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The consultation on Civil Partnership Registration: analysis of the responses
PART 2 : UK AND SCOTS LAW
The second part of this report covers consultation responses to questions 2 through 7. Part 2 is presented in two chapters:
- Chapter 5 The proposed legislative mechanism
- Chapter 6 Reserved and devolved issues
The consultation asked for views on the proposed legislative mechanism of a Sewel motion (questions 2 and 7), which would involve Scottish provisions in a Westminster Bill. Chapter 5 analyses respondents' views on this mechanism, showing that various positions are taken on the proposed mechanism, for a number of different reasons. Chapter 6 analyses responses on registration, recognition and the division of reserved and devolved powers. The consultation sought views on whether registration of civil partnerships should be possible in Scotland; and whether the UK government should recognise such partnerships (questions 3 and 4). Consultation questions 5 and 6 asked for views on the proposed rights in devolved policy areas accruing on registration, and their accordance with Scots law.
CHAPTER 5: THE PROPOSED LEGISLATIVE MECHANISM
A SEWEL MOTION
5.1 The consultation proposes that legislation to allow civil partnership registration for same sex couples be made through the mechanism of a Sewel motion attached to a Westminster bill for that purpose. This would mean that Scottish provisions be included in an Act of the UK Parliament, rather than legislate separately for Scotland by introducing a bill in the Scottish Parliament. The consultation stresses the mix of devolved and reserved policy areas involved in providing for civil partnership registration for same sex couples; the undesirability of policy differences between Scotland and England/Wales; and the advantages of achieving policy parity in cross-border issues.
5.2 Responses to the consultation covered a range of views, from those supporting the Sewel motion approach to legislation on this issue to those who felt responsibility for legislating should be taken by the Scottish Parliament. In this chapter, the reasons for the variety of responses are outlined.
Question 2: If we are to introduce civil partnership registration for same-sex couples, we propose asking the Scottish Parliament to agree to a Sewel motion so that Scottish provisions can be included in any Westminster Bill. (paragraphs 4.1 to 4.7)
5.3 Of 182 respondents making identifiable responses, 133 supported the proposal, 21 were opposed, 25 supported it in part, and 3 did not know. This represents 73% in favour.
5.4 This proposal overlaps with question number 7, which suggests that "Westminster is best placed to legislate for civil partnership registration in Scotland". Both the questions and the responses focus on a range of issues concerned with the division of labour between Scottish and UK legislatures. The issues include:
- making legislation consistent between different legal systems
- allowing for more rapid action
- whether the Scottish parliament should be scrutinising and debating the issue.
- avoidance of controversy in Scotland.
5.5 The sequence of the questions invited respondents to divide or repeat substantive comments; for the purposes of clarity, the themes have been brought together here. The issues which arise from Westminster taking the lead in legislation are considered in response to question 7.
5.6 Broadly, respondents' support for the Sewel motion approach is based on pragmatism and speed of legislation, while those opposing the proposed mechanism emphasise the need for detailed scrutiny and high-profile debate of proposed legislation in the Scottish Parliament.
The Committee seeks assurances from the Executive that sufficient time will be made available for the Scottish Parliament to scrutinise the draft legislation before a debate on a Sewel motion. The Equality Network estimates that "a minimum of six weeks is required between the Scottish Parliament getting access to the proposed Scottish legislation, and the Sewel motion debate itself." The Committee recommends that the Scottish Executive ensure that sufficient time is made available for the Scottish Parliament to scrutinise the Scottish provisions of the draft legislation before a debate on a Sewel motion. (Equal Opportunities Committee)
Consistency across borders
5.7 Support for a Sewel motion was strong among a range of respondents, many of whom believed this route to legislation would ensure consistency between Scotland and England / Wales in terms of policy and avoid inequality of rights and discrimination within Britain.
The Law Society of Scotland cannot comment on whether the Parliament should or should not pass a Sewel motion - that is a political issue. However, the Society is of the view that one single Act covering this issue throught the United Kingdom (or at least on a Great Britain basis), would have the advantages of avoiding inconsistencies between the jurisdictions, smoothing cross-border issues and ensuring a comprehensive location for the law on this issue. (Law Society of Scotland)
5.8 Respondents stressed that geographical mobility across Britain is high and inconsistency of treatment would create problems for same sex couples. These views were nearly always qualified: respondents emphasised the need for legislation to recognise Scots law and fit with the founding principles of the Scottish Parliament.
Equity of partnerships throughout the UK is important. People travel regularly between countries within the UK and to have your partnership valid within one country and then invalid when you cross the border appears to be a fragmented approach, and on a practical level would be confusing. Scottish provision within a Sewel motion would appear to be a practical approach to partnership rights, but must ensure that Scots law is reflected within the legislation. (LGBT organisation)
5.9 Opposition to a Sewel motion approach also focused on consistency issues, but those opposed stressed the distinctive nature of Scots family law and questioned the need for consistency with provisions for England and Wales.
Urgency
5.10 Supporters of the proposed mechanism saw it as the fastest way to introduce civil partnership registration for same sex couples, which many believed was overdue. Again, the support was qualified by many respondents who stated that Scottish legislation would be preferable if speed of provision was not at stake.
Many of our supporters in Scotland who have been in touch with us have told us that they do not care where the legislation is dealt with, as long as it is dealt with quickly and correctly (Stonewall - submission to Equal Opportunities Committee)
5.11 Those opposing a Sewel motion approach to legislation suggested that the Scottish Executive ought to take the initiative and that with the will to do so could pass legislation in the Scottish Parliament speedily.
Importance of the principle rather than the mechanism
5.12 On the whole, respondents in favour of the proposed legislation were more concerned about the implementation of the principle that same sex couples should be able to register their partnerships, rather than the mechanism used to bring this about. Some reservations were expressed, however, in particular the need for the Scottish Executive to show leadership in equality issues in Scotland and the need for the Executive to guarantee action, whether or not the UK government decides to legislate on this issue.
Scotland should be bringing forward this legislation itself. However, as a believer in equality, I would happily accept the 'UK route' if it delivers what is needed for Scottish same-sex couples. This support is however based on the fact that I believe such legislation is long overdue - rather than that I believe it is Westminster's job to produce it. (Individual response)
5.13 Those respondents in favour of legislation, but not in favour of a Sewel motion, argued that Scotland could offer greater equality if legislation was entirely Scottish-fuelled and that Scottish legislation would be more likely to provide more extensive rights than those proposed in England and Wales.
We accept that there are practical advantages to using the Sewel Motion. However in the past (such as when abolishing Clause 2A ahead of the abolition of Clause 28 in England & Wales) Scotland has proved more sensitive to the needs of the LGBT community. We regret the fact that using the Sewel Motion will not give Scotland the opportunity to introduce more positive equality such as offering civil partnership to heterosexual couples. (Religious organization)
Scrutiny by the Scottish Parliament
5.14 Respondents expressed strong concern about a Sewel motion leading to a lack of scrutiny and debate within Scotland.
There is some concern at the proposal to allow Westminster to legislate for the devolved parts of Scottish civil partnership. The interests of Scottish people should be reflected in Holyrood's responsibility for this issue. The Scottish Parliament must have the opportunity to scrutinise and comment on the proposed legislation in detail. (Local authority)
The Scottish Parliament should have the opportunity to scrutinise and comment on the the proposed legislation in detail as this is where the expertise is based. If Westminster makes significant changes, this should be debated at Scottish Parliament as to whether to accept such changes or not. (Individual response)
5.15 Among those supporting the mechanism, there were qualifications to their support, mainly that there must be sufficient time for the Scottish provisions of a bill to be scrutinised by the Scottish Parliament, particularly to ensure fit with Scots law. Respondents also noted that if Westminster introduced significant changes to the draft bill, then the Scottish Parliament needs to debate these fully.
5.16 Respondents also argued that there should be debate in the Scottish Parliament on whether or not to use devolved powers to introduce legislation in this area of policy.
Avoidance of controversy
5.17 Both proponents and opponents of the proposals saw the mechanism of a Sewel motion as a means of avoiding the issues. Opinion among proponents was divided as to whether this was a good thing: some felt that it would facilitate the legislation, others that specific Scottish legislation may be more favourable to LGBT interests.
5.18 Even among those supporting the proposals, there were concerns that the Sewel motion approach was a way for the Executive to avoid controversy, with some citing the repeal of section 2A of the Local Government (Scotland) Act as a reason for Executive reluctance to progress civil partnership registration for same sex couples on its own.
This seems the most pragmatic way to progress, so as not to have different paced changes across the UK. However a strong and vocal case needs to be made from the Executive that this is why they are using a Sewel, as the accusation will be levied that the Scottish Parliament is trying to duck the issue. A strong case for equality, which is written into the founding of the parliament needs to be re-emphasised, particularly after the way the proposals were announced in Scotland. (Individual response)
Most people in the LGBT community believe that the reason for asking the Scottish Parliament to agree a Sewel Motion is to avoid a negative campaign of the type encountered during the repeal of Section 2A in Scotland. We feel this sends out the wrong message. (LGBT organization)
5.19 Other concerns included:
- lack of transparency if the Westminster route was followed;
- lack of high-profile debate on the issue in Scotland; and
- insufficient weight given to the founding principles of the Scottish Parliament (especially equality of opportunity).
Responsibility of the Scottish legislature
5.20 Disappointment at the shifting of responsibility to Westminster was expressed both by supporters and by opponents of the proposals . A range of respondents took the view that legislation on equality issues should be the responsibility of the Scottish legislature, with co-ordination with Westminster on reserved matters. Some respondents stressed that the issue at hand is fundamentally a matter for Scots family law, and therefore should be dealt with in the forthcoming Scottish family law bill, or through distinct Scottish legislation.
The consultation document suffers from the lack of a clear statement from Ministers recognising the inherent value and importance of Civil Partnerships. We need to know that Scottish Ministers are committed to the introduction of Civil Partnerships for Scotland. The document tends to read as if Civil Partnerships are only being introduced in Scotland because similar legislation has been proposed for England and Wales. (STUC)
Scottish laws, customs and traditions are different from those in England and in general people have a far healthier attitude to issues concerning the equality and well being of its citizens. The Civil Partnership issue is a classic case of such an issue and as such should be dealt with in Scotland. (Individual response)
5.21 Opponents of the proposed policy on same sex civil partnership registration emphasised the importance of family life in civil society and called for full debate in Scotland on this matter. Respondents on both sides of the argument stressed the implications of legislation on this issue for other policy areas, for example education, health and the economy, and this underpinned their argument for Scottish responsibility for legislation. It was argued that expertise on devolved matters, and in particular family law, is in Scotland and that is where debate should take place.
THE DIVISION OF LABOUR BETWEEN WESTMINSTER AND HOLYROOD
5.22 The consultation document proposes that a comprehensive package of rights and responsibilities across devolved and reserved areas is best achieved through the Sewel motion approach:
Question 7: We believe that in order to achieve a comprehensive package of rights and responsibilities in reserved and devolved areas, and to avoid difficult cross border issues, that Westminster is best placed to legislate for civil partnership registration in Scotland through a UK Civil Partnership Registration Bill. (paragraph 5.6)
5.23 Of 192 responses, 122 (64%) approved this proposal; 44 responses (23%) opposed. 21 (11%) agreed in part, and 5 respondents (3%) did not know. The question concerns:
- whether the UK Parliament should take the lead
- what the balance should be between reserved and devolved issues, and
- how cross-border issues can be resolved.
5.24 Respondents expressed stronger opposition on this point than on question 2, but on the whole many of the same arguments were made either in support or against this proposal as in responses to question 2.
This is appropriate to deal with reserved issues
5.25 As in responses to question 2, many respondents accepted the Executive's arguments about the pragmatic reasons for legislating via the Sewel motion and agreed that in an environment of mixed responsibility for devolved and reserved areas this route is acceptable.
As the Scottish Parliament does not have competence to legislate in reserved areas, it would make sense for one Bill to take forward legislation for the whole of Great Britain. (Local authority)
5.26 Several respondents raised specific issues about the relationship of the proposed policy to existing legislation. In particular, there was concern that if the legislation was not made at Westminster, provisions in other legislation on reserved matters that would need amending would remain problematic until Westminster dealt with them.
Matters devolved to the Scottish Parliament are too limited to allow for legislation of a meaningful package of rights and responsibilities. (Individual response)
5.27 Nevertheless, subsequent changes to the legislation would still fall within the province of Scotland's devolved powers.
It seems sensible, because of e.g. tax, social security and immigration issues, for the initial legislation to be Westminster based but, once it is accepted legally that CRP's attract marriage like consequences in public and private law, subsequent regulation and, in particular, subsequent possibilities for consolidation or codification should be firmly in the Scottish Parliament's hands. (Legal sector)
Devolved issues should be dealt with in Scotland
5.28 There was a great deal of support for the view that devolved issues should be dealt with in Scotland, notwithstanding the arguments for pragmatism and the mix of devolved and reserved issues in this policy.
A majority of people voted for a Parliament that could address non-reserved issues. If the Scottish Parliament cannot deal with matters of family law then there is little it can deal with. If the Executive is consistent in its approach then this precedent would seem to mean that most family law matters should be dealt with on a UK basis. (Submission to the Equal Opportunities Committee)
We voted for devolution so that we could avoid the sometimes inadequate scrutiny given to Scottish matters at Westminster, and so that a Parliament that reflects the votes of the people of Scotland could legislate for the people of Scotland. It is not appropriate to hand back our powers to a Westminster Parliament that has grown unused to legislating on much of Scots law, and to an unelected and historically virulently homophobic House of Lords. (Individual response)
5.29 Among those in favour of the Sewel motion approach, concerns were expressed about the need for increased input from the Scottish legislature
A Sewel motion would result in a more concise and easier implementation and so is desirable, however in devolved matters the Scottish Parliament should not be reluctant to improve upon any measures enacted by Westminster. (Advice agency)
5.30 Other responses rejected completely the Sewel motion approach, primarily because of the feeling that Scotland should take its own position from the start.
Unclear why legislation must be passed to Westminster as most legislation that partnership legislation would cut across is devolved. We should take this opportunity to draft our own, better Bill - as has already been proposed by Patrick Harvie MSP. (Individual response)
Westminster can lead but provision needs to be made if UK legislation fails
5.31 Respondents in favour of the proposals expressed concern about this issue and many stressed that in the event of failure of Westminster proposals, the Scottish Executive should go ahead anyway.
The Committee recommends that in the event that legislation on civil partnership registration is either not brought forward or fails at Westminster, the Scottish Executive make clear its commitment to bringing forward legislation within Scotland. (Equal Opportunities Committee)
5.32 Others stressed that the Whitehall proposals did not go as far as they had hoped, and for that reason felt the Scottish Executive should take a more pro-active role.
The Westminster Bill does not include provision for heterosexual couples to register a civil partnership, nor provision for LGBT people to marry. I therefore urge the Executive to consider keeping Scottish legislation in Scotland, and have the courage to embrace a system of equality of access to marriage and civil partnership registration for all. If this is not the route the Executive chooses to follow, then it is essential that the Westminster legislation is carefully scrutinised at every stage to ensure that the proposals are not further eroded. (Individual response)
5.33 Still others were concerned about the timescale of legislation, fearing that the Westminster route may not prove as speedy as hoped.
My concern is that if there is a delay in the UK legislation we in Scotland may have missed an opportunity for having our own registration scheme even if this was only for devolved areas. (Individual response)
5.34 Concerns were also raised about potential 'watering down' of the proposals as they progress through Westminster and were keen for the Executive to re-consider use of the Sewel motion.
Whilst I appreciate that it may be politically expedient to include Scotland within the Westminster legislation, I believe that this is the wrong thing to do. In the interests of equality I am keen for the recognition of same-sex partnerships to happen as soon as possible. I worry that obfuscation and delay in the Westminster parliament may deliver a weakened package, or no package at all. In that case - where would the Scottish Executive stand? I much prefer the model of concurrent legislation in Scotland that is complementary to that in Westminster. Indeed - I believe that the Scottish Parliament would likely treat this issue in a more progressive and fair way than Westminster. (Individual response)
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