A Scottish Government Consultation on Family Law - draft Impact Assessments

Potential introduction of Qualifying Requirements for Religious and Belief bodies with celebrant who solemnise marriages and register civil partnerships - partial Business and Regulatory Impact Assessment

Introduction

Under the Marriage (Scotland) Act 1977 (the 1977 Act) and the Civil Partnership Act 2004 (the 2004 Act), there are a number of systems under which celebrants from religious and belief bodies can be approved to solemnise marriages or register civil partnerships in Scotland.

This partial Business and Regulatory Impact Assessment (BRIA) will refer to marriage, but unless otherwise stated the points made will apply equally to civil partnership.

As a result of amendments made by the Marriage and Civil Partnership (Scotland) Act 2014 to the 1977 and 2004 Acts, the Scottish Ministers have power to make regulations by a Scottish Statutory Instrument (SSI) setting out “qualifying requirements” for religious and belief bodies with celebrants who solemnise marriages. We are consulting on whether to make such regulations and this partial BRIA is published alongside that consultation.

Executive summary

This partial BRIA considers the potential costs and benefits of two options:

• Option 1 (Bring forward an SSI on qualifying requirements): the Scottish Ministers make an SSI to specify the qualifying requirements.
• Option 2 (Do nothing): the Scottish Ministers do not make an SSI to specify the qualifying requirements.

There should be no costs for business if Option 1 were implemented. Under the current arrangements, religious and belief celebrants should not be carrying on a business of solemnising marriages for the purpose of profit or gain. There could be impacts under Option 1 for: religious and belief bodies in the third sector; the Registrar General for Scotland and staff at the National Records of Scotland; the Scottish Government; civil registrars; and couples who intend to marry or register a civil partnership.

Option 1 may have non-monetary impacts by helping to ensure:

• greater consistency of approach between bodies, notwithstanding their increasing diversity;
• the continued dignity and solemnity of marriage and civil partnership; and
• that celebrants are informed about and are equipped to deal with a potential sham or forced marriage.

We recognise that it would be important that introducing qualifying requirements did not, when compared to the potential benefits, disproportionately increase burdens on religious and belief bodies.

Stage 1: Background, aims and options

Background to policy issue

Under the 1977 Act and the 2004 Act, a couple who meet the eligibility criteria can enter into a marriage or a civil partnership in Scotland. A marriage may be solemnised, or a civil partnership registered, by:

• a civil registrar (working as an employee of a local authority under the direction of the Registrar General); or
• an authorised religious or belief celebrant.

The Marriage and Civil Partnership (Scotland) Act 2014 made amendments to the 1977 Act and the 2004 Act to introduce powers for the Scottish Ministers to make regulations introducing qualifying requirements that religious and belief bodies would be required to meet before its celebrants could be authorised to solemnise marriage.

The aim outlined in the Policy Memorandum for the Bill which became the 2014 Act is to ensure that marriages and civil partnerships are carried out with dignity, are not sham or forced, and are not carried out for profit or gain. (See paragraphs 65 to 74 of the Policy Memorandum).

A sham marriage is a marriage where there is no genuine relationship between the parties and either or both of the parties are trying to marry for the purpose of avoiding UK immigration controls. There are measures in place for registrars to refer some marriage notices to the UK Home Office. The Home Office can extend the notice period to 70 days to investigate further if there are reasonable grounds to suspect that a proposed marriage is a sham. Sometimes a sham marriage is part of wider organised crime and criminal activity such as money laundering.

A forced marriage is where one or both people involved do not or cannot, by reason of mental disorder, consent to the marriage, and pressure or abuse is used to force them into the marriage. Forcing someone to marry or enter a civil partnership is a criminal offence: section 122 of the Anti-social Behaviour, Crime and Policing Act 2014.

Under section 8(1)(a)(i) of the 1977 Act, Church of Scotland ministers and deacons are automatically authorised to solemnise mixed sex marriages.

There are a number of ways in which celebrants from other religious or belief bodies can be approved to solemnise mixed sex marriages:

• a religious or belief body may be prescribed by the Scottish Ministers by a SSI so that all of its celebrants, or persons recognised by the body as entitled to do so, may solemnise mixed sex marriages under section 8(1)(a)(ii) of the 1977 Act;
• a religious or belief body may nominate persons to the Registrar General of Births, Deaths and Marriages for Scotland (the Registrar General) to be registered as celebrants for mixed sex marriages under section 9 of the 1977 Act; and
• the Registrar General may grant temporary authorisation to a member of a religious or belief body to solemnise mixed sex marriages under section 12 of the 1977 Act. Such temporary authorisation may be for a specific ceremony or ceremonies or may be for a period of time

Similar systems are in place in relation to the authorisation of celebrants to solemnise same sex marriages and to register civil partnerships.

A body can only be prescribed by the Scottish Ministers under the 1977 Act in relation to the solemnisation of marriages or civil partnerships if:

• it requests Scottish Ministers to prescribe it - section 8(1A)(a) of the 1977 Act and section 94A(2)(a) of the 2004 Act refer.
• the Scottish Ministers are satisfied it is a “religious or belief body” as defined in section 26(2) of the 1977 or under section 135(1) of the 2004 Act

The definition of a “religious or belief body” is “an organised group of people —:

• which meets regularly for religious worship, or
• the principal object (or one of the principal objects) of which is to uphold or promote philosophical beliefs and which meets regularly for that purpose”

The decision on whether to prescribe a religious or belief body which has made such a request is at the discretion of the Scottish Ministers.

The Scottish Ministers follow a set procedure when considering applications by bodies to be prescribed. Details of this procedure are outlined in Policy Notes accompanying Regulations prescribing a body: see for example The Civil Partnership, Marriage Between Persons of Different Sexes and Same Sex Marriage (Prescribed Bodies) (Scotland) Amendment Regulations 2016 (legislation.gov.uk). There is further information in the consultation on the information that the Scottish Government seeks when dealing with a request to be prescribed.

The Registrar General also follows a set procedure when considering applications for nominated persons to be registered as celebrants and when considering applications for temporary authorisation. Detail of this procedure have been published by NRS.

The Scottish Government is considering whether to bring forward regulations under the available powers to set out such qualifying requirements. Responses to the consultation will be considered as we reach a view on our next steps.

Purpose/aim of action and desired effect

The purpose of the consultation is to gather views and evidence about whether the Scottish Ministers should bring forward qualifying requirements and if so, what those qualifying requirements should be.

The aim of introducing qualifying requirements would be to ensure that marriages and civil partnerships are carried out with dignity, that they are not sham or forced, and that they are not carried out for profit or gain.

The state has a legitimate interest in this area given that authorised celebrants are solemnising marriages and registering civil partnerships recognised by the state. However, we are not seeking to interfere with religious or belief practices which form part of a body’s marriage or civil partnership ceremony.

We think that implementing qualifying requirements could potentially contribute to the following National Outcomes in the National Performance Framework:

• Communities: We live in communities that are inclusive, empowered, resilient and safe.
• Human Rights: We respect, protect and fulfil human rights and live free from discrimination

Options (considered so far/still open)

The Options being considered at present are:

• Option 1 (Bring forward an SSI on qualifying requirements) is for the Scottish Ministers to make an SSI to introduce qualifying requirements for religious and belief bodies to meet when they seek authorisation for their celebrants to solemnise marriages.
• Option 2 (Do nothing) is that the Scottish Ministers do not make an SSI to introduce qualifying requirements for religious and belief bodies to meet when they seek authorisation for their celebrants to solemnise marriages

Under Option 1 (Bring forward SSI on qualifying requirements), there are decisions to be made about which requirements to introduce. The consultation discusses and seeks views on some potential options for individual requirements and the Scottish Government’s initial thinking, including whether:

• a body should produce their constitution or a statement of their faith or belief when seeking authorisation from the Registrar General or seeking to be prescribed;
• a body’s constitution or statement of their faith or belief should be publicly available;
• information about meetings for religious worship or meetings to uphold or promote philosophical beliefs should be produced when a religious or belief body is seeking authorisation for celebrants or is seeking to be prescribed;
• there should be a requirement for bodies seeking to be prescribed to produce in writing the form of words to be used in its marriage ceremonies;
• information should be provided about the record of a religious or belief body and its celebrants in solemnising marriages or registering civil partnerships when seeking authorisation or when seeking to be prescribed;
• information should be provided about the training given to celebrants of a religious or belief body;
• a body seeking to be prescribed should provide evidence regarding their disciplinary process for their authorised celebrants; and
• information relevant to whether a religious or belief body or its celebrants might be carrying on a business of solemnising marriage or registering civil partnership for the purpose of profit or gain, should be supplied, when said body is seeking authorisation or is seeking to be prescribed

The potential qualifying requirements discussed in the consultation often reflect or develop on existing approaches to the evidence required by the Registrar General when considering authorisation of religious or belief celebrants or the current policy of the Scottish Ministers on evidence sought when reaching a decision on whether to prescribe a religious or belief body.

Under Option 2, the Scottish Ministers and the Registrar General would continue to operate the existing arrangements for the authorisation of celebrants and would continue to follow the existing policies and procedures.

Sectors/ Groups affected

We think that taking Option 1 (Bring forward an SSI to introduce qualifying requirements) would directly affect and may have costs for:

• Religious and belief bodies with marriage celebrants. These bodies will already incur some administrative costs in seeking authorisation for their celebrants to solemnise marriages and register civil partnerships under the existing arrangements.
• The Registrar General and staff at National Records of Scotland (NRS) who deal with requests for authorisation under the existing arrangements.
• The Scottish Government, as the Scottish Ministers may prescribe a religious or belief body on request, so that all its recognised celebrants can solemnise marriages

There is a diverse range of religious and belief bodies with authorised celebrants conducting marriages. Statistics on registered marriages published on the NRS website for 2023 indicate that there were 50 religious and belief bodies with celebrants who conducted at least 10 marriages: NRS Vital Events Tables, Marriages and Civil Partnerships Table 7.05.

There may be indirect impacts for:

• Couples who intend to marry;
• Religious and belief celebrants; and
• Civil registrars who handle all the paperwork associated with the registration of marriages, including those where the marriage is to be solemnised by a religious or belief celebrant

Stage 2: Engagement and information gathering

Engagement approach

Following the passage of the 2014 Act, the Scottish Government issued an informal discussion paper to religious and belief bodies on the possibility of introducing the qualifying requirements in 2014. The consultation reflects the views we received in response. We are now consulting formally to gather more views and evidence. We will analyse the responses to help inform our decision on whether to bring qualifying requirements forward in an SSI.

Internal SG engagement/ engagement with wider Public Sector

Internal SG engagement

Officials in the Family Law Policy Unit have engaged with colleagues in the Faith and Belief team, and with officials in NRS. We have not engaged with the Regulatory Review Group.

UK/ Devolved Administrations

We have not engaged with the UK Government or with the Northern Ireland Executive. There are distinct arrangements in place in the constituent parts of the UK for the solemnisation of marriages and registration of civil partnerships.

Wider Public Sector

Scottish Government officials regularly engage with the Association of Registrars in Scotland and will draw the consultation to their attention.

International

No engagement has taken place internationally. There is a wide range of approaches in other countries to the constitution of legal marriages.

Business / Third Sector engagement

As identified, there should be no impact for business as religious and belief bodies’ celebrants should not be carrying out a business of solemnising marriage for the purpose of profit or gain. The consultation will seek further views and evidence, and we have highlighted to the Scottish Wedding Industry Alliance that we will be consulting on the qualifying requirements. We will draw the consultation to their attention once it is published.

Some religious and belief bodies responded to an earlier informal discussion paper on introducing qualifying requirements and these views have fed into the consultation content. We have highlighted the consultation to bodies attending the Scottish Government’s Faith and Belief Representatives Group to encourage responses.

Public consultation

This partial BRIA will accompany an open public consultation.

Other stakeholders

This is not applicable.

Stage 3: Costs, impacts and benefits

Quantified costs to businesses

There should be no costs for business in the wedding sector as highlighted previously.

Other impacts

Religious and belief bodies will incur costs currently in seeking authorisation for their celebrants to solemnise marriages or asking to be prescribed by the Scottish Ministers. Demonstrating that they comply with the qualifying requirements as part of them seeking to be prescribed or seeking authorisation from the Registrar General will involve resources from the body concerned. We expect any additional costs to be minimal.

Scottish firms’ international competitiveness

The consultation is concerned with the law in Scotland regarding who may solemnise a marriage, and celebrants should not be conducting a business of solemnising marriages for the purpose of profit or gain. Whether a celebrant authorised to solemnise marriages in Scotland may be able to do so in another country will depend on the law in that country or jurisdiction.

Benefits to business

We have not identified any particular benefit to business from introducing qualifying requirements for religious and belief bodies.

Small business impacts

There should be no impacts for business.

Investment

We have not identified any potential for introducing qualifying requirements to make Scotland a more or less attractive place for global investment.

Workforce and Fair Work

Neither Option 1 (bring forward an SSI to introduce qualifying requirements) nor Option 2 (do nothing) has an impact on the appointment or payment of religious or belief celebrants by bodies or would promote Fair Work First principles.

Climate change/ Circular Economy

We do not consider that Options 1 or 2 would impact on the ability of affected organisations to contribute to the climate or circular economy targets or to the reduction, reuse or recycling of resources.

Competition Assessment

Authorised celebrants from religious or belief bodies should not be operating a business of carrying out marriages for profit or gain. To this extent there should be no competition between different bodies or authorised celebrants from different bodies that is concerned with profit or gain rather than allowing couples who want a religious or belief marriage ceremony to identify a suitable celebrant from an organisation sharing their views. Couples will still be able to make choices in line with their preference and there should be no effect on this form of “competition”.

Consumer Duty

The Consumer Scotland Act 2020 (‘the 2020 Act’) introduced a duty (“the consumer duty”) on ‘relevant public authorities’ in Scotland, when making decisions of a strategic nature about how to exercise their functions, to have regard to:

a) the impact of those decisions on consumers in Scotland, and

b) the desirability of reducing harm to consumers in Scotland.

The intention of implementing Option 1 (Bring forward SSI to introduce qualifying requirements) would be to is to ensure that marriages and civil partnerships are carried out with dignity, are not sham or forced, and are not carried out for profit or gain.

Our initial view is that couples who want to have their marriage solemnised by a religious or belief celebrant could accordingly benefit from Option 1. There is no evidence that this would adversely affect couples or cause them harm or that there might be harm to couples in vulnerable circumstances. The consultation will seek views on what the qualifying requirements might be, and the consultation process will allow us to gather more information and evidence.

Stage 4: Additional implementation considerations

Enforcement/compliance

If the qualifying requirements were introduced under Option 1, the Registrar General could not authorise a celebrant under section 9 of the 1977 Act (or its equivalent in the Civil Partnership Act) where the religious or belief body nominating them does not meet the qualifying requirements. Celebrants authorised under section 9 can be removed from the relevant register by the Registrar General in a range of circumstances as specified in section 10 of the 1977 Act.

If the qualifying requirements were introduced under Option 1, the Scottish Ministers could not prescribe a religious or belief body so that all of its recognised celebrants could solemnise marriages if it did not meet the qualifying requirements. If a prescribed body was alleged no longer to be complying with the qualifying requirements, the Scottish Ministers would consider the evidence before deciding whether it was appropriate to remove this status from the religious or belief body in question.

UK, EU and International Regulatory Alignment and Obligations

Internal Market/Intra-UK Trade

There are different legal arrangements in place between the constituent parts of the UK as regards how marriages are solemnised and civil partnerships are registered. Some religious or belief bodies with celebrants authorised to solemnise marriages in Scotland may have a presence in other parts of the UK and their celebrants may also solemnise marriages elsewhere in the UK if they or the arrangements for the ceremony more generally, meet the regulatory requirements in that part.

International Trade Implications

There are no implications for international trade.

EU Alignment consideration

There are a wide variety of arrangements in place in EU member states for the solemnisation of marriages.

Legal Aid

A decision of the Scottish Ministers whether to prescribe or not to prescribe a religious or belief body so that all its celebrants could solemnise marriages could be subject to an application to a court for judicial review.

A decision of the Registrar General to reject a nomination of a particular religious or belief celebrant to be authorised to solemnise marriages, can be appealed to the Scottish Ministers. We are aware of only one such case being appealed to the Scottish Ministers.

Legal aid can generally only be granted to an individual. Companies or partnerships are unlikely to qualify for civil legal aid.

Our initial view is that neither Option being considered would lead to additional requests for legal aid or to additional cases reaching the court.

Digital impact

The policy proposals do not involve any measures affecting digital technologies or markets. There is no proposal to require requests to be prescribed or for authorisation of individual celebrants to be undertaken digitally.

Business forms

There would be no new forms for business.

Stage 5: Next steps and implementation

Recommendations/ preferred options

At this stage, we have no preferred option out of Option 1 (bring forward an SSI to introduce qualifying requirements) or Option 2 (do nothing). The evidence and information from consultation responses will be used to reach a decision on our next steps.

Implementation considerations/ plan

If following an analysis of the consultation responses, the Scottish Ministers decide to proceed with Option 1, we will make a plan for implementation and involve relevant stakeholders as appropriate in that plan.

Post implementation review

We will consider post-implementation review once a decision has been reached on the preferred option.

Declaration

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been assessed with the support of businesses in Scotland.

I am also satisfied that officials have considered the impact on consumers as required by the Consumer Scotland Act 2020 in completion of the Consumer Duty section of this BRIA.

[This will be completed after this consultation and views have been obtained from consultees]

Signed:

Date:

Minister's name:

Minister's title:

Scottish Government Contact point: familylawconsultation@gov.scot