The Scottish Cabinet met today to discuss the long awaited Equal Marriage proposals and then promptly cancelled the 4pm press conference that had been scheduled to discuss the results of that discussion. Instead we got this press release, which seems to say a few things:
- There won’t be a referendum on it.
- There will still be a decision on the legislation announced by the end of the month.
- There’s a subcommittee chaired by Nicola Sturgeon discussing “particular details”.
- There will be a free vote on the resulting Bill.
The referendum was fairly obviously never going to happen and rightly so – in a democracy basic rights must be guaranteed by the government and not subjected to the will of the majority or they aren’t basic rights.
The delay in the actual announcement is a bit depressing given that this decision has been delayed repeatedly already and, for many people, it’s a bit of a slam-dunk in principle.
The subcommittee is interesting because while the principle that consenting adults should be able to be married by who they want to whom they want, It’s A Bit More Complicated than that given the rich variety of human sexuality, gender identity and relationship forms. It’s probably a bit too much to hope we’ll allow mixed gender civil partnerships and non-monogamous relationships, but there’s non-trivial issues around changes in gender identity or status (such as those outlined by Peatworrier here) which should be considered closely and compassionately. Perhaps something best done by Parliament in detail but let’s hope the sub-committee is considering how to frame the principles in such a way as to get the desired outcome.
The final part of this is the free vote. Now, I might have missed something but I’d expected this to be whipped. Fortunately there’s a majority in Parliament for it so it should get through anyway. It does rather suggest that the Cabinet is not as one on this to such an extent that some would feel compelled to resign over it otherwise. Which isn’t a huge surprise given some of their prior statements.
So, disappointed as I am that there wasn’t an announcement today I’m not disheartened. It looks to me like a hash job of the PR and a hefty dose of fudge to deal with internal dynamics. If a clear timetable for the Bill isn’t announced by the end of the month though I’m going to be much more concerned.
(Apologies if I’ve messed up with the language etc. here, please let me know and I’ll fix it)
#1 by Benjamin on July 17, 2012 - 6:47 pm
I remember seeing the results of a survey somewhere recently, I think it was in the Herald, saying that 69 MSPs were in support of same-sex marriage. If that’s the case, then it seems like a fair number of SNP and Labour MSPs intend to vote against it. Is it not likely that the main reason for the Cabinet allowing a free vote is to avoid upsetting a potentially substantial tranche of their own party?
#2 by Steven Dehn on July 18, 2012 - 11:25 am
69 MSPs have declared their support. A lot have yet to declare their position, very few have come out against.
#3 by Indy on July 17, 2012 - 6:49 pm
The news says they need to take legal advice. It was always going to be tricky to come up with guarantees that would protect the religious denominations that are opposed to it.
Not that I think there is anything they could do or say that would pacify the Catholic Church frankly but they still need to be able to provide robust reassurance that religious bodies could not be forced to provide same sex marriages. And they don’t want to end up in court obviously.
I would never have expected it to be anything other than a free vote. Catholic MSPs from all parties are coming under a lot of pressure on this one. It doesn’t really matter cos there is a majority there.
I completely support same sex marriage but I think the reaction to today has been a bit OTT. The SG is trying to be as consensual about this as possible and to do as little damage to social cohesion and the relations between faith groups and wider society as possible. Someobody has to think about that – heaven knows the Church is not thinking about that.
#4 by Ben Achie on July 17, 2012 - 7:04 pm
Surely it was always going to be a free vote, at least within the SNP?
#5 by Douglas McLellan on July 17, 2012 - 10:17 pm
My biggest annoyance about today is that the SNP could not even say “this is something we are going to do but we need to take time to sort out the subtleties”. This simple lack of conviction is concerning.
I don’t like the idea of an independent Scotland where the principle of equality is stymied by the concerns of churches and party donors.
#6 by Indy on July 18, 2012 - 8:17 am
I really think that is nonsense you know.
If the Scottish Government does not legislate for same sex marriage then it will be fair enough to attack them for it and I will join in.
But all this faux outrage about the fact that they have to tie down some legal issues before making an announcement is just ridiculous.
It is more important that they get this right than that they make an announcement at a time that suits the media or various campaigning organisations.
They are the ones who are going to deliver this and they need to get it all tied down before they announce any details. If that takes a couple of extra weeks, so what? They know the detail of what needs to be legally watertight. I don’t. You don’t. Yet somehow you reckon you know what was discussed and what the issues are? How can you possibly know that?
They will also incidentally need to tie the opposition parties down on this because there are people out there playing it both ways especially in the west of Scotland.
#7 by Nikostratos on July 17, 2012 - 10:53 pm
The snp want to keep some votes and Catholics etc outweigh the Gay community.
a clear timetable for the Bill will not be announced at the end of the month kicked into the long grass as every Government does.
The snp will govern differently they said seems like a continuation of normal ?? politics to me and many others
#8 by Alec on July 18, 2012 - 9:32 am
Whilst I concur with your sentiments, the reference to “community” maps back to the causes of this stramash. Namely, by dividing the voting public into discrete ethnic/religious boxes always is guaranteed to come unstuck when one starts demanding their ‘rights’ which a bunch of political numpties have told them they have.
Furthermore, there is no single “gay community”. Sexual minorities appear in every ethnic and religious and social group in fairly equal proportions.
~alec
#9 by Indy on July 18, 2012 - 11:08 am
But that is rubbish. Everyone knows that support for same sex marriage outweights opposition. And if you want to do it on the basis of numbers if you calculate the number of people with a strong religious commitment and then calculate the number of LGBT people plus their families, plus their friends then it is clear which is the largest group.
So that is not the issue.
I think the issue that the SG is trying to resolve is actually – don’t laugh – a point of principle.
Because it would be easy for them to solve this by just bringing in civil marriage for same sex partners. That seems to be the road that the UK Govt will go down and it’s an obvious solution. That way same sex couples can get married but there is not the same issue around religious weddings. Cos there wouldn’t be any.
But that is not the road the SG is going down. Instead they are clearly going to bring in legislation that allows religious as well as civil ceremonies. We can only assume they are doing that on a point of principle because although we know that there are some religious denominations that support same sex marriage how many Unitarians, Liberal Jews, Quakers etc are there compared to Catholics, Muslims and non-liberal Protestants? If it was just a numbers game they would not be touching allowing religious same sex marriages with a ten foot barge pole.
As it is they now have to come up with legislation which simultaneously allows for religious denominations to conduct same sex marriages while protecting the rights of religous denominations who do not want to conduct same sex marriages. And do that in the context of overarching legislation concerning religious freedom, freedom of speech and protection of equality which they do not control and cannot amend.
#10 by Alec on July 18, 2012 - 11:42 am
Nothing I said disputes that. What I did say that certain vocal ‘community’ leaders/gatekeepers oppose to it. When your Party has spent the past few years cultivating such identity politics – not that it’s the only offender by a long chalk – it really has zero credibility to object when one such group demands more.
This is precisely the sort of cant the opponents are peddling. Currently, individual Churches are quite able to restrict offering marriage ceremonies to individuals who don’t meet their self-defined standards.
Legislate for same-sex marriages, and those Churches which approve will be able to do so. Those which don’t will be able to decline to do so (although I’m unsure why any couple would want to marry in a Church which clearly disapproves of them), and if they object to other Churches doing so, they can suck it up.
~alec
#11 by Indy on July 18, 2012 - 1:31 pm
Actually Alec you agreed and indeed quoted Nikostratos saying “snp want to keep some votes and Catholics etc outweigh the Gay community.”
That is actually rubbish.
As for your certainties that there is no way any law could be subject to legal challenge – you don’t know that. The RC Church has QC’s opinion. Fair enough anyone can get a QC’s opinion on anything probably if they have the money but it is common sense to try and stay out of the courts. Especially since the Information Commissioner has decided apparently that the SG cannot take legal advice in private.
#12 by Aidan on July 18, 2012 - 1:34 pm
The information commissioner has done no such thing. The decision wasn’t to release the legal advice, it was whether the SG held such advice or not. The ability of government to take legal advice in private is of course crucial and the information commissioner’s decision doesn’t challenge that.
#13 by Indy on July 18, 2012 - 1:50 pm
It’s the next step though isn’t it? Why could there be a compelling reason to know whether a government has taken legal advice if the nature of that legal advice is kept secret?
#14 by Aidan on July 18, 2012 - 2:07 pm
While getting the specific legal advice on the EU is certainly Catherine Stihler’s main goal, that’s neither what the Information Commissioner has ruled on nor is it an attack on the general principle that the the SG can take legal advice in private.
It is, however, a topic for a separate post I should get around to writing…
#15 by Alec on July 18, 2012 - 2:08 pm
And why should it not?
The SNP already have attempted to set the precedent by attempting to force the publication of information pertaining to the 2003 Iraq War (on expenses, of course), and do like to present themselves as an antidote to old politics.
And the question of sallying forth into the EU is a keystone of their policies, so what are they scared of? The longer they dig in their heels the more it looks like either they’re scared of revealing the advice, or they’ve settled quite easily into the attitude that they don’t necessarily have to explain themselves to the public.
Or both.
~alec
#16 by Alec on July 18, 2012 - 1:56 pm
Which is not mutually contradictory with your:
which I was responding to.
In my experience, when you’re on shaky ground, you play dumb; presumably in the hope that your opponent gives-up in frustration.
This tactic generally takes one of two forms. Just now it’s repeating the same non-point [that legislation is needed to allow non-approving Churches to abjure from conducting same-sex marriages] over and over again, coupled with weary pleas that we ascribe the best possible of motives to the SNP [that that great populist and plain speaker, Salmond has to do some behind-closed-doors planning in order to say plainly “same-sex marriage _will_ be introduced”].
The problem is, Indy, that this might work for ultra-loyalists, but it doesn’t work for those of us who have not submitted ourselves to a cult of personality.
~alec
#17 by Indy on July 18, 2012 - 2:07 pm
You are entitled to your opinion but I wish I could believe that you and the rest of the doubters would be prepared, when the announcement is made, to say OK I got this wrong, they have done what they said they were going to do, they have not kicked this into the long grass like the UK Govt has.
But I won’t be holding my breath.
#18 by Alec on July 18, 2012 - 2:15 pm
Translation… “ooooo, eeeeeer, why is the ground not staying still? It’s not supposed to be like this. We’re not supposed to be challenged.”
I am just a commenter on an ill-read political blog. Salmond is the First Minister. The ball is in his court. And, for a man renowned for his rhetorical skills, he’s being highly coy.
Some might say that he is not, in fact, a political demi-god.
So what? The SNP claims to represent a credible and attractive alternative to the UK Government. What it does or does not do should be irrelevant to how the SNP behaves or is perceived.
~alec
#19 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 10:09 am
The big question is, as Douglas says, why they couldn’t announce their intention to legislate. If this subcommittee is simply sorting out the details then they could have done. Ergo it isn’t – it’s deciding the ‘if’ as well as the ‘how’.
And the idea that another 2 weeks is necessary to come up with details is bizarre and unconvincing.
It seems certain that the cabinet couldn’t agree on legislating, and Salmond didn’t have the guts to tell whoever was opposed to do one. Two weeks won’t change that.
#20 by Aidan on July 18, 2012 - 10:40 am
Yeah surely the details would be more appropriate to consider in committee and the bit of rowing back on #newsnicht about legislative competence was worrying in a “get the retaliation in first” kind of way.
#21 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 11:23 am
I’d be intrigued to see the traffic between O’Brien and the Scottish Government during these coming two weeks. Is a compromise being hatched to try to avoid the all out war that the RCs have threatened? Could that mean banning religious ceremonies outright and saying no to mixed sex CPs?
Parliamentary committees are no use if the compromise you’re agreeing is about calling off a holy war.
#22 by Indy on July 18, 2012 - 11:34 am
If that was the case why would they be taking legal advice on religious freedom/freedom of speech issues?
If they were going down the civil only road they would have announced that yesterday.
#23 by Indy on July 18, 2012 - 11:23 am
Come on, you guys would be the first to lambast us if we got any of this wrong. And you know equalities/freedom of speech and all that is reserved. That’s not debatable. The Scottish Parliament cannot amend those laws – it’s not a ploy to say that is not within their legislative competence, it is a fact.
#24 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 11:35 am
You are conflating “to legislate on equal marriage we need powers that aren’t devolved” with “to appease religious critics it would help to use powers that aren’t devolved”.
The Scottish Parliament has full devolved power over marriage law. They can legislate for equal marriage without worrying about equality law.
#25 by Indy on July 18, 2012 - 2:03 pm
But it depends how it is done doesn’t it?
If it is civil only then yes – and I suspect that is Labour’s preference.
But if it also allows for religious ceremonies then it is more complex. Because they probably need to allow for opt outs not only of whole denominations but of individual celebrants. They could get round that perhaps as the consultation suggests by having a list of individual religious celebrants registered with the Registrar General, rather than simply changing the law to allow all celebrants to conduct same sex marriages. Or maybe not. I don’t know and neither do you really. You are not a lawyer – even if you were, as I said you can find a lawyer to make any case you want really and any counter-case.
But if the SG were to end up in court on this I am sure that you would be leading the charge calling them incompetent and all the rest of it.
#26 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 2:16 pm
If the SG legislates for equal marriage it will almost certainly find itself in court anyway, whatever appeasement of religious bigots it has indulged in beforehand.
It’s really not complex. It’s a very simple issue. We simply need to make marriage available to same sex couples. Just as churches are not forced today to marry divorced couples if it goes against their superstitions, so they will not be forced to marry same sex couples if it goes against their superstitions.
Maybe churches will campaign for special discriminatory rights to be enshrined in law. Let them do so. The existence or otherwise of such rights has no bearing on the Scottish Government’s ability to legislate now for equal marriage. There is no block to this, only a fear of what vocal opponents might say, and a desire to appease them.
#27 by Indy on July 18, 2012 - 2:32 pm
It really is not that simple.
The standard reply sent out by Labour MSPs when this was first mooted – authored by Jackie Baillie I believed – said:
“It is important to note however that the Scottish Government’s proposal for same sex marriage currently under consideration refers to civil marriage only and not religious marriage. I strongly believe it is for religious organisations to decide on the criteria by which they carry out marriage and any other ceremonies according to their own faith and beliefs.”
I believe that is not the case however. Maybe it should be – maybe the SG should restrict the right of same sex couples to get married in civil ceremonies only. Let’s face it how many religious same sex couples want to get married anyway. But I don’t think the SG is going to do that. They are going to extend equal marriage to both civil and religious weddings, which are legally the same but which – in the case of religious denominations – are also (whether you like it or not) tangentially affected by legislation on guaranteeing religious freedom and all that sort of stuff.
#28 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 2:42 pm
You seem to have misunderstood something here. If we are to give religious organisations the freedom to choose whether or not to carry out same sex marriages then religious same sex marriage must be legalised.
That wording looks like it was written for the UK government’s consultation, which was for civil marriage only. I certainly didn’t receive that from any Labour MSPs I wrote to on the subject of Scots marriage law.
Equal marriage legislation would only not infringe religious freedom if it specifically denied the right to religious marriage.
#29 by Indy on July 18, 2012 - 11:17 am
See my response to Alec.
The point of detail they are resolving is how to allow religious denominations to conduct same sex marriages while protecting the rights of religious denominations not to conduct same sex marriages.
If I am absolutely honest there is a part of me that thinks they should have just gone down the civil marriage road and I would be astonished if there weren’t people in the Cabinet saying the same. They are undeniably going to make it more difficult by allowing religious marriage and it makes it much more likely that it will end up in court. But then I also think that religious freedom is important so I suppose it has to be this way.
But it is not a numbers game and it’s also not about whether or not to legislate for same sex marriage in principle.
#30 by Colin on July 18, 2012 - 11:22 am
The 2010 Equalities Act will need to be amended by the UK Govt before the Scot Gov can legislate for this. I think a lot of people are overlooking that. The Herald editorial picks up on this today, worth a read.
#31 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 11:36 am
You too are conflating “to legislate on equal marriage we need powers that aren’t devolved” with “to appease religious critics it would help to use powers that aren’t devolved”. These are fundamentally different. The Scottish Parliament can legislate for equal marriage today.
#32 by Emma Ritch on July 18, 2012 - 11:58 am
Does Schedule 23 not already provide for this?
#33 by Colin Dunn on July 18, 2012 - 1:56 pm
“It seems certain that the cabinet couldn’t agree on legislating, and Salmond didn’t have the guts to tell whoever was opposed to do one. Two weeks won’t change that.”
That seems very disingenuous to me. The SNP were criticised by many, Labour included, for forcing through what they regarded as an ill thought out piece of sectarian legislation. Yet now you want them to rush this piece legislation through in a hurry. Consistency, please.
#34 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 2:26 pm
Eh?
The sectarian legislation was going to be rushed through as emergency law without a consultation process and with very limited committee time.
This proposed legislation was announced last year and has already had a longer than normal consultation period, and the government has delaying a decision on whether to proceed to actual legislation 5 times so far. If they do proceed no-one is arguing for anything less than the full and proper committee scrutiny and due process.
You cannot equate these two scenarios. This isn’t about rushing equal marriage legislation, it’s about getting a much-delayed process going again!
#35 by Indy on July 18, 2012 - 3:02 pm
Yes because it had 80,000 responses!!
Honestly it is completely unreasonable to suggest that this would not have resulted in somed delay or do you think they should just have binned them or diverted other people into working on this. Equal marriage is an important issue, I agree on that, but it is not the only thing the Scottish Government has on their plate! Other stuff is going on in the world too,
#36 by Aidan on July 18, 2012 - 9:13 pm
The legislative agenda is less than overflowing…
#37 by Indy on July 18, 2012 - 9:18 pm
http://www.scotland.gov.uk/Consultations/Current
#38 by Duncan Hothersall (@dhothersall) on July 18, 2012 - 2:51 pm
Oops. Extra “not” in final para. Should be:
Equal marriage legislation would only infringe religious freedom if it specifically denied the right to religious marriage.
Type your comment here
#39 by Indy on July 18, 2012 - 2:56 pm
Type your comment here
No I am not misunderstanding it. That was the specific issue that the SG consultation looked at. And seemed to be suggesting that was why individual celebrants
might have to be registered to conduct same sex marriages.
You seem very blase about it ending up in court whereas I think it is just common sense that they should try to avoid that as far as possible.
Anyway we are going round in circle here so let’s just wait and see what is announced.
#40 by Observer on July 18, 2012 - 8:24 pm
It seems the Scottish Govt would need to get the UK Govt to amend the Equalities Act as the European Court has ruled in the past that if same sex marriage is legal any body which can marry a couple has to comply. I don’t think that the Tories will be very much bothered about finding Parliamentary time for that, why should they, they intend to make same sex marriage available for civil weddings only.
It seems completely nuts to me, as there is no evidence that any gay rights group has any intention of trying to force churches into anything. They have all specifically said that they wouldn’t. So this impasse is the result of a threat from the churches over an issue that may never arise, which could take years to come to judgement, & nobody actually knows what the judgement would be.
#41 by Indy on July 18, 2012 - 9:12 pm
Alternatively just compromise on civil services only. No religious ceremonies.
Because although all the campaigning organisations say that they don’t want to push religious denominations to accept same sex marriage – and I don’t question that – they can’t actually control individuals, can they? Anybody can go out and get a lawyer if they have the money for it. Indeed I may be slipping into mad paranoid territory here but I wouldn’t actually put it past some of the anti-same sex marriage people to pull that kind of stunt.
#42 by Alec on July 19, 2012 - 8:48 am
Yes, because when traveling on a bus, the back seat is just as good an allocation whilst the preferred passengers get the front seat.
Yes you are. D’you have a single shard of evidence for such a ‘homosexualist’ plot (e.g. similar petitions from divorcees to get married in disapproving Churches), or are you floating outlandish scenarios to make you look reasonable in your slavish support for the Party line?
~alec
#43 by Observer on July 18, 2012 - 10:27 pm
That may be the only option open to them.
That would be a pity, but I don’t think that the SG can risk assess for everything. They need to decide now what way they are going to jump, because people are now openly speculating that they are being influenced by the Church. I don’t believe that, but it is time to cut the Gordian knot one way or the other.
#44 by Indy on July 19, 2012 - 8:17 am
I think they have to risk assess ending up in court because of the number of times they have ended up in court. And it is not just individuals with an axe to grind. If the UK Govt felt that any act of the Scottish Parliament went further than devolved competences UK law officers can refer it directly to the Supreme Court. Passing legislation which includes some kind of guarantee of protection of religious freedom – as everybody agrees is necessary in this case, the pro-gay marriage campaigners as well as the anti-gay marriage campaigners – could come into this category.
It’s important to note that in that BBC email, when the civil servants says “It is likely that our ministers would not wish to commence any Scottish Act introducing same-sex marriage until the amendment to the Equality Act is in place.” that does not mean they will not start legislating until there is an amendment in place. Commencement is actually the final stage of the bill process – so it would be a parallell process.
#45 by Alec on July 19, 2012 - 8:36 am
Your ability to blather is credible, Indy. At the nub of it, all you have to say is a plea that everyone give your Party the benefit of the doubt – because it’s such a decent Party – and that anyone questioning it is probably doing so for less than virtuous reasons, and are just out to get it by hook or by crook.
No.
This is what the responsibilities of power look like. You so badly craved the power, so much it must have hurt. Now, however, you’re not dealing with the responsibility too well.
~alec