Hansard

Presiding Officer, thank you for the opportunity to address the chamber on the general principles of the Civil Partnership (Scotland) Bill. I express my gratitude to the Equalities and Human Rights Committee for its careful scrutiny of the bill, and I welcome its recommendation to approve the bill’s general principles.

As Cabinet Secretary for Social Security and Older People, I consider that the legislation will help to ensure equality and safeguard human rights in Scotland. The bill follows a United Kingdom Supreme Court ruling from 2018 on the law of civil partnership in England and Wales. The court held that, as a result of the introduction of same-sex marriage in England and Wales, it was no longer compatible with the European convention on human rights for access to civil partnership to be restricted exclusively to same-sex couples. That decision on the ECHR implications of the current law has driven the bill.

In light of the Supreme Court ruling, it is right to proceed with legislation that will ensure equality of choice for all couples in Scotland should they decide to enter into a legally recognised relationship, whether that is a marriage or civil partnership. The bill follows a 2018 Scottish Government consultation on the future of civil partnership. In that consultation, we set out two options for a change in the law of civil partnership for Scotland: closure of civil partnership to new relationships from a date in the future or extension of civil partnerships to mixed-sex couples. Having considered all the evidence available to us, we came to the conclusion that the best way forward for Scotland would be to introduce a bill that makes mixed-sex civil partnerships available to couples here.

I consider that making civil partnership available to mixed-sex couples is right for Scotland for a number of reasons. At heart, the approach is about equality and choice: making the same options of marriage or civil partnership available to all couples upholds the equality principle of levelling up opportunities rather than taking options and choice away. If civil partnership had been closed to new relationships, couples would have had less choice.

In contrast, opening up civil partnership to all will bring clear and much longed-for benefits to couples who feel that this relationship is right for them. I know from letters received by the Scottish Government and responses to our 2018 consultation that some mixed-sex couples feel that marriage simply is not what they want. The common factor with those couples is that they want to deepen their commitment to each other by entering into a civil partnership that they consider to be the best reflection of their beliefs and feelings for each other. I want such couples to have the option and, as a consequence, to be able to benefit from the legal rights that will flow from having a civil partnership.

We also need to think of the bigger picture. Civil partnership was established for same-sex couples in Scotland in 2005, and same-sex marriage legislation was passed in 2014. Of course, mixed-sex marriage has existed in law for hundreds of years. The bill will close the gap and establish a level playing field for all couples who want to enter into a legally recognised relationship. Even without the Supreme Court decision, that gap would have had to have been addressed at some point, and I am glad that it is being addressed now.

I will now explain in a bit more detail what the bill will do. It begins by making a small amendment to the Civil Partnership Act 2004 by removing the words “of the same sex” from the definition of relationship contained in section 1 of the act. The removal of those four words, while seemingly nominal, will constitute a profound and welcome change to the nature of civil partnership in Scotland, expanding equality and choice.

That equality principle is reflected in the fact that, for most purposes, the bill draws no distinction between same-sex and mixed-sex civil partnerships. That means that the same standards will apply for mixed-sex civil partnerships when it comes to eligibility requirements for entering into the relationship, and the same processes and fees will apply for registering the relationship. Authorisation for religious and belief bodies and celebrants who wish to register mixed-sex civil partnerships will be along the same lines as authorisation for those who wish to register same-sex civil partnerships.

The bill also contains provisions that will enable mixed-sex civil partnerships from other jurisdictions to be recognised in Scotland. That means that couples in such relationships will benefit from access to the same packages of rights and responsibilities that will apply to mixed-sex civil partnerships created here in Scotland. Again, we have taken an approach aimed at ensuring equality of treatment.

We have also introduced provisions that will create an interim scheme of recognition that will allow those relationships to be temporarily recognised as marriages in Scotland until mixed-sex civil partnerships are available here. The scheme in the bill is about ensuring that couples do not lose access to the package of rights that flow from entering into a legally recognised relationship. There is a clear risk that that could happen should an alternative approach be taken. As I have said, rights are at the heart of the bill and the interim scheme of recognition is absolutely consistent with that.

The names that we use for ourselves and our relationships are important, and the bill will not alter the ability of a couple to call their civil partnership a civil partnership. It will make clear to couples in mixed-sex civil partnerships that they have legal rights in Scotland and that they will be able to benefit from those rights even before civil partnership is available to Scottish couples. I assure members that I will take steps to ensure that the interim scheme of recognition is in place for as short a time as possible. I would be happy to consider any suggestions made by members on changes to the language in section 3 that would address the concerns that were raised in committee.

The bill also contains provisions on how particular areas of the law will apply to mixed-sex civil partners. As I have said, for the most part, the bill makes no distinction between same-sex civil partners and mixed-sex civil partners. However, there are areas of family law in which the existing provisions for civil partners will not work because they were drawn up on the assumption that the couple was always going to be of the same sex. In such cases, the bill follows what is already in place for mixed-sex married couples.

Like the rest of the bill, that approach is informed by the need to ensure equality of treatment for mixed-sex civil partners, and following existing provisions on mixed-sex marriage will achieve just that. In particular, the bill follows mixed-sex marriage in relation to the presumption of parentage, creating the same presumption where a man is in a civil partnership with the mother of a child as where a man is married to the mother. Other examples include the provision in the bill that will establish how mixed-sex civil partners acquire parental responsibilities and rights and amendments to the definition of “child of the family” so that it includes biological children of mixed-sex civil partners.

Section 11 will establish a new offence of forced civil partnership, to run alongside the offence of forced marriage. We want to close any possible loophole in the law that the introduction of mixed-sex civil partnerships could create, by helping to provide protection for some of the most vulnerable members of our society.

The bill covers diverse areas. However, as I have mentioned, for the most part it simply follows what is already in place for same-sex civil partnerships or adapts the law where appropriate. That means that the bill is largely an amending bill, which changes other pieces of legislation so as to apply existing provisions that were previously debated and approved by Parliament to mixed-sex civil partnerships. That approach ensures that, once mixed-sex civil partnerships are established in Scotland, mixed-sex civil partners will benefit from the same body of law that already applies to same-sex civil partnerships with no resulting inequality of treatment.

As I have said, I am grateful to the Equalities and Human Rights Committee for its careful scrutiny of the bill. I have written to the committee in response to its report, but I wish also to comment on some of its recommendations.

Should the bill be enacted, I will proceed with guidance for the public on the differences between marriage and civil partnership, in line with the committee’s recommendation in that area. The guidance will provide information that supports couples who have decided that they want a legally recognised relationship, enabling them to make an informed choice about the type of relationship that is right for them.

One key point is that there will be less international recognition of mixed-sex civil partnerships than there is of mixed-sex marriage. We will make that clear to couples in guidance so that they can consider the importance of international recognition to their relationship.

I briefly spoke earlier about the interim scheme of recognition, and we welcome the conclusion of the Equalities and Human Rights Committee in paragraph 74 of its report that it was

“persuaded that because of the current legal landscape, there is no immediate alternative to the current approach”

to interim recognition. As I have said, I am considering how the concerns that have been expressed about the language used in relation to the interim scheme of recognition of civil partnerships from elsewhere could be addressed. On that, I will listen very carefully to the points that members make on the matter during the debate.

In its report, the committee expressed its support for the principle of married couples being able to change their relationships to civil partnerships. I acknowledge that point, and I wish to confirm to the Parliament that I am happy to work with the committee on an amendment allowing marriages to change to civil partnerships.

As I mentioned to the committee, there are some potentially complex aspects to provisions in that area. Given that, along with the need to consult and the need to take into account what may emerge in this area in the rest of the UK, an amendment may need to take the form of a power to make secondary legislation so that marriages can change to civil partnerships. I am confident that we will be able to work together to produce an amendment that effectively tackles the complexities in this area.

I have already written to religious and belief bodies to find out what their views are on the provisions in this area. In the context of a bill that is all about rights and equality, it is important that those organisations are given an opportunity to express their thoughts.

The Scottish Government is committed to extending civil partnerships to mixed-sex couples. That is what the bill does, and I commend it to Parliament.

I move,

That the Parliament agrees to the general principles of the Civil Partnership (Scotland) Bill.