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Civil Partnership Registration: A legal status for committed same-sex couples in Scotland

3 the way ahead

Scottish context

3.1 The introduction of civil partnership registration in England and Wales will create considerable disparity in the rights and responsibilities of same-sex couples in England and Wales as compared to Scotland.

3.2 Under the UK Government's proposals, same-sex couples living in Scotland could register their partnership in England and Wales. In order to register their partnership in England and Wales, couples would need to travel to England and Wales and meet eligibility criteria including residence in England and Wales for 7 days and a 15 day notice period prior to registration in England or Wales.

3.3 By registering their partnership, Scottish couples would, on their return to Scotland, be able to access to reserved rights and responsibilities associated with registration i.e. survivor pensions, joint treatment for income-related benefits and recognition as 'civil registered partners' for taxation purposes.

3.4 If Scotland does not legislate, at minimum, couples in Scotland would have to expend significantly more effort and expense than couples in other parts of Great Britain. This raises issues about inclusion since those on low income, living further from the border, or with disabilities may not be able to travel to England or Wales in order to fulfil the eligibility criteria and register their partnership in England or Wales.

3.5 Furthermore, Scottish same-sex couples who register their partnership in England or Wales will not be able to access the rights and responsibilities that fall in devolved areas in Scotland. This would cause significant practical difficulties whereby such partners would not be able to dissolve their partnership in Scotland.

3.6 Without Scottish legislation to allow same-sex couples to register their partnership in Scotland, there would be difficulties associated with the differences in treatment of committed same-sex couples north and south of the border. The situation that would arise is one whereby a registered same sex couple in England and Wales will be afforded a comprehensive package of rights and responsibilities. However, a same sex couple in Scotland would have no means of accessing those rights, which are within the devolved competence of the Scottish Parliament, flowing from a civil partnership. And, they could only access reserved rights by travelling to England or Wales, assuming residence for several weeks (or one week and two trips) and registering there. This could be seen as discriminatory.

3.7 The Scottish Executive is committed to equality _ not only in terms of tackling discrimination but also promoting equal opportunities. The Scotland Act includes a definition of equal opportunities and the Scottish Parliament has already made significant moves to ensure that new legislation recognises same-sex partnerships. The substantive legislation is noted below:

• Adults with Incapacity (Scotland) Act 2000, s 87(2)
• Housing (Scotland) Act 2001, schedule 3 (2)
• Mortgage Rights (Scotland) Act 2001, s 1(2)(c)
• Protection from Abuse (Scotland) Act 2001
• Civil Legal Aid (Scotland) Amendment Regulations 2003, regulation 4
• Agricultural Holdings (Scotland) Act 2003, s 71
• Mental Health (Care and Treatment) (Scotland) Act 2003

3.8 Additionally, the courts have begun addressing this issue, mainly in the area of housing and tenancy succession. However, this does not provide a clear opportunity for those same-sex couples wishing to make a long term commitment to one another to have their relationship legally recognised nor does it provide comprehensive protection for same-sex couples who are in enduring family relationships. Civil partnership registration would provide this.

A Scottish Civil Partnership Registration Scheme

3.9 The issue we need to address is less about whether a civil partnership registration scheme is likely to be available in Scotland since some of it will be if Westminster passes its own legislation. The issue is more about how we provide sensible, pragmatic UK consistency in the law that avoids a 'postcode lottery' of rights developing.

3.10 The facts are these:

• The creation of a civil partnership registration scheme to provide same-sex couples with the opportunity to register their partnership and trigger access to some employment benefits is the approach taken by the UK Government to ensure the UK's compliance with the EU Employment Directive (2000/78/EC).
• Civil partnership registration spans devolved and reserved policy issues. In the absence of Scottish provisions, a complex web of differing rights will emerge with Scottish couples travelling down south to get some of the rights of their English counterparts.
• There will be difficult cross border issues to contend with if parity is not maintained across Great Britain on the legal rights that are available to same-sex couples.
• There could be a legal challenge by a Scottish same-sex couple on grounds that they are discriminated against as compared to similar couples in England and Wales.
• In order to avoid discrimination and cross border difficulties, the new status should trigger access to rights and responsibilities in both devolved and reserved areas.

3.11 Given these considerations, we propose that Scottish same-sex couples should be able to register their partnership in order to trigger access to a comprehensive package of rights and responsibilities in both reserved and devolved areas.
We invite comments on this proposal.

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