Family law consultation: draft impact assessments
Draft impact assessments to support our consultation on reform of various aspects of family law in Scotland.
Potential introduction of qualifying requirements for religious and belief bodies - draft Equality Impact Assessment Record
Title of policy/ practice/ strategy/ legislation etc.
Potential introduction of qualifying requirements for religious and belief bodies with celebrants who solemnise marriage or register civil partnership
Minister: Minister for Victims and Community Safety
Lead official: Family Law Policy Unit
Directorate: Division: Team
Directorate for Justice: Civil Law and Legal System: Family Law Policy Unit
Is this new policy or revision to an existing policy?
Consideration of new policy
Screening
Policy Aim
The Scottish Government is consulting on whether to introduce qualifying requirements for religious and belief bodies with celebrants who solemnise marriages and register civil partnerships, and if so, what the qualifying requirements ought to be.
An eligible couple can enter into a marriage or a civil partnership in Scotland. A marriage may be solemnised, and a civil partnership registered, by a civil registrar (working as an employee of a local authority under the direction of the Registrar General) or by an authorised religious or belief celebrant.
Under Marriage (Scotland) Act 1977 (the 1977 Act) and the Civil Partnership Act 2004 (the 2004 Act) there are a number of systems for religious or belief celebrants to be approved to solemnise marriage or register civil partnership. There is further information on these arrangements in the consultation.
The Scottish Ministers have powers to introduce such qualifying requirements under the Marriage and Civil Partnership (Scotland) Act 2014 (the 2014 Act) and under the Civil Partnership (Scotland) Act 2020, which introduced mixed sex civil partnership.
If the Scottish Ministers decide to implement this change, they will need to make a Scottish Statutory Instrument.
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).
The state has a legitimate interest in this given that authorised celebrants are solemnising marriages and registering civil partnerships recognised by the state. It is not the policy intention to interfere with religious or belief practices which form part of a body’s marriage or civil partnership ceremony.
The consultation discusses and seeks views on some potential options for individual qualifying 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 for celebrants from the Registrar General or when 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 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 or solemnising marriages or registering civil partnerships for the purpose of profit or gain should be supplied when seeking authorisation or seeking to be prescribed
The potential qualifying requirements discussed in the consultation often reflect on or develop existing approaches taken by the Registrar General when considering authorisation of religious or belief celebrants or the current approach of the Scottish Ministers when reaching a decision on whether to prescribe a religious or belief body.
If introduced, we think the qualifying requirements could contribute to the following National Outcomes:
- 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
Who will it affect?
The introduction of the qualifying requirements would directly affect religious and belief bodies who would require to be able to demonstrate that they and, as appropriate, their celebrants meet the requirements.
Celebrants from religious and belief bodies who are authorised (or seek to be authorised) to solemnise marriages and register civil partnerships would be indirectly affected, as their conduct in relation to marriages or civil partnerships will be relevant.
Couples who want their marriage or civil partnership ceremonies to be celebrated in accordance with their faith or belief might be indirectly affected.
Vulnerable people may have additional protection against a forced marriage or civil partnership.
There could be impacts for local authority registrars who, regardless of whether the marriage or civil partnership is religious or belief or civil, deal with the required notices of all intended marriages or civil partnerships.
Registrars support the operation of the marriage and civil partnership referral and investigation scheme (the sham marriage scheme) under the Immigration Act 2014. Registrars, and religious and belief celebrants can help identify and raise concerns about potential forced marriages or civil partnerships. Introducing the qualifying requirements might indirectly help reduce the risk that marriages and civil partnerships are forced. There is existing statutory forced marriage guidance: Forced marriage: statutory guidance - gov.scot.
The introduction of qualifying requirements would impact on staff at National Records of Scotland (NRS) who consider requests for authorisation of religious or belief celebrants.
What might prevent the desired outcomes being achieved?
The Scottish Government has not reached a view on whether to introduce the qualifying requirements or what the qualifying requirements would be. Responses to the consultation will be analysed and the outcomes considered before a decision is made.
If a decision to proceed with any qualifying requirements is made in the light of the consultation responses, the Scottish Ministers would need to make a Scottish Statutory Instrument to introduce the qualifying requirements.
Stage 1: Framing
An internal framing exercise was held online involving members of the Family Law Policy Unit, the Justice Analytical Unit and the Equality Mainstreaming Unit’s Faith and Belief team.
Results of framing exercise
A range of points was made at the framing exercise:
- The key protected characteristic where there might be potential impacts was Religion or belief. It was not clear if there were any impacts for other protected characteristics.
- The qualifying requirements are not concerned with regulating the religious or belief requirements for ceremonies in addition to the minimum legal requirements set out in the Marriage (Scotland) Act 1977 and the Civil Partnership Act 2004.
- A number of potential qualifying requirements will be discussed in the consultation, some of which might impact differently for religious or belief bodies of different sizes. We need to be mindful about how a potential qualifying requirement being considered might impact smaller organisations or faith or belief communities in Scotland where there may be fewer celebrants and limited support staff.
- NRS has published data about marriages solemnised by celebrants from different religious or belief bodies.
- The Church of Scotland would not be impacted by the introduction of qualifying requirements in relation to the solemnisation of mixed sex marriages. This does not arise as a result of policy but is because the 1977 Act makes provision that all Ministers and deacons of the Church of Scotland are authorised to solemnise mixed sex marriages. This reflects the Church of Scotland’s place as the national church.
- Fundamentally, any decision to introduce qualifying requirements should continue to help ensure as far as possible that a couple who want a religious or belief marriage or civil partnership ceremony can access an authorised celebrant to conduct this in accordance with the couple’s preferred religion or belief, as well as the requirements of the law
Extent/Level of EQIA required
The main impacts of introducing qualifying requirements will be for religious or belief bodies. There may be indirect impacts for individuals with one or more protected characteristics. The key protected characteristic here is religion or belief.
This suggests that a limited EQIA is required but the consultation is an opportunity to gather more views and evidence which can be reflected on as policy is developed and finalised.
Stage 2: Data and evidence gathering, involvement and consultation
We note that introducing the qualifying requirements would typically directly impact religious and belief bodies, rather than people who may have one or more protected characteristics.
Age
Evidence gathered and strength/quality of evidence
There is published data about the ages at which people marry or register a civil partnership in Scotland. The evidence indicates that the average age of first marriage has been increasing.
This high-quality statistical evidence does not suggest any particular impact occurring from the introduction of qualifying requirements arising for people of different age groups who intend to marry or enter a civil partnership.
We have no evidence about the ages of authorised celebrants. Some religious or belief bodies are of many years long standing and others are newer.
See also the protected characteristic of Sex which notes evidence on children being at risk of forced marriage. The protected characteristic of religion or belief notes evidence about the age of people who have or do not have a religion.
A Child Rights and Wellbeing Impact Assessment is being undertaken and a draft will be published to help support the consultation.
Source
NRS, Vital Events, Marriages and Civil Partnerships, Tables 7.01a, 7.01b and 7.11
Data gaps identified and action taken
N/A
Disability
Evidence gathered and strength/quality of evidence
We do not have evidence about the experience of disability within the officers of religious or belief bodies or among celebrants. However we know that 11.3% of those responding to the Scottish Census 2022 reported having a mental health condition affecting their emotional, physical and mental wellbeing and 24.1% reported having a long-term health condition which has lasted or is expected to last at least 12 months. This evidence is of high quality but does not suggest anything in particular about the policy being considered. Religious and belief bodies must already demonstrate compliance with policies and practices. (1)
There is evidence that those with learning disabilities are at significantly higher risk of forced marriage than those who do not have a learning disability. This evidence is high quality research but does not suggest anything in particular about the future decisions on the qualifying requirements for religious and belief bodies. (2)
The existing criminal offence of forced marriage or civil partnership criminalises those who carry out conduct for the purpose of causing a person who cannot consent because of a mental disorder to enter into a marriage or civil partnership, whether or not the conduct amounts to violence, threats or any other form of coercion. Mental disorder in this context is defined in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and does not correlate with the definition of mental health condition in the Scottish Census 2022. (3)
Source
(2)Forced marriage of people with learning disabilities | NIHR SSCR
(3)Section 122 of the Anti-Social Behaviour, Crime and Policing Act 2014
Data gaps identified and action taken
N/A
Sex
Evidence gathered and strength/quality of evidence
There is published data about the sex of those who marry or register a civil partnership each year. This evidence is high quality but does not in itself suggest any particular impact arising from introducing the qualifying requirements for this protected characteristic. (1)
There is evidence that the majority of victims of forced marriage are women and children, so there may be a benefit for women of introducing the qualifying requirements as this may contribute in a limited way to tackling forced marriage. (2)
The Scottish Government received some responses to an informal discussion paper on the qualifying requirements. Some respondents expressed the view that forced marriage was not such a significant issue within their religious or belief community that qualifying requirements would be required.
Source
(1)NRS, Vital Events, Marriages and Civil Partnerships, Tables 7.01a, 7.01b and 7.10
(2)Scottish Government, Forced marriage: statutory guidance - gov.scot (www.gov.scot)
Data gaps identified and action taken
N/A
Pregnancy and maternity
Evidence gathered and strength/quality of evidence
We have no evidence of potential impacts for pregnant women or mothers.
Source
N/A
Data gaps identified and action taken
N/A
Gender reassignment
Evidence gathered and strength/quality of evidence
There is evidence that LGBTQ+ people can be at additional risk of forced marriage. There may be a benefit for people with the protected characteristic of gender reassignment of introducing the qualifying requirements, as this may contribute in a limited way to tackling forced marriage and civil partnership.
See the protected characteristic of sex on evidence of views in some communities that the qualifying requirements are not needed in order to tackle forced marriage.
Source
Scottish Government, Forced marriage: statutory guidance - gov.scot (www.gov.scot)
Data gaps identified and action taken
N/A
Sexual orientation
Evidence gathered and strength/quality of evidence
There is evidence that LGBTQ+ people are at additional risk of forced heterosexual marriage to “correct” their orientation or identity. There may be a benefit for lesbian, gay and bisexual people of introducing the qualifying requirements, as this may contribute in a limited way to tackling forced marriage and civil partnership.
See the protected characteristic of sex on evidence of views that the qualifying requirements are not needed for all communities in order to tackle forced marriage.
Source
Scottish Government, Forced marriage: statutory guidance - gov.scot (www.gov.scot)
Data gaps identified and action taken
N/A
Race
Evidence gathered and strength/quality of evidence
There is published data on the countries of birth and residence of those who marry in Scotland and the countries of birth of those who register a civil partnership. (1)
On forced marriage, the evidence is that this is not specific to any one community. (2)
We have no evidence of potential impacts on the basis of race or ethnicity.
Source
(1)NRS, Vital Events, Marriage and Civil Partnership, Tables 7.08, 7.09 and 7.12.
(2)Understanding forced marriage in Scotland - gov.scot (www.gov.scot)
Data gaps identified and action taken
N/A
Religion or belief
Evidence gathered and strength/quality of evidence
Subject to the outcomes of the consultation, we consider that the main impacts would be for the protected characteristic of religion or belief.
In 2023, 55.2% (14,502) of marriages in Scotland were solemnised by a religious or belief celebrant. 124 civil partnerships have been registered by religious or belief bodies from when this became possible under the Marriage and Civil Partnership (Scotland) Act 2014 to the end of 2024. (1)
There is published data on the numbers of marriages conducted by celebrants from different religious or belief bodies. (2)
There are more than 50 religious and belief bodies with authorised celebrants. There is a diverse range of religious or belief bodies in Scotland with authorised celebrants. (3)
More than 50% of these bodies’ celebrants solemnised fewer than 100 marriages in 2023. (4)
More than 20 bodies’ celebrants solemnised fewer than 20 marriages that year.
This is high-quality evidence. It does not tell us directly about the likely capability of individual organisations to handle the administration of qualifying requirements. It does suggest that there are many smaller and/or newer religious and belief bodies who could be impacted by the introduction of qualifying requirements. That suggests we need to consider carefully the potential impacts of introducing qualifying requirements.
The evidence from the Census 2022 and previous census suggests that people with a religion tend to be in older age groups. Young people are more likely to say they have no religion than people in older age groups. (5)
This is high quality evidence. It does not tell us directly about the likely capability of individual organisations to handle the administration of qualifying requirements. It does suggest there are potentially many officers in religious and belief bodies which are likely to be in older age groups.
Source
(1)NRS, Vital Events, Marriage and Civil Partnership, Table 7.07 for marriage. Data on celebrants in civil partnerships from NRS.
(2)NRS, Vital Events, Marriage and Civil Partnership, Table 7.05 and 7.06
(3)NRS, Vital Events, Marriage and Civil Partnership, Table 7.07
(4)NRS, Vital Events, Marriage and Civil Partnership, Table 7.07
Data gaps identified and action taken
N/A
Marriage and civil partnership
Evidence gathered and strength/quality of evidence
N/A
Source
N/A
Data gaps identified and action taken
N/A
Stage 3: Assessing the impacts and identifying opportunities to promote equality
Do you think that the policy impacts on people on the grounds of their age? Either directly or indirectly?
Eliminating unlawful discrimination, harassment and victimisation:
We do not consider that the current law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it constitutes unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity:
The introduction of qualifying requirements would impact primarily on religious and belief bodies. Introducing qualifying requirements might nonetheless have an indirect benefit for children, in that it may to a limited extent, contribute to tackling forced marriage.
Promoting good relations among and between different age groups:
This policy is not about promoting good relations, and we have not identified a potential opportunity to do so in regard to those of different age groups.
Do you think that the policy impacts disabled people? Either directly or indirectly?
Eliminating unlawful discrimination, harassment and victimisation
We do not consider that the current law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it, constitutes unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
The introduction of qualifying requirements would impact primarily on religious and belief bodies rather than on people as individuals. Introducing qualifying requirements might nonetheless have an indirect benefit for some people with disabilities, in that it could to a limited extent contribute to tackling forced marriage.
Promoting good relations among and between disabled and non-disabled people
This policy is not about promoting good relations and we have not identified an opportunity to do so between those who have a disability and those who do not.
Do you think that the policy impacts on men and women in different ways? Either directly or indirectly?
Eliminating unlawful discrimination
We do not consider that the current law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it, constitutes unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
The introduction of qualifying requirements would impact primarily on religious and belief bodies. Introducing qualifying requirements might nonetheless have an indirect benefit for women, in that it may to a limited extent, contribute to tackling forced marriage.
Promoting good relations between men and women
This policy is not about promoting good relations, and we have not identified an opportunity to do so as between men and women.
Do you think that the policy impacts on women on the grounds of pregnancy and maternity? Either directly or indirectly?
Eliminating unlawful discrimination
We do not consider that the current law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it, constitute unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
We have no evidence of impacts in relation to this protected characteristic. Introducing qualifying requirements would primarily impact on religious and belief organisations.
Promoting good relations
This policy is not about promoting good relations and we have not identified an opportunity to do so as between pregnant women and mothers, and other people.
Do you think your policy impacts on people proposing to undergo, undergoing, or who have undergone a process for the purpose of reassigning their sex? Either directly or indirectly?
Eliminating unlawful discrimination
We do not consider that the current law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it, constitutes unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
The introduction of qualifying requirements would impact primarily on religious and belief bodies. Introducing qualifying requirements might nonetheless have an indirect benefit for some people with the protected characteristic of gender reassignment, in that it may to a limited extent contribute to tackling forced marriage and there is evidence that trans people and LGB people can be at risk of a “corrective” forced marriage.
Promoting good relations
This policy is not about promoting good relations, and we have not identified an opportunity to do so as between trans people and non-trans people.
Do you think that the policy impacts on people on the grounds of their sexual orientation? Either directly or indirectly?
Eliminating unlawful discrimination
We do not consider that the current law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it constitutes unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
The introduction of qualifying requirements would impact primarily on religious and belief bodies rather than on people. Introducing qualifying requirements might nonetheless have an indirect benefit for some lesbian, gay or bisexual people, in that it may to a limited extent contribute to tackling forced marriage and there is evidence that LGB people can be at risk of a “corrective” heterosexual forced marriage.
Promoting good relations
This policy is not about promoting good relations, and we have not identified an opportunity to do so in relation to this protected characteristic.
Do you think the policy impacts on people on the grounds of their race? Either directly or indirectly?
Eliminating unlawful discrimination
We do not consider that the current law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it, constitutes unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
We have no evidence of impacts in relation to this protected characteristic.
Promoting good race relations
This policy is not about promoting good relations, and we have not identified an opportunity to do so in relation to relations between people of one race or ethnicity and others.
Do you think the policy impacts on people on the grounds of their religion or belief? Either directly or indirectly?
Eliminating unlawful discrimination
We do not consider that the law on the authorisation of religious or belief celebrants in relation to marriage and civil partnerships, or the potential policy to change it, constitutes unlawful discrimination, harassment and victimisation.
Advancing equality of opportunity
The introduction of qualifying requirements would impact primarily on religious and belief bodies. Introducing qualifying requirements could potentially have indirect impacts on couples who want a religious or belief marriage or civil partnership if there is an adverse impact for smaller or newer religious or belief groups.
Promoting good relations
This policy is not about promoting good relations and we have not identified an opportunity to do so as between people of faith or belief and those without faith or belief.
Do you think the policy impacts on people on the grounds of their marriage or civil partnership? Either directly or indirectly?
Eliminating unlawful discrimination
Not applicable
Advancing equality of opportunity
Not applicable
Promoting good relations
Not applicable
Stage 4: Decision making and monitoring
Identifying and establishing any required mitigating action
Have positive or negative impacts been identified for any of the equality groups?
The introduction of qualifying requirements would impact primarily on religious and belief bodies rather than on people.
There might be beneficial indirect impacts for the protected characteristics of disability, gender reassignment, sex and sexual orientation as the introduction of qualifying requirements may contribute to a limited extent towards tackling forced marriages and forced civil partnerships. We need to consider responses to the consultation carefully in regard to evidence that qualifying requirements might have an adverse impact for smaller or newer religious or belief groups.
Is the policy directly or indirectly discriminatory under the Equality Act 2010?
Not applicable
If the policy is indirectly discriminatory, how is it justified under the relevant legislation?
Not applicable
If not justified, what mitigating action will be undertaken?
Not applicable
Describing how Equality Impact analysis has shaped the policy making process
- No direct changes have been made as a result of this draft EQIA Record, which is intended to support a public consultation. However, the draft EQIA Record has highlighted the need to consider carefully any points raised to avoid adverse impacts in relation to the protected characteristic of religion or belief.
- There are no direct implications for finance as a result of this draft EQIA Record. There may be costs in relation to implementing a change in the law if legislation on the qualifying requirements proceeds. The potential costs of change are considered in our draft Business and Regulatory Impact Assessment.
Monitoring and Review
At this stage, the Scottish Government has not decided to legislate. This draft EQIA Record is intended to support the public consultation. We will consider monitoring and reviewing issues once the consultation responses are analysed and any next steps are decided.
Stage 5: Authorisation of EQIA
Stage 5 will be completed and an updated EQIA published if, following analysis of the consultation responses, the Scottish Government takes forward legislation.
Please confirm that:
- This Equality Impact Assessment has informed the development of this policy:
Yes
No
- Opportunities to promote equality in respect of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation have been considered, i.e.:
- Eliminating unlawful discrimination, harassment, victimisation;
- Removing or minimising any barriers and/or disadvantages;
- Taking steps which assist with promoting equality and meeting people’s different needs;
- Encouraging participation (e.g. in public life)
- Fostering good relations, tackling prejudice and promoting understanding.
Yes
No
If the Marriage and Civil Partnership protected characteristic applies to this policy, the Equality Impact Assessment has also assessed against the duty to eliminate unlawful discrimination, harassment and victimisation in respect of this protected characteristic:
Yes
No
Not applicable
Declaration
[This will be completed after this consultation and views have been obtained from consultees]
I am satisfied with the equality impact assessment that has been undertaken for and give my authorisation for the results of this assessment to be published on the Scottish Government’s website.
Name:
Position:
Authorisation date: