Consultation on the Draft Marriage and Civil Partnership (Scotland) Bill: Analysis of Written Responses

Executive Summary

Introduction

1. In December 2012, the Justice Directorate of the Scottish Government launched a public consultation on proposed changes to Scottish marriage and civil partnership law. The consultation sought views on the detail of the legislation which will introduce same sex marriage, allow civil partnerships to be registered through religious or belief ceremonies and make other changes to marriage law. These measures are contained in The Marriage and Civil Partnership (Scotland) Bill (the draft Bill).

2. This summary presents the key findings from the independent analysis of the responses submitted to the Scottish Government's consultation on the draft Bill. The analysis focused on issues that relate specifically to the draft Bill or the other proposals contained within the consultation document. However, many respondents also made comments about their support for, or opposition to, the introduction of same sex marriage or the religious registration of civil partnerships.

Responses received

3. The total number of analysable responses received was 15,064. The majority of responses (73%) were connected with one of three campaigns (organised by CARE Scotland, Equality Network or Scotland for Marriage) and contained only the suggested text that had been provided to respondents by the campaign group. A further 16% of responses were amended campaign responses, in which the suggested text had been amended or a further comment had been made; 10% were submitted on the standard Scottish Government response form; and the remaining 1% of responses did not use the standard response form and were not campaign responses.

4. All but 128 (or <1%) of responses were submitted by individual members of the public. The 128 group respondents included 16 of the religious or belief bodies that currently solemnise marriages in Scotland, and 11 of the 32 Scottish local authorities that deliver the civil registrar function and employ Scotland's civil registrars.

Impact assessments

5. Part 1 of the consultation document included information on the two impact assessments the Scottish Government has prepared in relation to the proposed legislation - the Equality Impact Assessment (EQIA) and the Business and Regulatory Impact Assessment (BRIA).

6. Around 1,150 respondents made a comment about the impact assessments. Some respondents made short, supportive statements and referred to the assessments as being comprehensive, competent and coherent, for example.

7. The principal issue raised by respondents who had concerns about the assessments, and the EQIA in particular, was that they make little or no mention of the probable negative effects of the proposed legislation on those whose religious or other beliefs lead them to disagree with same sex marriage. Many of the other comments made focused on freedom of speech, children and their education and employment.

General changes to marriage law

8. The draft Bill includes a number of proposed changes to marriage law over and above the introduction of same sex marriage and the religious registration of civil partnerships. Part 2 of the consultation document set out these changes and sought respondents' views on five areas.

Permitted locations for opposite sex and same sex civil marriages

9. Under the current legislation, civil marriage ceremonies can take place at premises approved by the local authority and civil partnership ceremonies can take place at any place agreed by the registrar and the couple, so long as not on religious premises. The draft Bill removes references to approved places from the legislation and would make it possible in Scotland to have a civil marriage ceremony at any place agreed by the registrar and the couple. It would still not be possible to have a civil marriage ceremony in religious premises.

10. Around 1,200 respondents commented on this issue, with many simply expressing their broad support or disagreement with the proposals. Respondents who agreed with the proposals tended to make only brief further comments, which focused on the changes seeming sensible and reasonable, creating equivalent arrangements for opposite and same sex ceremonies and broadening out the choices available to couples.

11. Other respondents suggested a range of changes or clarifications they would wish to see included in any final Bill, including clarifying (or, if required, extending) the exclusions relating to religious premises to include all premises owned or occupied principally by any religious or belief body that does not wish to solemnise same sex marriages. Some respondents, including a number of groups that either employ or represent registrars, raised specific and practical issues that would need to be considered in taking these proposals forward. Many of these comments focused on risk assessment requirements.

Belief ceremonies

12. At present there are two types of marriage ceremony in Scotland, religious and civil. The draft Bill proposes the establishment of a third category of marriage ceremony in Scotland, which would be known as a belief ceremony. The arrangements for authorising belief celebrants would be along the same lines as those for authorising religious celebrants.

13. Around 1,200 respondents commented on this issue, with those that agreed with the introduction of a third type of ceremony giving a range of reasons for doing so. These included that the proposals reflect the reality of the range of ceremonies already available and would remove the anomaly of belief ceremonies being mis-labelled as religious in nature.

14. However, a number of other respondents disagreed, with some suggesting that this proposal is indicative of a wider secularist agenda. Other reasons for disagreeing included that the arrangements seem unduly complicated and that the need for those who do not hold religious beliefs to have a particular and distinct type of ceremony is not clear. A number of respondents also raised what was a recurrent theme - namely that marriage should be a civil function, undertaken through a civil ceremony, with any subsequent religious or belief ceremony of no interest to the state.

Church of Scotland deacons

15. The Marriage (Scotland) Act 1977 provides that opposite sex marriages may be solemnised by ministers of the Church of Scotland. Church of Scotland deacons have been given temporary authorisation to solemnise marriage since 2006. The draft Bill would amend the 1977 Act, so that Church of Scotland deacons would be authorised automatically to solemnise opposite sex marriage.

16. Around 1,050 respondents made a comment, with many simply stating that this is a decision for the Church of Scotland. The Church of Scotland welcomed the provision in its response to this consultation. Another common view was that Church of Scotland ministers and other officials should simply be governed by the same rules as any other religious body.

Establishing tests

17. The draft Bill proposes the introduction of tests which a religious or belief body (other than the Church of Scotland, in relation to opposite sex marriage) would have to meet before the body's celebrants could be authorised to solemnise a marriage or register a civil partnership. The type of tests which might be laid down include that the religious or belief body and their celebrants would not be allowed to solemnise marriages or register civil partnerships for profit or gain and would have to show that they have a track record in carrying out relevant ceremonies, such as marriages or funerals.

18. Around 1,200 respondents commented on this issue. Respondents who broadly agreed with the proposals tended to suggest that having tests seemed to be reasonable and sensible. However, some respondents did have concerns, including that any requirement for a track record could lead some bodies - including smaller bodies or those which have not traditionally operated in Scotland - to be excluded. Another concern was around celebrants being unable to solemnise marriage for profit or gain - points raised included that it is often standard practice for a celebrant to charge a professional fee, for charges to be made for using premises, or for couples to make a donation to the funds of the church or other religious group of the celebrant who is solemnising their marriage.

Marriage by cohabitation with habit and repute

19. Scotland has a long tradition of 'irregular' marriages. The only type of irregular marriage that remains in Scotland is that of marriage by cohabitation with habit and repute. The draft Bill would repeal the legislation which allows for marriage by cohabitation with habit and repute when a couple erroneously believed themselves to be married overseas.

20. Only around 750 respondents commented on this issue, with some having no particular view other than that any changes that are made should apply equally to opposite and same sex marriages. Those who disagreed with the proposals sometimes saw them as harsh and as having the potential to cause considerable upset. In addition, some respondents felt that putting a bereaved spouse in a situation where they had to apply to the courts in order to receive payment from their partner's estate would introduce further stress and anxiety at what is likely to be one of the most distressing periods of anyone's life.

Same sex marriage

21. Part 3 of the consultation document sets out the Government's plans to introduce same sex marriage in Scotland. Specific areas covered include authorising religious and belief celebrants to solemnise same sex marriage, whether there should be legislative opt-outs for civil registrars, plans to protect freedom of speech and proposals relating to same sex marriage and the education system.

Authorising religious and belief celebrants to solemnise same sex marriage

22. The proposals for authorising religious and belief celebrants to solemnise same sex marriage include that bodies and their celebrants will have to opt in to be able to solemnise same sex marriage. Some religious and belief bodies may be prescribed by regulations, meaning that all of their celebrants would be authorised to solemnise same sex marriage (though bodies will only be prescribed in this way where it is clear that all of their celebrants are content to solemnise same sex marriage). In other cases, religious and belief bodies could nominate celebrants who wish to solemnise same sex marriage to the Registrar General. The consultation document also notes that the Scottish Government has asked the UK Government for an amendment to the Equality Act 2010 to protect an individual celebrant who is opposed to same sex marriage, even though the celebrant's religious or belief body has chosen to solemnise same sex marriage.

23. Around 14,700 respondents made a comment about this issue, which was one of those for which suggested text was available from all three campaign organisations. Some respondents stated their broad support for the proposals for authorising religious and belief celebrants who wish to solemnise same sex marriage. Respondents who agreed with the proposed arrangements generally made only limited further comments.

24. Some of the respondents who disagreed with the proposals simply stated their opposition to the introduction of same sex marriage, whilst others went on to raise specific concerns about the arrangements proposed. There were two main and, for many respondents, connected issues raised by those who disagreed with all or some aspect of the proposals: first, the protection of freedom of speech in general and of religious freedoms in particular; and secondly, concerns about the workability of the opting-in system as set out in the Bill.

25. In terms of protecting freedom of belief and speech, the principal concern of many opposed to the proposals was that bodies and celebrants that did not wish to solemnise same sex marriage could still find themselves subject to litigation. In particular, respondents noted that any amendment to the Equality Act 2010 is not yet in place and cannot be guaranteed. Another concern was that, having been designed to protect religious and belief bodies, the proposed opt-in system fails to give necessary consideration to the position of individual celebrants.

26. Other concerns about the opt-in system included that they impose decision-making standards (such as the requirement for the unanimous support of celebrants) on those bodies that might wish to solemnise same sex marriage. Some respondents also questioned the practicality and/or fairness of requiring all celebrants to be willing to solemnise same sex marriage before a body can be prescribed in regulations to solemnise same sex marriage or register civil partnerships. Finally, a number of respondents were concerned that unwillingness to conduct same sex marriage should not affect any body's or celebrant's authorisation to solemnise opposite sex marriages.

Civil registrars

27. The draft Bill does not include any legislative opt-outs for civil registrars. Around 14,750 respondents commented on this issue, with those who agreed that registrars should not be able to opt-out frequently pointing out that registrars are performing a public function on behalf of a public body and should be expected to carry out a full range of registration duties.

28. Other respondents took a strongly contrasting view. A commonly expressed position was that registrars should have the same protections as religious or belief celebrants and that the failure to include a conscience clause for registrars ignores the fact that those of faith aim to live their whole lives - including their work lives - according to the tenets of their faith. Many respondents were concerned about the likely repercussions for some registrars, including that registrars who have a conscientious objection to solemnising same sex marriages may be forced out of their jobs.

Freedom of speech

29. The Scottish Government has included a provision in the draft Bill making it clear that the introduction of same sex marriage does not affect existing rights under the European Convention on Human Rights and elsewhere to freedom of thought, conscience, religion and expression.

30. Around 14,500 respondents made a comment on this issue, with suggested text available from all three of the main campaigns. For many respondents, the Scottish Government's plan to protect freedom of speech was welcome and seen as sufficient. However, other respondents had concerns that essential safeguards to protect freedom of speech and conscience are lacking from the proposals. Those who felt the proposed protections to be insufficient frequently cited recent examples of people who have been penalised for having expressed their opposition to same sex marriage.

31. In terms of the actions required to mitigate these risks, respondents frequently suggested that employment discrimination law should be amended to bar employers from taking action against employees who hold to the traditional view of marriage.

Education

32. The Scottish Government's proposed approach includes that parents will continue to have the right to withdraw their child from religious education and from programmes of sexual health education. There are no plans to allow parents to opt children out of any class which might happen to mention same sex marriage or civil partnership.

33. Around 14,700 respondents made a comment, with some simply stating their broad support for the Scottish Government's plans. However, this issue was unusual in that many of those who appear to support the introduction of same sex marriage, as well as many of those who do not, had concerns about the intended approach. These concerns tended to crystallise into one of two broad positions.

34. Some respondents (many of whom also made their support for the introduction of same sex marriage clear) were concerned that schools should be fully inclusive of LGBT people and that young LGBT people and young people with LGBT parents have a right to an education which addresses their needs and reflects their lives. It was suggested that the focus of these proposals should be on the needs of these young people, rather than on the impact any changes will have on those opposed to same sex marriage.

35. The alternate position, frequently taken by respondents who made their opposition to the introduction of same sex marriage clear, concentrated on the principle of freedom of conscience being extended to the education system. Points raised included that denominational schools should continue to be able to teach children according to the values and beliefs of their religion and that parents or guardians should have the right to withdraw a child from any lessons covering same sex marriage.

Other consequentials as a result of same sex marriage

36. The Scottish Government's intention is that, where possible, opposite sex and same sex marriage should be treated in the same way and that the move to gender-neutral drafting of legislation should continue. Around 14,300 respondents commented on this issue. Whilst some applauded the gender-neutral approach, others suggested that this issue exemplifies just how profound the changes the Scottish Government plans will be on the whole of society.

37. Many of the comments made related to fostering and adoption. A frequent concern was that amendments might be made to guidance, which would result in it stating that a would-be foster carer, or someone wanting to adopt, should not be rejected because of his or her views on same sex marriage. Respondents taking this view urged the Government to give careful thought to the possible implications of such an amendment on a young person who is being fostered and who comes to realise that they are, or may be, LGBT. However, other respondents took a contrasting position and were concerned that those with a conscientious objection to same sex marriage should not suffer discrimination in the adoption and fostering processes.

Adultery, permanent and incurable impotency and bigamy

38. The proposals also considered how the introduction of same sex marriage could impact on a range of other marriage-related legislation and in particular in the areas of adultery (which can be used in Scots divorce law to show a marriage has irretrievably broken down), permanent and incurable impotency (which can be grounds for voiding a marriage) and bigamy (the crime of purporting to enter into a marriage when already married).

39. Many of the comments made on these issues focused on the respondents' preference for all law regulating marriage to apply equally to opposite and same sex marriages. Others took the view that the very fact that the same approach is not always being taken is symptomatic of a lack of consistency and clarity in the Scottish Government's thinking and that, whilst claiming the proposed changes are designed to ensure that everyone is treated the same, the Government is then choosing to treat people differently when this suits or is easier.

Civil partnership

40. Part 4 of the consultation document set out the Scottish Government's intentions to proceed to allow civil partnerships to be registered through religious and belief ceremonies. Around 900 respondents commented on this issue.

41. Some respondents simply stated their support for the Government's plans or made only limited further comments in support of the proposals. Others noted that, whilst not necessarily supporting the introduction of the religious registration of civil partnerships, they were broadly in agreement with the proposal for an opt-in system should the Government proceed. Other respondents disagreed with the proposals and, as with the same sex marriage proposals, raised a number of concerns with the primary one being about protecting the freedom of speech and of conscience of those who did not wish to be involved in the religious registration of civil partnerships.

42. Around 11,650 respondents commented on the proposals for changing existing civil partnerships into marriages. Many of those who disagreed with the proposals suggested that civil partnerships are, and should remain, a civil, secular arrangement. Others expressed their broad support for giving same sex couples the option to change their partnership into a marriage, but frequently went on to raise issues about some of the specific arrangements. Those with concerns tended to the view that the 'second ceremony' which is currently proposed should not be required and that it is not fair to charge a fee for changing a civil partnership into a marriage since couples have already paid for their civil partnership ceremony and did not have the option of a marriage ceremony at that time.

43. A number of respondents (including those responding through one of the campaigns) made a comment about opposite sex civil partnerships at this question. Some respondents simply stated that civil partnerships should also be available to opposite sex couples. Other comments focused on the inequity of having non-equivalent arrangements for opposite and same sex couples.

Transgender people

44. The final part of the consultation considered marriage-related issues affecting transgender people and, specifically, whether married transgender people should need to divorce before obtaining a full Gender Recognition Certificate (GRC). Under the current provisions, a transgender person faces a choice between staying in his or her marriage and obtaining a full legal recognition in his or her acquired gender. The proposed changes would enable a transgender person to stay in the relationship, if that is what both parties to the marriage wanted.

45. Around 11,500 respondents made a comment on this final issue. Many gave their support for the Scottish Government's intended approach, which was sometimes referred to as compassionate, caring and thoughtful. However, it was also suggested that the revised gender recognition process as proposed is not, but should be, simple, user-friendly and incur no greater costs to the applicant than under the current process. One of the primary concerns raised was the intended requirement for a second marriage ceremony. Another issue raised was the need for the process to be effective for those who are resident in Scotland, but who were married or entered into a civil partnership outwith Scotland. It was also suggested that some work may be required to ensure that neither partner in a marriage where one party has transgendered loses any pension rights.