Official Report

 

  • Equal Opportunities Committee, 04 Nov 2003    
      • [The Convener opened the meeting at 10:03]

      • Items in Private
        • The Convener (Cathy Peattie):
          Welcome to the sixth meeting of the Equal Opportunities Committee in the second session of the Scottish Parliament. We have received apologies from Elaine Smith.

          Do members agree to discuss items 3 and 4 on the agenda in private?

          Members indicated agreement.

      • Civil Partnership Registration
        • The Convener:
          We have two sets of witnesses this morning. Our first witnesses are Mr Ghulam Nabi, from the UK Islamic Mission, John Deighan and Father Joseph Keenan from the Catholic Church in Scotland, and the Reverend Eric Foggitt and Stuart Lynch from the Church of Scotland's board of social responsibility.

          I urge our witnesses, whose first visit to the committee this is, to relax—it is not as bad as it appears. We want to hear your views on the intended Sewel motion on civil partnership registration. Obviously, because different churches will have differing views, we expect to receive more than one answer to the questions that we ask.

          Does the panel agree in general with the basic principles that are outlined in the Executive's consultation on allowing same-sex couples to register their partnerships in Scotland and for those partnerships to be recognised by the UK Government for reserved purposes?

        • John Deighan (Catholic Church in Scotland):
          The Catholic Church is against the proposals. We are fully in favour of granting rights and making sure that people's legitimate needs are satisfied and protected, but we believe that the course of action that is proposed by the Scottish Executive and Westminster is unnecessary. Furthermore, we believe that the proposal will undermine marriage and would constitute a basic redefinition of marriage, which is the basic cell of society. There could be other repercussions for society that are not yet fully understood. The proposal would make homosexual relationships a source of extra special rights that are not available to people in other relationships.

        • Father Joseph Keenan (Catholic Church in Scotland):
          We agree with the fundamental vision or aim of the consultation document, which says that the proposal is designed to protect the freedom and rights of homosexual persons without compromising the special role that marriage has in relation to the flourishing of society. Our disagreement is a prudential or pragmatic one—we want to know whether the proposals that are offered by the consultation document would guarantee that aim. Will they guarantee protection of the freedom and rights of homosexual persons while not compromising the special and unique legal status of marriage? We believe that they will not.

          We also think that we could find more imaginative solutions that would enable us to offer a Scottish alternative. My reading of the document almost gives me the impression that the Scottish Executive is hanging on to Westminster's coat tails. Rather than do that, we should take the opportunity to find a better solution that Westminster can accept in a way that will allow reserved rights to be accessed by the people in Scotland.

        • Stuart Lynch (Church of Scotland):
          We see the issues that are addressed in the consultation document as being justice and equal opportunities issues. The document is intended to fill a gap. A section of society—people in same-sex relationships—are, basically, disenfranchised at the moment and the legislative process that we are engaged in is an attempt to put that right.

          We support the principles in the document. Perhaps the question is not about giving people in same-sex relationships the same rights as they would have in England—we should not simply mirror England and Wales—but about giving the same package of rights that are enjoyed by married people to people in same-sex relationships. It is important to state that that is a human rights question.

        • Mr Ghulam Nabi (UK Islamic Mission):
          The Muslim community in Scotland cannot condone any practice that contributes to the diminution of family values in Scotland. The registration of same-sex partnerships will lend status and credibility to such practices and will put them on a par with marriage, which is a sacred institution in Islam and in many other religions. The rights and responsibilities of married couples, who are the backbone of our society, are different from those of people who opt out of the responsibilities relating to marriage. We strongly oppose the proposals.

        • The Convener:
          I am sure that some of my colleagues will cover the evidence that we took from organisations that represent same-sex couples and which stresses that people have felt a fair amount of anguish because of a lack of human rights. Stuart Lynch was right to describe the matter as a human rights issue. We heard evidence last week that same-sex couples are a part of our community that would welcome being able to be together. It is unlikely that those folk would seek to be involved in marriage as the panel sees it. I do not understand why that is a threat to marriage. If people have a commitment to each other—many such commitments are of long standing and are secure—why would that undermine marriage?

        • John Deighan:
          We must take it on board that the proposals would send a message to society. Many young people will take that as a message that the Government accepts that some other relationships are on a par with marriage. The proposals try to put homosexual unions on a par with marriage, which would have a grave impact on people. It could lead to people—especially the young—thinking that homosexuality is fixed, that it is accepted that once a person is homosexual they are always homosexual, and that the Government does not consider that to be a problem.

        • The Convener:
          Is not it a good message—for some—that people can live in secure relationships, that children can live in secure relationships for a number of years and that such relationships are not necessarily the volatile or undesirable relationships of which you paint a picture?

        • John Deighan:
          Sure, but marriage is accepted as having special status. Many people want to get married and a marriage is the natural environment for raising children. Our position is that to place other relationships on an equal footing with marriage would unequivocally dilute the special status of marriage.

        • The Rev Eric Foggitt (Church of Scotland):
          There are many relationships, companionships and friendships that people in the church would want to bless; many long-term relationships are enormously helpful. Those of us who are pastors, ministers and parish priests know many families in which, for instance, a niece cares for an elderly aunt. In my view and that of many people in the church, such cases are a far more pressing matter than the group that we are discussing. It is probable that hundreds of thousands of carers are enormously vulnerable. They have sacrificed an enormous amount because of a commitment that is based on love of the person for whom they care. For justice and equality, my concern is that it is important to deal first with the most pressing, most demanding and most needy group. Imagine if racial equality legislation had favoured only the Chinese or only Afro-Caribbeans. The matter that I raise is a justice issue, too.

          Stuart Lynch and I represent different views in the Church of Scotland—many views are being expressed and we do not take one line. The reason why some people feel that marriage would be threatened is that a civil partnership looks like marriage and will be called marriage. I appreciate what the Scottish Executive says about wanting to deliver a package of rights, but many of us do not understand why special status relationship and partnership needs to be established to deliver those rights.

          One question is whether other groups are more demanding. My response is that there are such groups and that the need to deal with them is pressing. The second point is that a civil partnership will look like marriage and will be called gay marriage, which is why it will threaten marriage. I ask members to forgive me for going on, but we live in a time when marriage is enormously under threat. Many people choose not to be married and even of those who marry, 40 per cent will end up divorced. Society has enormous sensitivity about the institution of marriage. For that reason, some people in the church feel that now is not the time to do anything that might threaten it.

        • Stuart Lynch:
          I agree with Eric Foggitt that an extension of measures would be fine, because many people are in special relationships. Such an extension was the original intention of Mr Patrick Harvie's proposal. If the proposed UK bill is not going to extend beyond same-sex couples, that is a practical problem. I favour introducing the proposals for same-sex couples as a first step and then extending them thereafter.

          Rights that are being given to people in devolved areas should have entry and exit points in order to establish status. It is not an alternative to legislation to give ad hoc rights to people without anchoring those rights down by saying when they begin and end. An example of that is succession. If rights of succession are given to same-sex couples, it has to be clear how they qualify because if someone dies and leaves a partner, the only way to establish that they were in a same-sex relationship is to lead evidence. That is difficult, if not impossible, if a person has died. Such cases would also bung up the courts because every time the issue arose people would have to go to court and lead evidence.

        • Father Keenan:
          We are trying to uphold protection of the freedom and rights of homosexual persons without compromising the unique and special legal status that is afforded to marriage. That is what protects the common good. How do we achieve that? The convener is asking in what sense will giving legal status to same-sex relationships compromise the special status of marriage.

          Lots of experts, such as Lawrence Kohlberg, say that for at least 80 per cent of the population, what is legal is what is admirable and to be aspired to. When we give same-sex relationships the same sort of status as marriage, people will in effect understand that marriage is one of many choices of relationship. Marriage demands a degree of selflessness and commitment that human beings should be encouraged to take up, so when they see society endorsing different lifestyles, it will be hardly surprising if they no longer opt for marriage.

          As an analogy, we make a big deal in our schools and hospitals about healthy eating and food. When I go along the corridors of the school where I am chaplain or to the hospital, I see posters of healthy food such as bananas, apples, oranges and milk. I do not see posters of fish and chips or pies and beans. If all the food in the canteen was equally accessible or equally blessed by the institution, it would hardly be surprising that people did not opt for the healthy food because that would take commitment and sacrifice.

          We can apply that analogy to marriage. Unless marriage is seen to be the only legally established framework of community, people are not going to choose it. Marriage will then disintegrate and there will be a breakdown in the socialisation of young people, which is happening already.

        • Margaret Smith (Edinburgh West) (LD):
          Using your analogy, you are saying that gay people are not allowed to eat healthily. We can see all the posters we like saying that marriage has special status and is the thing to aspire to, but gay people cannot aspire to it. They have no choice.

          Mr Deighan said that we are talking about extra special rights for gay people, but we are not; the matter is about giving gay people a choice about whether they live in a legally recognised, stable and committed relationship. They are unable to do so at the moment and that is the only choice that they have.

          You say that healthy living and eating is something that everyone should aspire to, but they would choose not to if they had alternatives. Using your analogy, you would not allow certain people working in a hospital or a school to have the opportunity to eat healthily. What we are talking about is the opening up of some sort of choice so that people who wish to commit to stable relationships are given the opportunity to do so in some way. The relationship will not be marriage and it will not be called marriage. If it is to be called marriage, it will be called that by the media, not by the consultation paper, not by the proposed legislation and not by anybody who is sitting on this committee.

        • The Rev Eric Foggitt:
          No—but you have to realistic. What you want people to say and how you wish civil registration to be perceived is one thing, but how it will be perceived by others is another. You are working in a public realm as servants of the people whom you represent, so you have a responsibility to recognise how they will see such things.

          The committee's problem—it is our problem as a community—is that we want to deliver the rights for everyone. As I said, some groups of people are more deserving and more vulnerable. That is the problem. You wish to deliver the rights, but the question is whether the means that you suggest are the right ones. Nobody is denying the right of people to eat healthily. The issue is whether the means by which they are made to do so are correct. Some of us disagree with the means, and with whether it is necessary to establish the status of civil partnerships in order for the rights to be delivered. That is what has not been argued.

        • Father Keenan:
          I think that you distorted the analogy a wee bit.

        • Margaret Smith:
          I do not think that I did.

        • Father Keenan:
          Take the consultation document, with which you have just agreed. In it, you do not seek to define same-sex relationships as marriage. In the analogy I compared healthy food with marriage between man and woman, so you and I agree that that is not open to same-sex partnerships and we are all agreed on that. The question is, why is that the case? It is because our society has decided and worked out that marriage, which by definition is between a man and a woman, is the best basis for the proper flourishing of society, normatively speaking. That is what we seek to protect legally.

        • Shiona Baird (North East Scotland) (Green):
          To my mind there are two issues. We are talking about registration that recognises civil partnerships. The other important element is the discrimination that is felt by couples. We heard evidence on 28 October from different groups and individuals about the discrimination that is faced by same-sex couples in the absence of the proposed legislation. To what extent will legislation that is enacted on the basis of the proposals by the UK Government and the Scottish Executive be effective in removing that discrimination against same-sex couples?

        • John Deighan:
          One of the things that came out in the paper was that the Government said that discrimination had to be tackled because a European directive had to be complied with. I took the trouble to look at that directive. In the preamble it states categorically:

          "This Directive is without prejudice to national laws on marital status and the benefits dependent thereon."

          We accept that people who get married are entitled to special benefits, because marriage contributes so greatly to society that we are willing to put marriage in that position. To deny people access to special benefits that others get is not to discriminate against them; rather, it is positive discrimination in favour of marriage. We want to uphold that principle and not to undermine anyone or the choices that they make in their lives.

          We have a great degree of tolerance and we want to support people in the choices that they make in life, while always pointing out to them, "Marriage is the best relationship for society to flourish, but we will ensure that your personal rights and responsibilities are protected." The proposals say, "We are not going to base those rights on you as an individual. We are going to attach them to this newly created legal structure"—that is, a homosexual partnership or civil registration, whatever it will be called. That is creating new rights that do not flow from the person. We agree fully with the principle of giving every person legitimate rights and of protecting them, their goods and their right to dispose of their property as they want.

        • Margaret Smith:
          What about pensions?

        • John Deighan:
          That is a difficult issue. Very often, pensions have been for men with wives who have perhaps given up their careers and therefore have no access to their own pension. That means that there is a degree of dependency that does not normally exist in a same-sex union.

        • The Convener:
          There can be a degree of dependency in such a union.

        • John Deighan:
          It would be unusual if that were the case, because there are no children in normal same-sex relationships.

        • The Convener:
          There can be children.

        • John Deighan:
          Of course there can, but I am saying that that is not the normal situation. For example, people who have private pensions can take steps to name their survivor.

        • Margaret Smith:
          You certainly cannot do so in major public sector pension schemes. For example, I do not pay any less into my pension scheme even though I do not have anyone who will receive a widow's pension at the end of it. As far as I can see, one of the major drivers of the European directive is that people should not be charged for a service that they are not getting. No one here is being asked about dependency as far as pensions are concerned.

        • John Deighan:
          The pensions industry must face up to the fact that it needs to base how it operates and how it gives people pensions on a normal situation—it has to take society into account. If we change our ideas and say that pensions have to be given not just to those who are married but to everyone in every relationship, that will put a huge burden on an industry that is already struggling to pay out money. We should not put more burdens on it.

        • Father Keenan:
          We should remind ourselves of what we all agree on, which is that we wish to protect and uphold the freedom and rights of all homosexual persons in ways that do not compromise or undermine the special role of marriage in our society. We disagree on how we can prudentially ensure that that comes about. We have suggested alternatives in that respect. In answer to Shiona Baird's question, we must find imaginative ways of guaranteeing those rights while upholding marriage by not allowing same-sex partners to have civil registration. Indeed, I can see ways of doing so in the consultation document.

          What would be the impact of such an approach? First, we would be able to tell all young people that marriage is something very special to which people should aspire. That is important because all the evidence shows that marriage—which is defined as the relationship between man and woman and the commitment that that involves—best leads to the socialisation of young people and the flourishing of our society.

          Secondly, because we are defending the dignity, rights and freedoms of all homosexual persons we would be telling all our young people that they must do the same thing. As for the impact that our approach would have on gay and lesbian people, there is no doubt that there would be a degree of ambivalence. On the one hand, those people would presumably rejoice that their freedoms and rights were being guaranteed but, on the other, they would feel a sense of hurt that their relationships were not being placed on the same level as marriage. We would have to work very hard to convince those people that this was not about a moral judgment, but about respect for the common good and how the traditional definition and promotion of marriage will protect that. However, the Executive will face the same problem, because it has already agreed that it will not accord the same denomination to same-sex relationships that it accords to marriage between man and woman.

          If we find a way of promoting and upholding marriage as well as defending the freedom and rights of homosexual persons, we will correct the breakdown in the socialisation of young people which, paradoxically, is responsible for all sorts of negative, aggressive and discriminatory attitudes. Unless we get this right, the Executive will be telling people not to discriminate against gay and lesbian people while putting in place the very conditions that will lead to the kind of aggressive and discriminatory attitudes that we are trying to overcome in the first place. As a result, we must urgently promote both things. We must defend the freedom and rights of homosexual persons and we must ensure that for the common good we legally uphold marriage as unique and special.

        • Stuart Lynch:
          My problem with that view is that homosexual people do not have the same package of rights as married people. As a result, we would be upholding something that people do not have.

        • Shiona Baird:
          I have been married for 35 years and we have heard evidence about someone who had been in a same-sex relationship for 30 years. It seems bizarre that, whereas I have a certain set of rights, that other person, who is in an equally committed relationship, does not. That is one of the underlying factors behind what we are trying to achieve.

          Stonewall's written evidence describes the double life of those lesbian, gay, bisexual and transgender people who keep their identity and relationships hidden because of fear of discrimination. That has a devastating effect on their lives. We need to appreciate the right of every individual to achieve the best and to make a contribution in their lives. If people are living in fear of discrimination, they are denied that right.

          The recent report on attitudes to discrimination in Scotland, on which the committee took evidence, highlighted the fact that gay men and lesbians, as a group, are more likely to suffer discrimination than are women or disabled people. What are the panel's views on the possibility that civil partnership registration will change public attitudes? I stress that it is the changing of public attitudes that we are particularly keen on, as that will allow everyone the freedom that they deserve.

        • The Rev Eric Foggitt:
          That is why I said what I said earlier. I am not opposed to giving people such rights, but I am concerned that, in favouring that group, you will achieve the opposite effect to what you intend. I agree with Joe Keenan that there is a real danger that one smallish group of people, who will plug into those rights, will be favoured ahead of another group—I do not know the numbers involved and I do not know whether you have access to them.

          There are thousands of people in our communities who have been living together for 20 or 30 years but for whom marriage, for whatever reason, is not an option. They are denied a whole package of rights, such as pension rights. There are all sorts of groups of people who are denied different elements of those rights. Problems might arise if you act to favour one group and their rights at the expense—so to speak—of another. I appreciate that that is not your intention, but that is how what you are doing will be seen by the public. If you go ahead in that way, you will create resentment against the smaller group.

          That has been the case with asylum seekers. Many members of the public have the perception—wrongly, to my mind—that asylum seekers have a tremendous package of rights and that it is dead easy for them to get lots of money. There are therefore anti-asylum-seeker attitudes.

          You face a real problem in that regard and I do not think that the proposed legislation addresses that problem. Rather, it will make the problem worse.

        • Shiona Baird:
          Some of the argument around the way in which the Executive has gone about the process, and around the question of having a Sewel motion, relates to that. We might consider the registration of civil partnerships among mixed-sex couples under the proposed family law bill, so we are now at a first stage in the process of recognising the other groups that you have mentioned.

        • Father Keenan:
          I have two points to make about that. First, what you have just said reveals an underlying inconsistency. If the Executive's intention is to allow cohabiting couples civil registration, that is certainly not what the consultation document suggests.

        • The Convener:
          That is not what the consultation is about. It is about a Sewel motion relating to proposed Westminster legislation. It is not about mixed-sex relationships.

        • Father Keenan:
          Okay. My second point relates to the reference to the two different relationships that are both enduring, faithful and committed. Of course we are trying to overcome all forms of discrimination, so the question is why there is discrimination between one relationship—the one between a man and a woman that has involved a commitment of 30-odd years—and another, involving the same-sex partnership that is committed and has endured for 30-odd years.

          We come back to the hard fact that, according to all the evidence, marriage as it is defined between a man and a woman is the best context, normatively speaking, for the education of children and the proper development of society. That is not a matter of academic opinion; it is a matter of fact.

          Because marriage demands a degree of selflessness and commitment that human beings will not necessarily be inclined towards unless society endorses, supports and encourages them and unless society shows in law—because that is the way that we do it—that marriage is special, people will choose other options. That will harm society.

          Shiona Baird asked why we should discriminate against one relationship. It is a pity that we have to but it is for the common good. If we were not to discriminate, we would gain in one way but lose in another. The losses would be far more problematic. We must ask how we can achieve both our aims without sustaining losses for society.

        • Stuart Lynch:
          I agree that the family law bill would be the mechanism by which to extend provisions to opposite-sex partners and people in special relationships. The registration of civil partnerships will make a huge difference. It will legitimise people's relationships and offer an accompanying package of rights and responsibilities.

          Would this be an opportunity to comment on the Sewel motion, or will that come later?

        • The Convener:
          We will ask questions on the Sewel motion later.

        • Mr Nabi:
          I agree with Father Keenan that marriage is a sacred institution. Positive discrimination should not be used to put civil partnerships on a par with marriage. Doing so would create a lot of problems for married people. Children have to be brought up, but gay people will not be able to do that and pass things on to the next generation. The proposals are totally wrong and should not be accepted.

        • Marilyn Livingstone (Kirkcaldy) (Lab):
          I would like to declare an interest: I am a member of the Church of Scotland.

          Paragraph 2.1 of the Scottish Executive's consultation paper refers to the decision to introduce civil partnership registration for same-sex couples in Scotland. Two bills on civil partnership registration have already failed in the United Kingdom Parliament. What would you propose for Scotland if this attempt also fails?

        • John Deighan:
          To be honest, we would be pleased if the Westminster measures failed and we call on the Scottish Executive not to support the proposals. As Father Keenan has outlined, we are eager to ensure that people who have genuine needs—and genuine rights that are not accorded to them but to which they are entitled—should be supported by all means. However, we have to find ways of doing that other than by creating a new status. Our basic objective is to support marriage.

          Shiona Baird asked about public attitudes. Her question underlines the fact that whatever we do here will have an impact on public attitudes. I know that, if the intention is to change public attitudes to enhance the status of homosexual unions, that is for the best of reasons. However, the other side of the coin is that that will detract from the special status of marriage.

        • The Rev Eric Foggitt:
          The Scottish Executive may be perceived as running scared of public opinion, not least because of the debacle over section 2A. I was very sorry about the enormous division in society that that created. The Scottish Executive would have gained a lot more respect if it had come out and said honestly that it wanted to create a statute of gay marriage—because I believe that that is the ultimate intention—and if it had legislated through the Scottish Parliament.

          Some of us fought for a long time to set up the consultative group that eventually led to the Scottish Parliament and it seems a bit strange that, now that something difficult has cropped up, everything is shifted back to Westminster. Partly because the discussions on section 2A are so recent, the public will inevitably regard that shift to Westminster as a means of forcing something through the back door.

        • Mr Nabi:
          We should not do anything that damages family structure in Scotland, irrespective of what other religions decide or of what opinions any group of people holds. We believe in the principle that marriage is the norm in Scotland and that all citizens of Scotland should live by that. The Scottish Parliament should not give its rights to Westminster. It should decide on the matter itself.

        • Father Keenan:
          I believe that, as Eric Foggitt said, the issue is so fundamental that if we are seeking effectively to change the definition of marriage—even if we do not call same-sex partnerships "marriage"—it is a wee bit disingenuous to try to make that change through the courts instead of opening the issue out to the whole democratic process.

        • Stuart Lynch:
          The problem with a purely Scottish bill would be that it could deal only with devolved matters. That would include the setting-up and dissolution of partnerships and certain rights, so it would be a start and it would free the Scottish Parliament to decide on what it wanted to cover. The problem with a Scottish bill and a Westminster bill going through their legislative processes simultaneously would be the potential for the creation of a strange mixture of rights, because bills change as they progress. If there were two bills, that would require great scrutiny of what is happening in both places.

        • Marilyn Livingstone:
          In the first parliamentary session, as you heard, we took quite a bit of evidence and we had a stocktaking session with the Minister for Social Justice. Many of the submissions that we have received highlight the pressures and problems faced by young LGBT people in Scotland, in an environment where their lifestyles are not officially supported by legislation and public policy. They felt discrimination. What impact, if any, do you think that the legislation for civil partnerships will have on young lesbians and gay men?

        • John Deighan:
          May I comment on a phenomenon that is occurring in the United States? People who call themselves ex-gay complain that they were told when they had same-sex attraction that their sexual orientation was fixed. Now they are campaigning against the psychiatric and psychological professions because they were labelled as having a particular sexual orientation, which some of them did not want—they are now living heterosexual lives. If we go down the avenue that is proposed, we are promoting the idea that homosexuality is something that is fixed and is just a pathway in life that some people go down, just as others go down the pathway of marriage.

          Section 2A was mentioned. We have to remember what generated all the debate at that time—it was the notion that homosexuality was being promoted. At the time, those of us who were involved in that debate were assured that that was not the intention at all. We were told that there would be no promotion of homosexuality and that the people who were campaigning against the repeal of section 2A had it all wrong. Fundamentally, by recognising homosexuality in the legal structure, we will be embracing it and promoting it as much as it can be promoted.

        • The Convener:
          The situation was different then, of course, Mr Deighan. We were talking about sex education in schools and how that was perceived. We are now talking about consenting adults and their lives.

        • John Deighan:
          Yes, but the issue is the impact that there will be on the young when they see that the state is embracing and promoting homosexuality and giving it a status equivalent to marriage. That is promotion and that will have an impact on the whole of society, as was recognised earlier. With section 2A, the argument was about the fact that people did not want homosexuality to be promoted to young people. There is no way in which we can avoid children receiving the message that homosexuality is on a par with marriage between a man and a woman.

        • Stuart Lynch:
          The question was about the effect that the legislation would have on young LGBT people. The answer has to be that giving a status would take away an awful lot of the discrimination that the evidence that you heard indicated exists.

        • Marilyn Livingstone:
          That is right, Stuart. I do not feel that I got an answer to my question. Last week, a member of the young LGBT community told us that he felt that civil partnership registration would help to tackle the discrimination that people in that community experience in their lives. My question was about whether you thought that civil partnership registration would in some way help to tackle discrimination.

        • John Deighan:
          I am sorry; I know that I did not clarify my answer well enough. I was trying to make the point that, if we grant that status, we will be labelling people. There is the backlash problem, which I mentioned earlier. The people whom I mentioned feel that they were labelled by being told that they were defined as gay and would therefore have a gay lifestyle.

        • Father Keenan:
          In answer to Marilyn Livingstone's question, I have no doubt that we have to trust those people's experience and that their experience would be that civil partnership registration would help. Our difficulty is with what the cost of that would be. I am sorry for sounding a bit like a stuck record, but the issue is about protecting those people's rights as far as possible while upholding the special status of marriage.

          As I said, if according civil registration to same-sex partnerships will undermine marriage—I believe that there is evidence that it will; that is certainly the logic—we will create the paradoxical situation in which, although gay and lesbian young people feel that the institution is supporting them and giving them a degree of dignity, there will be a breakdown in the socialisation of the young people, which will foster the discriminatory attitudes that we are trying to avoid. I am saying that civil partnership registration would have too great a cost not only for society but, paradoxically, for young gay and lesbian people.

        • The Rev Eric Foggitt:
          I do not know the answer to that question. I am still concerned about the fact that, if we want to identify one group, we need to take the public along with us. I am not sure that the majority of people in Scotland agree that it is important to give civil partnership status to gay people. That might be the right thing to do and the thing that intelligent, educated people decide on, but I do not know whether the public will take that view. That is at the root of many of my concerns about the proposals. I think that, if people are not in favour of them, the impact will be the reverse of what is intended.

        • Marilyn Livingstone:
          I want to change the subject slightly and ask a question about the Sewel motion, which members of the panel have mentioned. Although it is proposed that the sections of the legislation relating to devolved matters will be drafted in Scotland and based on Scots law, concerns have been expressed that the Westminster Parliament could make significant amendments to the Scottish provisions. How comfortable are you that Scottish interests will be represented adequately during the legislative process?

        • Stuart Lynch:
          As you rightly say, the use of a Sewel motion presents dangers. Even the consultation document contained bits that reflected English law, not Scots law, such as the part about waiting for a year before applying for dissolution.

          The safeguard will be whether there is enough time between the publication of the bill and the debate on the Sewel motion. There will have to be enough time to allow the Scottish provisions to be drafted. There will also need to be careful monitoring of the bill's passage at Westminster. However, the Westminster Government can ultimately legislate through a Sewel motion. Things could be skewed and the bill could reflect English law rather than Scots law. The only real safeguard is that, if things go a bit pear shaped, it will be possible to rectify matters when the Scottish Parliament considers the family law bill.

        • Father Keenan:
          I would have preferred the Executive to have included the proposal in question in its revision of family law. The consultation document says that there is no intention of according civil registration status to cohabiting couples. On the other hand, there is a determination to review family law and to consider the nature and extent of rights for cohabiting couples. I would have thought that that would have been the perfect locus for considering same-sex relationships and I am disappointed that the Executive has been so hasty.

        • Margaret Smith:
          On Father Keenan's point, the Executive is being driven by the fact that there is a European directive on pensions and so on to which we have to adhere. The Executive feels that it might be open to challenge if it does not do that within a certain time. I have spoken to officials and that is my understanding.

          My question to the panel is: why do you think that people marry? What is it that induces people to marry? I open that question up to you, but in the following context. The Catholic Church's submission states:

          "It would be unjust to sacrifice the common good and just laws on the family in order to protect personal goods that can and must be guaranteed in ways that do not harm the body of society."

          That appears to suggest that the motivation behind the proposals is the protection of personal goods. However, at the committee's previous meeting, the groups that represent the LGBT community and others spoke about the right for human beings to have long-term, stable relationships that bring respect, dignity, status and the protection of children.

          I am heartened by some of Father Keenan's comments about extending rights to gay people. However, I pick up on the comment about marriage needing selflessness, commitment and sacrifice. Shiona Baird mentioned the evidence that we heard at last week's meeting about someone who has been in a stable and committed same-sex relationship for 30 years. I guess that that relationship requires selflessness, commitment and sacrifice as well.

          As the convener said at the start of the meeting, we are talking about a group of people who want to take on not only the rights but the responsibilities of marriage. Do you believe that people go into marriage only to gain personal goods or because they love each other?

        • Father Keenan:
          There is no doubt that they do so because they love each other. You asked why people marry. There are lots of subjective reasons why people marry, but, because we believe in God and creation, we also believe that there are objective reasons. We are talking about the union of man and woman as the definition of marriage. One of the reasons for that union is the procreation and education of children and the continuation and propagation of the human species.

          I was far from saying that only men and women who are married can be selfless and committed. I was saying that, because marriage demands a degree of selflessness and commitment that, say, cohabitation does not necessarily demand, unless people are encouraged to choose marriage, they will opt for cohabitation. All research shows that marriage is better for the education of children and for the good of society than cohabitation is. We need to find ways of encouraging people to marry, because that is best for society.

        • Stuart Lynch:
          We have to make distinctions about what we mean. The word "marriage" has a legal meaning, regulating the rights and responsibilities of people who enter into marriage. Different religions and churches have different views about what marriage is. Those views are not necessarily the same and it is important to distinguish between them.

        • Mr Nabi:
          God created Adam and Eve and not Steve and Steve to fulfil the requirement of the human race to advance society. When men and women marry, the children are mostly brought up in a loving manner and society's needs are met. Gay couples do not serve any purpose of society. They should have rights, but those rights should not be on a par with those given by marriage.

        • The Rev Eric Foggitt:
          I am very interested in that question. For some years, I have asked people who come to me to get married why they want to do so. Obviously, there is a range of responses to that question. However, my biggest problem with it is that many people do not really know why they want to get married. There is a huge amount of confusion about what marriage is, what it brings and so on. People come to church to get married for all sorts of different reasons. Some have reached another stage in their relationship and want it to be blessed in some way; others actually reach the stage where their relationship is struggling and hope that getting married will cement things. Indeed, such couples used to feel the same way about having children.

          The churches would say that, fundamentally, there is something sacred and special about marriage. That is why we are so sensitive about the issue. Even people with little or no religious commitment sense that sacredness and feel that it has been undermined in the past not just because of the relative moral equivalence of cohabitation but because of the fact that so many marriages have broken down. No doubt there are other reasons. As I said, I am sensitive about this issue because I feel that although the sacredness of marriage still exists it has largely disappeared from the public mind.

        • John Deighan:
          I want to touch on the crux of what Margaret Smith is saying. Of course we recognise that often there is love between people in same-sex couples and that love is often at the heart of relationships. That is principally why people decide to marry. Although we might speak in religious terms, not all marriages are sacramental. Many people who marry have no religious beliefs whatever. We believe that marriage is a natural institution that serves the common good; it provides the next generation of people and the environment in which primary education, civilisation, the delivery of care and the nurturing of children happens. As a result, it has been adopted and given a privileged position by the state.

          Because marriage does so many things, society has realised that it really serves the common good and that it should be adopted and promoted. It is not that the love between people in same-sex relationships does not count. Love is admirable anywhere and can happen in all sorts of relationships. However, in this particular case, there are demands on married people—particularly those who have children—which sometimes require some form of state intervention, recognition or support. Marriage is not special because of its financial benefits, but because we recognise that such relationships have to be given particular attention, support and nurture. After all, marriage can be fragile and it can be difficult to bring up children. There are great demands on those people.

        • Margaret Smith:
          Because you have said that it is difficult to bring up children, you would no doubt accept that bringing up children in a same-sex relationship is as difficult, if not more so. After all, society does not give people in such relationships the same protection. We must try to ensure that, no matter what kind of household children are brought up in, they are protected and respected.

        • John Deighan:
          I agree with that. We must ensure that in the unusual circumstances of there being children in a same-sex relationship—which I accept happens—we try to give support where necessary. However, we cannot give such support while sacrificing the special status that we give to marriage.

        • Margaret Smith:
          The circumstances are not really that unusual: 25 per cent of same-sex couples have children.

        • John Deighan:
          But 0.1 per cent of households in Scotland are headed up by a same-sex couple, which means that such a situation is already unusual. If 25 per cent of those couples have children, we are talking about a small number of people. We should not sacrifice the special status of marriage and the common good of others in that respect. For example, although single parents often do a very good job of bringing up children, we would not base any social policy on the idea that such a household was equivalent to two people bringing up a child.

        • Margaret Smith:
          I think that we have to disagree about whether we undermine marriage and sacrifice other people's rights by extending rights to others and protecting their children in the process.

        • Shiona Baird:
          The social attitudes survey shows that more than 60 per cent of the people asked had, as it were, a relaxed view towards discrimination against homosexuals. Only 39 per cent of Church of Scotland and Presbyterian respondents believed that

          "Male homosexual relationships are always wrong."

          Interestingly, 29 per cent of the Catholic respondents agreed with that statement. Only 40 per cent of Church of Scotland and Presbyterian respondents agreed with the statement

          "Gay couples should not be allowed to marry"

          and only 33 per cent of Catholic respondents did so.

          On the basis of those figures, to what extent are you representing the views of the establishment of your churches rather than those of the members of your churches?

        • Father Keenan:
          I am not sure about the survey that you are talking about but, if what you say is true, I would say that it represents only a snapshot of people's initial response. That snapshot is actually quite heartening because our instinctive response as Christians would be to show compassion and sensitivity to others. However, once our community is informed of all the aspects of what the proposals would mean in relation to the defence of marriage, the reaction that comes from instinctive compassion will be informed by an understanding of the broader picture. We want to respect everybody's rights.

          My experience as a Catholic priest tells me that those who have a large connection with the Catholic Christian community are largely behind that Catholic Christian vision. All Catholics accept that they are guided by the teachings of the Church.

        • Stuart Lynch:
          There is an interesting parallel with the days when divorce was available only in cases involving adultery and desertion. Before the law was changed to allow divorce on the ground of irretrievable breakdown, the churches had definite views on the proposed change. However, in the years since the change in the law, the Church of Scotland's attitude to divorce has changed. If civil registration partnerships are introduced, the percentages who approve of them will be much higher 10 years down the line.

        • Marlyn Glen (North East Scotland) (Lab):
          In the consultation document, the Executive states that the Scottish Parliament could legislate for a scheme that is open to mixed-sex couples and, perhaps, household companions. The Executive decided against taking that approach because it would go much further than the UK Government's proposals and could prove problematic because the reserved aspects of the proposals would not be recognised by Westminster.

          I think that I understand the views of the representatives of the Church of Scotland on this matter, but I would like the other witnesses to state their views.

        • Father Keenan:
          The consultation document says that there is no intention to extend legal recognition to cohabitation but that the rights of cohabiting couples will be considered as part of the consultation process that will begin in the winter. I hope that, somewhere in the back of the Executive's mind, there is some imaginative means whereby the freedom and rights of cohabiting couples could be upheld in a way that does not accord them the same legal status as married couples. I hope that that will be the context for the consideration of same-sex relationships as well. The document indicates that that would be possible and that, if the proposal were broad enough, Westminster would be invited to allow the arrangement to trigger access to reserved rights.

          I am not sure of the complexities relating to that matter, but I am sure that it would be possible. If we took that route, we would be allowed to offer our own contribution to the debate. I feel that we are simply being led by Westminster.

        • Stuart Lynch:
          Politically, a Scottish bill would probably be better, but there are so many pitfalls with having two bills that I think a UK bill is best.

        • John Deighan:
          To be honest, Westminster's argument is quite sensible. Heterosexual couples can choose to get access to those benefits by marrying. It is completely unnecessary to create another structure to allow access to those rights.

        • Marlyn Glen:
          In paragraph 5.4 of the consultation document, the Scottish Executive states the belief that same-sex couples in Scotland registering their partnership should have

          "access to a comprehensive package of rights and responsibilities in devolved areas that largely mirrors those available to civil registered partners in England and Wales."

          Does the panel have any comment on that as a statement of principle? I recognise that you have covered some of that ground.

        • John Deighan:
          The issue is the status that is being granted in order to deliver the partnerships. On a case-by-case basis, let us consider the requirements of any partnership and the legitimate rights that the partners have, and by all means let us deliver them. However, let us not use the means outlined by Westminster and the Scottish Executive.

        • Mr Nabi:
          Same-sex partnerships should be discouraged by not opening up the full package of rights and responsibilities to anyone except married couples. Further means should be designed to shore up the institution of marriage, which is currently flagging in Scotland.

        • Marlyn Glen:
          My final point follows on from Margaret Smith's question about why people marry, the other side of which is why people from either same-sex or heterosexual relationships choose not to get married. Views have been expressed that the extension to registered same-sex couples of similar rights to those of a married couple undermines marriage and that the extension of civil partnership registration to different-sex couples also undermines marriage. That is the crux of what we have been talking about—the Catholic representatives have stated those views—but the bill is not actually about gay marriage. Some same-sex couples aspire to having their union blessed by their chosen church, but others do not, just as some heterosexual couples choose not to marry because they do not aspire to that.

        • Father Keenan:
          I return to the point that, to all intents and purposes, such a partnership becomes the same as marriage. My difficulty is that what then happens in the public consciousness is that our society is seen as blessing, supporting and endorsing different alternative ways of living in a sexual relationship. Then people begin to think that marriage, cohabitation and same-sex relationships are all welcome within our society. The proposal to give marriage alone that legal recognition, and then to devise ways of protecting the rights and freedoms of cohabiting couples and same-sex couples, would allow that dignity and respect for marriage to be maintained and would also respect the freedom and rights of homosexual and cohabiting couples. That would prevent cohabiting couples who disagree on principle with marriage from claiming later on that they are being discriminated against on the ground that, although there is legal recognition for marriage and for cohabitation, there is no recognition for the relationships of cohabiting couples who disagree on principle with getting married.

        • The Rev Eric Foggitt:
          I am afraid that I did not pick up the question.

        • Marlyn Glen:
          I am sorry. I simply wanted to ask for your comments on the view that civil partnerships would undermine marriage. To me, the bill is totally different; it is about civil partnership registration and not about marriage, so it cannot undermine marriage because it is different. I was trying to put that across.

        • Stuart Lynch:
          I find it hard to understand how what is proposed can actually affect marriage, because marriage is not an option for people in same-sex relationships.

        • Mrs Nanette Milne (North East Scotland) (Con):
          I have a series of questions on the procedures surrounding the proposed legislation. The Executive's consultation outlines formal requirements for civil partnership registration, such as the minimum age of 16, exclusivity of partnerships and the prohibited degrees of relationship. Will the panel state their views on those formal requirements?

        • John Deighan:
          From the point of view of procedure, the criteria for eligibility, the registration procedure itself, the rights and responsibilities that would be given by registration and even the procedure for dissolution so closely mirror marriage that the overall effect would be to create another status that aims to be equivalent or akin to marriage. That sends out a message to society. If people think that it does not, they overlook the educational role that legislation and Government actions have on the beliefs and values of people within society.

        • Father Keenan:
          I would say the same thing. If I may respond to Marlyn Glen's question, the proposal so mimics and resembles marriage that it would be marriage in all but name.

        • Stuart Lynch:
          The suggested minimum age of 16 is the same as for marriage; it would be inequitable to have it any other way. The exclusivity of relationships is a good principle that underscores the Executive's desire to encourage stable relationships. The prohibited degrees, which are obviously taken from marriage, may or may not be appropriate. The original prohibited degrees in Scots law came from the prohibited degrees in Leviticus, which were to do with procreation of children. Obviously, that is not an issue here. It may or may not be appropriate to include the same prohibited degrees or a variation on that theme.

        • John Deighan:
          Will you go on to ask about the specifics of the procedure that are laid down in paragraph 6.20 on page 23 of the consultation document? May I mention that?

        • The Convener:
          I think that Nanette Milne is about to ask about that.

        • Mrs Milne:
          I do not have paragraph 6.20 in front of me, so you will need to remind me what that is.

        • John Deighan:
          Paragraph 6.20 goes through the procedures, from step 1 through to step 9, of how the civil partnership would be carried out.

        • Mrs Milne:
          My next question was going to be on the procedures for registration, such as the giving of notice to the registrar. That is my main question. Tied in with that, do you have a view on whether religious organisations ought to be able to officiate at a civil partnership registration, if they so wish?

        • John Deighan:
          Our fundamental position is, as the committee has already heard, that if a new relationship is being made that so closely resembles marriage, it will have the effect of undermining the special status of marriage.

          We have a couple of particular issues with the procedure that is laid down. First, the consultation document seems to give the same procedure as is used for a religious marriage just now. Step 5 says:

          "the civil partnership schedule would be issued no earlier than 7 days before the date of the intended civil partnership registration".

          Usually, no schedule is issued for a civil marriage. The document seems to set up something that you asked about, which is whether religious organisations should be allowed to perform the actual civil registration. We think that that would take civil partnership registration even closer to marriage. If that is what is meant, we would be against it.

          The other issue that we have is with the next step—step 6—which talks about the registration being "performed". I know that Westminster does not want to have a ceremony attached to registration, but it sounds as if the procedure that is given in the Executive's document will have some sort of ceremony attached to it. In that case, if the proposals are to become law, we believe that it would be worth while raising with the Executive the idea of providing a conscience clause for people in the registration service who may have a difficulty with performing a same-sex civil partnership registration.

          Earlier in the year, the Executive considered the issue of religious discrimination. The solution that the Catholic Church proposed was to promote the idea of religious freedom. We would not want anyone to be compelled to act against their conscience. We want to raise the issue that, if the procedure goes ahead as it stands, some people will be forced to perform a ceremony that would breach the guidance of their conscience.

        • Stuart Lynch:
          The procedure that is outlined is the same procedure as for civil marriage, not religious marriage. The registrar's set-up is ideally placed for that purpose. That does not exclude couples' having a blessing—or whatever it is called—or a form of religious service. Those happen at the moment.

        • Mr Nabi:
          My answer to the question is no. Blood relations and spouses can rightly be regarded as next of kin. A newly-invented contractual conveyance to inform the registrar of the death of someone's loved one should not be allowed to override the procedures that have served Scotland well for centuries and have stood the test of time.

        • Mrs Milne:
          A number of people from the LGBT communities who gave evidence said that people in those communities wished their relationships to be on public record as a sign of public commitment to their long-standing relationships. The registration that is proposed would be a matter of public record, available to anyone to view on payment of a fee. Given that many lesbians and gay men keep their sexuality and relationships secret to avoid discrimination and harassment, what are your views on the public aspect of the proposed registration process and its likely impact on same-sex couples?

        • Stuart Lynch:
          I feel that it has to be a public record simply because it affects third parties—for example, the employers in the pension schemes that we have talked about. In many ways, it requires to be a public record. That also gives it a status.

        • Mrs Milne:
          My next question is about the dissolution of a civil partnership. The Executive states that the arrangements are based on the arrangements for divorce and would be situated in Scots law. Grounds for dissolution include unreasonable behaviour and periods of separation—two years with consent and five years without consent. What are your views on the proposals for dissolution?

        • John Deighan:
          It is a closely mirroring image. We have a principled opposition to the whole procedure. If we had our way, there would be no need for dissolution. Again, it is the granting of the status that we would be opposed to.

        • Stuart Lynch:
          My only comment is on the one-year waiting time. That seems to be out of step with Scots law as it is at the moment. I would argue that the proposals should mirror those for marriage, as that would be the easiest way in which to legislate and hook them in. If it is considered desirable to change that period when the proposed family law bill is considered, that will be the time to deal with both things together.

        • Mrs Milne:
          I have a final question. Do you think that there is enough detail in the consultation document—under the section on Scots family law, which discusses parental responsibility and inheritance among other issues—to enable people to understand the potential impacts? What are your views in that area?

        • Father Keenan:
          My views are just that the proposals will have radical and devastating consequences for society. I regret the haste with which they are going through.

        • John Deighan:
          I echo what Father Keenan has just said. We should pay great attention to the idea of human ecology. We all recognise that if someone destroys a rainforest, that has an effect on the ecology of the environment. We are tampering here with the very fundamentals of society, which have been recognised for centuries. The basic unit of society is the family. That needs a lot of attention. We cannot imagine all the things that will happen because of the proposals, but it would be cavalier to charge on with them without having a detailed analysis on that basis. If we affect the basic cell of society, what could be the repercussions? That is what is missing from this debate.

        • Mr Nabi:
          I fully agree with Father Keenan. One wrong is already being done, and doing another wrong will not make it right. I fully support what Father Keenan says on that.

        • Stuart Lynch:
          The proposal is not as comprehensive as it could be, although I appreciate the fact that it is only a consultation document at the moment. Issues such as legal aid need to be considered. The wording of any bill will have to be carefully scrutinised and, as I said, monitored as it goes through Westminster.

        • The Rev Eric Foggitt:
          I am very sad that the Scottish Executive sees this matter as such a priority. I see a tremendous number of children who are hurt by the break-up of families. Those children are wounded. The proposals go some way to protecting them. I am thinking of inheritance and other rights.

          The debate saddens me. The Parliament will look as if it is doing something that is politically correct and that favours one group of people. Nobody is denying them their rights, but when people look at the detail, their attitude will be very different. All of us know people who are tremendously marginalised by society and who are hurt by existing laws. All sorts of areas of the law could be looked at. Families, people in companion relationships and so on face tremendous problems and yet the Executive is spending its time and public money on little details of things that are, in the public mind, of much less consequence. That is enormously sad.

        • The Convener:
          Are you suggesting that, unless we can do everything, we do nothing?

        • The Rev Eric Foggitt:
          No. I am suggesting that you start at the beginning. This matter is easy and relatively cheap to deal with. All sorts of areas of life in Scotland are far more pressing, but they would cost the Executive, pension companies and others far more; that is why you do not dare deal with them. This matter is being dealt with in a Sewel motion partly because of moral cowardice and partly because of cost implications. A lot of people will see the issue in that way and that saddens me a lot.

          I am a great supporter of the Parliament. The way in which it works is tremendously good. I love these consultations—I am very much in favour of them. A lot of people will say that you are tinkering while Rome burns. Many of us are concerned about the breakdown of family life and about all sorts of other issues for people with or without family or religious commitments. I agree that the details matter, but there are all sorts of things that the Parliament should be doing first.

        • Margaret Smith:
          I have a final pragmatic question, but first I feel duty bound to comment on what the Rev Eric Foggitt called "little details". People are denied the right to be at the bedside of someone with whom they have shared their life. There would be an outcry if that were to be done to married couples. The only reason that there is not an outcry is because it is happening to a smaller group of people. We are talking about a basic human right. Many witnesses acknowledged that in their contributions today. You said that nobody is denying same-sex couples their rights, but the point is that same-sex couples are being denied rights.

          I share your concerns about the use of Sewel motions; my concern is on the record. We are attempting to proceed by looking at the current issue of civil partnership registration. We hope to address some of the issues that you touched on in the family law bill, which has taken a long time to come about because of the complexities that are involved. That bill will address a range of issues in respect of cohabiting mixed-sex couples, including the rights of fathers and grandparents to have access to their children and grandchildren after a family break-up.

          As a former convener of the Health and Community Care Committee, I have to say that you made some good points on the issues that relate to carers. There is scope in the family law bill to look at some of the other issues in that respect. However, we should not stop going down the road of extending rights to somebody just because we need to look at the wider issues.

          I return to my pragmatic question, which I will address to John Deighan and Father Keenan. We touched on the issue of the pension industry. We also touched on issues around inheritance rights, including the fact that spouses do not have to pay inheritance tax whereas same-sex couples do. Stuart Lynch pointed out that, although it could be said that we do not need to have a recognisable means of allowing people to be given an extension of their rights in areas such as property and pensions, there needs be a mechanism whereby people could prove that they had a right to those assets.

          We are talking about the value of a house that could be hundreds of thousands of pounds—certainly in the Edinburgh context—and about valuable pensions. If I accept in all good faith that you want to extend rights, how do we get around the problem that someone would have to prove to a pension company and others that they were in a same-sex relationship and should be given those benefits?

        • The Rev Eric Foggitt:
          I think that that is a real problem for the Parliament. All sorts of people will claim to have such a relationship. They will claim to be in a civil partnership precisely in order to buy into the package of rights. If such financial benefits accrue from living in a civil partnership, all sorts of people might want to buy into the situation in the same way that some people get married in order to claim nationality—be it British or otherwise.

        • Margaret Smith:
          But we do not scrap marriage as a result.

        • The Rev Eric Foggitt:
          Part of the problem is that, if people are given the sorts of rights that we are talking about, other people who are not in a same-sex relationship will want to claim to be living in such a relationship in order to get those rights.

        • Margaret Smith:
          Everyone will want to claim to be gay—that will be interesting.

        • Father Keenan:
          I will duck the issue by saying that the subject of the question is not within my competence. However, given that necessity is the mother of invention, I suggest that inventive and imaginative ways could be found to see that those rights were established—for example, by one person formally saying, "I wish this person to receive the inheritance."

          I believe that, in the case of cohabiting people, those rights should be protected without granting cohabitation the status that is accorded to marriage. If people who have the competence in those areas had to guarantee those rights, they would have to think hard about them and find ways of guaranteeing them.

        • Stuart Lynch:
          It is not the Parliament that will have the problem; it is the courts that will have to go back to first principles to establish whether people are in the relationship that they say they are in. We also need to bear it in mind that there will be those who will want to access money that is at issue and who will contest the succession rights. If we do not have a simple solution such as one that asks people to produce a piece of paper, what are we going to put people through?

        • John Deighan:
          Without going into the specifics of the proposals, I suggest that the Parliament has to focus on the rights of the individual in order to ensure that every individual has the right to, for example, dispose of their legitimate property and money. At present, no legislation excludes a same-sex partner from attending hospital or registering a death, which are some of the examples that we have been given.

          Our opposition is not about legitimate rights—they are fine—but to the idea that a new relationship will be established in law that leads to the granting of additional benefits. We are totally in favour of individual rights, but not of creating a new source of special rights.

        • The Convener:
          I thank the witnesses for giving evidence to the committee this morning. I suspend the meeting for five minutes to allow the changeover of witnesses and a comfort break.

        • Meeting suspended.

        • On resuming—

        • The Convener:
          I welcome Michael Clancy, Morag Driscoll and Elizabeth McFarlane from the Law Society of Scotland and Professor Kenneth Norrie from the University of Strathclyde law school. I invite members to put questions to the witnesses. If more than one member of the panel wants to give their view, they are welcome to do so.

          Do you agree in general with the basic principles that are outlined in the Executive's consultation document, which would allow same-sex couples to register their partnerships in Scotland and those partnerships to be recognised by the UK Government for reserved purposes?

        • Professor Kenneth Norrie (University of Strathclyde):
          I strongly welcome and support the proposals. I approach this issue from two different perspectives. First, I come to it as a person who is likely to take advantage of the proposals when they come into effect. Secondly—and, for this purpose, more importantly—I come to it from a legal perspective. It is a long-standing flaw in Scots family law that the definition of family and of the relationship that brings with it rights and responsibilities has been limited to opposite-sex couples.

          If we examine the details of the law, we realise how completely unacceptable the position is. A simple example is afforded by our domestic violence legislation. If someone is part of an opposite-sex couple, they can access that legislation, but they cannot do so if they are part of a same-sex couple. If a child is living with a same-sex couple, it can be protected by the normal means, but the domestic violence legislation cannot be accessed to protect it. No one would deny that that is entirely unjustifiable. The question then becomes, do we need to tackle each individual issue, or do we need to tackle all the issues together in one package of rights and responsibilities that are proven by a bit of paper? As Mr Lynch explained earlier, for pragmatic reasons we should do the latter.

          Let me follow through with the example of domestic violence legislation. If domestic violence legislation is accessible immediately following the production of a bit of paper, a person will get the protection that they need—regardless of whether they are part of an opposite-sex or a same-sex couple. However, if to access the legislation they must say that they are in a same-sex relationship as defined by domestic partnership legislation, the court will be diverted from the main issue. The defender will be able to argue that the person seeking to access the legislation cannot do so because they are not in a same-sex relationship. The court will be diverted from the real issue of whether someone needs protection from domestic violence to an entirely irrelevant issue—the nature of the relationship between the parties who are living together. The same point applies throughout. That is why it is important that we have a system for registering partnerships, so that everyone knows who is in a relationship that allows them to access rights and responsibilities.

        • Morag Driscoll (Law Society of Scotland):
          The Law Society of Scotland welcomes the proposed changes to legislation. We, too, believe that they have been necessary for a considerable period.

          The great risk is that if a package of rights is available to opposite-sex couples and not to same-sex couples, questions of human rights and discrimination will be raised and, whether or not the position is acceptable on societal grounds, it will not be acceptable on the ground of European human rights legislation, so Scotland will be in breach.

        • Shiona Baird:
          I will combine my two questions. My question is about social attitudes and the discrimination that is faced by same-sex couples. Stonewall's evidence stated that LGBT couples often want to keep their relationships secret, because of the fear of discrimination and harassment. To what extent would legislation help to remove that discrimination and improve attitudes?

        • Michael P Clancy (Law Society of Scotland):
          That is difficult to answer, because none of us—neither I nor Morag Driscoll nor Elizabeth McFarlane—is a sociologist, although Professor Norrie might be. You are really asking a sociological question. How the law impacts on social attitudes is a big issue. If one reflects on other elements of discrimination legislation, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976, no one would say that we have yet got a society that is divested of either racial or sexual discrimination. Whether or not legislation would change society's attitudes in the short term is still an issue for debate. Nevertheless, legislation does have an impact on social attitudes and, undoubtedly, the proposed legislation would have such an impact over a period of time. The question is really one for a sociologist, from whom you could get a proper answer.

        • Professor Norrie:
          I am not a sociologist, but I will attempt to answer the question, following on from Mr Clancy's examples of the Race Relations Act 1976 and the Sex Discrimination Act 1975. Clearly, those acts have changed society's attitudes. We have not rid Scotland of discriminatory or bigoted attitudes, but those pieces of legislation made certain attitudes socially unacceptable. It is socially unacceptable for this Parliament, the Executive, me, the Law Society of Scotland or anybody to demand that we adopt racially or sexually divisive legislation.

          I was bitterly disappointed to hear people this morning claim that the Scottish Parliament has more important things to deal with than this issue, because it affects only a minority. That would be an outrageous thing to say if it was said in relation to an ethnic minority. It would be disgraceful to say, "The Scottish Parliament should not pass legislation to remove discrimination against the Jewish or Muslim populations, because it would deal with only a minority of people in Scotland." The reason why we all now accept that that is disgraceful is because of the legislation that was passed two or three decades ago.

          Legislation on civil partnerships would not rid Scotland of homophobia, but it would give a clear message—and the Roman Catholic representatives were absolutely correct about this—that people in same-sex relationships and gay, lesbian, transsexual and bisexual people have as legitimate a right to lead their lives the way they want as heterosexual people do. That is an important message that we need to push.

        • Marilyn Livingstone:
          I will ask a similar question to the one that I asked the previous panel. Given that two bills on civil partnership registration have already failed in the UK Parliament, what would you propose for Scotland if another attempt fails?

        • Michael P Clancy:
          The use of Sewel motions and the interaction of the Scottish Parliament with the UK Parliament are big issues.

          The Scottish Parliament agreed to something like 46 Sewel motions in its first session and has agreed to four in the first few months of the second session, so such motions are not an untoward occurrence.

          I have a war story from 1998. I was there when the Sewel motion was born; I saw John Sewel declare it. It was one of the few privileges that I have enjoyed. There definitely has to be interaction between Westminster and the Scottish Parliament and, under the Scotland Act 1998, the Westminster Parliament has the right to legislate on devolved issues, but should do so only with the Scottish Parliament's consent.

          The Law Society takes the view that when dealing with issues that cross devolved and reserved areas, it is more appropriate for them to be contained within the bounds of one piece of legislation. That is easier to administer for those who have to deal with the legislation and it is easier for those who have to consult the law if they are affected by it. We are well versed in dealing with pieces of legislation that were the subject of Sewel motions and have subsequently become acts of the UK Parliament.

          On how the matter should be dealt with in London, the Law Society has a great deal of experience of and does a lot of work on reserved legislation. Only last week, we promoted amendments to the Crime (International Co-operation) Bill and the Extradition Bill. We are accustomed to the process there and would certainly keep a close eye on any legislation. If it was amended substantially at Westminster in a way that appeared to be inconsistent with Scottish legal principles, you could rely on us and other people to draw that to the attention of the legislators in Westminster.

          Whatever happens, it is important to ensure that there is substantial consultation prior to legislation and that any UK bill is exposed to consultation with enough time for all the interests involved on both sides of the border to make their comments. It is significant that the Department of Trade and Industry consultation on civil partnerships concluded on 30 September before the Scottish consultation was issued. There might have been people who thought "Ach well, it doesn't matter if we respond to the DTI," because, on the face of it, the proposals would affect only England and Wales. We should be sure of the ground rules and that we have adequate time to respond.

        • Marilyn Livingstone:
          Is that generally agreed?

        • Professor Norrie:
          I hesitate only because I do not want to disagree with anything that has been said but I am not sure that I want to fully associate myself with it. Your specific question was about what we should do if an attempt fails at Westminster. My answer is that the Scottish Parliament should do something about it. Members will have a perfect opportunity when the proposed family law bill comes before the Parliament next year.

          Of course it will be difficult if Scotland goes ahead with something before England does, but is not that what devolution is all about? Is not that why we have a separate legislature? Many countries in the world operate with devolved legislatures or federal systems and none of them has problems with one part of the jurisdiction moving forwards before another part. For example, in Canada it took three years for the provinces to bring in what we call registered partnerships one after the other. The federal authorities did not act until later. There is no technical legal problem in doing that.

          If proposals failed in Westminster, I would strongly urge the Scottish Parliament to take the lead. Of course, it could have an effect only on devolved issues, but there is no technical problem with that. At least the Parliament would be taking a step in the right direction.

        • Marilyn Livingstone:
          I was going to ask a question about Sewel motions, but I think that my point was covered in the previous question.

          One thing that struck me was that many of the submissions that the committee has received highlighted issues around young LGBT people in Scotland and the prejudice from which they feel they suffer in an environment in which their lifestyle is not officially supported by legislation or public policy. What impact, if any, would legislation on civil partnership registration have on young lesbians and gay men?

        • Professor Norrie:
          It would have the effect that the representatives of the Roman Catholic Church told you about this morning. It would tell people that their relationships are legitimate and acceptable and that it is no less moral to enter into relationships of a same-sex nature than it is to enter into relationships of an opposite-sex nature. I urge members to think that that is a good thing, rather than a bad thing, which was the implication from the church representatives. I think that it is a good thing.

          I might be the only person in the room—I do not know—who has personal experience of growing up as a young gay man years ago. In the 1960s and 1970s there were no role models—I thought that I was the only person in Dundee to harbour those feelings and desires and to be this way, and that was incredibly isolating. I assumed—and I maintained the assumption until a few months ago—that I would never have the opportunity to express in a public forum the regard, love and commitment that I have for my partner. I grew up living with that assumption, and that was socially isolating.

        • Morag Driscoll:
          As Michael Clancy said, the question is rather more for people who deal with societal matters than it is for the Law Society. I do not think that the Law Society has anything but support for the issue and for the feelings of the people who would be able to take the opportunity to register a civil partnership if that became available.

        • Margaret Smith:
          The submission from the Catholic Church in Scotland states:

          "Legal recognition of same-sex partnership would effectively be a redefinition of marriage".

          However, the consultation document couches the proposals in such a way that they would create a secular civil partnership that would be administered by registrars rather than by representatives of any religious faith. Does the panel think that a civil partnership registration scheme would lead to a redefinition of marriage? Does it believe that it would undermine marriage? Is there any evidence gathered internationally that, where such a scheme has been introduced elsewhere, it has undermined marriage?

        • Ms Elizabeth McFarlane (Law Society of Scotland):
          The Law Society's view is that the scheme would create a new legal status. The fact that it would not be a marriage is perhaps a technicality, because the proposals—for registration, the requirements on age and forbidden degrees and how the partnership would be dissolved—would appear to create a marriage by any other name. We had some concerns about that, because of the media or societal response. However, our view is that the scheme creates a new legal status, which is not technically marriage, as marriage is a relationship between two people of the opposite sex. Therefore, we do not see that as a problem.

          The second part of your question was about whether the scheme would undermine marriage—

        • Margaret Smith:
          Yes, and about evidence from any such scheme that might have been introduced elsewhere.

        • Ms McFarlane:
          I am not sure that that is the Law Society's concern. Our view is that civil registration partnerships would not undermine marriage. Marriage takes place between two people of the opposite sex and obviously gay people do not enter into a marriage as we know it legally.

        • Morag Driscoll:
          I want to expand on that point. When we talk about marriage, we mean the legal definition of marriage as set out in the Marriage (Scotland) Act 1977 and the Marriage (Scotland) Act 2002, not any socio-religious definition of marriage. Because the bill would be a separate piece of legislation and the civil registered partnership would not be included within the legal definition of marriage, that partnership would not be marriage, no matter how much of a parallel system it was. If the option of a civil partnership is not open to opposite-sex couples, we do not see how a civil registered partnership can affect the legal definition of marriage. People choose to marry or to register a partnership for personal reasons and we do not feel that the proposals in the bill are likely to undermine the reasons why people choose the legal status of marriage.

        • Professor Norrie:
          Mr Lynch from the Church of Scotland pointed out that the word marriage has different meanings. It has a religious meaning; it is a religious institution—a sacrament in some churches—and has religious effects. However, the relationship also has a legal meaning. I find it rather unfortunate that we use the same word for both relationships, because we are talking about two very different things.

          Indeed, those two aspects of marriage have been very different in Scotland since the reformation, when the legal concept of marriage changed from the traditional Roman Catholic concept of marriage that people to some extent cling on to. We have lived for 400-odd years in a society where the legal definition of marriage is one thing—indeed, that is what the law is about—and the religious definition of marriage is another. Legislation cannot tell churches how to define their concept of marriage in the same way that the marriage (Scotland) acts define marriage in Scots law. The Roman Catholic Church is right to say that registered civil partnerships will undermine something, but it will not be the church's or the legal concept of marriage; instead, registered civil partnerships will undermine the unique determinant of rights and responsibilities that are directed towards heterosexual couples. It is good that that is undermined; indeed, that is the whole point of the legislation.

          Again, the representatives of the Roman Catholic Church were right to say that whatever the law calls something, society will call it something else. I have no problem with that. Marriage is a fluid word that means many different things to different people. The press coverage of the bill insists on talking about gay marriage. As a lawyer and a pedant, I think that that is entirely wrong. However, it is legitimate for people to use a word that includes themselves. When a gay or lesbian couple decide to register their relationship, are they going to ask each other, "Shall we civilly register?" No; they are going to say "Let's get married." As a lawyer, I think that using that word is illegitimate—but so what? Religious people will think that it is illegitimate—but so what? It is the word that society uses. I have no problem with that. As I have said, the legislation will not undermine marriage; it will undermine the unique determinant of rights and responsibilities.

        • Michael P Clancy:
          It is interesting that Professor Norrie reflected on the pre-reformation law of marriage and the impact of the reformation. To a certain extent, we are living in a context that was set by the reformation and perhaps this morning's discussion even illustrated some of that. After the papal authority was abolished in Scotland in 1560 and our marriage law was nationalised, the kirk session in Edinburgh permitted adultery as grounds for divorce in 1561. The Desertion Act 1573 then made desertion a legal ground for divorce. As a result, it is very clear that the law can be changed and that social attitudes will flow from such changes.

          On the issue of other jurisdictions where civil partnerships have been introduced—the longest-standing example being the Netherlands—you have already received evidence that there does not appear to have been a falling-off in the registration of marriages. If any member of the committee would like to accompany me on a field trip to the Netherlands or to California to find out whether that is the case, I would be delighted to offer that. It would be worth while testing the waters with, say, a letter to the Ministry of Justice in Amsterdam or The Hague or a letter to the US Department of Justice in San Francisco, Los Angeles or Sacramento. They would be able to provide you with some firm statements about the nature of the impact of civil partnerships on the registration of marriages. The offer of a trip stands.

        • The Convener:
          That is very tempting.

        • Margaret Smith:
          Let me ask again the final question that I asked in our earlier evidence session. The Catholic Church's view—which I accept is held by a number of other people in good faith—is that we do not have to set up a new form of partnership, as we can address the discrimination that exists in a more piecemeal way. Do you believe that this issue can be addressed in a piecemeal way? Or should it be accepted that pension companies, the Inland Revenue or whatever should be able to have a piece of paper without having to go through the process of the courts every time that somebody wanted to challenge a will or something?

        • Professor Norrie:
          It is the worst of all possible worlds to say that you will extend all the rights that currently flow automatically from marriage to same-sex couples who can prove that they are in a relationship. What would you ask people to do? Are you going to ask people, when they claim a pension right, to prove the sexual nature of their relationship, the interdependence, the love and the commitment that they have shown? What evidence can they bring to show that they loved somebody whom they lived with?

          If the issue is succession, there will always be a third party with an interest in showing that the relationship was not sufficiently loving, monogamous, committed or interdependent so that they can get the money that would otherwise go to the partner. The courts and pension schemes would be clogged up, and individuals would have to expose to the public gaze all the intimate details of their private lives. If, however, you introduce a system whereby a couple can register their relationship, everything will follow automatically. That registration will be public, but the intimate details will be kept as private as they are for married couples.

        • Ms McFarlane:
          The problem with piecemeal legislation is that it leads to inconsistencies and uncertainty. As lawyers, we like to be certain about the law, and the public requires to be certain about the rights and responsibilities that flow from their relationships. That is a significant issue; therefore, the matter should be dealt with in one piece of legislation. As Professor Norrie says, if there is a registration certificate, that takes the attention away from the personal issues and allows the courts, the pension company or whatever to focus on the other matters. It gives certainty and avoids the inconsistency that often flows from piecemeal legislation.

        • Morag Driscoll:
          At the moment, the rights of a married couple flow from their legal status as a married couple. What is proposed is a legal status from which rights will flow naturally—that will be predictable and understood, and it will be something that people will trigger through choice. If a piecemeal approach is taken, you will end up with a miasma of the undetermined. In some bits of the law, people will have rights, but in other new bits they will not know. Couples who would not have chosen to have that status will find that they do, in fact, have that status, and it will create a tremendous amount of work for lawyers, courts, the Legal Aid Board and the Parliament.

        • Marlyn Glen:
          My questions are about the contents of the proposals. In its consultation document, the Executive states that the Scottish Parliament could legislate for a scheme that is open to mixed-sex couples and perhaps household companions. However, the Executive decided against that approach because it would go much further than the UK Government's proposals. The Executive felt that the approach could prove problematic because the reserved aspects would not be recognised by Westminster. Will the panel state their views on this?

        • Michael P Clancy:
          We have already indicated some of our views. The join between devolved and reserved areas should be seamless in respect of same-sex couples. It would be extraordinarily problematic if the situation were to limp along with some people having rights but not others. We have to reflect on that. If the UK Government is unwilling to extend rights in relation to benefits, pensions and the other areas of reserved legislation, we should think very carefully before setting up some other structure.

        • Professor Norrie:
          We are now talking about a wholly different issue. The legislation tries to address an historic injustice. Same-sex couples, and gay, lesbian, transsexual and bisexual persons in Scotland, Europe and the rest of the world have for centuries and centuries been discriminated against, denied human rights and harassed. The legislation tries to address a group of people with particular needs. I do not deny that there will be individual cases, such as that of an elderly aunt living interdependently with a niece, in which it might well be appropriate for that niece to have succession rights, but the law does not operate that way for heterosexuals at the moment and the law does not intend to operate that way for same-sex couples—at least, Westminster does not intend to legislate that way for same-sex couples. The Scottish Parliament might want to do so, but I repeat that that is a wholly different issue and is driven by needs that are different from those that civil partnership registration gives rise to. Civil partnership registration is very much an equality issue, a human rights issue and a dignity issue. For same-sex couples, none of those rights has existed before.

        • Mrs Milne:
          As I did with the previous panel, I will ask procedural questions. However, I will condense them because of our time constraints. What are the panel's views on the formal requirements in the procedures for registration and on the fact that registration would be a matter of public record?

        • Professor Norrie:
          I strongly believe that registration has to be a matter of public record. As somebody said earlier, registration affects more than just the two parties involved: it affects their relationships with their employers, their pension funds and their social standing. It has to be a matter of public record.

          As far as technical procedures for registration are concerned, if you are trying to have a system with no discrimination between opposite-sex couples and same-sex couples, you must mirror as closely as is apt and possible the registration processes that are currently available to opposite-sex couples who choose to get married. Of course, that would run the risk of making civil registered partnerships look awfully like marriage, but so what?

        • Ms McFarlane:
          The Law Society of Scotland largely agrees with what Professor Norrie has said. To avoid discrimination between same-sex and opposite-sex couples, procedures should mirror what the Marriage (Scotland) Act 1977 states about the registration process. It is interesting that certain aspects of that act have been omitted—to do with consent or to do with criminal sanctions if someone enters a partnership when they are already married or registered with another partner. The proposals do not mention criminal sanctions. Another interesting difference is that married couples have to give one week's notice but people with same-sex registrations have to give two weeks' notice. We agree that the procedures must mirror effectively those in the Marriage (Scotland) Act 1977.

          I am afraid that I missed the final part of your question.

        • Mrs Milne:
          It was about the fact that partnerships will be a matter of public record.

        • Ms McFarlane:
          We agree that they should be a matter of public record.

        • Mrs Milne:
          Do you agree with the dissolution proposals?

        • Ms McFarlane:
          We argue that they should mirror the grounds for divorce in the Divorce (Scotland) Act 1976. We are interested in why the grounds of adultery and desertion are not included in the proposals when it is, I presume, possible for somebody who is involved in a same-sex relationship to go off with a person of the opposite sex, which would be adulterous. Because of the connotations of the word "adultery", the concept of unfaithfulness, or something along those lines, should be used.

          We agree with the procedures in the proposals, except the ones that have been snuck in from English law, such as having to wait six weeks or a year before applying for a divorce.

        • Morag Driscoll:
          The forbidden degrees of relationship are largely inapplicable because they are based on relations between people of the opposite sex. That aspect will have to be rethought. The other interesting omission is that of the simplified-procedure divorce that is available to opposite-sex couples who have no children or who do not require a financial settlement. Under the proposals, couples would have to go through the full court procedure, including the initial writ, rather than be able to take advantage of a simpler, cheaper system.

        • Mrs Milne:
          Finally, does the section on Scottish family law contain enough detail to allow you to understand the potential impact on inheritance and parental responsibility?

        • Morag Driscoll:
          I am surprised that you are asking lawyers whether there is enough detail. The problem is that any bill would be intimately intertwined with many different areas of Scots law. To ensure that such a bill were compatible with Scots law, the drafting would have to be considered thoroughly and carefully.

        • Mrs Milne:
          I thought that you might say that.

        • Morag Driscoll:
          We would have to consider the bill carefully to ensure that it did not inadvertently miss something out, that it was not incompatible with Scots law and that it did not import measures that are compatible with English law.

        • Professor Norrie:
          I hope that I can answer that question and the previous one. The Scottish Executive, or whoever drafts the bill, should take marriage as the model, but that does not mean that every single rule of marriage must be imported to apply to civil partnerships, because some of those rules would be entirely inappropriate. For example, as a civil partnership would be a secular institution, it is likely to be entirely inappropriate to allow ministers of a church to act as celebrants and to take on the role of the district registrar. That is permitted in marriage because marriage is secular and religious, even under the law. It would probably be inappropriate to have such a rule for an entirely secular institution.

          The omission of adultery as a ground for divorce is entirely appropriate for same-sex couples, because, while they have the same needs for dignity and respect as opposite-sex couples have, they are different. The major difference is that opposite-sex couples can have children, whereas same-sex couples cannot do so between themselves. The clue to the nature of adultery is in the word—we should consider what is being adulterated. The reason why adultery was traditionally a ground for divorce is that it adulterates the male blood line. The issue is about succession, which is eminently understandable in opposite-sex relationships. We do not want the parties to have opposite-sex sex with other parties because that might adulterate the male blood line. However, that point is entirely irrelevant for same-sex couples, who, however much they have sex with each other, will not procreate in that way.

          There might be a host of other rules and regulations that are eminently understandable in the context of opposite-sex couples, but which are not applicable to same-sex couples. The forbidden degrees are probably one such rule. We must consider carefully all the rules that relate to sex, bearing it in mind that a different sort of sex with different consequences is involved.

        • The Convener:
          As there are no more questions, I thank the witnesses.

          The committee will now move into private session to discuss an approach paper and a draft report that has not yet been signed off.

        • Meeting continued in private until 12:25.