Meeting of the Parliament (Hybrid)
Meeting date: Tuesday, May 19, 2020
Agenda: Topical Question Time, Business Motion, Care Homes, Civil Partnership (Scotland) Bill: Stage 1, Civil Partnership (Scotland) Bill: Financial Resolution, Agriculture (Retained EU Law and Data) (Scotland) Bill: Financial Resolution, Points of Order, Decision Time, Correction
- Topical Question Time
- Business Motion
- Care Homes
- Civil Partnership (Scotland) Bill: Stage 1
- Civil Partnership (Scotland) Bill: Financial Resolution
- Agriculture (Retained EU Law and Data) (Scotland) Bill: Financial Resolution
- Points of Order
- Decision Time
Civil Partnership (Scotland) Bill: Stage 1
The next item of business is a debate on motion S5M-21778, in the name of Shirley-Anne Somerville, on stage 1 of the Civil Partnership (Scotland) Bill.15:43
Presiding Officer, thank you for the opportunity to address the chamber on the general principles of the Civil Partnership (Scotland) Bill. I express my gratitude to the Equalities and Human Rights Committee for its careful scrutiny of the bill, and I welcome its recommendation to approve the bill’s general principles.
As Cabinet Secretary for Social Security and Older People, I consider that the legislation will help to ensure equality and safeguard human rights in Scotland. The bill follows a United Kingdom Supreme Court ruling from 2018 on the law of civil partnership in England and Wales. The court held that, as a result of the introduction of same-sex marriage in England and Wales, it was no longer compatible with the European convention on human rights for access to civil partnership to be restricted exclusively to same-sex couples. That decision on the ECHR implications of the current law has driven the bill.
In light of the Supreme Court ruling, it is right to proceed with legislation that will ensure equality of choice for all couples in Scotland should they decide to enter into a legally recognised relationship, whether that is a marriage or civil partnership. The bill follows a 2018 Scottish Government consultation on the future of civil partnership. In that consultation, we set out two options for a change in the law of civil partnership for Scotland: closure of civil partnership to new relationships from a date in the future or extension of civil partnerships to mixed-sex couples. Having considered all the evidence available to us, we came to the conclusion that the best way forward for Scotland would be to introduce a bill that makes mixed-sex civil partnerships available to couples here.
I consider that making civil partnership available to mixed-sex couples is right for Scotland for a number of reasons. At heart, the approach is about equality and choice: making the same options of marriage or civil partnership available to all couples upholds the equality principle of levelling up opportunities rather than taking options and choice away. If civil partnership had been closed to new relationships, couples would have had less choice.
In contrast, opening up civil partnership to all will bring clear and much longed-for benefits to couples who feel that this relationship is right for them. I know from letters received by the Scottish Government and responses to our 2018 consultation that some mixed-sex couples feel that marriage simply is not what they want. The common factor with those couples is that they want to deepen their commitment to each other by entering into a civil partnership that they consider to be the best reflection of their beliefs and feelings for each other. I want such couples to have the option and, as a consequence, to be able to benefit from the legal rights that will flow from having a civil partnership.
We also need to think of the bigger picture. Civil partnership was established for same-sex couples in Scotland in 2005, and same-sex marriage legislation was passed in 2014. Of course, mixed-sex marriage has existed in law for hundreds of years. The bill will close the gap and establish a level playing field for all couples who want to enter into a legally recognised relationship. Even without the Supreme Court decision, that gap would have had to have been addressed at some point, and I am glad that it is being addressed now.
I will now explain in a bit more detail what the bill will do. It begins by making a small amendment to the Civil Partnership Act 2004 by removing the words “of the same sex” from the definition of relationship contained in section 1 of the act. The removal of those four words, while seemingly nominal, will constitute a profound and welcome change to the nature of civil partnership in Scotland, expanding equality and choice.
That equality principle is reflected in the fact that, for most purposes, the bill draws no distinction between same-sex and mixed-sex civil partnerships. That means that the same standards will apply for mixed-sex civil partnerships when it comes to eligibility requirements for entering into the relationship, and the same processes and fees will apply for registering the relationship. Authorisation for religious and belief bodies and celebrants who wish to register mixed-sex civil partnerships will be along the same lines as authorisation for those who wish to register same-sex civil partnerships.
The bill also contains provisions that will enable mixed-sex civil partnerships from other jurisdictions to be recognised in Scotland. That means that couples in such relationships will benefit from access to the same packages of rights and responsibilities that will apply to mixed-sex civil partnerships created here in Scotland. Again, we have taken an approach aimed at ensuring equality of treatment.
We have also introduced provisions that will create an interim scheme of recognition that will allow those relationships to be temporarily recognised as marriages in Scotland until mixed-sex civil partnerships are available here. The scheme in the bill is about ensuring that couples do not lose access to the package of rights that flow from entering into a legally recognised relationship. There is a clear risk that that could happen should an alternative approach be taken. As I have said, rights are at the heart of the bill and the interim scheme of recognition is absolutely consistent with that.
The names that we use for ourselves and our relationships are important, and the bill will not alter the ability of a couple to call their civil partnership a civil partnership. It will make clear to couples in mixed-sex civil partnerships that they have legal rights in Scotland and that they will be able to benefit from those rights even before civil partnership is available to Scottish couples. I assure members that I will take steps to ensure that the interim scheme of recognition is in place for as short a time as possible. I would be happy to consider any suggestions made by members on changes to the language in section 3 that would address the concerns that were raised in committee.
The bill also contains provisions on how particular areas of the law will apply to mixed-sex civil partners. As I have said, for the most part, the bill makes no distinction between same-sex civil partners and mixed-sex civil partners. However, there are areas of family law in which the existing provisions for civil partners will not work because they were drawn up on the assumption that the couple was always going to be of the same sex. In such cases, the bill follows what is already in place for mixed-sex married couples.
Like the rest of the bill, that approach is informed by the need to ensure equality of treatment for mixed-sex civil partners, and following existing provisions on mixed-sex marriage will achieve just that. In particular, the bill follows mixed-sex marriage in relation to the presumption of parentage, creating the same presumption where a man is in a civil partnership with the mother of a child as where a man is married to the mother. Other examples include the provision in the bill that will establish how mixed-sex civil partners acquire parental responsibilities and rights and amendments to the definition of “child of the family” so that it includes biological children of mixed-sex civil partners.
Section 11 will establish a new offence of forced civil partnership, to run alongside the offence of forced marriage. We want to close any possible loophole in the law that the introduction of mixed-sex civil partnerships could create, by helping to provide protection for some of the most vulnerable members of our society.
The bill covers diverse areas. However, as I have mentioned, for the most part it simply follows what is already in place for same-sex civil partnerships or adapts the law where appropriate. That means that the bill is largely an amending bill, which changes other pieces of legislation so as to apply existing provisions that were previously debated and approved by Parliament to mixed-sex civil partnerships. That approach ensures that, once mixed-sex civil partnerships are established in Scotland, mixed-sex civil partners will benefit from the same body of law that already applies to same-sex civil partnerships with no resulting inequality of treatment.
As I have said, I am grateful to the Equalities and Human Rights Committee for its careful scrutiny of the bill. I have written to the committee in response to its report, but I wish also to comment on some of its recommendations.
Should the bill be enacted, I will proceed with guidance for the public on the differences between marriage and civil partnership, in line with the committee’s recommendation in that area. The guidance will provide information that supports couples who have decided that they want a legally recognised relationship, enabling them to make an informed choice about the type of relationship that is right for them.
One key point is that there will be less international recognition of mixed-sex civil partnerships than there is of mixed-sex marriage. We will make that clear to couples in guidance so that they can consider the importance of international recognition to their relationship.
I briefly spoke earlier about the interim scheme of recognition, and we welcome the conclusion of the Equalities and Human Rights Committee in paragraph 74 of its report that it was
“persuaded that because of the current legal landscape, there is no immediate alternative to the current approach”
to interim recognition. As I have said, I am considering how the concerns that have been expressed about the language used in relation to the interim scheme of recognition of civil partnerships from elsewhere could be addressed. On that, I will listen very carefully to the points that members make on the matter during the debate.
In its report, the committee expressed its support for the principle of married couples being able to change their relationships to civil partnerships. I acknowledge that point, and I wish to confirm to the Parliament that I am happy to work with the committee on an amendment allowing marriages to change to civil partnerships.
As I mentioned to the committee, there are some potentially complex aspects to provisions in that area. Given that, along with the need to consult and the need to take into account what may emerge in this area in the rest of the UK, an amendment may need to take the form of a power to make secondary legislation so that marriages can change to civil partnerships. I am confident that we will be able to work together to produce an amendment that effectively tackles the complexities in this area.
I have already written to religious and belief bodies to find out what their views are on the provisions in this area. In the context of a bill that is all about rights and equality, it is important that those organisations are given an opportunity to express their thoughts.
The Scottish Government is committed to extending civil partnerships to mixed-sex couples. That is what the bill does, and I commend it to Parliament.
That the Parliament agrees to the general principles of the Civil Partnership (Scotland) Bill.
I call Ruth Maguire to speak on behalf of the Equalities and Human Rights Committee.15:54
I am pleased to open the debate on behalf of the Equalities and Human Rights Committee. The debate comes in the midst of a health crisis facing not just our country but the world and, now more than ever, we must make every effort to uphold and promote equality and human rights. That lies at the heart of the bill.
Since the introduction of same-sex marriage, same-sex couples have had both marriage and civil partnership available to them. However, mixed-sex couples have had only the choice of marriage. In 2018, the UK Supreme Court found that difference in treatment to be incompatible with the ECHR. Scotland is currently the only country in the world where that situation still exists, so we are pressing ahead with the scrutiny of the Civil Partnership (Scotland) Bill to eliminate that inequality in treatment.
The Equalities and Human Rights Committee heard from human rights and family law experts, lesbian, gay, bisexual and transgender groups, faith and belief groups, women’s groups and other professional bodies. All welcomed the bill for aligning Scotland’s position with that in the rest of the UK, upholding human rights and advancing equality of opportunity.
Early on in the committee’s scrutiny of the bill, the Equality Network highlighted an important principle. It said that
“the solution to inequality ... should be to level up, providing ... more extensive rights / choices”,
The most powerful evidence that the committee heard came in testimonies showing how the bill, in providing more extensive rights and choices, would affect people’s lives. Extending civil partnerships to mixed-sex couples would mean that children would have greater protections through the legal recognition of their parents’ relationship. Young LGBT people would no longer live in fear of being outed as gay, lesbian or bisexual if they revealed that they were in a civil partnership, and transgender civil partners who are seeking a gender recognition certificate would no longer need to end their relationship.
The committee’s online engagement through its Your Priorities platform allowed individuals’ views to be captured through text, audio and video comments. We received many compelling personal testimonies, some of which I will share with members.
We are reminded that cohabiting couples have far fewer and less clear rights than couples who are either married or in a civil partnership. The Equality and Human Rights Commission highlighted the gendered impact of relationship breakdown, as women
“have less access to resources, assets and income due to systemic issues”.
One cohabiting woman wished that the bill had come sooner. She wrote:
“My partner died suddenly after 28 years together with two young children. Yet my children and I are not recognised as ‘family’ because we weren’t married. I have had to apply for widowed parent allowance … and two years down the line ... it’s still in the courts and I’m awaiting the next hearing.”
Another woman shared:
“I’ve been with my partner for 9 years and neither of us have a desire to get married … However, I’ve recently been diagnosed with cancer and naturally I want my partner to be financially secure when I’m gone.”
The legislation would help to formalise that.
The committee recognises that not all couples who cohabit wish to enter a formal legal relationship. As such, it welcomes the Scottish Law Commission’s discussion paper on cohabitation reform. However, mixed-sex civil partnerships are necessary to enable couples to access important legal rights that are currently available only through marriage. Although marriage offers those benefits, it is not for everyone.
We heard from many who did not—and would not—marry for a range of symbolic, cultural and emotional reasons. They included divorcees who believed that marriage was a one-time commitment, widowers who felt that remarrying would dishonour their late wives, and women who had experienced domestic abuse and who did not feel comfortable remarrying. A key reason raised by many women and some men who objected to marriage was that, in their view, it had patriarchal and religious baggage. Those people welcomed civil partnership as an alternative institution representing a more equal commitment that allows couples to imprint their own values and beliefs.
One woman put it like this:
“This bill allows us to protect those we love without feeling pressured to have a marriage ... civil partnership … matches our relationship as equal partners, neither of us above the other … all couples should have the choice to do what’s right for their relationship.”
For many mixed-sex couples, the choice of either marriage or cohabitation is not real choice. Rather, it is a decision between acting against their own deeply held convictions or accepting a lesser legal position. The bill is about individuals and the choices that they must make. The committee considers that the bill will provide real choice, enabling couples to have their relationship legally recognised in a way that is right for them and which means that they are able to access the important legal rights and protections that flow from that.
The importance of symbolism and choice ran throughout our scrutiny as we considered other issues. I will touch on two of them.
Section 3 provides for couples in mixed-sex civil partnerships formed outside Scotland to be temporarily
“treated as if in a marriage”
until civil partnerships are registrable. That was considered by some to be unsatisfactory for those who do not wish to be treated or seen as being in a marriage. I welcome the cabinet secretary’s commitment to explore whether the language in section 3 can be improved.
I also highlight the Scottish Government’s commitment to implement the bill as quickly as possible. In the current crisis, it is even more pressing for couples in Scotland to be able to access the legal rights and protections that flow from civil partnerships. I ask the Scottish Government to assure members that every effort will be made to prioritise the bill and the tasks that need to be carried out to implement it fully.
Finally, many people think that the bill should have addressed the conversion of marriages to civil partnerships. In light of everything that I have said, I would like to read out the views of Mr B and Miss L—a couple who married only to protect their financial position as age advanced. They wrote:
“the Bill as introduced would create inequality of opportunity among would-be civil partners, between those who have not married and those who, for whatever reason, have. This seems to conflict with the SG’s laudable aim of societal equality and respect in Scotland.”
The committee supports the principle that it should be possible to convert a marriage to a civil partnership, for those who wish to do so. I thank the cabinet secretary for confirming that she will work with us to explore how to overcome some of the challenges in that area.
On behalf of the committee, I offer my sincere thanks to everyone who gave evidence, shared their experience and helped us to better understand the unquestionable need for the bill and how it might be improved. We think that the bill advances equality and upholds human rights. It provides a necessary alternative to marriage through which individuals can access crucial legal rights and financial protections. As the cabinet secretary said,
“we should not underestimate the importance of allowing a couple to be able to be in the type of relationship that they want to be in and to have that legally recognised.”—[Official Report, Equalities and Human Rights Committee, 5 March 2020; c 3.]
The Equalities and Human Rights Committee supports the general principles of the Civil Partnership (Scotland) Bill.16:01
The cabinet secretary and the convener of the Equalities and Human Rights Committee have set out why the bill is before us. For thoroughness, I will go over some of that ground—but not too much of it.
I suspect that many speeches in this debate will sound pretty much the same. That is fine; the bill is pretty uncontroversial. However, that does not mean that there are no points to debate or to consider at stage 2—it would be odd if there were no such points. Therefore, although we support the general principles of the bill, I will make constructive suggestions about areas that might be considered. Before I do, I congratulate committee members and clerks on, and thank them for, their work on the bill.
I have a wide brief, which includes equalities, local government, communities and social security. I cannot be everywhere, so I am not a member of the Equalities and Human Rights Committee. However, the ever-enthusiastic Maurice Golden and Alison Harris make up for my absence. We will hear from Mr Golden later in the debate; we will also hear from Alexander Stewart and a virtual Annie Wells, live from Glasgow.
In some ways, my not being a member of the lead committee gave me the advantage of being able to look at the bill with fresh eyes. When I did that, my first question was, “Is this law necessary?” We have heard that different-sex couples in Scotland who want their relationship to be legally recognised have only the option of marriage, whereas same-sex couples have the choice of getting married or forming a civil partnership. We might ask why a couple would want a civil partnership when they could get married. What is the point? I will come on to that.
Civil partnerships for different-sex couples were recently introduced in England, Wales and Northern Ireland, following a ruling by the Supreme Court that the situation was discriminatory and incompatible with the European convention on human rights. However, I have heard it argued that the court did not take evidence on that point, because the point was accepted, so it did not rule on the matter. In any case, the ruling applied only in England, Wales and Northern Ireland; it did not apply in Scotland.
Therefore, I do not think that, legally, we have to do something in Scotland. For me, the question is a political one, not a legal one. Do we think that inequality should be eliminated, either by abolishing civil partnerships or by extending them to different-sex couples?
The former would be a perfectly legitimate policy position to take. It could easily be argued that there is no longer the need for civil partnerships because same-sex couples can now get married. However, the Scottish Conservatives prefer the latter option. We back the aim of extending civil partnerships to different-sex couples to uphold human rights and provide equality of opportunity. Doing so will also provide parity with the rest of the UK. As the committee’s report says,
“Scotland (and until recently England and Wales), is the only country in the world where same sex couples can choose between marriage or civil partnership, while different sex couples only have the option of marriage.”
That makes us something of an outrider. There is nothing wrong with that, but it is not necessary in this case.
Other than allowing same-sex couples to form civil partnerships, the bill seeks to make consequential changes to Scottish family law; allow for the recognition of certain overseas relationships between different-sex couples; make consequential amendments to legislation concerning gender recognition; and create an offence of forcing someone into a civil partnership.
The bill does not allow a marriage to be converted into a civil partnership, although it makes provision for couples in a different-sex civil partnership to convert that into a marriage if they wish. Perhaps, as has been mentioned, that area could be explored at stage 2.
I was encouraged by the committee’s view that
“if provisions to allow conversion from marriage to civil partnership are introduced in England and Wales, then Scotland could fall behind on matters of equality. Whilst there are undoubtedly legal challenges in this area, we consider these could be overcome with careful legal drafting.”
I was also encouraged by the cabinet secretary’s earlier comments in that regard.
The bill does not allow for adultery to be used as a ground for ending a civil partnership, unlike in a marriage. If one was being mischievous about it, one could dub the bill a love cheat’s charter, or rename it the open marriage (Scotland) bill. Frankly, most people—except those of a liberal mind—would see cheating to be a perfectly proper ground for ending any relationship.
Does the member recognise that the ground of adultery in Scottish divorce law is seen as arcane and that unreasonable conduct is a far more appropriate ground for ending any relationship? That is typical of the bill—it tries to drag us into the 21st century when much of Scottish marital law is still stuck in the past.
I mentioned the issue only because it was covered in the committee’s report. I am not arguing for such an approach; I was trying to be humorous, although I possibly failed on this occasion. [Laughter.]
The Faculty of Advocates has also expressed concerns that the decision surrounding civil partnerships does not extend to adultery. It advised the committee to seek clarification, given that
“civil partnership for opposite sex couples is intended to be an alternative to marriage”.
The Law Society of Scotland also suggested that it may be beneficial to consider
“whether to harmonise the grounds for the dissolution of both marriage and civil partnership”.
I therefore say to Mr Cole-Hamilton that it is a serious point to be considered; it is another area that could be looked at. However, I note the evidence taken on the issue and the committee’s view that the matter is one for divorce law.
I will touch on one other issue. Section 3 provides for couples in different-sex civil partnerships formed in England, Wales and Northern Ireland to be temporarily
“treated as if in a marriage”
until different-sex civil partnerships are registrable in Scotland. The committee’s report says:
“The Scottish Government developed this policy for interim recognition because civil partnerships for different sex couples are now available in the rest of the UK. Therefore, section 3 of the Bill will allow civil partners who move to Scotland to access the rights and responsibilities that would come from a marriage, until different sex civil partnerships come into force ... A number of written submissions expressed some disappointment with this provision.”
I look forward to seeing the bill pass this stage and to engaging with it as it makes its way through the parliamentary process. My colleagues Mr Golden and Mrs Harris will grab the challenge with their usual gusto. For now, we are content to support the general principles of the bill.16:10
I vaguely recall the passing of the civil partnership legislation of 2004. It was a major step towards marriage equality for same-sex couples. I was chair of the Justice 1 Committee back then and we did what was known as a Sewel report, which in other words was a report on legislative consent to equalise the law across the UK. Now, 16 years on, we have equal marriage and we require to equalise the law for opposite-sex couples.
Stewart Stevenson, who I know is going to speak in this debate, may recall that we also reformed family law at about the same time, when we accidentally swept away 300 years of Scots law provision for marriage by cohabitation and repute—sometimes known as common-law marriage. We managed to fix that at stage 3 of the Family Law (Scotland) Bill, when we allowed someone to make a statutory declaration if they thought that they were married and were unaware that actually they were not, for some technical reason, perhaps because they had not followed the full customs in another country. That was a relief for me, as I had married in Las Vegas, and for Bruce McFee, who you may remember from the Scottish National Party and who also got married in an exotic place.
It is pertinent that we are discussing the Civil Partnership (Scotland) Bill today. During the meeting of the COVID-19 Committee today, Adam Tomkins’s amendment 36, which the committee and the Government supported, highlighted that the ability to marry or enter a civil partnership is an important right, which confers other rights. Rights conferred by civil partnerships were meant to be identical to those conferred by marriage, but there seem to be some differences that I hope ministers will address in their summing up.
One of those is that death in service confers apparently greater rights on people in civil partnerships than on those who are married. According to the Scottish Parliament information centre, the Pensions Advisory Service noted that, since Walker v Innospec, which was a court case on death benefits and pension rights for same-sex couples, it is now the case that surviving partners of same-sex civil partnerships are entitled to the same death in service benefits as widows of opposite-sex marriages. That usually includes a backdating of pensionable service to 1978, whereas widowers are currently entitled to backdate that only as far as 1988. That is a small technical issue. If civil partnership and marriage should have exactly the same legal basis, then those should be identical.
Ruth Maguire covered my next point very ably, and I also want to record my thanks to the Equalities and Human Rights Committee for the sterling work that it has done. The committee said in its report:
“some people do not wish to marry for symbolic, cultural or emotional reasons and consider these important enough to merit the extension of civil partnership.”
In fact, civil partnerships may provide a valuable alternative for women and many others who have had negative experiences of marriage, including abusive relationships.
There is a right for same-sex couples to choose between civil partnerships and marriage and the same choice should be available to other couples. That point has been made by many other speakers. It is important to increase people’s choices about how they structure their lives.
The bill brings Scotland into line with the rest of the United Kingdom, as civil partnerships for mixed-sex couples have recently been introduced in England, Wales and Northern Ireland.
Clearly, there is a difference between the rights that a couple have from cohabitation and the rights that they would have in a marriage, and the fact that that difference has existed for so long has been the subject of much discussion. The committee’s report highlights the rights, or perhaps the non-rights, of cohabiting couples. That is an issue that I have addressed in the past, and is one that the committee might want to return to.
A legally recognised relationship brings with it many financial benefits. More than that, people find security in being married or in a civil partnership. For those who feel that marriage is not for them, a civil partnership offers an important alternative.
I am pleased that the bill will ensure that people can be in a legally recognised relationship and have the benefits that flow from that so that they can live their lives. For example, it will mean that one civil partner can inherit wealth on the death of another civil partner without a tax charge. In addition, where one civil partner earns £12,500 or less, a proportion of their tax-free personal allowance can be transferred to the other partner if that person is a higher earner, thereby reducing the couple’s overall income tax bill.
There is good reason to think that civil partnerships for heterosexual couples will be popular. In France, the pacte civil de solidarité—I ask members to forgive my pronunciation—is a registered partnership arrangement. Over the years, it has become increasingly popular, and for every five marriages, there are now four PACS. Based on the international experience, the Scottish Government estimates that there could be 109 opposite-sex civil partnerships registered each year, but the French example indicates that the numbers could rise significantly once the option has been in place for a while.
We are closing an important equality loophole in the law and giving all the citizens of Scotland more choice. There is every reason to support the provision and bring it in to our law.16:16
First, I thank the Equalities and Human Rights Committee for its scrutiny of the bill and its helpful stage 1 report. I also thank Ruth Maguire for her very informative insights into some of the evidence that the committee heard. I welcome the debate, as it is important that Parliament continues to meet to deal with business that is unrelated to Covid-19 where it is safe and possible to do so. I record my thanks to Parliament staff for their extraordinary commitment to their job and for facilitating parliamentary business in these difficult times.
Scottish Greens support the bill, and we will vote for it at decision time. Indeed, even before civil partnerships existed, Scottish Green Party policy supported the principle that both marriage and civil partnerships should be available to all, with no discrimination on the grounds of sexuality.
When civil partnerships were first proposed in the UK, Patrick Harvie in 2003 proposed a member’s bill that would have created civil registered partnerships on a non-discriminatory basis, with such partnerships being open to mixed-sex couples from the outset. At the time, it was disappointing that other parties decided to use a legislative consent motion, which was then known as a Sewel motion, to have the UK legislate in the devolved area of family law. The UK subsequently created civil partnerships for England and Wales, which was a step forward, but it did so on a discriminatory basis. If we had passed the Greens’ proposed bill instead, we would have been fully compliant with human rights legislation right from the start.
Nonetheless, we are where we are, and I am glad that we are here now. The bill extends eligibility to enter into a civil partnership to different-sex couples by amending the 2004 act to remove the reference to same-sex couples, and it also recognises mixed-sex civil partnerships that have been registered outside Scotland.
Different-sex couples can already obtain civil partnerships in England, Wales and Northern Ireland, and—as many members have noted—the Supreme Court, in the 2018 Steinfeld and Keidan case, decided that preventing opposite-sex couples from entering into civil partnerships was discriminatory and incompatible with the European convention on human rights. There is therefore a straightforward principle at stake. Parliament has acknowledged that it was wrong that the state created and administered marriage on a discriminatory basis, and surely it is therefore equally wrong that civil partnerships are similarly discriminatory.
The arguments for and against the bill are relatively modest and straightforward, and are set out in the committee’s stage 1 report. The reasons that the Scottish Government did not introduce mixed-sex civil partnerships following the 2015 consultation included, among other factors, low demand, limited recognition of such partnerships in the rest of the UK and overseas, the idea that society’s understanding of civil partnerships might be limited, the fact that Scots law already provided some rights for cohabitants, the fact that it was already possible to have a civil marriage ceremony, and the increased complexity that might arise.
However, everything changed following the Supreme Court ruling in 2018, and the Scottish Government, in its consultation that year, posed the choice of whether to close civil partnerships to new relationships or extend them to opposite-sex couples. Either approach would, in theory, as Graham Simpson said, overcome the human rights violation that the Supreme Court identified. In the end, ministers took the view that eligibility for civil partnerships should be extended. We welcome that approach, as it provides flexibility and choice, which are principles that should underpin how people choose to live their lives.
We also welcome the committee’s recommendation that those couples who are married should be able to convert their legal relationship to a civil partnership. That is a very important issue given the underlying principles of freedom and choice as to how couples wish to relate to each other in law, which are so important. We also believe that any kind of hierarchy in relationships is false, unhelpful and can be stigmatising. People should be able to choose the form of relationship recognition that best suits them, whether that be cohabitation, marriage or civil partnership—either fully civil or with some sort of religious element. If people choose what is best for them, it is not for anyone else to portray that as a lesser relationship. The bill takes some important final steps towards equal recognition and respect.
Finally, choice and freedoms in relationships should also cover cohabitation. I welcome the committee’s recommendations in that regard. I await the Scottish Law Commission’s review of that area of law with interest.16:21
I thank the clerks and witnesses who have made the collection of evidence at stage 1 enjoyable and seamless in adding to the committee’s knowledge. In particular, I thank the Equalities Network, which provides evidence of such depth and quality. I also thank the campaigning groups who have seen the change that we are driving forward today already enacted in England, which has brought equality to mixed-sex couples who want to enjoy the same protections that civil partnership offers. Put simply, if the bill is passed by the Scottish Parliament, it will be another step towards equality.
The bill offers legal and financial protection for both parties in the event of a relationship ending. However, it does so much more, in freeing those couples of the baggage of religious connotations that many attach to marriage. That is an important choice and one that we should extend to Scottish citizens.
I know how long some opposite-sex couples have waited for the opportunity to formalise their relationships and to enjoy the stability, rights and entitlements that other couples enjoy. There are 3 million opposite-sex couples who cohabit but choose not to marry and those couples support 1 million children. However, as it stands, they do not have the security or legal protection that married couples or those in civil partnerships enjoy. That needs to change. The bill will allow more people to formalise their relationship in the way that they choose.
The member mentioned some figures, including 3 million couples. I presume that that does not relate to Scotland—I just want to clarify that we are not looking at a sudden rush of new civil partnerships.
I am grateful to Andy Wightman for allowing me the opportunity to correct that point. It is, indeed, a UK-wide statistic. I imagine the figure would be in the region of 300,000 in Scotland.
Children in Scotland is fully supportive of the legislation, arguing that
“opening out civil partnerships will have positive implications to the lives of children and young people”.
That is because the bill will not only increase parity for those seeking to engage in a civil partnership, but provide that a man in a civil partnership with the mother of their child will obtain parental rights and responsibilities. That is a vital improvement in the law. That recognition of both parents helps to ensure that children’s rights have great protections.
In addition, opening out civil partnerships to everyone would help support LGBT+ communities. Stonewall has highlighted how the extension will ensure that civil partnerships remain an option for LGBT people in same-sex relationships, while widening the options available to people in mixed-sex relationships, including those who are LGBT, such as bi and trans people. Once again, at the core of the bill we see the pillars of equality and fairness.
Last year, we saw civil partnerships become available in England and Wales, so this slight change in legislation—as the minister said, it is such a small change—will make an important shift in our progress as a nation towards equality.
That change followed the UK Supreme Court ruling in favour of Rebecca Steinfeld and Charles Keidan, which stated that the UK’s previous law, the Civil Partnership Act 2004, was incompatible with articles 8 and 14 of the European convention on human rights on equality grounds. The judge ruled that current UK laws were incompatible with human rights laws on discrimination and the right to a private and family life.
Equality before the law, irrespective of sex, gender identity, or sexual orientation, is a vital baseline against which further progress towards all human equality and rights can be made. The Equality Network claims that, based on the experience of other countries, roughly one in 10 mixed-sex couples would prefer a civil partnership to a marriage, with demand coming from couples who would otherwise choose not to get married and become unmarried cohabitants.
The impact of the lack of legal rights on the breakdown of a cohabiting relationship is gendered. In its 2015 response to the Scottish Government consultation on civil partnerships, Engender said:
“women have less access to resources, assets and income, due to systemic issues that include unpaid caring roles, the gender pay gap, violence against women and unequal representation.”
My Liberal Democrat colleagues south of the border sought to introduce civil partnerships for all couples in 2002 through Lord Lester’s private member’s bill, and in 2013 when they tried to make civil partnerships open to mixed-sex couples. They did not succeed until very recently in England, and we must now follow suit.
I am pleased that this anomaly, which has existed in this country for 15 years, is now on track to be fixed through making marriage and civil partnerships available to couples regardless of sex. The committee has looked at the bill from all angles and the bill is elegant in its simplicity. As such, it is likely to require few, if any, amendments at stage 2, other than those to which the minister has already given voice.
However, I wish to put on record my regrets regarding evidence that we heard during the stage 1 consultation—with which I had great sympathy—on the unfortunate realities of the transition arrangements around implementation. The committee heard compelling evidence from campaigners who voiced concern at the fact that, until the date of implementation, mixed-sex couples who had a civil partnership that was already recognised in England would be regarded as being married for that period in Scotland.
There are real and legitimate reasons why people would reject the institution of marriage and would understandably be angry that, despite the lengths that they had gone to to have a mixed-sex civil partnership realised in England, they should be considered as husband and wife in Scotland, even for just a few months. The committee took extensive legal advice on the matter and it was determined to be unavoidable, so I hope that we can expedite the implementation of the bill.
I see that my time is up, so I thank the clerks and witnesses and I assure the Government of our support at stage 1.16:27
Although the bill has been directly influenced by the European convention on human rights Steinfeld and Keidan judgment, I believe that we should all have equal opportunities, regardless of sexual orientation, and I am therefore pleased to speak in today’s debate. I thank everyone in the Government and on the committee and all those who gave evidence to help bring the bill to stage 1.
Although there are few legal differences, the institutions of marriage and civil partnerships are very different. If civil partnership was introduced to be the closest thing to marriage that is not quite marriage for same-sex couples, it cannot now be argued that to opposite-sex couples it is all the same.
I strongly believe that the way in which partners profess, demonstrate, celebrate or formalise their love and commitment to each other should never be dependent on the sex of either one of them. I enthusiastically voted in favour of same-sex marriage because I want every couple to have the same choices.
For the past six years, heterosexual couples have had fewer options than same-sex couples and we are here today to help resolve that. Some people might ask why it is so important that civil partnership should be accessible to all and whether it has not become obsolete since the introduction of same-sex marriage. I believe such views display a lack of empathy for those with their own reasons for objecting to the institution of marriage or for not wanting to enter into it themselves.
I know couples who see marriage as a religious institution with which they cannot identify; people who associate the institution with personal trauma from their early years or from marriages that they were in before; some who object to its patriarchal tradition in which women are given away by their fathers and, in some ceremonies, promise to obey their husbands. Should people who decide not to enter into marriage have the right to formalise their relationships and give their partners legal rights in life and death? Of course they should.
Civil partnership is between those who wish to make that choice of commitment but—for reasons that are frankly none of our business—do not wish to be married. At this point, it is important to reassure those who object: opening up civil partnership to couples of the opposite sex is not an erosion of the institution of marriage, nor is it a threat, nor a first step to erase the concept of marriage—marriage will, of course, continue to thrive.
Reading the bill, I found few issues with its general principles. However, I want to pick up on a few significant points that must be rectified as the bill progresses to stage 2.
If the bill passes as it is, that would mean that, while it would be possible to convert a civil partnership into a marriage, converting a marriage into a civil partnership would still be precluded. Those put at a disadvantage would include not only people with religious beliefs, who would be precluded from choosing a civil partnership in future, but everyone in the chamber and elsewhere in Scotland who is already married.
More constituents than we might expect have contacted me to express their wish to have a formalised relationship giving rights to their opposite-sex partner. More of them than we might expect are married already, because it was their only option for sharing that legal status with their partner. To them, having to do that through the institution of marriage has always been the lesser of two evils, and marriage is not what they really wanted. Those couples must be given the opportunity to convert their marriage into a civil partnership, and it should be up to them how they design and frame their relationship and commitment to each other.
Like me, those constituents will be heartened to know that the Scottish Parliament’s Equalities and Human Rights Committee has picked up on that inequality, and the cabinet secretary has expressed a willingness on the part of the Scottish Government to explore ways to include the possibility of providing for conversion from marriage to civil partnership at stage 2.
Another issue of inequality between the two institutions is that, in marriage, adultery is a ground for divorce, as was mentioned by Graham Simpson. In civil partnership, however, there is no such ground for dissolution. Technically speaking, that makes civil partnership something other than an equal alternative to marriage.
The committee sympathises with the view that certain aspects of divorce and dissolution law are outdated and untidy and suggests that those issues are for consideration during a wide reform of divorce law and are outside the provisions of the bill. In its response to the committee’s stage 1 report, the Scottish Government agrees that
“any wider reform of divorce and dissolution law is not for this Bill but would be for separate consideration.”
However, in the same breath, the Government says that there are
“no current plans to review divorce and dissolution law in Scotland”,
or to consult on that, leading one to the suspicion that the matter of that missing ground will not be resolved for some years. I am unsure why that ground for dissolution has not been included in the bill as long as we are making laws to improve equality between the two institutions. However, I look forward to having a public consultation on those aspects and more when the time comes.
Although the Parliament has many urgent matters to deal with and the Scottish Government has other priorities to address for the duration of this parliamentary session, a review of divorce and dissolution law will ultimately be required if we really want to iron out the existing inequalities between the institutions and between same-sex and opposite-sex couples. I would like that to happen at some point during the next parliamentary session.
I agree with the principle of the bill, even more so in light of the Scottish Government’s intention to explore the possibility of converting marriage into civil partnership, and I am pleased that something that is so important to many couples in Scotland—and indeed to a number of my constituents—is being progressed.16:32
I, too, welcome the bill. Scotland—and, until very recently, England, Wales and Northern Ireland—is the only country in the world where same-sex couples can choose between a marriage and a civil partnership while different-sex couples only have the option of marriage. It is an anomaly that is both unfair and illegal.
If the subject was considered in a superficial way, one might ask why new legislation is necessary, as civil partnerships and marriage confer almost identical legal benefits. Even the Campaign for Equal Civil Partnerships makes that clear on its website, where it states:
“There is very little difference in legal terms between marriage and civil partnerships, with both conferring the same rights on things like tax, inheritance and pension provision.”
Of course, some weddings are religious, and some traditional ceremonies have echoes of patriarchy in promises to obey. Many people opt for civil services, and marriage itself is often a secular arrangement, just like a civil partnership. However, we know from the campaign for equal marriage that the perceived difference between marriage and civil partnerships was very real when they were reserved for different groups of people.
Civil partnerships were introduced across the UK for same-sex couples only by the Civil Partnership Act 2004, which was considered by the Governments of the day to be a significant social advance, even though it denied gay people equality. At the time, the authorities spoke openly about the danger of undermining marriage by opening it up to couples of the same sex. That seems quite extraordinary to us now, and the campaign for equal marriage correctly identified the distinction in those two different types of union as discriminatory. Many campaigners understandably felt that civil partnerships were second best, and I was proud to be able to correct that wrong, together with colleagues in this Parliament, by voting overwhelmingly for equal marriage.
That achievement perhaps obscured the fact that some same-sex couples were happy with the pragmatic benefits incurred by their civil partnership with regard to pensions, tax, inheritance and so on, so much so that some mixed-sex couples were keen to access similar arrangements. For those heterosexual couples, civil partnerships were not second best at all but were preferable and, indeed, something to which they aspired.
The Equal Civil Partnerships campaign states that
“the history, expectations, and cultural baggage of the two institutions is very different. Many couples can make a marriage work, but for some people – especially women – marriage is seen as carrying far too much patriarchal baggage: the idea that the man would own his wife, given away to him by the father of the bride”
is unacceptable. The campaign also states:
“Still today marriage certificates only have space for the names of the fathers of the bride and groom, whereas civil partnerships include the name of both parents. And in the ceremony partners have to say the words “I take you to be my wife … I take you to be my husband.”
One couple who felt that way were Rebecca Steinfeld and Charles Keidan. Their challenge ultimately led to a Supreme Court ruling on 27 June 2018 that the inability of different-sex couples to form a civil partnership is in breach of the European convention on human rights. The case of Rebecca and Charles was by no means an isolated one. I have been contacted by constituents who feel very strongly about the matter and I know that they will be delighted that we are now setting things right, particularly as mixed-sex civil partnerships are already legal in England and Wales.
I welcome the work on the bill of the Scottish Parliament’s Equalities and Human Rights Committee, which approved the bill’s general principles. The committee’s report notes that, for symbolic, cultural or emotional reasons, some people do not wish to marry. I note that the committee’s call for evidence on the bill received 40 submissions that were overwhelmingly in support of its proposals. Those submissions included one from the Equality and Human Rights Commission, which said that the change to the law would advance
“equality of opportunity for couples who are or who wish to enter into a legally recognised relationship.”
There were also positive responses to the bill from Children in Scotland, Engender and many LGBT groups, as other members have already outlined.
However both the Faculty of Advocates and the Law Society of Scotland pointed out that couples who are married will not be able to change to a civil partnership in the same way that a same-sex couple can currently change their civil partnership to a marriage. I understand that the UK Government has consulted on that matter but no firm conclusions have been reached. I would welcome further exploration of that anomaly.
The bill will affect only a small number of people—an estimated 109 couples in Scotland—but it is the right thing to do. It is clear that the general public are very supportive of the proposals. A British social attitudes survey found that 65 per cent of people back the change to civil partnership. I am glad to count myself as one of those people and I support the bill’s general principles.16:37
I welcome the opportunity to speak in this debate on an important bill that will allow Scotland to continue to promote equality, freedom of choice and fairness. The Equalities and Human Rights Committee did important work in its early consideration of the bill. Although I have stepped back from the committee, I will make sure that Maurice Golden and Alison Harris keep me up to date on the bill’s progress as they ably represent the Scottish Conservatives’ voice on the committee.
The bill’s fundamental principles are sound and there is cross-party support for the bill. However, we must still carefully consider it, and I ask the Scottish Government to be agile in its approach to some of the difficulties raised by the bill as we move forward to stage 2. It is important that we progress the bill through Parliament so that Scotland does not lag behind the rest of the UK on civil partnership. England, Wales and Northern Ireland have already passed the necessary legislation to make civil partnerships legal for different-sex couples, and I am glad that Scotland will join those countries soon in that regard.
As we have heard, the 2018 Supreme Court ruling outlined that the unequal access to civil partnerships for different-sex couples was in breach of the European convention on human rights and that we must therefore adapt our law to take account of that. In 2014, the landmark legislation that legalised same-sex marriage saw the LGBT community take a major step forward in its on-going fight for equality. That equity for relationships regardless of sexual orientation must now be offered to different-sex couples who want to access civil partnership.
The 2018 ruling represented a wider movement in public attitudes that was the catalyst for the introduction of the bill. The British social attitudes survey in 2019 showed that 65 per cent of the public supported the introduction of different sex civil partnerships, while only 7 per cent actively opposed it.
As the Equalities and Human Right Committee scrutinised the bill, it found, time and again, that the central purpose of the bill is to allow couples the right to legitimise their relationship through the route that best represents their cultural values and outlook on the world. I am glad that, today, we are starting to take the first steps to allow that to become a reality for mixed-sex couples across the country.
The bill is about extending choice. The Equality Network gave evidence that referred to that when it talked about the levelling up that will happen as a result of the bill. Although marriage and civil partnerships represent a similar legal position, they can mean very different things to individual couples. Both come with their own set of symbolic values and their own importance, and I am therefore glad that the bill represents an extension of choice. The alternative to aligning with the European convention on human rights would have represented a limitation to that personal freedom by removing the option of accessing civil partnerships altogether.
The bill, on the whole, is straightforward and uncontentious. There are, however, some important considerations to be made as we approach stage 2. The committee report outlines various areas where further consideration at stage 2 will be needed. For example, the drafting of section 3 will need to be examined to ensure that we respect the decisions of couples who have specifically chosen to enter civil partnerships and, because of that, might be unhappy with their status being likened to a marriage, even if that is only on an interim basis in Scotland. If we do not get that right, we will be sidelining the conscious freedom of couples to be legally recognised in the way that they choose.
Another interesting area of discussion that the committee considered surrounded the matter of converting marriages to civil partnerships. The purpose of converting civil partnerships to marriages was clear when they served a community of LGBT couples who wished to formally transform their civil partnerships to marriages as a result of same-sex marriage becoming law. It allowed them to access the legal recognition that they had always been barred from, and it symbolised a battle won in a wider fight for equality.
Evidence to the committee was overwhelmingly in favour of the bill allowing marriages to be converted to civil partnerships in a bid to recognise cultural preference, as well as to make sure that Scotland did not perpetuate forms of discrimination. I was therefore encouraged when I heard the cabinet secretary say today that he will work with the committee on that point.
I am pleased to see the inclusion of forced civil partnership as a criminal offence. For the first time, that will put same-sex and different-sex civil partnerships on the same level as married couples in relation to protection. That protection acknowledges the legal validity of civil partnerships by outlining that they should never be taken advantage of or used for harm.
The bill underpins the attributes of modern Scottish and British culture that we would do well to protect: fairness, equality and freedom of choice. It will be important that those continue to be upheld as the committee enters considerations at stage 2.
In a time when most of us are missing our loved ones and those who mean most to us and are seeing the fragility of life, I am happy that I can support a bill that allows couples to recognise their love in a way that they have decided represents their values best.16:44
As a member of the Equalities and Human Rights Committee, I place on record my thanks to the clerks, witnesses and all those who gave up their time to get us to this place.
Although I agree with the general premise of the argument that has been made here in recent weeks about the need for us, in these times, to prioritise the Covid-19 response, I think that there are caveats. Of course, we cannot simply carry on as normal while people’s lives have been turned upside down, but, at the same time, we need to behave respectfully towards legislation that has already started its progress through Parliament, the witnesses who have given their time and people who are relying on the legislation being passed. I think that the Government has found the right balance in that regard.
Of course, as has been argued today, parts of the Civil Partnership (Scotland) Bill are very relevant to the current situation and to some of the difficulties that people are having. Like some of my colleagues, I have had queries from constituents wondering what will happen to the wedding or ceremony that they had planned for the coming months. They are not all asking for the ability to hold traditional large parties; rather, they want the opportunity to have their ceremony with a minimum number of people, in a safe environment. I welcome the work of the Scottish Government in that area and the cabinet secretary’s response on the subject last week in the chamber.
The bill will extend civil partnerships to mixed-sex couples as opposed to restricting them to same-sex couples, as the legislation currently does. That is right and is in line with the European convention on human rights. Couples may not want to enter a marriage, for a range of reasons—symbolic, cultural or emotional. At the end of the day, marriage is a deeply personal life choice. I understand that some regard marriage as carrying patriarchal baggage and that civil partnerships, although they confer the same legal benefits as marriage, are viewed differently. We heard that clearly when we were taking evidence in the committee. With the passing of same-sex marriage legislation, people in same-sex relationships rightly have a choice of marriage or civil partnership, and it has been ruled that those same options should be available to mixed-sex couples, in order to comply with the European convention on human rights.
As has already been said—Graham Simpson noted that we are probably going over the same lines—the committee took an array of evidence to enhance our scrutiny. Crucially, the bill has widespread support. Stonewall Scotland, for example, feels that the bill would support LGBT people on the whole by opening options up to bi and trans people. In addition, Children in Scotland feels that the legislation would have only positive implications for children whose parents choose to enter mixed-sex civil partnerships and for children born to parents in mixed-sex civil partnerships. As others have said, no real evidence was given against the bill, which shows that the legislation is widely supported.
If the bill passes, couples who are currently cohabiting but do not wish to enter into a marriage will have a new option. On the surface, it might appear that there are few legal differences between a marriage and a civil partnership, but there are major differences between people cohabiting and people being in a marriage or civil partnership. If the bill passes, mixed-sex couples will be able to enjoy the legal protection that is afforded to civil partnerships, which cohabiting couples do not have under the bill, particularly with regard to tax planning and instances of one of the partners predeceasing the other.
Practically, the legislation opens up rights when transferring property or making gifts, and it ensures that capital gains tax will not apply to assets that someone has given or sold to their partner. In addition, currently, if a cohabiting partner dies before their partner without having made a valid will, the surviving partner will not automatically inherit from their estate. However, upon entering into a civil partnership, a partner has a legal right to the estate of their partner, even if they died without leaving a will—the surviving partner would be entitled to claim one third of their partner’s moveable estate if they had children at the time of their death, or half if there were no children. Likewise, on inheritance tax, the situation for a civil partner is the same as it is for someone who is married: they are able to transfer the entirety of their assets on death to their surviving civil partner without incurring any tax. Those might be some of the reasons why little evidence was given against the bill, which seems to bring in commonsense changes.
As others have said, Scotland is the only country in the world where same-sex couples can choose between a marriage or a civil partnership while different-sex couples have only the option of marriage—of course, until recently, that was the case in England and Wales, too. The bill will see us join other nations in making civil partnership an option for everyone.
I will conclude with a quote from the Equality and Human Rights Commission’s written evidence on the bill. It said:
“the approach of upholding human rights and providing equality of opportunity for all couples who wish to enter into a legally recognised relationship is to be welcomed as progress towards greater equality in Scottish society.”16:49
I am delighted to be able to participate in this afternoon’s stage 1 debate on the Civil Partnership (Scotland) Bill. I pay tribute to the committee clerks, the convener, the members of the committee and everyone who has given evidence or made a contribution to the committee.
As my colleagues have outlined, we, in the Scottish Conservatives, support the general principles of the bill, which will also bring Scots law into line with the position in the rest of the United Kingdom. Although how we got to where we are is understandable—the introduction of civil partnerships for same-sex couples in 2004 being followed by the extension of marriages to same-sex couples in 2014, which also allowed people in civil partnerships to convert their legal status to married—there now exists an inequality between the legally recognised partnerships that are available to mixed-sex couples and those that are available to couples of the same sex. A bill to address that inequality serves as the logical next step to the previous legislative changes that have reflected wider changes in our society and advanced the fundamental principles of liberty, equality and choice.
As my colleague Graham Simpson said, there is a wider question about how best to go about addressing the issue. To a great extent, civil partnerships were an important stepping stone towards marriage for same-sex couples at a time when many legislators—and, perhaps, Scotland more widely—were not ready to take that next step. However, the situation has changed. Although there is an argument to be made that such a stepping stone is no longer necessary, it is clear that there remain couples of all compositions who object to the very institution of marriage on many different grounds but who still wish their relationship to be legally recognised. That is important with regard to equality of choice and equality of involvement. That has been demonstrated by the court case in England that we have heard members speak about today and, indeed, is noted by the Equalities and Human Rights Committee. That was commented on by my colleague Annie Wells a few moments ago. The simplest solution, therefore, is the one that the bill advocates—namely, allowing mixed-sex couples to enter into a civil partnership should they prefer to do so rather than get married—and that is why we, in the Scottish Conservatives, support the general principles of the bill at this stage.
It is clear that the bill has widespread support from across Scottish civil society. It is good to know that many groups have made a strong commitment to the bill, including many charities and equality groups that have fought long and hard to ensure that their voices are heard. It is important that we recognise that and it is good that they are now getting that recognition. The bill also fulfils the ambitions of the Equality and Human Rights Commission, which set out the changes that it wanted in 2011.
It is important that we talk about the issue of forced formal relationships. Forced marriage is a terrible crime that has often gone unreported, and that needs to be challenged. In recent years, the UK Government has taken an increasingly hard line on that crime, and our previous Prime Minister, Theresa May, introduced legislation in 2014, when she was the Home Secretary, that made it an offence across the United Kingdom. Although forced marriage is an offence, forced civil partnership is not currently an offence. The bill seeks to address that by making a forced civil partnership an offence in Scotland, which is a welcome development, because forced formal relationships are abusive, and we need to recognise that.
Like other members who have spoken in the debate, I am concerned that the bill does not provide a means for a marriage to be converted into a civil partnership although there is the ability for the reverse to happen. Ministers have set out that one of the justifications for the bill is that it advances the principle of choice. It is important that we recognise the principle of choice, but, if that is what the bill is meant to do, why should people who are married not be allowed to convert their marriage to a civil partnership if they want to—or, indeed, vice versa—without needing to fulfil the current condition of showing “equal societal recognition and the same respect as mixed sex relationships”?
There is also a risk that there could be further negative divergence on equalities between Scotland and the rest of the UK. As has been highlighted by the committee, the UK Government is currently consulting on establishing the ability to convert marriages to civil partnerships in England and Wales. I hope that that discrepancy can be given further consideration at stage 2.
The bill seeks to enhance equality in Scotland and extend the personal freedom to choose whether to enter into a marriage or a civil partnership to the whole population. I am, therefore, happy to support the bill at stage 1 and to see it progress to the next stage, because it will bring choice, fairness and equality.16:55
The starting point when considering the extension of civil partnerships to include different-sex couples is that the status quo is incompatible with the European convention on human rights. The UK Supreme Court ruling of 27 June 2018 applied to England and Wales but was nonetheless a clarion call to us that our current situation is discriminatory and time limited. As Ruth Maguire, the convener of the Equalities and Human Rights Committee, and other members have said, Scotland is the only country in the world where same-sex couples have a choice between civil partnership and marriage but mixed-sex couples have only the option of marriage if they do not want to cohabit. It is only right, therefore, that we address and progress that matter today. Other progressive European countries and the rest of the UK have taken that step forward, so we now need to catch up with them.
Yes, this is indeed about equality of choice and opportunity, but it is also about securing the same legal rights: a levelling up, as some members have reflected. There is little legal difference between marriage and civil partnership, although some pension providers will deliver fewer survivor benefits to a civil partner than to a spouse, which is, frankly, outrageous. I am glad that the cabinet secretary will issue guidance around some of the difficulties with respect to international recognition of mixed-sex civil partnership, as that might be important to some individuals.
The biggest anomaly is around the legal rights of cohabitees compared to those of married couples. With regard to death or separation, cohabitees rely on the Family Law (Scotland) Act 2006; whereas, for married people, the protections around pension succession, alimony and financial provision are much clearer and stronger. Some people might say—wrongly—that, in order to maximise legal protection for when a relationship ends due to divorce or death, people should get married. However, that misses two very important points. The first is a very simple point: why should there be a different position for any couple, whether they are mixed sex or same sex?
The second point is perhaps harder to understand if we come from a position of believing in marriage as an institution, which many of us do, and that the only impediment to marriage is not meeting the right person. However, we have to understand and respect that some people have real ideological and very legitimate personal objections to the concept of marriage but nonetheless form long-term, committed and loving relationships that should not be viewed as second rate. Those couples deserve access to the law and should be able to access the same legal rights as married couples to protect and plan their future.
The Equal Civil Partnerships campaign has spoken eloquently about the symbolic, cultural and emotional reasons why some people object to marriage but nonetheless want a legally recognised relationship. For some women, marriage is, indeed, a patriarchal institution, and it is hard to deny that marriage comes with what has been described as baggage of history, culture and expectation, given that the civil and legal premise of a woman being the property of her husband is, sadly, not confined to ancient history. Joan McAlpine tapped into the feeling that opening up civil partnerships to mixed-sex couples will, in many ways, address some unfinished business, which is something that I heard Alex Cole-Hamilton reflect on, too.
With the introduction of same-sex marriage, many countries have either abolished civil partnerships or retained them as a legacy union and have withdrawn them as an option. I firmly believe that, on balance, our having the option of either marriage or civil partnership for same-sex and mixed couples is the right approach—and some two thirds of those questioned in the British social attitudes survey think so, too. As Fulton MacGregor mentioned, the bill has widespread stakeholder support.
Those of us who serve on the Equalities and Human Rights Committee have discovered that there are complexities to unravel and address, and other members, including the cabinet secretary, have touched on those. In particular, the committee has sought to explore with the Government the notion of converting marriages into civil partnerships on the basis of the evidence that we heard. The cabinet secretary’s written response walks us through some of the complexities. In essence, the issue is about how not to disrupt legal rights when people change a marriage into a civil partnership. New Zealand and Austria have introduced the ability to do that, so perhaps we can learn from those countries. I am sure that we all very much welcome the cabinet secretary’s commitment to explore the issue in more depth with the committee.
This is a small but purposeful bill, and I am glad to have the opportunity to support it today.17:01
I apologise to the Presiding Officer and to colleagues for joining the debate late. I am a member of the COVID-19 Committee, and our stage 2 debate on the Coronavirus (Scotland) (No 2) Bill ended just after 4 o’clock. Who said that men cannot multitask?
I will make brief remarks, which I hope will support, and will only to a limited extent duplicate, previous members’ contributions. I certainly intended no disrespect to colleagues by not being here to hear their words.
I welcome the bill and support its objectives. Extension of the criteria for civil partnerships will take nothing away from me, nor do I see any demerit for wider society. To legislate in the terms that are set out in the bill will extend benefits to people who, for whatever personal reasons, do not wish to marry. That is proper.
Formal endorsement in law of a relationship is of particular benefit to the children of a couple. It simplifies inheritance and, generally, simplifies the transfer of assets within close family. Marriage and civil partnership have significant benefits. I have been doing the marriage bit for more than 50 years, and hope to get the hang of it sometime soon.
I was delighted previously to work with Pauline McNeill on marriage issues—she referred to the civil partnership legislation on which we both worked. At that time, we made common cause, and I believe that we can do that again. I note that the Jewish community has identified some—fixable—issues in the bill. I hope that we do something about that. In the legislation that Pauline McNeill and I worked on, a significant issue was how divorce works in the Jewish faith. We were able to work together and with others to ensure that that important group in our community got the changes that mattered to them. I am sure that we will be able to do that again—especially as the current issue looks to be rather more straightforward.
The Family Law (Scotland) Act 2006 identified new rights for cohabiting couples, but those rights fall far short of what might be fair to couples and their offspring. If the bill moves on to the statute book, as I believe is likely, that should encourage many cohabiting couples to seek formal recognition of their relationship.
The act of entering into marriage or civil partnership is important recognition by a couple of their commitment to each other, by affirming that it is not simply a temporary or transient relationship. That commitment is of particular value to the children of those relationships. Although there are financial aspects, the much more fundamental issue is the emotional benefit of a stable family environment, however it is structured. Families can operate in many different ways: it is not for me to comment on anyone else’s arrangements.
I wish, for the bill, all support as it moves forward, in particular so that it can benefit children, as much as their parents.17:05
I start by reiterating Pauline McNeill’s affirmation that Scottish Labour welcomes the introduction of the bill to extend civil partnerships to mixed-sex couples, which will bring Scotland into line with England and Wales, and will promote human rights and equality through opening opportunities and providing greater choice.
Ruth Maguire’s point that the choice between marriage and cohabitation is not a good enough choice was well made. We also welcome the legal, financial and social benefits that the bill will bring to mixed-sex couples and to several equality groups, as well as the discussion that the bill has opened up on living arrangements, which have evolved at a pace that has far outstripped the law. For example, couples who choose to cohabit have weaker and less-certain rights than those who are in a civil partnership or marriage, which can particularly work against women, as several members have said. Given the long-term trend towards cohabitation, Scottish Labour supports the Scottish Law Commission’s proposed review, after the passage of the bill, of the law on cohabitation.
As several colleagues have said, it is important to highlight that civil partnerships allow couples to benefit from the legal, financial and social aspects of marriage, while avoiding an institution that they do not wish to enter for perhaps symbolic, cultural or emotional reasons. Civil partnerships might also provide a valuable choice for women who have had negative past experiences of marriage, including abusive relationships. If we want to be an inclusive and forward-looking country that upholds people’s rights, it is right that we ensure that those who wish to formalise or celebrate a relationship are able to do so in a manner that fits with their outlook and values. The extension of civil partnerships allows us to stand in solidarity with others across the world who cannot marry.
In international terms, the bill allows us to follow in the footsteps of nations including New Zealand, South Africa and the Netherlands. Pauline McNeill’s comments about the popularity of new choices in other countries were striking. She gave the example of France where, for every five marriages, there are now four pactes civil de solidarités. I like the title in French, as well as in English.
Although a civil partnership might not be recognised in other countries that do not have that legal option, the bill allows us to continue to help to pave the way towards a more progressive future in which there are greater opportunities for all and a legal system that recognises the evolving needs and preferences of our citizens. The level of public support for civil partnerships for opposite-sex couples is 65 per cent, with only 7 per cent opposing them. With the public being so strongly on the side of the bill, it is time to push forward with it.
There are issues that still need to be addressed. The bill does not address the legal chasm between those who enter into a formally recognised marriage or civil partnership and those who choose to cohabit. As has been mentioned before, cohabitees have weaker and less-certain rights than people in civil partnerships or marriages have—a difference that is particularly gendered and particularly experienced by women. As the long-term trend toward cohabitation and diversifying family types continues, the bill must not be seen as signifying the end of the road in Scotland for creating legal equality in all types of relationships. There is unfinished business and more work to be done, so the Scottish Law Commission’s review of the law on cohabitation is, therefore, both welcome and needed.
As Alexander Stewart said, the bill delivers choice, fairness and equality. It is a bill that we should pass—not because we have to, but because it is the right thing to do.
As others have said, the Covid-19 pandemic has truly made us think. It has given prominence to our homes, to how we live and to the importance and quality of our relationships. It has also underscored many equalities issues in our homes—not only in Scotland, but across the world.
Although the bill tackles only a small legal and technical aspect of home life, I hope that it results in a wider discussion of where we will go next. The bill falls into the wider narrative of the changing Scotland in which we live. It is updating the law to recognise the evolution of households and families everywhere, and to provide protection to those who choose paths other than marriage, so it is important.
Scottish Labour supports the bill, and the work that has started on the review of the law of cohabitation. I, too, thank the committee, clerks and witnesses for their contributions thus far. Some changes need to be made to the detail of the bill, but clearly there is support for its principles right across the chamber—which we cannot say about every bill. From listening to the tone and content of speeches today, I believe that all the issues that people have mentioned can be addressed at stage 2, where they need to be addressed.
I support the bill at stage 1, and hope that it passes with unanimous support today.17:11
This has been an entirely consensual debate. Graham Simpson injected some humour of sorts, as well as some interesting legal commentary. We were joined virtually by Pauline McNeill and Annie Wells, who made interesting speeches, as well as by Stewart Stevenson, who looked as though he was warming up for an operatic show, perhaps by doing some press-ups—probably one armed—and gave a suitably eloquent speech.
Fulton MacGregor and Angela Constance highlighted the extensive evidence that the committee has taken, and suggested that we must address and progress the bill, which I agree with.
Many thanks have been offered to the Equalities and Human Rights Committee and its clerks: I associate myself with those comments.
Overriding themes in the debate have been equality and fairness. Points on those were adeptly made by Alex Cole-Hamilton, who also highlighted that there are 3 million mixed-sex couples who cohabit and who have, to date, chosen not to marry. Andy Wightman clarified that that is a UK-wide figure, but the Scottish figure is high, nonetheless.
Kenneth Gibson explained why marriage is not for some people. He said that although there are many reasons that explain that, they are
“frankly none of our business”.
The creation of equality, through ensuring that people across Scotland have the same choices in their relationships, and fairness, through allowing the law to recognise those choices, are things that we should all support.
When civil partnerships were introduced back in 2004, it was in order to create a more equal footing for same-sex couples. However, in doing so, an inequality was created for different-sex couples, who could not enter into such partnerships. I appreciate that that exclusion was not malign in intent, but the end result was still unfair to different-sex couples who would have chosen a civil partnership, had that choice been open to them.
Scotland is now catching up with the rest of the UK, where civil partnerships for different-sex couples are already recognised. The bill that is before us is an opportunity to correct that and to bring Scotland up to date—a point that Alexander Stewart made well.
Beyond that, the bill should be an opportunity to ensure that we do not repeat the mistake of inadvertently allowing well-intentioned legislation to create more unfairness. Therefore, it is important that the proposed expansion of civil partnerships be indistinguishable from the existing provision for same-sex couples. I therefore welcome the willingness to extend the provision of conversion of partnerships to marriages—a point that was mentioned by Ruth Maguire and Annie Wells, among others—and the recognition of non-Scottish different-sex civil partnerships by allowing registration a second time, when necessary.
It is also welcome that there will now be prohibition of forced partnerships for both same-sex and different-sex couples.
However, although we can all welcome the improvement in the quality of choice, we must also recognise that legislation that intrudes upon the personal and private lives of individuals will have a number of implications. Those must be fully explored as the bill makes its way through Parliament, and I have full confidence in the Equalities and Human Rights Committee and the Parliament to do that.
I will highlight some key themes for Parliament to discuss during the next stages of the bill. We must examine better what we mean when we talk about “equality” and “fairness”. As I said, they have been watchwords throughout stage 1, which will no doubt continue to be the case.
However, the bill seeks primarily to address equality and fairness where they apply to a particular set of people—namely, different-sex couples who, for whatever reason, wish to enter not into a marriage but into a civil partnership. It is entirely right that we address such concerns and create a more equal system for such couples. The cabinet secretary summed up that point when she gave evidence to our committee. She said:
“The Government is obliged to consider what can be done to ensure that those people can be in a legally recognised relationship and have the benefits that flow from that while having an arrangement that fits their personal beliefs and how they want to live their lives.”—[Official Report, Equalities and Human Rights Committee, 5 March 2020; c3]
That begs a question: why should the same recognition and benefits not be equally applied? In many jurisdictions, both current and historic, Scots law does not provide for equality of marriage and civil relationships. That would not change under the bill.
The question is whether the bill will add another form of legal relationship to the ever-intensifying complexity of family legal relationships that are open to individuals. We should consider further where we draw the line in terms of respecting the wishes of minority groups that are looking to have their preferred options enshrined in law. Clearly, we cannot satisfy every view, so Parliament must discuss where to draw the line—perhaps not for this bill, although it might be something to consider in the fullness of time.
For those reasons and others, I believe that Parliament must ensure that wider views are represented in the bill. Ensuring that we hear those views is the only way that we can really claim to have delivered as equal and as fair a bill as possible.
I conclude by quoting Sarah Boyack, who said earlier that
“we want to be an inclusive, forward-looking country that upholds people’s rights.”
The bill, broadly, does that within the legal parameters that have been set, therefore the Scottish Conservatives will support its general principles at decision time.
In reference to Mr Golden’s opening remarks, I point out that it might be worth my while to remind all members that if they are contributing remotely they are on screen for five minutes before they have to speak.17:18
We started off today with Pauline McNeill telling her story about getting married in exotic places—I am not quite sure that my wedding near Dalkeith counts as exotic, but it was certainly a very special day for my husband and me.
Marriages and civil partnerships are equally important steps. They are special, precious ceremonies for those couples who wish to legally recognise their relationship. As Fulton MacGregor quite rightly pointed out, how people choose to do that is very much a personal choice for each couple.
I will address a couple of the points that many members raised during the debate, including the interim scheme of recognition, which was mentioned by Graham Simpson, Alex Cole-Hamilton, Annie Wells and many others.
As I mentioned, I am sympathetic to the concerns of those who would prefer that their mixed-sex civil partnership was not temporarily recognised as a marriage. However, I still believe that temporary recognition as a marriage is crucial, as there is already a full body of law in place establishing the rights and responsibilities that apply to that relationship. The same will not be the case for mixed-sex civil partnerships until everything that is needed for implementation is in place, which includes a package of Scottish statutory instruments and an order under section 104 of the Scotland Act 1998 at Westminster.
If people in those relationships are to rely on the law of Scotland for recognition, I do not want them to lose any legal rights. Temporary recognition of marriage will achieve that, but I stress that those people will be considered married in law only—nothing and no one will change how they describe their relationship. Our approach on that follows broadly what has been done for same-sex marriages from elsewhere, which were recognised as civil partnerships in Scotland until same-sex marriage was available here. We are following a tried and tested approach and intend to do so for only a short time. However, as I said, I am happy to look, with members of the committee, at how the approach can be improved.
Angela Constance, Alexander Stewart and many other members spoke about the effect of changing marriages to civil partnerships. I listened with interest to what members said about that, particularly the powerful testimony of one couple’s views that Ruth Maguire talked about. In the stage 1 report on the bill, the committee clearly expressed its support for the principle of allowing married couples to change their relationship to a civil partnership. As I said, in line with that recommendation, I intend to take forward discussions with the committee on an amendment that reflects its support for that principle, and that decision has been reinforced by members’ comments today. As many members have said, it is important that we talk about the principles of equality and choice as we discuss the bill. I believe that provisions that allow married couples to change their relationship to a civil partnership would be consistent with those principles and with the bill.
Members spoke a great deal about the benefits of the bill for couples. I have been moved by what many members said about their constituents’ views on how the bill will make a real difference to them. The bill is very much for those people. It will enable them to show their love for each other by entering the form of relationship that they feel is the best expression of their beliefs. I know that the ability to do that will mean the world to those couples.
With that in mind, should the bill be enacted by the Parliament, I intend to take steps to implement mixed-sex civil partnerships in Scotland as soon as possible, while recognising the constraints that are caused by the current pandemic. In making civil partnership available to all, the bill will achieve more than the benefits for couples who want a mixed-sex civil partnership; it is about making a Scotland where equality matters and where rights are upheld in legislation.
During evidence to the committee, Elena Soper was asked about the benefits of the bill. I will quote an important passage from what she said:
“We know that women have less access to resources, assets and income due to systemic issues such as unpaid caring roles, the gender pay gap, violence against women, domestic abuse and unequal representation.”
She went on:
“Couples who want to have those enhanced legal rights without entering into the institution of marriage ought to have the option of a civil partnership.”
As members have mentioned, they agree with Elena Soper’s belief that that
“would also benefit dependent children.”—[Official Report, Equalities and Human Rights Committee, 27 February 2020; c 23-4.]
The introduction of mixed-sex civil partnerships will benefit not only the couples who want one; I believe that there can be broader societal benefits.
Members rightly stressed the importance of moving the bill along quickly and implementing it quickly should it become law. I am not alone in the chamber in wondering what the next few months will bring, and priority must of course be given to measures that are necessary to safeguard life and protect public health. Therefore, it is right that the implementation tasks for the bill, if passed, are reviewed in light of Covid-19. However, as I said, I am fully committed to carrying out those tasks as quickly as possible. A number of implementation tasks need to take place, including the introduction of an order under section 104 of the Scotland Act 1998 at Westminster and a number of Scottish statutory instruments. We will do those as quickly as we can.
I know that couples who are waiting for mixed-sex civil partnerships might feel concerned about the prospect of the implementation taking some time, so I hope that the reassurance that I have given today that I will implement the legislation as soon as possible is some comfort to them.
We heard in evidence to the committee and in correspondence to the Government that the bill is not necessary, because there are relatively few differences between marriage and civil partnership. I disagree with that, and I know that I am not alone in that, given the many contributions today that have picked up on that issue. In its written evidence on the bill, Engender said:
“For many people, particularly women, marriage may be seen as rooted in patriarchal and outdated ideals or closely bound in religious or solemnised processes.”
Engender went on to say:
“Enabling different forms of commitment to be made which provide substantively the same rights and legal protections is a marker of a diverse and pluralistic society which respects these views.”
I wish to be part of such a society, and the bill will contribute to that.
Some have suggested in evidence that mixed-sex civil partnerships are an attack on the institution of marriage. I know that people feel very strongly about the importance of marriage, but I also know that people feel very strongly about the importance of being able to enter into a civil partnership. We know from the evidence that the lead committee received that some people would prefer a mixed-sex civil partnership because they do not see marriage as fitting their beliefs. I do not believe that the institution of marriage is threatened by the beliefs and choices of people who had never engaged in that institution anyway.
A number of specific points have been brought up in the debate, which has touched on other issues. Graham Simpson tried to be humorous about the bill. That was possibly a dangerous point to try humour in the chamber or elsewhere. However, I hope that I can reassure Graham Simpson that infidelity is capable of falling into the category of unreasonable behaviour and that that can be a basis for the dissolution of a civil partnership. We believe that the wider consideration of adultery is best placed in a discussion about divorce and dissolution in general.
Pauline McNeill mentioned death in service and public pensions. The intention is to align survivor benefits for mixed-sex civil partners with those that are available to survivors of mixed-sex marriages.
Many members have spoken about the importance of equality. Ruth Maguire spoke about equality of opportunity; Andy Wightman talked about the importance of recognising that there should be no hierarchy in relationships; Alex Cole-Hamilton spoke about equality for all; Annie Wells spoke about an extension of choice; and Angela Constance spoke about equality of choice. Those points and others that members have made about the importance of equality eloquently summarise why the bill is so important. It is important for people who wish to enter into a civil partnership, and it is an important step for Scotland to recognise its responsibility to be an equal society for all.
On that basis, I commend the motion and the bill to Parliament.