Dating back to at least 1532 the Faculty of Advocates is the independent body of lawyers given the task of preparing future lawyers for admission to the Scottish Bar. The Inns of Court perform roughly the same function for England and Wales. The Faculty is a douce organisation with a reputation of being an earnest body of serious lawyers not given to exaggeration or hyperbole. Therefore, when it issued a report in March 2013 eviscerating proposed legislation coming before the Scottish Parliament we would have hoped the government would take note. Unfortunately Alex Salmond’s government takes little notice of anyone other than pollsters and the media.
The SNP government in Scotland in its sad eagerness to be seen as a serious player with the big boys in the playground pursues every trendy cause it can. This usually involves passing laws to ban things, well that’s how the elites work. This time though they want to widen the borders of what is acceptable. Last week they published their proposed legislation to legalise same sex marriage. Without actually saying so out loud the Faculty clearly think the proposed legislation is ill thought out and impracticable, and the government has done nothing to allay their fears.
The Faculty report drew attention to the chaos likely to result from the proposed legislation. In a Bill which proposes to alter the legal definition of marriage in Scotland the SNP never actually define marriage, its nature or purpose. Thus the proposed legislation also deals with civil partnerships without clarifying any essential difference between civil partnership and marriage. When this legislation goes through we in Scotland will have at least four forms of legal status: single, cohabiting, civil partnership and marriage. To further confuse the issue there is even talk amongst SNP politicians of eventually extending civil partnership to heterosexual couples.
More seriously the Faculty pointed to possible grave dangers for all who are opposed to homosexual marriage. The conflict between the rights of homosexuals to be married and the right of freedom of thought and conscience has not been resolved.
Alex Neil, Health Minister in the SNP government, claims that the Marriage and Civil Partnership Bill contains ‘unequivocal protection’ for those who refuse to participate in same sex ceremonies. Matters, however, are not quite so clear cut. Janys Scott QC, convener of the Faculty’s Family Law Reform Group, says that Neil could not provide a ‘cast iron guarantee’ of protection for those opposed to same sex marriage.
The proposals give initial protection to religious bodies to decide their own policy with regard to same sex marriage. That this protection will last is open to serious doubt. The European Convention on Human Rights Article 13 gives everyone the right to ‘effective remedy’ if their rights have been violated, no matter by whom. Does anyone seriously believe that a homosexual activist will not seek out a non-compliant church in order to take it to the European Court for denial of his rights to be married in church?
Those in other occupations do not have even the fig leaf of supposed protection. Under the Bill local and other authorities will have an obligation to promote same sex marriage. Amongst others government employees such as chaplains in prisons and hospitals, foster parents and teachers will all be subject to the requirement to promote same sex marriage. The Faculty pointed out that the European Convention on Human Rights in Article 9 protects the right to freedom of thought, conscience and religion. This potential conflict is not addressed in the Bill, but we can have a good idea of what the European Court of Human Rights will decide in any future cases brought before it.
As well as individuals this Bill will also impact groups operating in the public sphere. Will a local authority be able to use church premises for functions or occasions such as polling stations at local and general elections? Will bodies which oppose this legislation be allowed to retain their charitable status? The Bill does not address these issues.
In restrained language the Faculty judgde that the protection given to parents and teachers is ‘less robust than implied’. Whilst under the Education (Scotland) Act 1980 Section 9 parents can withdraw their children from religious instruction and a parent’s attitude towards same sex marriage may be shaped by their religious convictions, teaching on same sex marriage is not viewed as religious instruction. Thus there is no protection for Christian, Jewish, Muslim, or non-believing parents who do not wish their children to be taught that same sex marriage is a positive good for society. Parents have no statutory right to withdraw their children from sex education, no matter what form it may take.
The report from the Faculty also discussed the confusion about to be created by the proposed legislation in a number of areas such as our understanding of divorce, adultery, bigamy, cohabitation and transgender marriage. These issues remain to be worked out, meanwhile the Bill steams ahead.
The SNP government have taken what the Faculty describes as ‘a superficial similarity with heterosexual marriages’ and without working out the possible pitfalls have determined to push through this legislation with the support of the other parties no matter what. For our political class, even in parliaments as small as that of Scotland, avoiding criticism by the media is more important than governing well.