Marriage and Civil Partnership (Scotland) Bill: Stage 3
Before we move to the next item of business, I extend a welcome to the members of the public who are in the public gallery. However, I say to them that this is a meeting of the Parliament in public, not a public meeting, and I would appreciate it very much if they did not participate in the debate by applauding or making other interventions.
The next item of business is stage 3 proceedings on the Marriage and Civil Partnership (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments.
The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds; thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate, on any group of amendments, should press their request-to-speak buttons as soon as possible after the group is called.
Members should now refer to the marshalled list of amendments.
Section 10—Persons who may solemnise marriage
Amendment 25, in the name of John Mason, is in a group on its own.
I emphasise that amendment 25 and other amendments that I have lodged are intended to strengthen the protections for those who disagree—who, frankly, will continue to disagree—with same-sex marriage. Other members may speak against the bill in principle, but that is not my intention, whatever my personal beliefs.
The words “strengthening” and “protection” can seem a bit subjective, but that is where we are. We are not at zero per cent protection, nor are we or can we be at 100 per cent. We are all trying to anticipate what the courts may or may not decide in the years ahead. I accept that the Government has made attempts to build in safeguards on what is a very controversial issue, but I would argue that we could make some improvements.
In other legislation, we have seen a degree of accommodation by the Government, which has been very welcome—for example, in the Freedom of Information (Amendment) (Scotland) Act 2013 and in the current budget bill. Surely, some flexibility today would show that Parliament is listening to the public. Some of my amendments—for example, amendments 26 and 27—might gain greater support than others, but for now we are looking at amendment 25.
Amendment 25 is based on an amendment that was accepted by the United Kingdom Government during the passage of the Marriage (Same Sex Couples) Act 2013. Section 10 of the Marriage and Civil Partnership (Scotland) Bill proposes a new section 8(1D) of the Marriage (Scotland) Act 1977, which refers to no duty being imposed by specific proposed new subsections of the 1977 act. By contrast, the Westminster protection is broader, referring to no person being
“compelled by any means”
—that is the key phrase—
“including by the enforcement of a contract or a statutory or other legal requirement”.
The aim of amendment 25 is not to remove the “no duty imposed” terminology but to bolster it by putting in the additional protection of a person not being “compelled by any means”. That is to give protection for the religious liberty and rights of conscience of those groups and individuals who do not wish to participate in same-sex marriages.
The “by any means” terminology should cover, for example, the hire of public premises being made conditional on a religious body being a prescribed body that is able to conduct same-sex marriages. That is not currently covered by the limited “no duty imposed” terminology. The amendment would help to prevent a scenario from occurring in which, for example, a religious organisation is refused hire of public buildings because it is not registered for same-sex marriages.
Given that a similar amendment was accepted at Westminster, I would argue that we could learn from that example and that amendment 25 could similarly be accepted by the Scottish Parliament and the Government today.
I move amendment 25.
14:15
One of the key concerns when the bill was discussed at the Equal Opportunities Committee was the nature of the opt-in requirement and the question whether there could be any kind of challenge.
When Aidan O’Neill and other legal experts came before the committee, my first question was whether there could be any means, under human rights or other law, whereby a church could be forced to perform a same-sex marriage, as amendment 25 tries to stave off. It is worth going through the response that I got directly, as it shows the difference between Scotland and England. It was:
“It could be argued that, at a certain level, the Church of England is a public authority when it carries out marriage functions because of its duty in law to marry anyone ... In Scotland, there is a different relationship between church and state. The Church of Scotland is not and has never been a department of the state”.
I then asked:
“Would article 9 of the European convention on human rights offer strong protection to a church against such a challenge?”
Aidan O’Neill said:
“Yes.”—[Official Report, Equal Opportunities Committee, 19 September 2013; c 1494.]
The opinion that came before the Equal Opportunities Committee from the person who is most closely associated with the campaign against equal marriage was that no further protection is necessary.
I add that the issue throws up some serious questions about parliamentary competence. We are not, in this Parliament, able to change or amend any duty that the European convention on human rights would put on us. As a layman, I would suggest that the wording
“may be compelled by any means”
could be taken to refer to an attempt to pass something in employment law or in other reserved areas. As members throughout the chamber know, should an amendment that creates an interference with reserved areas pass at this stage, it would cause the entire bill to fall. I hope that members will reject the amendment.
It would be helpful if the cabinet secretary could, when winding up, offer clarification on John Mason’s amendment 25 so that members, in exercising their vote, are aware of all the facts. I understand that the amendment seeks to ensure that there are no circumstances in which any religious or belief body can be compelled to carry out a same-sex marriage.
I understand—and as has been referred to—that a similar amendment was made at Westminster to the Marriage (Same Sex Couples) Bill, which became the 2013 act. Can the cabinet secretary confirm whether that is the case, and whether there is a difference between what was passed at Westminster and the bill? Can he confirm whether the point raised by my colleague Marco Biagi is indeed correct about the reservation?
I understand that the view of the Equality Network is that the amendment is “unnecessary” and that:
“Section 10(2) of the bill already states ... that there is no duty imposed by the bill on religious or belief bodies to request to be prescribed to conduct same-sex marriages, or to nominate any of their celebrants for registration to conduct same-sex marriages.”
That provision goes on to offer the same protection to individual celebrants, too.
It would be helpful to the entire Parliament if the cabinet secretary could advise us whether John Mason’s amendment is necessary and on what discussions he has had, if any, with our colleagues at Westminster, given the fact that similar changes were apparently accepted in the UK Parliament.
As Jackie Baillie says, the Equality Network has described amendment 25 as “unnecessary”. I would guess that the Government will take the same view, given the existing protections in the bill.
In speaking against the amendment, I think that it is worth recalling quite how strong those existing protections are. John Mason used the phrase “religious liberty”. There is at present no religious liberty on the question of same-sex marriage. Those religious bodies and officiants who wish to welcome same-sex couples on equal terms are forbidden from doing so by the secular law—this Parliament’s law. If we want religious liberty to exist on this question, liberty has to be the freedom to say yes as well as the freedom to say no—or it is not freedom at all.
At the moment, the bill actually goes further towards the constituency that John Mason seeks to represent than pure religious liberty. If we were simply concerned with religious freedom, we would say that religious officiants are neither forbidden nor compelled to conduct same-sex marriages. In fact, what the law says is that religious bodies may forbid their officiants from conducting same-sex marriages but that they may not compel.
Under the bill as it stands, religious bodies as well as individual officiants will have their freedom protected. It is worth reflecting on quite how far John Mason seeks to go away from the principle of religious freedom.
I have a brief comment that I hope the cabinet secretary will deal with in his summing up.
The argument seems to have been fairly well made that amendment 25 may not be necessary. I am sure that the cabinet secretary will say something about that in his summing up. However, I ask the cabinet secretary, in terms of building the largest possible consensus in relation to the bill, whether there would be any unintended consequences if amendment 25 was passed. In other words, would there be detriment to the bill if amendment 25 was passed? I seek clarification on that from the cabinet secretary in his summing up.
I understand and accept the principles of the bill, but the overriding interest on my part is to protect the rights of individuals while wishing to extinguish the rancour that has characterised some of the debate prior to today. I believe that amendment 25 will help.
I raised with the cabinet secretary the issue of article 9 of the European convention on human rights, which provides for
“the right to freedom of thought, conscience and religion”,
and the
“Freedom to manifest one’s religion or beliefs ... subject ... to such limitations”,
which include among several others
“the rights and freedom of others.”
Some of those people may be involved in religious organisations. That provision is compounded by the Equality Act 2010, which prohibited discrimination because of religion or belief in connection with employment, vocational training or education.
We do not need another act of toleration, and we have gone way beyond that; but neither do we need another case like the Ladele and McFarlane cases, which were on civil partnerships, ending up in the European courts, which so far have ruled that employers or organisations can legitimately limit the freedom of employees to manifest their religions or faith to prevent discrimination to other groups. Sometimes the law can be an ass.
There is no unilateralism in the bill to protect the freedom of all individuals to live and believe as they wish. That circle must be squared in the bill. I think that amendment 25 deserves consideration.
I do not support amendment 25. I will try to deal with the points that have been raised by the various speakers.
Everybody, including the Scottish Government, has recognised throughout that many churches and celebrants will have concerns about same-sex marriage. Our consultations on the bill and the planned amendments to the Equality Act 2010 reflect that.
I do not consider that there is a need to borrow terminology from the 2010 United Kingdom act. I will give a brief synopsis of the protections for Scottish religious and belief bodies and celebrants as a result of the legislation that we introduced and the related amendments to the Equality Act 2010.
The bill will establish an opt-in system for bodies that wish to take part. There is provision at section 10 that makes it clear that the bill does not impose a duty to opt in and does not impose a duty on a person to apply for temporary authorisation. We have also agreed amendments to the Equality Act 2010 with the UK Government to protect individual celebrants from actions of discrimination. I believe that the approach that we have taken was supported by the evidence given to the Equal Opportunities Committee.
Amendment 25 could actually cause confusion. In particular, it is not clear what is meant in the amendment by
“the enforcement of a contract or a statutory or other legal requirement”.
Including those words in marriage legislation might suggest that there is a statutory role for religious and belief bodies in marriage ceremonies beyond their role under the Marriage (Scotland) Act 1977.
During the debate on an equivalent amendment at stage 2, John Mason mentioned a specific example, as he has done today, of a local authority that would not hire out premises to a church because that church did not toe the line on same-sex marriage. We covered that specific issue in the Government consultation on the draft bill before it was introduced to Parliament.
Paragraphs 62 to 65 of annex A to the consultation noted that a local authority that refuses to let premises to a body on the basis of the body’s religious beliefs risks a successful claim for discrimination. I know that John Mason often raises concerns about the public sector equality duty. Our consultation on the bill went on to note that that duty does not mean that public bodies can discriminate when the Equality Act 2010 says that that is unlawful.
In conclusion, I invite the Parliament to reject amendment 25 for three reasons. First, we specifically addressed in our consultation the point that John Mason raised at stage 2 on churches hiring premises. Secondly, to import terminology from UK legislation into the bill could cause utter confusion. Thirdly, there are robust protections for religious bodies and celebrants in the bill and in the planned amendments to the Equality Act 2010. I therefore consider that amendment 25 is unnecessary and that it should be rejected.
I call on John Mason to wind up and press or withdraw his amendment.
I will comment on a few of the speeches that have been made.
Marco Biagi talked about human rights law, but that is not really the concern here. The concern is that a zealous local authority that is very committed to the public sector equality duty will refuse to let a hall or whatever to a religious group that has not signed up to same-sex marriage. It is all very well to say, as the cabinet secretary did, that there is a risk that the local authority could be defeated in the courts, but the reality is that a small charity or a small church cannot possibly afford to go to the courts. Given the cost, it is just not possible for many groups to get such clarification. That is why I argue that what I propose needs to be in the bill.
Jackie Baillie used a useful word that I think will come up again this afternoon when she said that the amendment is “unnecessary”, and the cabinet secretary said that there is no “need” for it. However, that is not really my argument. The argument is not that we have 100 per cent safeguards here or that we do not. We know that we are in a grey area. The question is whether we can make things a little bit clearer through amendment 25 and others. That is why I am arguing for what I propose.
Patrick Harvie mentioned religious freedom. I am happy to accept that there is not complete religious freedom at the moment, but some of the danger around the bill is that, overall, religious freedom will be reduced.
I end by saying that, if the Parliament accepts none of my amendments this afternoon, we will send out a signal that we have not been listening. I think that we should at least accept one or two of them. I press amendment 25.
The question is, that amendment 25 be agreed to. Are we agreed?
Members: No.
There will be a division. As it is the first vote of the afternoon, there will be a five-minute suspension.
14:27
Meeting suspended.
14:33
On resuming—
We move to the division on amendment 25.
For
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lyle, Richard (Central Scotland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
The result of the division is: For 21, Against 96, Abstentions 3.
Amendment 25 disagreed to.
After section 14
Group 2 is on protection of freedom of expression. Amendment 26, in the name of John Mason, is grouped with amendments 3, 1, 2 and 30.
Amendment 26 is one of the simplest and most straightforward amendments and I hope that it will gain support, even from those who are strongly in favour of the bill.
Parliament knows the strength of feeling with which many in Scotland hold to the view that marriage can be only between a man and a woman. That has been the prevailing view in Scotland for centuries. It may now be considered to be a minority or even old-fashioned view, but it is an integral tenet of faith for many Christians, Muslims and others, as well as the belief of many with no faith position at all.
The bill’s policy memorandum states:
“Many people and organisations hold the view that marriage can only ever be between a man and a woman. The Government has made clear its respect for this view”.
Similarly, during our oral evidence sessions, the director of Stonewall Scotland, Colin Macfarlane, told the Equal Opportunities Committee that not believing in same-sex marriage does not make an individual homophobic
“in any way, shape or form.”—[Official Report, Equal Opportunities Committee, 5 September 2013; c 1397.]
However, a distinct lack of respect for people who express that view has already come to light—and that is before the law has changed. For example, we have seen volunteers in the third sector removed from the board for publicly supporting traditional marriage and our colleague Elaine Smith vilified for expressing her opposition to same-sex marriage.
Does the member accept that intemperate language has been used on both sides of the debate? Does he condemn its use on both sides, as I do?
Yes, I completely accept that intemperate language has been used. If I believe everything that is said on Facebook, thousands of people will be campaigning against me at the next election.
At stage 2, some members asked why only the current definition of marriage was being singled out as worthy of respect in the amendment. The answer, of course, is that, if the law is changed, the new definition of marriage will automatically be afforded full protection and respect by the law. Amendment 26 is necessary to ensure that what may become the old definition of marriage, to which many in Scotland will continue to adhere, is likewise protected and respected. Should the new definition of marriage be agreed by Parliament, it is important that individuals and organisations that do not agree with the new definition feel free to express their opinions without fear. By agreeing to the amendment, Parliament would send a strong signal that intolerance of those who continue to believe in the current definition of marriage will not be tolerated.
I understand that the language that is used in amendment 26 is a key test that is used by the European Court of Human Rights. Surely showing tolerance of and respect for those whose views may differ from the state’s position is the hallmark of any democratic society. I therefore urge MSPs across the chamber, whatever their view is on the bill, to support amendment 26.
I turn to my amendment 30. It has been accepted that the need to amend the Equality Act 2010 is part of the process. I know that the Scottish Government has been working with the UK Government to prepare amendments to that act that relate to religious bodies, celebrants and others who do not wish to take part in the solemnisation of same-sex marriages.
However, concerns about the Equality Act 2010 go beyond the issue of celebrants and what happens inside religious buildings. The further issue relates to ordinary people, specifically those who work in the public sector. The Equality Act 2010 is intended to protect such people against discrimination on the ground of religion or belief, but it has tended not to do so. That protected characteristic has rather been relegated below others. Therefore, I would like to see additional amendments to the 2010 act that would specify that the protected characteristic of religion or belief includes the belief in marriage as currently defined.
That would not guarantee success in the courts, but it would confirm that belief is capable of being protected by the 2010 act and would make it clear that compliance with the public sector equality duty in section 149 of that act requires ensuring that no one should suffer any detriment as a result of holding or expressing the view that marriage is between a man and a woman. Nobody who works in or seeks a career in the public sector in Scotland should have their equality and diversity credentials and therefore their suitability for employment disputed merely because they hold to the existing view of marriage. That is why I believe that amendment 30 is required.
I move amendment 26.
I lodged amendment 3 because I believe that the important principle of reasonable accommodation should be prioritised in assessing how to fulfil the public sector equality duty that is contained in the UK Equality Act 2010.
As I said at stage 2, the public sector equality duty places a duty on public authorities to have regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations, which includes the need to tackle prejudice. Many organisations, such as churches and religious charities, are at the forefront of tackling social problems in their area—for example, by working with the homeless or providing food banks.
It must be made clear that the public sector equality duty should not be used to deny religious organisations that are known to be opposed to same-sex marriage the ability to provide public contracts or to hire public buildings, as many churches do. Public bodies should seek to make reasonable accommodation for religious groups in order to facilitate those organisations to maintain their ethos.
For example, a local authority may claim that it would be in breach of the public sector equality duty if it were to give a grant towards the cost of a community project to, or enter into a contractual relationship with, a local church if that church were unwilling to marry same-sex couples. Similarly, public sector employees may find themselves being asked to act against their conscience if they believe in traditional marriage. Nobody who works in or seeks a career in the public sector in Scotland should have their equality and diversity credentials or their suitability for employment disputed merely because they hold to the existing view of marriage, whether expressed or not.
At stage 2, Alex Neil said:
“I understand the concerns that religious bodies have expressed. As well as making it clear that people who oppose same-sex marriage should not be denied public services or the use of public facilities, we have made it clear that religious bodies that oppose same-sex marriage will continue to be eligible for grants and public services. As I have said, any public services that are provided through public money must in principle be available to all.”—[Official Report, Equal Opportunities Committee, 19 December 2013; c 1730.]
I therefore urge Alex Neil to do exactly what he said at stage 2 and support my amendment.
As an adoptive parent myself, I appeal to the cabinet secretary and to every member in the chamber, whatever their view is of the bill, to understand why I feel that it is incumbent upon me to return with amendment 1 at stage 3. I do so because this is a matter of the utmost importance. People have to experience adopting a child to know what couples go through. Social workers—quite rightly—ask many questions and my wife and I went through the process and eventually got a baby 32 years ago.
I am glad that the cabinet secretary is on the record as saying:
“It would not be appropriate for prospective and current foster carers who oppose same sex marriage to have their suitability to foster children questioned just because of opposition to same sex marriage.”
I do not doubt his sincerity for one minute. He went on to say that
“opposition to same sex marriage is not by itself sufficient to make a person unsuitable to provide foster care.”—[Official Report, Written Answers, 12 November 2013; S4W-018023.]
I think that it is the phrase “by itself” that may trouble potential carers. It would be a genuine tragedy for everybody involved—especially the children—if prospective foster carers or adopters were turned down because their views on same-sex marriage led the authorities to question their suitability for the role. What is more likely, yet no less tragic, is that applicants with so-called traditional views on marriage will be put off applying in the first place, fearing that they will be branded homophobic.
It is worth emphasising that amendment 1 gives no special protection to people who disagree with same-sex marriage. Rather, it means that no views on the subject, whether for or against, should be factors in the approval process. My amendment would therefore provide equal protection for a couple who were passionately in favour of same-sex marriage and who found themselves in difficulty. That is why the bill should state that views on same-sex marriage cannot be taken into consideration during the approval process for prospective foster carers or adoptive parents. I therefore earnestly urge colleagues to lend me their support this afternoon.
Amendment 2 aims to ensure that an organisation’s charitable status is protected if it believes in the present definition of marriage. As every member knows, Scottish civic society is teeming with charitable organisations, many of them religious, which are engaged in all sorts of social activities in their communities such as food banks, homelessness services or debt advice.
It is also the case that many of those charities, due to their ethos, would not be supportive of same-sex marriage. That certainly does not mean that same-sex couples would be discriminated against with regard to the services that are provided by such bodies—to suggest otherwise is quite wrong and would be a terrible insult to those organisations. On the contrary, the issue at stake is that the Office of the Scottish Charity Regulator may seek to use a charity’s opposition to same-sex marriage as a means of challenging its public benefit. The loss of charitable status could easily lead to such an organisation’s closure, which would have a hugely detrimental impact upon the vulnerable people who rely on the services that it provides.
Despite previous ministerial assurances regarding the future of the Catholic adoption agencies, OSCR has sought to remove charitable status from St Margaret’s Children and Family Care Society because St Margaret’s gives preference to married couples. I hope that all members have read the extremely thoughtful letter that was sent to us by the Rev Thomas White, the executive chair of St Margaret’s, which expands on the issue. The fact that OSCR’s decision has been overturned on appeal in the past few days is extremely good news, but it does not mask the fact that OSCR wished to remove St Margaret’s charitable status and that a lengthy period of uncertainty, disruption and distress has engulfed that small society. St Margaret’s had to use the law to protect itself, but a less well-resourced charity might feel that the costs would deter such action.
14:45
The appeal decision is welcome, but the entire sorry episode serves to underline why amendment 2 is so important. It would simply ensure that OSCR could not consider an organisation’s position on same-sex marriage when assessing its charitable status. I therefore urge the Government and all members to put the matter beyond doubt and to back amendment 2, which would send out a powerful message to the many voluntary bodies that are currently hard at work in our communities and which might be worried about the bill’s unforeseen impact.
Several members wish to speak, so I urge them to be as relatively brief as they can in making their point.
Above all with the bill, which will shortly become law, I want it to be even handed. I want the same protections and provisions to apply to lesbian, gay, bisexual and transgender people and to those who are not LGBT, including those who oppose the bill. Whenever the Equality Act 2010 is mentioned in the Equal Opportunities Committee, my colleague John Mason mentions the prospect of a hierarchy of rights. However, it seems to me that the amendments in the group try to create a hierarchy of rights by creating special protections.
Those protections are unnecessary. Section 14 states:
“nothing in this Part so far as it makes provision for the marriage of persons of the same sex and as to the persons who may solemnise such marriages affects the exercise of—
(a) the Convention right to freedom of thought, conscience and religion,
(b) the Convention right to freedom of expression”.
Those two strong protections run right through the bill and apply equally to those on both sides of the debate. Moreover, the suggested amendments to the Equality Act 2010 in amendment 30 have already been rejected by the United Kingdom Government and would therefore cause the bill never to come into force.
The argument behind amendment 26 is that opposition to same-sex marriage is a belief that is worthy of respect in a democratic society. John Mason suggests that we need a provision on that because the bill creates a new definition. However, the bill goes out of its way to ensure that it is perfectly legal for a church or other religious organisation not to perform same-sex marriage. The bill creates a situation in which every church has to choose, so it seems perverse to think that the wording of the bill could be cited as a reason for actions against a group that had used the powers that are in the bill. There is a strong difference between a bill that permits same-sex marriage and one that criminalises opposition to it. This bill is clearly permissive rather than compulsive.
None of the amendments in the group is necessary, because all the protections are in the bill. I would not want to lodge an amendment stating that support for same-sex marriage is a belief that is worthy of respect in a democratic society or that an organisation that supports same-sex marriage should not be denied access to public services, even though I can foresee circumstances in which local authorities or other organisations might have a bit of reluctance in that regard. Let us have one set of protections that applies broadly and that covers everyone, so that we are all equal in the eyes of the law.
I wish to comment on amendments 1 and 2 in the name of Richard Lyle and amendment 30 in the name of John Mason.
I will start with the latter. I am totally opposed to amendment 30, because whether or not John Mason intended this to be the case, it is undoubtedly a wrecking amendment. Expanding the protected characteristic of religion and belief to include belief that marriage should be only between one man and one woman raises questions about the overall status of other beliefs. As I understand it, it is extremely unlikely that the UK Government will agree to those particular amendments to the Equality Act 2010. Therefore, because the bill could be enacted only after those specific changes had been made, it would in effect never happen. Of course, it is up to individual colleagues to exercise their judgment on amendment 30, but I urge caution, given the likely effect of agreeing to it.
The Scottish Government has, of course, been in dialogue with UK counterparts, and it would be useful for the cabinet secretary to set out the agreement for an order under section 104 of the Scotland Act 1998 and how those additional protections in the Equality Act 2010 will be taken forward.
I turn to amendments 1 and 2 from Richard Lyle. It seems a long time ago, but I recall the same matters being discussed in the chamber during the passage of previous legislation and my colleague Michael McMahon seeking clarification from ministers about Catholic adoption agencies when we last considered fostering and adoption. He was given an on-the-record assurance about the Scottish Government’s intentions, and we know that that counts.
I recognise that decisions about adoption and fostering are taken with the interests of the child as the paramount factor, so what reassurance can the cabinet secretary offer that belief in traditional marriage between a man and a woman is not an issue in determining fostering and adoption?
Members will understand concerns, as the charitable status of St Margaret’s Children and Family Care Society was questioned, and I am delighted—as, I am sure, are many other members—at the ruling of the Scottish Charity Appeals Panel only last week, which recognised that the society provides public benefit and qualifies for charitable status.
My question to the cabinet secretary is whether we need to put the matter beyond doubt by putting it into the bill. If not, what clear indication of safeguards and intention on the Government’s part can he offer that would be useful to members in determining how they vote?
I speak in support of amendment 26, which reflects the high level of public concern about same-sex marriage and seeks to protect those who hold to the current definition of marriage. It provides wider protection than the provision that protects clergy and religious celebrants. In essence, it seeks to ensure the right to freedom of speech for individuals of all faiths who believe that marriage is between only a man and a woman.
In a democratic society, showing respect and tolerance for those whose views differ from the position that is legislated for by the state is fundamental. The main argument against amendment 26 appears to be that it is discriminatory because it implies that other views are not worthy of respect. I consider that to be oversensitive to the point of looking like an excuse not to support that fundamental freedom.
Amendment 3 is also worthy of support to guard against the overzealous, politically correct interpretation of the bill. On that basis, I consider Richard Lyle’s amendments 1 and 2 also to be worthy of support.
I oppose amendment 1 in the name of my friend and colleague Richard Lyle, with whom I have a respectful disagreement on the subject.
Amendment 1 is identical to stage 2 amendment 43, which the Equal Opportunities Committee considered and to which it disagreed. It would prevent an adoption agency, court or local authority from taking into account a person’s views about same-sex marriage in all cases in making decisions on approving the person as an adopter, on the adoption of a child or on approving the person as a foster carer.
Speaking as someone who is gay and adopted, I believe that amendment 1 is discriminatory and unnecessary.
It is discriminatory because it singles out beliefs about same-sex marriage as being worthy of particular protection. However, why should other beliefs—for example, a belief that divorce is wrong—not be equally protected? Passing legislation that gives greater protection to one particular belief might undermine the legal position of all other beliefs, because courts might take the view that the Parliament intended that beliefs that are not specifically listed in legislation should be less protected.
Amendment 1 is unnecessary because adoption and fostering legislation already requires decisions to be based on, as Jackie Baillie said, one paramount consideration: the best interests of the child. Constraining the courts, local authorities and adoption agencies, as the amendment seeks to do, could unacceptably interfere with their ability to ensure that the best interests of the child remain the paramount consideration.
It is clear that—here I agree with Richard Lyle—a person’s view on same-sex marriage should not and must not, as family law and equality and human rights legislation already state, be the determining factor in deciding their suitability as an adoptive or foster parent. However, it would be disproportionate and would distort the decision-making process to exclude all consideration of such views in all cases. For example, where a child has been successfully brought up for some years by a same-sex couple and is now in need of adoption or fostering, the fact that a possible adoptive or foster parent has strong views against same-sex marriage and says that they would seek to teach the child those views might, in some cases, count against their suitability as adoptive or foster parents.
For those reasons, the amendment is disproportionate. Overall, I believe that it is unnecessary and could be discriminatory. For all of those reasons, I urge the chamber to reject the amendment.
I would like to speak briefly on amendment 26. First, for the avoidance of doubt, I agree that it is unnecessary—indeed, that is presumed within the words—but we must acknowledge that, as we have all seen from our mailboxes, there is widespread concern about the matter.
Why is it relevant here? Why is it not discriminatory in its context? Quite simply because it relates to a bill that changes the more than 2,000-year-old definition of marriage. That is precisely why this is the right place for it. It is not discriminatory in its context, although, of course, it would be if it were anywhere else. Right where it is, it seems to provide reassurance, if not protection.
Marco Biagi points out that this group of amendments creates a hierarchy, and he is quite right. In particular, amendments 26 and 3 open up another possibility, of an increased likelihood of speculative attempts to press matters through the courts. I am sure that we can envisage a scenario in which any measure that is taken by a local authority or other public body to promote equality or tackle prejudice and discrimination would be challenged in the courts on the basis that it does not show sufficient respect for the belief that same-sex marriage is wrong.
There is a similar issue with amendment 3, in particular the words that are used in subsection (2):
“The belief is that marriage may only be between one man and one woman.”
It does not say that it should be; it says that it “may only be”.
The amendment would open up the possibility of organisations seeking to refuse to acknowledge same-sex married couples as married couples and refusing to treat them as married couples, because they take the view that that is not what marriage ought to be. That would give rise to a host of legal challenges, which I do not think is what the member who is moving the amendment would wish to happen.
On Richard Lyle’s amendments, amendment 1 says:
“the views of a relevant person on whether marriage may be between persons of the same sex may not be considered”.
That seems to imply that those views may not be considered no matter in what terms they are expressed. I know that there are people who say that opposing same-sex marriage does not make a person homophobic, and perhaps on another occasion there will be greater time to debate that question in depth, but I am sure that all members accept that homophobia exists in our society and that, when considering matters around adoption and fostering, it would be legitimate to consider the views of some of those people who express those views in the terms that members will have seen in their inboxes. To suggest that those views can never be considered goes far too far.
Amendment 30 is the most transparent wrecking amendment in the papers before us today. To suggest that this legislation cannot come into force until amendments are made to the Equality Act 2010, which we know will not happen, is simply an attempt to stymie the will of the majority in Parliament to pass the principle of same-sex marriage.
I urge all members to reject all the amendments in the group.
I advise the Parliament that I am exercising my power under rule 9.8.4A(c) to extend the next time limit, to avoid debate on this group being unreasonably curtailed.
15:00
I support Richard Lyle’s amendment 2, which deals with the issue of charitable status, an issue that I raised during the stage 1 debate. As Richard Lyle pointed out, there will be many faith-based social providers who might well fall foul of this legislation, should it be passed in its current form.
I have no doubt that, if the bill is passed, there will be challenges to the charitable status of certain faith-based social providers that take a traditional view of marriage. As has been mentioned, we saw that in relation to St Margaret’s adoption agency and its view on same-sex adoptive couples. As we have heard, the good news is that that issue has been resolved and the decision has been taken that charitable status should be retained.
Of course, that does not mean that the same will necessarily apply should the bill be passed, because we are dealing with completely different legislation and a different set of circumstances. Even so, even though St Margaret’s survived, it nevertheless suffered huge disruption to its important charitable work and a cost of some £50,000 in legal expenses—a cost and a challenge that could well close down many other faith-based charities that have a much smaller budget.
The issue is simple and straightforward. The Scottish Government has made it clear that it does not want to see charitable status removed from such faith-based social providers. The Scottish Government should take the lead on this—it should put the matter beyond doubt and accept amendment 2. The Government will no doubt say that it is unnecessary, but it seems to me that if anything can be done to deter what might be vexatious challenges to the charitable status of faith-based social providers, such provisions should be put in place.
I ask the cabinet secretary to address one point when he comes to wind up on this group of amendments. If he does not think that amendment 2 is necessary but agrees with me about protecting the charitable status of such faith-based social providers, would he undertake, in the event that the bill is passed and we subsequently see such challenges to the charitable status of faith-based providers, to bring back to the Parliament primary legislation to put the matter right? I believe that Parliament is agreed that it does not want to see that charitable status removed.
I have told the chamber before that it came as a bit of a shock, when I was first elected some 15 years ago, to be told that I was a parent. My shock increased dramatically when I was told that I was a parent of hundreds of children. Now, in this place, like everyone else, I am the corporate parent to thousands of children in this country. That is why I have always had an interest in adoption and fostering. It is much better if a kid ends up with parents rather than going through the care system. When it comes to adoption and fostering, consideration of a child’s future is paramount.
I cannot understand Mr Lyle’s amendment 1, which would make special provision for one set of beliefs but not, as Mr Eadie outlined eloquently earlier, for other beliefs. The amendment is a bit daft, to say the least, because we would end up with huge numbers of other folk coming forward with future amendments on adoption and fostering, asking for special protection for other folks who hold different beliefs. That would be a rod for our own backs. I am very interested to hear what the cabinet secretary has to say on the issue. However, as it stands, amendment 1 should be rejected by Parliament.
Mr Eadie’s contribution compelled me to rise to speak on amendment 1. I agree whole-heartedly with Mr Eadie that equality and rights in this area cut both ways. He gave a practical example of why amendment 1 is flawed.
I hope that I misheard Mr Harvie—whose views on the matter I completely respect—in relation to amendment 1. I thought that he mentioned that he believed that people who opposed same-sex marriage might, as a rule, be homophobic, which I do not believe is necessarily the case. I hope that I am wrong about what Mr Harvie said. This is an opportunity for Mr Harvie to clarify the point.
Some people have argued that simply opposing same-sex marriage does not make a person homophobic. Whether or not I agree with that—and I am not sure that I am convinced of that argument in blanket terms—the point that I was making was that homophobia does exist and it is important that in the legislation that this Parliament passes and the debates that it conducts, we do nothing that endorses or justifies the homophobia that exists in our society.
I am delighted that I did contribute in relation to amendment 1, because I agree with every word that Mr Harvie said and that was an opportunity to clarify what he said. On the basis of what we have heard, I will not be supporting amendment 1 this afternoon.
Like others, I am concerned about the potential impact of these amendments and I do not support them. A number of them would make specific reference in legislation to protecting views about marriage being between one man and one woman. As others have said, that raises questions about other views.
I do not consider that amendment 26 is necessary. I agree that a belief that marriage should only ever be between one man and one woman is worthy of respect. However, it would be unnecessary and unhelpful to put a specific provision on that in the bill. Making specific reference in legislation to one issue would raise questions about other beliefs for which there is no specific legislative provision. In addition, the effect of providing in law that one particular view is “worthy of respect” is unclear. It could almost suggest that the view could not be criticised, which would undermine freedom of speech.
On amendment 3, I agree that a person or body that believes that marriage may only be between one man and one woman should not, on the basis of that belief alone, suffer detriment when using a public authority’s service or facility. However, there is already provision in this area.
At stage 2, Siobhan McMahon expressed concern about, for example, religious organisations that are opposed to same-sex marriage not being allowed to provide public contracts or not being allowed to hire public buildings. In response to the request that Jackie Baillie made during her speech, I can refer to the relevant amendments to the UK Equality Act 2010, which I have agreed with the UK Government. One of those amendments is to protect people from discrimination in relation to persons controlling the use of religious or belief premises who refuse to allow those premises to be used for same-sex marriage—in other words, people cannot be discriminated against because they refuse to allow those premises to be used, as outlined by Siobhan McMahon.
A public body that refuses to let premises to a religious body just because of the religious body’s views on same-sex marriage risks a successful claim for discrimination, however. The key factor in relation to the award of contracts is the balancing of cost, quality and sustainability to provide the service to all who need it, rather than views on same-sex marriage. I do not consider that amendment 3 is necessary or helpful. As with other amendments in this group, the amendment is unhelpful in that it raises questions about the impact on other beliefs for which there is no specific legislative provision.
On amendment 1, I appreciate Richard Lyle’s concerns, but the key and overriding principle in relation to adoption and fostering is the welfare of the child. It is already the case in law that views on same-sex marriage—or anything else for that matter—should not disqualify anyone from becoming a foster carer or adoptive parent. If the amendment was agreed to, we would be singling out views on marriage as being a specific issue that should not be considered by adoption agencies, the courts and local authorities. Again, it seems unnecessary and unhelpful to single out views on same-sex marriage in that way.
The better approach is to assess prospective foster carers and adoptive parents in a comprehensive way on their ability to provide loving homes and to promote the welfare of children in their care. We should not concentrate on views on issues of the day, but instead should concentrate absolutely on what is best for the child.
I have similar concerns about amendment 2. It is already the case that the simple expression of a view on same-sex marriage, which is to the furtherance of a body’s charitable purposes, is not expected to adversely affect the body’s charitable status. Under the Charities and Trustee Investment (Scotland) Act 2005, a body seeking charitable status has to show the Office of the Scottish Charity Regulator or the courts that its purposes are for public benefit. The act does not lay down what purposes are for the public benefit. Amendment 2 appears to seek to change that only in respect of same-sex marriage.
That could raise general questions about how charitable status is decided. Singling out views on same-sex marriage could cast doubt on the expression by a charity of a view on other issues and lead to the need to amend the 2005 act repeatedly, to make provision on each issue. That concern is similar to the concern about many of the amendments in this group.
Before the cabinet secretary finishes on amendment 2, will he address the point that I raised? If, when the bill is passed, he turns out to be wrong about the issue and there are successful challenges to the charitable status of faith-based social providers who take a traditional view of marriage, will he undertake to introduce primary legislation to this Parliament to put matters right?
We are absolutely, totally sure that we are not wrong on this matter. If such a situation arose under unforeseen circumstances, we would take whatever measures were necessary to rectify it, because it would not be an acceptable position. I hope that that reassures the member that we are absolutely sure about what we are proposing. However, if we turn out to be wrong—which would be a highly unusual occurrence, in my estimation—we would take corrective action as appropriate at the time.
I do not consider that amendment 30’s suggested changes to the Equality Act 2010 are desirable. The first suggested change is to the protected characteristic of religion or belief. If the protected characteristic of religion or belief should be amended to make a specific reference to the belief that marriage may only be between a man and a woman, doubts could be raised about whether other beliefs are covered by the protected characteristic.
Similarly, I do not agree with the proposed amendment to section 149 of the 2010 act, on the public sector equality duty. The amendment would provide that complying with the equality duty requires a public authority to ensure that a belief that marriage may only be between a man and a woman is respected and that no person may suffer any detriment as a result of holding or expressing such a belief. Imposing an obligation on a public authority that they must ensure that a specific belief is respected would give them a duty that they could not deliver.
Given that I do not consider that those changes should be made to the Equality Act, it follows that I do not consider that the commencement of the same-sex marriage provisions should depend on them. Indeed, as Jackie Baillie and others have stated, it is highly unlikely that the UK Government would make those changes to the Equality Act, so it appears that amendment 30 would stop the provisions on same-sex marriage in the bill from being commenced. That would, of course, have a huge impact on the bill and could delay same-sex marriages in Scotland for an indefinite period. We would have to discuss the proposed amendments to the Equality Act with the UK Government, which is opposed to them and opposed them when it considered its own legislation.
The effect—although perhaps not the intention—of amendment 30 would be to wreck the bill entirely. I therefore invite the Parliament to reject all the amendments in the group.
I thank members for their contributions and will mention one or two. Marco Biagi and Patrick Harvie talked about wanting balance and not wanting a hierarchy of rights. However, I am making the point that there appears to be a hierarchy of rights at the moment and we are seeking to equalise those rights, so that all protected characteristics in the Equality Act are treated more equally. That point was raised at Westminster, including by me when I was a member of the committee that studied the Equality Bill as it went through the Parliament there. The Government at that time refused to say either that all rights were equal or that there was a hierarchy. However, we have seen in practical experience that there is a hierarchy in the courts.
I certainly disagree with Marco Biagi on one point. He emphasises that churches and denominations are being protected, but misses out protection for people in the voluntary and public sectors.
15:15
Does the member not appreciate that the relevant articles in the European convention on human rights, including the one on freedom of thought, expression and religion, apply equally to individuals, organisations and any other form of entity that might exist in this country?
But the reality is that the courts decided against someone like Lillian Ladele, who was not allowed to exercise any freedom in her case.
Jackie Baillie and Alex Neil said that amendment 30 is a wrecking amendment. I am willing to accept that the effects of the amendment would be more difficult to achieve than those of some of the others, but the reality is that any amendment to the Equality Act 2010 is made through negotiation with Westminster, and that is all that the amendment seeks.
Murdo Fraser made a strong argument for amendment 2, which many members will have been convinced of. Kevin Stewart talked about only protecting one group, but not all groups are under the same amount of pressure. Alex Neil mentioned that the Equality Act 2010 has exactly the same problem in that it does not cover every single possible group that could be discriminated against; it focuses only on the eight or nine groups that are most discriminated against.
Alex Neil said that he was “absolutely, totally sure”, although he seemed to back off from that later. That is an incredibly strong statement to make about anything that might happen in future in the courts.
I want to focus on amendment 26. We all seem to agree with the wording of the amendment. If we reject it, are we saying that the belief in traditional marriage is not worthy of respect? If members wanted to send out the message that they have been listening, amendment 26 would be a good one to support.
The question is, that amendment 26 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Johnstone, Alex (North East Scotland) (Con)
Lyle, Richard (Central Scotland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Malik, Hanzala (Glasgow) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
The result of the division is: For 19, Against 95, Abstentions 7.
Amendment 26 disagreed to.
Because I extended the time limit for the first group of amendments, we have less than 10 minutes to deal with groups 3 and 4. That will not be sufficient time, so I advise members that any member has the right, under rule 9.8.5A, to move a motion without notice proposing that the next time limit be extended by up to 30 minutes. Does any member wish to so move?
Motion moved,
That, under Rule 9.8.5A, the next time limit for consideration of amendments be extended by up to 30 minutes.—[Alex Neil.]
Motion agreed to.
Amendment 3 moved—[Siobhan McMahon].
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Lyle, Richard (Central Scotland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Malik, Hanzala (Glasgow) (Lab)
The result of the division is: For 21, Against 98, Abstentions 2.
Amendment 3 disagreed to.
Amendment 1 moved—[Richard Lyle].
Presiding Officer, may I have a few seconds to reply to some of the comments that have been made?
No, I am afraid that you cannot. I am sorry.
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Brown, Gavin (Lothian) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Lyle, Richard (Central Scotland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Malik, Hanzala (Glasgow) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
The result of the division is: For 20, Against 98, Abstentions 3.
Amendment 1 disagreed to.
Amendment 2 moved—[Richard Lyle].
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lyle, Richard (Central Scotland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Malik, Hanzala (Glasgow) (Lab)
The result of the division is: For 27, Against 92, Abstentions 2.
Amendment 2 disagreed to.
After section 21
Group 3 is on review of same-sex marriage. Amendment 27, in the name of John Mason, is the only amendment in the group.
Members will be glad to know that amendment 27 is the last of my amendments.
Whatever our view of the bill, it proposes a major change to what has been the tradition in Scotland for a very long time. Even if there is—as there was at stage 1—a big majority in Parliament to pass the bill, the public is much more evenly split than we are.
I suggest that amendment 27 is one of the easiest amendments to support, even for the bill’s proponents. The amendment, if agreed, would send out the message that Parliament is listening and that should anything unintended happen—on either side of the argument, because it is a neutral amendment—that can be reviewed. With that in mind, there should be a commitment to review the legislation after five years and to assess its impact. If the impact is minimal, the review will still be worth while; if, however, the legislation is shown to have had any negative effects or has not had all the positive effects that its supporters hoped for, a review will serve to address those effects. It has been said before that Parliament should regularly review all legislation, but we all know that that has not always been managed. Amendment 27 would put down a simple marker in the bill and ensure that a review takes place.
It was suggested at stage 2 that amendment 27 could be interpreted as a sunset clause. The implication of that interpretation would mean that, if accepted, same-sex marriages might in the future be abolished. That is clearly not the case; all that is asked for is a review.
I move amendment 27.
My comments on amendment 27 will be brief. The fact that we are debating an issue that was the outcome of something that happened in 2007 shows that the issues will continue and that they will be looked at and debated in the chamber without the need for an arbitrary review being set at a particular time. The suggestion that the bill will be passed and then sit on the statute book unexamined is rather far fetched. Given that Parliament will be actively watching the situation and that civil society will be actively debating the issue for years to come, I do not see the need for an arbitrary review at the five-year point.
I tend to agree with Marco Biagi and to disagree with John Mason’s amendment 27. It ignores the democracy of Parliament and calls on the Scottish ministers, in conducting a review, to
“consult such persons as they consider appropriate”
and to publish a report. However, Parliament has a committee structure, and the committees have the protocol of reviewing all Scottish legislation. I therefore agree with Marco Biagi that the amendment is unnecessary, and I shall vote against it.
Post-legislative review is a good idea in all cases. It is one of the objectives that Parliament does not achieve often enough.
The six amendments that we have debated previously today, and several others that were lodged at stage 2—including my own, which I have not brought back to Parliament—were designed to ensure that the bill, once it becomes an act of law, does not have unintended consequences. The case for each of the previous amendments has been argued well but has been substantially rejected by Parliament. It therefore seems to be reasonable that, at the end of the process, we should have an amendment that is designed to protect against unintended consequences.
Amendment 27 does not ask us to change the bill in any way; it asks for a review to ensure that, after five years, should the majority in Parliament turn out to have been wrong, and should there have been unintended consequences, the Government of the day will be able to deal with the problems as it sees fit. I do not accept the suggestion that amendment 27 is somehow a sunset clause, because the amendment makes it clear that the review would be a review of the effects of same-sex marriage.
It is vital that, when we come to a conclusion on the bill, we find a way to bring Parliament together. It is therefore reasonable that the majority who seem likely to have their way at decision time tonight should take this only remaining opportunity to offer an olive branch to the other sections of opinion within Parliament, who are concerned about the effects of the bill, by ensuring that amendment 27 is passed. Should the majority be right, the effect of the amendment will be virtually zero. Should there be unintended consequences, the effect of the amendment will be to offer an opportunity for the Government of the day to deal with the problems.
I invite members across the chamber to take the opportunity to join Parliament together around the amendment, to ensure that we all have something that we can agree on and take forward alongside the legislation.
It has been properly pointed out that post-legislative scrutiny is a matter for parliamentary committees. No doubt, any committee that considers it necessary to undertake that work will do so in its own good time.
John Mason says that amendment 27 is designed to send a signal. Let me ask members to consider what signal it will, in fact, send. The signal that it will send, for the next five years, is that same-sex marriages remain an open question, and that anyone who has taken part in a same-sex marriage—anyone who has formed a relationship and has married their same-sex partner—will still have a question hanging over them: what is the future going to be? Is there any other category of marriages that members would like to keep on hold for the next five years while we conduct a review of the consequences? I do not think so.
Does Patrick Harvie agree that the message that amendment 27 sends, based on the stipulations within it, is that somehow same-sex marriage can have only negative consequences?
I agree. My final point relates to the argument that there will be unintended consequences. People have been whipping up completely groundless fears about what the consequences of the bill will be.
Let me explain what the consequences will be. Some couples who love each other will get married. They might previously have been in civil partnerships. Some confetti will be thrown. Some cake will be eaten. Occasionally, an auntie will use the excuse to buy a new hat. With just a little bit of luck, some of these people might live happily ever after.
My olive branch, which has been requested by Alex Johnstone, is simply to say this: let us welcome the consequences—the real consequences—that will flow from passing the bill. Let us welcome them with joy.
15:30
My question is a simple one. I do not know what is meant by “the effects of”. If we are to put something in legislation that is then to be reviewed, John Mason will have to tell me what it means.
That is perhaps a question for the cabinet secretary, to whom we now come.
Like other members, I do not support amendment 27. The points that Patrick Harvie made are valid.
We are all agreed that every piece of legislation that is passed by Parliament should be subject—at the right time and at Parliament’s choosing—to post-legislative scrutiny. However, amendment 27 is not really about the typical, normal post-legislative scrutiny process. It refers only to the provisions of the bill relating to same-sex marriage. The bill goes much wider than same-sex marriage; it extends the notice period for marriages, it allows civil marriage ceremonies to take place anywhere that is agreed by the couple and the registrar, it puts belief bodies on the same footing as religious bodies in relation to the solemnisation of marriage, it introduces qualifying requirements for religious and belief bodies to meet before they can solemnise marriage, and it introduces religious and belief civil partnerships. It also makes very wide provisions for the transgender community.
Amendment 27 does not, however, refer to any of those other provisions. To paint the proposed provisions as normal post-legislative scrutiny is not a proper or accurate reflection of the effect of the amendment.
I appreciate John Mason’s claim that the amendment would not introduce a sunset clause, but the proposed new section would still be potentially very destabilising when it comes to the impact of the bill. It would be detrimental to the reputation of Parliament if we were to pass amendment 27 and we would be sending out a very wrong signal to the entirety of Scottish society. I hope that Parliament will reject the amendment decisively.
I agree with Jim Hume that committees should review legislation. I have been here nearly three years now, however, and I do not think that that is happening. There may be other ways of dealing with the issue, but Parliament somehow needs to get its act together on actually reviewing legislation.
Patrick Harvie and Mark McDonald had an interesting interchange. Mark McDonald suggested that the proposed review suggests that there could only be negative consequences. I do not see that in amendment 27. Perhaps he wants to correct me.
Christine Grahame asked about “the effects of” the introduction of same-sex marriage. In normal English, speaking as an accountant, I understand that phrase. I do not know what the legal problem with those particular words might be.
I do not know what the remit of any review would be if it is just about “the effects of” the measures. That wording is far too broad.
I am not sure that that intervention has clarified the issue very much in my mind—perhaps other members understand. “The effects of” means “the consequences”. Amendment 27 specifically mentions the question whether there have been “any court proceedings”, tribunals or suchlike.
The cabinet secretary questioned why amendment 27 asks for a review concerning same-sex marriage only. The reality is that the rest of the bill is largely non-controversial. There were hardly any divisions at committee on the rest of the bill. By all means, we can review the whole bill, but it is this particular area that needs to be looked at. Alex Johnstone put it quite well when he spoke about an olive branch, and said that the effect would in fact be almost zero.
Amendment 27 is the final amendment in my name. I find it disappointing that the cabinet secretary would not even commit to a review in a specified time, even if that is not in the eventual legislation.
The question is, that amendment 27 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lyle, Richard (Central Scotland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Malik, Hanzala (Glasgow) (Lab)
The result of the division is: For 19, Against 100, Abstentions 1.
Amendment 27 disagreed to.
After section 25
Group 4 is on review of civil partnership. Amendment 28, in the name of Patrick Harvie, is grouped with amendment 29.
Amendment 28 would require the Scottish Government to conduct a review of the future of civil partnership. The amendment sets a timescale of nine months after the bill receives royal assent and requires the review to set out options, including
“the option of enabling two people of different sexes to enter into civil partnership with each other.”
That would open up the mechanism of civil partnership, in the same way as we are currently opening up marriage to same-sex couples.
Amendment 28 would also require ministers to consult in preparing the report.
Amendment 29 is consequential on amendment 28.
I am intrigued by amendment 28 because it was not so long ago that we were being told that marriage was the gold standard and that people in civil partnerships felt like second-class citizens. If that was true, why would anyone choose a civil partnership over a civil marriage?
The member has not been told by me that marriage is the gold standard. I think that we should all be committed to the importance of choice. People who wish to pursue the option of marriage should be able to make that choice. However, there will be others who believe that civil partnership better reflects their personal values, ideology or what have you. There will be some who regard marriage as having a religious connotation that they do not choose to buy into.
The reality is that we do not know what the uptake of civil partnership by same-sex couples will be, nor do we know what appetite there might be among mixed-sex couples for civil partnership instead of marriage, although we know that there is some because a case has been taken to the European Court challenging UK civil partnership legislation. It has been recognised that an imbalance will arise, in that same-sex couples will be able to choose civil partnership, marriage or cohabitation, whereas mixed-sex couples will have only two of those options. If there were some challenge to that on human rights grounds, it might be hard to justify not allowing mixed-sex couples to have civil partnerships.
The Scottish and UK Governments have noted the position and have agreed to conduct civil partnership reviews. The Scottish Government published a remit for its review in September, but we do not know much more about the timescale for the review or the options that the Scottish Government is considering. The UK Government’s review, which was published very recently, is quite troubling, because it opens up the possibility that people in same-sex civil partnerships will be compelled to have their civil partnership either dissolved or converted into marriage, when that was not their choice.
I lodged amendments 28 and 29 purely to open a debate on the question and to offer the cabinet secretary the opportunity to set out the Scottish Government’s position and current thinking on it. I also hope that he will indicate a willingness to consider opening up civil partnership to mixed-sex couples just as we are opening up marriage to same-sex couples, and to close down the possibility that civil partners could be forced to convert their partnership into a marriage or that they could lose their legal status altogether.
I move amendment 28.
There is merit in reviewing the position of civil partnerships, so I thank Patrick Harvie for lodging amendments 28 and 29. Most people would accept that the Parliament created the institution of civil partnership because, at that stage, it was not quite prepared to do what we are likely to do today and legislate for those in same-sex relationships to be able to get married.
However, I approach the matter from a slightly different perspective from that of Patrick Harvie. If we legislate for same-sex couples to be able to get married, we call into question the position of the institution of civil partnership. Frankly, I doubt that those who are in civil partnerships today aspired to enter the institution of civil partnership; they chose to enter that institution because it was the one that was available to them. I suspect that most people in that institution already regard themselves as married, and that is why it is important that we are taking the step that we are taking today.
That step calls into question the on-going position of civil partnerships. I know that the Scottish Government is to review the position, as Patrick Harvie has called for. Equally, I accept his point about choice, and that is why it is important that we have a review that can inform the position. If the cabinet secretary can set out how the review will go forward and what options it will consider, we may be able to conclude that amendment 28, with which I sympathise, is unnecessary.
I will be very brief, Presiding Officer. Dare I ask whether Mr Harvie will explain to us in his closing remarks why, a few minutes ago, a review was a bad idea?
Alex Johnstone refers to a lack of agreement, so I begin by quoting an unusual associate in the civil partnerships argument, who said:
“There is no discrimination whatsoever in the present law, except that against heterosexual population relating to civil partnerships.”
Those are the words of someone I have never quoted before—Norman Tebbit, who agrees that the status quo on civil partnerships is untenable. Perhaps that spirit of agreement is the reason why a rainbow has appeared over the Parliament this afternoon as we have debated the bill.
I have an issue with the on-going existence of civil partnerships for same-sex couples only, because that is indirectly discriminatory against LGBT people. Members could ask why the exclusion of opposite-sex couples is discriminatory against LGBT people. It is because civil partnership is still in statute as a marker of difference and a relic of prejudices past. It continues to create a separate category showing that LGBT people need different treatment and special institutions—something that I would not support in this context.
Following on from the argument that the member has just made, would it not be better just to abolish civil partnerships and give everyone the same, if it is truly about equality?
I was about to say that I have some sympathy with that perspective. I supported civil partnerships at first, but in time and on reflection I came to identify them more with the desire not to allow same-sex couples to get married than with the attempt to create an alternative. I supported those who campaigned for them at the time, such as Patrick Harvie, and I did so on a pragmatic basis. Those people are all to be commended, but—let us face it—in the long run civil partnerships have been overtaken. Personally, I would consider it a little bit distasteful to keep them, in the same way as I would regard wearing a badge that says that I am gay so as to warn people of a nervous disposition.
My personal preference would be to see civil partnership disappear entirely. That is what happened in Denmark and Sweden when they legislated for equal marriage. However, I realise that many people wish to keep civil partnerships, not least those who are in them, and that although I see civil partnerships as irredeemably tainted by prejudice, there are those who see marriage as irredeemably tainted by the sexism that characterised it for hundreds of years.
If I am saying anything here, it is that, whatever happens, the status quo on civil partnership must not continue. Above all, it must not continue through sheer political inertia. Civil partnerships should either end, as Dave Thompson suggests, or be made equal, so that the unnecessary, unnatural and differentiating division between two types of couple ends.
15:45
I was glad when the Scottish Government promised in appearances before the Equal Opportunities Committee to look at the issue and come back to it, and I trust that it will do so. I firmly support the spirit of amendment 28 but, if I backed it, that would be a signal that I was not taking the Government at its word. If the amendment is pressed to a vote, I will vote against it, and I urge others to do the same. I will listen with interest to the cabinet secretary’s comments.
Fundamentally, amendment 28 comes down to something that I hope that we all support and which is a strand throughout the bill. This is about freedom of choice. If a couple—whether they be heterosexual or homosexual—wish to enter into a civil partnership rather than a marriage, I do not see what the problem is, if that is their choice. If cohabiting heterosexual couples wish not to get married but to enter into a civil partnership, they are barred from doing so. If we are truly determined to create a society in which we value choice among adults—
The member raises an interesting point about giving people a choice. People are given a choice between two different things, such as an apple and a pear. What is the difference between civil partnership and civil marriage?
Sometimes, when people are given a choice, it is not between an apple and a pear but between two different apples. It is entirely reasonable to give people a choice between marriage and civil partnership.
As I said, surely this is about freedom of choice. We should aim for that in the bill. I think that a review is a good idea, but that is not to say that I support amendment 28. I want to hear from the cabinet secretary about the Government’s plans for the review that he has talked about.
I have two points. Stewart Maxwell has summed up the first point eloquently. It is not for us to second-guess people’s motivations in defining their relationships. If individuals wish to enter into a civil partnership rather than a marriage, that is none of our business. It is up to the two individuals to define their relationship. I have sympathy with Patrick Harvie’s amendment 28, in that the option of a civil partnership is not available to heterosexual couples at the moment, as he said.
I disagree with much that my colleague Dave Thompson has said on the issue, but he makes the valid point—Jamie Hepburn made it, too—that civil partnerships might no longer be necessary. However, we need a thorough examination of the matter. Individuals in my circle of friends and constituents of mine have expressed the view that, if civil partnerships were available to mixed-sex couples, they would be willing or would wish to take up that opportunity. It is not for us to second-guess relationships.
As for Alex Johnstone’s flippant intervention, the review that was discussed in relation to amendment 27 was being pursued from an entirely negative perspective.
In the member’s mind, could the main difference between the reviews be that he might favour the outcome of one but not the other?
I have never second-guessed the outcome of a review. I believe that Patrick Harvie is pursuing a review for positive and inclusive reasons to do with ensuring equality of status for civil partnerships while they still exist—indeed, as my colleague Jamie Hepburn said, they might not be necessary. I do not believe that the review that was proposed in amendment 27 was being pursued from a positive perspective. That is why I rejected that amendment. I will be happy to hear the cabinet secretary’s views before I decide whether to support amendment 28.
I will make a simple point. I make no comment on the amendments; I want to hear what the cabinet secretary has to say.
Whatever we do as a Parliament today or in future, we should not diminish the standing of those who have already willingly entered into civil partnerships and have, in effect, chosen that direction. Removing civil partnerships from statute would diminish their own and society’s view of their standing, regardless of the fact that they would then become equal. Therefore, we have to look for another option.
I ask the cabinet secretary to reflect on that as we make these decisions. We have to think about what has already happened and people who have made decisions in the past. To remove all of that now, given that people freely entered into civil partnerships, would be wrong.
I am grateful for the opportunity to speak to Patrick Harvie’s amendments 28 and 29, on the review of civil partnerships. I guarantee that there will be no inertia from the Government on that or any related issue.
As members will be aware, we have already published the remit for our review of civil partnerships, which is on the Government website. We have already had initial informal discussions with key stakeholders, which will be followed by a full public consultation that will outline the options and the consequences of each option and seek views.
I am keen to talk to the other parties across the Parliament on the methodology and timing of the review, because such an exercise is better done together on a consensual basis, so that, whatever option the Parliament eventually agrees, at least we will have as much buy-in as we can from external stakeholders and parliamentary participants.
On the timescale, I am determined that we get the job done as quickly as possible. We hope to establish a timetable and methodology as soon as possible after initial discussions with parliamentary colleagues in other parties, and to complete the review by the early part of 2015 at the very latest. A realistic timetable would probably mean any consequent legislation coming in the session that starts in 2016, but if we can all agree on what the legislation should be, there is no reason why the work on it could not start in 2015. That would be my intention after consultation with other parties.
As the debate has highlighted, there are, broadly, two viable options that relate to the future of civil partnerships. The first would be to lay down that no more new civil partnerships could be entered into after a specified date, to reflect that, in future, both same-sex couples and opposite-sex couples will be able to get married. The other main option would be to establish opposite-sex civil partnerships in Scotland. At the moment, I will certainly not come down on one side of the argument or the other; rather, I want to see the evidence on and consequences of both.
I will develop the extremely important point that Bruce Crawford made about people who have already entered into a civil partnership—and people who will have done so by the time that any legislation is introduced. Unlike the recommendations in the review down south, I would be quite reluctant to support any proposal that absolutely required those in existing civil partnerships to be forced to change their status as a result of any review, because it is clear that they entered into civil partnerships in good faith. They should have the option of changing their status, but I would need a lot of persuading before I would agree to forcing them to change their status by either dissolving their civil partnerships or transferring and converting them into marriage.
All those issues are clearly for discussion. We need to look at the consequences. The pension consequences, for example, require detailed consideration, because pensions may be the most complicated issue of the lot to deal with when we come to legislating, no matter which option, or options, we eventually agree to pursue.
I say to Patrick Harvie that I am absolutely committed to the review and to doing it and dealing with the methodology and the timetable on a consensual basis. I want the review to be done by early 2015 so that we can quickly start to work on any recommendations on legislation, with legislation possibly being passed in the session that starts in 2016.
On that basis, I ask Mr Harvie not to press his amendments.
It is probably true that a little over a decade ago, when Scotland and the UK were debating civil partnership, there were some people who were willing to support civil partnership—the technical legal rights and responsibilities of marriage but without the name “marriage”—who might not have been ready to support the bill that we are debating today. I hope that those people have come with us on society’s progress towards equality and are voting with the bill.
Civil partnership might not have been introduced as a separate institution had support for same-sex marriage existed a little over a decade ago. However, that is what happened. At the time, I proposed that if we were creating civil partnership, we should do so on a non-discriminatory basis and should allow mixed-sex couples as well as same-sex couples to have a civil partnership, should that be their preference. We did not do that, and the UK Parliament, when it legislated for the whole of the UK, gave us the system that we have now.
Jamie Hepburn quite rightly said that the situation calls into question the future of civil partnership, and I do not think that it gives an answer. As members have said, there is a question about whether civil partnership should continue under its current status, whether it should be removed—as the UK Government proposes—or whether people will simply opt for marriage and so there will be less take-up of civil partnership. We do not know the answer, which is why a review is necessary.
If Alex Johnstone had listened to Marco Biagi’s answer, it would be clear to him that it is only those mixed-sex couples—they are probably few in number—who would prefer civil partnership who face any argument of discrimination around what the law allows them to do. That is why a review is required. Both Governments agreed about that, and I am happy to see that a review will happen.
It is also important to recognise that, as Marco Biagi said, there will be an anomaly only if civil partnership continues for same-sex couples only. If it continues for everybody, we will have removed the discrimination. If it does not continue for everybody, we will have perhaps removed the discrimination in a less favourable way.
The cultural meanings of marriage and civil partnership are subjective. That is why the difference between them is subjective. It is not for us to decide whether some people should regard marriage as patriarchal or as having the sanctity of a religious contract, nor is it for us to decide whether people should regard civil partnership as a purely legal instrument or as a marker of discrimination. People reach such value judgments on their own terms.
Having said all that, I thank the cabinet secretary for his response. He has given some indication of the timescale. I am very pleased that he is talking about broadly two options, instead of the additional option that the UK Government has floated of forcing people to change their civil partnership into a marriage. I am happy that there has been a recognition of the status and the meaning of civil partnership as something distinct, and I am happy about the consensual basis on which the cabinet secretary intends to pursue those debates.
I am content with the cabinet secretary’s response. On that basis, I withdraw amendment 28.
Amendment 28, by agreement, withdrawn.
Members will note that we have passed the agreed time limit for the debate on group 4. I exercised my power under rule 9.8.4A(c) to allow debate on the group to continue beyond the limit in order to avoid its being unreasonably curtailed.
Section 28A—Grounds of divorce: interim gender recognition certificate followed by full certificate
Group 5 is on the processes for, and consequences of, applications to sheriff for issue of full gender recognition certificates. Amendment 4, in the name of the cabinet secretary, is grouped with amendments 5 to 7, 9 to 11, 13, 15, 17, 19, 20 and 22.
Most of the amendments in group 5 relate to a new procedure that was introduced at stage 2 on obtaining a full gender recognition certificate. Under the procedure, a sheriff may, in certain circumstances, grant a full GRC without the need for the spouse to consent to stay in the marriage.
Amendments 4 and 5 relate to section 28A of the bill, which amends the Divorce (Scotland) Act 1976. Amendment 4 makes it clear that the amendments are to section 1 of the 1976 act. Amendment 5 adds a reference to the title of section 1 of the 1976 act.
Amendment 6 is also on divorce. A ground for divorce is when one of the spouses has been issued with an interim GRC. The bill amends the Gender Recognition Act 2004 so that, once the gender recognition panel has issued a full GRC, it is no longer open to a spouse to seek divorce on the basis of the interim certificate.
Amendment 6 creates an exception to that general rule so that, where a sheriff issues the full GRC under the new procedure, a spouse can still seek a divorce on the basis of the interim GRC. That is because a spouse might not have consented to staying in the marriage. As a result of amendment 6, amendment 11 deletes proposed new section 4E(4) of the 2004 act, which is now unnecessary.
16:00
Amendment 7 updates the interpretation section of the 2004 act to reflect that, in future, a sheriff may issue a full GRC under the new procedure. Amendment 9 provides that a person may apply to the sheriff under the new procedure only if the applicant does not have a statutory declaration by the spouse consenting to stay in the marriage after the issue of the full GRC.
Amendment 10 requires the sheriff, when granting a full GRC under the new procedure, to send a copy to the panel. Amendment 13 removes the obligation on the court to issue a full GRC following divorce when a sheriff has already issued a full certificate under the new procedure. Amendments 15 and 17, which relate to applications to the court where a GRC might have been obtained by fraud, ensure that such applications are possible where the sheriff grants a full GRC under the new procedure.
Amendment 19 places a duty on the panel to send a copy of a full GRC to the registrar general for Scotland following the sheriff issuing it under the new procedure. Where the Court of Session quashes a sheriff’s decision to issue a full GRC under the new procedure, amendment 20 requires the court to inform the registrar general, who then has to cancel the relevant entry in the gender recognition register.
Finally, proposed new paragraph 20A(1C) of schedule 3 to the 2004 act imposes a requirement that regulations on marriage registration must provide that, following the issue of a full GRC under the new procedure, spouses could register their marriage only if they both consented in writing to the registration. That proposed paragraph could cut across the drafting of regulations, so amendment 22 removes it.
I move amendment 4.
As no member has requested to speak, do you have anything further to say by way of winding up, cabinet secretary?
I will forgo any opportunity to do so, Presiding Officer.
Excellent.
Amendment 4 agreed to.
Amendments 5 and 6 agreed to.
Section 32—Commencement
Amendment 29 not moved.
Amendment 30 moved—[John Mason].
The question is, that amendment 30 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Johnstone, Alex (North East Scotland) (Con)
Lyle, Richard (Central Scotland) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Against
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Malik, Hanzala (Glasgow) (Lab)
The result of the division is: For 14, Against 100, Abstentions 1.
Amendment 30 disagreed to.
Schedule 2—Change of gender of married persons or civil partners
Amendment 7 moved—[Alex Neil]—and agreed to.
Group 6 is on the issue of full gender recognition certification following the death of a civil partner or spouse. Amendment 8, in the name of the cabinet secretary, is grouped with amendments 31, 14, 16, 18, 21, 23 and 24.
Amendment 31 introduces a new section 4F to the Gender Recognition Act 2004. Section 4F provides for applications to the gender recognition panel for a full gender recognition certificate—GRC—in certain cases where the civil partner or spouse of a transgender person dies. Amendment 8 makes a change to the interpretation section of the 2004 act to reflect that change.
Amendment 14 extends the right of appeal to the Court of Session on a point of law against a decision by the panel to reject an application under section 4F.
The 2004 act provides for referrals to the Court of Session where a GRC was secured fraudulently. Amendments 16 and 18 extend the right to make such referrals to cases under section 4F, and amendment 21 provides that, where the Court of Session quashes a decision that the panel made under section 4F, the court must inform the registrar general for Scotland so that he can remove any relevant entry in the gender recognition register.
Section 7 of the 2004 act allows the secretary of state, following consultation with the Scottish ministers, to lay down the form and manner of applications to the panel. Amendment 23 extends that to applications under the new section 4F.
The last amendment in the group relates to certain protected information about a transgender person who has applied for a GRC. Section 22(2)(a) of the 2004 act makes it an offence to disclose such information unlawfully. Amendment 24 applies that offence to applications under section 4F.
I move amendment 8.
Amendment 8 agreed to.
Amendments 9 to 11, 31 and 13 to 24 moved—[Alex Neil]—and agreed to.
That ends considerations of amendments.