Equalities and Human Rights Committee

Meeting date: Thursday, February 20, 2020

Official Report 597KB pdf

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Civil Partnership (Scotland) Bill: Stage 1

Agenda item 2 is an oral evidence session on the Civil Partnership (Scotland) Bill at stage 1. I welcome Dr Andy Hayward, associate professor in family law at Durham Law School; Dr Kelly Kollman, senior lecturer in politics at the University of Glasgow; Professor Kenneth Norrie, professor of law at the University of Strathclyde; and Martin Loat, chair of the Equal Civil Partnerships campaign.

Morag Driscoll, convener of the child and family law committee of the Law Society of Scotland, will join us shortly. We have received apologies from Professor Elaine Sutherland, who is unfortunately unwell.

I ask the witnesses to spend a couple of minutes telling the committee about their knowledge and interest in civil partnerships, and also to tell us whether they support the principles of the bill.

I am a political scientist, and I have studied same-sex unions for a number of years, largely in Europe and North America—in western democracies, broadly defined. I have looked quite a bit at the civil partnership laws in the United Kingdom and Scotland, from a comparative perspective. What I can offer to the committee is an insight into what other liberal democracies have done.

As I stated in my written testimony, I support the bill’s approach. I want to end the discrimination that has been highlighted by the UK Supreme Court’s decision. I like the option of addressing discrimination by extending civil partnerships to mixed-sex or different-sex couples, because we need not only to address human rights and discrimination issues but to pluralise family policy and offer couples, of the same or of different sex, more choice. Civil partnership does that.

I am a lawyer with a background and interests that are similar to those of Dr Kollman. I look at the issues slightly differently. I am based in England, so my specialism is around the long journey that we took when introducing equal civil partnerships there, and I use a comparative perspective, drawing on different models for civil partnership reform.

I support the Scottish bill, just as I supported the equal civil partnerships campaign and the legislation that was introduced in England and Wales. The basis for that support was twofold. From a lesbian, gay, bisexual and transgender perspective, it was to ensure that same-sex couples who were in a civil partnership—and did not convert it but chose it, when they had the option of marriage or civil partnership—should not have a relationship status that had diminished validity. I also welcomed it from the perspective of equality and choice, so that people were able to formalise a relationship in the way that they chose.

I am the chair of the Equal Civil Partnerships campaign south of the border. I have been involved for five years, the past two as chair. I have been supporting Rebecca Steinfeld and Charles Keidan, the couple who won the Supreme Court ruling about 20 months ago, as members will know.

I, of course, support the bill. Our campaign has 140,000 registered supporters, and the anecdotal evidence is that about 400 to 500 couples have already entered into mixed-sex civil partnerships in England and Wales since they were introduced on 31 December. I congratulate the Scottish Parliament on the terminology around different-sex and mixed-sex partnerships. The Westminster Government’s documentation still says “opposite-sex civil partnerships”, which does not allow for any gender or transitioning that may be involved—Scotland is ahead on that.

I am not an academic but a practical campaigner, and, in practice, a number of the couples who have got involved are in middle or later life. They may be divorcees or widowed or have lost a partner, and it has been moving to see the outpouring of emotion and joy on our Facebook and other social media pages when they have found that they are able to have a valid legal union with their partner due to the law change in England and Wales. Scotland should not underestimate that group, because people in their 50s, 60s and 70s have thought about the issue for a long time and know what they are doing. They are not dabbling; they have waited 20 or 30 years and now they can have a mixed-sex civil partnership. It would be tremendous if Parliament could bring that to an equivalent number of couples in Scotland.

I have taught and researched Scottish family law for almost 30 years. In the past 15 years, the major legal development in family law across the world has been dealing with LGBT people, in particular, with regard to civil partnership and then the opening of marriage to same-sex couples. That has been a major focus of my research for a long time.

I support the bill, but my support is possibly a little more ambivalent than that of my colleagues here today. It is far better than the current situation; it was clear even before the Supreme Court told us so that giving same-sex couples more apparent choice than opposite-sex couples was unsustainable. It is a good bill in the sense that it tackles that issue. I would have preferred it to do something else, but I can live with the fact that it is not doing that—I am perfectly happy with that. As the parliamentary process progresses, details may need to be tweaked a little, particularly in relation to gender recognition.

We will certainly have the opportunity to explore all the detail as we go on.

I thank the witnesses for their introductory remarks, which were very interesting. Before I ask my substantive question, I will follow up with a brief supplementary question on Professor Norrie’s statement. You said that you would rather the bill had been something else. For the benefit of the committee, can you define what that something else might look like?

Given that the status quo was unacceptable—that is clearly the case—the options were to either follow the Scandinavian or Irish approach, which effectively involves winding down civil partnership, or to adopt the approach that has been taken by countries such as New Zealand and England, which is to open civil partnerships to mixed-sex couples. Purely from a legal perspective, it seems to me that it is inefficient law to have two institutions to do the job of one, which leads me to a preference for having one institution. Personally, I do not terribly care what it is called.

It is efficient law reform to have one institution to which everyone can have equal access—although I must keep emphasising that the bill is much better than the status quo. We currently have two institutions and the bill will make those two institutions virtually indistinguishable, except in name and the social and emotional values that the name carries.

You referred to two institutions and, obviously, the other one is marriage. Do you accept that, for many people, the term and concept of marriage carries with it a great deal of baggage and even stigma that they would wish to avoid, although they would still like to unify in the eyes of the law and the people who care about them, and that those people would rather have two options? No one in the political universe is going to suggest that we wind down the institution of marriage.

Hmm.

Okay—you can plead the fifth amendment on that.

My substantive question is for the whole panel. From the English experience and in the Scottish context, when we first created civil partnerships, it was obviously a political answer, as much as anything else, to meet the desire of same-sex couples for their unions to be recognised in law. What are your reflections on why, when the original civil partnership legislation was introduced, the inclusion of mixed-sex couples was not considered?

Perhaps I can answer that question, having been involved in the campaign in England and Wales for a few years. My understanding is that David Cameron, who was Prime Minister at the time of the introduction of same-sex marriage, insisted that it was all about promoting marriage and rejected all ideas that were put to him in favour of full equalisation. So, the Marriage (Same Sex Couples) Act 2013 in England and Wales was passed without the fourth component—the full equalisation of mixed-sex civil partnership.

My question was not really about the legislation that brought in same-sex marriage; it was about the precursor legislation that introduced civil partnerships. Right out of the traps, civil partnerships were only for same-sex couples, but was the inclusion of mixed-sex couples considered at the time?

I do not know for sure, but that was in 2004, which is 16 years ago. My sense is that a desire for a civil partnership option for mixed-sex couples is a more recent movement. There was no campaign for it and there are no records that we can find of anyone in 2004 doing what we have been doing for the past two years. I do not know for sure, but I think that it was just not a talking point.

Before the Civil Partnership Act 2004, there were two private member’s bills on the subject: Lord Lester of Herne Hill introduced one and Jane Griffiths MP introduced one in the House of Commons. Those bills included mixed-sex civil partnerships. It was felt at the time that it would be better to tackle the issue for same-sex couples directly, because they did not have any access to any method of formalisation. It was felt that addressing the detriment that same-sex couples suffered was a greater priority than the need to find an alternative to marriage.

The bills had some support—particularly Lord Lester’s bill. However, Lord Lester decided to withdraw his bill in order to pave the way for the bill that became the 2004 act.

Given that there was a body of support for that approach in Westminster, were there no attempts during the passage of the 2004 act to introduce amendments to make such civil partnerships available to mixed-sex couples?

09:15  

There were attempts, which you can read in Hansard—the issue was raised in Parliament—but it was felt that that bill did not provide the opportunity to deal with the issue and that it was not right to use it as a method of protecting mixed-sex couples. It was felt that the Law Commission should review cohabitation and should focus on mixed-sex couples in that arena. We adopted a similar approach to that of the Scandinavian and Nordic countries by focusing on a functional equivalent to marriage at a time when same-sex marriage was not politically viable.

In 2004, when the Civil Partnership Bill was going through Parliament, the major political imperative to ensure the passage of the bill was to insulate it from marriage. There were comments from Jacqui Smith, who was the lead minister at Westminster, that the bill was not about marriage and that it did not attack that ancient and wonderful institution. There was a political imperative at the time to say that same-sex couples were different to mixed-sex couples. That argument was used to glean support for the bill. However, that was 16 years ago and the world, particularly in this area, has been transformed. Those debates would have far less purchase today, but they were important at the time.

There were attempts to amend and widen the bill. Generally, those came from people who were opposed to the whole idea: they were wrecking amendments. For example, there was an amendment calling for any two people, such as brothers and sisters, to be able to have a civil partnership. People talked about spinster sisters. Why should spinster sisters not get an inheritance tax benefit when all those gay people are being given it? That was the sort of argument we heard. That was all peripheral to the main issue of allowing same-sex couples to access all the legal rights, remedies, obligations and responsibilities that opposite-sex couples have had for centuries.

Professor Norrie, your answer to the last question leads on to my first, which is about the legal and social differences between marriage and civil partnership. You touched on survivor benefits, which is one key difference that we have heard about. Can you expand on the legal and social differences between marriage and civil partnership?

When it comes to issues such as survivor benefits, the major difference is not between the institution of marriage and the institution of civil partnership. The problem is that the Civil Partnership Act 2004 and the Marriage and Civil Partnership (Scotland) Act 2014 were not retrospective. That meant that, when same-sex couples who had been living for decades as if they had entered into one of those institutions were finally able to do so, any benefits that they had built up—for example in pension contributions—were not counted. It took a Supreme Court decision—using European Union law, by the way—to say that that approach was unlawful. That retrospectivity is an issue.

If I can give a personal example, I have been in a partnership for 31 years. If one of us dies, or if we separate and there is a divorce, the law will only recognise 10 years of togetherness. That is a much more important issue than the differences between marriage and civil partnerships.

In relation to the legal differences between marriage and civil partnership, the two institutions have been designed to be as close as possible, which is good. One major legal difference—but, really, who cares?—is on the grounds for divorce or dissolution; for mixed-sex and same-sex marriage, adultery is one of the grounds, but it is not a ground for dissolving civil partnerships. However, you can get round that by other means.

The other major difference—which I would much prefer was tackled in the bill, because the issue has a real effect rather than an emotional effect—involves access to religious marriage. The 2014 act opened religious marriages to same-sex couples, and we thought that that gave us equal marriage. However, it did not, because each religious organisation has to opt in. There are something like 25 religious bodies in Scotland that have registered with the registrar general for Scotland as being willing to offer mixed-sex marriages; same-sex couples have the choice of about three. That approach is written into the 2014 act and it really limits the choice that same-sex couples have compared with mixed-sex couples. That is the sort of thing that I would much prefer to be tackled in the bill, instead of having a good bill that simply allows people to call their relationship what they want to call it.

That is interesting. We will come to the issue of adultery later. On the issue that you raised on retrospective rights, do you foresee a time when that will be addressed? Would that be done through a stand-alone piece of legislation? Would there need to be lots of tweaks done to existing marriage laws to fix that?

It is not to do with marriage laws; it is in the Equality Act 2010. It would be a simple and relatively straightforward process to amend that. There are jurisdictional issues between the two Parliaments, but there is no need to go into the marriage legislation or the civil partnership legislation, except that the Marriage and Civil Partnership (Scotland) Act 2014 contains the provision that says something like, “This is not contrary to the Equality Act 2010 if we don’t make it retrospective.”

I will make a couple of points on the experience in England and Wales. I depart from Professor Norrie’s view to some extent. He has stated that the technical legal differences between civil partnership and marriage are very minimal, but I want to focus more on the emotional, cultural and symbolic differences between the two institutions, and the meaning that marriage and civil partnership have for some people.

I appreciate that the Scottish legislation is slightly different to that in England and Wales but, on the point about adultery being a ground for divorce and non-consummation being a ground for annulment, in both cases you are, in effect, entering into an institution in which an outside party is making a comment on the sex lives of the individuals. Civil partnership legislation is silent on that matter, leaving it up to the couple to decide how they want to organise things. Particularly for an older couple coming together for a union, their knowing that if their marriage was not consummated it would not be valid might put them under undue pressure.

We do not have consummation in Scotland—well, we have consummation—[Laughter.]

To some extent, yes—

—but it is not a legal ground.

Yes, in relation to the legislation, there is a difference. Thank you, Professor Norrie.

The other point that I will make is that, when same-sex marriage was introduced, many couples who had been in a same-sex civil partnership understandably wanted to change that to a marriage. That means that they must have seen a difference that, to them, made it worth moving from one institution to the other.

If there is another group who are married but see that a mixed-sex civil partnership is the choice for them, I would argue that the emotional differences must work both ways. I do not remember people saying to same-sex couples when same-sex marriage was introduced, “Well, you’ve already got civil partnership. Why do you want to get married then?” and being given arguments about the legal definitions being quite similar. People understood the emotional differences, so I would argue that the reverse should apply.

Does Dr Hayward or Dr Coleman have any comments to make?

I echo what Martin Loat has just said. The legal differences between the two institutions are not huge, either in Scotland or in England and Wales, but the symbolism matters a great deal; indeed, as Martin Loat just said, it matters both ways. The symbolism of marriage obviously meant a lot for the legitimacy of same-sex couples but, on the other hand, it comes with a history that still has consequences for behaviour today. Some people embrace that history, but others do not. The choice is therefore an important one.

I agree with that. The legal distinctions between civil partnership and same-sex marriage are very tight—indeed, they are insignificant. However, the important idea—bearing in mind that formalised statuses are meant to evolve in society—is that the Civil Partnership Act 2004 enables couples to imprint their values on their relationship. Yes, there are some echoes of marriage in terms of the 2004 act, but that act can evolve and give parties the ability to express themselves through that act. I agree with Martin Loat and Dr Kollman that the symbolic values cannot just be sidelined but are quite significant for the couples.

That is helpful. Thank you. I am conscious of the time, so I will just briefly cover the issue of adultery, because a couple of other witnesses have already touched on it. Do you think that, in order to have true equality across whatever kind of institution couples want to enter into, adultery should be a ground for dissolution of any kind of partnership?

I would say the reverse. I completely agree with Martin Loat that the law should not be getting involved in looking at people’s sex lives. I would remove the issue of adultery from the legislation. I would remove any interest that our legislation has in the sex lives of adults who are involved in personal relationships.

I agree with Professor Norrie that adultery should not be a consideration in relation to marriage or civil partnership. However, I would recommend, as an interim measure, that civil partnerships should not recognise adultery at all for mixed-sex and same-sex partnerships. We should also consider down the line—some of the consultation responses touch on this—an overhaul of divorce law. We have a bill currently before the House of Lords—the Divorce, Dissolution and Separation Bill—that would remove the issue of fault completely from our divorce law and get rid of the issue of adultery completely. There would simply be a statement of marital breakdown, subject to a time period. That would be a much more progressive, modern approach.

Okay. That is helpful. Thank you.

I want to come back to Professor Norrie on the question of legal efficiency and push it slightly further. Is there an element of the law having to take into account the social and emotional feelings of the people that it is meant to govern? Is that a different form of efficiency?

Do not get me wrong, because I agree that the law has a symbolic role to play. A really good example of that is the Marriage and Civil Partnership (Scotland) Act 2014, which, in reality, gave to same-sex couples very little that they did not already have under the 2004 act in terms of legal consequence. The party that you have to create the relationship, the involvement of ministers and all those sorts of things are different. However, in terms of actual legal consequences, the 2014 act did virtually nothing. That was not the point of the 2014 act, though; the point of that act was symbolism. It declared very clearly that 2,000 years of discrimination against LGBT people, official disparagement of LGBT people and a status-based assumption in the law were all over. It was a very powerful and important piece of Scottish Parliament legislation.

09:30  

There is symbolism in the Civil Partnership (Scotland) Bill but, for me, it does not have the same purchase. Some people reject marriage because it has a patriarchal, religious history—of course, that is true. However, to me, it is a bit like a woman saying, “I’m not going to vote, because the voting rules used to be patriarchal and were designed to keep men in power and women out of power.” The world has moved on and marriage has evolved. I dislike the phrase “equal marriage”, which was the big, powerful slogan that was used. It served its purpose, but I much prefer the term “gender-neutral marriage”. I think that the 2014 act has created gender-neutral marriage.

In my view, marriage has been saved as an institution that is open to everybody as a result of the 2014 act. Because of that, I see the Civil Partnership (Scotland) Bill as being far less powerful. Nevertheless, I acknowledge that it has symbolic and emotional purchase for some people.

From a legal point of view, that would be a legitimate ground for doing something.

Yes.

I just wanted to clarify that, for the sake of balance.

Before you go on, Oliver, Dr Kollman would like to comment.

I agree with a lot of what Professor Norrie has just said. It is true that, from the point of view of symbolism and opening up marriage, the 2014 act had more punch. However, I do not agree completely with the analogy with voting for women. The history of women being excluded from voting does not necessarily impact on women’s behaviour today when they think about voting or participating in politics, whereas the history of marriage—of course marriage has evolved a lot; I am not saying anything against marriage today—still has an impact on how people behave today. That is a big difference. That is why the symbolism of the bill is important.

Do you have any concerns about the interim plan to recognise different-sex civil partnerships from the rest of the UK as marriages in Scotland?

As I read the bill, the interim plan is that if different-sex civil partnerships come into force in the rest of the UK before they do in Scotland, those partnerships will be treated as marriages in Scotland until such time as our bill becomes effective. I see no conceptual difficulty with that whatsoever. For 10 years between 2004 and 2014, our legislatures were perfectly comfortable in telling same-sex couples who married abroad that, when they came to this country, they were in civil partnerships and would be treated as such. A lot of people did not like that, but the law managed and accommodated the situation. That was a mechanism—a clumsy and unfortunate mechanism—to allow people’s legal rights and responsibilities to flow, and that is what the interim measures in the bill will do. In that respect, the bill is simply following a pattern.

I need to comment, not just because of my role in the Equal Civil Partnerships campaign but as somebody who is in a mixed-sex civil partnership that is recognised in England and Wales. I am in the target group and, given everything that we have been through on a campaigning level, I would have a huge problem in principle with the proposal that, in the interim period, the relationship that I am in would be treated as a marriage if I were to move to or operate in Scotland. That would undercut what I have spent five years campaigning for, to the point that I might not want to come to Scotland until the position changed. I have not gone through all of that just to be treated as married for technical expediency. It is not for me to tell you how to run your laws, but I urge you to either rethink the position or move very quickly through the process so that it becomes a purely theoretical point. It sticks in my throat that the relationship that I am in would be treated as marriage, given that I am a campaigner for mixed-sex civil partnerships.

Following on from that, is there a similar concern about how civil partnerships are seen and whether they are recognised overseas? I know that that is already an issue for some people. For both forms of civil partnership—mixed sex and same sex—are there concerns about how they are seen in other jurisdictions and what rights extend to civil partners?

It is an inevitable problem that, if the Scottish Parliament creates or expands an institution, the Scottish Parliament has no power to tell the rest of the world to recognise that institution. I do not think that we should be hung up about that; we have to do what is right for Scotland and for people who live in and come to Scotland. We cannot influence Iran, Iraq, Saudi Arabia or any other country that is not going to recognise our relationships. I have sympathy for Martin Loat if he feels that his relationship is not properly recognised in Scotland. If I go to half of the countries in the world, not only would I not be regarded as being in a legally recognised relationship that is called something that I do not want it to be called, my relationship would not be recognised at all. I would effectively be divorced every time I got off an aeroplane in some countries. Some years ago, I was told by immigration officers in some countries that I was no longer in a relationship simply because I crossed a border.

No Parliament on this planet can tell every other country what to do—that is an inevitable consequence of different legal systems having different problems. The issue is the reverse one: what we do when people come to Scotland. That is the important issue. Again, I have sympathy for Martin Loat and I understand the issue because, in a sense I have also faced it, although, frankly, in a more severe form. It would not be technically problematic for the bill to be amended to say that mixed-sex civil partnerships that are validly created abroad will be recognised here, even though people cannot enter into one here yet. I would draw an analogy with polygamous marriages. You cannot enter into a polygamous marriage in this country; however, if parties validly enter into a polygamous marriage in a country that allows it, and if the parties are domiciled there or are nationals, and they come here, they will still be married. I see no technical problem with the bill being amended in the way that Martin Loat wants it to be. I would support such an amendment.

That is helpful, thank you.

I am keen that we distil the benefits surrounding different-sex partnerships. The panel has touched on the benefits, and Oliver Mundell has spoken about the social and emotional aspects. In answer to Mary Fee’s questions, some of the more practical benefits for pension rights were touched on. In thinking about the benefits of different-sex partnerships, can we focus on the rights that they give people? I am particularly thinking about the different rights that people have in comparison to those that they would have if they were cohabiting. Even in Scotland, where rights are enhanced, if people cohabit for a lengthy period of time, that is still not the same as marriage.

I will leave the detail to the family law academics. In England and Wales, we faced a challenge in educating people that there is no such thing as a common-law marriage. Many couples who were cohabiting thought that they had rights, although that number might be reducing now. In practical terms, that often affects the woman in the relationship more if the man works, has accrued some wealth and has then left. The woman might think that she will get equal shares, but that might not be the case. We have argued that the civil partnership for mixed-sex couples provides a lighter and easier way to get the legal recognition and protection that would apply to both sides of the couple in that example and protect the children.

I will leave it to others to talk about the fine detail but, from the point of view of our campaign, a mixed-sex civil partnership is an easy and doable way to get equal rights. It costs £46.

We have touched on some of the legal benefits, but there is also the idea that the mixed-sex civil partnership is a status. There is formalisation. There is a start date and potentially an end date, and that will generate the ability to calculate and accrue benefits. There are the standard benefits of protection on relationship breakdown, which are really important. I note that section 28 of the Family Law (Scotland) Act 2006 allows for a cohabitation claim. I know that the Scottish Law Commission is reviewing that. We do not have that in England. Although I welcome cohabitation reform in England and Wales and think that it is the next area for us to go into, the fact that you have that here is quite important. However, reform is needed.

Civil partnerships will certainly be attractive in protecting vulnerable couples. They will be popular in England and Wales—we will probably have a surge in demand—but they will not remove the pressing need for a broader, blanket safety net for all couples.

Andy Hayward is quite right that the approach does not tackle the real issue in England. There is an argument that opening up civil partnerships to mixed-sex couples is more urgent in England and Wales than it is in Scotland because they do not have cohabitation provisions in the way that we do. We have succession claims, claims on separation, and financial adjustments at those difficult periods of people’s lives.

The real issue is the choice between a registered relationship—whether that is a marriage or a civil partnership—and an unregistered relationship. One of the real problems in England is that Parliament has consistently refused to deal with the issue of unregistered relationships. If a person does not register with whichever institution, they are left in an extremely vulnerable position.

Martin Loat is quite right to say that all the research and statistics show that people believe that they have a so-called common-law marriage, but they do not: they have nothing. In Scotland, it is quite different. People already have a choice of whether to register their relationship and get the full gamut of rights and responsibilities or not to register their relationship, in which case the law will protect the vulnerable.

The bill is all about registered relationships. It does not address—and it is not the place to address—any further amendments in relation to cohabiting, unregistered couples.

09:45  

Professor Norrie, are there enhanced rights in Scotland for people in a civil partnership or a marriage compared with the situation for people who cohabit? Am I right in thinking that that is because of issues to do with pensions and exclusion orders for perpetrators of domestic violence and that there are other quite discrete nuances?

You are right, except in relation to the domestic violence legislation, which is very carefully designed to cover all types of couples. Your fundamental point is absolutely right: if a person is in a registered relationship, they have enhanced protections. In 2006, the Scottish Parliament deliberately chose to keep lesser protections for cohabiting couples in order not to undermine the institution of marriage. That is how the argument went at the time. Therefore, there is a hierarchy with marriage and civil partnership at the top, then cohabitants, and then people who perhaps do not live together but are in long-term relationships.

Thank you. That is helpful.

I will not talk members through the details of the different laws, because the family lawyers can do that. However, on policy needs, it is very clear that family types are continually diversifying and that cohabitants in particular are becoming a much more common family type. The law on cohabitants here is very helpful but, as Andy Hayward has already said, the Scottish Law Commission is looking into whether it is adequate, given that quite a bit has changed since 2006 with regard to how people live their lives and form families. It is worth looking at whether the law on cohabitants is really doing the job that we need it to do, given how society is today.

I want to return to the issue of gender recognition, which Professor Norrie touched on in an earlier response. In your submission, Professor Norrie, you questioned whether the full implications have been worked out for the situation in which one party to an existing civil partnership or marriage changes gender. Will you expand on your comments and explain what difficulties you envisage? Perhaps the rest of the panel can then give their views.

The practical difficulty is that there are currently two bills before the Scottish Parliament: the Civil Partnership (Scotland) Bill, which we are considering today, and the gender recognition reform (Scotland) bill, which may be just a draft bill—I cannot remember. The situation is a repeat of what happened in 2004, when the Civil Partnership Bill was going through Westminster. That was followed very quickly thereafter by the Gender Recognition Act 2004. The interplay between those pieces of legislation became very clumsy. The Scottish Parliament faces the same clumsiness this year, which is really unfortunate. If you could combine the two pieces of legislation, many of the problems would be resolved. The main problem is that the situation is overly complex. It seems to me that, once marriage—

If I may interrupt you, is the situation overly complex by necessity, because of the law, or because we have made it overly complex?

We have made it overly complex, but the approach was designed to deal with the fact that, in 2004, there was a complete separation of same-sex relationships and mixed-sex relationships and civil partnerships and marriage. Therefore, if one of the parties in either a civil partnership or a marriage changed gender, that relationship had to come to an end because we could not accommodate a different gender mix in either of the relationships. The marriage legislation half dealt with the problem because, with marriage, gender does not matter now. That is why I prefer the term “gender neutral”.

The Civil Partnership (Scotland) Bill will make civil partnership gender neutral, which is good. If we had started from the point that both relationships are gender neutral, the transgender issue simply would not arise, because it would not matter. However, instead, we are trying to replicate the complex provisions of interim gender recognition certificates while people are in a relationship in order to protect the other party and so on. We do not need all that. If a person in a relationship changes gender and the other person cannot accept or accommodate that and no longer wishes to be in that relationship, the divorce courts can deal with it. That is not a difficult thing. Instead, we are trying to replicate the sensitivities that we created in 2004 in a different world to deal with a different situation.

What are the views of the rest of the panel on that?

I broadly agree with Professor Norrie. I have another point to make in a moment, so I will save time by passing on this one.

I, too, am broadly in agreement with Professor Norrie.

Part 5 of the Civil Partnership (Opposite-sex Couples) Regulations 2019—those are the regulations that brought in mixed-sex civil partnerships in England and Wales—has allowed an individual with a full gender recognition certificate to be able to have a mixed-sex civil partnership without having to dissolve the original civil partnership, provided that their partner consents to that. There is an alignment so that there is no break in the relationship—people can switch between the different types of status, which is welcome.

We are consulting on the issue. I hope that we will be able to change the Gender Recognition Act 2004 through consultation, but that process has stalled. It might be premature to move on that.

Professor Norrie, are you suggesting that the draft gender recognition reform (Scotland) bill, which is out for consultation, is the means to remedy the issue? If an amendment were made to that bill when it reaches the Scottish Parliament, would something need to be done to the Civil Partnership (Scotland) Bill so that they mirror each other, or would the gender recognition reform (Scotland) bill be the only one that needed to be changed?

I do not know. As I said in my written submission, the committee needs to look at the matter carefully. The clean and sensible place to deal with it is probably in the gender recognition reform (Scotland) bill. In that case, the provisions in the Civil Partnjership (Scotland) Bill amending the Gender Recognition Act 2004 would need to be reconsidered.

Thank you. That is very helpful.

Good morning, panel. What are your views on allowing married couples to convert their marriage to a civil partnership and vice versa?

I very much want to come in on that point. The Westminster Government has got itself into knots on the issue, specifically in relation to converting a mixed-sex or traditional marriage to a mixed-sex civil partnership. That is still out for consultation in England and Wales—it was kicked out of the Westminster bill at the last minute, perhaps because it was seen as controversial and possibly opening the door to objections from the church and other religious groups. There is an opportunity in Scotland to neaten things up and get it all clarified.

There is an argument that couples who find themselves in traditional marriages and realise that they would have had a mixed-sex civil partnership had it been available should be able to convert. The Equal Civil Partnerships campaign position is that we totally agree with that. We do not want there to be any time limit on that—we do not want people to have only two years or 18 months in which to make their decision.

We have two main reasons for saying that, the first of which is practical. A couple might be living and working overseas in a jurisdiction that does not recognise mixed-sex civil partnerships, so they might feel that they have to get married. In five years’ time, they might move back here—to Scotland, England or Wales—and find that the ship has sailed on the conversion opportunity.

The other reason is more a social or societal one. We feel that we are on the verge of seeing a new social construct in the mixed-sex civil partnership. Who knows how that might mature or develop? My view is that support for it is silently building and that it will become more popular. In five, 10 or 15 years from now, it could become the norm for many people, who might see others in their peer group entering into such partnerships. If, at that time, a married couple were to decide that they understood the differences and that they would rather be in a civil partnership and wanted to convert to one, the Equal Civil Partnerships campaign would not want that not to be allowed. To me, that would be like saying that we made provisions for veganism 20 years ago but that, if someone now declares that they are vegan, they can be one for evermore. We know that society changes and that things suddenly become more popular and other people want to join in. We would argue for an open-ended ability to convert from a traditional marriage to a mixed-sex civil partnership.

I broadly agree. The issue is partly about increasing people’s choices in how they structure their lives. Leaving such choices open for as long as we can and making the options as liberal as we can would be good.

I echo what Martin Loat said. It would also be useful to consider examples from other countries. In France, the pacte civil de solidarité—PACS—is what we might call a registered partnership-lite arrangement. It has become increasingly popular over the years—so much so that, for every five marriages, there are now four PACs. The form of registered partnership that is available in the Netherlands, which is open to both mixed-sex and same-sex couples, was previously never all that popular for a variety of reasons, but it has recently become increasingly more so. Things are changing. In other European countries, the direction of travel is similar in that registered partnerships have become more popular for mixed-sex couples.

There is a fundamental flaw in the bill that will come back to haunt the Parliament. The idea is to do for mixed-sex couples what we previously did for same-sex couples. That is fine. However, when same-sex marriage came in, what we did for those couples was to give those who were already in civil partnerships the choice of either staying in them or converting to marriage. Conversion could be done through two mechanisms: by a purely administrative one or by getting married. I do not think that the marriage option is available in England. At any rate, the point is that people in same-sex civil partnerships can convert to marriage. I think that, for the first year, all fees were waived on the ground that those people had previously had only one option but now had two and that, if they wanted to take the second option, they should not have to pay for that. That model should have been adopted here.

From my reading of the policy memorandum, I think that the Scottish Government has deliberately chosen not to allow people in marriages to convert to civil partnerships. I presume that that was through fear of undermining the institution of marriage, but it should have done so. If the whole point of the exercise is to do for opposite-sex couples what has previously been done for same-sex couples, we should do it all. We should allow mixed-sex couples who married but would now prefer to have civil partnerships the opportunity to have them. For the first year, we should not charge them for doing that. We should simply follow the model that we successfully adopted in 2014.

I think that all my questions have been answered. Thank you very much.

If Oliver Mundell’s supplementary question is brief, we can probably fit it in.

I think that Professor Norrie has captured the point that I was going to make.

Okay. That brings our session to an end. I thank our witnesses very much for giving their evidence, which has been very helpful. I suspend the meeting briefly to allow for a change of witnesses.

09:59 Meeting suspended.  

10:02 On resuming—