The Scottish Parliament’s Equal Opportunities Committee has this morning given its consent to the Westminster Marriage (Same Sex Couples) Bill legislating for Scotland in some relatively minor areas of law that are devolved to the Scottish Parliament.
Whenever a Westminster bill proposes to legislate for a devolved matter in Scotland, the Scottish Parliament must first give its consent. The Marriage (Same Sex Couples) Bill introduces same-sex marriage in England and Wales, and also allows trans people who married in England & Wales or abroad to get gender recognition without dissolving their marriage.
Both marriage and gender recognition are devolved to the Scottish Parliament, and so Scotland will be getting its own equal marriage bill, the Marriage and Civil Partnership (Scotland) Bill, to be introduced in the Scottish Parliament in the last week of June.
The Scottish bill and the England and Wales bill are not dependent on one another: either could be passed without the other. But it is convenient that they are progressing at the same time, and the Scottish and UK governments have been working together to make sure that the bills dovetail together well.
As a result, the Westminster bill does make some changes to the law in Scotland. It makes the following changes to devolved law (that is, law that is controlled by the Scottish Parliament), because it is convenient to do these in the England and Wales bill rather than the Scottish bill:
- Because the England & Wales bill may come into effect first, same-sex marriages in England and Wales will be treated in Scotland as civil partnerships until the Scottish bill comes into effect (they will then be treated as marriages).
- Married trans people resident in Scotland who married in England or Wales or in a foreign country will be able to get gender recognition under the England & Wales bill. (People who married in Scotland will get gender recognition under the Scottish bill).
- Correction of erroneous or fraudulent gender recognition certificates.
- Issues around validity in Scots law of same-sex marriages conducted at UK consulates or military bases in other countries.
Those are the aspects of the bill that the Scottish Parliament Equal Opportunities Committee consented to this morning – the whole Parliament will now be asked to consent.
The Westminster bill also deals with some reserved matters for Scotland (that is, matters that the Scottish Parliament has no power over). These include:
- How pensions will be dealt with for same-sex marriages, including Scottish same-sex marriages (with the exception of Scottish public sector pensions, which are devolved)
- Some aspects of same-sex marriages conducted at UK consulates or military bases in other countries.
Does all this mean that the Scottish bill could not go forward in the (hopefully unlikely) event of the England & Wales bill being blocked by the House of Lords? No – the Scottish bill can deal with all devolved matters, and reserved matters for Scotland can be dealt with by a consequential statutory instrument at Westminster, called a “section 104 order”. A section 104 order will be needed in any case to deal with reserved consequences of the Scottish bill that are not in the England & Wales bill, including an Equality Act amendment to ensure that Scottish religious celebrants can decline to conduct same-sex marriages.
But hopefully both bills will be passed by their relevant parliaments!