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Agenda item 3 is stage 1 consideration of the Marriage and Civil Partnership (Scotland) Bill, and is an opportunity for members to ask Scottish Government officials questions about it. I welcome to the meeting Simon Stockwell, team leader, and Julia McCombie, policy officer, from the family and property law team; and Francesca Morton, who is a solicitor from the Scottish Government legal directorate. I thank the witnesses for coming along to answer our questions, which we will proceed straight to. The first is from Mary Fee.
I have a brief question about sections 8 and 9 on the change from a qualifying civil partnership to a marriage. Section 8(2)(g) refers to
In essence, the policy intention is that there should be no difference in effect. It is intended that when changing a civil partnership to a marriage under the administrative route that is established under section 8, the effect will be exactly the same as a marriage ceremony under section 9. Our intention is also that any regulations that will be made under section 8(2)(g) will mirror the provisions in, say, section 9. In other words, the policy intention is, as I have said, that there will be no difference. It will not matter whether you marry through an administrative route or in a ceremony; once you are in the marriage, the effect will be exactly the same.
That was very helpful.
Good morning. The delegated powers memorandum offers examples of consequential changes that might be required to other legislation to accommodate the change in status or to ensure that obligations remain the same, notwithstanding the change. Can you clarify how you envisage that power being used?
Which paragraph of the delegated powers memorandum are you referring to?
I understand that a number of examples are given in the memorandum; I am simply asking about your general sense of any consequential changes that might be required.
Given that, in broad terms, the rights and responsibilities of civil partners and those of married couples are very similar, much of the debate around the bill relates to people’s ability to say that they are married instead of being in a civil partnership.
Are you able to point to legislation that is within the province of the Scottish Parliament with regard to pensions, for instance?
Most provisions in respect of pensions are reserved to Westminster, but the Scottish Government has some executive devolution in relation to pension schemes for the police, the fire service, local government employees, teachers and another group that I have forgotten. The Scottish Public Pensions Agency also has a role in the administration of some small pension schemes, including those of Scottish Enterprise and Highlands and Islands Enterprise. We might need to make changes in those areas to ensure that same-sex married couples are treated the same as civil partners.
There appears to be no limit on the power at section 8(2)(g). Can you explain why that power has been drawn so widely?
The power is drawn widely simply to ensure that we can do everything that we need to do. Clearly, we need to reflect the provisions in section 9. For example, in Scotland the financial provision on divorce is based largely on the matrimonial property that a couple has acquired during the marriage. If a couple should divorce after they have changed a civil partnership to a marriage, we would want to ensure that any property that they acquired during the civil partnership also counted when they divorced, otherwise there could be strange results. If, for example, a couple had bought a house during the civil partnership, changed the relationship to a marriage and subsequently divorced, there might be a risk that that property would not count as matrimonial property for the purposes of Scots divorce law. The intention is to ensure that, in such examples, everything that the couple did during the civil partnership also counts towards the marriage.
Given the apparent breadth of the power, was any consideration given to applying the affirmative procedure?
Yes. Obviously, the affirmative procedure will apply if we are modifying any enactments. If there are changes to primary legislation, the affirmative procedure will apply. Obviously, we considered the possibility of using affirmative procedure—we considered all the potential procedures—but we concluded that, on the whole, because the process is reasonably straightforward and is mirrored in provisions in the bill, negative procedure would be appropriate except for when we were amending primary legislation. However, I accept that arguments could be made the other way.
You said that the intention is that the effect of the two arrangements will be the same. However, I still cannot see why you need to have provisions that would explain the effect of a marriage or civil partnership in the first place, because that is surely a state—a relationship—that does not need to have its effects modified.
I have just given an example. If we were just to say that the qualifying civil partnership is a marriage, a question would arise about the matrimonial property regime, for example. Section 9(1)(b) says:
So, it would be fair to say that the effects that you want to legislate on are the effects of the change from one state to another, rather than the state from which they came or the state to which they go, because, surely, the effect of being married is the effect of being married.
Yes, the effect of being married is, indeed, that you are married. However, what does that mean in terms of being in the marriage? When does it date from? Are there other provisions to which we need to make specific reference in order to ensure that a couple is granted full rights and responsibilities?
It is about the effect of the transformation from one to the other.
Yes—it is about the effect of becoming married.
I am grateful for that clarification.
Good morning. There are three parts to my question. Can you explain the legal implications of a renewed marriage ceremony or renewed civil partnership ceremony? What status would a renewed marriage or civil partnership have, and are they to be understood as new legal concepts?
The legal status is that a couple would be regarded as married or in a civil partnership, but would not need to go through the marriage or the civil partnership ceremony to achieve that status. The bill already has a provision that states that when a couple undergo gender recognition, their marriage or civil partnership will continue. The legal effect of section 28 is simply to allow them to have a ceremony to reflect their newly acquired genders; it is not meant to change the legal status of their marriage or civil partnership. There would not be any obligation on a couple to undergo a renewed marriage or civil partnership ceremony; it is one option that would be open to them, if they wished to take it up, after they had acquired gender recognition.
We are interested to know about the power at section 28(2)(h) to make provision
The intention was to address any requirement to make provision for the effect of having a renewed marriage or civil partnership. That was the sort of area that we were looking at. We have continued with key stakeholders to discuss use of section 28. At the moment, our thinking is that we might not need to use section 28(2)(h) because—as I said earlier—the effect of a couple’s entering into a renewed marriage or civil partnership will be that they will continue in their marriage or civil partnership. We might need to say that in regulations, if we make any, for the avoidance of doubt.
Is it envisaged that the power in section 28(2)(h) might alter a person’s legal status?
We do not intend to alter people’s legal status. Once a person has acquired their full gender recognition certificate from the gender recognition panel, they will be legally recognised in their acquired gender and can then have a renewed marriage or civil partnership. We would not be changing their legal status by any provision made under that power.
Given the potential significance of the power, was consideration given to applying the affirmative procedure at all times and not just when the primary legislation is to be modified?
Yes—we considered the possibility of applying the affirmative procedure but, in general terms, the provision is mainly about the ceremony that people will need to go through for a renewed marriage or civil partnership. Traditionally, where the issue just relates to the ceremony that a couple has to go through, such changes would be subject to the negative procedure. I understand, however, that the committee might take a different view. I made the same point in response to Mr MacKenzie’s question.
Was consideration given to providing in the bill detail on, or clarification of, the status of a renewed marriage or renewed civil partnership?
We did not necessarily consider doing that in the bill. We have tried to provide explanatory material in the delegated powers memorandum. In broad terms, what we are doing in this respect is similar to what we are doing elsewhere in the bill in relation to changing civil partnerships to marriages. There are two routes for that—an administrative route and a ceremony route. In this case, the couple are not changing and are staying in their relationship, but it is a similar concept in that, again, there will be two routes for recognising their acquired gender. They can either have a renewed marriage or civil partnership ceremony to reflect their acquired gender, or there is provision elsewhere in the bill so that changes can be made to marriage and civil partnership certificates through the administrative route. We follow a similar concept throughout the bill. The circumstances vary, but the concept is the same.
It is pretty fundamental.
I accept that any provision that has the effect of changing somebody’s legal status would be fundamental. Yes.
You argue, however, that the provision will not change their legal status, and that is your justification for not putting it in the bill.
Yes. There is no intention here to change people’s legal status. Other provisions in the bill allow people to change a civil partnership to a marriage and there are provisions in respect of gender recognition that go into considerable detail on how a couple can acquire a full gender recognition certificate and stay in the marriage or civil partnership. Those are pretty fundamental principles in the bill. Gender recognition is a major feature in the bill because it is very important for the number of people whom it affects.
Many thanks.
I would like to pursue John Scott’s point a little. It is just possible to look at all the detail, all the transformations and all the options and to draw the conclusion that, because there will be different ways of doing things, there will be different states. If there are actually only two—or arguably three, if we include being single—why do we not just say so? Why do we not make it clear in the bill that there are only those states and that, regardless of how people get between one and the other, they are the same? I just wonder whether it might be worth saying that.
That would have been an alternative approach. It depends, obviously, on our view of how best to do it. As I said to Mr Scott, in general, for such changes, we have provided two routes—the administrative route and the ceremony route—and provision is made within sections of the bill to reflect that.
Right. Our last set of questions comes from Stewart Stevenson.
My questions are on changes to the Gender Recognition Act 2004, and particularly on paragraph 6 of schedule 2 to the bill, which inserts new section 5D into the 2004 act. First, what circumstances are covered by the phrase “additional circumstances”? It might not be possible to give a definitive and complete list, but some examples might be of modest help.
Yes, Mr Stevenson. We are struggling with that at the moment. Currently, the bill includes a couple of ways in which a civil partner can obtain gender recognition and change the relationship to a marriage.
I will pick up on that immediately. They can stay in their civil partnership as distinct from their relationship.
Yes, indeed. That is quite right.
“Relationship” is an informal word that you are accidentally using.
That is quite right. They could stay in a relationship even if they did not stay in a civil partnership.
That leads neatly to my next question. Given that the complications that we are struggling with seem to derive from the impermissibility under the legislation for people who become of opposite gender to remain civil partners, was there a drafting or legal difficulty that inhibited the provision in the bill or elsewhere of civil partnerships of people of opposite genders, or was that a policy decision?
Obviously, the policy is that the bill is not introducing opposite-sex civil partnerships. The cabinet secretary has announced a review of civil partnerships, in which that option and other options in relation to civil partnerships will clearly be looked at. Given that that is the general policy in relation to opposite-sex civil partnerships, we would not want a situation in which a person in a civil partnership could somehow claim to be in an opposite-sex civil partnership. The provisions reflect the fact that there is currently no intention of introducing opposite-sex civil partnerships.
For clarity, Mr Stockwell, you are not suggesting as an official that you would be unable to provide in a reasonable way for legislation that allowed civil partners to be of opposite genders. In other words, at this stage, the issue is purely a policy issue rather than an issue that lies with practical difficulties.
In my experience, Mr Stevenson, parliamentary draftsmen can do anything, so if the policy was that we wanted to introduce opposite-sex civil partnerships, I am sure that they could produce provisions within the usual timescale. It is a matter of policy that we are not introducing opposite-sex civil partnerships, rather than a matter of drafting or law.
Right. That is helpful.
My question is about that issue. As it is a matter of policy, I am not sure that we can stray into it, although the convener said earlier that he would not be too sore on those of us who strayed into such questions.
I am happy to answer your question, Mr Scott.
By not introducing opposite-sex civil partnerships, are you in some way disadvantaging those of opposite sex who wish to enter into civil partnerships?
That is quite clearly a policy decision. To be fair to Mr Stockwell, I do not think that he is required to answer that question in the context of this committee. We might well find that he will be required to answer it in another committee, but it is not an issue for us. My point was that we need to understand the policy if we are to understand the detail of the questions that we have before us.
The simple answer is that the cabinet secretary has announced that there will be a review of civil partnerships that will look at them in the round, whether it be opposite-sex civil partnerships, stopping new entrants into civil partnerships or any other variation in relation to partnerships. That is the simple answer to the question.
Has the cabinet secretary given a timetable for the review? In particular, is there an expectation that the review could be completed prior to the deadline for lodging stage 3 amendments for the bill?
No, it will not be completed by then.
We already know that it will not be.
It will not be. That is not the intention. We have begun the process and the cabinet secretary has written to ask the other party spokespersons for their views on the terms of remit of the review. We intend to publish the terms of remit fairly soon, but the bulk of the work during the next six months will concentrate on this bill, and the review will start in earnest once the bill has been passed.
Thank you.
Thank you. As there are no further questions, I think that that is it. I thank the witnesses for their time.
Very grateful, Mr Don.
The committee will suspend for a couple of minutes to allow people to draw breath.