The Scottish Government

Civil Partnerships

Family Law Reform: Briefing by Justice Minister Cathy Jamieson

September 10, 2003

Today in Cabinet we have been discussing the options available to us as a devolved administration in tackling some of the inequities in our current system of family law, and how this relates to the emerging policy landscape in the UK and Europe.

I want to take this early opportunity to talk you through how the Scottish Executive plans to tackle the challenges ahead of us in family law. Challenges that will attract great debate and controversy because they touch on how people live their lives. Challenges that as politicians we must accept if we are to genuinely deliver a fairer, stronger Scotland.

First, however, I want to set out very clearly the values that lie at the heart of our approach.

As an Executive, we want to provide children and young people with the best possible start in life so they can take advantage of the increasing opportunities available to them. Central to that is a belief in strong and stable families. And the pillar around which such families are built is marriage.

As an Executive we are committed to supporting and helping parents develop their children's lives for the better - with new measures and extra investment in childcare, in education, in housing, in health. We will do all we can to keep families together. Where families are strong and working, the law should play little or no part in their lives.

Where the law must be clearer and better is, sadly, when families and relationships fail or one party dies or is seriously injured. In today's Scotland, 1 in 10 children live in a cohabiting couple family rather than in a married couple family - twice the number of 10 years ago. 1 in 4 live in a lone parent family. These families don't have the full protection of the law which can leave people vulnerable at points of crisis in their lives, particularly children.

That is why we consider that gaps in family law exist and must be addressed in the lifetime of this Scottish Parliament.

Recent social attitude research shows that over half the country believes that common law exists - that a co-habiting couple has the same legal rights as marriage. Not so. Nearly half of us think that a father living as part of a co-habiting couple for 10 years has the same right as a married father. Wrong again.

So we need clear and supportive modern family law that much better reflects modern life and which is understood by all of Scotland's people.

A lot of work has been done already on reviewing family law over the last decade. I accept that what Scotland's families want to see now is a clear direction from the Executive on how and when we will legislate on this matter. We will legislate and I want to start that process before the end of this calendar year. I want to refresh our thinking with a short, sharp consultation this winter to trigger a legislative timetable that will bring long-needed support to many ordinary families who may not know just how vulnerable they might be.

Reforming family law in Scotland is a priority for the Executive and a central plank of delivering a justice system that is designed around the needs of the many.

However, we do not exist in a vacuum. Alongside the policy initiatives we will drive from the Executive on behalf of Scotland's communities, we also have a responsibility to ensure that the law in Scotland reflects developments in the rest of the UK, and in Europe.

For example, the issue of how same-sex couples are treated in accessing the various rights and benefits of employment - like access to pension benefits when one half of a couple dies.

As a result the UK Government through the Department for Trade and Industry published a consultation document on a 'civil partnership' scheme in June to give same-sex couples a new and enhanced legal status. That consultation is ongoing.

Much of the scheme deals with reserved issues like pensions, benefits, and taxation. But there are also related devolved issues that impact on us - the relation to family law, the registration arrangements, prison visiting, medical treatment for example.

Over recent weeks we have been considering how best to handle the implications of the UK Government's proposals should they decide to proceed with legislation.

First, we have looked at whether we should legislate at all in Scotland. There are other more pressing concerns on the Executive's agenda like anti-social behaviour, on reforming our courts, on protecting vulnerable witnesses, and modernising family law for all of Scotland's people. So what would happen if we didn't reflect UK legislation here?

If the UK Government proposals become law, there would be nothing to stop a same-sex couple living in Glasgow travelling to the Lake District for three weeks and returning home as a legal civil partnership with some of the rights of such couples living in England and Wales. Not so easy however, if you are a same-sex couple living in Wick or on income support or where one or both party has a disability or a serious medical condition.

So the issue we have looked at is less about whether such a scheme is likely to be available to same-sex couples in Scotland - some of it will be if Westminster passes its own legislation. It is more about how we provide sensible, pragmatic UK consistency in the law that avoids a 'postcode lottery' of rights developing.

There are a number of legislative routes we have considered. First, to bring forward separate Scottish legislation on the devolved elements of the scheme to support and complement any UK Government Bill. But this would likely involve dropping or delaying something from the existing Justice legislative programme - like protection for vulnerable witnesses, or much-needed High Court reforms. While I accept that for same-sex couples this is a very important issue - it is not an immediate priority for the overwhelming majority of Scotland's people. Taking action to combat crime and anti-social behaviour is. So we do not believe separate Scottish legislation is the right way forward.

Second, we have considered whether there is merit in supporting Patrick Harvie's proposed Civil Registration of Partnerships Bill or a variation on it. But again this would be competing with other vital Executive Bills and would be a drain on Committee time at an important point in the Parliamentary cycle when Committee scrutiny is so important to the delivery of good and sustainable legislation. We do not propose to give it Executive support at a time when we will be putting extremely important legislation into the Committee process.

Finally, we have looked at the window of opportunity offered by any future UK DTI Civil Partnerships Bill and the possibility of using a Sewel motion. I stress that the UK Government has not yet committed to such legislation and we must await the Queen's Speech to see whether any Bill is forthcoming.

However, when and if such legislation in the UK Parliament comes forward, we believe that on balance this offers the shortest, sharpest, fairest method of achieving UK consistency without impacting adversely on the Executive and the people of Scotland's priorities of crime, anti-social behaviour, the economy, education and health. The policy areas affected by civil partnerships are a complex web of devolved and reserved matters. Separate legislation north and south of the border could lead to a 'postcode' lottery of rights north and south of the border.

The DTI is already consulting with Scottish interests on the reserved elements of their civil partnership scheme. It is our intention to consult on the devolved elements and to publish a short paper by the end of this month. In that way, we will be in a position to respond appropriately to the UK Government if it comes forward with a Bill.

Let me be clear, a Sewel approach neither denies debate in Scotland nor does it stop the Scottish Parliament having further opportunities to debate the matter if this is necessary.

Our approach on civil partnerships carries the unanimous support of the Scottish Cabinet. We will be working hard to inform Parliamentary colleagues of all political persuasions of the merits of this approach and the groups and individuals directly affected by civil partnerships.

These are sensitive issues that we will handle in as transparent a way as possible - up front and under the full scrutiny of both Parliament and the public. We are aware of the range of polarised views that these issues will draw. We have thought long and hard about the right way forward and the benefits offered by consistency in approach with the UK Government. We have made our decision in the light of what we collectively believe is in the best interests of all the people of Scotland and to protect the priorities voted for by the Scottish electorate.