Same-sex marriage in Scotland – the draft Marriage and Civil Partnership (Scotland) Bill

Introduction

The Scottish Government has published its considered proposals on reforming marriage law, together with a draft Marriage and Civil Partnership (Scotland) Bill, and announced a further consultation, this time on the detail. The provisions of the draft Bill go wider than same-sex marriage: for example, section 15 authorises deacons of the Church of Scotland to solemnise marriages – a function currently reserved to ministers. (Which leads me to wonder, in passing, whether the Kirk might be evolving a twofold ministry of presbyters and deacons – but that’s outside the scope of this blog.)

Responses can be made on-line at https://consult.scotland.gov.uk/family-law/marriagebill, by completing the Respondent Information Form and questionnaire at Annex I of the consultation document and sending it to The Family Law Team, Room 2W, Justice Directorate, Scottish Government, St Andrew’s House, Regent Road, Edinburgh EH1 3DG or by e-mail to marriagebill@scotland.gsi.gov.uk. Responses must be submitted by 5 pm on Wednesday 20 March 2013.

Following this latest consultation the Government will produce an analysis of the responses. The questions are seeking comments on the proposals rather than yes/no answers – so the analysis will not be a quantitative one (ie how many respondents said yes or no to a particular question) but instead will be based on the points made by respondents.

Proposals and protections

As suggested above, the proposals range much more widely than same-sex marriage and civil partnerships. The document begins with a list of “proposed protections” at para 1.06 (which is not on all fours with the recent English proposals):

  • religious bodies that wish to solemnise same-sex marriage or register civil partnerships will have to opt in to do so;
  • there will be no obligation on religious bodies and celebrants to opt in to solemnise same-sex marriage and register civil partnerships;
  • religious celebrants will only be able to solemnise same-sex marriages or register civil partnerships if their organisation has decided to opt in;
  • if a religious body decides to opt in, there will be no obligation on individual celebrants to solemnise same-sex marriages or to register civil partnerships.

Where civil marriage ceremonies can take place

Under current legislation, civil marriage ceremonies can take place at a registrar’s office or at premises approved by the local authority. By contrast, civil partnership ceremonies can take place at a registrar’s office or at any place agreed by the registrar and the couple, so long as the place is not religious premises. The Government considers that couples wanting a civil marriage ceremony should also be able to have the ceremony at any place agreed by the registrar and the couple. The draft Bill removes the references to “approved places” from the legislation

“Belief” as a third type of marriage ceremony

Currently, there are two types of marriage ceremony in Scotland: religious and civil. However, since June 2005, celebrants belonging to the Humanist Society of Scotland have been temporarily authorised to solemnise marriages under section 12 of the Marriage (Scotland) Act 1977. The draft Bill contains provisions to establish a third category of marriage ceremony, to be known as “belief”. “Belief” celebrants will be authorised along the same lines as religious celebrants: see Annex A.  For opposite sex marriage, therefore:

  •  “belief” bodies will be prescribed by Regulations made by the Scottish Ministers and celebrants belonging to these bodies would then be automatically authorised to solemnise opposite-sex marriage; or
  • belief bodies will be able to nominate celebrants to the Registrar General for authorisation; or
  • the Registrar General could grant a belief celebrant a temporary written authorisation to solemnise marriages.

It will also be possible, in future, to have a belief ceremony to register a civil partnership: see part 4 of the consultation paper.

The Church of Scotland

Section 8 of the Marriage (Scotland) Act 1977 provides that marriages may be solemnised by ministers of the Church of Scotland. As noted above, the provision is amended by the Bill to extend it to deacons as well as ministers but it also makes it clear that the authorisation relates to opposite-sex marriage only.

Solemnising same-sex marriage

The Government has decided that a new procedure should be set up to authorise celebrants to carry out same-sex ceremonies. In addition, it has concluded that an amendment to the Equality Act 2010 is required – which would need to be made by the United Kingdom Parliament rather than by the Scottish Parliament. A draft of the proposed amendment to the 2010 Act is at Annex N.

Possibly with Ladele in mind, the Government has decided that the legislation should not include a conscientious opt-out for civil registrars.

Freedom of speech

The draft Bill makes it clear that the introduction of same-sex marriage does not affect existing rights under the European Convention of Human Rights and elsewhere to freedom of thought, conscience, religion and expression. In addition, the Lord Advocate will publish prosecutorial guidelines on allegations of breach of the peace and threatening or abusive behaviour arising out of opposition to same-sex marriage.

Education and, more particularly, sex education

During the previous consultation concerns were expressed about teachers being dismissed for offering views against same-sex marriage or refusing to use certain teaching materials and about parental rights to withdraw children from certain lessons. The Government’s proposed approach in this area is outlined at Annex C. Generally:

  • the Government welcomes the role that denominational education plays in Scotland and has no plans to change that;
  • the Government believes that any objections that teachers have to using certain educational materials should be discussed by the local authority or senior teaching staff with the teacher;
  • the Government is not seeking any changes to existing UK employment legislation which protects teachers, and other employees, from unfair dismissal;
  • the existing rights of parents to opt their children out of programmes of sex education will be retained;
  • the Government intends to consult key stakeholders and update Education Circular 2/2001 on the conduct of sex education in schools to take account of the introduction of same-sex marriage; and, specifically,
  • the faith aspects of the curriculum in Roman Catholic schools will continue to be determined by the Scottish Catholic Education Service.

Conclusion

Overall, the Government’s intention is that, where possible, opposite-sex marriage and same-sex marriage should be treated in the same way.

For a Scots commentary on all this, see Kelvin Holdsworth’s blog post: Kelvin is Provost of St Mary’s [Scottish Episcopal] Cathedral, Glasgow.

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