Equal Opportunities Committee, 11 Nov 2003

Meeting date: Tuesday, November 11, 2003

Official Report 114KB pdf

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Civil Partnership Registration

I welcome Hugh Henry, the Deputy Minister for Justice, to the meeting. The minister will take questions from members as part of our inquiry into the Executive's proposals on civil partnership registration.

Are the Executive's proposals on civil partnership registration part of an overall commitment to equality issues? If so, will you give us a clear statement that the Executive supports the principle of civil partnerships for same-sex couples?

We clearly support the principle. Our proposal is that when Westminster makes an announcement, we will ensure that there is consistency throughout the United Kingdom. You asked about our wider commitment to equality—that commitment is well established. Since the inception of the Scottish Parliament, a number of issues have been dealt with and commitments made. A clear legislative commitment has been made and equal opportunities are fundamental to a number of the bills that have been passed. Even for those who do not agree with us, there are significant equalities issues within the framework of the United Kingdom that have to be addressed.

You mentioned consistency with the United Kingdom and paragraph 1.2 of your consultation document states:

"Our task is … to find the best way to legislate, and in the case of civil partnerships, this can best be done through the Westminster route since this will achieve the benefits of UK consistency."

Is the intention to be consistent with the rights and responsibilities of civil registered partnerships in England and Wales, as you mention in the consultation document, or to be consistent with the rights and responsibilities of married couples in Scotland?

The consistency would be within the framework of what the UK Government proposes to legislate on. We think that there would be significant problems if Scotland did not recognise changes that were introduced at Westminster and chose not to legislate on the issue while legislation was passed in England and Wales. Someone in Carlisle might have rights in relation to pensions and taxation that people in Dumfries did not have, which would have significant European convention on human rights implications.

We also want to address whether it would be right for people in, for example, Dumfries, to be able to exercise their rights only by travelling across the border to fulfil residency requirements in Carlisle, then returning to Scotland where their full rights would now be available. That would be perverse. I may return to that, because many people in Scotland would be disadvantaged by that.

With the introduction of a bill at Westminster, it will be right to ensure consistency throughout the United Kingdom.

Will you expand on that a little? Is the intention just to provide equal rights for civil registered partnerships on both sides of the border? Do we not want to go further? You talked about ECHR implications and consistency with the rights and responsibilities of married couples. Is the intention to go a bit further and give same-sex couples similar rights to married couples?

We are keen to avoid the importation into Scots law of English family law. That would be unjustifiable and regressive. Anything that we do will be based on Scots law. I do not know whether you are asking whether a partnership is a marriage by any other name. I do not understand the implication.

My question was about whether the rights of same-sex couples in a civil registered partnership should be on a par with and mirror those of married couples.

The rights and responsibilities will be similar, but the aim is to address inequality and the absence of some rights for people in same-sex relationships that others have—particularly rights that have significant financial implications. People could be in a long-term relationship but not have pension rights should one partner die. Tax issues are involved because such people do not have the rights that others in long-term relationships have. Matters that relate to property division and succession could also arise. The rights would be similar.

I will take that a little further. Professor Norrie from the University of Strathclyde's law school notes in his submission to the committee that in addition to conferring rights on registered same-sex couples, Scots law makes some, if limited, provision for giving legal consequences to unmarried opposite-sex couples—for example, in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Damages (Scotland) Act 1976. To achieve equal opportunities for all, those rights should be extended to unregistered same-sex couples via the proposed legislation, instead of waiting for all of cohabitation law to be reviewed. Does the Executive have any plans to extend rights in that way via the proposed legislation? If not, why not?

We are clear about what we propose to do. We are talking about the registration of same-sex couples and about extending some rights to them. Notwithstanding what you say about the rights of unmarried opposite-sex couples, I have witnessed in the debate a significant misunderstanding of the rights of opposite-sex couples who cohabit.

Although the Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives certain protection to such couples, there are other areas in which opposite-sex couples who are not married believe they have rights when they do not. That is a worry. When we come to draft our family law bill, hopefully in the near future, we will have to consider that.

We do not intend to move in the way in which the member is suggesting. We think that there are imperfections in the law—there are imperfections of understanding, if nothing else. Clearly, some of those issues will have to be addressed at another time.

So they will be addressed.

Concern has been expressed by a number of witnesses and members about the Executive's decision to take the Westminster, or Sewel route, on this issue. There are questions about the level of scrutiny that will be applied to the legislation for devolved areas. Will you clarify for the committee whether the Scottish Parliament will be able to scrutinise the Scottish provisions of the bill before they are considered by the Westminster Parliament? If so, how will that be done? We have had the chance to examine the consultation paper, some of which will be included in the bill once the consultation has ended. How much time will the Scottish Parliament have to consider the bill?

I am not sure how much time will be available. We still do not know definitely whether the proposed legislation will be included in the Queen's speech. We expect that that will be the case, but we await a final decision on the matter.

Any Sewel motion will be considered between the first and second readings of the bill. The timing of that debate will be a matter for the parliamentary authorities, rather than for the Executive. We hope that members will have an opportunity—by whatever route—to examine the detail of the legislation and to reflect on that. If there is no time for the bill to be considered in committee, that can be done in the chamber. The legislation is significant and the case for what we intend to do would be strengthened if it were understood and debated fully. I hope that there will be time for that, but neither the timing of the legislation at Westminster nor the timing of any debate in the Scottish Parliament is a matter for me.

Already the scope for simple mistakes to be made in this area has been highlighted, given the complexity of the legislation. I do not suggest that the Executive has any ulterior motives—the set of provisions that we will have to consider is simply very complex. The Law Society of Scotland and the Equality Network have suggested that several weeks will be required for proper scrutiny of the legislation. I implore the minister to take back the message that that time is needed.

We will do whatever we can to keep the Parliament and its committees fully informed of what is being discussed and of any changes that are made to the legislation. I will refer back the comments that members have made. I am sure that the committee will take up the matter with the office of the Minister for Parliamentary Business. However, I repeat that the time available for scrutiny of the legislation is not in my gift.

You will probably give a similar answer to my next question. Concern has also been expressed about what will happen if Westminster makes significant amendments to the proposed legislation for devolved areas. The minister has already made some commitments in response to concerns that people have raised and has indicated that if changes are made the Scottish Parliament will have another opportunity to consider this issue. How, if at all, will the Scottish Parliament be able to scrutinise the amended provisions before the legislation is finalised at Westminster?

If changes were made to the bill that impacted on devolved areas and exceeded the terms of the Sewel motion that the Scottish Parliament had agreed, we would refer the matter back to the Parliament and, if necessary, lodge a further Sewel motion for debate.

Do you have agreement on that with the Government at Westminster? I presume that that would involve a certain amount of delay.

That is how we will proceed and that is, administratively, how we will manage it. I am reluctant to anticipate and debate problems or create a huge controversy over something that may not happen. It is our intention to refer back to Parliament any changes that go beyond the agreed Sewel motion and to come back with a further Sewel motion, should one be required.

I would like to raise with you one or two points that have been raised with us in evidence. In section 5 of the consultation paper, you say that you believe that the devolved aspects of civil partnership registration should be based on Scots law. However, it has been noted in evidence that some elements are clearly from English law—for example, the procedures that are listed in paragraphs 6.28 and 6.29 of the consultation paper, under "Grounds for Dissolution". How will you ensure that the provisions are based on Scots law?

We are aware that there were some errors, and we have stated clearly that we will address those. We will rectify the problem and anything that we do will be firmly based on Scots law, as I said earlier, and will not be an importation of English law.

Also in evidence to the committee, it has been noted that key elements have not been mentioned in the consultation paper. One example is the provision that a partnership is void if one of the parties does not understand or is not capable of consenting, which is provided for in the Marriage (Scotland) Act 1977. Another example is provision for a simplified procedure for dissolution when no children or financial settlements are involved. Witnesses, including those from the Law Society of Scotland, have suggested that there is a need for a thorough audit of the required legislative changes in Scotland. What plans—if any—do you have to carry out such an audit?

We think that that is a useful idea. We are aware that there are some gaps, as you outlined, and it is our intention to ensure that what we propose is as comprehensive and effective as possible. We welcome the identification of gaps through the consultation. If the committee or others have anything else to contribute, we will listen and act accordingly.

I would like to take you back to an answer that you gave to the convener's first question. You said that the Executive clearly supports the principle of civil partnerships for same-sex couples. Paragraph 1.4 of the consultation paper states:

"We must … be prepared should a UK Bill be announced."

You have covered the ins and outs of that. What would the Executive's approach be if a UK bill was not announced? What if the bill failed at Westminster, as two previous bills on civil partnerships have? Are you saying that we are considering such a bill in Scotland only because the UK Government is considering the issue? I ask you to bear in mind your clear statement about the Executive's support for the principle.

It is our firm belief that the best way in which to proceed on this matter is through a UK bill. We recognise that, in theory, it would be possible for the Scottish Parliament to produce primary legislation on the issue; however, there would be significant ramifications to our doing that. We could pass primary legislation in Scotland that would have no effect at the UK level. It might not be possible to implement the intention of the Scottish Parliament, as we would be attempting to legislate on reserved matters—for example, taxation and benefits. We could end up with a significant mess, having spent a huge amount of time producing legislation that would not have the desired effect, and we would then have to answer to people on why we had chosen that route.

Our belief is that it is best to work in partnership. That way, we are able to address devolved matters, which will benefit those concerned, and reserved matters can be addressed too, which will also bring attendant benefits. The worst possible scenario would involve our trying to do something on our own that turned out to be ineffective.

There has been some debate about whether the Sewel motion offers the correct route. That said, most people probably accept what you say: if the UK Government is going to make proposals, it makes a certain amount of sense to tie in measures for Scotland at the same time, given what you have said and given the example of someone's having certain rights in Carlisle, but not in Dumfries.

You said that we would not wish to do things on our own. If, however, Westminster does not follow through its proposals for any reason—if the proposed legislation fails at Westminster—the Scottish Executive would be in something of a dilemma. There is a proposed member's bill from Patrick Harvie before this Parliament, so there are routes for our progressing the matter here. I can see the problems that you have mentioned, but the Executive has not given a clear commitment in support of the principle of the proposals.

In answer to a previous question, you said that the proposals would address inequality and an absence of rights. That is absolutely correct, and I totally agree with that. However, the question remains: what happens here if the proposals do not go through at Westminster? Would that be the end of the matter, or would Scotland consider going its own way on the issue?

I have no reason to think that the UK will not legislate in this area. If, however, the proposed legislation were not passed at Westminster, we would have to reflect on the situation. I repeat my view that, notwithstanding what you say about the proposed member's bill, I do not think that a bill, whether it was an Executive bill or a member's bill, would be able to address some of the fundamental issues that it might seek to address. It would not be able to deliver on issues around benefits, pensions or taxation. Although there is the potential for issues to be considered with regard to Scots law, the glaring inequality and unfairness is often financial in nature, and it would not be pertinent for us to try to address that.

Section 2 of the consultation document outlines some of the discrimination that is faced by same-sex couples. It says:

"Civil partnership registration is the creation of a new legal status for same-sex couples through which they can gain legal recognition of their relationship and access most of the comprehensive package of rights and responsibilities currently denied to them."

Why should they be able to access only

"most of the … rights and responsibilities currently denied to them",

rather than all? Could you specify which rights would not apply?

To which paragraph are you referring?

That is in section 2 of the consultation document. I do not have a note of the paragraph number.

We intend to bring forward a comprehensive package of rights. I am not quite clear what exactly is being asked.

The wording seems a little vague. The document says:

"most of the comprehensive package of rights",

which makes it sound like there is a gap. Is there in fact a gap? If so, what is it?

You should remember that "Civil Partnership Registration" is a consultation paper, and not the final product. It might be just a matter of the way in which that sentence has been written. It would be our intention to bring forward something comprehensive. I am not clear what the inference is.

I see now that the sentence in question is in paragraph 2.4. I do not believe that you could infer anything from that; it might be just the way in which it is written.

Hopefully that is something that can be clarified by the bill.

That would be helpful.

In paragraph 5.7 of the consultation document, the Executive states that it does not

"seek to undermine marriage by extending civil partnership registration to cohabiting couples."

Could you clarify how extending to different-sex couples the right to register their partnership would undermine marriage?

It would provide an alternative to marriage and it is not our intention to do that.

That is not the same thing. How would it undermine marriage?

We believe that providing an alternative to marriage would have the same effect as undermining it. We have no intention of taking away the relevance and significance that marriage has for many people in our society. We are giving legal recognition to people who have been denied rights that are available to others. We think that the route that is being considered is pragmatic and sensible.

There are different-sex couples throughout Scotland at the moment. Are they undermining marriage now, or would marriage be undermined only if they registered their partnership?

Are you talking about people of opposite sex who are in partnerships other than marriage?

Yes.

Marriage is open to those people should they choose to pursue that route. Marriage is not open to same-sex couples. Different-sex couples who choose not to marry have to make that decision themselves. However, there are people in long-term relationships who have been denied certain rights because marriage is not available to them. What we are doing is recognising their status. That is not marriage, and we believe that, by dealing with the matter in this way, we can address that fundamental inequality.

You are saying that to extend the same right to different-sex couples would undermine marriage. Are you saying that different-sex couples who are not married are undermining marriage, or would that happen only if you took it a step further and allowed them to register their relationships?

No. People in that situation have a choice. Same-sex couples have no choice.

Why not allow people in different-sex relationships to register?

Because they can choose to marry if they wish.

You are saying that marriage would be undermined.

You are splitting hairs.

No—you are.

No. We believe that providing an alternative to marriage for opposite-sex couples would have the effect of undermining marriage. Opposite-sex couples can pursue either civil or religious marriage, and we believe that providing an alternative to that would undermine marriage. Opposite-sex couples who do not wish to go through a marriage ceremony can choose not to do so. Same-sex couples do not have that choice.

In his evidence to the committee, Professor Norrie concluded that since 1999, in countries where civil partnership registration is open to same-sex and different-sex couples, there is no sign of a decrease in the number of couples getting married.

The professor has made a contribution to the work of the committee and the Parliament, and he has drawn a conclusion. One of the things that parliamentarians have to do is reflect on the national mood and national aspirations. They have to take difficult decisions that might not always be in tune with that mood.

In this case, we are doing something that we believe will be acceptable to the majority of people in Scotland. We are doing that in a way that will not alienate people from any side. Obviously, there will always be people who choose to differ, but we believe that we are proposing something that will not alienate the majority of people in Scotland and which will gain support for addressing an issue of inequity. I note what the professor had to say but we do not agree that that is the best route to take.

I must admit that I am slightly confused by that answer. We could have a debate about why cohabiting couples might not choose to get married; there are probably lots of good reasons. However, not extending civil partnership registration could, from an equalities point of view, be seen as discriminating against mixed-sex cohabiting couples. I am confused, because I thought that the minister said something about that earlier in relation to the family law bill. Will he clarify whether there are no plans to extend civil partnership registration to opposite-sex couples, even through a vehicle such as the family law bill?

The family law bill is not a vehicle intended for that purpose. We will have to wait and see what comes out of that bill. A number of rights and responsibilities affect cohabiting couples and clearly we need to address them. However, we are not considering civil registration for opposite-sex couples who choose not to get married.

I would like more clarification of that. It was my understanding that such registration might be addressed in the family law bill. I am concerned, because the minister spoke earlier about imperfections of understanding—people believing that they have rights that they do not have. Given that we are viewing the issue with equal opportunities eyes, the issue of civil registration for those couples has to be considered as well.

I do not know how I can be any clearer. Any suggestion that that issue would be covered in the family law bill did not come from us. There are issues to do with cohabitation that will need to be considered in a family law bill, but we have never said that a family law bill will cover the extension of civil partnership registration to opposite-sex couples who choose not to get married.

I am pleased that that clarification is on the record.

Campbell Martin asked you about the civil partnership registration of mixed-sex couples undermining marriage. What is your view on the civil partnership registration of same-sex couples? Do you think that that undermines marriage and that the institution of marriage is at threat from the bill?

No. We are talking about people in long-term, loving relationships who are denied certain significant rights and legal recognition for certain significant parts of their lives and who are unable to get married. I do not see how giving legal rights on benefits, taxation and pensions to people who cannot get married can undermine marriage. For opposite-sex couples, for whom marriage is available, those rights will continue to be available. For those who are concerned about the undermining of marriage, the biggest argument that they have to make and the biggest crusade that they have to undertake is to persuade those who are capable of getting married to do so. I really do not think that focusing on people who are unable to get married is fair or right. If those who are concerned about the undermining of marriage are not winning their arguments with the majority of the population, why do they pick on a group for whom marriage is not an option?

You made the point that if there are different laws in Carlisle and Dumfries, that would leave the Scottish Executive open to challenge under the ECHR. If same-sex couples and opposite-sex couples have different rights as far as civil partnership is concerned, would that not lead to a similar challenge?

No.

I ask because Professor Norrie raised that point when he gave evidence to the committee. Would the situation apply throughout the UK as well as in Scotland?

Yes. That is correct.

Thank you for your clarity. You have made it clear that the state has the power to deem what it means by marriage and that there is no intention to extend the definition, either to same-sex couples or to opposite-sex couples in civil partnerships. Is that not just a question of semantics? Over a period of time, do you not think that same-sex civil partnerships will come to be seen by society as marriages?

We are dealing with the specific proposal that is before us. It is not for me to speculate on what society might be like in 10, 20 or 30 years' time. When we consider legislation, we do not consider opinions or shifts in attitude; we examine the specific proposal that might become law. We have stated our view very clearly and, as far as we are concerned, there is a difference between the proposed civil partnership and marriage. The civil partnership will not be a marriage and it will not be available to opposite-sex couples.

Who knows how society might evolve in the future? It might evolve according to the aspirations of some of the people who have given evidence to the committee, who want a return to what they might describe as more traditional values. Society might evolve in that direction, or in the direction that you suggest. I have no idea.

You have already talked about the danger of postcode rights, which I mentioned earlier, and the fact that you want there to be consistency. However, there is one area in which the situation in England and Wales is very different and which will have implications for same-sex partnerships. You must be able to see the gap between England and Wales and Scotland in relation to adoption and fostering rights.

You have said that you intend to wait for the findings of the adoption policy review before you consider how the law on adoption and fostering might be amended to reflect the introduction of civil partnership registration. When do you expect those findings to be published? How can you justify such a delay?

We launched the adoption and policy review which, as you said, will examine the legal framework for fostering and adoption. It is a significant piece of work and we think that it will probably be completed towards the end of 2005. It makes sense to wait for the review's findings before we consider how the law might be amended to take account of the new status of civil registered partners.

Will you not take the opportunity to end this discrimination in one process, by using the Sewel motion?

We do not know what the review's conclusions will be, so I am not sure what we would propose.

The proposed legislation on civil partnerships aims to create a new legal status and a secular process of registration. Has the Executive given any thought to framing the legislation in such a way that religious organisations would be able to officiate at civil partnership registrations?

No. We do not intend to bring forward such a proposal. Religious organisations are entitled to give blessings to partnerships but it is not our intention to provide any legal framework for that.

The desire to combat discrimination against same-sex couples—and, by extension, against lesbians and gay men in general—is clearly a key target of the introduction of civil partnership registration. If the legislation is enacted on the basis of the proposals, how effective will it be in combating discrimination against the lesbian, gay, bisexual and transgender communities? Are you aware of any other programmes planned by the Executive to combat such discrimination?

We think that the legislation will make a significant contribution in the sense that it will give legal recognition to those in such relationships in certain aspects of their lives in which they have no rights just now. We hope that, by doing so, the legislation will help more people to understand that someone in a stable family relationship of a same-sex nature is probably making a more valuable contribution to society than someone who chooses to flip from relationship to relationship every six months and who takes no responsibility for the individuals who are left behind, whatever their age.

However, it would be foolish of us to think that, simply by passing such legislation, we can remove discrimination and prejudice. Some of that discrimination and prejudice is predicated on misunderstanding or ignorance, so we need to educate people, but some of it is based on cruder views and values that need to be confronted head on. Parliament has made it clear that we abhor discrimination and prejudice from whatever quarter. I do not want us to rest on our laurels by saying that we have done our bit simply by passing legislation. Our view is that a Scotland that is based on fairness and equality must be prepared to accept everyone, irrespective of their views or background.

The committee made a decision to have an inquiry on civil partnership registration for same-sex couples and we have had some good evidence. We are keen to know what the next stage will be. Will the Executive respond to the individuals and organisations who responded to its consultation? Will it publish a report on the consultation or will the next step be draft legislation? If so, is there a time scale for that?

We will certainly produce a report on the consultation. I am not quite sure what the time scale will be; it will take a bit of time to collate all the information and evidence. We intend to do that within a time frame that allows the Parliament and its committees to use the report when considering any Sewel motion that might come before Parliament. We anticipate that the report will be available early in 2004. If legislation from Westminster is introduced, the Parliament and the Executive will have to work very closely to ensure not only that it can go through effectively, but that the widest and deepest possible scrutiny takes place.

We will need to ensure that some of the comments that have been made this morning and in the Official Reports of previous evidence-taking sessions are picked up on. For example, Marilyn Livingstone and others mentioned Scots law and the need to ensure that we do not inadvertently import things that are alien to our law, and Marlyn Glen, I think, identified the need to ensure that some of the gaps are addressed properly. We will come back with our report early in 2004 and I hope that we can liaise closely to ensure the best possible scrutiny of the process.

If there is a need to lodge another Sewel motion—we hope that that will not be the case—the Equal Opportunities Committee would intend to consider that.

I am sure that you would want to do that.

Thank you very much for your evidence.

Meeting continued in private until 11:15.