Civil partnerships in Scotland: consultation analysis

BRIA, EQIA & CRWIA

The Scottish Government has prepared a partial Business and Regulatory Impact Assessment ( BRIA), a partial Equality Impact Assessment ( EQIA) and a screening report for the Child Rights and Wellbeing Impact Assessment ( CRWIA). Each of these was appended to the consultation paper.

Question 6: Please provide any comments you have on the partial Business and Regulatory Impact Assessment ( BRIA), on the partial Equality Impact Assessment ( EQIA) and on the screening report for the Child Rights and Wellbeing Impact Assessment ( CRWIA).

A total of 58 respondents commented at this question ^[11] . Some of these comments were brief and/or reiterated comments made at earlier questions. General comments on the assessments included that they can be difficult to understand for the lay person, but also that the current assessments are somewhat limited. It was suggested there should be full assessments if any Bill is to be introduced to the Scottish Parliament, and a Privacy Impact Assessment would be required under either the no change or the no new civil partnerships options.

Partial EQIA

Comments made about the Partial EQIA or other equalities impact-related issues were:

• Concern about discrimination against Christian belief and practice.
• The influence of religious bodies on legislation in this area has been disproportionate. The number of religious groups consulted compared to the number of secular groups is of concern, and the Scottish Secular Society was not amongst the consultees listed.
• The EQIA minimises the impact on sexual orientation of opening up civil partnership to opposite sex couples, since it does acknowledge the discrimination that exists currently and would persist under either the no change or the no new civil partnerships options.
• The partial EQIA notes that some religious bodies are concerned that the introduction of opposite sex civil partnership would undermine marriage. In reality, however, most opposite sex couples who would register a civil partnership have chosen not to marry, and so opposite sex civil partnership is unlikely to lead to a significant reduction in the number of marriages.
• The assumption of binary gender built in to the same and opposite sex distinctions discriminates against those with non-binary gender. Only removing all stipulations of gender from the requirements of any legal partnership can lead to real equality.
• The EQIA fails to consider the protected characteristic of pregnancy and maternity. Under current legislation, there is protection for civil partners having children using donor sperm. If a female couple are in a civil partnership and they have a baby, both partners are automatically entered as legal parents on the birth certificate. If civil partnership were no longer available, couples would have no option but to get married to have this same right and this is clearly discriminatory.
• There would be a concern that if opposite sex civil partnerships became or were seen as a lesser version of marriage, the value of any same sex civil partnerships formed when they were the only option could be undermined. This could lead couples to feel they needed to convert their civil partnerships to marriages; if so, a period when those conversions came at no cost would be required.
• The EQIA correctly notes that introducing opposite sex civil partnership would benefit trans people in civil partnerships, since it would allow them to access gender recognition without first being forced to dissolve their civil partnership or convert it to a marriage.
• The Scottish Government should address the anomaly of adultery reflecting only opposite sex adultery.
• The EQIA is correct in suggesting that more guidance, including easy read guidance, is needed on entering into a marriage or civil partnership.

Partial BRIA

Comments made about the Partial BRIA or other business or regulatory-related issues were:

• The BRIA does not support the arguments made elsewhere in the consultation paper that there would be disproportionate costs associated with introducing opposite sex civil partnerships. There would be one-off costs, but these would be no greater than those resulting from the introduction of same sex marriage, which were considered proportionate.
• It is not surprising that a Registrar is not experiencing enquiries about opposite sex civil partnership, since couples are unlikely to enquire about something they know does not exist. The only way to test demand would to be to ask people the question.
• Any suggestion that increased workload for Registrar Services is a reason for not introducing opposite sex civil partnership should be challenged.
• The Summary Costs and Benefits table lists pension-related costs associated with the introduction of opposite sex civil partnership, which the preceding analysis concludes would be unlikely to occur.
• The Partial BRIA notes that there are uncertainties associated with estimating legal aid costs, for example because cohabitants who separate may pursue financial provision and require legal aid. However, financial provision cases for cohabitants may be more expensive than civil partnership dissolutions, because the law on cohabitation is less well established. This could mean legal aid costs would be reduced.
• The corporate body 'Luxury Scottish Wedding' may be wrong in suggesting that demand would not be increased if opposite sex civil partnerships were available.

CRWIA Screening Report

Comments made about the CRWIA Screening Report or other child-related issues were:

• The CRWIA is a welcome addition.
• If any Bill is to be introduced to the Scottish Parliament, the impact on children of any changes to the civil partnership framework must be examined with care and rigour.
• The CRWIA is brief and/or weak, particularly in considering the possible benefits to children if the introduction of opposite sex civil partnership led to more stable family relationships compared to unmarried couples.