Although the Scottish Government consultation on the registration of civil partnerships and the possibility of introducing same-sex marriage preceded that of the Westminster administration, information received by the BBC Scotland has suggested that the Scottish government may not introduce a Bill on same-sex marriage until changes have been made to the law south of the border. Opportunistic politicians have branded this decision as ‘weak’, whereas it could indicate a more strategic approach to the issue by the Scottish Government.
A major aspect of the debate in the House of Lords on the legislation to permit civil marriages on religious premises, SI 2011/2661, was whether the actions of faith groups who declined to seek approved for the registration of civil partnerships in their premises could be held to be discriminatory.
Views were expressed in advance of the debate regarding the Church of England providing a public function in relation to marriage, and the relevance of Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire (Appellants) v Wallbank and another (Respondents), reported here and here. Further consideration is now to be given to this issue as part of the consultation process on a Bill of Rights discussed here.
The House of Lords debate considered:
– The nature of the obligation on churches under s29 of the Equality Act 2010 as a ‘service-provider’, ‘not to discriminate against a person requiring the service by not providing the person with the service’.
– The nature of the obligation under s149(2) of the Act for [legal] persons who exercise public functions to have due regard to eliminate discrimination, advance equality of opportunity and foster good relations as outlined in s149(1) in the exercise of those functions, [the ‘public sector equality duty’, subject to s149(3) and Schedule 18, para. 4(2)(e) of which specifically excludes the General Synod of the Church of England].
– The reliance that may be placed upon the exceptions for religious organisations in para. 2 of Schedule 23.
Baroness Butler-Sloss noted that although SI 2011/2661 was ‘not well expressed’: it reproduced the protection given in the Equality Act; any modification, in an attempt to bind primary legislation, would be ultra vires; and, even if better-drafted, would not deal with the problem, which lies, if it lies at all, with the Equality Act.
This was the conclusion had been reached in the prior Scottish Consultation which stated [at para. 2.35]:
‘Ensuring religious bodies and religious celebrants do not have to carry out civil partnerships against their will may require an amendment of the Equality Act 2010 . . . . . . to ensure that religious bodies and religious celebrants are not at risk of contravening the 2010 Act. In addition, the Scottish Government will have regard to the European Convention on Human Rights’.
Under section L2 of Part II of Schedule 5 to the Scotland Act 1998, apart from certain aspects of equal opportunities relating to some Scottish public authorities, competence on equal opportunities is reserved to the Westminster Parliament. Hence the requirement for the UK legislation to be changed before the Scottish provisions are introduced.