Consultation on the Draft Marriage and Civil Partnership (Scotland) Bill: Analysis of Written Responses

This report presents the findings of the independent analysis of responses to the Scottish Government's consultation on the draft Marriage and Civil Partnership (Scotland) Bill. The consultation ran from 12 December 2012 to 20 March 2013, and sought views on the detail of the legislation that will introduce same sex marriage, allow civil partnerships to be registered through religious or belief ceremonies and make other changes to marriage law.

3 Impact Assessments

3.1 Part 1 of the consultation document included information on the two impact assessments the Scottish Government has prepared in relation to the proposed legislation.

3.2 The Scottish Government's Equality Impact Assessment (EQIA) and Business and Regulatory Impact Assessment (BRIA) are included within the as annexes to the consultation document. The BRIA concludes that the cost implications of the changes proposed are modest. However, the consultation document notes that the proposed changes have a considerable impact in relation to equalities.

Question 1: Do you have any comments on the impact assessments prepared in relation to the proposed legislation?

3.3 Around 1,150 respondents made a comment about the impact assessments. Some respondents made short, supportive statements and referred to the assessments as being comprehensive, competent and coherent, for example.

3.4 The principal issue raised by respondents who had concerns about the assessments, and the EQIA in particular, was that they make little or no mention of the probable negative effects of the proposed legislation on those whose religious or other beliefs lead them to disagree with same sex marriage. The failure to recognise that religious beliefs apply to the whole of life and not simply the formal structures according to which any religious body organises itself was often seen as being the root cause of this omission. However, others interpreted the omission as symptomatic of a wider agenda to secularise Scottish society and marginalise religious bodies and those of faith.

3.5 Many of the other comments made focused on freedom of speech, education and employment. Many of these issues were also raised in responses to Questions 9 and 10 and are discussed in greater detail in the analysis associated with these questions set out later in this report. However, in summary, the key issues of most relevance here were that:

  • There are potentially unquantifiable costs associated with the possibility of legal actions being taken against celebrants and/or religious bodies.
  • No account is taken of the highly divisive impact on a religious community if one celebrant chooses to dissent from the majority decision to solemnise same sex marriage, thus disenfranchising the whole organisation.
  • There is a particular failure to recognise the impact of the proposed legislation on those already working in the public sector or who might wish to work in the public sector in the future. Those who already are or who want to be civil registrars, teachers or social workers will be amongst those most obviously affected.
  • The Muslim community, which already has low mainstream employment rates relative to the whole community, may be particularly adversely affected by the limiting of employment prospects for those opposed to same sex marriage.
  • No mention is made of the possible negative implications for churches or religious charities in terms of charitable status or being able to work in partnership or receive funding from public bodies.

3.6 Some respondents also noted that the assessments do not consider the impact any changes would have on those who are already married or on intersex people. There were also concerns about the coverage of gender reassignment. In particular, it was suggested that the EQIA appeared, in their opinion, to imply that gender transition is associated with having a sex change operation[10]. It was noted that a significant number of transsexual people do not have surgery and that surgery is not a requirement to make an application to the Gender Recognition Panel under the Gender Recognition Act 2004[11].

3.7 Another area which some respondents wished to see receiving greater consideration within the EQIA was the impact on children. Suggestions included:

  • The production of a Child Rights Impact Assessment (of the type the Scottish Government committed to developing in their progress report on children's rights in Scotland, Do the Right Thing)[12].
  • The assessments should consider the benefits that strong, traditional marriage brings for children, families and the wider society.

3.8 Other respondents noted some quite specific omissions or raised some specific issues, including that:

  • The assessments do not appear to take account of the additional administrative costs likely to be incurred by religious denominations as a result of some of the changes. This is likely to be particularly the case for denominations that wish to solemnise same sex marriage or undertake religious registration of civil partnerships, and which will incur costs in compiling and maintaining the necessary registers, for example.
  • The consultation document suggests there will be additional training and related costs associated with the tests that a religious or belief body must meet before its celebrants can be authorised to solemnise marriage or register a civil partnership[13]. These costs have not been recognised with these assessments.
  • Finally, the assessments fail to consider the impact of not making civil partnerships available to opposite sex couples.


Email: Alison Stout

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