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

4 getting there

4.1 We propose inviting the Scottish Parliament to agree to Westminster legislating for Scotland on this issue. This would take the form of a 'Sewel motion' which MSPs would debate in the Scottish Parliament. This section discusses this proposal and the other legislative options that were considered.

Scottish or Westminster legislation?

4.2 We have considered carefully whether legislation should be presented through Westminster or through the Scottish Parliament. There are difficulties in terms of the package of rights that could be achieved through Scottish primary legislation. The Scottish Parliament can only legislate for the devolved aspects of civil partnership registration. In doing so it would need to produce a scheme which was sufficiently comparable to that emerging from Westminster legislation, to trigger access to the reserved benefits.

4.3 For example, the Scottish Parliament could legislate for a scheme that is also open to mixed sex couples and perhaps household companions. It would be for the UK Government to consider whether registration through such a scheme could trigger access to reserved benefits. Since this would go much further than the UK Government's proposals, this could prove problematic. Therefore the civil partnership scheme that could emerge from Scottish legislation may not be recognised by Westminster for the reserved benefits.

4.4 If Westminster legislates for Scotland this would ensure that sensible consistent law is produced that avoids the problems of a complex web of rights and responsibilities which would flow from different legislation at different times north and south of the border. While Scotland would then be included in a Westminster Bill, the provisions in that Bill relating to Scotland would be drafted in Scotland and based on existing Scots Law. This is the only way in which consistency across Great Britain can be assured on such a complex issue.

4.5 In order for Westminster to legislate for Scotland on devolved matters, the Scottish Parliament will be invited to agree to this. The Scottish Executive will present a 'Sewel motion' to the Parliament once Westminster has introduced a Bill. The 'Sewel motion' will invite the Scottish Parliament to agree that Scottish provisions be included in a Westminster Bill so that a Civil Partnership Registration scheme extends to Scotland. The motion would be debated by the Scottish Parliament and voted on by MSPs.

4.6 We believe it makes sense for Westminster to legislate for Scotland on this issue. Therefore, 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. This approach would achieve a comprehensive and timely package of rights and responsibilities across devolved and reserved policy areas for same-sex couples and ensure recognition of a Scottish scheme for reserved purposes.

4.7 We invite comments on our proposal for Scottish provisions to be included in any UK Bill on Civil Partnership Registration.

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