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

1 Introduction

1.1 On 12 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).

1.2 The draft Bill and the consultation document The Marriage and Civil Partnership (Scotland) Bill: A Consultation are available from the Scottish Government's website^[1].

1.3 This report presents the findings of the independent analysis of the responses submitted before the consultation closing date and time of 5pm on 20 March 2013.

Background to this consultation

1.4 In 2011, the Scottish Government undertook a consultation on the possible introduction of same sex marriage and the religious registration of civil partnerships to Scotland. Over 77,500 responses were received, and an analysis of the consultation responses is available from the Scottish Government's website^[2].

1.5 In July 2012, the Scottish Government announced its intention to proceed with the introduction of same sex marriage and the religious registration of civil partnerships. These measures are contained within the draft Bill. The consultation document accompanying the draft Bill also sets out the Government's proposals for providing protections for those who may have concerns about same sex marriage. In some cases, these protections are provided for in the draft Bill. Other protections are contained in existing legislation or in existing or proposed guidance.

Consultation themes and questions

1.6 The consultation document is set out in five parts: the introduction (which includes the impact assessments prepared in relation to the proposed legislation); general changes to marriage law; same sex marriage; civil partnership; and transgender people. The consultation questions posed within each of these are as follows:

Part 1 - Introduction

Question 1: Do you have any comments on the impact assessments prepared in relation to the proposed legislation?

Part 2 - General changes to marriage law

Question 2: Do you have any comments on allowing opposite sex and same sex civil marriage ceremonies to take place anywhere agreed between the registrar and the couple, other than religious premises?

Question 3: Do you have any comments on establishing belief ceremonies as a third type of ceremony, alongside religious and civil, for getting married in Scotland?

Question 4: Do you have any comments on amending section 8 of the Marriage (Scotland) Act 1977 so that Church of Scotland deacons are authorised automatically to solemnise opposite sex marriage?

Question 5: Do you have any comments on establishing tests that a religious or belief body must meet before its celebrants can be authorised to solemnise marriage or religious civil partnership?

Question 6: Do you have any comments on abolishing the concept of marriage by cohabitation and repute where a couple erroneously believed themselves to be married overseas but it transpired after one of them died that the marriage was not valid?

Part 3 - Same sex marriage

Question 7: Do you have any comments on the proposals for authorising religious and belief celebrants who wish to solemnise same sex marriage?

Question 8: Do you have any comments on opt-outs for civil registrars who do not wish to solemnise same sex marriage?

Question 9: Do you have any comments on the proposed approach in relation to freedom of speech?

Question 10: Do you have any comments on the proposals in relation to education and same sex marriage?

Question 11: Do you have any comments on the Government's proposals on the impact of same sex marriage on legislation, the common law or on private arrangements?

Question 12: Are you aware of legislation where there is a need to make it clear that references to marriage or spouse should not extend to both opposite sex and same sex marriage or spouses? If you are, please give details of the legislation and explain why it should not be extended in this way.

Question 13: Do you have any comments on the proposed approach to the law on adultery?

Question 14: Do you have any comments on the proposed approach to the law on permanent and incurable impotency?

Question 15: Do you have any comments on the proposed approach to the law on bigamy?

Part 4 - Civil partnership

Question 16: Do you have any comments on the proposed approach to ensuring that religious and belief bodies and celebrants do not have to register civil partnerships?

Question 17: Do you have any comments on the proposals for changing civil partnerships to a marriage?

Part 5 - Transgender people

Question 18: Do you have any comments on the detailed proposals for allowing transgender people in a relationship to stay together, if they and their partner wish so, when obtaining the full Gender Recognition Certificate?

Approach to the analysis

1.7 The purpose of this consultation exercise was to gather views on various proposals that have been included in, or excluded from, the draft Bill. Rather than seeking general agreement or disagreement with each proposal, the 18 consultation questions sought detailed comments, such as suggestions for why the proposals might not work in practice and how they could be improved. The analysis undertaken reflects this approach, and focuses on identifying key issues raised by respondents, rather than quantifying how many agreed or disagreed with each proposal.

1.8 A number of respondents made particularly detailed or specific points, including around the drafting and content of the draft Bill. The research team has grouped many of these comments into an annex, a copy of which is included as Annex D to this report^[3]. Where appropriate, the key issues or themes underpinning these comments have been taken into account when undertaking the overall analysis.

1.9 The analysis focused on issues that relate specifically to the draft Bill or the other proposals contained within the consultation document. However, it should be acknowledged that 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. Some respondents also noted that they were re-stating their position, having also submitted a response to the consultation on the introduction of same sex marriage. Some of these respondents also expressed their disappointment that the Scottish Government has not taken the majority opinion of respondents to that consultation on board and has decided to proceed with its plans to introduce same sex marriage. This led some to question the value of carrying out public consultations.

Structure of the report

1.10 The next section of this report summarises the ways in which responses could be submitted and the number and type of responses received.

1.11 The remainder of the report mirrors the structure of the consultation document, with each of the 18 questions set out in turn. Brief summaries of each proposal or policy area are included at each question to set the subsequent analysis in context. However, further explanatory information relating to each question is available within the relevant section of the consultation document.