into a civil partnership because that was their choice. They had the choice of marriage or a civil partnership, and they went down the civil partnership route. They did not want a marriage. I can see that people would not be happy about that but, as a registrar, I do not really have a view on that, I am afraid.
I suppose that it comes down to the legalities and how we can recognise something that does not exist. I imagine that that is why the bill is drafted in that way.
In general, I agree with the principle that you mentioned. If people have deliberately chosen not to have a marriage, why would we classify them in that way? I suppose that the drafters would say that it is because they want to provide the protection that comes with that, as the people are in a legally recognised relationship. It is, no doubt, a tricky one to square.
I do not have very much to say about that, but I will say it nonetheless—I cannot help it. Given that there is almost no difference between the two states, I make the logic-chopping point that there is a difference between being married and being treated as being married. The interim status would merely treat two people as if they were married because there is no alternative to that at the moment. You can call it what you like, but it would merely be a recognition of something that happened somewhere else.
If I remember correctly, at your meeting last week, somebody discussed with you the analogy of polygamous marriages. You cannot have them here, but if you are misguided enough to have them somewhere else, you are treated here as being married to all the people to whom you are married. There would be something similar to that: people would be treated as if they were married, which is not the same as actually having that status.
That is a very helpful insight. Reading section 3(2)(a) in that context puts a slightly different spin on it.
By extension, given that we have in Scotland the institution of civil partnership, albeit that it is currently only for same-sex couples, what impediment would you see to our changing section 3(2)(a) so that it says that people would be “treated as being in a civil partnership”? I know that the institution of civil partnership for mixed-sex couples does not exist, but we can treat people as if they were in a civil partnership, because the institution does exist.
I think that you are asking me again.
You offered the insight, so I would be interested to hear your view on that point.
I would give you the same answer. This is turning into a bit of a philosophy tutorial.
I would have given you exactly the same answer if it had been the other way round: treating two people as if they were in a civil partnership would not actually create a civil partnership. From that point of view, I am not sure whether I can see any difference. If people would be happier with that tweak, it would not affect us. I am not now speaking as a representative of the Jewish community; I am just engaging in an interesting discussion. I cannot see a problem with that.
There would be a few practical implications if people did not have any form of recognition while the bill came into force. For instance, let us consider a couple in a mixed-sex civil partnership in England, Wales or Northern Ireland—wherever it is—who come to Scotland, set up home, get on with their jobs and engage with life. Let us consider what would happen if one partner got pregnant and gave birth. If they did not have any civil status, the father would not have the parental rights that flow from being treated as being married. That is a key distinction.
I take the point that people take the civil status of their civil partnerships very seriously—it touches on their personal identity. People are quite keen to keep us on the front foot and are almost punctilious in keeping us right on the terminology and language that we use as registrars, and they want the people who oversee legislation to treat them properly and respectfully. I absolutely take the point that people might not like being classified and treated as being married when they are not married and do not like all of that baggage. It is a real thing, not a cavil. To be treated as being married would impinge on people’s identities. However, if there was no protection in that interim period, fairly extraordinary measures would have to be taken to ensure that, for example, somebody could be treated as the father of a child, with all the legal responsibilities that flow from that. Treating somebody as married, albeit that that would be offensive to their identity, would mean that they would have a much less problematic route to receiving parental rights and responsibilities and all the social and legal benefits that would flow from that.
In practical terms, there are different forms of civil status. When people die, people have to serve as informants. There is a whole host of information and background data that we collect. Some of that goes on to register pages, and that is defined by one’s civil status.
The approach is probably not ideal in terms of people’s identities but, practically speaking, having some form of recognition is better than having no form of recognition. We deal with complicated cases every day—as do the registrars—that take a lot of delving into and untangling.
From an administrative viewpoint, if no other, putting in place some recognition that forestalls those sorts of complexities can be only a good thing, and it would be temporary. Most reasonable people would probably say, “Well, I don’t like it, but I can see the benefits both to me and to the state more widely.”
I accept all of that. It is important that we have some recognition in the interim but, from an NRS perspective, can you see a legal impediment to changing that provision so that, in place of the word “marriage”, the words “civil partnership” are inserted? It is being treated as a civil partnership—an institution that exists already in this country—with all the trappings that you describe, albeit not for mixed-sex couples. From a legal perspective, can you see any problem in amending that?
I am not qualified to comment from a legal perspective. I feel a bit like one of Ephraim Borowski’s philosophy students. The only way that I can see that happening is if the bill had already been passed and we already recognised mixed-sex civil partnerships. My brain is falling apart trying to understand that.
We do not need to already recognise mixed-sex civil partnerships for that to work, because there is an institution called “civil partnership” that already confers all the parenting rights, pension stuff and everything else. The issue is incredibly important to people who do not wish to be seen as being in the institution of marriage or to be treated as if they were in a marriage. The nomenclature around that is incredibly important—as you say, it touches on people’s personal identities. We have been asked to change that; I just wonder whether we can.
I honestly do not know. Civil partnership is defined exclusively as for same-sex partners. That is the philosophical hurdle that I am trying to get over.
I hope that, in your session with the minister and legal representatives next week, they can come up with some wizardry that will answer your question, because I cannot. I am sorry.
You took the words right out of my mouth. We will explore those questions further with the Government. Is Alex Cole-Hamilton content for now?
Mary Fee (West Scotland) (Lab)
Mr Burns, you briefly touched on the issue of gender in one of your answers. In our evidence session last week, Professor Norrie suggested that the provisions regarding gender recognition are overly complex. Do members of the panel share that view? If not, why not; and if so, why?
I have not read Professor Norrie’s testimony in full. Could you give me a quick capsule of why he said they were overly complex?
Professor Norrie said in his written submission—I will cover that first—that he questioned whether
“the full implications have been worked out when one party to an existing civil partnership or marriage changes gender”.
One of his reasons for saying that it overly complicates things was that, in his view, the issue of gender recognition should be dealt with by amending the Gender Recognition Act 2004 and should not be brought into this bill. Currently, someone in a same-sex civil partnership who seeks to obtain a gender recognition certificate would need to end the civil partnership. If different-sex civil partnerships are introduced, a couple in a civil partnership in which one person seeks to change gender could continue that civil partnership if the other person agrees. Professor Norrie’s view was that things are being made more complicated than they need to be and that we need to consider amending the Gender Recognition Act 2004 at some point in the future, because that would be the appropriate legislation under which to do something about gender in relation to civil partnerships.
Obviously, the Scottish Government is consulting on gender recognition reform and I know from my engagement with officials in the Scottish Government and other stakeholders that it is a ferociously complex area and far from uncontroversial. In NRS, we try to stay away from controversy if at all possible.
That returns me to our key purpose, which I mentioned at the beginning. We work closely with Scottish Government policy colleagues to serve as a springboard for some of the practical implications of a proposed policy avenue might be, so we think through what our processes are and how the policy could be fully worked out in relation to the information that we require and the data that goes on to forms. That spirals quite quickly into complex discussions.
As far as I am concerned, one of the key benefits of what is proposed—although I am not going to argue with Professor Norrie—is that it seems to be a limited proposal with fairly huge implications and benefits for an individual who wants to undergo gender recognition. That stood out to me personally.09:45
As I said, we deal with relatively small numbers of people—maybe 25 or 30 people a year in Scotland—who have gone through the gender recognition process and been awarded a full certificate. We receive a package with all the information from the UK panel and, in essence, set about putting their life on a new footing.
It is quite moving talking to people who have gone through that process. Not many people do it, but the impact on them is absolutely profound, and it touches very deeply on identity. So, my view—which is, of course, just my personal view—is that the benefit that could be gained from a relatively limited engagement on that aspect of the gender recognition issue would be quite profound. Obviously, the complexities of dealing with gender recognition in the round are enormous, not least in terms of NRS and the registrars. It has quite significant implications for additional workload and resources that we would need to put in place if we were to go down the route of having a self-certification process and pulling out of a tribunal context.
My view is that those things are so complicated that we probably do not have time to get into them now; that will happen in the future. However, I reiterate that it seems to me that, as things stand in Scotland, it is a relatively limited proposal, but it would have quite significant benefits personally for individuals.
It is only fair to point out at this stage that a number of organisations welcome the approach that has been taken in relation to gender in the proposed legislation. Professor Norrie’s view was different to those of a number of organisations. Do any other panel members have a view on this issue?
I echo what Rod Burns has said. Also, gender recognition would be dealt with at the NRS level and not at the registration level.
For us, it is about ensuring that the system allows a couple to remain in a relationship if they consent to that and want to do that. My understanding is that, if that is not in the legislation, those people would have to legally separate and then re-form their relationship in a legal sense. If both parties are accepting of their civil partnership continuing, I do not see why it is beneficial to stop that happening.
I do not think I would want to say anything on behalf of the Jewish community about this issue, because there will be diverse views about both gender recognition and civil partnership. The interface and interlocking of the two is going to produce so many different possible answers, that I could not possibly speak on that without doing an awful lot of homework.
However, I think that there is a clear link between the points that Mary Fee and Alex Cole-Hamilton made. The status already exists, and therefore a sideways move is easier than dropping out and then coming back in—or going around two sides of the triangle rather than going straight across the base.
We have had quite a bit of reflection on the status of marriage versus civil partnership, and the baggage—or whatever it is—that comes with it. To continue that a little further, what are the panel’s reflections on whether we should allow married couples to convert to civil partnerships? Do you have views on that?
If a civil partnership can be converted to a marriage, I think that that will be a question that the registrars are asked. I do not have a specific view on it. I note that the Scottish Government does not intend to provide for that as part of this bill but that it might consider the issue at a later date. I think it is something that we will be asked for.
Some couples who have come to us have decided that they wanted to proceed with a marriage because a civil partnership was not available to them. I do not know how they would feel about converting to a civil partnership many years down the line.
It seems odd that, if we change the law so that civil partnership is available to them but there is no conversion option, the only way for them to get that is to get divorced and then form a civil partnership. I do not think that that is a good idea, so I would support the transfer provisions. Couples have come to us and said that they wanted a civil partnership because of all the baggage. Some of them decided that they would not have any legal relationship, but some decided to enter into marriage because they wanted to have the legal protections. If the conversion option was not there, those people would miss out just because they got married five years ago.
I do not think that we have a view on the pros and cons, or that the provision would make much practical difference. I have done no consultation, so what I am about to say is doubly hypothetical, but if it were to be introduced, I do not think that any branch of the Jewish faith would ask people to divorce first before entering into a civil partnership. If they simply wanted to change their civil status, that would be up to them and would have no repercussions further down the line. The whole point of section 9 of the bill is to replicate what is already provided for divorce after a marriage, so it would make no difference from our point of view.
My view is straightforward and pragmatic. If Parliament were to decide that marriages could be changed to civil partnerships, we would work with the Scottish Government to figure out ways to implement that. It is that simple. We do not have a principled policy view on it.
Has the panel any views on how popular different-sex civil partnerships may be? The Government’s preparatory work estimated that there could be between 100 and 150 and it has based its costs analysis on 109. The Equality Network has estimated that there could be 500 a year. If we base the figure on UK Government estimates, it could be higher, at between 2,000 and 8,000 a year.
When same-sex marriage was introduced, civil partnerships dropped away to roughly 70 a year and marriages increased. Most people—not all—who had entered into same-sex civil partnerships wanted a marriage, with a formal ceremony akin to a marriage.
We would probably find that there would be a redress; people who had been cohabiting would enter into a civil partnership just for legal protection, so there would be a bit more civil partnership. As I said before, we have had 47 inquiries in 11 local authorities, so more people could choose that route. Whether the mixed-sex civil partnership would be a ceremonial route with a religious element, a simple register office process or a ceremony with a registrar, I cannot say what the difference would be in numbers, but I definitely think that people will choose that option.
Fiona Blair is right; on the introduction of same-sex marriage, the figure went from 600 civil partnerships a year down to about 60 or 70, so there was a 90 per cent drop off. Most of those people took up same-sex marriage, but by that token, 50 or 60 on-going new civil partnerships could continue to be created every year. I suspect that there is a smaller but real demand for mixed-sex civil partnerships.
A range from 100 to 8,000 is quite wide. The truth is probably somewhere in the middle. A figure of 8,000 is unlikely but, even if we did see figures at the highest end, additional resources may be drawn down by registrars and by the NRS with regard to its oversight of the registration service. We would adopt the process into our normal business as usual. If we were looking at tens of thousands of cases, that would probably displace some of the resources that registrars have available to do marriages. Last year, there were 26,000 or 27,000 marriages, so the system already has knocking on for 30,000 civil unions. We have capacity to deal with quite a lot, but possibly not an additional 8,000. I had not heard that figure, and it seems quite large, certainly when compared with 100 to 150.
It would be a massive increase. If the legislation is introduced, do you think that there will be a spike in the number of people who want that type of formal relationship, which might then drop off and stabilise?
That seems to be a fairly settled view, and certainly the experience of other countries suggests that there is pent-up demand, so there is a bump at the beginning and then it will taper off, on that model, to maybe a few hundred each year. From a registration system perspective, 200, 300 or 400 a year is eminently absorbable into our normal business.
Do other panel members have a view?
I do not necessarily agree with Rod Burns’s last point, although I appreciate that it is based on what has happened elsewhere. If I draw a comparison with humanist marriage, in 2005, fewer than 100 people decided that that was the option that they wanted to take, and now the number is in the region of 5,000. The reason for the growth is that people have gone to humanist ceremonies and want to replicate them. There is a social growth element in that people see such a ceremony and then recognise it as an option for themselves. I do not know whether that is going to happen with civil partnerships; I am a humanist, so I do not believe in crystal balls telling me the future. I cannot tell you what is going to happen, but it happened with us for humanist marriage and it could happen with civil partnerships. As people start going to see civil partnership ceremonies, they might feel that they are much more reflective of the relationship that they want to form. That question is probably best asked of younger generations who are going to be entering into such relationships 10 or 20 years down the line. We can second guess what people today would do, but we do not know what the future might hold.
I can link the point with something that Fraser Sutherland said earlier about marriage tourism. I do not see there being a huge uptake in the Jewish community in Scotland, but that leads me to correct something that I said at the beginning of the meeting. I was talking about couples in which one person comes from outside Scotland, but we should actually be thinking about couples in which both people come from outside Scotland. The main difference between Scottish marriage or civil partnership and English marriage or civil partnership is that we license individuals, which is why we have the relationship that we have with the NRS, whereas in England they license premises. Therefore, if a couple, for whatever reason, decide that they want to get married or have a civil partnership ceremony at the top of Ben Nevis, they can. Given that they probably cannot have a civil partnership back home, if they have emotional or philosophical reasons for wanting a civil partnership rather than a marriage, Scotland is a very nice place to do it, although not necessarily at his time of year.
Not at the top of Ben Nevis, no.
It may well be that small faith communities will actually see the marriage tourism that Fraser Sutherland talked about earlier.
That is an interesting point, thank you.
Thank you for your interesting evidence, which has been very helpful. We will now suspend briefly.09:58 Meeting suspended.
10:02 On resuming—
Welcome to our second panel of the day. I welcome Tim Hopkins, director of the Equality Network; Kenny Stewart, head of policy at the Equality and Human Rights Commission Scotland; and Elena Soper, programmes co-ordinator at YWCA Scotland—The Young Women’s Movement.
Can you tell us about your organisations, whether you support the general principles of the bill and what implications—if any—it will have for your organisations?
Elena Soper (YWCA Scotland – The Young Women’s Movement)
We support the bill. We are a feminist organisation and we run empowerment programmes for women of all ages through our national work, which is based in Edinburgh, and through community outreach work in Glasgow. We do not foresee any issues if the bill is enacted.
Kenny Stewart (Equality and Human Rights Commission Scotland)
The Equality and Human Rights Commission is Great Britain’s equality body and one of the UK’s three national human rights organisations. Our job is to help to make Scotland, England and Wales fairer, which we do by safeguarding and enforcing the laws that protect people’s rights to fairness, dignity and respect. We support the aims of the bill on the basis that it advances equality of opportunity for mixed-sex couples.
Tim Hopkins (Equality Network)
The Equality Network is a national lesbian, gay, bisexual, trans and intersex equality organisation in Scotland. All our policy work is based on consulting LGBTI people across Scotland. We first did that about partnership recognition in 2000 and 2001 and, even back then, people were saying to us the same things as they are saying now. A lot of LGBT people said that the only thing that is true equality is equal marriage and they wanted to be able to marry, but a significant minority said that marriage is not for them, but that they would like to be able to do something else to register a partnership—civil partnership did not exist in this country in those days. Our policy since 2001 has been that civil partnerships should be introduced and should be available to all couples regardless of gender—and that marriage should be equalised.
It has taken quite a while to get to this point. Marriage was equalised five or six years ago. We consider the bill to be unfinished business from the equalisation of marriage. We very much welcome it. The bill is well drafted. We have one suggestion to add something to the bill, but I will say more about that later.
What are your views about the legal and social differences between marriages and civil partnerships?
As the committee has heard from other witnesses, the legal differences between marriage and civil partnership are very small. It was mentioned earlier that adultery is one of the ways to prove the irretrievable breakdown of a marriage, but not a civil partnership. I can say some more about that later. There are some other very small differences. A marriage is voidable—meaning it can be annulled—on the ground of the permanent and incurable impotency of one person. That does not apply to civil partnership. The Scottish Government describes that rule as “antiquated” in the policy memorandum to the bill. The legal differences are tiny.
The important thing is not legal difference but cultural difference and social meanings and personal meaning to the couple and their family. The whole reason why we supported equal marriage was that, although people could already get the legal rights through civil partnership, that is not the same as marriage: marriage has meanings for people that civil partnership does not. For many people, marriage is seen as the gold standard. That is why it was so important that marriage should be available to same-sex couples.
However, not everyone sees it that way. For some people, as the committee has already heard, marriage is not what they want, for all sorts of reasons. However, they want the opportunity to enter something like a civil partnership, because the social meanings are different and because it means something different to them and their family. The differences are not about the law—they are wider than that. That is why the bill is so welcome.
From a feminist woman’s perspective, for some people—women in particular—marriage can be seen as being rooted in patriarchal and outdated ideals and closely bound to religious processes. Despite the evolution of marriage towards something more equal and the fact that it is not the same as it was historically—it was only 30 years ago that rape was made illegal in marriage; that is still within living memory—the anachronisms are still evident. For example, if we think about a traditional wedding ceremony, the bride is still given away by her father to the groom. Civil partnerships provide an alternative that can be seen as a more equal commitment and less encumbered by traditional and societal expectations of women in their role as a wife.
I do not have a lot to add to those answers. Civil partnership is another route to the very similar legal protections that are provided by marriage. We absolutely understand why some couples may prefer that route, for the reasons that other witnesses have outlined.
This question is for Tim Hopkins and anyone else who wants to chip in. Can you elaborate on your earlier point on the difference between the break-up of a marriage and the dissolution of a civil partnership? What are your thoughts on that?
The basic ground on which to get a divorce or dissolve a civil partnership is irretrievable breakdown of the relationship. The law says that that can be demonstrated or proved in several different ways. The principal way to prove it is by ending cohabitation: non-cohabitation for two years is a ground for divorce, even if one partner does not want the divorce, and non-cohabitation for one year is enough for divorce if both partners agree to the divorce. The other ground is what is often called unreasonable behaviour, where one partner behaves in such a way that the other partner cannot reasonably be expected to continue to cohabit with them. An obvious example of that would be domestic abuse.
For marriage, but not for civil partnership, the other way to prove irretrievable breakdown is through adultery. However, adultery has a very narrow definition. Adultery means sexual intercourse between a man and a woman where one of them is in the marriage and the other is not. Other forms of sexual infidelity are not adultery. If the husband in a mixed-sex marriage engages in other sexual activity with another woman—oral sex for example—that is not adultery. His wife could still get a divorce on the unreasonable behaviour ground, but not on the adultery ground. Many lawyers would say that the adultery ground is not really needed, because unreasonable behaviour covers it all.
When civil partnership was introduced 15 years or so ago, we were happy that adultery was omitted from the grounds for dissolution, although we wanted civil partnership to replicate marriage law as much as possible, because infidelity can be dealt with under unreasonable behaviour. Adultery is still in Scottish marriage law because it is important to religious bodies such as churches: adultery is mentioned in the Bible. It has been retained in divorce law for marriage, but we see no reason to have it in civil partnership dissolution law.
That is helpful, thank you.
What are the benefits of introducing mixed-sex civil partnerships? Elena Soper began to touch on that. Can you speak about the benefits or other impacts that the legislation could have for the groups that you represent, or more widely?
I have spoken about why marriage is not an option for some women. When mixed-sex couples decide that they do not want to get married, they have access only to the degree of legal protection and social recognition that is offered by cohabitation under the Family Law (Scotland) Act 2006. They have fewer rights and responsibilities than they would otherwise be afforded through a marriage or civil partnership.
We know that women have less access to resources, assets and income due to systemic issues such as unpaid caring roles, the gender pay gap, violence against women, domestic abuse and unequal representation. The lesser protections that are provided by cohabitation are more likely to negatively impact women’s rights and security. We know that the Scottish Law Commission is currently investigating whether the law on cohabitation requires reform and whether it is comprehensive enough to offer sufficient protection and clarity to couples. Couples who want to have those enhanced legal rights without entering into the institution of marriage ought to have the option of a civil partnership. We believe that would also benefit dependent children.
As an intersectional feminist organisation, we do not represent only straight women. We see the bill as having a positive impact on our siblings in the trans and non-binary community. I am sure that Tim Hopkins will pick up on that. Those people currently rely on the sex marker on their birth certificate, which may not be true of their lived sex, to determine which options of commitment are available to them. We believe that the extension of rights would mean that trans people who have entered into a civil partnership prior to obtaining a gender recognition certificate would not have to choose between their civil partnership and the GRC.
We believe that the lack of legal rights for unmarried cohabiting partners is deeply gendered. Extending the provision to mixed-sex couples will therefore benefit women in couples who have chosen, for whatever reason, not to marry.
As Elena Soper also noted, we think that there is a benefit for trans people, who will no longer have to end their civil partnerships in order to change their legal gender.
We think that there is also a positive impact on civil partners from outside Scotland. If the bill goes through, their relationships can be recognised here.
The bill benefits trans people. Anybody who is trans in a civil partnership and who wants to obtain gender recognition currently has to end the civil partnership first, either by dissolving it or by changing it into a marriage. Obviously, they have chosen not to change it into a marriage already: they do not want to do that. That is a benefit for trans people.10:15
Elena Soper mentioned non-binary people. It is worth mentioning something that already applies to gender-neutral equal marriage. NRS operates a system in which non-binary people can marry without specifying on their marriage notice whether they are male or female. If people are being married by a civil registrar, for example, the civil registrar will provide a full service for same-sex couples and mixed-sex couples—it does not matter whether a person is male or female or whether the partner is male or female. People are allowed to submit their marriage notices without specifying a gender as long as they are married by a civil registrar, who would marry couples of any gender mix. That is a benefit to non-binary people, because they do not have to state on their marriage notice whether they are male or female—which they are not. The same would apply to civil partnerships once they have become gender neutral or equal.
I want to talk briefly about young people. Obviously, the lower age limit for marriage and civil partnerships in Scotland is 16. Unlike in England and Wales, young people in Scotland do not need their parents’ permission. Very small numbers of young people marry or enter civil partnerships, but some do. LGBT Youth Scotland found in its consultation with young LGBT people that young people are worried that, if they enter a civil partnership, just stating that they are in such a partnership would out them as being lesbian, gay or bisexual. That would show that they are in a same-sex relationship, because civil partnerships are all currently same-sex partnerships. Those young people therefore welcome the extension to equal civil partnership, because people stating that they are in a civil partnership will no longer out them as being in a same-sex relationship.
I have a follow-up question on an issue that you have all touched on in your previous answers. Are there any other specific benefits of civil partnerships compared with cohabitation? If you think that you have already covered that, I am okay with that.
As Elena Soper said, it is certainly true that cohabitation law currently gives weaker protections—particularly weaker financial protections—than those that are given by marriage or civil partnerships if the couple split up or if one of the couple dies. The protections are weaker and less certain, because people have to persuade the court that they were cohabiting. If a person is married or is in a civil partnership, they will have a certificate, which will give them the status there and then.
As Elena Soper mentioned, the Scottish Law Commission is reviewing the law on cohabitation—I think that it published its discussion paper on that yesterday—so we might see improvements to that. However, people might feel that, because a person makes a positive choice to opt into marriage or a civil partnership, the protections for them should be stronger, especially for finances, than they are for a person who has made a choice not to sign up to those things. However, that will come out in the discussion about how the law on cohabitation should improve.
I do not have anything to add to that.
As you know, the bill replicates the existing provisions with regard to how religious and belief bodies might want to opt in to register different-sex civil partnerships. What are your views on those provisions? Given Mr Stewart’s role as a human rights guarantor, I would like him to start.
As you have said, the bill replicates the provisions in the Civil Partnership Act 2004. We think that the existing exemptions in the Equality Act 2010, which allow religious and belief bodies to refuse to undertake same-sex marriages, would ensure that a religious or belief body that decides not to undertake civil partnership ceremonies in general would not be discriminating on the ground of sex or sexual orientation, as it would not be providing that service to anyone.
We certainly welcome the fact that religious and belief bodies will be able to opt in to conduct mixed-sex civil partnership ceremonies if they wish to do so. Obviously, the Humanist Society Scotland has already said that it will do that, and I believe that the Unitarians, who currently conduct same-sex civil partnership ceremonies, have said something similar. We welcome that.
To come back to a point that Kenny Stewart made, it is true that equality law at the moment has exemptions, which mean that religious and belief bodies are not under any obligation to conduct either same-sex marriages or same-sex civil partnerships. We agree with those exemptions.
I think that something needs to be added to the Equality Act 2010 and I believe that the Scottish Government is going to ask the UK Government to do that in the section 104 order that will make reserved legislation amendments that are consequential to this bill. A religious body might be willing to register same-sex civil partnerships but not mixed-sex civil partnerships because it may well take the view that, if you are a mixed-sex couple, you should get married, but it may disagree with same-sex marriage and nevertheless be prepared to register same-sex civil partnerships.
The 2010 act may therefore need to be tweaked to protect religious and belief bodies from claims of discrimination if they do it that way round—if they say that they will register same-sex civil partnerships but not mixed-sex civil partnerships. There would need to be a small addition to the 2010 act.
Okay. Thank you. We might follow that up with the minister next week.
The witnesses belong to organisations that, more than most, have particular views about the institution of marriage and the baggage that that can attach to the people you represent through your organisations. Elena Soper articulated very well the gendered hang-ups that marriage still has attached to it. That is a welcome reminder that there are aspects of the institution of marriage and the ceremonies—even the civil services—that many might find arcane.
I will ask the same question that I put to the previous witnesses. Before mixed-sex civil partnerships are introduced in Scotland, the bill provides that, as an interim measure, those who have entered into mixed-sex civil partnerships overseas, or in the parts of the UK where mixed-sex civil partnerships are already legal
“are to be treated as being in a marriage”.
Does that attach an unnecessary level of baggage by almost pretending that those people are in an institution that they have demonstrably rejected?
Yes. England and Wales introduced mixed-sex civil partnerships last year. That feels quite odd, because it seems as though it has been a long time since a progressive policy was introduced in England and Wales before it was introduced in Scotland. Furthermore, France has had the pacte civil de solidarité—the civil solidarity pact—since 1999.
Commitment is an inherently personal choice—even a hard-core feminist might still want to get married. It should not be up to the law to determine what kind of commitment is right for someone; there should be an open choice for everyone. If someone has decided, for whatever reason—whether it be religious, moral, ethical or even financial—to go into a civil partnership, they have already rejected that ideal of marriage. For them to then come to Scotland and be told, “Actually, you are married here” feels ethically wrong.
We would acknowledge that some couples in that circumstance might be pleased to have a level of legal protection afforded to the relationship. Equally, however, many couples will have chosen to enter into a different partnership for exactly the reason that has been outlined: marriage is not appropriate for them. Therefore, they may feel that an interim recognition of their relationship as a marriage is inappropriate for them.
I cannot speak for the Scottish Government, but I assume that it has judged that offering a level of protection for couples is a pragmatic interim solution. I do not have a different or better solution to offer just now, but I absolutely recognise that that might be uncomfortable for some couples.
As Martin Loat said to the committee last week, for people who are in mixed-sex civil partnerships, it feels very unsatisfactory that their civil partnerships will be treated as marriages in Scotland, even though it is just for a while. It is a tricky area because it is a question of pragmatism and trying to get the best solution.
Let me set out what I think are the issues. First, the Government’s idea is that section 3 of the bill should be commenced as soon as possible after the bill is passed by Parliament, as we hope that it will be. That might be in the summer. That would introduce interim recognition of overseas civil partnerships as marriages. If that happens, we would want the rest of the bill to be commenced as quickly as possible afterwards, so that the interim stage is as short as possible.
The Scottish Parliament information centre suggests in its briefing on the bill that the rest of the bill might be commenced by spring next year. We think that it could be done quicker than that. If the bill is passed by Parliament by the summer, we see no reason why it should not be fully commenced by the end of the year, to try to keep the interim-recognition period as short as possible, recognising that it is unsatisfactory for civil partnerships to be treated as marriages.
The second issue is about the question that you put to the previous witnesses. You asked whether section 3 could be amended so that the interim recognition of relationships is as civil partnerships, instead of as marriages. The problem is that civil partnership law is not complete at the moment, because it misses out some of the things that are needed for mixed-sex couples and that are in marriage law—because they always have been in marriage law. I am talking about things that are added by schedule 2 of the bill, such as the granting of parental status and parental responsibilities and rights to the male partner in a mixed-sex civil partnership—as is the situation for the husband in a marriage. Rod Burns mentioned that.
Such provisions are not currently in civil partnership law, so if you simply change section 3 to say that someone’s civil partnership—from England, say—will be recognised as a civil partnership in Scotland, the law will be incomplete. Yes, the person will be recognised in Scotland as a civil partner, but during the interim period they will not have those really important automatic parental responsibilities and rights and parental status, which Rod Burns mentioned, through being the male civil partner of a woman who gives birth.
Therefore, what needs to happen is not just the amendment of section 3 to replace the word “marriage” with “civil partnership”, but the commencement of some provisions of schedule 2, so that the real rights, responsibilities and protections that need to be in place for mixed-sex civil partnership to work in the same way as mixed-sex marriage does are brought into effect at the same time as interim-recognition provisions.
As soon as possible after the bill gets royal assent, there should be the commencement of section 1, on mixed-sex civil partnership, and of some provisions of schedule 2, to give the practical protections that the law needs to provide. That would give interim recognition; and commencement of the rest of the bill would allow registrations to take place in Scotland later.
It is the start-up of interim recognition that is more complicated. I would welcome the committee asking the Scottish Government whether what I have proposed is feasible.
So much of our discussion inevitably ends up being a bit philosophical. It is important that we focus on what being treated as being in a marriage will mean and what protection that will provide. The issue is not the names of institutions, but whether people will lose rights and responsibilities that ultimately protect them; we do not want that to happen. It is a fascinating area.
I thank Tim Hopkins for his characteristically helpful input. I might need to go back to the Official Report and work my way through everything that you said, because you have given us a lot.
Your comments spark two follow-up questions. As you said, the civil partnership that exists in Scotland for same-sex couples is incomplete, because it does not confer parental rights. Should we use the bill to remedy that? I imagine that dealing with existing civil partnerships would be in the scope of the bill.
That is an interesting question. However, the changes to which I was referring are specific to mixed-sex couples, because we are talking about a case in which a woman gives birth and the question is what the parenthood status of her male partner should be.
An area of the law that deals with an analogous situation for same-sex couples is the Human Fertilisation and Embryology Act 2008, but that is reserved to Westminster. That legislation will need to be updated, too. Indeed, I think that that might already have been done in the legislation on mixed-sex couples down south—the Civil Partnership (Opposite-sex Couples) Regulations 2019.
The 2008 act covers a situation in which a woman gives birth and her female partner will be treated as another mother of the child; I think that that situation has already been extended to cover civil partnership. In the case of a mixed-sex civil partnership, the woman—obviously—gives birth and her male partner needs to be treated as the father of the child, even if the sperm donor is different, which is the kind of thing that the legislation covers. I think that that extension to civil partnerships has already been made by the legislation down south.10:30
My other question is about commencement. There is a disparity between your view and that of SPICe about how quickly we could implement the legislation. I admit that I have not yet properly read that section of the SPICe briefing, but I am keen to know what the metrics are, what things will cause the delays and how we can mitigate those.
I would hope that Parliament can pass the bill before the summer recess. There would then be a four-week or one-month delay before it can get royal assent, which would take it to sometime in July.
Before the act is fully commenced, various bits of secondary legislation need to be put in place, covering things like the alteration of the forms that NRS and registrars use. Also needed is training for NRS staff and registrars, as well as the alteration of NRS’s IT systems. For example, NRS keeps statistics on a number of same-sex and mixed-sex marriages. It wants to keep statistics on a number of same-sex and mixed-sex civil partnerships, which requires a tweak to the IT system.
With regard to the Scottish statutory instruments that need to be put in place, it takes a certain time for affirmative instruments to go through Parliament: laying those before Parliament in September would leave plenty of time to get those through before the end of the year. As long as NRS can make its IT tweaks by then, it should be possible to commence the legislation at that time.
That is helpful.
I suppose that the term “IT tweaks” will send shudders around the room. [Laughter.] What are those tweaks, and on what do you base your assertion?
As I understand it, the NRS system does not count statistics separately for mixed-sex and same-sex civil partnerships at the moment, which the NRS wants to do, so I know that the software will require an adjustment. That might be a small change: all the systems for entering data are already there and the forms for entering data about civil partnerships already exist; the only difference will be that the two names will refer to people of different sexes.
You do not know the detail of it, so we would probably have to look into that.
I do not know the detail; that would be a question for NRS.
I want to cover the issue of gender recognition in more detail. Do the witnesses share Professor Norrie’s view, as set out in last week’s evidence session, that the provisions regarding gender recognition are “overly complex”?
In Professor Norrie’s written submission, he said:
“I wonder if the full implications have been worked out when one party to an existing civil partnership or marriage changes gender?”
In his oral evidence, he said that the bill replicates an
provision in order to deal with the fact that civil partnerships were open only to same-sex couples, and if one party obtained a gender recognition certificate
“that relationship had to come to an end”.—[Official Report, Equalities and Human Rights Committee, 20 February 2020; c 15.]
He suggested that that issue would need to be considered in the draft gender recognition reform (Scotland) bill, which is out for consultation at the moment.
Thank you for that important question. Prior to equal marriage being introduced, if one obtained gender recognition while one was in a marriage—all marriages were mixed sex—one had to dissolve the marriage before one could get full gender recognition, otherwise a same-sex marriage would have been created, which was not allowed.
When the equal marriage legislation went through, six years ago, the Gender Recognition Act 2004 was amended to allow a process whereby one could get gender recognition while staying in one’s marriage. That would change the marriage to a same-sex marriage, which is now fine. The legislation is a bit complex in that area. One has to allow—
Can I interrupt and ask you the same question that I put to Professor Norrie? Are the provisions complex because they need to be complex, or are they complex because we are making it more complex than it needs to be?
The provisions could be simpler. The Civil Partnership (Scotland) Bill would replicate for such partnerships the somewhat complex process that exists for marriages. The changes that it would make for civil partnerships would have exactly the same implications for gender recognition as the changes have that were made in relation to marriage—that is, people will be able to stay in their civil partnerships. The approach in this bill is correct. Its basic principle is to replicate exactly the way in which things work for marriage. However, I think that it might be overcomplex.
The Equality Network strongly supports the Scottish Government’s proposals for gender recognition reform. In our view, a number of things are wrong with the law in that area, which those proposals address. However, they do not touch very much on the issue of interim gender recognition certificates, which Kenneth Norrie mentioned in last week’s evidence session. We have had a quick look at that aspect. In our view, if interim gender recognition certificates were to be done away with—which, arguably, could be done—the effect would be to remove eight sections from the Gender Recognition Act 2004, as amended by the draft gender recognition reform (Scotland) bill, which would simplify the legislation considerably. However, the right way to do that is properly a question for debate on the draft gender recognition reform (Scotland) bill and not one for the Civil Partnership (Scotland) Bill.
On the question of timing, those two bills will not overlap if the Civil Partnership (Scotland) Bill is passed before the Parliament’s summer recess.
The approach in the Civil Partnership (Scotland) Bill to replicate, for civil partnered couples, the admittedly rather complex existing arrangements for gender recognition for married couples is correct. We might look again at whether that aspect could be further simplified in the context of gender recognition reform more generally.
Before I bring in other panel members on that, I want to follow up on Tim Hopkins’s point about changes to gender recognition legislation and the potential removal of eight sections. Would such simplification make the bill clearer and perhaps more understandable, or would we lose something by doing that?
Just to clarify, I was referring not to the Civil Partnership (Scotland) Bill but to the proposed gender recognition reform (Scotland) bill and the Gender Recognition Act 2004.
That is helpful.
Yes—removing those sections would clarify the situation substantially.
Several sections of the Gender Recognition Act 2004 that are replicated in the draft gender recognition reform (Scotland) bill deal with interim gender recognition certificates and how they are converted to full gender recognition certificates. Such conversion can happen in a number of ways—for example, if someone’s spouse or civil partner dies; if the partners end the marriage or civil partnership; or if those involved agree that they do not want it to end. All those cases are covered by sections in the legislation. If we no longer had interim gender recognition certificates, as is the case in most other countries, the effect would be to remove around eight sections from the 2004 act. However, that aspect of the legislation needs further consideration.
Questions remain about how we ensure that we have the correct balance between the rights of a trans person who is in a marriage or civil partnership and who is applying for gender recognition, and the feelings of their spouse or partner. In his evidence to the committee last week, Kenneth Norrie suggested that there might be ways of ending a marriage or civil partnership without the need to obtain an interim gender recognition certificate in the way that people do at the moment.
Those are matters for divorce law reform. As witnesses in the earlier panel mentioned, if we were to move to a no-fault divorce system similar to those in other countries—or, as Ephraim Borowski mentioned, a system similar to that for Jewish religious marriages—in which people can divorce simply because they attest that their relationship has broken down irretrievably, we would not need interim gender recognition certificates. The non-trans spouse could simply say that the fact that the other spouse had transitioned meant that, for them, the relationship had broken down irretrievably and they would like a divorce.
That would be enough to end it. That is helpful.
Do other panel members have views on that?
There is not much that I can usefully add to what Tim Hopkins has said. It is a complex area of law. We agree that, in principle and for practical reasons, it is right that the Civil Partnership (Scotland) Bill should replicate those admittedly complex existing provisions. We hope that the legislative timetable will—just about—work out so that all the relevant aspects can be considered in the context of the proposed gender recognition reform (Scotland) bill.
I am interested in panel members’ reflections on allowing mixed-sex couples to convert their marriages to civil partnerships. Elena Soper spoke earlier about the serious connotations that exist for some women. What are your views on allowing such conversion to happen?
For so long, the only option in terms of commitment for mixed-sex couples was marriage. As we said previously, the co-habitation laws perhaps do not go far enough in ensuring protection for both parties in the couple. Some couples see civil partnership as an alternative modern institution and think that, if it were on the table, everyone should have the option to transfer to it if they believe that it is best for them. People might have married simply because one partner was in ill health or they had children and wanted to ensure that they received the full legal protections given by the institution of marriage, without necessarily buying into the traditions and ideals of marriage that we so often see. We support providing the ability for a couple in a marriage to convert to a civil partnership if that better aligns with their commitment choice.
We do not have a strong view on the issue, but if the option was on the table we would not have any objections in principle.
Is there an issue of equality? We acknowledge that the case was different when people were able to convert civil partnerships to marriage because, arguably, a much greater injustice was being corrected.
Yes, that is right; the context was different. That was absolutely about correcting the original inequality. There was a particularly strong case for that. However, as I say, we do not object at all to people converting marriages to civil partnerships.
I mentioned earlier that we would like one change to the bill, and this is it. Our views on the matter have strengthened since we submitted our written evidence. There are certainly couples who have married because they needed the legal protections and would have chosen a civil partnership if that had been available. The same was true when equal marriage came in—there were couples in civil partnerships who would have chosen marriage and they were allowed to convert. People can, rightly, still convert from a civil partnership to a marriage.
In the documents that accompany the bill, the Scottish Government says that the argument for people being able to change a marriage to a civil partnership is weaker. The Government says that the big injustice was that, until five years ago, same-sex couples had to enter a civil partnership and could not enter a marriage. That implies that that was somehow a bigger injustice than the other way round, when people are forced to enter a marriage, even if they do not want to, in order to get the legal protections.
The problem with that argument is that, if you are one of the majority of people who think that marriage is the gold standard, it seems obvious that the big injustice is not being able to marry. However, if you are one of the minority who do not want to marry for all the reasons mentioned by Elena Soper and by lots of others in their written evidence to the committee, the injustice is the other way around. I strongly believe that, on the ground of equality, people should be able to change a marriage into a civil partnership.
We mentioned in our written evidence that the provision could perhaps be time limited, on the basis that the biggest injustice will be for people who married before the legislation comes into effect and want to be able to convert. However, last week, Martin Loat made a good case for it not to be time limited. I will repeat a couple of the things that he said, because they are important.
First, take the situation for a mixed-sex couple from Scotland who go to work in Sweden, say, for a few years, which we hope will still be possible despite Brexit. Sweden does not have civil partnership any more; it has only marriage, so if that mixed-sex couple needs legal protections, perhaps because they have a child, they will have to marry. However, if they move back to Scotland 10 years from now and they would really have liked a civil partnership, the ability to change from marriage to civil partnership would still need to be available then. That is one reason for not time limiting the provision.
The other reason that Martin Loat gave, with which I agree, was that the cultural meanings of such things change over time. It may well be that in 10, 15 or 20 years, civil partnership will be much more popular and there will be people who want to change. Perhaps the view of their family or the social circle that they move in will change and at that point they might want to make the switch.10:45
We believe strongly that conversion from marriage to civil partnership should be allowed, and that, contrary to what we said in our written evidence, it would be better if that was not time limited. The Scottish Government has raised a couple of technical issues with that. The main one is to do with the date on which the civil partnership is deemed to have begun. When a civil partnership is converted to a marriage, as is already possible, the civil partnership cannot possibly have started before 5 December 2005, because that is when civil partnership began in Scotland. The marriage that results from the conversion is treated as having begun on the date that the civil partnership had begun, and that cannot be before 5 December 2005.
However, when a marriage that began in, say, 1990, is converted to a civil partnership, what date should be treated as the start of that resulting civil partnership? If conversion worked in the same way as it does from civil partnership to marriage, one would say that the start date should be 1990. The problem with that is that civil partnership law did not exist before 2005.
That is not an insurmountable problem. The UK Government proposes a solution of allowing conversion from a marriage to a civil partnership, at least for a time, and has suggested three options for dealing with the problem that I have just described. The option that makes most sense is to treat the couple as having been in a civil partnership since 5 December 2005, and as having been in a marriage prior to that—from 1990, if that was the beginning of their marriage—until 5 December 2005. Some little bits of law are needed to ensure the continuity of those relationships, so that, for example, if they later dissolve their civil partnership, the civil partnership property—the equivalent of matrimonial property—would also include the property that they had accrued between 1990 and 2005.
The issues are not insurmountable. The UK Government is proposing to do it, so we would like the Scottish Government to have a go at that as well.
That is helpful.
I want to cover briefly the numbers that may wish to enter into a different-sex civil partnership. There has been a wide range of suggestions. The Scottish Government has based its cost analysis on a figure of between 100 and 150. UK Government figures put it much higher. The Equality Network has based it at around 500, so I start by asking Tim Hopkins why that figure has been decided on.
The reason for the big differences in the estimates is that comparisons are being made with different countries, where experiences are different.
The Scottish Government’s estimate is based primarily on the experience in New Zealand, where civil unions, as they are called, involve the same rights, responsibilities and protections as marriage. However, the number of people who enter civil unions in New Zealand is quite small.
The UK Government has based its estimates partly on experience in the Netherlands, which has registered partnerships, with the same rights, responsibilities and protections as marriage. A significantly bigger proportion of people in the Netherlands choose registered partnership rather than marriage than the proportion in New Zealand who choose civil union rather than marriage. That would give a figure for Scotland of about 2,000.
The UK Government has come up with even bigger figures, based on a survey that it carried out, in which people said that they would be interested in a mixed-sex civil partnership. The Equality Network did a similar survey a few years ago, and a surprisingly large percentage of people said that they might be interested in a mixed-sex civil partnership, although such surveys have to be taken with a pinch of salt.
We came up with the figure of 500 for two reasons. First, we think that the Scottish experience might be somewhere between those of New Zealand and the Netherlands, which would give a figure of 500 to 1,500. We also looked at the proportion of same-sex couples who choose civil partnership. As was mentioned earlier, 60 to 70 couples a year choose that, compared to roughly 900 same-sex couples who choose marriage. That means that about 7 per cent of same-sex couples choose civil partnership rather than marriage. If we apply the same figure to mixed-sex couples and say that 7 per cent of those who currently choose marriage will choose a civil partnership, we get a figure just shy of 2,000. We might, however, largely be talking about people who would not get married and who are cohabiting at the moment, although I am not saying that they would not choose marriage.
Experience in other countries suggests that the proportion of mixed-sex couples who go for civil partnership rather than marriage is smaller than is the case for same-sex couples. We therefore reduced the figure of 2,000 a bit, which is how we got to the figure of 500 to 1,500. As I said in the written evidence, at this point, it is a finger-in-the-air exercise.
Down south, since 31 December 2019, several hundred couples have already registered a mixed-sex civil partnership or submitted notice to register one. That gives me confidence that the figure might be closer to the 500 that we have suggested than to the 100 to 150 that the Scottish Government has suggested.
When the measure is first introduced, there may be an increase in the number of couples who want to enter into that kind of partnership, and that might then drop off and normalise.
That is likely. As Fraser Sutherland suggested, as civil partnership becomes better understood, it might become more popular. There might be a spike at the beginning and then a slow increase in the following years.
Do other panel members have a view?
We have made no effort to estimate the numbers, partly because there are figures out there and partly because doing so would necessarily be looking at contexts that are different from ours. Any kind of research would be based purely on hypotheticals, which would not give a firm indication of future action.
Although we do not know exactly what demand could look like, we know that there would be some demand. Even if there are low numbers, the main thing for us is the achievement of equality or parity.
Yes. It is that people have the opportunity to do it.
We know that there is some demand, so the level is perhaps less relevant.
The numbers that we have come from the Equality Network, so I am glad that Tim Hopkins is here to explain how it arrived at them. I agree that, even if demand is small, it is still important to meet it, if feasible. Extending equality for a minority does not mean a rollback of equality for the majority.
As members have no more questions, I thank the witnesses for their evidence, which was interesting and helpful.
The committee’s next meeting will be on 5 March, when we will have our final evidence session on the Civil Partnership (Scotland) Bill, with the Cabinet Secretary for Social Security and Older People. An agenda will be on the committee’s website on 28 February.
I now move the meeting into private session.10:52 Meeting continued in private until 11:01.
27 February 2020
Third meeting transcript
The Convener (Ruth Maguire)
Good morning, and welcome to the Equalities and Human Rights Committee’s fifth meeting in 2020. All mobile devices should be switched off or on silent, please.
Agenda item 1 is an oral evidence session on the Civil Partnership (Scotland) Bill at stage 1. I welcome the Cabinet Secretary for Social Security and Older People, Shirley-Anne Somerville, and, from the Scottish Government, Simon Stockwell, who is head of the family law unit; Sarah Meanley, who is also from the family law unit; and John Thomson, who is a solicitor. You are all very welcome—thank you for being with us. We are limited to one hour this morning, and we have a lot of questions to get through. The committee will therefore be disciplined and concise in their questioning; answers along the same lines would be much appreciated so that we can get through everything. With that in mind, we go straight to a question from Alison Harris.
Alison Harris (Central Scotland) (Con)
Good morning. Can you explain the legal differences between marriage and civil partnership?
The Cabinet Secretary for Social Security and Older People (Shirley-Anne Somerville)
Certainly. We have tried to ensure that the bill reflects what already happens with same-sex civil partnerships. There are some legal differences between marriage and civil partnership, but there are not a huge number. They can be broken down into three sections: what happens in the creation of the relationship; what happens during the relationship; and what should happen if the couple decides to end the relationship.
In the first strand, there are—as the committee has heard—differences in the numbers of religious and belief bodies that are authorised for the purposes of solemnising marriages and for registering civil partnerships, which reflect the views of the bodies themselves. In the second strand, there is a difference in relation to survivor benefits and pensions. In the third strand, there are some areas that feature in the law on ending civil partnerships in which rights do not exist for civil partnerships but do exist for marriages. That is a simple breakdown—I hope that it gives enough information.
It does—thank you. There are no plans for a campaign to explain what it will mean when civil partnerships are extended to different-sex couples. However, the Association of Registrars of Scotland has said that the provision of guidance on the differences between marriage and civil partnerships would be helpful to inform the public. What are your thoughts on providing such guidance?
I was interested to see that aspect of the evidence. Civil partnerships are very much a personal decision for people who are in a relationship—if they want to move forward their relationship in that way, it is their choice. It would obviously assist them if they had an understanding of the differences between the respective rights that they may have. It is a very interesting area that we will consider further, bearing fully in mind that it really is very much up to couples themselves to decide what is right for them.
Thank you—I appreciate that.
Several witnesses have suggested that the inclusion of adultery as a ground for irretrievable breakdown is outdated and that it could instead be covered by the ground of unreasonable behaviour, which could be used for a range of infidelities. Would the Scottish Government consider reform in that area?
That would be very much part of divorce law and not an issue that would be for this bill. I appreciate why people would say that that aspect is outdated, and it is reasonable to note that the ground is not widely used at all, but that matter would be for consideration in a different bill.
Thank you—your answers have been helpful.
Mary Fee (West Scotland) (Lab)
Good morning. Can you give the committee a bit of detail on what impact the introduction of different-sex civil partnerships will have on equality groups?
That is an interesting area, and one on which I know that the committee has received evidence. The introduction of mixed-sex civil partnerships will have a positive impact on a number of equality groups. The extension of civil partnerships will, in itself, provide heterosexual couples with the same option for a legally recognised relationship that is available to same-sex couples. The levelling up of rights is an important aim that we are seeking to achieve through the bill. Some people in same-sex civil partnerships will no longer be concerned about being outed if they talk about being in a civil partnership. Again, that is certainly advantageous.
Last week, the committee heard from YWCA Scotland—The Young Women’s Movement—that the bill, through increasing access to the rights that flow from a legally recognised relationship, could help to support women. That was an interesting take on the matter. There are a number of areas in which the bill could benefit people who are not themselves going to take part in a mixed-sex partnership.
One of the most frequent answers that we get when we ask about the benefits of different-sex civil partnerships concerns the financial security that this kind of formalised arrangement will bring. Married couples have that security, but those in civil partnerships do not. Are there any other benefits, apart from the financial aspect, that will come from this piece of legislation?
You are absolutely right to say that financial benefits could come from the bill. Currently, for example, a cohabiting couple may not, for personal reasons, wish to move to a marriage. There is a difference between the rights that they have from cohabitation and the rights that they would have in a marriage. If the bill is successful and becomes an act, they will have an alternative option: a legally recognised relationship that brings with it some of the financial benefits that you mentioned.
It is very important that we give people choice. I have listened carefully to the evidence that has been received by the committee and through our consultation. People have spoken passionately about why they feel that marriage is not right for them. The Government is obliged to consider what can be done to ensure that those people can be in a legally recognised relationship and have the benefits that flow from that while having an arrangement that fits their personal beliefs and how they want to live their lives. Although the financial implications are important, we should not underestimate the importance of allowing a couple to be able to be in the type of relationship that they want to be in and to have that legally recognised.
You consider that improving the choice that is available to people is a very important factor in progressing the bill.
I do. As I said, it is about the levelling-up of rights. If there is a right to choose between same-sex civil partnerships and same-sex marriage, the question—quite rightly–is: why should the same choice not be available to other couples? That was why, in the second consultation on the bill, we looked at two options: whether to end civil partnerships for everybody or whether to expand civil partnerships to make them available to all. The levelling-up of rights is very important, as it gives people choice.
Maurice Golden (West Scotland) (Con)
The bill replicates existing provisions for religious and belief bodies that might want to opt in to be able to register different-sex civil partnerships. We have taken evidence that suggests that the bill might need to be amended to take account of additional checks on Jewish clergy who may not be represented by different branches of Judaism in Scotland. What are your views on that suggestion?
Depending on how much detail you want to go into, I may bring in Simon Stockwell on that question. We have listened carefully to the evidence, and our officials have held additional meetings to ensure that we get the bill right for everyone. I do not think that drafting changes are required. I know that issues were raised in oral evidence to the committee, and we have looked very carefully at whether any drafting changes are required. However, as a Government, we need to be very careful not to interfere in the internal workings of religious bodies, and we absolutely need to respect where there is a role for Government and where there is not.
If anything additional comes up that would suggest that changes are required in that respect, I would be more than happy to look at that. However, I do not think that changes are required at this time. If you would like more information on that, we can go into the specific details.
That is sufficient—thank you.
Angela Constance (Almond Valley) (SNP)
Good morning, cabinet secretary. If the bill is passed, when would you anticipate the introduction of civil partnership registration for different-sex couples?
I know that the committee has received evidence on the timetable for that, and people are obviously keen that we move ahead as quickly as possible. However, if the bill is passed by Parliament and becomes an act, there are other areas that we will need to look into. For example, an order under section 104 of the Scotland Act 1998 will need to be laid at Westminster, and we will need a number of Scottish statutory instruments to go through this Parliament. We will need to make changes to forms and guidance, information technology, training and so on. We would therefore expect the first mixed-sex civil partnerships to take place in Scotland in early 2021.
You mentioned the need for a section 104 order. Why is that necessary? What, roughly, would the order contain?
In general, the order will amend existing legislation to reflect the introduction of mixed-sex civil partnerships. We are discussing the details of that with the United Kingdom Government. Our current thinking is that the order will have to include amendments to the Equality Act 2010 in order to provide protection for religious and belief bodies that do not wish to be involved in the registration of mixed-sex civil partnerships; changes to the Human Fertilisation and Embryology Act 2008; and provisions in relation to consular and armed forces civil partnerships overseas when the couple identify with Scotland as a relevant part of the UK.
As a matter of interest, I wonder why the Government has opted to use primary legislation as opposed to secondary legislation. I am conscious that Westminster responded quickly to the relevant court judgment via regulations.
That was because the issue was dealt with at Westminster initially through a private members’ bill, which gave the UK Government the power to move forward through regulations. Scotland was not covered by that bill, so it is impossible for us to move forward through regulations as the UK Government has done.
We looked at other options to see whether there was a way to speed up the process in Scotland. One possible option was to use the Human Rights Act 1998 (Remedial) Order 2019. On reflection, when we looked at taking such an approach, I did not think that it would include everything that was needed to establish mixed-sex civil partnerships in Scotland, because orders are very narrowly framed. When we looked at the timetables for taking through an order and for passing primary legislation, we saw that there was not that much difference between them.
Given that Scotland was not covered by the primary legislation that was passed at Westminster, and given that the Human Rights Act 1998 (Remedial) Order 2019 was not a good fit for this area and would not save us any time, primary legislation was the only route that we could go down.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Good morning, cabinet secretary—thank you for coming to see us today. We have heard quite a bit of evidence during stage 1 about the importance of the bill in relation to the views that people have about marriage. The term “marriage” has a lot of baggage attached to it, and it can be quite an emotive topic for some people. That is why there is some anxiety about the interim measures that would apply before the act is fully commenced. Civil partnerships for different sexes that are registered outside Scotland will be regarded as marriages if people in those partnerships visit or move to Scotland during the interim period. What could we do about that through the bill? Could we approach the issue differently? For example, could such partnerships be regarded as civil partnerships rather than as marriages until the legislation is commenced?
I appreciate that strong views were expressed to you on that aspect. However, I stress that the interim recognition scheme is, at its heart, about access to rights. If a couple stays in Scotland, they can still say that they are in a civil partnership—they can still use that terminology. The interim recognition scheme is not about telling them to change what they say and to talk about the fact that they are married; it is about the rights that they would have when they are in Scotland.
The options are as follows: we could provide for no interim recognition at all, so if people in a mixed-sex civil partnership were to move up to Scotland, their rights would not be recognised whatsoever; or we can, as we have suggested, provide that they are deemed to have access to rights by being treated in the same way as a married couple.09:45
I note that there were suggestions during the committee’s evidence sessions that we could somehow act as if those people were in a civil partnership, and technical changes to the bill have been suggested to allow that to happen. However, I do not see how that could work in reality. Unless we have all the secondary legislation that goes alongside the primary legislation, we would not have a comprehensive body of law that would allow us to say that such people had the rights of a civil partnership. There would therefore be a risk that people would miss out on rights because we do not have that comprehensive body of law.
I absolutely appreciate that people who want to go into a civil partnership rather than a marriage will not find it at all ideal that we are saying that they should be classed as a married couple. However, I go back to my original point: it is about access to rights rather than about what people in a partnership call themselves. I hope that that provides a little bit of reassurance, and also reassures people that we have looked at alternative options, which I do not consider would give couples the access to rights that I think they would expect and hope to have.
Thank you for that. I find those arguments compelling; nevertheless that anxiety still exists. Would the cabinet secretary agree to meet me to discuss a potential drafting change to the language in that section of the bill? While still acknowledging that that may be the only way to deal with the issue, we could perhaps change or soften the language. Rather than saying—I cannot remember the exact wording, as I do not have the bill in front of me—something like “the partnership will be treated as a marriage”, the bill could say that those in mixed-sex civil partnerships who relocate to Scotland will enjoy the same rights as married couples, or something like that. Perhaps we could take that forward together.
I would be more than happy to meet the member to discuss that. I really do understand the point that he makes, and the challenge that exists in that area. If there are other avenues that involve drafting that would allow such access to rights, I would be happy to look at them.
I have a final supplementary question on that point before I move on to my next question. Tim Hopkins of the Equality Network suggested to the committee that the best way to deal with the issue would be to do things quickly and ensure that the act is commenced as fast as possible. Is there any way that we can reduce the period until those provisions commence?
No, because, unfortunately, the process does not rest completely in our hands. Yes, the bill can proceed through this Parliament as quickly as possible—that would be fantastic—but, as I have said, work will still need to be done not just in this Parliament, but at Westminster. The drafting process will need to run its course between the Scottish and Westminster Governments, and that does not lie solely in our power.
I am happy to look at what can be expedited, but, given the requirement for a comprehensive package of law in secondary legislation and through a section 104 order, I do not see how that aspect can be delivered more quickly. Nonetheless, we are determined to move as fast as we can, within our gift, on the legislation.
The other area that I want to address is the possible need to reregister children on the commencement of a civil partnership. The Births and Deaths Registration Act 1953 and the Legitimacy Act 1976 require that children are reregistered when they are children of cohabiting parents who become married or—as they would through this legislation—enter into a civil partnership. I understand that the 1979 European Court of Human Rights judgment in Marckx v Belgium renders that unnecessary, but it is still an issue of confusion for registrars. Can you confirm whether children will need to be reregistered on the solemnisation of a civil partnership, or whether we would need to specify in the bill that that is no longer an issue?
There are detailed arrangements on birth registration in England and Wales, which are very different from what happens in Scotland. I appreciate that that is an area of concern down south, but it is not an area that we consider needs to be of concern in Scotland, as the birth registration arrangements are different here.
I want to cover the issue of interim gender recognition. You will be aware, from following the evidence that has been submitted to the committee, that Professor Norrie expressed concerns that the provisions in the bill are “overly complex” and that they may make some things more complex than they perhaps need to be because of the way that some aspects are almost lifted from another piece of legislation.
Tim Hopkins, who gave evidence last week, was very helpful and laid out quite clearly his views on the complexity of that particular aspect of the bill. Although he agreed that the provisions were “overly complex”, he gave quite a detailed response on how he thought that the details could be simplified and on the changes that would need to be made by removing certain sections from the Gender Recognition Act 2004.
Do you share that view? Will you look at that aspect as you take forward the draft gender recognition reform (Scotland) bill?
The committee will be aware that there is a separate consultation on gender recognition, which is currently still open. That includes the draft bill, which contains our suggested provisions for interim gender recognition certificates.
I feel that it is important to keep the bill before us as simple as possible. It may involve adding in and replicating provisions from another complex piece of legislation, but I do not feel that consideration of this bill is the place for a discussion about what an interim gender recognition certificate should be. The important thing with this bill is to ensure that we replicate the current system and move it forward so that the new aspect is contained in the bill as well.
Any changes to interim gender recognition certificates would be part of the on-going consultation on gender recognition and would be taken forward in the draft gender recognition reform (Scotland) bill. I am very keen to keep the two areas separate.
If any changes are made to the draft gender recognition reform (Scotland) bill as you undertake the consultation on that subject, will that have any impact on what is currently in this bill? We need to make sure that there is a match between the two pieces of legislation.
Yes—that is what we have attempted to do. We have tried to match what is in the current legislation on gender recognition with what we are proposing in this bill. If there was a change in the future, in respect of what happens with interim gender recognition certificates, it would change what is in this bill.
I am absolutely determined that we should, in effect, have a level playing field. There would be one area of law on interim gender recognition certificates, which would apply regardless of whether it came forward initially in this bill or as an amendment to the 2004 act through the draft bill.
If the draft bill goes ahead, the provisions will be separate but the same.
That is helpful. Thank you.
I would like to ask about the conversion of a marriage to a civil partnership. The committee has heard that there is support for allowing mixed-sex couples to convert their marriage to a civil partnership without there being a time limit on that option. Why has the Government chosen not to allow that?
I appreciate that people are asking the Government to look at that area, and I am very interested in the evidence that we have heard. I am really keen to ensure that we get as wide a breadth of thought as possible on the matter.
I appreciate that people think that that aspect should be covered in this bill. The reason that we have developed the bill as we have is that we are looking to link different-sex civil partnerships with the rights that are available to those in same-sex civil partnerships. There is currently no right to change a same-sex marriage to a same-sex civil partnership. We would, therefore, be asking for a right to be made available that would enable people in a different-sex marriage to transfer to a different-sex civil partnership, if you follow me—I hope that I am making myself clear.
The challenge is how we move forward in a different area. With same-sex relationships, we moved from having only same-sex civil partnerships available to same-sex marriages coming on board. In this area of law, we are moving from having different-sex marriages available to different-sex civil partnerships coming along.
I appreciate that some people may currently be in a marriage because they wanted to be in a legally recognised relationship and marriage was the only option available to them at that point. I am interested in what is being discussed in committee around that aspect, and I would be happy to consider that option.
However, there are difficulties and challenges around that. For example, if someone had been in a marriage and they moved to a civil partnership, how would we treat that civil partnership if it came to an end? The couple in question might have been married for longer than the length of time for which civil partnerships had been available.
It is not a simple process, and there are some legal challenges around how that situation would be dealt with. I appreciate that the committee has heard evidence on that area and that there are views on it. Nonetheless, it is challenging to see how such a change could be made without recognising the implications and challenges that would come with it.
There are proposals to allow different-sex married couples in England and Wales to convert their marriage to a civil partnership. What would the implications be if such a change were to go ahead there but not in Scotland?
It is entirely up to Westminster to take that decision. That option is not currently available, as the Civil Partnership (Opposite-sex Couples) Regulations 2019 have been passed, but it may be something that Westminster will look at in the future. The important aspect for Scotland is how we would treat those people once they moved up here. If they were in a marriage, they would be treated as if they were in a marriage; if they were in a civil partnership, once our civil partnerships are in place, they would be treated as being in a civil partnership. Again, we need to bear in mind the possible complications—for example, what would happen at the end of a civil partnership and what rights would be available to people at that time.
Some of the evidence and discussion in committee has been about levelling up rights and providing equality of choice for people, which you have mentioned. If we got to a point at which people had that choice in other parts of the UK but not in Scotland, would that mean that you could be forced to make such a change at a later date if you did not take care of it in this bill?
We should note that there are certain areas of family law, in particular, such as cohabitation, in which there are differences between England and Scotland with regard to how certain aspects are treated.
One might argue that people in Scotland who are cohabiting have more rights, not fewer, than they would have elsewhere and that, if the bill is passed, people here will have less choice rather than more choice.
They do. As I said, I am very interested in the evidence that has come forward on that aspect. However, to date, it has not taken into account the challenges that we would have to ensure were looked at from a legal perspective around how we would deal with the legacy aspect in the example that I gave of a relationship ending. There are challenges—it is not just about whether or not the proposal would be a good thing to do. It would have to be very much looked at in law with regard to how we would deal with those challenges.
Can you expand on what those legal challenges or complications might mean for people in practical terms?
Yes. I gave the example of a mixed-sex marriage changing to a civil partnership, which raises the question of how we would treat such civil partnerships if the original marriage predated the existence of civil partnership law in Scotland. That is one of the areas of which we would need to be mindful. Simon Stockwell may have other examples to hand.
Simon Stockwell (Scottish Government)
That is the particular example that we would be concerned about. We mention it in the policy memorandum—I am looking at paragraph 147. The UK Government has also mentioned in one of its consultations that there could be issues in relation to inheritable state pension rights, which we mention at paragraph 146. The UK Government said that it would issue some guidance in that area.
The other point to make is that the UK Government has been talking about having time limits on conversions south of the border, whereas in Scotland we are not planning to have any time limits on changing civil partnerships to marriages.10:00
Let me press you a little on that. Has any thought gone into possible solutions to those challenges? Challenges are never insurmountable, although I know that they can be annoying.
With careful legal drafting, they can possibly be dealt with. The issue is whether the wish for people to have that option is strong enough. I am absolutely not saying that the Government is dead set against it and that we do not think that it is possible or credible. I have listened carefully to the evidence that has been given so far. It would also be interesting to know the thoughts of religious bodies and how they would feel about people being able to convert a marriage to a civil partnership. I do not think that that aspect has come out so far in evidence. It did not come out in our consultation, because we were not proposing to make such a change, but it may generate some discussion.
The issues are not insurmountable—you are quite right about that, convener—and I am really keen on, and open to, seeing the committee’s recommendations in that area.
Thank you. That is really helpful.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
Good morning, cabinet secretary. I want to ask about the number of different-sex civil partnerships that there might be. The Government says that there would be between 100 and 150 a year. However, as you might be aware, the committee has heard various figures in evidence, which go right up to 8,000. Last week, the Equality Network told us that it feels that the real figure will be somewhere in the middle of those projections. How did the Government come to estimate the number at 109?
I have certainly been surprised by some of the figures that have been mentioned in committee with regard to the number of civil partnerships that there would be. As you rightly say, we set out in the financial memorandum an estimate of around 100 mixed-sex civil partnerships every year. In essence, we based our calculations on information from New Zealand, where marriage and civil partnerships are open to both mixed-sex and same-sex couples, and the two relationships offer very similar rights and responsibilities. The situation is therefore comparable with the situation in Scotland, or as comparable as it can be. The take-up of civil partnerships has been low in New Zealand, and the similarities with Scotland suggest that the take-up here may also be low.
It has been difficult to come up with estimates, but I hope that the background that we have given as to how that has been done—using the example of New Zealand, which we think replicates reasonably closely the situation in terms of rights and what happens in Scotland—will reassure the committee about why the number in the financial memorandum is as low as it is in comparison with some of the other numbers that have been given in evidence to the committee.
Do you think that there will be an initial spike if and when the bill is passed and that demand will then tail off, or do you think that such partnerships could become more popular over time and that the number could gradually increase? Has any thought been given to that?
It really is very difficult to tell when something like this is introduced. I am sure that there are couples in Scotland who have got married not because of their personal beliefs—they do not feel that marriage is something that they want—but because they would like to be in a legally recognised relationship. Once the option of a civil partnership is open to them, those couples may wish to move forward in that way.
You are quite right to say that there may not simply be an initial spike and that mixed-sex civil partnerships may become more popular over time. As I said, it is one of those areas in which it is exceptionally difficult to forecast behavioural change once we have passed the bill, although I do not think that the take-up will reach the extent of some of the numbers that have been referred to in committee. Only time will tell, but I hold to the fact that the numbers that we have produced in the financial memorandum are a reasonable estimate of the initial demand that we will see.
I hear what you are saying, and I tend to agree with the numbers that you have suggested. However, in the event that take-up is higher and the estimates from the Equality Network prove to be more accurate than those of the Government, has any thought been given to the possible cost implications? Would the systems that are currently in place be able to cope with that demand?
The systems would absolutely be able to cope. I do not see the situation changing dramatically overnight in a way that cannot be foreseen; it will develop over time. We have a robust system in Scotland, and if movements were seen in that area, they would be catered for.
Couples may legally register in a civil partnership instead of choosing a marriage, so we may see a change in the type of legally recognised relationship that people enter into rather than an overall increase in demand.
I have a follow-up question on cohabitation. Can you explain the difference between the rights of cohabitants and the rights of civil partners in Scotland? Does the Government have any plans to provide stronger rights and responsibilities for cohabitants?
Cohabitants have some rights, but they are not as comprehensive as the rights that are available, and that are being extended, to spouses or those in civil partnerships. There are differences, for example, in parental responsibilities and rights, succession in pensions and occupancy rights.
As the committee has heard, the Scottish Law Commission is carrying out a project on financial provision for cohabitants who separate, and a discussion paper was published in February. Cohabitants do have rights—as was pointed out earlier, they have more rights in Scotland than they have in England and Wales—but there are still differences in Scotland between the rights that are available to people who are cohabiting and the rights that are available to those who are in a legally recognised relationship. Some of those aspects will be dealt with in the Scottish Law Commission’s discussion paper.
Thank you very much for your evidence, cabinet secretary. The next meeting of the committee will take place on Thursday 12 March, when we will consider petition PE1695, on access to justice in Scotland, and our approach to our inquiry on race equality, employment and skills.10:08 Meeting continued in private until 10:23.
5 March 2020
20 February 2020
27 February 2020
5 March 2020
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Stage 1 debate on the Bill transcript
The Deputy Presiding Officer (Lewis Macdonald)
The next item of business is a debate on motion S5M-21778, in the name of Shirley-Anne Somerville, on stage 1 of the Civil Partnership (Scotland) Bill.15:43
The Cabinet Secretary for Social Security and Older People (Shirley-Anne Somerville)
Presiding Officer, thank you for the opportunity to address the chamber on the general principles of the Civil Partnership (Scotland) Bill. I express my gratitude to the Equalities and Human Rights Committee for its careful scrutiny of the bill, and I welcome its recommendation to approve the bill’s general principles.
As Cabinet Secretary for Social Security and Older People, I consider that the legislation will help to ensure equality and safeguard human rights in Scotland. The bill follows a United Kingdom Supreme Court ruling from 2018 on the law of civil partnership in England and Wales. The court held that, as a result of the introduction of same-sex marriage in England and Wales, it was no longer compatible with the European convention on human rights for access to civil partnership to be restricted exclusively to same-sex couples. That decision on the ECHR implications of the current law has driven the bill.
In light of the Supreme Court ruling, it is right to proceed with legislation that will ensure equality of choice for all couples in Scotland should they decide to enter into a legally recognised relationship, whether that is a marriage or civil partnership. The bill follows a 2018 Scottish Government consultation on the future of civil partnership. In that consultation, we set out two options for a change in the law of civil partnership for Scotland: closure of civil partnership to new relationships from a date in the future or extension of civil partnerships to mixed-sex couples. Having considered all the evidence available to us, we came to the conclusion that the best way forward for Scotland would be to introduce a bill that makes mixed-sex civil partnerships available to couples here.
I consider that making civil partnership available to mixed-sex couples is right for Scotland for a number of reasons. At heart, the approach is about equality and choice: making the same options of marriage or civil partnership available to all couples upholds the equality principle of levelling up opportunities rather than taking options and choice away. If civil partnership had been closed to new relationships, couples would have had less choice.
In contrast, opening up civil partnership to all will bring clear and much longed-for benefits to couples who feel that this relationship is right for them. I know from letters received by the Scottish Government and responses to our 2018 consultation that some mixed-sex couples feel that marriage simply is not what they want. The common factor with those couples is that they want to deepen their commitment to each other by entering into a civil partnership that they consider to be the best reflection of their beliefs and feelings for each other. I want such couples to have the option and, as a consequence, to be able to benefit from the legal rights that will flow from having a civil partnership.
We also need to think of the bigger picture. Civil partnership was established for same-sex couples in Scotland in 2005, and same-sex marriage legislation was passed in 2014. Of course, mixed-sex marriage has existed in law for hundreds of years. The bill will close the gap and establish a level playing field for all couples who want to enter into a legally recognised relationship. Even without the Supreme Court decision, that gap would have had to have been addressed at some point, and I am glad that it is being addressed now.
I will now explain in a bit more detail what the bill will do. It begins by making a small amendment to the Civil Partnership Act 2004 by removing the words “of the same sex” from the definition of relationship contained in section 1 of the act. The removal of those four words, while seemingly nominal, will constitute a profound and welcome change to the nature of civil partnership in Scotland, expanding equality and choice.
That equality principle is reflected in the fact that, for most purposes, the bill draws no distinction between same-sex and mixed-sex civil partnerships. That means that the same standards will apply for mixed-sex civil partnerships when it comes to eligibility requirements for entering into the relationship, and the same processes and fees will apply for registering the relationship. Authorisation for religious and belief bodies and celebrants who wish to register mixed-sex civil partnerships will be along the same lines as authorisation for those who wish to register same-sex civil partnerships.
The bill also contains provisions that will enable mixed-sex civil partnerships from other jurisdictions to be recognised in Scotland. That means that couples in such relationships will benefit from access to the same packages of rights and responsibilities that will apply to mixed-sex civil partnerships created here in Scotland. Again, we have taken an approach aimed at ensuring equality of treatment.
We have also introduced provisions that will create an interim scheme of recognition that will allow those relationships to be temporarily recognised as marriages in Scotland until mixed-sex civil partnerships are available here. The scheme in the bill is about ensuring that couples do not lose access to the package of rights that flow from entering into a legally recognised relationship. There is a clear risk that that could happen should an alternative approach be taken. As I have said, rights are at the heart of the bill and the interim scheme of recognition is absolutely consistent with that.
The names that we use for ourselves and our relationships are important, and the bill will not alter the ability of a couple to call their civil partnership a civil partnership. It will make clear to couples in mixed-sex civil partnerships that they have legal rights in Scotland and that they will be able to benefit from those rights even before civil partnership is available to Scottish couples. I assure members that I will take steps to ensure that the interim scheme of recognition is in place for as short a time as possible. I would be happy to consider any suggestions made by members on changes to the language in section 3 that would address the concerns that were raised in committee.
The bill also contains provisions on how particular areas of the law will apply to mixed-sex civil partners. As I have said, for the most part, the bill makes no distinction between same-sex civil partners and mixed-sex civil partners. However, there are areas of family law in which the existing provisions for civil partners will not work because they were drawn up on the assumption that the couple was always going to be of the same sex. In such cases, the bill follows what is already in place for mixed-sex married couples.
Like the rest of the bill, that approach is informed by the need to ensure equality of treatment for mixed-sex civil partners, and following existing provisions on mixed-sex marriage will achieve just that. In particular, the bill follows mixed-sex marriage in relation to the presumption of parentage, creating the same presumption where a man is in a civil partnership with the mother of a child as where a man is married to the mother. Other examples include the provision in the bill that will establish how mixed-sex civil partners acquire parental responsibilities and rights and amendments to the definition of “child of the family” so that it includes biological children of mixed-sex civil partners.
Section 11 will establish a new offence of forced civil partnership, to run alongside the offence of forced marriage. We want to close any possible loophole in the law that the introduction of mixed-sex civil partnerships could create, by helping to provide protection for some of the most vulnerable members of our society.
The bill covers diverse areas. However, as I have mentioned, for the most part it simply follows what is already in place for same-sex civil partnerships or adapts the law where appropriate. That means that the bill is largely an amending bill, which changes other pieces of legislation so as to apply existing provisions that were previously debated and approved by Parliament to mixed-sex civil partnerships. That approach ensures that, once mixed-sex civil partnerships are established in Scotland, mixed-sex civil partners will benefit from the same body of law that already applies to same-sex civil partnerships with no resulting inequality of treatment.
As I have said, I am grateful to the Equalities and Human Rights Committee for its careful scrutiny of the bill. I have written to the committee in response to its report, but I wish also to comment on some of its recommendations.
Should the bill be enacted, I will proceed with guidance for the public on the differences between marriage and civil partnership, in line with the committee’s recommendation in that area. The guidance will provide information that supports couples who have decided that they want a legally recognised relationship, enabling them to make an informed choice about the type of relationship that is right for them.
One key point is that there will be less international recognition of mixed-sex civil partnerships than there is of mixed-sex marriage. We will make that clear to couples in guidance so that they can consider the importance of international recognition to their relationship.
I briefly spoke earlier about the interim scheme of recognition, and we welcome the conclusion of the Equalities and Human Rights Committee in paragraph 74 of its report that it was
“persuaded that because of the current legal landscape, there is no immediate alternative to the current approach”
to interim recognition. As I have said, I am considering how the concerns that have been expressed about the language used in relation to the interim scheme of recognition of civil partnerships from elsewhere could be addressed. On that, I will listen very carefully to the points that members make on the matter during the debate.
In its report, the committee expressed its support for the principle of married couples being able to change their relationships to civil partnerships. I acknowledge that point, and I wish to confirm to the Parliament that I am happy to work with the committee on an amendment allowing marriages to change to civil partnerships.
As I mentioned to the committee, there are some potentially complex aspects to provisions in that area. Given that, along with the need to consult and the need to take into account what may emerge in this area in the rest of the UK, an amendment may need to take the form of a power to make secondary legislation so that marriages can change to civil partnerships. I am confident that we will be able to work together to produce an amendment that effectively tackles the complexities in this area.
I have already written to religious and belief bodies to find out what their views are on the provisions in this area. In the context of a bill that is all about rights and equality, it is important that those organisations are given an opportunity to express their thoughts.
The Scottish Government is committed to extending civil partnerships to mixed-sex couples. That is what the bill does, and I commend it to Parliament.
That the Parliament agrees to the general principles of the Civil Partnership (Scotland) Bill.
The Deputy Presiding Officer
I call Ruth Maguire to speak on behalf of the Equalities and Human Rights Committee.15:54
Ruth Maguire (Cunninghame South) (SNP)
I am pleased to open the debate on behalf of the Equalities and Human Rights Committee. The debate comes in the midst of a health crisis facing not just our country but the world and, now more than ever, we must make every effort to uphold and promote equality and human rights. That lies at the heart of the bill.
Since the introduction of same-sex marriage, same-sex couples have had both marriage and civil partnership available to them. However, mixed-sex couples have had only the choice of marriage. In 2018, the UK Supreme Court found that difference in treatment to be incompatible with the ECHR. Scotland is currently the only country in the world where that situation still exists, so we are pressing ahead with the scrutiny of the Civil Partnership (Scotland) Bill to eliminate that inequality in treatment.
The Equalities and Human Rights Committee heard from human rights and family law experts, lesbian, gay, bisexual and transgender groups, faith and belief groups, women’s groups and other professional bodies. All welcomed the bill for aligning Scotland’s position with that in the rest of the UK, upholding human rights and advancing equality of opportunity.
Early on in the committee’s scrutiny of the bill, the Equality Network highlighted an important principle. It said that
“the solution to inequality ... should be to level up, providing ... more extensive rights / choices”,
The most powerful evidence that the committee heard came in testimonies showing how the bill, in providing more extensive rights and choices, would affect people’s lives. Extending civil partnerships to mixed-sex couples would mean that children would have greater protections through the legal recognition of their parents’ relationship. Young LGBT people would no longer live in fear of being outed as gay, lesbian or bisexual if they revealed that they were in a civil partnership, and transgender civil partners who are seeking a gender recognition certificate would no longer need to end their relationship.
The committee’s online engagement through its Your Priorities platform allowed individuals’ views to be captured through text, audio and video comments. We received many compelling personal testimonies, some of which I will share with members.
We are reminded that cohabiting couples have far fewer and less clear rights than couples who are either married or in a civil partnership. The Equality and Human Rights Commission highlighted the gendered impact of relationship breakdown, as women
“have less access to resources, assets and income due to systemic issues”.
One cohabiting woman wished that the bill had come sooner. She wrote:
“My partner died suddenly after 28 years together with two young children. Yet my children and I are not recognised as ‘family’ because we weren’t married. I have had to apply for widowed parent allowance … and two years down the line .... it’s still in the courts and I’m awaiting the next hearing.”
Another woman shared:
“I’ve been with my partner for 9 years and neither of us have a desire to get married … However, I’ve recently been diagnosed with cancer and naturally I want my partner to be financially secure when I’m gone.”
The legislation would help to formalise that.
The committee recognises that not all couples who cohabit wish to enter a formal legal relationship. As such, it welcomes the Scottish Law Commission’s discussion paper on cohabitation reform. However, mixed-sex civil partnerships are necessary to enable couples to access important legal rights that are currently available only through marriage. Although marriage offers those benefits, it is not for everyone.
We heard from many who did not—and would not—marry for a range of symbolic, cultural and emotional reasons. They included divorcees who believed that marriage was a one-time commitment, widowers who felt that remarrying would dishonour their late wives, and women who had experienced domestic abuse and who did not feel comfortable remarrying. A key reason raised by many women and some men who objected to marriage was that, in their view, it had patriarchal and religious baggage. Those people welcomed civil partnership as an alternative institution representing a more equal commitment that allows couples to imprint their own values and beliefs.
One woman put it like this:
“This bill allows us to protect those we love without feeling pressured to have a marriage ... civil partnership … matches our relationship as equal partners, neither of us above the other … all couples should have the choice to do what’s right for their relationship.”
For many mixed-sex couples, the choice of either marriage or cohabitation is not real choice. Rather, it is a decision between acting against their own deeply held convictions or accepting a lesser legal position. The bill is about individuals and the choices that they must make. The committee considers that the bill will provide real choice, enabling couples to have their relationship legally recognised in a way that is right for them and which means that they are able to access the important legal rights and protections that flow from that.
The importance of symbolism and choice ran throughout our scrutiny as we considered other issues. I will touch on two of them.
Section 3 provides for couples in mixed-sex civil partnerships formed outside Scotland to be temporarily
“treated as if in a marriage”
until civil partnerships are registrable. That was considered by some to be unsatisfactory for those who do not wish to be treated or seen as being in a marriage. I welcome the cabinet secretary’s commitment to explore whether the language in section 3 can be improved.
I also highlight the Scottish Government’s commitment to implement the bill as quickly as possible. In the current crisis, it is even more pressing for couples in Scotland to be able to access the legal rights and protections that flow from civil partnerships. I ask the Scottish Government to assure members that every effort will be made to prioritise the bill and the tasks that need to be carried out to implement it fully.
Finally, many people think that the bill should have addressed the conversion of marriages to civil partnerships. In light of everything that I have said, I would like to read out the views of Mr B and Miss L—a couple who married only to protect their financial position as age advanced. They wrote:
“the Bill as introduced would create inequality of opportunity among would-be civil partners, between those who have not married and those who, for whatever reason, have. This seems to conflict with the SG’s laudable aim of societal equality and respect in Scotland.”
The committee supports the principle that it should be possible to convert a marriage to a civil partnership, for those who wish to do so. I thank the cabinet secretary for confirming that she will work with us to explore how to overcome some of the challenges in that area.
On behalf of the committee, I offer my sincere thanks to everyone who gave evidence, shared their experience and helped us to better understand the unquestionable need for the bill and how it might be improved. We think that the bill advances equality and upholds human rights. It provides a necessary alternative to marriage through which individuals can access crucial legal rights and financial protections. As the cabinet secretary said,
“we should not underestimate the importance of allowing a couple to be able to be in the type of relationship that they want to be in and to have that legally recognised.”—[Official Report, Equalities and Human Rights Committee, 5 March 2020; c 3.]
The Equalities and Human Rights Committee supports the general principles of the Civil Partnership (Scotland) Bill.16:01
Graham Simpson (Central Scotland) (Con)
The cabinet secretary and the convener of the Equalities and Human Rights Committee have set out why the bill is before us. For thoroughness, I will go over some of that ground—but not too much of it.
I suspect that many speeches in this debate will sound pretty much the same. That is fine; the bill is pretty uncontroversial. However, that does not mean that there are no points to debate or to consider at stage 2—it would be odd if there were no such points. Therefore, although we support the general principles of the bill, I will make constructive suggestions about areas that might be considered. Before I do, I congratulate committee members and clerks on, and thank them for, their work on the bill.
I have a wide brief, which includes equalities, local government, communities and social security. I cannot be everywhere, so I am not a member of the Equalities and Human Rights Committee. However, the ever-enthusiastic Maurice Golden and Alison Harris make up for my absence. We will hear from Mr Golden later in the debate; we will also hear from Alexander Stewart and a virtual Annie Wells, live from Glasgow.
In some ways, my not being a member of the lead committee gave me the advantage of being able to look at the bill with fresh eyes. When I did that, my first question was, “Is this law necessary?” We have heard that different-sex couples in Scotland who want their relationship to be legally recognised have only the option of marriage, whereas same-sex couples have the choice of getting married or forming a civil partnership. We might ask why a couple would want a civil partnership when they could get married. What is the point? I will come on to that.
Civil partnerships for different-sex couples were recently introduced in England, Wales and Northern Ireland, following a ruling by the Supreme Court that the situation was discriminatory and incompatible with the European convention on human rights. However, I have heard it argued that the court did not take evidence on that point, because the point was accepted, so it did not rule on the matter. In any case, the ruling applied only in England, Wales and Northern Ireland; it did not apply in Scotland.
Therefore, I do not think that, legally, we have to do something in Scotland. For me, the question is a political one, not a legal one. Do we think that inequality should be eliminated, either by abolishing civil partnerships or by extending them to different-sex couples?
The former would be a perfectly legitimate policy position to take. It could easily be argued that there is no longer the need for civil partnerships because same-sex couples can now get married. However, the Scottish Conservatives prefer the latter option. We back the aim of extending civil partnerships to different-sex couples to uphold human rights and provide equality of opportunity. Doing so will also provide parity with the rest of the UK. As the committee’s report says,
“Scotland (and until recently England and Wales), is the only country in the world where same sex couples can choose between marriage or civil partnership, while different sex couples only have the option of marriage.”
That makes us something of an outrider. There is nothing wrong with that, but it is not necessary in this case.
Other than allowing same-sex couples to form civil partnerships, the bill seeks to make consequential changes to Scottish family law; allow for the recognition of certain overseas relationships between different-sex couples; make consequential amendments to legislation concerning gender recognition; and create an offence of forcing someone into a civil partnership.
The bill does not allow a marriage to be converted into a civil partnership, although it makes provision for couples in a different-sex civil partnership to convert that into a marriage if they wish. Perhaps, as has been mentioned, that area could be explored at stage 2.
I was encouraged by the committee’s view that
“if provisions to allow conversion from marriage to civil partnership are introduced in England and Wales, then Scotland could fall behind on matters of equality. Whilst there are undoubtedly legal challenges in this area, we consider these could be overcome with careful legal drafting.”
I was also encouraged by the cabinet secretary’s earlier comments in that regard.
The bill does not allow for adultery to be used as a ground for ending a civil partnership, unlike in a marriage. If one was being mischievous about it, one could dub the bill a love cheat’s charter, or rename it the open marriage (Scotland) bill. Frankly, most people—except those of a liberal mind—would see cheating to be a perfectly proper ground for ending any relationship.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Does the member recognise that the ground of adultery in Scottish divorce law is seen as arcane and that unreasonable conduct is a far more appropriate ground for ending any relationship? That is typical of the bill—it tries to drag us into the 21st century when much of Scottish marital law is still stuck in the past.
I mentioned the issue only because it was covered in the committee’s report. I am not arguing for such an approach; I was trying to be humorous, although I possibly failed on this occasion. [Laughter.]
The Faculty of Advocates has also expressed concerns that the decision surrounding civil partnerships does not extend to adultery. It advised the committee to seek clarification, given that
“civil partnership for opposite sex couples is intended to be an alternative to marriage”.
The Law Society of Scotland also suggested that it may be beneficial to consider
“whether to harmonise the grounds for the dissolution of both marriage and civil partnership”.
I therefore say to Mr Cole-Hamilton that it is a serious point to be considered; it is another area that could be looked at. However, I note the evidence taken on the issue and the committee’s view that the matter is one for divorce law.
I will touch on one other issue. Section 3 provides for couples in different-sex civil partnerships formed in England, Wales and Northern Ireland to be temporarily
“treated as if in a marriage”
until different-sex civil partnerships are registrable in Scotland. The committee’s report says:
“The Scottish Government developed this policy for interim recognition because civil partnerships for different sex couples are now available in the rest of the UK. Therefore, section 3 of the Bill will allow civil partners who move to Scotland to access the rights and responsibilities that would come from a marriage, until different sex civil partnerships come into force ... A number of written submissions expressed some disappointment with this provision.”
I look forward to seeing the bill pass this stage and to engaging with it as it makes its way through the parliamentary process. My colleagues Mr Golden and Mrs Harris will grab the challenge with their usual gusto. For now, we are content to support the general principles of the bill.
Pauline McNeill (Glasgow) (Lab)
I vaguely recall the passing of the civil partnership legislation of 2004. It was a major step towards marriage equality for same-sex couples. I was chair of the Justice 1 Committee back then and we did what was known as a Sewel report, which in other words was a report on legislative consent to equalise the law across the UK. Now, 16 years on, we have equal marriage and we require to equalise the law for opposite-sex couples.
Stewart Stevenson, who I know is going to speak in this debate, may recall that we also reformed family law at about the same time, when we accidentally swept away 300 years of Scots law provision for marriage by cohabitation and repute—sometimes known as common-law marriage. We managed to fix that at stage 3 of the Family Law (Scotland) Bill, when we allowed someone to make a statutory declaration if they thought that they were married and were unaware that actually they were not, for some technical reason, perhaps because they had not followed the full customs in another country. That was a relief for me, as I had married in Las Vegas, and for Bruce McFee, who you may remember from the Scottish National Party and who also got married in an exotic place.
It is pertinent that we are discussing the Civil Partnership (Scotland) Bill today. During the meeting of the COVID-19 Committee today, Adam Tomkins’s amendment 36, which the committee and the Government supported, highlighted that the ability to marry or enter a civil partnership is an important right, which confers other rights. Rights conferred by civil partnerships were meant to be identical to those conferred by marriage, but there seem to be some differences that I hope ministers will address in their summing up.
One of those is that death in service confers apparently greater rights on people in civil partnerships than on those who are married. According to the Scottish Parliament information centre, the Pensions Advisory Service noted that, since Walker v Innospec, which was a court case on death benefits and pension rights for same-sex couples, it is now the case that surviving partners of same-sex civil partnerships are entitled to the same death in service benefits as widows of opposite-sex marriages. That usually includes a backdating of pensionable service to 1978, whereas widowers are currently entitled to backdate that only as far as 1988. That is a small technical issue. If civil partnership and marriage should have exactly the same legal basis, then those should be identical.
Ruth Maguire covered my next point very ably, and I also want to record my thanks to the Equalities and Human Rights Committee for the sterling work that it has done. The committee said in its report:
“some people do not wish to marry for symbolic, cultural or emotional reasons and consider these important enough to merit the extension of civil partnership.”
In fact, civil partnerships may provide a valuable alternative for women and many others who have had negative experiences of marriage, including abusive relationships.
There is a right for same-sex couples to choose between civil partnerships and marriage and the same choice should be available to other couples. That point has been made by many other speakers. It is important to increase people’s choices about how they structure their lives.
The bill brings Scotland into line with the rest of the United Kingdom, as civil partnerships for mixed-sex couples have recently been introduced in England, Wales and Northern Ireland.
Clearly, there is a difference between the rights that a couple have from cohabitation and the rights that they would have in a marriage, and the fact that that difference has existed for so long has been the subject of much discussion. The committee’s report highlights the rights, or perhaps the non-rights, of cohabiting couples. That is an issue that I have addressed in the past, and is one that the committee might want to return to.
A legally recognised relationship brings with it many financial benefits. More than that, people find security in being married or in a civil partnership. For those who feel that marriage is not for them, a civil partnership offers an important alternative.
I am pleased that the bill will ensure that people can be in a legally recognised relationship and have the benefits that flow from that so that they can live their lives. For example, it will mean that one civil partner can inherit wealth on the death of another civil partner without a tax charge. In addition, where one civil partner earns £12,500 or less, a proportion of their tax-free personal allowance can be transferred to the other partner if that person is a higher earner, thereby reducing the couple’s overall income tax bill.
There is good reason to think that civil partnerships for heterosexual couples will be popular. In France, the pacte civil de solidarité—I ask members to forgive my pronunciation—is a registered partnership arrangement. Over the years, it has become increasingly popular, and for every five marriages, there are now four PACS. Based on the international experience, the Scottish Government estimates that there could be 109 opposite-sex civil partnerships registered each year, but the French example indicates that the numbers could rise significantly once the option has been in place for a while.
We are closing an important equality loophole in the law and giving all the citizens of Scotland more choice. There is every reason to support the provision and bring it in to our law.16:16
Andy Wightman (Lothian) (Green)
First, I thank the Equalities and Human Rights Committee for its scrutiny of the bill and its helpful stage 1 report. I also thank Ruth Maguire for her very informative insights into some of the evidence that the committee heard. I welcome the debate, as it is important that Parliament continues to meet to deal with business that is unrelated to Covid-19 where it is safe and possible to do so. I record my thanks to Parliament staff for their extraordinary commitment to their job and for facilitating parliamentary business in these difficult times.
Scottish Greens support the bill, and we will vote for it at decision time. Indeed, even before civil partnerships existed, Scottish Green Party policy supported the principle that both marriage and civil partnerships should be available to all, with no discrimination on the grounds of sexuality.
When civil partnerships were first proposed in the UK, Patrick Harvie in 2003 proposed a member’s bill that would have created civil registered partnerships on a non-discriminatory basis, with such partnerships being open to mixed-sex couples from the outset. At the time, it was disappointing that other parties decided to use a legislative consent motion, which was then known as a Sewel motion, to have the UK legislate in the devolved area of family law. The UK subsequently created civil partnerships for England and Wales, which was a step forward, but it did so on a discriminatory basis. If we had passed the Greens’ proposed bill instead, we would have been fully compliant with human rights legislation right from the start.
Nonetheless, we are where we are, and I am glad that we are here now. The bill extends eligibility to enter into a civil partnership to different-sex couples by amending the 2004 act to remove the reference to same-sex couples, and it also recognises mixed-sex civil partnerships that have been registered outside Scotland.
Different-sex couples can already obtain civil partnerships in England, Wales and Northern Ireland, and—as many members have noted—the Supreme Court, in the 2018 Steinfeld and Keidan case, decided that preventing opposite-sex couples from entering into civil partnerships was discriminatory and incompatible with the European convention on human rights. There is therefore a straightforward principle at stake. Parliament has acknowledged that it was wrong that the state created and administered marriage on a discriminatory basis, and surely it is therefore equally wrong that civil partnerships are similarly discriminatory.
The arguments for and against the bill are relatively modest and straightforward, and are set out in the committee’s stage 1 report. The reasons that the Scottish Government did not introduce mixed-sex civil partnerships following the 2015 consultation included, among other factors, low demand, limited recognition of such partnerships in the rest of the UK and overseas, the idea that society’s understanding of civil partnerships might be limited, the fact that Scots law already provided some rights for cohabitants, the fact that it was already possible to have a civil marriage ceremony, and the increased complexity that might arise.
However, everything changed following the Supreme Court ruling in 2018, and the Scottish Government, in its consultation that year, posed the choice of whether to close civil partnerships to new relationships or extend them to opposite-sex couples. Either approach would, in theory, as Graham Simpson said, overcome the human rights violation that the Supreme Court identified. In the end, ministers took the view that eligibility for civil partnerships should be extended. We welcome that approach, as it provides flexibility and choice, which are principles that should underpin how people choose to live their lives.
We also welcome the committee’s recommendation that those couples who are married should be able to convert their legal relationship to a civil partnership. That is a very important issue given the underlying principles of freedom and choice as to how couples wish to relate to each other in law, which are so important. We also believe that any kind of hierarchy in relationships is false, unhelpful and can be stigmatising. People should be able to choose the form of relationship recognition that best suits them, whether that be cohabitation, marriage or civil partnership—either fully civil or with some sort of religious element. If people choose what is best for them, it is not for anyone else to portray that as a lesser relationship. The bill takes some important final steps towards equal recognition and respect.
Finally, choice and freedoms in relationships should also cover cohabitation. I welcome the committee’s recommendations in that regard. I await the Scottish Law Commission’s review of that area of law with interest.16:21
Alex Cole-Hamilton (Edinburgh Western) (LD)
I thank the clerks and witnesses who have made the collection of evidence at stage 1 enjoyable and seamless in adding to the committee’s knowledge. In particular, I thank the Equalities Network, which provides evidence of such depth and quality. I also thank the campaigning groups who have seen the change that we are driving forward today already enacted in England, which has brought equality to mixed-sex couples who want to enjoy the same protections that civil partnership offers. Put simply, if the bill is passed by the Scottish Parliament, it will be another step towards equality.
The bill offers legal and financial protection for both parties in the event of a relationship ending. However, it does so much more, in freeing those couples of the baggage of religious connotations that many attach to marriage. That is an important choice and one that we should extend to Scottish citizens.
I know how long some opposite-sex couples have waited for the opportunity to formalise their relationships and to enjoy the stability, rights and entitlements that other couples enjoy. There are 3 million opposite-sex couples who cohabit but choose not to marry and those couples support 1 million children. However, as it stands, they do not have the security or legal protection that married couples or those in civil partnerships enjoy. That needs to change. The bill will allow more people to formalise their relationship in the way that they choose.
The member mentioned some figures, including 3 million couples. I presume that that does not relate to Scotland—I just want to clarify that we are not looking at a sudden rush of new civil partnerships.
I am grateful to Andy Wightman for allowing me the opportunity to correct that point. It is, indeed, a UK-wide statistic. I imagine the figure would be in the region of 300,000 in Scotland.
Children in Scotland is fully supportive of the legislation, arguing that
“opening out civil partnerships will have positive implications to the lives of children and young people”.
That is because the bill will not only increase parity for those seeking to engage in a civil partnership, but provide that a man in a civil partnership with the mother of their child will obtain parental rights and responsibilities. That is a vital improvement in the law. That recognition of both parents helps to ensure that children’s rights have great protections.
In addition, opening out civil partnerships to everyone would help support LGBT+ communities. Stonewall has highlighted how the extension will ensure that civil partnerships remain an option for LGBT people in same-sex relationships, while widening the options available to people in mixed-sex relationships, including those who are LGBT, such as bi and trans people. Once again, at the core of the bill we see the pillars of equality and fairness.
Last year, we saw civil partnerships become available in England and Wales, so this slight change in legislation—as the minister said, it is such a small change—will make an important shift in our progress as a nation towards equality.
That change followed the UK Supreme Court ruling in favour of Rebecca Steinfeld and Charles Keidan, which stated that the UK’s previous law, the Civil Partnership Act 2004, was incompatible with articles 8 and 14 of the European convention on human rights on equality grounds. The judge ruled that current UK laws were incompatible with human rights laws on discrimination and the right to a private and family life.
Equality before the law, irrespective of sex, gender identity, or sexual orientation, is a vital baseline against which further progress towards all human equality and rights can be made. The Equality Network claims that, based on the experience of other countries, roughly one in 10 mixed-sex couples would prefer a civil partnership to a marriage, with demand coming from couples who would otherwise choose not to get married and become unmarried cohabitants.
The impact of the lack of legal rights on the breakdown of a cohabiting relationship is gendered. In its 2015 response to the Scottish Government consultation on civil partnerships, Engender said:
“women have less access to resources, assets and income, due to systemic issues that include unpaid caring roles, the gender pay gap, violence against women and unequal representation.”
My Liberal Democrat colleagues south of the border sought to introduce civil partnerships for all couples in 2002 through Lord Lester’s private member’s bill, and in 2013 when they tried to make civil partnerships open to mixed-sex couples. They did not succeed until very recently in England, and we must now follow suit.
I am pleased that this anomaly, which has existed in this country for 15 years, is now on track to be fixed through making marriage and civil partnerships available to couples regardless of sex. The committee has looked at the bill from all angles and the bill is elegant in its simplicity. As such, it is likely to require few, if any, amendments at stage 2, other than those to which the minister has already given voice.
However, I wish to put on record my regrets regarding evidence that we heard during the stage 1 consultation—with which I had great sympathy—on the unfortunate realities of the transition arrangements around implementation. The committee heard compelling evidence from campaigners who voiced concern at the fact that, until the date of implementation, mixed-sex couples who had a civil partnership that was already recognised in England would be regarded as being married for that period in Scotland.
There are real and legitimate reasons why people would reject the institution of marriage and would understandably be angry that, despite the lengths that they had gone to to have a mixed-sex civil partnership realised in England, they should be considered as husband and wife in Scotland, even for just a few months. The committee took extensive legal advice on the matter and it was determined to be unavoidable, so I hope that we can expedite the implementation of the bill.
I see that my time is up, so I thank the clerks and witnesses and I assure the Government of our support at stage 1.16:27
Kenneth Gibson (Cunninghame North) (SNP)
Although the bill has been directly influenced by the European convention on human rights Steinfeld and Keidan judgment, I believe that we should all have equal opportunities, regardless of sexual orientation, and I am therefore pleased to speak in today’s debate. I thank everyone in the Government and on the committee and all those who gave evidence to help bring the bill to stage 1.
Although there are few legal differences, the institutions of marriage and civil partnerships are very different. If civil partnership was introduced to be the closest thing to marriage that is not quite marriage for same-sex couples, it cannot now be argued that to opposite-sex couples it is all the same.
I strongly believe that the way in which partners profess, demonstrate, celebrate or formalise their love and commitment to each other should never be dependent on the sex of either one of them. I enthusiastically voted in favour of same-sex marriage because I want every couple to have the same choices.
For the past six years, heterosexual couples have had fewer options than same-sex couples and we are here today to help resolve that. Some people might ask why it is so important that civil partnership should be accessible to all and whether it has not become obsolete since the introduction of same-sex marriage. I believe such views display a lack of empathy for those with their own reasons for objecting to the institution of marriage or for not wanting to enter into it themselves.
I know couples who see marriage as a religious institution with which they cannot identify; people who associate the institution with personal trauma from their early years or from marriages that they were in before; some who object to its patriarchal tradition in which women are given away by their fathers and, in some ceremonies, promise to obey their husbands. Should people who decide not to enter into marriage have the right to formalise their relationships and give their partners legal rights in life and death? Of course they should.
Civil partnership is between those who wish to make that choice of commitment but—for reasons that are frankly none of our business—do not wish to be married. At this point, it is important to reassure those who object: opening up civil partnership to couples of the opposite sex is not an erosion of the institution of marriage, nor is it a threat, nor a first step to erase the concept of marriage—marriage will, of course, continue to thrive.
Reading the bill, I found few issues with its general principles. However, I want to pick up on a few significant points that must be rectified as the bill progresses to stage 2.
If the bill passes as it is, that would mean that, while it would be possible to convert a civil partnership into a marriage, converting a marriage into a civil partnership would still be precluded. Those put at a disadvantage would include not only people with religious beliefs, who would be precluded from choosing a civil partnership in future, but everyone in the chamber and elsewhere in Scotland who is already married.
More constituents than we might expect have contacted me to express their wish to have a formalised relationship giving rights to their opposite-sex partner. More of them than we might expect are married already, because it was their only option for sharing that legal status with their partner. To them, having to do that through the institution of marriage has always been the lesser of two evils, and marriage is not what they really wanted. Those couples must be given the opportunity to convert their marriage into a civil partnership, and it should be up to them how they design and frame their relationship and commitment to each other.
Like me, those constituents will be heartened to know that the Scottish Parliament’s Equalities and Human Rights Committee has picked up on that inequality, and the cabinet secretary has expressed a willingness on the part of the Scottish Government to explore ways to include the possibility of providing for conversion from marriage to civil partnership at stage 2.
Another issue of inequality between the two institutions is that, in marriage, adultery is a ground for divorce, as was mentioned by Graham Simpson. In civil partnership, however, there is no such ground for dissolution. Technically speaking, that makes civil partnership something other than an equal alternative to marriage.
The committee sympathises with the view that certain aspects of divorce and dissolution law are outdated and untidy and suggests that those issues are for consideration during a wide reform of divorce law and are outside the provisions of the bill. In its response to the committee’s stage 1 report, the Scottish Government agrees that
“any wider reform of divorce and dissolution law is not for this Bill but would be for separate consideration.”
However, in the same breath, the Government says that there are
“no current plans to review divorce and dissolution law in Scotland”,
or to consult on that, leading one to the suspicion that the matter of that missing ground will not be resolved for some years. I am unsure why that ground for dissolution has not been included in the bill as long as we are making laws to improve equality between the two institutions. However, I look forward to having a public consultation on those aspects and more when the time comes.
Although the Parliament has many urgent matters to deal with and the Scottish Government has other priorities to address for the duration of this parliamentary session, a review of divorce and dissolution law will ultimately be required if we really want to iron out the existing inequalities between the institutions and between same-sex and opposite-sex couples. I would like that to happen at some point during the next parliamentary session.
I agree with the principle of the bill, even more so in light of the Scottish Government’s intention to explore the possibility of converting marriage into civil partnership, and I am pleased that something that is so important to many couples in Scotland—and indeed to a number of my constituents—is being progressed.16:32
Joan McAlpine (South Scotland) (SNP)
I, too, welcome the bill. Scotland—and, until very recently, England, Wales and Northern Ireland—is the only country in the world where same-sex couples can choose between a marriage and a civil partnership while different-sex couples only have the option of marriage. It is an anomaly that is both unfair and illegal.
If the subject was considered in a superficial way, one might ask why new legislation is necessary, as civil partnerships and marriage confer almost identical legal benefits. Even the Campaign for Equal Civil Partnerships makes that clear on its website, where it states:
“There is very little difference in legal terms between marriage and civil partnerships, with both conferring the same rights on things like tax, inheritance and pension provision.”
Of course, some weddings are religious, and some traditional ceremonies have echoes of patriarchy in promises to obey. Many people opt for civil services, and marriage itself is often a secular arrangement, just like a civil partnership. However, we know from the campaign for equal marriage that the perceived difference between marriage and civil partnerships was very real when they were reserved for different groups of people.
Civil partnerships were introduced across the UK for same-sex couples only by the Civil Partnership Act 2004, which was considered by the Governments of the day to be a significant social advance, even though it denied gay people equality. At the time, the authorities spoke openly about the danger of undermining marriage by opening it up to couples of the same sex. That seems quite extraordinary to us now, and the campaign for equal marriage correctly identified the distinction in those two different types of union as discriminatory. Many campaigners understandably felt that civil partnerships were second best, and I was proud to be able to correct that wrong, together with colleagues in this Parliament, by voting overwhelmingly for equal marriage.
That achievement perhaps obscured the fact that some same-sex couples were happy with the pragmatic benefits incurred by their civil partnership with regard to pensions, tax, inheritance and so on, so much so that some mixed-sex couples were keen to access similar arrangements. For those heterosexual couples, civil partnerships were not second best at all but were preferable and, indeed, something to which they aspired.
The Equal Civil Partnerships campaign states that
“the history, expectations, and cultural baggage of the two institutions is very different. Many couples can make a marriage work, but for some people – especially women – marriage is seen as carrying far too much patriarchal baggage: the idea that the man would own his wife, given away to him by the father of the bride”
is unacceptable. The campaign also states:
“Still today marriage certificates only have space for the names of the fathers of the bride and groom, whereas civil partnerships include the name of both parents. And in the ceremony partners have to say the words “I take you to be my wife … I take you to be my husband.”
One couple who felt that way were Rebecca Steinfeld and Charles Keidan. Their challenge ultimately led to a Supreme Court ruling on 27 June 2018 that the inability of different-sex couples to form a civil partnership is in breach of the European convention on human rights. The case of Rebecca and Charles was by no means an isolated one. I have been contacted by constituents who feel very strongly about the matter and I know that they will be delighted that we are now setting things right, particularly as mixed-sex civil partnerships are already legal in England and Wales.
I welcome the work on the bill of the Scottish Parliament’s Equalities and Human Rights Committee, which approved the bill’s general principles. The committee’s report notes that, for symbolic, cultural or emotional reasons, some people do not wish to marry. I note that the committee’s call for evidence on the bill received 40 submissions that were overwhelmingly in support of its proposals. Those submissions included one from the Equality and Human Rights Commission, which said that the change to the law would advance
“equality of opportunity for couples who are or who wish to enter into a legally recognised relationship.”
There were also positive responses to the bill from Children in Scotland, Engender and many LGBT groups, as other members have already outlined.
However both the Faculty of Advocates and the Law Society of Scotland pointed out that couples who are married will not be able to change to a civil partnership in the same way that a same-sex couple can currently change their civil partnership to a marriage. I understand that the UK Government has consulted on that matter but no firm conclusions have been reached. I would welcome further exploration of that anomaly.
The bill will affect only a small number of people—an estimated 109 couples in Scotland—but it is the right thing to do. It is clear that the general public are very supportive of the proposals. A British social attitudes survey found that 65 per cent of people back the change to civil partnership. I am glad to count myself as one of those people and I support the bill’s general principles.16:37
Annie Wells (Glasgow) (Con)
I welcome the opportunity to speak in this debate on an important bill that will allow Scotland to continue to promote equality, freedom of choice and fairness. The Equality and Human Rights Committee did important work in its early consideration of the bill. Although I have stepped back from the committee, I will make sure that Maurice Golden and Alison Harris keep me up to date on the bill’s progress as they ably represent the Scottish Conservatives’ voice on the committee.
The bill’s fundamental principles are sound and there is cross-party support for the bill. However, we must still carefully consider it, and I ask the Scottish Government to be agile in its approach to some of the difficulties raised by the bill as we move forward to stage 2. It is important that we progress the bill through Parliament so that Scotland does not lag behind the rest of the UK on civil partnership. England, Wales and Northern Ireland have already passed the necessary legislation to make civil partnerships legal for different-sex couples, and I am glad that Scotland will join those countries soon in that regard.
As we have heard, the 2018 Supreme Court ruling outlined that the unequal access to civil partnerships for different-sex couples was in breach of the European convention on human rights and that we must therefore adapt our law to take account of that. In 2014, the landmark legislation that legalised same-sex marriage saw the LGBT community take a major step forward in its on-going fight for equality. That equity for relationships regardless of sexual orientation must now be offered to different-sex couples who want to access civil partnership.
The 2018 ruling represented a wider movement in public attitudes that was the catalyst for the introduction of the bill. The British social attitudes survey in 2019 showed that 65 per cent of the public supported the introduction of different sex civil partnerships, while only 7 per cent actively opposed it.
As the Equalities and Human Right Committee scrutinised the bill, it found, time and again, that the central purpose of the bill is to allow couples the right to legitimise their relationship through the route that best represents their cultural values and outlook on the world. I am glad that, today, we are starting to take the first steps to allow that to become a reality for mixed-sex couples across the country.
The bill is about extending choice. The Equality Network gave evidence that referred to that when it talked about the levelling up that will happen as a result of the bill. Although marriage and civil partnerships represent a similar legal position, they can mean very different things to individual couples. Both come with their own set of symbolic values and their own importance, and I am therefore glad that the bill represents an extension of choice. The alternative to aligning with the European convention on human rights would have represented a limitation to that personal freedom by removing the option of accessing civil partnerships altogether.
The bill, on the whole, is straightforward and uncontentious. There are, however, some important considerations to be made as we approach stage 2. The committee report outlines various areas where further consideration at stage 2 will be needed. For example, the drafting of section 3 will need to be examined to ensure that we respect the decisions of couples who have specifically chosen to enter civil partnerships and, because of that, might be unhappy with their status being likened to a marriage, even if that is only on an interim basis in Scotland. If we do not get that right, we will be sidelining the conscious freedom of couples to be legally recognised in the way that they choose.
Another interesting area of discussion that the committee considered surrounded the matter of converting marriages to civil partnerships. The purpose of converting civil partnerships to marriages was clear when they served a community of LGBT couples who wished to formally transform their civil partnerships to marriages as a result of same-sex marriage becoming law. It allowed them to access the legal recognition that they had always been barred from, and it symbolised a battle won in a wider fight for equality.
Evidence to the committee was overwhelmingly in favour of the bill allowing marriages to be converted to civil partnerships in a bid to recognise cultural preference, as well as to make sure that Scotland did not perpetuate forms of discrimination. I was therefore encouraged when I heard the cabinet secretary say today that he will work with the committee on that point.
I am pleased to see the inclusion of forced civil partnership as a criminal offence. For the first time, that will put same-sex and different-sex civil partnerships on the same level as married couples in relation to protection. That protection acknowledges the legal validity of civil partnerships by outlining that they should never be taken advantage of or used for harm.
The bill underpins the attributes of modern Scottish and British culture that we would do well to protect: fairness, equality and freedom of choice. It will be important that those continue to be upheld as the committee enters considerations at stage 2.
In a time when most of us are missing our loved ones and those who mean most to us and are seeing the fragility of life, I am happy that I can support a bill that allows couples to recognise their love in a way that they have decided represents their values best.16:44
Fulton MacGregor (Coatbridge and Chryston) (SNP)
As a member of the Equalities and Human Rights Committee, I place on record my thanks to the clerks, witnesses and all those who gave up their time to get us to this place.
Although I agree with the general premise of the argument that has been made here in recent weeks about the need for us, in these times, to prioritise the Covid-19 response, I think that there are caveats. Of course, we cannot simply carry on as normal while people’s lives have been turned upside down, but, at the same time, we need to behave respectfully towards legislation that has already started its progress through Parliament, the witnesses who have given their time and people who are relying on the legislation being passed. I think that the Government has found the right balance in that regard.
Of course, as has been argued today, parts of the Civil Partnership (Scotland) Bill are very relevant to the current situation and to some of the difficulties that people are having. Like some of my colleagues, I have had queries from constituents wondering what will happen to the wedding or ceremony that they had planned for the coming months. They are not all asking for the ability to hold traditional large parties; rather, they want the opportunity to have their ceremony with a minimum number of people, in a safe environment. I welcome the work of the Scottish Government in that area and the cabinet secretary’s response on the subject last week in the chamber.
The bill will extend civil partnerships to mixed-sex couples as opposed to restricting them to same-sex couples, as the legislation currently does. That is right and is in line with the European convention on human rights. Couples may not want to enter a marriage, for a range of reasons—symbolic, cultural or emotional. At the end of the day, marriage is a deeply personal life choice. I understand that some regard marriage as carrying patriarchal baggage and that civil partnerships, although they confer the same legal benefits as marriage, are viewed differently. We heard that clearly when we were taking evidence in the committee. With the passing of same-sex marriage legislation, people in same-sex relationships rightly have a choice of marriage or civil partnership, and it has been ruled that those same options should be available to mixed-sex couples, in order to comply with the European convention on human rights.
As has already been said—Graham Simpson noted that we are probably going over the same lines—the committee took an array of evidence to enhance our scrutiny. Crucially, the bill has widespread support. Stonewall Scotland, for example, feels that the bill would support LGBT people on the whole by opening options up to bi and trans people. In addition, Children in Scotland feels that the legislation would have only positive implications for children whose parents choose to enter mixed-sex civil partnerships and for children born to parents in mixed-sex civil partnerships. As others have said, no real evidence was given against the bill, which shows that the legislation is widely supported.
If the bill passes, couples who are currently cohabiting but do not wish to enter into a marriage will have a new option. On the surface, it might appear that there are few legal differences between a marriage and a civil partnership, but there are major differences between people cohabiting and people being in a marriage or civil partnership. If the bill passes, mixed-sex couples will be able to enjoy the legal protection that is afforded to civil partnerships, which cohabiting couples do not have under the bill, particularly with regard to tax planning and instances of one of the partners predeceasing the other.
Practically, the legislation opens up rights when transferring property or making gifts, and it ensures that capital gains tax will not apply to assets that someone has given or sold to their partner. In addition, currently, if a cohabiting partner dies before their partner without having made a valid will, the surviving partner will not automatically inherit from their estate. However, upon entering into a civil partnership, a partner has a legal right to the estate of their partner, even if they died without leaving a will—the surviving partner would be entitled to claim one third of their partner’s moveable estate if they had children at the time of their death, or half if there were no children. Likewise, on inheritance tax, the situation for a civil partner is the same as it is for someone who is married: they are able to transfer the entirety of their assets on death to their surviving civil partner without incurring any tax. Those might be some of the reasons why little evidence was given against the bill, which seems to bring in commonsense changes.
As others have said, Scotland is the only country in the world where same-sex couples can choose between a marriage or a civil partnership while different-sex couples have only the option of marriage—of course, until recently, that was the case in England and Wales, too. The bill will see us join other nations in making civil partnership an option for everyone.
I will conclude with a quote from the Equality and Human Rights Commission’s written evidence on the bill. It said:
“the approach of upholding human rights and providing equality of opportunity for all couples who wish to enter into a legally recognised relationship is to be welcomed as progress towards greater equality in Scottish society.”16:59
Alexander Stewart (Mid Scotland and Fife) (Con)
I am delighted to be able to participate in this afternoon’s stage 1 debate on the Civil Partnership (Scotland) Bill. I pay tribute to the committee clerks, the convener, the members of the committee and everyone who has given evidence or made a contribution to the committee.
As my colleagues have outlined, we, in the Scottish Conservatives, support the general principles of the bill, which will also bring Scots law into line with the position in the rest of the United Kingdom. Although how we got to where we are is understandable—the introduction of civil partnerships for same-sex couples in 2004 being followed by the extension of marriages to same-sex couples in 2014, which also allowed people in civil partnerships to convert their legal status to married—there now exists an inequality between the legally recognised partnerships that are available to mixed-sex couples and those that are available to couples of the same sex. A bill to address that inequality serves as the logical next step to the previous legislative changes that have reflected wider changes in our society and advanced the fundamental principles of liberty, equality and choice.
As my colleague Graham Simpson said, there is a wider question about how best to go about addressing the issue. To a great extent, civil partnerships were an important stepping stone towards marriage for same-sex couples at a time when many legislators—and, perhaps, Scotland more widely—were not ready to take that next step. However, the situation has changed. Although there is an argument to be made that such a stepping stone is no longer necessary, it is clear that there remain couples of all compositions who object to the very institution of marriage on many different grounds but who still wish their relationship to be legally recognised. That is important with regard to equality of choice and equality of involvement. That has been demonstrated by the court case in England that we have heard members speak about today and, indeed, is noted by the Equality and Human Rights Committee. That was commented on by my colleague Annie Wells a few moments ago. The simplest solution, therefore, is the one that the bill advocates—namely, allowing mixed-sex couples to enter into a civil partnership should they prefer to do so rather than get married—and that is why we, in the Scottish Conservatives, support the general principles of the bill at this stage.
It is clear that the bill has widespread support from across Scottish civil society. It is good to know that many groups have made a strong commitment to the bill, including many charities and equality groups that have fought long and hard to ensure that their voices are heard. It is important that we recognise that and it is good that they are now getting that recognition. The bill also fulfils the ambitions of the Equality and Human Rights Commission, which set out the changes that it wanted in 2011.
It is important that we talk about the issue of forced formal relationships. Forced marriage is a terrible crime that has often gone unreported, and that needs to be challenged. In recent years, the UK Government has taken an increasingly hard line on that crime, and our previous Prime Minister, Theresa May introduced legislation in 2014, when she was the Home Secretary, that made it an offence across the United Kingdom. Although forced marriage is an offence, forced civil partnership is not currently an offence. The bill seeks to address that by making a forced civil partnership an offence in Scotland, which is a welcome development, because forced formal relationships are abusive, and we need to recognise that.
Like other members who have spoken in the debate, I am concerned that the bill does not provide a means for a marriage to be converted into a civil partnership although there is the ability for the reverse to happen. Ministers have set out that one of the justifications for the bill is that it advances the principle of choice. It is important that we recognise the principle of choice, but, if that is what the bill is meant to do, why should people who are married not be allowed to convert their marriage to a civil partnership if they want to—or, indeed, vice versa—without needing to fulfil the current condition of showing “equal societal recognition and the same respect as mixed sex relationships”?
There is also a risk that there could be further negative divergence on equalities between Scotland and the rest of the UK. As has been highlighted by the committee, the UK Government is currently consulting on establishing the ability to convert marriages to civil partnerships in England and Wales. I hope that that discrepancy can be given further consideration at stage 2.
The bill seeks to enhance equality in Scotland and extend the personal freedom to choose whether to enter into a marriage or a civil partnership to the whole population. I am, therefore, happy to support the bill at stage 1 and to see it progress to the next stage, because it will bring choice, fairness and equality.16:55
Angela Constance (Almond Valley) (SNP)
The starting point when considering the extension of civil partnerships to include different-sex couples is that the status quo is incompatible with the European convention on human rights. The UK Supreme Court ruling of 27 June 2018 applied to England and Wales but was nonetheless a clarion call to us that our current situation is discriminatory and time limited. As Ruth Maguire, the convener of the Equalities and Human Rights Committee, and other members have said, Scotland is the only country in the world where same-sex couples have a choice between civil partnership and marriage but mixed-sex couples have only the option of marriage if they do not want to cohabit. It is only right, therefore, that we address and progress that matter today. Other progressive European countries and the rest of the UK have taken that step forward, so we now need to catch up with them.
Yes, this is indeed about equality of choice and opportunity, but it is also about securing the same legal rights: a levelling up, as some members have reflected. There is little legal difference between marriage and civil partnership, although some pension providers will deliver fewer survivor benefits to a civil partner than to a spouse, which is, frankly, outrageous. I am glad that the cabinet secretary will issue guidance around some of the difficulties with respect to international recognition of mixed-sex civil partnership, as that might be important to some individuals.
The biggest anomaly is around the legal rights of cohabitees compared to those of married couples. With regard to death or separation, cohabitees rely on the Family Law (Scotland) Act 2006; whereas, for married people, the protections around pension succession, alimony and financial provision are much clearer and stronger. Some people might say—wrongly—that, in order to maximise legal protection for when a relationship ends due to divorce or death, people should get married. However, that misses two very important points. The first is a very simple point: why should there be a different position for any couple, whether they are mixed sex or same sex?
The second point is perhaps harder to understand if we come from a position of believing in marriage as an institution, which many of us do, and that the only impediment to marriage is not meeting the right person. However, we have to understand and respect that some people have real ideological and very legitimate personal objections to the concept of marriage but nonetheless form long-term, committed and loving relationships that should not be viewed as second rate. Those couples deserve access to the law and should be able to access the same legal rights as married couples to protect and plan their future.
The Equal Civil Partnerships campaign has spoken eloquently about the symbolic, cultural and emotional reasons why some people object to marriage but nonetheless want a legally recognised relationship. For some women, marriage is, indeed, a patriarchal institution, and it is hard to deny that marriage comes with what has been described as baggage of history, culture and expectation, given that the civil and legal premise of a woman being the property of her husband is, sadly, not confined to ancient history. Joan McAlpine tapped into the feeling that opening up civil partnerships to mixed-sex couples will, in many ways, address some unfinished business, which is something that I heard Alex Cole-Hamilton reflect on, too.
With the introduction of same-sex marriage, many countries have either abolished civil partnerships or retained them as a legacy union and have withdrawn them as an option. I firmly believe that, on balance, our having the option of either marriage or civil partnership for same-sex and mixed couples is the right approach—and some two thirds of those questioned in the British social attitudes survey think so, too. As Fulton MacGregor mentioned, the bill has widespread stakeholder support.
Those of us who serve on the Equalities and Human Rights Committee have discovered that there are complexities to unravel and address, and other members, including the cabinet secretary, have touched on those. In particular, the committee has sought to explore with the Government the notion of converting marriages into civil partnerships on the basis of the evidence that we heard. The cabinet secretary’s written response walks us through some of the complexities. In essence, the issue is about how not to disrupt legal rights when people change a marriage into a civil partnership. New Zealand and Austria have introduced the ability to do that, so perhaps we can learn from those countries. I am sure that we all very much welcome the cabinet secretary’s commitment to explore the issue in more depth with the committee.
This is a small but purposeful bill, and I am glad to have the opportunity to support it today.17:01
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I apologise to the Presiding Officer and to colleagues for joining the debate late. I am a member of the COVID-19 Committee, and our stage 2 debate on the Coronavirus (Scotland) (No 2) Bill ended just after 4 o’clock. Who said that men cannot multitask?
I will make brief remarks, which I hope will support, and will only to a limited extent duplicate previous members’ contributions. I certainly intended no disrespect to colleagues by not being here to hear their words.
I welcome the bill and support its objectives. Extension of the criteria for civil partnerships will take nothing away from me, nor do I see any demerit for wider society. To legislate in the terms that are set out in the bill will extend benefits to people who, for whatever personal reasons, do not wish to marry. That is proper.
Formal endorsement in law of a relationship is of particular benefit to the children of a couple. It simplifies inheritance and, generally, simplifies the transfer of assets within close family. Marriage and civil partnership have significant benefits. I have been doing the marriage bit for more than 50 years, and hope to get the hang of it sometime soon.
I was delighted previously to work with Pauline McNeill on marriage issues—she referred to the civil partnership legislation on which we both worked. At that time, we made common cause, and I believe that we can do that again. I note that the Jewish community has identified some—fixable—issues in the bill. I hope that we do something about that. In the legislation that Pauline McNeill and I worked on, a significant issue was how divorce works in the Jewish faith. We were able to work together and with others to ensure that that important group in our community got the changes that mattered to them. I am sure that we will be able to do that again—especially as the current issue looks to be rather more straightforward.
The Family Law (Scotland) Act 2006 identified new rights for cohabiting couples, but those rights fall far short of what might be fair to couples and their offspring. If the bill moves on to the statute book, as I believe is likely, that should encourage many cohabiting couples to seek formal recognition of their relationship.
The act of entering into marriage or civil partnership is important recognition by a couple of their commitment to each other, by affirming that it is not simply a temporary or transient relationship. That commitment is of particular value to the children of those relationships. Although there are financial aspects, the much more fundamental issue is the emotional benefit of a stable family environment, however it is structured. Families can operate in many different ways: it is not for me to comment on anyone else’s arrangements.
I wish, for the bill, all support as it moves forward, in particular so that it can benefit children, as much as their parents.17:05
Sarah Boyack (Lothian) (Lab)
I start by reiterating Pauline McNeill’s affirmation that Scottish Labour welcomes the introduction of the bill to extend civil partnerships to mixed-sex couples, which will bring Scotland into line with England and Wales, and will promote human rights and equality through opening opportunities and providing greater choice.
Ruth Maguire’s point that the choice between marriage and cohabitation is not a good enough choice was well made. We also welcome the legal, financial and social benefits that the bill will bring to mixed-sex couples and to several equality groups, as well as the discussion that the bill has opened up on living arrangements, which have evolved at a pace that has far outstripped the law. For example, couples who choose to cohabit have weaker and less-certain rights than those who are in a civil partnership or marriage, which can particularly work against women, as several members have said. Given the long-term trend towards cohabitation, Scottish Labour supports the Scottish Law Commission’s proposed review, after the passage of the bill, of the law on cohabitation.
As several colleagues have said, it is important to highlight that civil partnerships allow couples to benefit from the legal, financial and social aspects of marriage, while avoiding an institution that they do not wish to enter for perhaps symbolic, cultural or emotional reasons. Civil partnerships might also provide a valuable choice for women who have had negative past experiences of marriage, including abusive relationships. If we want to be an inclusive and forward-looking country that upholds people’s rights, it is right that we ensure that those who wish to formalise or celebrate a relationship are able to do so in a manner that fits with their outlook and values. The extension of civil partnerships allows us to stand in solidarity with others across the world who cannot marry.
In international terms, the bill allows us to follow in the footsteps of nations including New Zealand, South Africa and the Netherlands. Pauline McNeill’s comments about the popularity of new choices in other countries were striking. She gave the example of France where, for every five marriages, there are now four pactes civil de solidarités. I like the title in French, as well as in English.
Although a civil partnership might not be recognised in other countries that do not have that legal option, the bill allows us to continue to help to pave the way towards a more progressive future in which there are greater opportunities for all and a legal system that recognises the evolving needs and preferences of our citizens. The level of public support for civil partnerships for opposite-sex couples is 65 per cent, with only 7 per cent opposing them. With the public being so strongly on the side of the bill, it is time to push forward with it.
There are issues that still need to be addressed. The bill does not address the legal chasm between those who enter into a formally recognised marriage or civil partnership and those who choose to cohabit. As has been mentioned before, cohabitees have weaker and less-certain rights than people in civil partnerships or marriages have—a difference that is particularly gendered and particularly experienced by women. As the long-term trend toward cohabitation and diversifying family types continues, the bill must not be seen as signifying the end of the road in Scotland for creating legal equality in all types of relationships. There is unfinished business and more work to be done, so the Scottish Law Commission’s review of the law on cohabitation is, therefore, both welcome and needed.
As Alexander Stewart said, the bill delivers choice, fairness and equality. It is a bill that we should pass—not because we have to, but because it is the right thing to do.
As others have said, the Covid-19 pandemic has truly made us think. It has given prominence to our homes, to how we live and to the importance and quality of our relationships. It has also underscored many equalities issues in our homes—not only in Scotland, but across the world.
Although the bill tackles only a small legal and technical aspect of home life, I hope that it results in a wider discussion of where we will go next. The bill falls into the wider narrative of the changing Scotland in which we live. It is updating the law to recognise the evolution of households and families everywhere, and to provide protection to those who choose paths other than marriage, so it is important.
Scottish Labour supports the bill, and the work that has started on the review of the law of cohabitation. I, too, thank the committee, clerks and witnesses for their contributions thus far. Some changes need to be made to the detail of the bill, but clearly there is support for its principles right across the chamber—which we cannot say about every bill. From listening to the tone and content of speeches today, I believe that all the issues that people have mentioned can be addressed at stage 2, where they need to be addressed.
I support the bill at stage 1, and hope that it passes with unanimous support today.17:11
Maurice Golden (West Scotland) (Con)
This has been an entirely consensual debate. Graham Simpson injected some humour of sorts, as well as some interesting legal commentary. We were joined virtually by Pauline McNeill and Annie Wells, who made interesting speeches, as well as by Stewart Stevenson, who looked as though he was warming up for an operatic show, perhaps by doing some press-ups—probably one armed—and gave a suitably eloquent speech.
Fulton MacGregor and Angela Constance highlighted the extensive evidence that the committee has taken, and suggested that we must address and progress the bill, which I agree with.
Many thanks have been offered to the Equalities and Human Rights Committee and its clerks: I associate myself with those comments.
Overriding themes in the debate have been equality and fairness. Points on those were adeptly made by Alex Cole-Hamilton, who also highlighted that there are 3 million mixed-sex couples who cohabit and who have, to date, chosen not to marry. Andy Wightman clarified that that is a UK-wide figure, but the Scottish figure is high, nonetheless.
Kenneth Gibson explained why marriage is not for some people. He said that although there are many reasons that explain that, they are
“frankly none of our business”.
The creation of equality, through ensuring that people across Scotland have the same choices in their relationships, and fairness, through allowing the law to recognise those choices, are things that we should all support.
When civil partnerships were introduced back in 2004, it was in order to create a more equal footing for same-sex couples. However, in doing so, an inequality was created for different-sex couples, who could not enter into such partnerships. I appreciate that that exclusion was not malign in intent, but the end result was still unfair to different-sex couples who would have chosen a civil partnership, had that choice been open to them.
Scotland is now catching up with the rest of the UK, where civil partnerships for different-sex couples are already recognised. The bill that is before us is an opportunity to correct that and to bring Scotland up to date—a point that Alexander Stewart made well.
Beyond that, the bill should be an opportunity to ensure that we do not repeat the mistake of inadvertently allowing well-intentioned legislation to create more unfairness. Therefore, it is important that the proposed expansion of civil partnerships be indistinguishable from the existing provision for same-sex couples. I therefore welcome the willingness to extend the provision of conversion of partnerships to marriages—a point that was mentioned by Ruth Maguire and Annie Wells, among others—and the recognition of non-Scottish different-sex civil partnerships by allowing registration a second time, when necessary.
It is also welcome that there will now be prohibition of forced partnerships for both same-sex and different-sex couples.
However, although we can all welcome the improvement in the quality of choice, we must also recognise that legislation that intrudes upon the personal and private lives of individuals will have a number of implications. Those must be fully explored as the bill makes its way through Parliament, and I have full confidence in the Equalities and Human Rights Committee and the Parliament to do that.
I will highlight some key themes for Parliament to discuss during the next stages of the bill. We must examine better what we mean when we talk about “equality” and “fairness”. As I said, they have been watchwords throughout stage 1, which will no doubt continue to be the case.
However, the bill seeks primarily to address equality and fairness where they apply to a particular set of people—namely, different-sex couples who, for whatever reason, wish to enter not into a marriage but into a civil partnership. It is entirely right that we address such concerns and create a more equal system for such couples. The cabinet secretary summed up that point when she gave evidence to our committee. She said:
“The Government is obliged to consider what can be done to ensure that those people can be in a legally recognised relationship and have the benefits that flow from that while having an arrangement that fits their personal beliefs and how they want to live their lives.”—[Official Report, Equalities and Human Rights Committee, 05 March 2020; c3]
That begs a question: why should the same recognition and benefits not be equally applied? In many jurisdictions, both current and historic, Scots law does not provide for equality of marriage and civil relationships. That would not change under the bill.
The question is whether the bill will add another form of legal relationship to the ever-intensifying complexity of family legal relationships that are open to individuals. We should consider further where we draw the line in terms of respecting the wishes of minority groups that are looking to have their preferred options enshrined in law. Clearly, we cannot satisfy every view, so Parliament must discuss where to draw the line—perhaps not for this bill, although it might be something to consider in the fullness of time.
For those reasons and others, I believe that Parliament must ensure that wider views are represented in the bill. Ensuring that we hear those views is the only way that we can really claim to have delivered as equal and as fair a bill as possible.
I conclude by quoting Sarah Boyack, who said earlier that
“we want to be an inclusive, forward-looking country that upholds people’s rights.”
The bill, broadly, does that within the legal parameters that have been set, therefore the Scottish Conservatives will support its general principles at decision time.
The Deputy Presiding Officer (Linda Fabiani)
In reference to Mr Golden’s opening remarks, I point out that it might be worth my while to remind all members that if they are contributing remotely they are on screen for five minutes before they have to speak.17:18
We started off today with Pauline McNeill telling her story about getting married in exotic places—I am not quite sure that my wedding near Dalkeith counts as exotic, but it was certainly a very special day for my husband and me.
Marriages and civil partnerships are equally important steps. They are special, precious ceremonies for those couples who wish to legally recognise their relationship. As Fulton MacGregor quite rightly pointed out, how people choose to do that is very much a personal choice for each couple.
I will address a couple of the points that many members raised during the debate, including the interim scheme of recognition, which was mentioned by Graham Simpson, Alex Cole-Hamilton, Annie Wells and many others.
As I mentioned, I am sympathetic to the concerns of those who would prefer that their mixed-sex civil partnership was not temporarily recognised as a marriage. However, I still believe that temporary recognition as a marriage is crucial, as there is already a full body of law in place establishing the rights and responsibilities that apply to that relationship. The same will not be the case for mixed-sex civil partnerships until everything that is needed for implementation is in place, which includes a package of Scottish statutory instruments and an order under section 104 of the Scotland Act 1998 at Westminster.
If people in those relationships are to rely on the law of Scotland for recognition, I do not want them to lose any legal rights. Temporary recognition of marriage will achieve that, but I stress that those people will be considered married in law only—nothing and no one will change how they describe their relationship. Our approach on that follows broadly what has been done for same-sex marriages from elsewhere, which were recognised as civil partnerships in Scotland until same-sex marriage was available here. We are following a tried and tested approach and intend to do so for only a short time. However, as I said, I am happy to look, with members of the committee, at how the approach can be improved.
Angela Constance, Alexander Stewart and many other members spoke about the effect of changing marriages to civil partnerships. I listened with interest to what members said about that, particularly the powerful testimony of one couple’s views that Ruth Maguire talked about. In the stage 1 report on the bill, the committee clearly expressed its support for the principle of allowing married couples to change their relationship to a civil partnership. As I said, in line with that recommendation, I intend to take forward discussions with the committee on an amendment that reflects its support for that principle, and that decision has been reinforced by members’ comments today. As many members have said, it is important that we talk about the principles of equality and choice as we discuss the bill. I believe that provisions that allow married couples to change their relationship to a civil partnership would be consistent with those principles and with the bill.
Members spoke a great deal about the benefits of the bill for couples. I have been moved by what many members said about their constituents’ views on how the bill will make a real difference to them. The bill is very much for those people. It will enable them to show their love for each other by entering the form of relationship that they feel is the best expression of their beliefs. I know that the ability to do that will mean the world to those couples.
With that in mind, should the bill be enacted by the Parliament, I intend to take steps to implement mixed-sex civil partnerships in Scotland as soon as possible, while recognising the constraints that are caused by the current pandemic. In making civil partnership available to all, the bill will achieve more than the benefits for couples who want a mixed-sex civil partnership; it is about making a Scotland where equality matters and where rights are upheld in legislation.
During evidence to the committee, Elena Soper was asked about the benefits of the bill. I will quote an important passage from what she said:
“We know that women have less access to resources, assets and income due to systemic issues such as unpaid caring roles, the gender pay gap, violence against women, domestic abuse and unequal representation.”
She went on:
“Couples who want to have those enhanced legal rights without entering into the institution of marriage ought to have the option of a civil partnership.”
As members have mentioned, they agree with Elena Soper’s belief that that
“would also benefit dependent children.”—[Official Report, Equalities and Human Rights Committee, 27 February 2020; c 23-4.]
The introduction of mixed-sex civil partnerships will benefit not only the couples who want one; I believe that there can be broader societal benefits.
Members rightly stressed the importance of moving the bill along quickly and implementing it quickly should it become law. I am not alone in the chamber in wondering what the next few months will bring, and priority must of course be given to measures that are necessary to safeguard life and protect public health. Therefore, it is right that the implementation tasks for the bill, if passed, are reviewed in light of Covid-19. However, as I said, I am fully committed to carrying out those tasks as quickly as possible. A number of implementation tasks need to take place, including the introduction of an order under section 104 of the Scotland Act 1998 at Westminster and a number of Scottish statutory instruments. We will do those as quickly as we can.
I know that couples who are waiting for mixed-sex civil partnerships might feel concerned about the prospect of the implementation taking some time, so I hope that the reassurance that I have given today that I will implement the legislation as soon as possible is some comfort to them.
We heard in evidence to the committee and in correspondence to the Government that the bill is not necessary, because there are relatively few differences between marriage and civil partnership. I disagree with that, and I know that I am not alone in that, given the many contributions today that have picked up on that issue. In its written evidence on the bill, Engender said:
“For many people, particularly women, marriage may be seen as rooted in patriarchal and outdated ideals or closely bound in religious or solemnised processes.”
Engender went on to say:
“Enabling different forms of commitment to be made which provide substantively the same rights and legal protections is a marker of a diverse and pluralistic society which respects these views.”
I wish to be part of such a society, and the bill will contribute to that.
Some have suggested in evidence that mixed-sex civil partnerships are an attack on the institution of marriage. I know that people feel very strongly about the importance of marriage, but I also know that people feel very strongly about the importance of being able to enter into a civil partnership. We know from the evidence that the lead committee received that some people would prefer a mixed-sex civil partnership because they do not see marriage as fitting their beliefs. I do not believe that the institution of marriage is threatened by the beliefs and choices of people who had never engaged in that institution anyway.
A number of specific points have been brought up in the debate, which has touched on other issues. Graham Simpson tried to be humorous about the bill. That was possibly a dangerous point to try humour in the chamber or elsewhere. However, I hope that I can reassure Graham Simpson that infidelity is capable of falling into the category of unreasonable behaviour and that that can be a basis for the dissolution of a civil partnership. We believe that the wider consideration of adultery is best placed in a discussion about divorce and dissolution in general.
Pauline McNeill mentioned death in service and public pensions. The intention is to align survivor benefits for mixed-sex civil partners with those that are available to survivors of mixed-sex marriages.
Many members have spoken about the importance of equality. Ruth Maguire spoke about equality of opportunity; Andy Wightman talked about the importance of recognising that there should be no hierarchy in relationships; Alex Cole-Hamilton spoke about equality for all; Annie Wells spoke about an extension of choice; and Angela Constance spoke about equality of choice. Those points and others that members have made about the importance of equality eloquently summarise why the bill is so important. It is important for people who wish to enter into a civil partnership, and it is an important step for Scotland to recognise its responsibility to be an equal society for all.
On that basis, I commend the motion and the bill to Parliament.
19 May 2020
Vote at Stage 1
Vote at Stage 1 transcript
The Presiding Officer (Ken Macintosh)
There are three questions to be put as a result of today’s business. The first question is, that motion S5M-21778, in the name of Shirley-Anne Somerville, on the Civil Partnership (Scotland) Bill at stage 1, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Civil Partnership (Scotland) Bill.
The Presiding Officer
The second question is, that motion S5M-20970, in the name of Kate Forbes, on the Civil Partnership (Scotland) Bill financial resolution, be agreed to.
Motion agreed to,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Civil Partnership (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.
The Presiding Officer
The final question is, that motion S5M-21684, in the name of Kate Forbes, on the Agriculture (Retained EU Law and Data) (Scotland) Bill financial resolution, be agreed to.
Motion agreed to,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Agriculture (Retained EU Law and Data) (Scotland) Bill, agrees to—
(a) any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act, and
(b) any charge or payment in relation to which Rule 9.12.4 of the Standing Orders applies arising in consequence of the Act.Meeting closed at 17:30.
19 May 2020
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.