Family law: consultation

Part 3: Qualifying requirements for religious and belief bodies to meet when they solemnise marriage or register civil partnership

General

3.01 Under the Marriage (Scotland) Act 1977 (“the 1977 Act”) and the Civil Partnership Act 2004 (“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, 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.

3.02 The couple may wish to have a ceremony in their faith or belief which, at the same time, is legally recognised by the state. In that case, the couple have, of course, chosen to have a religious or belief ceremony. Alternatively, they could opt for a civil ceremony.

3.03 Civil ceremonies may take place within a registrar’s office, or at a place agreed with the registration authority such as a hotel, a beauty spot or in a couple’s home. Civil ceremonies can be of differing size and often incorporate readings, poetry, music and wedding customs or personal vows to one another, in addition to the legal declarations couples must make. Civil ceremonies are available for both marriage and for civil partnership.

3.04 In all cases in Scotland, regardless of whether the marriage or civil partnership is religious or belief or civil, notice of an intended marriage or civil partnership in Scotland has to be submitted to the local registrar. However, in Scotland, local authority registrars do not in their official capacity attend religious or belief marriage and civil partnership ceremonies and do not carry out any functions during these ceremonies.

3.05 Statistics showing the number of marriages in Scotland by denomination are published by National Records of Scotland (XLSX, 1.37 MB) (see table 7.07).

3.06 It became possible at the end of 2014 to register a civil partnership through a religious or belief body. However, the vast majority of civil partnership ceremonies are carried out by local authority registrars.

Definition of religious or belief body

3.07 “Religious or belief body” is defined in the 1977 and 2004 Acts as:

“an organised group of people –

(a) which meets regularly for religious worship; or

(b) 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”.

How are religious or belief celebrants authorised?

3.08 Under the 1977 Act and the 2004 Act, as amended, there are four systems for religious or belief celebrants to be approved to solemnise marriage or register civil partnership.

3.09 These systems are separate (one for mixed sex marriage; one for same sex marriage; one for mixed sex civil partnership; one for same sex civil partnership) as some religious and belief bodies do not wish to solemnise same sex marriage or register civil partnership.

3.10 However, the systems operate along similar lines:

• Church of Scotland ministers and deacons are able to solemnise mixed sex marriage under section 8(1)(a)(i) of the 1977 Act;
• a religious or belief body may be prescribed by Regulations so that all of its celebrants, or persons recognised by the body as entitled to do so, may solemnise mixed sex marriage or same sex marriage under section 8 of the 1977 Act or register mixed sex civil partnership or same sex civil partnership under section 94A of the 2004 Act;
• a religious or belief body may nominate persons to the Registrar General to be registered as celebrants for mixed sex marriage or same sex marriage under section 9 of the 1977 Act or mixed sex civil partnership or same sex civil partnership under section 94B of the 2004 Act;
• the Registrar General may grant temporary authorisation to a member of a religious or belief body to solemnise mixed sex marriage or same sex marriage under section 12 of the 1977 Act or register civil partnership under section 94E of the 2004 Act. Such temporary authorisation may be for a specific ceremony or ceremonies or may be for a period of time.

3.11 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: please 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) (PDF, 54.2 KB)

3.12 A body can only be prescribed by Scottish Ministers under the 1977 or 2004 Acts if it requests Scottish Ministers to prescribe it and if it is a “religious or belief body”. In addition, the Scottish Governments asks bodies seeking to be prescribed for:

• The body’s constitution;
• Information on when they began to solemnise marriage. The Scottish Government would not normally prescribe a body unless its celebrants have been solemnising marriages for at least three years. The Scottish Government discusses any application with the Registrar General to establish what views she has on the body’s track record;
• confirmation if seeking to be prescribed to solemnise same sex marriage or register civil partnership that all of its celebrants are content to take part;
• evidence that, if prescribed, the body would deal properly with any concerns about a particular celebrant and has an appropriate disciplinary process in place that allows for the suspension or dismissal of a celebrant if the celebrant is:
• convicted of an offence under the 1977 Act or under the 2004 Act; or
• has, for the purpose of profit and gain, been carrying on a business of solemnising marriage or registering civil partnership; or
• is not a fit and proper person to solemnise marriage or register civil partnership; or
• for any other reason, should not be solemnising marriage or registering civil partnership;
• confirmation that the body’s celebrants do not for the purpose of profit or gain carry on a business of solemnising marriage or registering civil partnership;
• information on the training which the body’s celebrants receive in relation to the solemnisation of marriage and registration of civil partnership and, in particular, what training is in place to tackle sham marriage and civil partnership and forced marriage;
• confirmation that the body is not aware of any other reason why it would be inappropriate for it to be prescribed.

3.13 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 at Marriage Celebrants – NRS Policy on Authorisation - National Records of Scotland (NRS)

What are the qualifying requirements?

3.14 The qualifying requirements were introduced under the Marriage and Civil Partnership (Scotland) Act 2014 (“the 2014 Act”) and were also contained in the Civil Partnership (Scotland) Act 2020, which introduced mixed sex civil partnership.

3.15 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 marriage and registering civil partnership recognised by the state. The state is not seeking to interfere with religious or belief practices which form part of a body’s marriage or civil partnership ceremony.

3.16 The qualifying requirements would not apply to Church of Scotland ministers or deacons when they solemnise mixed sex marriage, given the Church of Scotland’s position as the national church, which is reflected in the 1977 Act. However, they would apply to:

• Bodies seeking to be prescribed so its celebrants are authorised for mixed sex marriage, same sex marriage, mixed sex civil partnership, or same sex civil partnership;
• Bodies nominating persons to the Registrar General to be authorised as celebrants for mixed sex marriage, same sex marriage, mixed sex civil partnership, or same sex civil partnership;
• Bodies where a member (or members) is seeking temporary authorisation to be authorised as a celebrant (or celebrants) for mixed sex marriage, same sex marriage or civil partnership.

3.17 Qualifying requirements would not apply to bodies that are prescribed before the qualifying requirements are laid down although the Scottish Government expects these bodies would wish to follow any that are laid down. They would also not apply in relation to existing authorisations granted by the Registrar General before the qualifying requirements are put into place but would apply when these come up for renewal.

3.18 The Scottish Government’s broad intention is that the same qualifying requirements would apply regardless of how the celebrant is authorised and regardless of the type of ceremony being carried out. However, there may be some differences in some cases and these are outlined below.

3.19 The Scottish Government issued an initial Discussion Paper (PDF, 165 KB) on the qualifying requirements in 2014.

Information on faith or belief

3.20 Religious or belief bodies will have varying structures. It is not for the Scottish Government or NRS to lay down how they should be structured or to comment on the nature of their faith or belief. However, existing practice requires bodies to produce their constitution or a statement of their faith or belief when seeking authorisation. This ensures information is provided to help demonstrate the body is a religious or belief body. Therefore, the Scottish Government plans to include this as a qualifying requirement.

3.21 In addition, it seems reasonable to lay down that the body’s constitution or statement of their faith or belief should be publicly available. This would provide information to any members of the public seeking to marry or enter a civil partnership. Religious or belief bodies are likely to wish to share their faiths or beliefs publicly in any event, either by way of their website or through printed material.

3.22 Therefore, the Scottish Government plans to lay down as a qualifying requirement that information on a body’s constitution or statement of faith or belief should be publicly available. This could be done either by publishing information on the body’s website or by providing information on request.

3.23 A body’s constitution or statement may not provide much information on what the body does to promote its faith or belief. Therefore, the Scottish Government plans to lay down a qualifying requirement that when seeking authorisation from the Registrar General or seeking to be prescribed, the body should provide information on what it does to promote its faith or belief.

Meetings

3.24 The definition of “religious or belief body” in the 1977 and 2004 Acts provides that the body must be 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.

3.25 Given this, it seems reasonable for bodies when they are seeking authorisation to solemnise marriage or register civil partnership to provide information to the Scottish Government or NRS on how often the body meets for religious worship or to uphold or promote philosophical beliefs and what these meetings are about. The Scottish Government would plan to lay down a qualifying requirement accordingly.

Form of marriage ceremony

3.26 The 1977 and 2004 Acts do not make any provision on the religious or belief content to be followed by the celebrant during a ceremony. That is what you would expect. The state lays down some requirements so that the marriage can be legally recognised but leaves the religious or belief content to the body, the celebrant and the couple.

3.27 In relation to marriage ceremonies, section 9(3) and (3A) of the 1977 Act already empower the Registrar General to require a body nominating persons to act as celebrants to produce in writing the form of words proposed to be used at its marriage ceremonies.

3.28 However, there is currently no similar requirement laid down when a body is seeking to be prescribed for marriage ceremonies or members of the body are seeking temporary authorisation to solemnise marriage. The Scottish Government would propose to lay down a qualifying requirement in these cases accordingly. The intention would be to make sure that the form of ceremony followed by the body includes declarations from the couple accepting each other as husband or wife or accept each other in marriage and from the celebrant that the couple are then married.

3.29 This qualifying requirement would only apply in relation to marriage ceremonies as there are no provisions in the 2004 Act in relation to the form of civil partnership ceremonies. This reflects that there is a difference as to when and how the civil partnership is formed. A civil partnership is formed when the second of the two parties signs the partnership papers. By contrast, a marriage happens when the parties exchange spoken words and also sign the register.

Track record

3.30 New religious or belief bodies may be formed and religious or belief bodies established in other countries may become established in Scotland. Inevitably, new bodies will not have a track record in relation to the solemnisation of marriage or registration of civil partnership and bodies originally established in another country will not have a track record in Scotland. It seems unfair to stop such bodies from seeking authorisation for its celebrants from the Registrar General.

3.31 Therefore, when a new religious or belief body or a body from outside Scotland is seeking authorisation from the Registrar General to solemnise marriage ceremonies or register civil partnerships in Scotland, the Scottish Government does not plan to lay down a qualifying requirement in respect of the body’s track record.

3.32 However, it does seem reasonable for bodies seeking to be prescribed to have an established track record in Scotland. Prescribed bodies are “self policing” in that the Scottish Government does not routinely ask them for information on the solemnisation of marriage or registration of civil partnership. Therefore, it is important to ensure when a body is seeking to be prescribed that it understands the day to day procedures involved in solemnising.

3.33 The Scottish Government appreciates that few bodies will have much of a track record in relation to the registration of civil partnership, given that religious or belief civil partnerships are rare. Therefore, where a body is seeking to be prescribed in relation to civil partnership, the Scottish Ministers would take into account a track record in relation to solemnising marriages.

3.34 The Scottish Government’s current approach is it usually looks for a track record of having solemnised marriages for at least 3 years in Scotland before prescribing any body. The Scottish Government would plan to follow the same approach in the proposed qualifying requirements.

3.35 However, the qualifying requirements would need to reflect that in some instances a body seeking to be prescribed may be emerging as a consequence of a merger or as a consequence of the body changing its name. In these circumstances, the qualifying requirements would reflect that the track record of the previous body could be taken into account.

A good track record

3.36 Of course, a body may have three years’ experience of solemnising marriage in Scotland, but it may have had difficulties during those three years. The Scottish Government’s current practice is to seek the views of the Registrar General when a body is seeking to be prescribed.

3.37 Once qualifying requirements are in place, the Scottish Government would intend to lay one down asking the body seeking to be prescribed that it is content with its own track record in relation to the solemnisation of marriage (and, if appropriate, the registration of civil partnership) and to give reasons as to why it is content with its own track record.

3.38 The Scottish Ministers would then consider this information and the reasons given and take these into account when deciding whether or not to prescribe the body.

Training: Sham and forced marriage and civil partnership

3.39 Religious bodies which responded to the 2014 Discussion Paper noted that its celebrants may be trained outwith Scotland. Questions were also raised about whether qualifying requirements were the best way of tackling forced and sham ceremonies.

3.40 The Scottish Government appreciates the points being made by these bodies. In particular, there may be no need in overseas jurisdictions for its celebrants to be trained in sham marriage if that jurisdiction has no particular concerns about sham marriages being formed to avoid its immigration controls.

3.41 However, the Scottish Government would still propose to lay down in the qualifying requirements that when a body seeks authorisation to solemnise marriage or register civil partnership in Scotland, it should provide information on what training its celebrants have. This would be a general question and would apply regardless of what type of authorisation the religious or belief body was seeking.

Pre-marital care

3.42 A number of religious bodies carry out pre-marital care with a view to asking the couple whether they are sure that they are ready for marriage and are ready to marry each other. Religious bodies which responded to the 2014 Discussion Paper questioned whether qualifying requirements could lay anything down on pre-marital care given that the nature of any such care will be very varied. The Scottish Government agrees and does not propose that any qualifying requirements be laid down in relation to pre-marital care.

Disciplinary procedures for bodies seeking to be prescribed.

3.43 Currently, the Scottish Government asks for evidence that, if prescribed, the body would deal properly with any concerns about a particular celebrant and has an appropriate disciplinary process in place that allows for the suspension or dismissal of a celebrant if the celebrant:

• is convicted of an offence under the 1977 Act or under the 2004 Act; or
• has, for the purpose of profit and gain, been carrying on a business of solemnising marriage or registering civil partnership; or
• is not a fit and proper person to solemnise marriage or register civil partnership; or
• for any other reason, should not be solemnising marriage or registering civil partnership.

3.44 This process reflects that prescribed bodies are “self-policing”. The Scottish Government does not keep a list of the celebrants of prescribed bodies.

3.45 By contrast, the Registrar General has a responsibility under the 1977 Act to maintain a register of those persons nominated and accepted as celebrants and knows which celebrants have temporary authorisation.

3.46 The Registrar General can take action against an individual celebrant who the Registrar General has authorised if there are concerns about the celebrant’s conduct. The Scottish Government cannot take action against an individual celebrant of a prescribed body given that such bodies are “self-policing”: it has to ask the prescribed body to do so. Of course, if a prescribed body failed to take action against a celebrant who is not complying with requirements, the Scottish Ministers would need to consider if that body should remain prescribed.

3.47 The Scottish Government proposes to continue with its current practice and lay down in the qualifying requirements that when a body is seeking to be prescribed it should provide evidence that, if prescribed, the body would deal properly with any concerns about a particular celebrant and has an appropriate disciplinary process in place that allows for the suspension or dismissal of a celebrant if required.

Profit and gain

3.48 Section 10 of the 1977 Act makes provision on the Registrar General removing persons from the register of approved celebrants. By virtue of section 10(1)(d)(ii), one of the grounds for removing a person from the register is “that person… has, for the purpose of profit or gain, been carrying on a business of solemnising marriages”. Section 94C(1)(c)(ii) makes similar provision in respect of the registration of civil partnership.

3.49 These provisions are only on the face of the legislation in respect of the registers held by the Registrar General. In practice, though, they apply generally. The Scottish Ministers would not prescribe a religious or belief body if it had celebrants who for the purpose of profit or gain were carrying on a business of solemnising marriage or registering civil partnership (and would raise concerns with a prescribed body if it was suggested that any of its celebrants were doing so).

3.50 Similarly, the Registrar General would not provide temporary authorisation to religious or belief celebrants if for the purpose of profit or gain they were carrying on a business of solemnising marriage or registering civil partnership (and would raise concerns with a body if it was suggested that any of its celebrants were doing so).

3.51 The Scottish Government has considered what celebrants, for the purpose of profit or gain, carrying on a business of solemnising marriages means in practice.

3.52 The Scottish Government considers that two points must occur for a celebrant to contravene this provision. “Profit or gain” means that the aim of the celebrant is to make money rather than carry out religious worship or uphold or promote philosophical beliefs. The celebrant may not actually be successful in this but the aim is there. “Carrying on a business” means that the celebrant is aiming to do so in a systematic way. It does not mean that the celebrant has set up a formal business association (although that could indeed suggest that the celebrant is contravening the provision) but, instead, that the solemnisation of marriage is being used in an organised way to make money.

3.53 It may be helpful to outline our understanding of when a celebrant would be contravening this provision with some examples. The examples below are not exhaustive and although all relate to marriage, they are equally applicable to civil partnerships.

Does not contravene the provision

A religious or belief body includes in its fees and charges for a wedding ceremony some charges for heating the building where the ceremony is to take place. As it happens, the day is mild for the time of the year and the heating is not actually required. This is not for the purpose of profit or gain, carrying on a business of solemnising marriages as it is not part of a systematic attempt to make money.

A hotel organises and charges for a wedding reception. This is not for the purpose of profit or gain carrying on a business of solemnising marriages. The solemnisation of the marriage is not part of the package being charged for by the hotel and the hotel is not a religious or belief body whose celebrants are solemnising the marriage.

Does contravene the provision

A religious or belief body indicates that as well as the solemnisation of marriage its celebrants can, for a fee, provide any other services required by the couple such as entertainment after the wedding, the wedding reception and the honeymoon. This is for the purpose of profit or gain, carrying on a business of solemnising marriages as it is part of a systematic attempt to make money which is inextricably linked to the solemnisation.

A religious or belief body seeks a business start-up grant for its marriage services; or accepts nominations for commercial awards for its marriage services; or establishes a for profit business association for its marriage service; or enters into any kind of relationship with a venue or other business provider to refer couples on to them (or vice versa). All of these are for the purpose of profit or gain, carrying on a business of solemnising marriages as it is part of a systematic attempt to make money.

3.54 The 2014 Discussion Paper recognised that:

• Celebrants will incur legitimate expenses, which need to be met.
• There are costs in training celebrants, which need to be met.
• The costs of maintaining buildings need to be met.
• A marriage ceremony may involve others apart from the celebrant, who also may incur legitimate expenses.
• A couple may wish to express their gratitude to the celebrant and the religious or belief body by, for example, making a donation.

3.55 It noted that these are legitimate, but a distinction can be drawn between these and running a business for profit or gain. As indicated above, providing ceremonies as a business for profit or gain would suggest that the body and/or celebrant wishes to make money from the ceremonies. The focus could shift away from the couple, their commitment to each other and their faith or belief.

3.56 In the light of the comments above, the Scottish Government proposes the following qualifying requirements.

Participating in commercial activities

3.57 The Scottish Government would propose to lay down that religious or belief bodies seeking authorisation and its celebrants should not participate in commercial activities such as:

• seeking business advice for marriage or civil partnership services; or
• seeking a business start-up grant for marriage or civil partnership services; or
• accepting nominations for commercial awards for its marriage or civil partnership services; or
• establishing a for profit business association for its marriage or civil partnership services; or
• entering into any kind of arrangement with a venue or other business in order to increase sales and referrals to the body or any of its celebrants;
• offering, as part of its work to solemnise marriage or register civil partnership, to carry out commercial services such as charging for entertainment or food which do not form part of the marriage or civil partnership ceremony.

Denigration of other marriage and civil partnership services

3.58 It is, of course, legitimate for a religious or belief body to comment on the faith or belief of others or the lack of such faith or belief. However, it does not seem appropriate for anybody to denigrate marriage ceremonies and civil partnership registrations carried out by other bodies or by registrars. Therefore, the Scottish Government proposes to lay down a qualifying requirement that when seeking authorisation bodies should confirm they will not denigrate marriage ceremonies and civil partnership registrations carried out by other bodies or by registrars. This would not stop criticism of the existence of same sex marriage and of civil partnership.

Paid-for advertising of marriage and civil partnership services

3.59 It is legitimate for a religious or belief body or its celebrants to take out paid for advertising to promote its faith or belief. It is also legitimate for a religious or belief body to outline on its website and in its printed information its procedures and charges for the solemnisation of marriages.

3.60 The Scottish Government has considered whether to lay down a qualifying requirement so that when seeking to be authorised, religious or belief bodies should confirm that they do not, and will not in future, take part in paid for advertising for its marriage or civil partnership services.

3.61 The argument for this is that paid for advertising for marriage and civil partnership services may be seen as the promotion of a commercial service. On balance, though, the Scottish Government considers this may be difficult to monitor in practice and, in addition, there is an argument that promotion of marriage and civil partnership services is a way of promoting a body’s faith or belief. Therefore, the Scottish Government does not plan to lay down a qualifying requirement in this area.

Body has been established just for the purpose of solemnising marriages or registering civil partnership

3.62 Marriages can be solemnised, and civil partnerships registered, by celebrants of religious or belief bodies. Religious or belief bodies can be expected to promote their faith or beliefs and to work with their adherents. They may also carry out other charitable functions, as part of their ethos. Religious or belief bodies may carry out a range of life event ceremonies, including marriage and civil partnership ceremonies and other ceremonies not recognised by the state such as funerals and Christenings or baptisms or baby namings. These ceremonies are themselves an expression of the faith or belief of the body and the couple.

3.63 However, a religious or belief body which spends most of its time carrying out life event ceremonies and charging for them may have become established as a way of making money.

3.64 Therefore, the Scottish Government intends to lay down in the qualifying requirements that when seeking authorisation of celebrants by the Registrar General or when seeking to be prescribed a body should confirm that solemnising marriage and registering civil partnership is integral to the body’s religious or philosophical beliefs and any income accruing as a result is either to meet legitimate costs and expenses or is incidental to a body’s aims.

Ancillary services

3.65 There are a diverse range of religious and belief bodies in Scotland. The nature of their marriage and civil partnership ceremonies will vary.

3.66 In some traditions, the role of the celebrant may be limited to complying with the legal requirements of the 1977 and 2004 Acts.

3.67 In some traditions, the consumption of food and drink may be a key part of the religious or belief ceremony.

3.68 In some traditions, there may be choral and organ music and bells and flowers.

3.69 In some cases, there may be no charge for the celebrant but there may be charges in relation to the use of a religious building.

3.70 Some religious and belief bodies may include traditional Scottish symbolic gestures (eg hand-fasting) even though these may not be strictly required for the religious or belief aspects of the ceremony.

3.71 Therefore, there are in Scotland a wide range of religious or belief marriage ceremonies and a wide range of ancillary services provided as part of religious or belief marriage ceremonies. As a result, the qualifying requirements must not disrupt religious or belief traditions or other reasonable services which are ancillary to the religious or belief ceremony.

3.72 One option is for religious or belief bodies to confirm that they will not organise aspects of the wedding or civil partnership other than the solemnisation or registration unless:

• The other aspects are part of the religious or belief ceremony. (For example, where the consumption of food or drink is part of the religious or belief ceremony).
• The other aspects form part of the ceremony and are designed to enhance the ceremony for the couple. (For example, singing, music at the ceremony, bell-ringing, traditions such as hand-fasting).
• The other aspects are designed to ensure that the ceremony goes effectively and efficiently and in comfort for the couple, their guests, the celebrant and others involved in the ceremony. (For example, ensuring that the building where the ceremony is taking place is unlocked (and locked when the ceremony is over) and ensuring that it is heated).

3.73 Therefore, the Scottish Government proposes to lay down a qualifying requirement that when seeking authorisation of celebrants by the Registrar General or when seeking to be prescribed bodies should confirm that they will only organise the aspects of a marriage or civil partnership which are part of the religious or belief ceremony or are designed to enhance the ceremony or ensure that the ceremony goes effectively and efficiently.

Publicising fees

3.74 There are a variety of practices in place in relation to charging of fees by religious or belief bodies for the solemnisation of marriages and the registration of celebrants:

• Some make no charge at all
• Some make no charge for the celebrant but make charges related to the use of the religious building.
• Some charge for the celebrant and for the use of such a building
• Some charge for the celebrant.

3.75 Another option could be, as the 2014 Discussion Paper considered, to require religious and belief bodies to publicise their fees and charges for marriage and civil partnership ceremonies.

3.76 The Scottish Council of Jewish Communities [SCoJeC], while generally concerned about the qualifying requirements, said in its comments (see under “September”) on the 2014 Discussion Paper that:

“In the interests of transparency and public confidence, we would, however, welcome a requirement for congregations and celebrants to make their charges publicly available.”

3.77 However, a Christian body which commented on the 2014 Discussion Paper noted that it does not have standard fees or charges in relation to marriage ceremonies and in terms of their current practice, therefore, it would not be possible to publish fees.

3.78 The Scottish Government can see this point. Religious or belief bodies will vary in their structures and it is not for the Government to interfere with the structure of religious and belief bodies. However, if standard fees are not charged at a national level, it should still be possible for the fees charged at a local level to be publicly available in the appropriate area.

3.79 Therefore, the Scottish Government proposes to lay down a qualifying requirement that when seeking to be authorised religious or belief bodies should confirm that they publicise (either at local or national level) the fees they charge for marriage ceremonies and civil partnership registrations.

Limits on number of ceremonies carried out by each celebrant

3.80 The 2014 Discussion Paper noted that:

“a further option would be to place limits on the number of marriage and civil partnership ceremonies which could be carried out by an individual celebrant. Under this option, the limit would not be absolute: the celebrant could apply to the Registrar General for permission to carry out more ceremonies. The aim of this requirement would be to ensure that a person carrying out a large number of ceremonies was not carrying on a business for profit or gain. The level at which the limit could be set might perhaps be at around 100 ceremonies a calendar year. The precise limit could vary depending on the level of fees being charged by the body and the celebrant”.

3.81 A Christian body which commented on the 2014 Discussion Paper was strongly opposed to this proposal. It said:

“ whilst we understand the intent behind the suggestion that limits be placed on the number of marriages/civil partnership ceremonies which might be carried out by an individual celebrant, we have difficulty, in principle, in accepting that our clergy should be limited by the State in terms of the exercise of their liturgical and pastoral ministries. Is it not the case that the existing provisions regarding profit and gain operate adequately in relation to the established denominations, without need for additional qualifying requirements?”

3.82 The Scottish Government has considered this proposal further. Clearly, if a celebrant is carrying out a large number of marriage/civil partnership ceremonies in a year and is not carrying out many other functions for the religious or belief body this might be a sign that the celebrant is carrying on a business of solemnising marriage or registering civil partnership for profit or gain.

3.83 However, in practical terms it would seem difficult to make and apply a qualifying requirement when a body is seeking to be prescribed that a celebrant could only carry out more than 100 ceremonies a year with the approval of the Registrar General.

3.84 In relation to celebrants on the register operated by NRS, section 9(2) of the 1977 Act and section 94B(2) of the 2004 Act already provide that the Registrar General must reject a nomination if there are already registered sufficient members of the same body as the nominee to meet the needs of that body.

3.85 NRS already applies a policy with a limit of 3 per day and 14 per week per celebrant. Given this, the Scottish Government would plan to lay down that when a body is nominating persons to the Registrar General to act as celebrants, the body should confirm that each celebrant will carry out no more than 3 marriage or civil partnership ceremonies per day and no more than 14 marriage or civil partnership ceremonies per week.

Outwith area

3.86 Under section 17 of the 1977 Act, a local authority registrar can solemnise a marriage in their registration area (i.e. within their local authority area). A registrar can only solemnise a marriage in another area or in Scottish waters with the approval of the Registrar General. Section 93 of the 2004 Act makes similar provision on the registration of civil partnership.

3.87 One option would be to lay down a qualifying requirement that celebrants of religious or belief bodies could only solemnise marriage or register civil partnerships in designated local authority areas unless they obtain the approval of the Registrar General to do so in another area. This approach would further reduce the possibility of any celebrants operating for profit or gain by restricting them to a specified geographical area.

3.88 However, the Scottish Government does not plan to lay down qualifying requirements in this area. It appears to the Scottish Government that this might be a limitation by the state on the freedom of religious and belief bodies and their celebrants.

3.89 In addition, it might be impractical to operate when a body is small and has a small number of celebrants. Such a body might have adherents across Scotland who may wish to marry or enter a civil partnership in their local area and have a ceremony in line with their faith or belief. A restriction on celebrants operating outwith their local authority area might cut across that.

Summary and questions

3.90 This consultation proposes that the Scottish Government would make regulations to lay down qualifying requirements in the following areas:-

• To require bodies seeking authorisation to produce their constitution or a statement of their faith or belief.
• To require bodies seeking authorisation to make information on their constitution or statement of faith or belief to be publicly available.
• To require bodies seeking authorisation to provide information on what the body does to promote its faith or belief
• To require bodies seeking authorisation to provide information to the Scottish Government or NRS on how often the body meets for religious worship or to uphold or promote philosophical beliefs and what these meetings are about.
• To lay down a qualifying requirement to ensure that the form of ceremony followed by the body includes declarations from the couple accepting each other as husband and wife or in marriage and from the celebrant that the couple are then married.
• To lay down that when seeking to be prescribed, a body or its predecessor must have a track record of having solemnised marriage for at least 3 years in Scotland
• To lay down that a body seeking to be prescribed should state it is content with its track record.
• To lay down that when a body seeks authorisation to solemnise marriage or register civil partnership in Scotland, it should provide information on what training its celebrants have.
• To lay down that when a body is seeking to be prescribed it should provide evidence that, if prescribed, the body would deal properly with any concerns about a particular celebrant and has an appropriate disciplinary process in place that allows for the suspension or dismissal of a celebrant if required.
• To lay down that bodies seeking authorisation and their celebrants should not participate in commercial activities relating to marriages or civil partnerships
• To lay down that when seeking authorisation bodies should confirm they will not denigrate marriage ceremonies and civil partnership registrations carried out by other bodies or by registrars.
• To lay down that when seeking to be authorised a body should confirm that solemnising marriage and registering civil partnership is integral to the body’s religious or philosophical beliefs and any income accruing as a result is either to meet legitimate costs and expenses or is incidental to a body’s aims.
• To lay down that when seeking to be authorised bodies should confirm that they will not organise aspects of the wedding or civil partnership other than the solemnisation or registration unless the other aspects are part of the religious or belief ceremony; or are part of the ceremony and are designed to enhance the ceremony for the couple; or are designed to ensure that the ceremony goes effectively and efficiently.
• To lay down that when seeking to be authorised, bodies should confirm that they publicise (either at local or national level) the fees they charge for marriage ceremonies and civil partnership registrations.
• To lay down that when nominating persons to the Registrar General to act as celebrants, the religious or belief body should confirm that each proposed celebrant will carry out no more than 3 marriage or civil partnership ceremonies per day and no more than 14 marriage or civil partnership ceremonies per week.

3.91 The Scottish Government has considered but does not propose to lay down qualifying requirements in these areas:

• Pre-marital care (paragraph 3.42).
• Paid-for advertising of marriage and civil partnership services (paragraphs 3.59 to 3.61).
• Limits on celebrants carrying out ceremonies outwith local authority areas that are designated for them (paragraphs 3.86 to 3.89).

3.92 The questions below ask if the Scottish Government should lay down qualifying requirements for religious and belief bodies to meet when they are solemnising marriage or registering civil partnership and, if so, whether the proposed qualifying requirements proposed in this consultation are the right ones.

Question 11: Should the Scottish Government lay down qualifying requirements for religious or belief bodies to meet when they solemnise marriage or register civil partnership?

Yes / No

Don’t know

If you wish, you can give reasons for your answer:

Question 12: Should the qualifying requirements outlined in this consultation be laid down? [Question 13 asks about requirements that you think have been omitted]

Yes / No

Don’t know

If you answered No, please confirm whether you think this is because:

The requirements should generally be laid down as outlined, but with modification(s): ☐

Only some of the requirements outlined should be laid down: ☐

Please outline what modifications you think are needed or which requirements you think should not be laid down:

Question 13: Should any further qualifying requirements be laid down?

Yes / No

Don’t know

If so, please outline what should be laid down and why:

Code of conduct?

3.93 A belief body which commented on the 2014 Discussion Paper said:

“Most experienced celebrants apply Codes of Conduct in order to adhere to best practice and you may wish to consider whether a general Code of Conduct, applying to all of those celebrating marriage in Scotland, would be of assistance in addressing the issues of concern which you highlight.”

3.94 One option would be for the Scottish Government and NRS to draw up a Code of Conduct for celebrants instead of laying down qualifying requirements. This would be a voluntary Code of Conduct and there would be no obligation on religious or belief bodies to sign up to it. If efforts to establish a Code of Conduct should be unsuccessful or any Code of Conduct should turn out not to be effective, then the Scottish Government would need to consider again if qualifying requirements should be laid down.

Question 14: Should the Scottish Government and NRS draw up a Code of Conduct for celebrants instead of laying down qualifying requirements?

Yes / No

Don’t Know

If you wish, you can give reasons for your answer:

Funeral celebrants

3.95 This consultation is specifically about marriage and civil partnership celebrants: marriage and civil partnership ceremonies carried out by religious or belief celebrants are recognised by the state. This consultation does not consider funeral celebrants.

Impact Assessments

3.96 In accordance with usual practice, the Scottish Government has prepared a number of draft (or partial) impact assessments to accompany and help inform this consultation on the qualifying requirements. These are published at: http://www.gov.scot/ISBN/9781806433285.

3.97 An Equality Impact Assessment (EQIA) is required, given the impact on religious and belief bodies.

3.98 The Scottish Government considers that the changes considered in this consultation would have minimal impact on the environment. Accordingly, the Scottish Government has sent a pre-screening exemption from Strategic Environmental Assessment (SEA) to the usual SEA consultation authorities.

3.99 We have prepared an Island Communities Impact Assessment (ICIA) screen out. Our view is that the changes in contemplation are not likely to have an effect on an island community that is significantly different from that on other communities (including other island communities). This means that we do not consider that we will require to undertake a full ICIA if we take forward legislation.

3.100 We have published a partial Business and Regulatory Impact Assessment (BRIA). Our initial view is that introducing qualifying requirements would have some minimal costs for government, NRS, and for religious and belief bodies. Our main reason for saying costs would be minimal is that the proposed qualifying requirements are in line with existing practice.

3.101 We have published a draft Child Rights and Wellbeing Impact Assessment (CRWIA). This considers which Articles of the UNCRC appear to be engaged by the potential changes and sets out the evidence identified to date. If legislation proceeds, we will publish an updated full CRWIA and a Statement of Compatibility. Our initial view is that the qualifying requirements would have little impact on children and young people although provisions on training might help combat forced and sham marriage.

3.102 We do not consider a Fairer Scotland Duty Assessment (FSDA) is needed. It does not appear that policies on qualifying requirements to solemnise marriage or to register civil partnership can reduce inequalities of outcome caused by socioeconomic disadvantage.

3.103 Consultees may have further comments:

Question 15. Do you have any comments on the draft Impact Assessments about the Qualifying Requirements?

Yes / No

If yes, please outline these comments and/or evidence:

Question 16. Do you have any other comments on the Qualifying Requirements?

Yes / No

If yes, please outline these comments: