« Previous | Contents | Next »
Listen
The consultation on Civil Partnership Registration: analysis of the responses
CHAPTER 6: RESERVED AND DEVOLVED ISSUES
REGISTRATION IN SCOTLAND
Question 3: We believe that Scottish same-sex couples should be able to register their partnership in Scotland rather than having to travel to England or Wales. (paragraph 5.2)
6.1 The question has two main elements. The first is the central principle that civil partnerships will be registered in Scotland. The second concerns whether people will then travel to register partnerships elsewhere. This is less important than the first part, but the form of the question prompted most people to respond to this aspect rather than the other. Of 195 responses, 174 respondents (89%) agreed, 3 (2%) agreed in part, 16 (8%) disagreed and 2 (1%) did not know.
6.2 Registration and recognition in Scotland was generally, if implicitly, supported by proponents of the legislation.
This is essential not only to offer an appropriate service to same sex couples in Scotland but also to ensure that LGBT lives and relationships are recognised in the wider society as a part of Scottish life not as something 'imposed' or 'imported' from elsewhere. (LGBT organization)
6.3 The idea of travelling to register produced indignation. It was considered "discriminatory" and "unthinkable".
RESERVED ISSUES
Question 4: We believe that the UK Government should recognise partnerships registered by same-sex couples in Scotland for reserved purposes. (paragraph 5.3)
6.4 Of the 190 responses, 167 respondents (88%) agreed, 4 (2%) agreed in part, 13 (7%) disagreed and 6 (3%) selected 'don't know'. The force of the argument recommended itself even to opponents:
If the UK government is establishing such a system and the Scottish Executive is determined to proceed along these lines it would seem logical that civil partnerships registered in Scotland should be recognised for reserved matters by the UK government. This does not alter our view that a registration scheme is unnecessary and should be resisted. (Religious organisation)
6.5 There are more issues than the narrow question of recognition for reserved purposes. Other related issues include the question of whether a Scottish partnership would be recognised elsewhere in the UK, and whether an English partnership would be recognised in Scotland.
I assume that a Scottish registration would continue to apply if the couple relocated to another country within the UK. It should not be necessary to re-register locally. (Individual response)
When Scotland finally introduce their civil partnership scheme, efforts should be made for reciprocal arrangements to grant recognition to the partnership schemes north and south of the border so far as they are relatively similar. (Individual response)
6.6 The reserved issues that were most specifically raised were immigration and taxation. On immigration, respondents argued for equivalence to marriage.
The DTI consultative document (June 2003) and its "responses" document (November 2003) confirmed proposals to: (a) amend British nationality law to put registered same-sex partners on the same footing as spouses. ... (and) b) elimination of the requirement same sex partners, who are registered same-sex partners, for two years' cohabitation prior to the application for Leave to Enter and Limited Leave to Remain. I think these will be very positive steps. However, rule 295G(i) of the Immigration Rules remains discriminatory between married and registered same-sex partners viz. that the current two year probationary period (instead of the one year period for married couples) will remain before the partner can apply for Indefinite Leave to Remain. (Individual response)
6.7 Taxation is another reserved issue. Current arrangements make joint owners who are not married liable to taxation in circumstances where married couples would not be. The most important of the examples given here relates to inheritance tax.
My partner and I have lived and worked together for 28 years during which time we have built up a successful business and acquired a reasonable amount of property. We have endeavoured to provide adequate pension funds for our retirement and to maintain a degree of self-sufficiency. When either of us dies, the other partner will face the prospect of having to close down the business and sell the joint home at short notice in order to pay inheritance tax and other taxation. Both of us, in view of our ages have lived most of our lives experiencing various levels of discrimination in private life and at work. We would earnestly hope that a few years of retirement could be spent together without the worry for each other about surviving after bereavement.(Individual response)
International aspects
6.8 Respondents made the case that recognition beyond the UK had also to be considered.
The biggest single gap in the proposals is the lack of any proper consideration of private international law problems. What is meant by "Scottish" same sex partners? Is this facility to be available e.g. only to couples each of whom is habitually resident in Scotland? What is the relevance of the law of a party's domicile?. Suppose that one party is domiciled in a country which expressly prohibits entering into a registered same-sex partnership - or doing so when under the age of 21? Could such a person enter into a registered partnership in Scotland? What will be the rules on recognition of foreign impediments to entering into an RCP? What will be the extra-territorial effect of any Scottish prohibitions on entering into an RCP? When will foreign RCP's or the equivalent be recognised in Scotland? Will there be rules on the recognition in Scotland of foreign dissolutions of RCP's? Will there be rules on jurisdiction to dissolve an RCP? (Legal sector)
There is also a case for according recognition to similar registration schemes operating in other countries (i.e. not U.K. nations) so far as they also have reciprocal arrangements to grant recognition to England & Wales and Scotland partnership registration schemes. (Individual response)
DEVOLVED ISSUES
Question 5: We believe that partnerships registered by same-sex couples in Scotland should trigger access to a comprehensive package of rights and responsibilities in devolved areas that largely mirrors those available to civil registered partners in England and Wales. (paragraph 5.4)
6.9 Of 192 identifiable responses, 158 respondents (82%) agreed, 16 (8%) disagreed, 17 (9%) and 1 selected 'don't know'. There was much agreement with the sentiment: respondents felt that if the provisions in Scotland were not better than those in England, they should certainly not be worse.
It is not clear what is meant by 'largely mirrors those to civil registered partnerships available in England and Wales'. It is assumed that this relates to current differences in the relevant legal systems. Clearly any proposal to produce a lesser package of rights in Scotland would be opposed. (Unison)
6.10 However, many respondents indicated that the question made the wrong comparison: equality implies that the package should mirror marriage in Scotland, not partnership in England.
This is the wrong question and the wrong aim. The Scottish legislation should not aim to mirror the rights and responsibilities conferred on same-sex couples in England but rather on opposite-sex couples in Scotland. Married couples in England have different (if substantially similar) rights and responsibilities from married couples in Scotland and equality for Scottish same-sex couples is equality of choice and opportunity with opposite-sex couples here in Scotland. (Legal sector)
Question 6: We believe that devolved aspects of civil partnership registration should be based on Scots law. (paragraph 5.5)
6.11 Of 190 respondents, 165 respondents (87%) agreed, 4 (2%) agreed in part, 12 (6%) disagreed and 9 (5%) did not know. This proposal attracted the least disagreement in the consultation.
We have to be clear which aspect of Scots law the new registration scheme is to be based upon. There are at least three choices: Scots contract law (for registration will be based on mutual agreement), Scots law of commercial partnerships (for registration will create a partnership) and Scots marriage law. But same-sex couples are more analogous to opposite-sex domestic partners than commercial partners or parties to a contract. In other words, it is Scots marriage law that the new system of registration for same-sex couples needs to be based upon. (Legal sector)
The rights of the individual which will flow from civil partnership registration will impact on a range of services delivered in accordance with a peculiarly Scottish set of regulations. It is therefore not just appropriate, but rather vital, that all devolved aspects of civil partnership registration are firmly based on Scots law. (Local authority)
« Previous | Contents | Next »