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

"Independent ceremonies" would be a better description of the category.

Working independently of any unauthorised commercial organisation or third party would ensure that the individual Celebrants are responsible for the standards in the Registrar's Rules, particularly for ensuring that the Marriage performed is neither a sham marriage nor a forced marriage. Removal of any third party and or commercial interests would ensure that the Registrar's authorisation would be a personal obligation on the Celebrant to follow and be accountable for the Rules and Standards associated with the Registrar's authorisation. Each individual Celebrant's only association would be with their respective professional or belief body.

The tests for authorising Groups would lie with the Registrar who would be at liberty to authorise belief bodies, such as the Humanists, as well as professional bodies of Celebrants, which meet the Registrar's tests.

Paragraph 14 suggests that a unanimous decision of ministers is required and written satisfaction that all of the denomination's ministers would be content to carry out such ceremonies. However, the need for unanimity does not appear to be in the draft Bill. The draft Bill seems to state that to be prescribed, the body will require to meet "qualifying requirements" which will be set out by Scottish ministers.

That is presumably a reference to secondary and subordinate legislation which has not been drafted, which will follow after the primary legislation has been enacted, and which may therefore not necessarily contain the need for unanimity, despite the stated intention in the consultation document. It could also be modified in the future.

Accordingly, the requirement for unanimity on the decision above should be specified in the primary legislation itself.

The proposed s.8(1D) of the 1977 Act falls into the same error as s.6A(3A) of the Civil Partnership Act 2004. Both provide that nothing in 'this Act' places an obligation or imposes a duty. But the possible obligation or duty would not flow from 'this Act' (i.e. the 1977 or 2004 Act): it would flow from Part 3 or Part 4 of the Equality Act 2010. Were it not for equality law, nobody would imagine that the possibility of requesting prescription or making a nomination implied an obligation to do so. It is therefore in equality law, and in equality law alone, that such fears must be addressed. I suggest it would be more sensible to remove these provisions 'for the avoidance of doubt', with the false sense of security that they give, and to concentrate on seeing that the Equality Act itself strikes the appropriate balance. I appreciate that is a matter for Westminster; but the Scottish proposals in this area as a whole are so much more sensible than the English that Westminster should welcome further Scottish guidance.

The draft Bill contains modifications to s.12 of the 1977 Act which would considerably narrow its flexibility. At present 'any person' may be authorised, although it is no doubt common for these to be sponsored by a religious or humanist body. The amendments would require candidates to be a member of a religious or belief body and to solemnise only those marriages for which that body would nominate celebrants or seek prescription.

The changes I would propose are: in subsection (1) restore the word 'person'; let subsection (1A) read '... if satisfied that the person seeking authorisation, or the religious or belief body of which he is a member, meets the qualifying requirements'; and omit subsection (1C). Subsection (1C) allows religious and belief bodies to impose a discipline on their lay members through the medium of Scots law: it is far more appropriate to leave this to internal religious rules alone.

Lastly there is a general point arising out of s26(2) of the 1977 Act, which defines 'religious body' as 'an organised group of people meeting regularly for common religious worship'. The current regulations (SI 1977 No. 1670) appeared to have ignored this since none of the bodies prescribed in the Schedule 'meets regularly'. They are Scotland-wide, Britain-wide or supranational organisations, far too big for their members ever to meet. The Baptist and Congregational Unions are (or were) federations of local churches rather than 'groups of people'. What 'the Hebrew Congregation' is (or was) is anybody's guess: if it was meant to encompass the whole of Scottish Jewry of all traditions, then it certainly never met for common worship. It might be clearer, therefore, if this definition were amended to read ''an organised group of people which meets, or whose constituent congregations meet, regularly for common religious worship".

This would, admittedly, leave a possible doubt as to which organ of the body concerned should make an application under s.8(1C) or nominations under s.9. Should a Roman Catholic bishop, or the RC Bishops' Conference, act? Can a local church of the United Reformed Church make a nomination if the National Synod of Scotland or the General Assembly does not? etc. But I strongly suggest that the Act does not attempt to resolve this doubt.

In England & Wales, the amended 1995 Regulations already referred to attempted to do just that, and specific church authorities were listed in a Schedule. For other religious bodies, a definition of 'governing authority' was provided which depended on 'recognition by the members' of the body concerned. This is NOT a precedent to be followed. The Westminster Government listed church authorities on the basis of consultation responses: if a particular church organ said 'We should be the decision-makers' then it was prescribed as such. No attempt was made to check whether the assertion was warranted by the ecclesiology of the tradition concerned; nor would the Government have been well-placed to carry out such a check. The 'members' recognition' test is also fraught with problems: after all, no church put its mind to this particular question when it was founded. If this turns out to be controversial the courts will have to read the Regulations' definition against the history and constitution of a particular church in order to give it effect.

Scotland should therefore avoid any attempt to identify competent church organs by legislation. This will allow religious bodies to identify these by internal consensus. If different organs, each claiming to represent one particular tradition, make contrary representations to the Scottish Ministers or the Registrar-General, the latter would at least be free to attempt a common-sense mediation of the dispute before the courts became involved.

The concept of associative discrimination has been significantly developed since 2003 and now applies to all protected characteristics. This opens the door to a sex discrimination claim along the lines that a person, X, is found to have been discriminated against because of the sex of his intended or actual spouse, Y. Had the concept of associative discrimination been more developed in 2003, it is likely the outcome in the Macdonald case would have been different.

No doubt the reason why there has not been any (to our knowledge) reported case on the issue since 2003 is that the Employment Equality (Sexual Orientation) Regulations were enacted that same year. The regulations put an end to the use of sex discrimination law in such cases by providing a more immediate remedy for homosexuals who have been discriminated against.

We note that the Equality Act 2010 makes provision for a claim based on combined characteristics. This would open the door to claims based on both sexual orientation and sex discrimination law, as claimants seek to pursue claims based on the interaction of the two.

If a claim for discrimination based on sexual orientation is precluded because of particular exceptions, it is open to a claimant simply to pursue a claim for sex discrimination, whether separately or in combination with a sexual orientation claim. A male claimant, for example, would argue that had his intended spouse been a woman, there would have been no problem, and that the refusal of the marriage is only because he is intending to marry a man, putting the case in the territory of sex discrimination.

It is necessary, therefore, that with regard to same-sex marriage, similar exceptions apply in relation to sex discrimination as apply in relation to sexual orientation. Otherwise the latter exceptions would be worthless. The Westminster Government's intended amendment on this point is far preferable, and we suggest that the Scottish Government should consider a similar approach.

Clause 2(5) of the Marriage (Same Sex Couples) Bill:
(5) In Schedule 3 to the Equality Act 2010 (services and public functions: exceptions), after Part 6 insert-
"PART 6A
MARRIAGE OF SAME SEX COUPLES IN ENGLAND AND WALES
Marriage according to religious rites: no compulsion to solemnize etc
25A (1) A person does not contravene section 29 only because the person-
(a) does not conduct a relevant marriage,
(b) is not present at, does not carry out, or does not otherwise participate in, a relevant marriage, or
(c) does not consent to a relevant marriage being conducted, for the reason that the marriage is the marriage of a same sex couple.
(2) Expressions used in this paragraph and in section 2 of the Marriage (Same Sex Couples) Act 2013 have the same meanings in this paragraph as in that section.".

The wide definition of 'approved celebrant' in proposed paragraph 25A(3)(a) of the Equality Act 2010, Schedule 3 read together with the terms of paragraph 25A(2) and (3) appears to negate the two-level 'opt-in' proposed by the Scottish Government which would permit, but not require, a minister or deacon to apply to be eligible to solemnise same sex marriages in the event that the Church of Scotland permits its ministers and deacons to do so. In paragraph 25A 'approved celebrant' includes all Church of Scotland ministers and deacons and permits them to refuse to solemnise a same sex marriage only in certainly limited circumstances. The Church is concerned that this may be construed as implying that, if the Church of Scotland decides to allow its ministers and deacons to solemnise same sex marriages, then all ministers and deacons must apply to become and remain eligible to do so unless they fall within the narrow exception provided for in paragraph 25A(2). For a minister or deacon not to do so would amount to a refusal to solemnise same sex marriages. As above, the Church does not wish a minister or deacon to be placed in a situation where he or she is unable to take account of material considerations beyond his or her own religious beliefs.

The Church proposes that Scottish and UK legislation should be consistent in providing, without qualification, that an approved celebrant may refuse to solemnise a marriage if the parties to the marriage are of the same sex. This would match the equivalent provision in the Norwegian law of marriage and the terms of existing paragraph 25 (1) and proposed paragraph 25(3) of the Equality Act 2010, Schedule 3. Proposed paragraph 25A(2) should be removed or, if it is to be retained, the limited scope of permitted reasons for refusal should be extended beyond the religious beliefs of the approved celebrant.

Section 8 of the Marriage (Scotland) Act 1977 (as proposed) should be amended to provide that no religious body may nominate one of its members so that he or she is registered as empowered to solemnise same sex marriages without the agreement of that member. Section 8 should also be amended to make clear that there is no duty on any member of a religious body to allow himself or herself to be so nominated. Section 8 should be further amended to provided that a religious body may not require any of its members to be or to remain so registered.

Paragraph 2 of the Equality Act 2010, Schedule 23 provides limited and inadequate protection to ministers and others who may have control over church buildings. For example, when faced with a request by another celebrant who might have been permitted to use the buildings to solemnise an opposite sex marriage, to use the buildings to solemnise a same sex marriage, it appears that a minister's own religious beliefs or his or her desire to preserve the peace of his or her congregation are irrelevant considerations. In so far as a Church court or committee might be involved, it is not clear what protection paragraph 2 offers them. Accordingly the Church proposes that Scottish and UK legislation should be consistent in providing, without qualification, that any person having control over or responsibility for the use of church buildings may refuse to permit them to be used for the solemnisation of a same sex marriage.

The amendment the Government proposes is not broad enough and it is essential that it covers both sexual orientation discrimination AND sex discrimination. The legislation for England and Wales, currently being considered by the Westminster Parliament, includes an equivalent clause that provides protection from discrimination claims across all protected characteristics. Clause 2(5) of the Marriage (Same Sex Couples) Bill states:
(5) In Schedule 3 to the Equality Act 2010 (services and public functions: exceptions), after Part 6 insert-
"PART 6A
MARRIAGE OF SAME SEX COUPLES IN ENGLAND AND WALES
Marriage according to religious rites: no compulsion to solemnize etc
25A (1) A person does not contravene section 29 only because the person-
(a) does not conduct a relevant marriage,
(b) is not present at, does not carry out, or does not otherwise participate in, a relevant marriage, or
(c) does not consent to a relevant marriage being conducted, for the reason that the marriage is the marriage of a same sex couple.
(2) Expressions used in this paragraph and in section 2 of the Marriage (Same Sex Couples) Act 2013 have the same meanings in this paragraph as in that section.".

The approach taken at Westminster is clearly different from that being taken by the Scottish Government. The Scottish Government risks providing less protection under Scottish law than the law south of the border would provide. It must reconsider the amendment it is requesting, and ask the Westminster Government for an amendment directly parallel to the above.

My comments here relate to clause 12 of the Bill which covers freedom of religion as well as expression.

I doubt that clause 12(c) achieves anything. I am not convinced there are rules of law outside the Convention that guarantee such freedom. In the common law of Scotland, as of England, one's basic freedom is to do anything one chooses to do unless the law restricts it, which includes saying what one wishes provided it is not defamatory, obscene, a threat to public order or the like. It also covers assembling for lawful worship provided one does not cause an obstruction or a nuisance, and following other harmless religious practices.

Certainly there is sometimes a balance to be struck. If a Roman Catholic protester shouts at an inoffensive same-sex married couple that their marriage is a fraud and that they are sodomites bound for Hell, just as there is a balance to be struck if the couple respond that Roman Catholicism is an alien and bigoted superstition which should never have been allowed in Scotland, either utterance has the potential, in the right circumstances, to cause a breach of the peace, and respect for free expression can be weighed against the objects of public order law. But the law can strike that balance without the aid of clause 12(1)(c).

As for Convention rights, there is no question of restricting the rights themselves, since an Act of the Scottish Parliament will be construed whenever possible as compatible with such rights (HRA 1998 s.3(1)) and will be struck down insofar as it remains incompatible. In that respect there is no 'doubt' to avoid.

But the Convention rights to manifest religion and to free expression under Articles 9 and 10 are subject to restrictions 'prescribed by law' and necessary (inter alia) to protect the rights of others. Those 'rights of others' may themselves flow from the law. The Convention itself thus calls for a balance to be struck between the relevant right and the provisions of national law. Convention jurisprudence already indicates how that balance is to be struck; but weakening the effect of national legal provisions, for example by clauses 12(1)(a)-(b), inserted 'for the avoidance of doubt', may seriously disturb that balance. If the provisions of the Bill on same-sex marriage are not allowed to 'affect the exercise' of Convention rights in any way, it could be argued that this requires their effect to be disregarded altogether, or same-sex couples' rights and status to be treated as not 'prescribed by law'.

I should be happier to see clause 12 omitted, or at least carefully considered with my concerns in mind.

I have no problem with prosecutorial guidelines, provided the Lord Advocate remembers that same-sex couples provoked by what they see as insults to their orientation and relationship may understandably reply with what their critics see as insults to their religion. Both or neither could be subject to criminal sanctions, according to the circumstances; but it can never be just to protect one type of utterance and not the other.

Insert subsection 10(4) Equality Act 2010: "For the avoidance of doubt the protected characteristic of religion or belief include beliefs regarding the definition of marriage".

Insert subsection 149(10) Equality Act 2010:
"Compliance with the duties in this section requires ensuring that a belief regarding the definition of marriage is respected and that no person should suffer any detriment in respect of the holding or the reasonable expression of such a belief".

Insert paragraph 25A at schedule 3 Equality Act 2010:
Same-sex marriage: Scotland
"(1) It is not a contravention of section 29, so far as relating to sex discrimination or sexual orientation discrimination, for an approved celebrant to decline to marry a couple of the same sex.
(2) An approved celebrant who declines to marry a couple of the same sex has no duty to make alternative arrangements by way of reasonable accommodation of any request to solemnise such a marriage.
(3) In sub-paragraph (1) and (2) "approved celebrant" has the meaning given in section 8(2)(a) of the Marriage (Scotland) Act 1977 (persons who may solemnise marriage)."

Insert subsection 1(c) to section 35 Ethical Standards in Public Life (Scotland) Act 2000:
"the legitimacy and value in a pluralistic and tolerant society of the belief that marriage is the exclusive union of one man and one woman".
So that section 35(1) reads as follows:
Councils' duties to children
(1) It is the duty of a council, in the performance of those of its functions which relate principally to children, to have regard to-
(a) the value of stable family life in a child's development;
(b) the need to ensure that the content of instruction provided in the performance of those functions is appropriate, having regard to each child's age, understanding and stage of development; and
(c) the legitimacy and value in a pluralistic and tolerant society of the belief that marriage is the exclusive union of one man and one woman".

Insert subsection 2A to section 8 Charities and Trustees Investment (Scotland) Act 2005:
"For the purposes of subsection 2 the provision of benefits on the basis of same-sex or opposite-sex marriage is not to be regarded as disbenefit".

Insert subsection 193(3) Equality Act 2010:
"For the purposes of subsection (2) the provision of benefits on the basis of same-sex or opposite-sex marriage may be a legitimate aim if a person acts in pursuance of a religious purpose or vocation".

Insert subsection 2A into section 38 Criminal Justice and Licensing (Scotland) Act 2010:
"For the avoidance of doubt nothing in subsection 1 prohibits or restricts any expression in itself of a belief regarding the definition of marriage as being between one man and one woman".

Insert subsection 7 to section 1 Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012:
"For the avoidance of doubt nothing in subsection 1 prohibits or restricts any expression in itself of a belief regarding the definition of marriage as being between one man and one woman".

The wording of section 12 is heavily caveated - and I am concerned it could be interpreted in such a way as to allow the legislation to affect the nature of these convention rights (in the manner covered by the convention) - as section 12 only protects the "exercise" of these rights, not what the rights actually are. I am concerned that the wording of s12 permits an interpretation that would in practice erode the rights of free speech and freedom of religion.

I suggest that much tighter wording is required to protect these fundamental human rights. I would drop "For the avoidance of doubt", and would also drop some of the words in between; and refer to "Act" rather than "Part" as these words, in my view unduly limit the protection of these rights (if they are not intended to limit protection of these rights, they need not be there - if they are intended to limit the protection of these rights then it would have been reasonable to explain the intention behind including them in the consultation).

How about
"(1)Nothing in this Act affects the nature, extent, or exercise by any person of the following rights:-
(a) -(c) as draft
(2) as draft
(3) It is specifically provided that holding and expressing a traditional view of marriage as between one man and one woman is not of itself considered to be homophobic or discriminatory
(4) This section 12 applies not only to religious celebrants but to all individuals of any faith or none

The Scottish Government must ensure that the Equality Act 2010 is amended to specifically include beliefs about marriage under the protected characteristic of religion or belief so that such discrimination is unlawful:

Insert subsection 10(4) Equality Act 2010: "For the avoidance of doubt the protected characteristic of religion or belief include beliefs regarding the definition of marriage".

Public order law must also be amended to provide specific freedom of expression clauses for those expressing the belief that marriage should only be between a man and a woman.....
In addition to the proposed section 12, specific amendments are needed to existing legislation, such as the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and the 'threatening or abusive behaviour' offence under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010…………: in order to protect free speech and debate, free speech clauses should be included in public order legislation. We suggest amendments along the following lines:

Insert subsection 2A into section 38 Criminal Justice and Licensing (Scotland) Act 2010:

"For the avoidance of doubt nothing in subsection 1 prohibits or restricts any expression in itself of a belief regarding the definition of marriage as being between one man and one woman".

Insert subsection 7 to section 1 Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012:

"For the avoidance of doubt nothing in subsection 1 prohibits or restricts any expression in itself of a belief regarding the definition of marriage as being between one man and one woman".

….the following statements should be clearly expressed in the Bill: The belief in opposite sex marriage is necessary to comply with the religious doctrine of many religions and relate to the strongly held religious convictions of a significant number of the religion's followers. The Government entirely accepts that it is possible to be opposed to same sex marriage without being homophobic.

The Government further accepts that freedom of speech means that it should remain fully possible to argue against same sex marriage.

In any occasion where is doubt, similar statements should be introduced.

The Government must legislate on the above points, for example:

Insert section 9A Education (Scotland) Act 1980:

"Any pupil in a school to which section 9 applies may be withdrawn by his or her parents from any instruction where the notion of same-sex marriage is presented; and no pupil shall in any such school be placed at any disadvantage with respect to the instruction given therein by reason of his or her parents' opposition to same-sex marriage, or by reason of his or her being withdrawn from any instruction where such a notion is presented".

Insert subsection 1(c) to section 35 Ethical Standards in Public Life (Scotland) Act 2000:

"the legitimacy and value in a pluralistic and tolerant society of the belief that marriage is the exclusive union of one man and one woman".

So that section 35(1) reads as follows:

Councils' duties to children

(1) It is the duty of a council, in the performance of those of its functions which relate principally to children, to have regard to-

(a) the value of stable family life in a child's development;

(b) the need to ensure that the content of instruction provided in the performance of those functions is appropriate, having regard to each child's age, understanding and stage of development; and

(c) the legitimacy and value in a pluralistic and tolerant society of the belief that marriage is the exclusive union of one man and one woman".

Insert section 56A Standards in Scotland's Schools etc Act 2000:

"The Scottish Ministers must, in exercising their discretion under section 56, ensure that any guidance issued respects and gives proper regard to the validity of an exclusive belief in opposite-sex marriage".

Thus, we propose the following amendments to existing legislation:

1. The Education (Scotland) Act 1980 is amended as follows:
Section 21 (Management of denominational schools):

1.1 in sub-section (2), after "Subject to subsections (2A)" insert:
", (2AA)"

1.2 after sub-section (2), insert:
"(2AA) The faith aspects of the curriculum shall be determined by representatives of the church or denominational body in whose interest the school has been conducted."

The Standards in Scotland's Schools etc. Act 2000 is amended as follows:
After Section 56 (Guidance to education authorities as to manner of conducting sex education) insert: "Section 56A For the purposes of Section 56, no school shall be under any duty as a result of guidance issued, to promote or endorse an understanding of the nature of marriage that is contrary to the character and designation of the school or the church or denominational body in whose interest the school has been conducted."

Re private documents, the Scottish Government does not appear to have considered the situation where a pre-existing document refers to a person's spouse or civil partner. If a Will or Trust Deed refers to "my son and his spouse or civil partner", it seems obvious that the granter would have included a same-sex spouse had this been a possibility at the time. But under the proposal, he would not be included: he is neither a "spouse" in the traditional sense, nor a "civil partner".

One solution would be to enact that "civil partner" in pre-existing documents includes a same-sex spouse.

I also submit that any legislation about how private documents are interpreted should be qualified with "Unless the context requires otherwise".

We consider that the implementation of the proposals for same sex marriage would raise a significant issue in relation to the definition of "cohabitant" for the purposes of the statutory scheme for financial provision for cohabitants in terms of sections 25 to 29 of the Family Law (Scotland) Act 2006.

Section 25(1) of that Act provides that "cohabitant" means either member of a couple consisting of:
(a) a man and a woman who are (or were) living together as if they were husband and wife; or
(b) two persons of the same sex who are (or were) living together as if they were civil partners"

The draft bill makes no consequential amendments to this provision. Without such consequential amendment the test for who qualified as a cohabitant would then be clearly different for opposite sex and same sex couples.

Subject to the conclusion that the Scottish Government reaches as to the definition of marriage, consideration should be given as to whether the 2006 Act requires to be amended to:
(1) redefine a same sex cohabiting couple as "if they were married" (that is same sex cohabitants should no longer be defined in terms of having a relationship akin to civil partners)
(2) extend the definition to include a same sex cohabiting couple as "if they were married" (that is to include both types of arrangement as being capable of constituting cohabitation for the purposes of the 2006 Act)

Both options have potential problems. Option (1) may require a qualitative distinction to be drawn between different types of same sex cohabitant arrangements. Option (2) may also require such a distinction should be drawn and may suggest discrimination between same sex couples who chose to live together (without any requirement of a sexual relationship which is implicit in the concept of marriage) and opposite sex couples who do not have the option of entering into a civil partnership arrangement.

This is a particular difficulty that illustrates our general point about the complexity and potential for confusion in relation to status were the Bill to become law.

The following amendments would go some way to backing up the ministerial assurances:

Insert subsection 2A to section 8 Charities and Trustees Investment (Scotland) Act 2005:

"For the purposes of subsection 2 the provision of benefits on the basis of same-sex or opposite-sex marriage is not to be regarded as disbenefit".

Insert subsection 193(3) Equality Act 2010:

"For the purposes of subsection (2) the provision of benefits on the basis of same-sex or opposite-sex marriage may be a legitimate aim if a person acts in pursuance of a religious purpose or vocation".

The Public Sector Equality Duty (PSED) is a powerful part of the Equality Act 2010. It puts local authorities under a duty to eliminate discrimination, advance equality of opportunity and foster good relations. Local authorities must be mindful of this duty in everything they do. A problem could arise where a church that holds traditional views on marriage (and therefore refuses to have same-sex marriages) seeks to hire a publicly owned facility such as a community centre. The local authority could consider that such a church is 'homophobic' and allowing such a church to use its premises would conflict with its responsibilities under the PSED. The Equality Act should be amended to stop this happening. An amendment along the following lines should be considered:

Insert subsection 149(10) Equality Act 2010:

"Compliance with the duties in this section requires ensuring that a belief regarding the definition of marriage is respected and that no person should suffer any detriment in respect of the holding or the reasonable expression of such a belief".

"There are various legislative provisions in which it should be made clear that references to marriage or spouse DO extend to same-sex marriage, in case the context suggests otherwise.

I recall that the Forced Marriages etc (Protection and Jurisdiction) (Scotland) Act 2011 contains a power to extend the rules contained therein to civil partnership (a slightly odd provision, somewhat inconsistent with the amendments that Act made to s. 67 of the Children's Hearings (Scotland) Act 2011). If the thinking behind NOT immediately applying the Forced Marriages legislation to civil partnerships is that families will not force their young members into civil partnerships (which are always same-sex) then the same thinking might apply to same-sex marriages. I do not advocate making an exception but bring it the Government's attention for consideration.

Also, there is an oddity in the Succession (Scotland) Act 1964 which treats marriages differently from civil partnerships, in relation to adopted children. With adoptions by married couples (or as s. 24(1)(a) of the 1964 Act says, ""two spouses""), the child is treated as a brother or sister of the whole blood; but in any other case as a brother or sister of the half blood. This ought to have been amended by the Adoption and Children (Scotland) Act 2007 to include at least civil partners because there is no reason to treat the adopted child differently depending upon which type of ""relevant couple"" adopts the child. The Marriage and Civil Partnership Bill provides an opportunity to make the appropriate amendment to include all ""relevant couples"" - or at least, if the policy of the law is to distinguish between registered and unregistered relationships, to include civil partners. The draft section 4(1) of the Bill probably means that same-sex married couples will be covered by s. 24 of the 1964 Act, but it still leaves civil partners out of the picture.

Relationships of affinity sometimes appear in statute and it might be a useful addition to the Bill to specify that relationships traced through marriage include relationships traced through marriages between same-sex couples. An example is s. 15(2) of the Adoption and Children (Scotland) Act 2007, which talks about adoption by ""step-parents"" and ""relatives"": the former is undefined and the latter is defined in s. 119.

Another oddity that might usefully be cleared up in this bill is section 9(1)(c) of the Family Law (Scotland) Act 1985, as amended by the Human Fertilisation and Embryology Act 2008, which allows claims under s. 9(1)(c) in respect of a child of whom both parties are parents by virtue of sections 33 and 42 of the 2008 Act. This is an ill worded amendment and should read section 33 OR section 42, for otherwise marriage partners are treated more favourably (or worse, depending on whose side you are on) than civil partners - because they don't have to prove acceptance of the child as a child of the family.

The 2008 Act will require some thought to ensure it is amended appropriately because it is presently based on the assumption that marriage is between an opposite sex couple. This is, of course, a reserved matter, but London did not deal with the Scottish provisions in 2008 as well as they dealt with the English provisions."

Section 15 of the Family Law (Scotland) Act 2006 inserted a new clause 3A into the Divorce (Scotland) Act 1976, relating to religious divorce. This provision, which was requested by the Jewish Community, comes into effect when:
(2)(a) the applicant is prevented from entering into a religious marriage by virtue of a requirement of the religion of that marriage;
and
(2)(b) the other party can act so as to remove, or enable or contribute to the removal of, the impediment which prevents that marriage.

Since the Orthodox Jewish Community will not under any circumstances, carry out same sex marriages, and since Liberal and Reform authorities do not require the consent of both parties in order to issue a religious divorce, this legislation does not require to be extended to same sex marriages.

There is no statutory definition of adultery in the Divorce (Scotland) Act 1976, and if this were to apply to same sex marriages by virtue of clauses 4 and 5 of the proposed Bill, a definition would be necessary to clarify that it is restricted to heterosexual adultery.

This again raises the question of how the Scottish Government concludes to define marriage. If, for example, the Scottish Government concludes not to include an exclusive sexual relationship between spouses in the definition of marriage, simplicity would suggest that "adultery" is simply removed as a ground for divorce, and all married couples rely on any sexual impropriety of their spouse as behaviour meaning they cannot reasonably be expected to continue to cohabit.

We therefore welcome the recent ET judgment in Walker v Innospec Ltd [2012]. On his death, Mr Walker's civil partner would receive an annual survivor's pension of around £500. If Mr Walker was married to a woman, his widow would receive around £41,000. The judge found the exception in the Equality Act 2010 which limits the retrospectivity of the requirement to provide the same benefits to civil partners and married couple to be incompatible with the EU Framework Employment Equality Directive 200/78, as interpreted by the CJEU in Maruko [2008] and Roemer [2011].

Rather than this wrong finally being righted, we are extremely concerned that the Marriage (Same Sex Couples) Bill would amend the Equality Act 2010 to extend the exception to married same-sex couples.

This will have a particularly devastating impact on married couples where one spouse obtains gender recognition, turning their mixed sex marriage into a same sex marriage. The effect of the current Bill would be that one spouse would lose a large part of their survivor's pension overnight.

Firstly, in contrast with the Scottish Government's intentions and in particular section 94A(3)(d), the proposed modifications to the Equality Act 2010 restrict the circumstances in which a minister or deacon may lawfully refuse to register a civil partnership. They only permit refusal to register a civil partnership if to do so 'would conflict with the approved celebrant's religious or philosophical beliefs'. This is too narrow and excludes, for example, the possibility that a minister may refuse to register a civil partnership in order to preserve the peace of his or her congregation.

Secondly, it is not made clear in the draft Bill that a religious body may nominate one of its members so that he or she is registered as empowered to register civil partnerships only with the agreement of that member. Neither is it specified that there is no duty on any member of a religious body to allow himself or herself to be so nominated nor that a religious body may not require any of its members to be so nominated and, if registered, to remain so registered.

Accordingly the Church proposes that Scottish and UK legislation should be consistent in providing, without qualification, that an approved celebrant may refuse to register a civil partnership. This would match the equivalent provision in the Norwegian law of marriage and the terms of existing paragraph 25(1) and proposed paragraph 25(3) of the Equality Act 2010, Schedule 3. Proposed paragraph 25A(2) should be removed or, if it is to be retained, the limited scope of permitted reasons for refusal should be extended beyond the religious beliefs of the approved celebrant.

Furthermore, section 94A of the Civil Partnership (Scotland) Act 2004 (as proposed) should be amended to provide that no religious body may nominate one of its members so that he or she is registered as empowered to register civil partnerships without the agreement of that member. Section 94A should also be amended to make clear that there is no duty on any member of a religious body to allow himself or herself to be so nominated. Section 94A should be further amended to provided that a religious body may not require any of its members to be or to remain so registered.

Registration Staff note that consideration requires to be given to the terminology in this section. Partnerships can only be registered by a registrar but could be solemnised by the celebrants of religious and belief bodies.

In addition, consideration should be given to the term 'civil' because this would not be a civil function if carried out by religious or belief celebrants.

The key provision of Chapter 2 of the Bill is surely clause 6(3)(a), which will prevent a qualifying civil partnership from being an impediment to marriage. But the intention is that it should not impede the partners' marriage to each other; and the Bill does not say this. As it stands, a civil partnership between X and Y will not impede the issue of a marriage schedule for a marriage between Y and Z, provided the conditions in s.5(6) of the 1977 Act are satisfied. This is inconsistent with s.24(A1) under which such a marriage is a criminal offence. If the new s.5(6) were to define a 'qualifying civil partnership' as 'a civil partnership between the parties to the intended marriage which has not been dissolved or annulled', that would meet my point. (There is no need for 'ended by death': a civil partnership ended by death cannot be converted into a marriage, whether it would otherwise be 'qualifying' or not.)

My major reservation concerns the requirement in new s.5(6)(a) - and carried through various consequential provisions - that a qualifying civil partnership should have been registered in Scotland. This would mean, for example, that if couple X and Y enter a civil partnership in Scotland and later wish to marry in Scotland, they can do so without either the cost or the negative symbolism of dissolving their partnership first; but if couple A and B, having entered a civil partnership in Northern Ireland, move permanently to Scotland and acquired a Scottish domicile, wish to marry in Scotland they must go through the process of dissolution first.

I see no rational ground for this distinction and the hardship it would cause couples who move to Scotland. If domicile is the deciding factor for capacity to marry in Scotland it should also be the deciding factor for capacity to 'convert'. If 'capacity to convert' were truly determined by the place of a partnership's registration, then a civil partnership entered into in Scotland should be capable of conversion in Northern Ireland - which, of course, it is not. Any idea that the Northern Irish legislators should permanently control the destiny of partnerships entered into there would be incompatible with reg. 4 of SI 2005 No. 629, under which Scottish courts can dissolve or annul a civil partnership (including one entered into in Northern Ireland) on the basis of Scottish domicile or habitual residence.

The gender recognition process
As the UK Marriage (Same Sex Couples) Bill does not provide a route to gender recognition for applicants who entered into a civil partnership outside the UK it is vital that the Scottish legislation provides for applicants who are in this position and resident in Scotland. However, the Scottish Government's current proposals for such applicants (outlined in annex D, paragraph 18) are problematic. It is proposed that before applying for gender recognition, couples must first convert their civil partnership to a same-sex marriage in the country where it was registered. Once they have done that, they can obtain gender recognition and this will convert their marriage to a mixed-sex marriage. However, some countries with civil partnerships do not have same-sex marriage, so for people who registered a civil partnership there, conversion of the civil partnership to a same-sex marriage would not be possible. In such a case, the couple will still have to dissolve their civil partnership to obtain gender recognition, and the new law is completely ineffective.

We suggest a system which is in some cases closer to the Scottish Government's alternative proposals in paragraphs 23 to 33 of annex D.

For applicants married in Scotland we recommend:
1. When the applicant applies to the Gender Recognition Panel (GRP) both the applicant and their partner submit a statutory declaration stating that they wish to remain married.
2. Following approval by the panel, prior to which either party can withdraw their statutory declaration (in which case an interim certificate would be awarded, as per the current procedure), full gender recognition is awarded.
3. The GRP contact National Records of Scotland (NRS) and inform them of the successful application.
4. Using a similar system as is already used to provide successful applicants with a new birth certificate, NRS arrange for a new marriage certificate to be issued in the new name and gender at the same time as the new birth certificate is issued.

For applicants married outwith the UK we recommend:
Assuming that the UK Marriage (Same Sex Couples) Bill passes, applicants living in Scotland who married outside the UK will be able to apply for gender recognition under the provisions outlined in the UK Government's draft legislation. Under paragraph 9 of Schedule 5 to the UK bill, gender recognition will not affect the continuity, under the law of England and Wales, of a marriage from outside the UK. However, the Marriage and Civil Partnership (Scotland) Bill will need provisions to ensure the continuity in Scotland of a post gender recognition marriage from outside the UK. We also suggest that couples should be able if they wish to undergo a second marriage ceremony as is currently provided for couples who were married outside the UK and are not, or are unable to prove that they are, validly married in Scots law (as provided for by section 20 of the Marriage (Scotland) Act 1977).

For applicants who have a civil partnership registered in Scotland we recommend:
1. When the applicant applies to the GRP both the applicant and their partner submit a statutory declaration stating that they wish to convert their civil partnership to a marriage.
2. Following approval by the panel, prior to which either party can withdraw their statutory declaration (in which case an interim certificate would be awarded, as per the current procedure), full gender recognition is awarded.
3. The GRP contact NRS and inform them of the successful application.
4. A marriage certificate is issued to the applicants at the same time as the new birth certificate is issued. The legal effects of the marriage are backdated to the start of the civil partnership.

Our preference however would be for the Marriage and Civil Partnership (Scotland) Bill to introduce mixed-sex civil partnership in Scotland. Then step 4 above would involve the issue of a new civil partnership certificate in the new name and gender, rather than a marriage certificate. This would provide equality between married couples and those in civil partnerships and enable their civil partnership to simply continue following gender recognition. Couples who wanted to convert their civil partnership to a marriage would do so separately, via the method set out in the new legislation.

For applicants who have a civil partnership registered outwith Scotland we recommend: If mixed-sex civil partnership is not introduced:
1. When the applicant applies to the GRP both the applicant and their partner submit a statutory declaration stating that they wish to convert their civil partnership to a marriage.
2. Following approval by the panel, prior to which either party can withdraw their statutory declaration (in which case an interim certificate would be awarded, as per the current procedure), full gender recognition is awarded.
3. The GRP contact NRS and inform them of the successful application.
4. A marriage certificate is issued to the applicants at the same time as the new birth certificate is issued. The legal effects of the marriage are backdated to the start of the civil partnership.

Our preference however would be for the Marriage and Civil Partnership (Scotland) Bill to introduce mixed-sex civil partnership in Scotland. Then steps 3 and 4 above could be replaced by:
The couple either return to their original civil partnership jurisdiction to request changes to their civil partnership certificate to reflect the new name and gender, OR
if their original civil partnership jurisdiction does not support mixed-sex civil partnership or does not recognise gender recognition, the couple obtain a new civil partnership certificate by undertaking a second civil partnership ceremony under a rule mirroring section 20 of the Marriage (Scotland) Act 1977.

And as above, couples who wanted to convert their civil partnership to a marriage would do so separately, via the method set out in the new legislation.

Applications by both civil partners:
As is provided by the UK Marriage (Same Sex Couples) Bill (paragraph 5 of Schedule 5) we suggest that the Scottish Government's legislation includes a process for the continuation of a couple's civil partnership where both couples are awarded gender recognition. Although it may not be common, the Scottish Transgender Alliance are in contact with a couple in this situation, and are sure that there will be others to whom this applies. A simplified procedure would be beneficial to such couples and the gender recognition panel, enabling their civil partnerships to continue uninterrupted and reducing the amount of administration which would otherwise be involved.

For applications by both civil partners we recommend:
1. Both partners apply to the GRP and submit statutory declarations stating that they wish their civil partnership to continue.
2. Following approval of both applications by the panel, prior to which either party can withdraw their statutory declaration (in which case an interim certificate would be awarded, as per the current procedure), full gender recognition is awarded.
3. The GRP contact NRS and inform them of the successful applications.
4. A new civil partnership certificate is issued to the applicants at the same time as the new birth certificates are issued.

Interim gender recognition certificates:
Currently an applicant who receives an interim GRC because they are married or in a civil partnership only has 6 months to initiate divorce or dissolution proceedings in order to obtain a full GRC, otherwise the interim GRC expires and the application process must be started again from the beginning. We are of the opinion that this is an unreasonably short amount of time in which a couple must make an extremely difficult decision of great magnitude, and this will be even more the case under the new legislation because the partners will have an additional option available to them. We are of the opinion that the new legislation should extend the interim GRC validity period to two years, in order to allow more time for either party to initiate divorce proceedings or for the non-transitioning spouse to confirm that they wish to remain in the marriage or civil partnership. This would dramatically reduce the pressure on couples during the gender recognition procedure and give them the best possible chance of maintaining their marriage or civil partnership.

The maintenance of pension rights
There is a significant pensions issue, relating to pension schemes for married people who obtain gender recognition. We strongly believe that the Scottish Government should apply a principle of non-regression to public sector pension schemes for which it is responsible, so that there is no loss of accrued pension benefits when a married person obtains gender recognition. There will be no cost to the pension scheme in applying this principle, as their liability remains the same as if gender recognition had not been obtained.

Survivor's pensions under public sector pension schemes work as follows. A married woman receives a survivor's pension when her husband dies, based on his pension contributions since 1978. A married man receives a survivor's pension when his wife dies, based on her pension contributions since 1988. For civil partnership the applicable date in public sector pension schemes is 1988 for both partners. The UK Government proposes that, generally speaking, public sector pensions for people in a same-sex marriage will work the same as for civil partners; that is, the date will be 1988 for both spouses.

This means that where a couple are in a mixed-sex marriage, and one obtains gender recognition, with the marriage continuing as a same-sex marriage, one spouse (the original wife) will see an overnight drop in potential survivor's pension, as the applicable date changes from 1978 to 1988. This could result in a loss of thousands of pounds of pension per year.

We strongly believe that a principle of non-regression should apply, so that there is no loss of accrued pension benefits when a married person obtains gender recognition. This would mean continuing to apply the date of 1978 in such cases when calculating the survivor's pension for the original wife in the marriage.

The Scottish Government should ensure that this principle of non-regression applies to public sector pension schemes for which it is responsible.

Gender recognition for long term transitioned people
We are concerned about the position of trans people who transitioned a long time ago, and who would therefore find it difficult to assemble the same level of medical evidence for the Gender Recognition Panel as a recently transitioned person. The Gender Recognition Act provided (in section 27) a two-year transitional arrangement for long-term transitioned people, defined as people who had lived in the acquired gender for at least six years. They were able to obtain gender recognition with only one medical report, rather than two, from a medical practitioner who did not have to be an expert gender specialist. The transitional arrangement also enabled applicants to apply based on evidence of having undergone treatment to modify sexual characteristics, as an alternative to providing evidence of a diagnosis of gender dysphoria. This was valuable because obtaining confirmation of a diagnosis of gender dysphoria can be extremely difficult after a long period of time. The transitional arrangement expired in 2007.

However, there will be some trans people who transitioned a long time ago who were unable to take advantage of that transitional arrangement, because they did not want to dissolve their marriage. In our view, once same-sex marriage is possible and they can potentially obtain gender recognition without dissolving their marriage, they should have the opportunity of using the arrangements for gender recognition for long-term transitioned people that were originally available when the Gender Recognition Act was introduced.

Furthermore, it has become clear that long-term transitioned people are still coming forward for gender recognition who had not previously heard about it. The longer a person has been transitioned, the less likely they are to have heard about the availability of gender recognition, because the less likely they are to be in contact with trans organisations. We understand that this has caused an increase in workload for the Gender Recognition Panel and long delays in handling such applications, because it is harder for such people to obtain two medical reports. It also causes a great deal more difficulty for the applicant and may prevent them from obtaining gender recognition at all.

We therefore consider that it would be in the interests of trans people and of the Gender Recognition Panel, if the original rules for allowing applications by people who have been transitioned for at least six years, with one medical report only and on the basis of having had treatment to modify sexual characteristics, could be reinstated on a permanent basis.

Restoring the continuity of dissolved marriages and civil partnerships
We are acutely aware of the injustice suffered by transgender people who have dissolved their marriages in order to obtain gender recognition, when they and their partner would have preferred their marriage to continue. It is likely that people in that situation will have registered a civil partnership to replace their lost marriage, after they received gender recognition. They will in future be able to change the status of that civil partnership to a marriage under section 6 of the bill and that marriage will in effect be backdated to the date they registered the civil partnership, under section 7. However, that will still leave them in a position where they have been married twice, with a brief unmarried gap between those marriages during which they lost legal protection.
Section 7 already operates retrospectively, to allow the same-sex marriage resulting from a converted civil partnership to be treated as having started on the date of registration of the civil partnership (which of course may predate the commencement of the bill). We would hope therefore that section 7 could be amended to provide, where a couple dissolved their marriage to obtain gender recognition and subsequently registered a civil partnership, that on converting that civil partnership to a marriage, that marriage could be treated as having started at the start of their original marriage, in effect restoring its continuity.

Ensuring gender neutral partnership rights
The Scottish Transgender Alliance is strongly of the belief that both marriage and civil partnership should be opened up to all in a sex and gender neutral manner. This would ensure that everyone can access equal partnership rights, and is particularly necessary for intersex and nonbinary gender people. Some intersex people may currently be excluded from any legal recognition of their relationships, or fear that their marriage or civil partnership may be open to challenge. The Gender Recognition Act inadvertently created a situation whereby intersex people registered at birth as a gender which they later do not identify as are currently less able to change their birth certificates than transsexual people. This makes it vital to open up both civil partnership and marriage in a sex/gender neutral manner ensuring that couples of any physical sex and gender identity combination can freely choose how they wish their relationship to be legally recognised.

In order for religion and belief marriage ceremonies to be sex/gender neutral where the couple wishes, we are of the opinion that an amendment to the bill is required. Currently section 9(2)(f) states that where a marriage is between a legally mixed sex couple the ceremony must include a declaration that the parties "accept each other as husband and wife," and a declaration by the celebrant that the parties are "husband and wife." This is problematic as there may be couples who are legally of different sexes but who are not comfortable using the terms husband and wife. Section 9(2)(g) however alternatively provides that where a marriage is between a couple of the same legal sex the ceremony must include a declaration that the parties "accept each other in marriage," and it is therefore gender neutral. We suggest that the bill be amended to accommodate mixed sex couples who would prefer to use this gender neutral wording, and provide that the ceremony for a mixed couple, be in one or other form. This would not impact on those celebrants and mixed sex couples who do want to use the terms husband and wife.

At present, within the UK, nonbinary people are unable to receive legal gender recognition as neither male nor female. However, other countries have started to legally recognise this, such as Australia, New Zealand, Nepal, India, Pakistan and Canada, and there is the potential that some people living in Scotland may have 'X - Undefined' rather than 'Male' or 'Female' listed on their identity documents. Nonbinary people do not want to have to pretend to identify with a binary gender of either male or female in order to access legal recognition of their relationships. If both civil partnership and marriage were opened up in a sex/gender-neutral manner this would enable nonbinary people to access legal recognition of their relationships without compromising their identity. It would also prevent future difficulties for registrars as the number of people coming to the UK with their gender listed as 'X - Undefined' on their identity documents gradually increases.