Marriage and Civil Partnership (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 20th November 2013.

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Photo of John Mason John Mason Scottish National Party

No. I am sorry but I have to get on.

From a personal perspective, I have a lot of sympathy for that argument. However, that raises the question of how much my faith as a personal position should decide how I vote on an issue such as this. Coming from a Baptist perspective, I believe strongly in the separation of church and state. While state has responsibility for restricting some actions and behaviour, it cannot ultimately impose values on people.

For me, therefore, the crucial arguments are around the protections for those who disagree with same-sex marriage, whether they are denominations, celebrants, or public sector or other workers. We have assurances from the Scottish and Westminster Governments that all is safe and full protection is in place. However, there remain a number of concerns.

First, the Equality Act 2010 does not say that all protected characteristics are equal; nor does it say how conflicts between different characteristics are to be decided. As a result, the courts have to decide which rights are most important. The perception among many religious people is that religion and belief often come at the bottom of the pile.

Secondly, the European Court of Human Rights can trump the UK and Scottish Governments. We heard at committee that the ECHR will not get involved if there is no such thing as same-sex marriage but, once same-sex marriage is permitted, will it switch to making it compulsory for churches and others to take part?

If churches are considered to be providing a public service, the courts could act against them for providing that service only to some and not to others. That is effectively what has happened with adoption agencies. At the time that adoption by same-sex couples was permitted, well-meaning assurances were given that no agency would be forced to take part. However, we now have the situation where the Office of the Scottish Charity Regulator states that an agency cannot be a charity if it refuses to take part. Will permission turn to compulsion in a few years’ time? That is the concern of many of us.

We looked at that issue in committee and received different legal views about what might happen in future. Members might have seen in the Equality Network’s briefing that Karon Monaghan QC said that it is “inconceivable” that the European Court would overturn the protections. However, that is only one half of the story.

The other half is what Aidan O'Neill QC said, which was:

“if marriage is extended to same-sex couples, it will become a human rights requirement that there be equality of treatment and regard. In a sense, that is what is important about the Marriage and Civil Partnership (Scotland) Bill—it shifts the position in that regard.”

He went on to say:

“Therefore, I think that the Equality Act 2010 leaves open the possibility of conflict”.—[Official Report, Equal Opportunities Committee, 19 September 2013; c 1500-01.]

Not for the first time, we get a variety of legal opinion from a variety of legal experts. There is doubt whether the protections in place are robust; there are certainly no guarantees.

In a similarly controversial area, namely abortion, there is specific provision for national health service workers to be able to choose whether to take part. That seems to me to be a reasonable compromise. The NHS as a whole provides the service, but individuals are given reasonable accommodation. If the bill is to go forward, I would like to see similar increased protection for the individual conscience and belief of public sector and other workers.

I do not seek to impose Christian values on what is an increasingly secular society; nor do I seek to restrict the rights of anyone in society. I seek equality for each person in society, but I remain unconvinced by the assurances given and therefore I will vote against the bill.