Equal Opportunities Committee

Meeting date: Thursday, September 5, 2013

Official Report 571KB pdf

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Marriage and Civil Partnership (Scotland) Bill: Stage 1

I welcome our witnesses and the people who are sitting in the public gallery. Today, we will hear from two panels of witnesses on the Marriage and Civil Partnership (Scotland) Bill. I should let everyone know that the Parliament’s photographer will be here.

I invite the first panel to introduce themselves.

Thank you very much for having us here today. I am the director of Stonewall Scotland.

Thank you for inviting LGBT Youth Scotland. I am policy and participation manager.

I am here representing the Quakers in Scotland.

Thank you very much for the opportunity to be here. I am director of the Equality Network.

Thank you very much for inviting the Scottish Transgender Alliance, of which I am the manager.

Thank you. I invite questions from committee members.

I thank the witnesses for all their submissions, which I have read—they were very helpful. You might have seen the submissions from the organisations that are represented on our next panel, one of which said:

“The complementarity of male and female, and their unique role in the transmission of life, underscores the reality of marriage as a natural social environment for the birth and growth of every person.”

Do you agree that there is a “complementarity of male and female”?

Gender is not that simple. We know, for example, that there are transgender people, people who are born into a male body but grow up to discover that they are female, people who are intersex, who do not have a male or a female body but have a mixture of those two things, and people whose self-perceived gender identity is neither male nor female or is a mixture of those two things. The reality is that things are not as simple as people just being male or female.

You mentioned generation and new life. It is already clear that marriage law does not require a couple who are marrying to be capable of having children. There are couples in which one person is infertile, there are couples who are quite old and are not going to have children—

The norm would be that a marriage would expect to have children.

08:30

Most marriages do have children and of course many same-sex couples have children, too. The couples that I just talked about, who are not able to have their own children, might well adopt children, as do same-sex couples. Our view is that the bill is about love—and marriage is about love. I think if you ask most married couples what their marriage is about they will say that it is about love, a commitment to each other and, if they have children, their family. All those things apply to same-sex couples, as well.

I come from a slightly different point of view, from one of the faith communities in Scotland. For us, the crucial thing is the complementarity between two individuals who are making a committed relationship with each other and need the support of their community and of God, helping them through their lives. The complementarity is not to do with gender; it is to do with the particular relationship that two individuals work out between themselves, for the benefit not only of themselves but of the community in general.

We are alive to the fact that an increasing number of gay and lesbian people, particularly younger ones, want their family structures to be described in exactly the same way as everyone else’s are—Tim Hopkins mentioned same-sex couples who have children.

For us, the bill is about much more than the complementarity issue. It is much more about how gay people are viewed in society and about being equal in the eyes of the law. What the bill does for us is to completely underline that. It is a robust, strong bill and it will provide gay people with equality in the eyes of the law.

When civil partnerships were introduced in 2005, we were very much of the view—and we hoped—that the distinctions between gay people and heterosexual people would be eroded and that the way in which gay people were talked about and viewed in the public sphere would change.

I am sad to say that our hard evidence shows that that has not been the case. Research that Stonewall Scotland commissioned from YouGov showed that in the past five years 216,000 people have experienced some form of homophobic or transphobic verbal or physical abuse in the workplace, and that 99 per cent of our young people have faced some form of discrimination or experienced some form of homophobic language in their playgrounds—half of those children have been directly bullied for being different or perceived to be gay. In the past year, there has been a 12 per cent increase in lesbian, gay, bisexual and transgender-reported hate crimes.

What the bill will do is to make gay people equal in the eyes of the law, and until that happens the distinction and the public discourse that I talked about will be at risk of not changing.

You said that the bill will make people “equal in the eyes of the law”. Do you accept that the law already gives equal rights, so this debate is really about the word “marriage” rather than legal rights or other legal differences?

At the moment, gay people are not equal in the eyes of the law. They are not equal in law. Until they are afforded the same rights and responsibilities as heterosexual married couples are afforded, and until they are able to marry legally in this country, they will not be equal and the distinction will continue. As I said, that distinction allows, in the public sphere, the kind of discrimination that I described. We are very much of the view that until gay people are seen as equal in the eyes of the law, and society sees them as equal in the eyes of the law, the distinction will continue.

In its submission, the Equality Network said:

“the legal rights and responsibilities of civil partnership and marriage are almost identical”.

Can you clarify that for us? Are they identical? Are there some differences?

There are two significant differences at the moment. One is in pension rights, in relation to the survivor’s pension. The other is to do with international recognition. The international recognition regime for civil partnerships is much weaker and is not common across countries that have civil partnerships, whereas it is common for same-sex marriage.

There is another, very important area of legal discrimination, which affects transgender people. Because we have a segregated system of marriage and civil partnership, if someone changes their legal sex because they are transsexual, they have to end their marriage and start a civil partnership. That causes all sorts of difficulties for people.

For us, it is more about practical discrimination and status and stigma. Marriage is perceived by many people as the gold standard for relationships. Even civil partners, when they propose, do not say, “Will you civil partner me?” They say, “Will you marry me?”

People have been quite distressed, for example, when they go to the bank and it does not understand what a civil partnership is or it has a form to fill in that has boxes for marriage but not for civil partnership. That type of thing—practical discrimination against civil partners—is still quite common. We carried out a survey of 103 people in civil partnerships in Scotland, and 58 per cent reported that they had not received the same respect or treatment as married couples for the reasons that I have mentioned.

Respondents have said, for example, that people had said to them, “But it’s not a real marriage, is it?” We have heard of hospitals turning people away as next of kin because the hospital has not understood what civil partnership is. One effect of introducing same-sex marriage will be to make that less likely to happen.

That will change the legal status, but do you think that it will change people’s attitudes? Will they not just talk about real marriage and gay marriage in different terms?

I do not think that they will. Marriage is understood widely, and allowing same-sex couples to enter marriage will not only help them to feel better about themselves, but genuinely reduce the stigma that people feel and the discrimination that they face in society.

John Mason mentioned male and female. Intersex people whose bodies are at variance with what is clearly male or female have contacted us and said that they and their partners are under massive amounts of stress as they are worried that, while same-sex marriage does not exist, their relationships might be challenged. Somebody might say, “Well, your body is not clearly male, therefore your marriage—in which you are the husband and you have a wife—is not legal because you should not be counted as male.” That causes a massive amount of distress. In addition to the detrimental discrimination faced by transgender people and their spouses under the current separate systems, there is also intense worry and distress for intersex people and their partners.

Have you finished your questioning, John?

On that area, yes.

Siobhan McMahon would like to ask some questions.

A number of organisations have stated in their written submissions—and Mr Macfarlane said in his answer to John Mason—that they believe that there are robust protections in the bill. What are those robust protections? Can we have some examples?

We have had a lengthy consultation over the past two years, and the Scottish Government has listened to those who have concerns about protections. The protections in the bill are robust and strong, and the Government has got the balance right between freedom of speech and freedom of religion.

The modifications and amendments that the Scottish Government has asked the UK Government to make with regard to celebrants et cetera are strong, and the Scottish Government should be applauded for listening to those concerns.

What is robust in particular? We are talking about the bill in general terms, but what about the specifics? With regard to the amendments that you mention, the responses to the Scottish Government’s consultation and the equality impact assessment have suggested that, while it is all very well for the Scottish Government to say that it would like to do something, and for people to accept that and wish for it to happen, it might not be the case in practice. What gives you the feeling that it will be the case? Is there something specific?

I understand where you are coming from. I do not think that you are ever going to prevent people from making mischief, and you will never have a cast-iron guarantee that somebody is not going to try to take someone to court at some point, but the protections and the amendments to the Equality Act 2010 are—as I said—robust.

Across Europe, there are nine countries under the jurisdiction of the European Court of Human Rights that have had equal marriage for around 12 years, and not one single religious group in those countries has been forced to carry out same-sex marriage. The protections are strong and robust in our law, and in European and international law.

I agree with Colin Macfarlane that the Scottish Government has done a very good job of drafting the amendments to the 2010 act and getting them agreed by the UK Government. The legislation is now much stronger than the draft that was published last December. The Scottish Government has really listened to the concerns of churches about ensuring, for example, that people who take part in religious services, such as organists and those in the choir, can opt out of same-sex marriages, which they are free to do.

The Government has also listened to concerns about ensuring that people who control religious premises are able to veto any other group that rents those premises conducting a same-sex marriage. Those protections are all there.

The concern that has been raised is about the European Court of Human Rights and the European convention on human rights. However, legal opinion from lawyers who are experts in human rights is very clear that article 9 of the convention, which protects the freedom of religion and the freedom to manifest your religion, protects churches from having to conduct same-sex marriages. If the Scottish Government had written into the bill that churches had to conduct same-sex marriages—clearly it has not, but if it had—those churches would be able to win cases in the European Court of Human Rights because article 9 protects them. So, the domestic protection in the amendment to the Equality Act 2010 is underpinned by the European convention. That means that there is absolutely no prospect of anybody successfully taking a church to court and saying that it must conduct a same-sex marriage. The bill improves religious freedom by giving religious groups freedom to choose. We have always said that that should be the case and we are glad that the bill does that.

I appreciate your answers. However, do you appreciate that it is not just about the ceremony, and that there are wider implications? Do you feel that the protections are robust enough in relation to people who are employed by public bodies?

A relevant case down south is Adrian Smith v the Trafford Housing Trust. Mr Smith posted on his personal Facebook page that he disagreed with same-sex marriage and the trust demoted him because of that. That should not have happened. He went to court and he won his case. The court was very clear that that amounted to unlawful dismissal. The law is already clear that you cannot be subject to a detriment by your employer because you have views against same-sex marriage. We think, therefore, that the protections are already there.

Would anybody else like to comment?

No. I think that that is sufficient.

I have a question for Mr Phillips, who talked a lot about religious protections and religious freedom. Do you believe that the current situation, which is that, as a faith, you are forbidden to perform same-sex marriages, itself represents an infringement of your religious freedom?

We do. We have a number of gay couples in our Quaker meetings who have civil partnerships. From talking to them and working with them we can see that they feel that they have not been given the same opportunity, either by the Society of Friends or by society at large, to sanctify the relationship within the context of the religious community in which they practise. That has become clear to me really only over the past five years or so, since there have been a number of civil partnerships. We can, of course, hold meetings for worship to bless those couples, but there is something rather special about making the declaration itself within the context of religious worship. It is that which they feel singles them out as being different from opposite sex couples and which we have learned to greatly regret.

I thank our witnesses for their submissions, which have been very interesting. I would like to address a series of questions to James Morton regarding his submission and, in particular, his suggested amendments.

The first suggestion is perhaps less technical than the others. It concerns the gender neutrality of the ceremony. Could you comment on that and perhaps cover some aspects that many people—myself included, initially—may have some difficulty grasping?

Many people do not realise that somebody’s legal gender in one country does not automatically get recognised in other countries. You can have a situation in which a transgender woman who has gone through gender reassignment from male to female and has been fully legally recognised in her home country—say, America—is not recognised as female in Scotland, where she would still be legally male in the eyes of UK law. If she saw herself as lesbian and had a female partner and wanted to get married in Scotland, the bill as it stands would require her to declare in front of all the wedding guests that she was the husband. Obviously, that would be a gross violation of dignity and privacy and would cause humiliation and embarrassment on what should be a happy and special day.

08:45

All that would be required to enable her not to have those violations of her dignity and privacy would be to allow the option, when the couple and the religious body that are marrying them both agree, to use gender-neutral language and say, “We pronounce you married” and “We are now married,” rather than say, “You are now husband and wife.” We completely respect the fact that some religions might want to continue always to use the gendered terms “husband” and “wife”—that is fine—but we want religions such as the Quakers and the Unitarians, in addition to the Humanists, to have the option of respecting privacy and dignity and allowing gender-neutral language when somebody is technically entering a mixed-sex marriage but does not perceive themselves as being the gender that is on their legal status.

Thank you. Can you perhaps expand on the so-called spousal veto to the bill?

The spousal veto amendment is needed to remove the ability of a spouse to obstruct for years their partner’s gender recognition. The European Court of Human Rights has recognised that for someone to have their gender identity legally recognised and respected by their Government is a human right. That is a very personal issue and is not something that another person should be able to block.

We want to ensure that the balance is correct. We feel that it is disproportionate to allow a spouse to block the whole gender recognition of their partner, but we recognise that some spouses might feel very strongly that they want the marriage to continue to be seen in the original way and to have the marriage certificate only in the original way as it was originally solemnised.

Our proposed amendment would allow the transgender spouse to receive their gender recognition while remaining married, but without their partner’s consent the marriage would not be re-registered to show the new details. The bill regards a marriage between a trans person and a non-trans person that happens before someone’s gender recognition as a protected marriage. There is therefore no change to the pension rights, parental rights or any aspect of the marriage because the gender recognition of one party is granted. It is recognised that when the marriage was entered into, it was a mixed-sex marriage.

We feel that the proposed amendment would enable a balance between the rights to gender recognition for the trans person, which is their individual human right, and the rights of the non-trans spouse to avoid being given a marriage certificate that reflects new details. Indeed, we feel that our proposed amendment would provide better protection for spouses who do not wish to divorce their transgender partner. They might be against divorce—perhaps for religious reasons—and not want to have any change noted on their marriage certificate, because they feel strongly that how it was originally solemnised is what counts.

My understanding is that the veto applies to the application for gender recognition, but in order to apply for gender recognition, a person would have to have been living as the other gender for two years, during which time we would presumably expect that, if there was an objection, other measures such as divorce would have been carried through. Is that correct?

Yes. In effect, the gender recognition part has less impact on the non-trans spouse than the decision by the trans spouse to come out and start living publicly in their new gender for at least two years. That point, two or more years before the gender recognition, is when they change their driving licence, bank cards, passport, employment records, national health service records—that is all changed—and they live publicly in their new gender. If their partner is profoundly uncomfortable with that and does not wish to remain married to a transgender person who has transitioned, they would have had more than two years in which to start divorce proceedings on the ground of unreasonable behaviour.

Our amendment does not remove any rights for people to divorce their transgender partner. Indeed, the gender recognition has less impact than the original medical treatment and social gender change that have already occurred have.

The transition sounds as though it could be quite an arduous process for people, both bureaucratically and, potentially, emotionally.

Yes. We recognise that it can be profoundly difficult for a spouse to come to terms with their partner’s transition. That is another reason why we think that access to gender recognition should be separated from the issue of whether they continue their marriage. Sometimes, it can take a number of years for people to feel more at ease with the experience and they may want to wait and see how they feel rather than have to make a vast decision in order to allow their partner gender recognition.

In your written submission, there is a suggestion about the reinstatement of rules for securing gender recognition. Can you expand on why that is important in relation to the legislation, please?

Back when the Gender Recognition Act 2004 was introduced, there was a two-year period in which people who had been transitioned for more than six years were allowed to have their gender recognised without having to provide the same level of medical evidence as others. The standard route requires that a person provide not only a letter from their GP detailing what medical treatment they have had for gender reassignment, but a letter from a gender specialist evidencing exactly how they were diagnosed. They can access such a letter only while they are still in touch with that gender specialist, and if someone has been transitioned for more than six years they will be out of the system and will no longer be attending a gender identity clinic. Therefore, they will have to try to re-enter the system, in which it currently takes between one and two years to get a first appointment. They will also be taking up a space that could otherwise go to somebody in greater need simply in order to get rediagnosed for the purposes of proof for the gender recognition panel.

We propose that the long-term transitions route be reopened in recognition of the fact that some people could not access it the first time round because they did not want to divorce or because they disagreed with the discriminatory requirement for other people to divorce and felt that, on principle, they should not take advantage of a system that their fellow trans people could not access. We feel that that would be of benefit not only to transgender people but to the gender recognition panel because, when there is a difficulty in gathering evidence, that makes the process of trying to help an individual to get through the gender recognition process more time consuming for the panel. We feel that it would be to the benefit of all to reinstate that option and to require people who have been transitioned for more than six years to provide only a GP letter evidencing their medical treatment, to enable them to have their gender recognised on that ground.

Can I follow that up before you move on? I seek some clarification. Are you referring to that process being put in place for people who were eligible for it originally because of the period for which they had been transitioned rather than that route being reopened retrospectively for all people?

We think that it would be best simply to reopen the route and not try to define exactly who would be eligible for it. The UK Government has tried to effect a restricted opening of it, but it seems not to have got the grouping quite right. It is hard to select exactly the right people, and we think that there are other reasons why people might need to use the long-term transitions route. For example, if they live in a rural Highland area they might not yet even have heard of the Gender Recognition Act 2004. It can take a long time for people who have been long-term transitioned and are no longer in contact with any transgender groups—people who are now just living their lives—to find out about their rights and be able to access things. We feel that it would be fairest simply to open the route for anybody who has been transitioned for more than six years.

Are statistics available on how many people used the route when it was open for two years? Could you provide that information in writing later if you do not have it to hand?

Yes. I would need to ask the gender recognition panel to provide those statistics, but we can collect them and pass them on.

My final question relates to the current requirement that a person be at least 18 years to secure a gender recognition certificate. Given that some people might see your suggestion of lowering the age limit to 16 as controversial, would you like to explain why you think such a move is appropriate?

Transgender people aged 16 or 17 will remain discriminated against under the bill as drafted: because they are unable to legally change their gender, they will be unable to access a marriage or civil partnership as they identify.

Making the age at which someone can get a gender recognition certificate equal to the age at which they can undertake the life-changing decision to marry and found a family would not in any way encourage more people to transition or encourage people to transition at a younger age. After all, this is not about the start point of a transition but about recognising the end point; it is not about access to medical treatment but about recognising the small but significant number of transgender people whose identity as the other gender is so profound and so known to them from a young age that with parental support they have been living in the other gender throughout their teenage years. Only with parental support could they have changed their school and NHS records and their name and therefore be able to evidence their readiness for a gender recognition certificate at the age of 16.

Without that certificate, those people will, for example, be unable to get married in the church that they wish to get married in. After all, although the Church of Scotland regularly marries transgender people and their spouses, the minister in question might not perform same-sex marriages. As a result, 16 and 17-year-old transgender people are being discriminated against.

In answer to your question, we do not think that our proposal, which enables people to make various decisions about their lives at the age at which Scotland recognises their legal capacity to do so—in other words, 16—is controversial.

You mentioned the phrase “parental support” twice in your response. Is that pivotal to this process?

Yes. To transition at a young age, you need your parents’ support as well as the support of a child and adolescent psychiatrist who specialises in gender identity issues. A young person cannot simply make and go forward with such a decision on their own. They will be very carefully assessed; indeed, they would have been able to change their name and school and NHS records—which is required to be done at least two years before any gender recognition certificate is issued—only if they had been well supported.

Thank you. I am grateful for that response.

Young people are aware of their gender identity far earlier than they are aware of their sexual orientation.

We work with a number of trans young people who began their transition long before the age of 16. When we consulted the trans young people in our service, we found that a large number of them were very upset by the fact that at 16 they could leave education, get a job or get married but could not legally have their gender recognised. For them, there was a very large disconnect in that respect. In fact, on this very issue, a young person told us:

“I’m currently 17 and am going away to college next year. I would much prefer to have myself as male on the official records, but they need to have my ‘real’ details on the system.”

In our consultation, we also asked young people whether the age at which they could get a GRC, which is 18 at the moment, had stopped any of them from entering into a marriage, and several young people told us that they had delayed marriage in order to receive their GRC. If the bill as drafted is passed, someone who enters into a marriage when they are 16 would have to wait until 18 to get their GRC and then would have to re-register their marriage afterwards. If the bill does not pass, they will not have the option.

One young person said:

“I’m 18 and am currently engaged. My partner and I have been engaged for approximately a year and a half now and we were both very keen to be legally married and had planned to do so the summer following our engagement. However, as the age of GRC is 18 and at the time we were 17, we couldn’t get married... [Changing the age of GRC to 16] would have made a huge difference, my partner and I could have been married when we had originally planned.”

They could then have begun their lives together.

I would be interested in a religious perspective on gender transition and how you view it within your congregations, Mr Phillips. You are sitting quietly, but you get a question; you are not getting away with it.

09:00

In the Society of Friends, we see God within each individual person. We would look at each couple individually and try to think what the right approach is for that couple. We would help them with marriage preparation and relationship preparation irrespective of their gender or sexuality. The question has not arisen, and I cannot imagine it giving us a problem.

To a great extent, we have covered the witnesses’ perception of the difference between civil partnerships and marriage. In what way has the attitude towards civil partnerships changed since they were introduced? At the time, their introduction was welcomed and, now, organisations are looking for more. Will the witnesses explain that change?

I looked back through meetings that we had with the committee in the past and discovered that we gave evidence almost exactly 10 years ago—in October 2003—about exactly that question because the committee was taking evidence on the Scottish Government’s consultation about introducing civil partnerships.

We said then that civil partnerships were the right measure to introduce and that they would be of huge benefit to same-sex couples because they would allow such couples to have a legally recognised relationship for the first time and would give them the legal protections of that. However, we also said that it was not equality—that it would be a separate but equal system—and that, in the medium term, the only thing that would be true equality would be to open up marriage to same-sex couples and to open up civil partnerships to mixed-sex couples, because the two are different and the same choices should be available to couples regardless of gender.

We also said in 2003 that it would take several years for there to be a public discussion with politicians about opening up marriage to same-sex couples. That was 10 years ago. Those several years and more have now passed. There has been wide discussion publicly and within the Parliament about opening up same-sex marriage for four years. That is why we are now in a different situation from 10 years ago. Ten years ago, it was not time for same-sex marriage; now, it is time.

To go back to the points that I made earlier, the issue is the distinction in how society views gay people. Tim Hopkins is right that, 10 years ago, we thought that civil partnerships would erode some of those distinctions and that the public discourse on how society views gay people would shift and change. However, I go back to the hard evidence that I showed you about 216,000 people having seen homophobic bullying in the workplace. Children in our schools are still suffering some form of homophobic abuse.

The distinction has not shifted, and gay people have come to the view that, until they are seen as equal in the eyes of the law, which the bill would achieve—it would cement legality in the eyes of the law; it would confer on gay people the same rights and responsibilities that their straight friends and family have—that distinction will not be eroded.

That is why the bill is important for shifting the distinction. We are firmly of the view that it would be the vehicle to change perception in society. Tim Hopkins is absolutely right that it is about how gay people are seen in society and how that discourse happens in society. Until gay people are seen as equal in the eyes of the law, the distinction will remain and not be eroded.

How does that reconcile with the opt-in approach in the bill, whereby any religious organisation that wishes will be able not to opt in and, therefore, continue with its practice? In 10 years’ time, will you be coming back and saying that the situation has evolved and those organisations should be required to opt in?

The opt-in is right and the balance in the bill is right. It is not for any of us on the panel to tell a religious organisation what it should do. It is for the religious organisation to come to that conclusion itself through discussion and prayer. I cannot envisage a time when we would ask any organisation that still did not want to carry out same-sex marriage to do so. The bill has the right balance on freedom of speech and freedom of religion.

What is also brilliant about the bill is that it allows organisations that wish to allow same-sex marriage the opportunity to do so. It is not right for one religion to tell another religion whether it should be allowed to carry out same-sex marriage. The opt-in system is absolutely right. That permissive system gets it right, and the Scottish Government should be applauded for that.

I agree with that. One thing that has changed in the past 10 years is that a number of religious organisations, including the Quakers in 2009, have decided that they want to conduct same-sex marriages. You asked what things would be like 10 years from now. Possibly some of the other churches will have decided in 10 years’ time that they want to conduct same-sex marriages. As Colin Macfarlane says, that has to be a decision taken by the churches within the churches. We can rest assured that that is the way that things will go.

Let us consider one other area of sex discrimination law. The laws have now been in place for about 40 years, and discrimination on grounds of sex is not allowed, but it is allowed for religious bodies. The Roman Catholic Church, for example, is allowed to employ only men as priests. Over those 40 years, there have been no moves to try to force the Roman Catholic Church through the courts to employ women as priests. Everybody understands that it is up to each individual church to decide whether or not they want to open up their ministry to women, and those decisions are rightly made within the church.

Some people have said that this bill provides a balance between equality on grounds of sexual orientation and better equality on grounds of gender identity, balanced against religious freedom. That is the wrong way to look at it. It is not a balance of those two things against each other; the bill promotes both at the same time. It increases sexual orientation equality and it increases freedom by allowing religious bodies such as that of John Phillips to conduct same-sex marriage while completely protecting the rights of religious bodies that do not want to conduct same-sex marriages not to do so.

This is not meant as an inflammatory comment, but I seek a bit of clarification. On civil partnerships, you said in your answer to Marco Biagi that it was not time for same-sex marriage 10 years ago, but it is now. Yet, in submissions that we have received, equal marriage is seen as being the same as the civil rights movement—the two have been equated by some people. We would not have said at any point that it was not time to have equal rights for those of different races, so I am wondering about that point. Could you expand on why it was not time then? If it is about equality, surely it is always time to do what is right.

That may relate to the way that we work as an organisation. We try to work in a consensual way, and we try not to work in an embattled way, which would set us up against other organisations. Ten years ago, we recognised that same-sex marriage was quite contentious. In 2002, when we developed the policy, only one country in the world—the Netherlands—had same-sex marriage, and a lot of countries had civil partnership. Now, all the countries surrounding us in western Europe apart from Ireland already have same-sex marriage, and the Irish Government is working on it. The whole context has moved on.

Public opinion has also moved on. Back in 2002, the Scottish social attitudes survey found that 41 per cent of Scots were in favour of same-sex marriage. By 2006, that had risen to 53 per cent. By 2010, it had risen to 61 per cent of Scots in favour of same-sex marriage, with only 19 per cent against. We try to work in a consensual way.

The other factor is that, when the Parliament was set up 14 years ago, there was quite a long list of legislation that discriminated against gay people and LGBT people and against same-sex couples. For example, there was a different age of consent for sex between men; there was section 28, which needed to be repealed; there was no recognition in law of cohabiting same-sex couples; adoption and fostering were not available to same-sex couples; sex offences law discriminated against same-sex couples; and there was no hate-crime legislation. It was a long list. We have been addressing those issues and, to the credit of the Parliament, it has been dealing with them one by one.

This is the last one. In terms of sexual orientation equality, this is the last big area where the law still discriminates against LGB people. If the Parliament passes the bill, which we hope it will, it can be very proud of the way in which the situation has been turned around in the past 14 years, and the very substantial discrimination that LGB people felt and faced 14 years ago will finally have been eradicated from the law.

I have a question on the points made by Mr Macfarlane. You mentioned the living together report and workplace bullying. I am more familiar with the living together report. You equate people who have said that we should tackle homophobic behaviour in schools with people of faith who also hold that view. However, people who support tackling such behaviour through action in schools may not support equal marriage. Do you see that those are two separate matters?

Do you mean in terms of teachers or—

No, I am referring to the general public. Of course people want to tackle homophobia and bullying in schools—your report says that 92 per cent people of faith stated that schools should tackle that. However, those same people may not necessarily support equal marriage. Do you see that in your studies?

Let me be clear: people who do not agree with equal marriage do not necessarily agree with discrimination against LGBT people. Just because a person does not believe in equal marriage, that does not make them, for example, homophobic. We have always said that and been clear about that distinction.

There is a related issue. If people say that LGBT issues should be discussed in our school classrooms, that is how we should tackle homophobic abuse. We clearly believe that people of faith believe that too, which is shown by the 92 per cent figure that you referred to.

We are not saying that supporting moves to eradicate discrimination against LGBT people is incompatible with a view not to support equal marriage. We would never say that a person must support equal marriage and that, by doing so, they are therefore in favour of eradicating discrimination against people in schools. There will be people of faith who clearly think that any discrimination against LGBT people is wrong but whose faith says to them that they should not believe in equal marriage. That does not mean that they are homophobic in any way, shape or form.

I will follow up Marco Biagi’s point about the movement of attitudes over time. Mr Hopkins mentioned adoption. That is an example of an approach that was permissive to begin with and which has then become compulsory. I think that the original suggestion was that adoption agencies should be able to place children with same sex couples, and assurances were given that agencies that did not agree with that approach could operate in their own way and refer on such matters to other agencies. However, over time, that has changed, and agencies are now compelled to place children with same-sex couples or they will lose their charitable status. That is a fear. Do you recognise the concern that, by permitting same-sex marriage, it will then become compulsory?

I recognise that the adoption agency issue has been raised. The situation is not quite as you have described it. In 2007, two pieces of legislation were dealt with at the same time. The Scottish Parliament dealt with legislation to allow same-sex couples to apply jointly to be adoptive parents, because that is a devolved matter. What the law says about bodies that provide public services with public money and discriminate on religion, sexual orientation or any other ground is a reserved matter. As such, that issue was dealt with down in London at Westminster, which passed the Equality Act (Sexual Orientation) Regulations 2007.

Westminster debated carefully the specific issue of adoption agencies and whether it was valid for adoption agencies to simply turn away all same-sex couples. Both Houses of Parliament concluded that they should not do that because adoption agencies use taxpayers’ money to provide services. For example, councils pay adoption agencies to match up prospective adoptive parents with children. Westminster’s view, which I agree with, is that where public services are being supplied and being paid for by public money—we all pay our taxes, whether we are heterosexual, lesbian, gay or bisexual—those public services should be made available to everybody. That is why adoption agencies are required to allow same-sex couples to apply to adopt. There is no right to adopt; anyone who applies is put through a stringent vetting process before they are accepted as adoptive parents.

09:15

If you look at the stage 3 debate in the Scottish Parliament on the Adoption and Children (Scotland) Bill, you will see that the Scottish Executive specifically referred to the fact that it was the Westminster legislation that was then under consideration that would determine whether it would be valid for adoption agencies simply to turn away all same-sex couples. In fact, the situation has not changed since that legislation came into effect.

I say that with one proviso. The Westminster legislation on adoption agencies, which said that there should be no discrimination, came into effect in April 2007, but because some of the religion-affiliated adoption agencies had said, “We need time to adjust to this”, the Westminster Parliament agreed to allow a period of 20 months for them to make that adjustment. The rule that adoption agencies should not discriminate therefore actually came into effect at the end of 2008. The adoption legislation in Scotland that allowed same-sex couples to adopt did not come into effect until—I think—2009, so the rule applying to adoption agencies was already in place before it even became possible in Scotland for same-sex couples to adopt. Things have not changed since that legislation—

The distinction that you are making is that adoption is a public service and it is paid for by the public, whereas marriage is a public service but it is not paid for by the public.

No. I would not call marriage a public service. As far as marriage that is done by religious bodies is concerned, it is a religious function—it is a sacrament as far as some churches are concerned.

Surely it is a public service. It is part of the legal system.

It is recognised in law, but it is clearly a religious function. In fact, the amendments to the Equality Act 2010 that are going to be made if and when the bill is passed make it clear that it is a religious function of churches.

Thank you. I ask Christian Allard to ask his questions.

I thank the witnesses for coming. Tim Hopkins has talked a lot about what has happened in other countries and down south. Will the other members of the panel tell us more about what they think about the bill?

If we compare Scotland with other countries, we know that the consultation started in 2011, and a lot of things have happened in the past two years. I would like to hear your views on what has happened in other countries and what the consequences of the bill will be in Scotland. In particular, on a more technical point, I would love to know your views on the issue of marriage for couples who have a foreign civil partnership but wish to marry in Scotland.

I will deal first with what we expect the bill’s effect to be. About 500 couples per year enter civil partnerships in Scotland, and the consultation that we have done with LGBT people suggests that the majority of those will choose a same-sex marriage rather than a civil partnership. Those are the numbers that we are talking about. We also expect—we hope, in fact—that a fair number of foreign same-sex couples will come to Scotland to marry. Just under a quarter of all marriages in Scotland are between people who do not reside here. They are called tourist marriages. That helps the Scottish economy, and we hope that that will be the case with same-sex marriages as well.

Anybody can come here from any country in the world and get married, so that will be the case with same-sex marriages as well. It does not matter whether the home country recognises same-sex marriage. There is, however, an anomaly in the bill, and it relates to the changing of civil partnership into marriage—you asked about that.

Under the bill, a couple can change their civil partnership into a marriage in two ways. The first is an administrative route whereby they apply to the registrar and say, “Please change my registration from civil partnership to marriage.” That is available only for people who registered their civil partnership in Scotland, for obvious reasons, because the registration to be changed is there on the record.

The other way in which a couple can change their civil partnership to a marriage under the bill is simply to marry in the normal way. At the moment, the bill says that they can do that only if their civil partnership was registered in Scotland. That is causing real problems for a small number of people.

We were contacted by a couple, one of whom is American and the other is a British citizen. They lived for a while in New Jersey, and while they were there they entered a civil partnership. They have now moved back to this country and are living here permanently. They are recognised as being in a civil partnership. They would like to change that to a marriage when the bill is passed. Had they registered their civil partnership here, they would be able to do that, but because their civil partnership is registered in New Jersey, under the bill as it stands they will be unable to get married in Scotland.

To marry, the couple would first have to dissolve their civil partnership, as that is the only way that they would be able to marry. The problem is that, in order to dissolve the partnership, they would have to show that it had irretrievably broken down: the same rule as for a divorce. Of course, their civil partnership has not broken down, so the only way that they could dissolve it would be to live apart for a year.

We have, therefore, a couple who are in a civil partnership and want to change it to a marriage, which the bill would allow if they had registered their civil partnership in Scotland. However, because they registered the civil partnership in New Jersey, they would, if they wanted to get married, have to split up for a year, which is a nonsense.

Only a small number of people are affected by that issue, but they are real people who have registered a civil partnership abroad and who, under the bill as it is currently drafted, will in effect be barred from entering a same-sex marriage. We think that a small change should be made to the bill to extend the part that allows people to get married in Scotland if they are already in a civil partnership to cover civil partnerships that are registered anywhere.

There is a particular issue for transgender people in that regard. If people are not able to convert their civil partnership that was registered in a foreign country into a marriage, they will not be able to get gender recognition without the state inhumanely forcing them to end their civil partnership, with all the trauma that exists around that. The people who are living in Scotland in a foreign civil partnership would remain the only couples for whom the inhumane divorce requirement would still apply after the bill. That would have a particular discriminatory effect on transgender couples in that situation.

If the couple were to split up for the required period of a year, and something happened to either of the partners, they would not be entitled to any of the inheritance relating to the other person. Is that correct?

During that year they would, because they would still be in a civil partnership. The year is in effect a waiting time for them to get their dissolution of a civil partnership, as is the case with divorce.

The problem arises in the period between when they get the dissolution and when they enter their same-sex marriage, which might be a few weeks later. For that period of time, they do not have protections because they are regarded in law as unmarried. You are therefore quite right to identify that there is a practical problem in that regard, and it applies during that period.

There are also issues with regard to immigration status. In order to ensure that people can live in Scotland with their partner, the immigration services would need to be satisfied that they are truly a couple. All the business of having to split up and get back together could easily result in immigration services being less than convinced that everything is above board.

There is also the human factor: the very fact that two people who are in a loving, committed and stable relationship would have to split for a year. That is particularly cruel. Our view is that, although only a small number of people will be affected, they are—as Tim Hopkins said—real people. The bill should be amended, and that could be done very simply. We agree with the principles that Tim has set out.

Are you finished, Christian?

No—I would like to bring in some of the other panel members on the question of anticipated demand for the religious and belief registration of civil partnership if and when same-sex marriage becomes available.

I am sorry; I did not quite follow the question, but I understand that you want clarification about when we would introduce those—

No—I just want to project into the future. With regard to Tim Hopkins’s answer about what will happen if the bill is passed, do you think that there will be a much lower demand for registration of civil partnerships, and a much higher demand for same-sex marriage?

Thank you. I understand. I would not want you to get the impression that the Society of Friends was not delighted with civil partnership legislation when it was introduced. We saw it as a significant and important step forward in equality. It is only through experience that we have learned, and really begun to appreciate, that same-sex couples feel that it makes them different in a way that we are unhappy about. We wish for inclusivity.

We very much want to opt in to being allowed to conduct same-sex marriages, and we are convinced that when we have done so there will not really be any demand among our congregations for civil partnerships, because we know that marriage is what they have been seeking.

Nevertheless, we applaud the steps on equality generally that the measures that the Scottish Parliament has introduced will take, because they will give everybody all options. That seems to us to be right, although I do not think that it will apply in our case.

The LGBT national youth council has campaigned on equal marriage since 2009. Under its concept is the idea of opening up marriage and civil partnerships to all couples; the focus should be on adding not just same-sex marriage but civil partnerships for mixed-sex couples, particularly given some of the issues that we have talked about. Bisexual couples and trans people who do not want to pursue a GRC are limited by their birth sex, for instance, to having one sort of relationship or another.

People also feel that it is a matter of equality that couples cannot choose between marriage and civil partnership. Some couples would rather have a marriage to recognise their relationship in relation to society and other couples would prefer a civil partnership. For LGBT young people, same-sex marriages as well as mixed-sex civil partnerships are important issues of equality.

I take that point, but when Sweden and Denmark legalised same-sex marriage, their experience was that their equivalent of the civil partnership became redundant. Those countries ceased to offer that option to new entrants—I am not sure whether “entrants” is the right word, but you know what I mean. That arose from the view that the civil partnership was created purely as a compromise to avoid providing equal marriage and had become useless. If marriage is equalised, why will there be a need to continue with civil partnerships?

We consulted LGBT young people in seven youth groups and we consulted two schools on the draft bill. We asked them several questions about education issues as well as about mixed-sex civil partnerships. We asked how they would be affected if mixed-sex civil partnerships were not introduced. I do not have the quotations, which I can send after the meeting, but a sizeable number of responses showed that young people would in that case not have a relationship status that represented their ideals. Some do not want to identify with marriage, which has thus far excluded them; they would rather choose another option. Others feel that, even if they were to choose not a civil partnership but marriage, it would be unfair that some couples could choose marriage or a civil partnership while others could not choose a civil partnership. For them, it is about opening up all options.

I accept that it is unfair for one couple to be offered marriage while another is offered marriage or a civil partnership, but why should the civil partnership need to be offered to both rather than to neither?

Some of the young people whom we spoke to would prefer a civil partnership; they would choose that when they reached the age to do so.

I will move away from mixed-sex civil partnerships for a moment. The bill will allow the celebration of religious or belief civil partnerships. We agree with that, primarily because some LGBT people of faith do not necessarily want to marry, for whatever reason, so they want to have the option of a civil partnership.

We do not know yet what the bill’s effect on civil partnerships will be. The Scottish Government has announced a review of civil partnerships, which is a pragmatic and sensible policy decision. Until we have hard evidence on what might happen to civil partnerships, it is a good thing that civil partnerships will be open to religious and belief blessings. We do not know yet what the evidence will be; we should wait for the Scottish Government’s review and we look forward to seeing what it produces.

Marco Biagi mentioned a couple of Scandinavian countries that abolished civil partnerships for “new entrants”, as he put it, when same-sex marriage was introduced. That is one way to go, but a number of other countries—including France, Belgium, the Netherlands, New Zealand and South Africa—chose to retain civil partnerships alongside marriage when marriage was opened to same-sex couples.

In the Netherlands, the situation is quite similar to what we would like to see here: civil partnership and marriage are both available and have similar legal effects, but they are different and they are seen to be different. If you look at the stats in the Netherlands, about one quarter of same-sex couples choose civil partnership rather than marriage and three quarters choose marriage. About 90 per cent of mixed-sex couples choose marriage, but 10 per cent choose civil partnership.

09:30

Our surveys of LGBT people in this country have found similar proportions for same-sex couples. About one quarter of same-sex couples who are not currently in a civil partnership have said to us that in the future, they would like a civil partnership and not a marriage, for the kinds of reasons that have already been touched on, whereas three quarters would prefer a marriage.

Countries including Sweden have abolished civil partnership; I wonder to what extent LGBT communities in Sweden wanted that to happen. Clearly, it was a decision of the Swedish Parliament. I would guess that had civil partnership been retained in Sweden, you would find a similar minority of people wanting to enter a civil partnership.

It is simply about maximising choices for everybody. Ideally, we would have liked to see mixed-sex civil partnership in the bill, but there is a lot in the bill already and there needs to be consultation and discussion about the future of civil partnership. Should it be opened up to all couples, regardless of gender, or should it be got rid of, as happened in Sweden?

We very much welcome the Scottish Government’s review that was announced in June. We think it important that that review start soon. It has taken two years to get to the bill from when the consultation on same-sex marriage started. We very much hope that in two years some of us might be back here talking about legislation that would open up civil partnership to couples of any gender.

As regards protection for those who disagree, the Equality Network submission seems to agree with the Government’s plan that people on the periphery of marriage, such as chauffeurs and photographers, should not have the freedom to choose not to take part in a same-sex marriage. Is that not just moving the discrimination away from the LGBT community on to the religious community?

The situation will not change at all. Wedding photographers are already required by law not to discriminate against civil partnerships so it is already the case that a commercial organisation that is selling photography services must not discriminate on grounds of religion, gender, race, disability or sexual orientation, which means that it must provide its services for civil partnerships, so—

The fact that it is law does not mean that we all agree with it, though.

I accept that there will be differences of opinion about that, but my point is that the law is not changing.

We think that the Government has got it right because we think that there is a difference, as I said before, between the operation of religious bodies, including the provision of all kinds of religious services by religious bodies, and the provision of commercial services or employment by somebody who has a personal religious belief.

We do not think that it is appropriate to allow somebody’s personal religious or philosophical beliefs to give them an opt-out from antidiscrimination legislation as an employer, for example, or as a commercial business selling services to the public. Where would that end? If somebody has a philosophical belief that is strongly against mixed-race marriages, are we saying that that person should be able to refuse to supply services to people who are entering a mixed-race marriage? Are we saying that public servants such as the people who empty my rubbish bins, for example, will be allowed to say, “Well, I strongly disagree with same-sex marriage, therefore I don’t want to empty the rubbish bins of people who are in same-sex marriages.” I do not want to sound flippant, but the law says that such sexual orientation discrimination should not happen.

We are very clear that where a business is supplying commercial services to the public, where public services are provided to the public using taxpayers’ money, and where non-religious employers are employing people, every member of the public and every employee should be treated with respect. I believe that the large majority of people would not have a problem with that. I may have a religious or philosophical objection to a number of things, but that does not mean that I will treat my colleagues at work, or the people to whom I would sell food if I were running a food stall with disrespect and refuse to serve them.

There are two things there: one is respect and one is refusal to serve. I do not accept that the two are necessarily the same, but we can leave that, just now.

What about the model that we have in the NHS for abortion, which is, similarly, a very controversial subject? It is specified in legislation that there is protection for people who do not want to take part in abortions. That is relevant because it has been used in court cases quite recently. Is not that a good model of a kind of pluralistic society in which the public sector pays but services can be provided in different ways to fit in with both the employees and the public?

I do not think that same-sex marriage can be compared to abortion. You are, of course, quite right that there is a conscientious objection route for people who work in the health service who disagree with abortion. There is also a similar route for people who have a conscientious objection to fighting in the armed services in wars. Why are those routes provided? For abortion, it is because if a person has particular religious beliefs about it and is asked to be involved in one, that person would believe that they were being asked to be involved in murder. The same is true for people who have a conscientious objection to fighting in the armed services during war. Those opt-outs exist so that people are not required to be involved in committing what would be murder, according to their own beliefs.

That is very different from asking a civil registrar to sign off on a civil same-sex marriage. Civil marriage ceremonies are not allowed to include any religious content, so religion does not come into it at all. The registrar is simply there to conduct a completely secular ceremony and then to sign the piece of paper to acknowledge that the couple have said their vows and signed up and that their witnesses have signed as well. Asking somebody to do that is not comparable to asking somebody to commit what they believe is murder.

We think that it is quite reasonable to say that civil registrars should be expected to sign off on same-sex marriages. Similarly, a civil registrar who holds Roman Catholic beliefs against divorce and believes that divorce is wrong is not allowed to refuse to marry divorced people. We say that civil marriage is an entirely secular, non-religious function and that civil registrars should provide that function to all couples regardless of their personal beliefs about those couples’ lifestyles.

I will bring in Colin Macfarlane very briefly, then I have one final question to be asked.

I agree with Tim Hopkins. I think that most gay people listening to the comparison of gay people’s long-term committed loving relationships with abortion would be really hurt and disappointed by that.

I reiterate what Tim said, which is that registrars perform a public service that is paid for by the public purse, and LGBT people pay their taxes in the same way as everybody else. They deserve and expect exactly the same standard of service as everybody else, be it good or bad. Tim is right that providing an opt-out is a Pandora’s box, because as soon as you have an opt-out in one area, for example same-sex marriage, you can then start having questions around opt-outs for people who have issues around mixed-faith marriage or mixed-race marriage and, as Tim also clearly stated, for people who might have objections to divorce. The fact is this: registrars provide a public service that is paid for by the public purse and everybody, including gay people, deserves exactly the same standard and level of service.

Thank you very much. I will move on to Jim Eadie. I ask everyone who is going to be answering the questions to keep it short because we are now running out of time. Thank you.

I will be very brief, convener. Thank you for the opportunity to attend the meeting and to participate in it. I thank the witnesses for their evidence, which I think has been incredibly enlightening.

I want to clarify the importance of the legislation for ensuring transgender equality. That point has been made very forcefully this morning. In answer to questions from Mr Biagi and Mr Finnie, Mr Morton took us through the specifics and talked about the spousal veto, gender-recognition certificates and the evidence requirements for people transitioning to a new gender over quite an extended period of six years and more. He then talked about the age of application to the gender-recognition panel.

Notwithstanding those concerns and the further modifications to the bill that you seek, are you largely satisfied with the bill’s provision for an administrative procedure that would allow marriage certificates to be updated to reflect someone’s new gender without there being a new marriage ceremony? Will you tell us why that is so important?

Yes. It is important to transgender people and their partners who want an updated marriage certificate following gender recognition that they will not be required to go through a ceremony. Their marriage is continuing—it is not a new marriage. The fact that it has continued throughout the difficult experience of one party transitioning is of prime importance to them. It would be deeply offensive to them were we to require them to go through a ceremony. The whole point of removing the requirement to divorce for gender recognition is about recognising the continuance of those marriages and the right for those marriages to continue. It is very important to transgender people to have an administrative function to update the certificate.

From a transgender perspective, civil partnerships were never satisfactory; they never removed the problems with the lack of same-sex marriage. From the start of the work to try to achieve gender recognition, and the Gender Recognition Act 2004, transgender people were always of the view that their marriages must be able to continue and that the new gender status of one party should not matter. What counts is the fact that a commitment for life was made in the marriage. We are very pleased that the bill recognises that.

We hope that the committee will take time to look in detail at the transgender amendments. During the consultation on the draft bill, the transgender parts were still being finalised. Those improvements are still needed. They are not yet as refined as the changes to the Equality Act 2010 and so on.

Are there any other comments before I suspend the meeting?

There is one issue, convener, that is referred to in the last couple of pages of our written submission. We had identified what we think are three slight technical errors or omissions in the bill. They are not matters of policy; they are simply about the wording in the bill being—we think—not quite right. If the committee thinks that it is appropriate, I would be grateful if it would ask the Scottish Government whether they could be put right.

Thank you.

I will be brief. My point is about education. We spoke about registrars providing a public service. Teachers also provide a public service. According to the General Teaching Council for Scotland’s code of professionalism and conduct, teachers need to be committed to social justice and inclusion, which includes social justice for all young people in education. They need to recognise the legislation in the country and the commitment to inclusion that includes LGBT young people in education.

Articles 12 and 13 of the United Nations Convention on the Rights of the Child say that young people have a right to a say in decisions that affect them and a right to receive information that is relevant to them. That is key because we know that when LGBT young people do not see themselves in the curriculum they feel excluded and that they cannot achieve. They are also much more likely to experience homophobic, biphobic and transphobic bullying.

Getting it right for every child promotes all of the indicators, but it especially promotes safe, healthy and responsible individuals when there is, in education, inclusion of all identities in society.

On that point from Brandi Lee Lough Dennell about education, at Stonewall Scotland we work with hundreds of schools and hundreds of teachers. Not one teacher has raised a concern with us about discussing same-sex marriage in the classroom. However, many of those teachers have been worried about some of the debate around marriage in education, such as talk about opt-outs and conscience clauses. They are very worried that we will see a return to the days of section 2A in our classrooms and are clear that they do not want a return to those days. I would say that probably no member of the committee would want to return to the days when same-sex issues and relationships could not be discussed in our classrooms, because that caused so much hurt and harm to so many people.

Thank you all for coming along to give evidence.

09:45 Meeting suspended.

10:00 On resuming—

I welcome our second panel of witnesses. [Interruption.] I was just waiting for someone, who I think has just walked through the door. I invite you all to introduce yourselves.

I am from the Muslim Council of Scotland.

I am the head of the Methodist Church of Scotland—in my first week in post. I am here to represent the Methodist Church in Britain.

I am from the Catholic Parliamentary Office, which is an agency of the Catholic Bishops’ Conference of Scotland.

I work for the Evangelical Alliance in Scotland as its public policy officer.

Thank you. I should say that the Parliament’s photographer is here and will take some photographs.

I invite members to ask questions. Please indicate if you want to respond, so that I can include you in the conversation.

I have read the bill and the submissions that we have received, and it is clear that the organisations or groups of organisations that you represent are offered protection from the proposed legislation—in effect, you would have to opt in. Why are you worried about the bill?

We are more worried about the principle than we are about the protection. I mean the principle of marriage and what it has meant throughout the history of mankind, as something for the creation of a family, and the importance of the family being based on the complementarity of the male and female, father and mother. In fact, I think that the whole physical world is based on that polarity, from atoms and cells to human beings. That principle is the basis of our main objection to the bill.

We collected evidence about the protections that the bill offers from many sources, all of which suggest that the protections might not be sustainable when a case is taken further, for example to a higher court such as the European Court of Human Rights. We have had experience of that. However, it is the principle—changing the whole history of marriage—that is worrying us.

The bill talks about changing the text of Scots law and so on to accommodate the change that the bill will make. Are we going to do that for all the documents in history that faith groups or nations have, so that when we read a document we will understand that what is meant by marriage is what was meant at the time and not what will be meant? Of course, if we adopt the approach in the bill, the next thing will be that people will not distinguish between the two, so we will get a completely different picture of what was said and recommended at other times, according to the new, different definition. It will be like changing the interpretation of everything in our heritage.

Salah Beltagui makes the point that the principle is the bigger question but, on the opt-in and the protections, although those are fair enough and the earlier panel was right that there are substantial protections around the celebration of the ceremony of a marriage, I do not think that they are fully robust. The earlier panel did not get to the crux of the matter, which is that a religious celebrant provides a public service, so there will be avenues through which those protections could be challenged further down the line. I believe that that has happened in Denmark, where a church has been told that it must provide religious celebrants. I think that there will be a challenge on that issue.

The broader issue is that there is a fundamental philosophical clash of opinions. There is a view that marriage is just a loving relationship between any two people who have committed themselves to each other, and then there is the traditional view, which is upheld by the Catholic Church, most of Christianity throughout time and most of western civilisation, that marriage centres around the fact that we create an environment to ensure that children have parents. That is the fundamental difference, and our grave concern is that, if we change the law as proposed, we will obscure that particular understanding.

So the bill will not satisfy everyone. There was talk earlier that the bill gives everyone the right option, but it does not. The issue is about how all of society, and not just religions, understand marriage. Is marriage about protecting children and ensuring that their parents are bound together so that they are there to bring up the children, or is it just a relationship that is a form of friendship? We believe that it is the former. We think that, for the common good of society, and particularly for children, we need to state that as a society and to protect it. That is about to be lost.

Do you have any quantitative evidence that it is the perception of the majority of people in Scotland that marriage should be for the purposes of procreation? After all, we have evidence from the Scottish social attitudes survey that the majority of people believe that same-sex marriage should be acceptable, so it seems hard for those two points to be squared.

The biggest survey and the most profound probing of public opinion was the Government’s consultation on the proposals, to which it received 77,000 responses. That was way greater than any other survey, which would typically involve 1,000 people. The consultation engaged people who really thought about the issue. We are in a live-and-let-live society—I have that approach myself—in which, if people want something, by all means we let them have it as long as it does not impact on the rest of society. Of the 77,000 people in Scotland who responded, 64 per cent said that same-sex marriage should not be approved and that we should not redefine marriage. So there is quantitative evidence on our side.

More broadly, the consequences have not been thought through. The issue is often an emotive one and we do not want people to have hurt feelings. There is often a focus on the fact that people feel hurt, embarrassed or humiliated because their relationship is not given a particular status. We believe that we have to have a rational basis for marriage. There are lots of friendships and they should always be valued. Every friendship should be valued in society, but why does the state take an interest in a particular relationship between a man and a woman? Fundamentally, we believe that it is because of the procreative capacity of that relationship. That is the only relationship out of which a child can come into the world. We want to ensure that that child is in the right environment. As the United Nations Convention on the Rights of the Child recognises, the priority should always be that the child is brought up with the parents, which is what marriage does—it keeps the parents together for the sake of the child.

On the question of procreative capacity, would you say that marriage is not appropriate for people whom we know in advance cannot conceive children?

No, I would not. Saying that marriage is the environment in which procreation takes place is not the same as saying that we have marriage for only that reason. Typically and traditionally throughout society, we have recognised three ends of marriage: first, that it is built on love, the couple definitely love each other and it is for the mutual comfort of the couple, as they are attracted to each other; secondly, that they have the capacity to have children; and, thirdly, that the common good of society is aided by having that stable foundation for family life. Those are the three ends of marriage.

Sometimes, those three ends do not always attain. For example, there are some people who just cannot have children. As a society we put a lot of effort into trying to help those people—we have adoption services and there is even quite an emphasis just now on fertility services—so we try to ensure that that environment is adequately understood and protected. We are not saying that anyone who cannot have children is not capable of entering marriage, but that is the archetypal model of what a marriage is.

Always throughout history, regardless of other changes, the inherent essence of what makes it marriage is the fact that there is complementarity between a man and a woman. The proposals before the committee are that man and woman do not matter—they are to be completely interchangeable. We do not think that reason supports that position.

If I noted you correctly—forgive me if I have not—you said that the purpose of marriage is to create an environment to ensure that children have parents. For you, “parents” means one man and one woman and could not involve any other combination.

Biologically, we know that parents are a mother and a father. Yes, that is what parents are.

To add to what John Deighan has said, marriage is not just for the procreation of children but for the growing up of the children in the family, as has been explained. There are also the wider relationships of kinship within the family and extended family. If we lose that, we lose a lot of the cohesion of society. In relations based on the family, the children are the focus of those relations not only at the time when they are children; even when they grow up, there is still that relation between the children and their parents and grandparents. That is what holds society together, and it is important to keep that.

In our tradition, there are things—they are also mentioned in the bill—such as certain relations not being allowed to marry because they are so close in kinship. If we start changing the definition of marriage from what we know and what we know about who is coming from which line and who is not, there will be confusion and we will not know exactly where we stop and where we start. It will be very difficult to find out who is related to whom in those terms. Having a kinship relationship does not stop at only the father and mother—it is much wider than that—and not only for the time but also for the future of the family.

I want to return to and complete the line of questioning that I started with, which is about the protections that are offered to religious organisations. I have been a member of this Parliament for a while and I participated some years ago in the vote on same-sex civil partnerships, which I voted against. I get the impression that what we are dealing with here is a progressive move and that we have been progressing towards where we are. In expressing their views, the people on the previous panel suggested that this was the end of the process and perhaps the line in the sand. Do you believe that to be the case, or do you believe that where we are today with this legislation is simply a continuing step in a progressive process that may result in further changes to your protections or your rights as religious organisations in future?

First, we welcome the fact that there is an opt-in system and that the Scottish Government has recognised that churches should be free to conduct marriages according to their conscience and according to their beliefs. We think that that is a good thing, but we know that that opinion is not shared by everyone. There are definitely some folk in Scotland who would say that churches should be forced to do this, so we welcome the fact that the Scottish Government has taken a sensible approach on that.

To answer your question, our concerns are, first, on the long-term robustness of that protection. How long will it hold out for? Will there be a court case at some point that will try to force a church to marry a couple that it does not feel that it can marry? We have already started to see moves towards that in England, and our concern is that that will come in Scotland. A case might go all the way to the European court, where it may be that the protection is struck down.

10:15

At the moment, our understanding is that it is still considered to be within the margin of appreciation for states, so it might be that that does not happen now. However, we would be concerned about that happening at some point in the future.

Our concerns for the future are much wider than the issue of the celebrant and the ceremony. They are about churches, organisations and individuals who still hold to a traditional view of marriage. Will their views be accepted in wider society? We appreciate that it is not the Government’s intention at the moment to say that that is an unacceptable view to hold, but will that come down the line? Will that have wider effects on churches and individuals?

So, your concern is not that this bill in itself will create difficulties; it is about subsequent court interpretation. For example, if the Parliament were to require everybody to offer same-sex marriages, that would require another bill. You are clear on that. What you are concerned about is court interpretation. Is that correct?

We have concerns about this bill, which we will touch on when we talk about some of the wider areas. The Scottish Government seems to be concerned to protect only the ceremony aspect and the celebrant aspect—those are the only parts in relation to which it sees a need for protection. When we ask about protections in the bill, we are often told, “Well, no celebrant will have to do this.”

We accept that, at the moment, the Parliament is not proposing that, so our concern is absolutely to do with court interpretation. However, it is also to do with the direction of travel, and we are concerned that, at some point, it might become coercive.

Could you speak about the article 9 protections in the ECHR, which allow the freedom to practice your religion, and about the legal opinions that are in the public domain, such as that of Karon Monaghan QC, of Matrix Chambers in London, who said that any attempt that was brought to the European Court of Human Rights to force a religion to hold those ceremonies would inevitably fail because of article 9?

There are conflicting legal views on this, which is where some of the concern comes from. We have not been there yet and no cases have gone to the court yet. Our concern is that those cases will come and we will be in danger. We know that, in a number of areas, there have been concerns about the article 9 protections and how far they go, particularly in the areas in which protected characteristics conflict. Our concern would be that doors would potentially be opened to other situations arising.

We do not want to be alarmist or jump up and down about it, but there is a concern that that could happen—certainly our members have brought that concern to me time and again.

Dr Easton—I apologise, I mean the Rev David Easton.

Reverend and doctor, actually, I suppose.

I am not sure how closely we are expected to respond to the questions. This is the sort of thing that could flow over into quite a general conversation, so I will try to direct my answer to parts of Alex Johnstone’s question.

You asked why, despite the fact that there are opt-outs, conscience clauses and so on, we feel threatened—that is not quite the word you used—by the situation. However, I am not sure that the Methodist Church feels threatened. My written submission, which I hope that you have read, states the position of the Methodist Church. Whether we feel threatened by any legislation that comes through this Parliament or the Westminster Parliament is another matter.

The second part of your question concerned whether we saw the situation as the end of a process or as something that might continue. From your question, I am not quite sure whether you think that churches might think that the situation continuing would be something that would undermine the position further. Who can tell if that would be the case?

We have had marriages only between people of the opposite sex. Over the centuries, there has been a change in understanding; not that long ago, for example, women—and indeed their property—were considered to be the possession of their husbands. We no longer hold to that now, and one must assume that over a period of time civil and even religious understandings of marriage might change.

I guess that there has been some sort of recognition of that on behalf of the Methodist Church in that, as our submission points out, our annual conference, which is the Methodist Church’s supreme governing body and is, I suppose, equivalent to the general assembly of the Church of Scotland, agreed to set up a working group that would revisit Methodism’s understanding of the nature of marriage. Obviously, I cannot predict what recommendations the working group will bring to the conference or how the conference will vote on the matter, but that is where we are.

With regard to Mr Biagi’s point about protections, the trouble with using the ECHR to protect yourself is that it costs you a few hundred thousand pounds. In its interesting submission to the Government’s consultation, the Faculty of Advocates, without taking a position on the principle, pointed out that what will definitely give rise to difficulties and lead to conflict is section 149 of the Equality Act 2010, which relates to the public sector equality duty. This is not just about a re-understanding of marriage but about bringing down the weight of the state to enforce that particular understanding, which is what will happen through the public sector equality duty. That constitutes a considerable threat.

What, in practical terms, do you mean by

“bringing down the weight of the state”?

As we heard earlier, those employed in the public sector, such as teachers, will have to promote the particular understanding of marriage that the state has set out. The public sector equality duty makes that clear. In England, for example, teachers have received advice from the Equality and Human Rights Commission that, in order to show that they have satisfied the public sector equality duty, they have to implement LGBT history month. That month would conflict with things, especially in Catholic schools, and there are immediate concerns for us in that regard.

Why would LGBT history month conflict with things?

The whole aim of the month is to try to change people’s understanding of people who are homosexual and propose them as role models. We would not want to be doing that.

I am sorry, but I thought that the purpose of the month was to show that there have been gay people throughout history.

Our problem is accuracy with regard to the people highlighted in this initiative. On the flimsiest of evidence, people such as Florence Nightingale have been chosen and I think that even a pope is highlighted on one of the days. You are creating an environment in which you are trying to propose such examples as positive. That is where the challenge to us lies and where the conflict will arise. We want to propose our own understanding of sexual relationships.

As for the progressive nature of this, it is quite clear that this matter has progressed quickly since the Scottish Parliament’s creation. Perhaps the committee would like to examine the principle that is being established here; if you support this bill, you are saying that men and women are interchangeable and that gender really does not matter in any field of life. That area could easily be progressed.

In some of the evidence and discussion, the belief that marriage is intrinsically and in essence built around the complementarity of male and female has been paralleled to segregation—we heard that earlier. Parallels have been drawn with the civil rights movement against racism. If there is to be any progression, that is where we have to look. Those are the principles that are being established just now: if you hold that view, that is how you will be perceived by society. That ties in with the public sector equality duty and that is the mindset of those who have proposed this change. I have attended EHRC presentations where people have said, “There’s terrible discrimination in Scotland because some people believe sex only belongs in marriage between a man and a woman.” In other words, they are saying that in our society it is unacceptable to hold traditional Christian beliefs, traditional Muslim beliefs or the traditional beliefs of Judaism. This approach does not lead to pluralism but to the victory of a complete redefinition of marriage and its enforcement on all of society.

I do not doubt your sincere belief and the way in which you conceptualise marriage. I also understand that the Catholic church has different views from other denominations on aspects of marriage, for example on the acceptability of divorce. At present, you as a denomination are entirely able to practise that individual definition on divorce, just as the bill aims to allow you to continue exactly as you are at the moment. What I fail to understand is why you appear to be unsupportive of granting the same right to all the faiths, in particular including those that wish to perform same-sex marriages, to practise their faiths as they see fit. I can understand that you have a concern about a slippery slope, but I also hear from you an objection to allowing anyone, including the state, to perform same-sex marriage.

I am glad that you raise that, as it is a crucial point, which the committee might wish to reflect on. As regards our understanding of religious freedoms, if you conflate the freedom of any individual in society to pursue their particular religious beliefs with the idea that the state must endorse that, you are talking not about religious freedom but about theocracy. The state now needs to have a rational reflection on what the purpose of marriage is. Why does the state take an interest in it? If it is just about friendship, there are a myriad of friendships in society, and we would not want the state to interfere in those friendships.

If there is a practical implication, it is that children are born, and we want to ensure that those who have a child have it in a responsible manner and raise that child. They are more likely to do that if they are bound together in marriage, and the child is more likely to benefit from the attention of the parents if the child lives with the parents. That is why the state has an interest in marriage. It is not about friendship, and it is not about feelings, although those are important. We do not change the whole of society because people might feel upset that their relationship is not being given a particular badge by the state. It is not about badges; it is about the practical effect on children.

I have one practical point on this discussion, going back to the original question. I have had discussions with some of our celebrants. What we have in Scotland now is a good system, where celebrants opt into the government system, and they can conduct a marriage at any place. That is working very well.

When I speak to them about the bill, however, or when they find out about the bill, they say that they will have nothing to do with the system of marriage that is proposed by the Government, and they will have their own system and keep away from what is proposed. That is one example of how this interference in the definition of marriage will force some groups to have their own system, whereas the current system is working well at the moment. That is mainly because of this progression, and what you said yourself about the slippery slope. When I discuss the matter with celebrants, they say that they have heard it all before. That is an example of what would happen. This situation between the Government and the celebrants could result in that.

I am not sure why. Celebrants will be able to continue to offer marriage as they wish.

That is what has been said, but celebrants feel, because of the history of this process, that, once the legislation is passed, they will be forced to do it. That is the feeling, because of what has happened, this progression; step by step we are walking—

Is there something in the bill that could be pointed to that causes that? That is a perception and an issue of confidence. Is there something in the bill that could be changed, objected to or amended that would address that? What is causing that lack of confidence?

We cannot change the minds of those people, because they see what is coming. It is not about what is in the bill. We welcome what is in the bill—an opt-in system, which is good. However, celebrants are now in an opt-in system, and they have found that what is proposed will be called marriage, like any other marriage. They want to have their own marriage system separate, so that it does not get confused with the system that has same-sex marriage included. That is what we heard from the people in the front line of this relationship.

10:30

The threat is the context in which the bill is coming in. There is a parallel with adoption by same-sex couples. I ask the committee not to make the same mistake as their colleagues who told us that we had nothing whatsoever to fear from adoption by same-sex couples—the quote on that is in our submission. The context is that, once you establish criteria, the Equality Act 2010 enforces those on your religion. Our adoption agencies suffered from that. If the bill is passed, we will suffer in the same way when it comes to marriage counselling, marriage preparation, marriage training and so on.

Small Christian organisations that want to retain a belief that marriage is only between a man and woman will all have the same problems relating to the provision of services. A celebrant provides a public function and, given the evidence that we heard earlier, they do not want any public function done by those who are not willing to conform to the new understanding of marriage.

You would have to change the Equality Act 2010 to give an accommodation. The accommodation that is lacking in the 2010 act is that it does not allow people to distinguish between two things: sexual orientation and the practice of the sexual behaviour. Those two things are conflated. I think that it is wrong to in any way discriminate against someone in an unjust manner based on their sexual orientation. I will give an example of the issue that we face. There might be someone working in a Christian organisation who has a particular sexual orientation, but if they want to propose their lifestyle of living in a same-sex relationship to children who they are perhaps trying to instil with a Christian education, those are two different things. However, the 2010 act does not allow us to distinguish between the two. That is the context that gives us the threat.

But the Equality Act 2010 has extensive specific exemptions for religious organisations on the ground of sexual orientation, which are being expanded. Can you point to any ruling in court thus far under the public sector equality duty that would lead to the situation that you describe?

In the Ladele case, for example, Lillian Ladele was told that, because she can get to church on a Sunday, her religious freedom was not being infringed. That is a very narrow understanding of religious freedom.

Correct me if I am wrong, but I think that Lillian Ladele was a civil registrar in London who refused to perform civil partnerships. She took her case to Europe and lost, because she was exercising a civil function in a civil situation, rather than a religious function. That is the crux of the issue.

It was Neuberger in the UK Supreme Court who said that Lillian Ladele’s religious freedom was not being infringed. The European Court of Human Rights stated in its judgment that it could not dismiss the issue as easily as that. We are looking at a very narrow understanding of religious freedom.

St Margaret’s adoption agency is the perfect example. If we have no problem whatever, why is it facing closure? The protections that we asked for when legislation to allow adoption by same-sex couples was discussed are the protections that are needed now. The context means that it is too dangerous to introduce same-sex marriage here because people who disagree with its introduction will find massive detriments throughout every area of society—especially if they work for the public sector.

Perhaps I may be permitted to think aloud for a second and wonder why people of faith find the whole issue of what may broadly be called sexuality so difficult, because we clearly do. There has been some evidence of that this morning and we have seen it in lots of ways.

I put my hand up and say that it is not an easy issue for us in the Methodist Church. Twenty years ago we affirmed the place of lesbian and gay people within the Methodist Church. We have moved on since and, as I said, we have set up a working party to look at the nature of marriage. Whatever its recommendations, I can assure the committee that the debate that follows will not be an easy one because, as in society in general, so within a church, this is a very difficult issue to handle. I think that there are a lot of historical reasons why we find the whole question of sexuality difficult to handle. I do not have time to go into all that here, but it is difficult to handle.

I feel, perhaps speaking specifically about the Methodist Church, that we are on a pilgrimage or journey—that is the word that has been used this morning—as we all are in this session, as part of a change in society. It is a journey, if you want to use that word, for the whole of society in its understanding about matters broadly related to sexuality. However, we do find it difficult. Speaking personally, I think that perhaps we do not always do ourselves any favours, because sometimes we seem to be fixated on the question of what two people do between themselves rather than on broader issues. Nevertheless, I have stated our position as it is in our paper, and I think that we are on that journey, too.

Thank you. Christian Allard has a short question. I ask the witnesses to be brief so that we can move on, as we have a number of other questions that we would like to ask you.

I have a couple of questions. First, though, thanks very much for coming today to share your concerns. It is very important that your voices are heard. We heard earlier that the Scottish Government has consulted on the matter for the past two years. Of course, there is an international debate on it as well, and a lot of countries have changed religious legislation.

I would like your views on a particular point. I do not want only the Catholic parliamentary office’s view, but I note that its paper said that the bill

“will diminish rather than strengthen marriage”.

I would like you to elaborate on that point. We heard earlier that there is no evidence for that view and that, to the contrary, the bill could strengthen marriage, because people will perhaps think that getting married is more trendy and people could come from abroad to get married here. I am a bit confused and would like to know whether other witnesses share the view of the Catholic parliamentary office that the bill will diminish marriage rather than strengthen it.

That is a really good point to discuss. I think that the crux of the issue about the principle is what the definition of marriage is and what the function of marriage is. We would broadly say that marriage is about commitment, children and complementarity. From the state’s point of view in particular, marriage is about children, as has already been said. Beyond that, we see marriage as being the foundational structural unit to bring through the next generation. That is where the state’s interest in marriage fundamentally lies. We think that love and commitment are good things. My organisation supported civil partnerships when they came in because we recognised that they addressed a legal injustice that people in same-sex relationships felt.

However, that is different from saying that something is marriage. I agree with and highlight the submission that the Faculty of Advocates made to the Government’s previous consultation, which referred to the importance of defining what we mean by marriage and raised several questions. First, is marriage intended to be a lifelong relationship? Should it imply the potential for a sexual relationship? Is it intended to be an exclusive relationship between the spouses? I think that we need to think through what we are defining as marriage. I do not know whether that answers your question.

In terms of devaluing marriage, our concern is not solely about same-sex couples being allowed to marry. Our concern is about the fundamental foundational understanding of marriage as good for society, particularly in its context of family. As the Faculty of Advocates would say, although it obviously does not take a policy decision on this, if we lose that definition, we are in danger of losing the meaning of marriage and the foundational understanding of what marriage is as a structure for society. That is our concern. We recognise that love and commitment are good things, but that is not really why the state recognises marriage.

Would there be anything wrong with the state choosing to recognise marriage on those terms? If so, what would that be?

We think that marriage is, in part, about love and commitment. It has always been a historical Christian church point of view that love and commitment are very important, but we think that marriage is about a lot more than that. We think that marriage is the foundational building block for families and community, and in the context of bringing up children we think that it is a good thing. We have no problem with other relationships having legal recognition—we think that that is fair—but the fact that people love each other does not make relationships of any other sort marriage. People loving each other in a myriad of different ways does not, in itself, make a marriage; we believe that there is more to it than that.

What scares people are the things that will happen under the bill that are not expected. The bill gives a list of people whose relationships are too close for them to marry. For us, that list includes same-sex couples. It will be dangerous for society if we keep changing the list to exclude relationships that we currently recognise as making it not possible for people to marry. As people have said, that could lead to incest and other dangerous relations. That is one thing.

Another thing is that the definition of adultery in the bill is confusing because the Government went back to the definition of adultery between a man and a woman. The bill makes marriage acceptable between two men or two women, but it uses the definition of adultery only between a man and a woman. That means that someone can have relations with someone of the same sex outside a same-sex marriage, including in a threesome, a foursome or whatever. Because the bill goes down a new road, diverging from the main traditional, historical way of marriage, it is creating situations that we do not know the end of, and we must be careful about these things.

Mr Allard asks whether we fear that the bill will diminish rather than strengthen marriage. It is interesting that in the whole debate—I do not mean just this morning—phrases such as “undermining marriage” and “strengthening marriage” are thrown around. I wonder how we would know whether marriage is being strengthened, undermined or diminished. We could consider the divorce statistics. The divorce rate has been very high historically partly because legislation has made it possible while we have had marriage only between men and women, although I understand that, recently, the divorce rate has dipped somewhat. Or would we consider another criterion such as the level of domestic abuse? It is difficult. I can see where you are broadly coming from, but how can we determine whether marriage is being strengthened? What basis would we use to come to any conclusions? I could have cited examples other than those two.

Thank you. Let us move on.

We have heard this morning and have read in your written submissions about the lengthy consultation that has taken place and the responses that have been given. We have heard in evidence from this panel that the response from the majority of respondents is that they do not want equal marriage. In the session with the first panel, I spoke about the equality impact assessment that took place following the consultation and noted that people have concerns—which have been voiced again today—that the provisions that have been put in place to protect religious bodies are not strong enough. Do you feel that that view has been listened to in the consultation and in Parliament? If not, what could we do to strengthen those provisions if they are not robust? Is there anything that the committee or Parliament could do to make things better?

10:45

That is a really good question. We were concerned. I will try not to keep on quoting the Faculty of Advocates, but in its submission it states:

“The Faculty of Advocates respectfully questions whether the impact assessment in respect of equality is complete.”

It feels, and this has been raised with me, that some of the bill’s negative implications have not been addressed. As the Government would say, there are positive equality implications, but they have not been counterbalanced by consideration of some of the negative ones. The exception to that, which we accept, is the celebrant aspect, but there are wider implications. We hope that the committee will look at some of those.

We have a big concern in relation to the public sector equality duty because, as a member organisation, we have a huge amount of churches and organisations that provide a huge amount of social welfare in Scotland—probably more than ever before. They run food banks, provide debt advice, run homelessness projects and do all sorts of other things. They include groups such as the Salvation Army. In many situations, they partner with local authorities and statutory agencies as they deliver those services. We think that that is a good thing and we want it to continue, but we are concerned that their views on marriage could become a hindrance to them in that partnership work.

We recognise that this is not the Government’s intention, but we are concerned that, without protection in the bill, these things could come back at some point in the future. Even if an organisation does not take a view, the fact that it is affiliated to the Evangelical Alliance could be an issue. An official in a council somewhere could say, “We’re not going to rent you a hall,” or, “We’re not going to partner with you because you don’t fit the public sector equality duty and we have a duty to promote that in our partnerships as well as directly in the public sector.”

When the bill deals with freedom of expression, it gives an overgeneral statement. What is needed—and what would be more effective—is a clear statement about freedom of expression relating to same-sex marriage, roughly on the lines of what has been adopted in the UK bill, where there is a statement that discussion of same-sex marriage should not be taken as an offence. It is something along those lines; I am sure that you know what it is. That should be in the bill and not a secondary thing that comes afterwards.

The other thing, which is similar in a way, is that the Lord Advocate’s guidance is simple and there is nothing specific in it. It will depend on who the Lord Advocate is at the time when a case comes in, and who their workers are and so on. This is an issue where we are on the very boundary of something that could be considered offensive or not offensive, or be prosecuted or not prosecuted, and prosecution in these cases will have an effect not just on the spot but on the person’s life. There should be some clear guidance on this issue and it should be part of the bill. The Lord Advocate’s statement is too simple, and also it can be changed at any time depending on the people who are present at the time. We do not know what will happen next, so there could be more difficulties there.

On principle, we already have equal marriage. All people have the right to marriage. Marriage is a particular thing. What we are doing now is making an arbitrary change to it. Once you bring in arbitrariness to the legal system, all sorts of changes are possible. You are then thinking about how you are going to protect yourself against all those things that could happen.

In the case of Stübing that was taken to the Strasbourg court against Germany last year, under the European convention on human rights, a brother and a sister were demanding that they be allowed to marry. If we set up a principle that marriage is only about love, we need to ask what principle then says that such relationships are not permitted. The state authorities recognised that the couple’s love was sincere and that they had a loving relationship—they had four children together—but the case failed, thankfully, for the sake of the marriages of everyone else in society. The state has a right to protect marriage as it is understood.

In principle, we should not make arbitrary changes to marriage, because it affects all children. Speak to paediatricians and ask them about the devastating impact that family fragmentation has on children. In the past eight years, the number of children under one who have been taken into care has trebled. Paediatricians whom I have spoken to say that, 30 years after we first started to see a rise in the number of children born outside of marriage who had lost that bond between their mother and father, we are now at the point of second-generation family fragmentation. That will be devastating, because there are no grandparents to step in and help the child when the parents have separated.

We believe that there will be detriments to people in terms of stating their belief. Employment law would need to be amended, because an employer could say that it does not think that someone weighs up to the latest standard on equality because of their beliefs on marriage. As we have heard, some people already think that such beliefs are akin to racist beliefs.

On freedom of expression and education, I make a plea that the committee listen to the Catholic education service of the bishops conference. The Catholic education service has particular expertise in knowing how it could robustly protect the right to pass on the Catholic faith to children whose parents have opted to place them in a Catholic school.

The equality duty would certainly need to be changed so that people working in the public sector do not feel that they need to promote a value that is at odds with their beliefs. I have already had people phoning my office to say that they have been told to implement diversity training schemes within their places of work. Those schemes are created in such a way that they stigmatise people who disagree because of their understanding of marriage. That is the breadth of detriment that we are facing in society if we go ahead with the legislation.

I ask Dr Easton to answer briefly, as we have another couple of issues that we need to move on to.

I am happy to leave it there, if you want to move on.

I just want to clarify something. I have heard organisations say this privately, and I just wonder whether you share this view. We are talking about equality—clearly, this is the Equal Opportunities Committee—but I have heard some say that to give equality is not about taking a right from one protected characteristic and giving it to another. Do you share that view? If so, why would that be the case?

I have asked this question ever since the equality legislation came in. If you have a conflict between two characteristics, to which do you give preference? It was always said that the decision would be left to case law, but I think that recent case law has given sexual orientation preference over religious practice. Again, that is one of the things that are not clear in the equality legislation. It is very difficult to decide which way the decision will go.

By the way, on the issue of the registrar who has a belief and who is doing a civic job, it is recognised in the bill that marriage is a religious practice or a religious act. Therefore, a civil registrar is not doing only a civil job, as he is involved in a job that includes religion—whether that is his religion or the religion of the people being married. That is why cases such as Ladele are important. The court has ignored that effect in insisting that the issue involved a civil matter, but the bill before us recognises that, as an act of life, marriage is a religious thing.

To some people, religion is a way of life, of course, and that is what is stated in Islam and in Judaism in other ways. One does not go to church or a mosque and take it off when one goes out of the church or mosque, otherwise we will learn nothing. We would just go to church or to a mosque to do some rituals, but it is not just about rituals; it is about what we learn from them and what we practise in our everyday lives.

We are not saying, “Don’t allow these relations.” We are saying that we should keep the definition as it is, and people who want to have a different way of life from that under the definition that we have all used for ages should call it something else. That is one way out of it. Do not confuse the word “marriage” as we know it with a relationship that was not originally included under it.

All equality must recognise the equal dignity of humans. Every human is equal in dignity. The trajectory of the past 10 years has been to try to replace equality with sameness in thinking that a man has to be a woman and has to be interchangeable. That is where we have gone wrong.

When there are conflicts and disagreements, we must sometimes balance principles. We cannot just say that, because a person has a particular protected characteristic, we must agree with them, otherwise as a Catholic, I would be able to say, “You have to believe in the seven sacraments and other particular aspects of the Catholic faith.” I recognise that people can disagree, but they are not allowed to infringe my basic civil rights.

But you are saying that we have to believe in your definition of marriage.

No, not for religious reasons. I am saying that, based on reason, the state has to say what the reasonable basis is on which we understand marriage.

On that basis, do you have no religious objection to the state offering same-sex marriage?

Our religious belief disagrees with the state on that, as it may on other grounds, but we believe that our religious belief concurs with natural reason on this, and that marriage is naturally and self-evidently built on the fact that men and women have children. We have to balance up conflicting claims. The conflicting claim here is that, for the sake of the possibly one in 10,000 households that wants to have a same-sex marriage, we will change the definition of marriage for everyone in our society. That is the balance, if you think that it is a matter of a balance of principles. Marriage will mean a different thing for all society, including every child and every family. I think that two households out of 1,000 have a same-sex couple in them, and we have been told that it is expected that 5 per cent of same-sex couples will want a marriage. We are talking about one in 10,000 households possibly wanting a same-sex marriage, and the whole of society has to redefine marriage for the sake of that. That is disproportionate as well as wrong in principle.

I want to touch on the issue of when rights conflict and how we deal with that, which we have slightly touched on before. I think that it has been said that the Equality Act 2010, despite my involvement in it, did not say that all rights are equal. We had the example before from the Equality Network that chauffeurs and photographers should not be allowed to not take part in same-sex marriages. Is that correct? Does that give the right balance between the individual’s freedom of conscience and other rights?

To be honest, the wisdom of Solomon is sometimes needed to decide. Someone’s conscience should not be infringed unless that is absolutely necessary. In that case, one would try to offer accommodation. For example, Sikhs are allowed not to wear a crash helmet when they drive a motor cycle, and no one else is allowed to do that. We accommodate them because they wear a turban for religious reasons. We should try to accommodate where that is possible. Therefore, if nine out of 10 registrars were happy to do a civil partnership, why would we force the person to go against their conscience? That is the sort of question that arises, and it is very difficult to deal with that in legislation.

If someone went to a person who provides a particular service that involves printing documents or whatever and they were discriminated against because of their sexual orientation, that would be entirely wrong.

Why would that be wrong? If a printer has his own small business and is in control, why cannot he decide what he prints?

If the printer just says, “I don’t like your sexual orientation, so I won’t provide you with a service,” I think that that is wrong. However, if someone came in with literature for the British National Party and the printer thought that the literature was racist and they did not want to print it, I think that they would be perfectly entitled to say no. Similarly, if someone came in with pornography and the printer felt that pornography was detrimental to the rights of women, they would be entitled not to print it. If they were asked to print publicity material for LGBT history month, but they thought that that twist on history was wrong and they did not want to participate in that deception, I think that they would be entitled to say that. However, that will be difficult.

So do you think that the present balance of the law is too far away from people’s individual conscience?

11:00

We have seen that under the Equality Act 2010. Most people do not realise that not only are our adoption agencies not allowed to discriminate against people with same-sex attraction or in same-sex relationships, but they are not allowed to take that into account. An agency could have a couple who have been married for five years and two people in a same-sex relationship, and they are not even allowed to take that into account. The law does that now, and that is a real infringement of conscience and religious belief.

Do the other witnesses agree? Where do you draw the line between individual conscience and wider rights?

I think that everyone would agree that it is incredibly hard to do that. The principle of having a reasonable accommodation where possible is probably a good one, and we would certainly like that ultimately to be enshrined in law and also in the courts’ understanding.

Is the way that abortion is enshrined in law a good model?

Yes, I think that that works well for that particular case. As has just been outlined, in most cases, discriminating against someone for any reason is wrong. Most of us agree on that. For most businesses in most situations, that would be wrong. Again, I will use as an example a member organisation that we might have. If a church runs a food bank, it will never turn away someone for any reason of discrimination. That would not happen and it would be wrong if it did happen. However, there has to be an accommodation for certain views. If someone is legally entitled to a public service, provided that they can access that public service, we should make accommodation. We should not try to batter rights against each other; we should take a reasonable and commonsense approach. The point about adoption is a good example of that. The conscientious objection approach could work in particular circumstances.

Do you agree with the argument from the previous panel that abortion and war are on a different planet—sorry, are of a different level of severity—from something such as marriage? Is there a distinction?

The case of marriage is exactly like abortion. It is an issue on which people will differ. We accept that abortion is a controversial issue, and marriage is at the same level, or perhaps an even higher level. Abortion involves one person with an unborn baby, but the issue of marriage involves the whole of society, where everyone has to adapt to the new vision.

I am glad that you use the word “conscience”, because I do not see that word in the bill at all. That is something that we need to introduce. This committee is called the Equal Opportunities Committee. The issue is not about equality; it is about equal opportunity. Equality could mean that we treat people badly but in the same way. We have to give people equal opportunity to practise their religion, no matter their race or whatever, without being forced into something that they do not want.

I apologise to John Mason, but I will stop him there, because we are rushed for time and I would like to give John Finnie an opportunity to ask a question.

Thank you, convener. I do not know whether all the panel members were present during the evidence from the previous panel, but I posed a number of questions that came from one of the many interesting pieces of evidence that we have received, which is the evidence from the Scottish Transgender Alliance. I do not know whether the panel members have seen it, but there are a number of issues in it. Some of the issues that we have touched on are challenging, and perhaps the witnesses will feel that this is also challenging. For instance, do you have a view on the spousal veto, the simplification of gender reassignment and its certification, the lowering of the age for gender recognition to 16 and the gender-neutral language that should be applied?

Very briefly, we do not have a view on most of those aspects. Our primary concern has been the principal understanding of marriage and the need for a debate on the protections that might be needed should the bill be passed.

As for the use of gender-neutral language, we have already outlined our concerns in that respect with regard to the definition of marriage. However, as far as the practical aspects of the bill are concerned, we do not really have a view on its specific transgender aspects.

As I said at the start of the session, we take issue with the dilution of family relations by removing references to gender and kinship. They represent a way of cementing relations between people in families and beyond, and the new list of relatives set out in the bill does not really hold in the same way. Some languages are better than others in this respect; for example, one language might have different names for an uncle or cousin on the mother’s or father’s side but English does not have such distinctions and diluting what exists even more is not really a good thing.

Have you finished, John?

If none of the other panel members wishes to reply, convener, I would like to ask one more question.

One submission that we received says:

“Marriage is not owned by any religious body”.

Does anyone wish to comment on that?

I would probably agree with that statement. When this question was being discussed at Westminster, the Methodist Church was concerned about the juxtaposition in the debate between civil and religious marriage as if they were two different things. When I conduct a wedding ceremony, the couple are in the eyes of law just as legally married as if the ceremony had been conducted by a registrar. As a result, a religious marriage must have a legal public element; in fact, that is the very reason why it has to be a public ceremony and cannot be conducted in private.

Some of my fellow panellists might not agree with me—I do not know; they will have to speak for themselves—but I believe that the state has the right to express an opinion and pass legislation and indeed has done so through the years. We the electorate might not agree with those decisions and have the right to chuck you out at the next election so you can go and beg on the streets. However, it seems to me that as long as you are members of the Scottish Parliament, or indeed any other democratically elected legislative assembly, you have the right to legislate on matters that come within the boundary and scope of your responsibilities. As a representative of the church, I might disagree strongly with you, but that does not mean that I think that you do not have the right to legislate on the matter. I think that you do.

I agree with the initial comment. Marriage is a natural institution and has arisen naturally from the first social grouping, which was between a man and a woman who then had children. That is the foundation of society and we believe it important not to mess around with those foundations.

The state has a role in legislating on the civil effects of marriage but not on its essence. We cannot have laws saying, for example, that people who sell bracelets can call them watches if they do not tell the time. There is an essence to marriage; a man and a woman lie at the heart of it, and that is the relationship that gives rise to children.

So you see it as an exact science. Is there no scope for differences of opinion?

We are talking about an essence here. The state does not have the right to recreate what is a natural institution; it exists to uphold the common good, not to re-engineer new foundations for what it thinks could be the common good.

I hear what my friend is saying, that the state does not have a right to determine what society does. We could turn that round and ask whether the church has a right to determine what society does. That is an issue for debate.

The reality, which is hard for the churches to accept, is—I am using shorthand here—that we live in a largely secular society. It is hard for us in the churches to come to terms with that. As I said earlier, we find the whole debate about sexuality difficult.

The state has a role in this issue. Otherwise, we are saying that there are certain things that the churches may determine or that it is right for them to discuss, and that there are certain areas for the state or civic authorities to discuss, but that there may not be any crossover. Does that mean that I, as a leader of the church, may not make a statement on certain issues of public interest? Might I be told to shut up about a public or party issue because I am a religious leader? I do not accept that position. If I am arguing that I have a right to comment on public issues, I must accept that public bodies, Parliaments or whatever have a right to comment on religious issues and other matters that pertain to me and what I hold important. I do not think that we can have it both ways.

I would just clarify and say that I do not believe that the church can redefine marriage either. We can all comment on it, discuss it and try to understand it, but marriage is a natural institution that precedes the church as well as any other institution in society.

Are there any brief comments before we move into private session?

I would like to clear up something that Mr Turner said earlier. You welcomed the opt-in provision in the bill, particularly as you were aware that there were people in society who would gladly compel the churches to perform same-sex marriage. We had a clear and explicit statement from the LGBT organisations on the earlier panel that they did not seek to infringe the freedom of religion of those denominations that did not wish to perform same-sex marriage. Where do you see that demand coming from in society? Are you aware of any organisations that have provided evidence to that effect?

I do not have them in front of me, but I think that there were submissions to that effect to the Government’s consultations on the draft bill. I saw submissions to the second consultation from a number of individuals and bodies saying that they would do that. I do not have them in front of me, so I do not want to quote on the record if that is not the case.

Do you accept that Stonewall and the Equality Network, which are the leading LGBT organisations engaging in the debate, have not made that call?

Yes. I accept what they have said publicly, but I do not think that they speak for everyone in society. You only have to go on Twitter or Facebook to see such comments. I invite the committee to look at some of the submissions that were received on the previous consultations, because there were individuals and groups—admittedly not Stonewall or the Equality Network; I am not trying to have a go at them—that said, “We disagree. We think that churches should be compelled to do this.”

Okay. I have a general question for the panel. We are aware that nine countries in Europe have introduced same-sex marriage. In which of those countries has your denomination or religion been compelled to perform same-sex marriage?

I think that we are quite protected under UK law, except on the basis of providing a public service—you will not be safe under that. You say nine countries; there are 193 countries in the world, so we have a long way to go. Denmark, however—

Has your denomination been compelled to perform same-sex marriage in any of the countries that have introduced same-sex marriage?

The Catholic Church has not. However, we have had adoption agencies all over the UK closed under equality laws. It is the context of equality laws that poses the difficulty, once we change the understanding of marriage.

There is also the sentiment behind it. You heard evidence this morning from the Equality Network, which aligns people who disagree on their understanding of marriage. It called the practice today’s segregation and said that banning same-sex marriage was akin to a ban on interracial marriage. If we believe in plurality, that sentiment should worry us.

Other organisations have made strong attacks and threats on marriage.

I asked for clarification, which you have now provided. I ask the other gentlemen to respond.

Briefly, please.

There are Methodist churches throughout mainland Europe, although they are not large ones. I do not have the absolute figures at my fingertips to answer your question accurately. However, I am not aware of any instances in which member churches in those countries have been obliged to conduct same-sex marriages.

That concludes the public part of our meeting. I thank the witnesses for attending, and I thank everyone for coming along. It has been very interesting. Our next meeting, which will take place on Thursday 12 September, will include further oral evidence on the Marriage and Civil Partnership (Scotland) Bill.

11:16 Meeting continued in private until 11:32.