The draft Civil Partnership (Opposite-sex Couples) Regulations 2019 were approved by the House of Commons on Thursday 31 October, and by the House of Lords on Tuesday 5 November. This post reviews the debates and the implications on the other components on the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 for which secondary legislation is required.
House of Commons
On 31 October 2019, Victoria Atkins, Parliamentary Under-Secretary of State for the Home Department moved “That the draft Civil Partnership (Opposite-sex Couples) Regulations 2019, which were laid before this House on 21 October, be approved”. This was the first of the provisions of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 (“the Act”) which require secondary legislation and are subject to the affirmative resolution procedure. In her statement to the House, the Minister presented a summary of the draft Regulations and gave an update on these and other provisions in response to questions by Tim Loughton (East Worthing and Shoreham, Con), whose Private Member’s Bill resulted in the Act.
Civil Partnership (Opposite-sex Couples) Regulations 2019
In the Commons, the Minister said:
“The date on which the regulations come into force is set out in regulation 1(2) and they will be very much in force on 2 December, so that the 28 days’ notice can be in force for civil partnerships on 31 December, with the exception … in respect of emergency applications.
“On overseas civil partnerships, overseas relationships can be recognised as civil partnerships in England and Wales if they meet the conditions set out in the Act. Opposite-sex couples who formed a civil partnership on the Isle of Man will be recognised as civil partners in England and Wales on the day these regulations come into force—in other words, from 2 December. [The] regulations include a list of specified overseas relationships that will be treated as civil partnerships here, but other overseas relationships can also be recognised as civil partnerships if they meet general conditions.
“… the General Register Office will issue clear guidance to local registration services about the commencement of the new scheme. [The minister did not have a date to hand, but undertook to write to Tim Loughton with the information].
Other regulations under the Act
In his questions to the Minister relating to the draft Regulation, Tim Loughton said:
“Finally, let me say that this is just but one part of my Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019. There are three other parts to it. I raised the issue of mothers’ names on marriage certificates with the Second Church Estates Commissioner, which is yet to be resolved by formal regulations.
“The second issue is about the Secretary of State giving the go-ahead for coroners to have the power to investigate stillbirths.
“The last issue is the review of sub-24-week stillbirths. They are all important parts of my multifaceted Act that still require further regulations. I appreciate that today we are dealing purely with the civil partnerships part of it, but it would be helpful if the Minister gave some indication that work is ongoing on those other important parts of this Act”
In response to these questions, the Minister said [emphasis added]:
“On the other matters in the Bill, I am delighted to confirm that the General Register Office is currently working on the secondary legislation, IT systems and administrative processes required to implement the marriage schedule system. Officials are working with the Church of England and the Church in Wales on the details of the proposals, and a timescale will be announced in due course. I am keen that we help to get mums’ names on to marriage certificates as soon as possible”.
House of Lords
On Tuesday 5 November, Baroness Williams of Trafford moved “That the draft Regulations laid before the House on 22 October be approved”. Special attention was drawn to the instrument by the Joint Committee on Statutory Instruments, 3rd Report, and by the Secondary Legislation Scrutiny Committee, 4th Report. In describing the draft Regulation, she focused on the issue of the conversion of marriages to civil partnerships and vice versa, on which we posted in July. Further cation on this is “pending the outcome of [the] consultation on conversion rights, which closed on 20 August”. Regulation 37 now restricts the conversion option to same sex couples wishing to convert their civil partnerships to marriage.
This was drawn to the attention of Members of the House by the JCSI and the Secondary Legislation Scrutiny Committee and was also the subject of an amendment expressing regret, tabled by Lord Collins of Highbury but withdrawn at the end of the debate. This was “somewhat at odds with the comments of Dawn Butler, who welcomed the regulations and did not mention the JCSI’s report during the debate in the other place”. Baroness Williams said:
“We have given very careful consideration to the committee’s concerns about the provision but, on this occasion, we do not agree with them. Our approach on conversion maintains a difference between opposite-sex and same-sex couples in terms of their ability to convert their civil partnerships into marriage. Importantly, these two groups are not in a directly comparable position. The right to convert a civil partnership into marriage was introduced to enable same-sex couples to marry without having to dissolve their civil partnership, as marriage historically had been denied to them. That same consideration does not apply to opposite-sex civil partners, who have always been able to marry.“
Other issues identified were: the concerns of Lord Lexden (Con) on “siblings who live together in mutually supportive and financially independent relationships”; that of individuals who were gravely ill, raised by Lord Scriven; and a number of other issues that had been discussed in the Commons.
Lord Collins withdrew his amendment and the Motion was agreed to.
Opposite sex civil partnerships – timing and scrutiny
In our updated post, Opposite sex civil partnerships, we identified the time constraints for each of the components of this multifaceted Act. Most pressing of these was the “sunset clause” in section 2(2) which requires the Secretary of State to exercise the power in subsection (1) so that regulations extending eligibility to opposite-sex couples are in force no later than 31st December 2019. In the event, however, the deadline was met and despite the impending dissolution of parliament, the SI was approved by both Houses.
However the “just-in-time” aspect of the agreement to the draft regulations should not be overlooked. This was the last piece of debatable business in both Houses before Parliament was dissolved prior to the General Election on 12 December 2019; had the agreement not been reached, there would have been only a narrow window of opportunity before the “sunset clause” (ref.1) came into effect on 31 December; it has been announced that the new Parliament will first meet on 17 December.
During “ping-pong” sessions on the Civil Partnerships, Marriages and Deaths (Registration etc) Bill, Tim Loughton noted that the sunset clause was added on Report and “government were not as prepared as they might have been for this change in the law”. This was reflected in the observation of Lord Collins of Highbury (Lab) who stated “[t]he date of 31 December was in the amendment to the Private Member’s Bill introduced by the noble Baroness, Lady Hodgson, and was backed by the Government. The Government knew what they were doing”.
A corollary to the deadline of 31 December is the issue of the scrutiny of the draft legislation. This was raised by Lord Collins of Highbury, who said:
“Whether I like it or not, or whether anyone else does, the two committees responsible for scrutinising secondary legislation are saying that these regulations are at fault … The Minister mentioned the fact that there was no objection from the other place. My biggest concern about this is that we have these committees as part of our job of scrutiny. These reports were produced so late in the day. I was sitting in the office on Friday trying to read them and to submit an amendment to ensure that we have a proper debate. My first concern is the delay in considering the reports and in the opportunity to see the Government’s response to the committees’ concerns”.
Opposite sex civil partnerships – conversion
Although there was tacit approval in the Commons, this was one of the main items for debate in the Lords. Baroness Williams said:
“In addition to analysing the responses to the consultation, we must ensure that the operational processes are in place for conversions to take place. It is a priority. We will make further regulations early in 2020, to be debated in this House and the other place.”
Opposite sex civil partnerships – siblings
The matter was raised in both Houses, and in response to a question from Sir Edward Leigh (Gainsborough) (Con), Tim Loughton said:
“This legislation is about couples and relationships and recognition and protections that are not available. The matters to which he refers, which relate particularly to siblings who are living together and are entirely dependent on each other, are largely financial ones, and that should be addressed in financial legislation. I would absolutely support him if that were to happen in the future”.
This was reiterated by Baroness Williams, who said:
“…we have not made any changes to the existing rules which prevent siblings or other family members forming a civil partnership. Parliament has been clear throughout the passage of the primary legislation that there was no desire to do so”.
The expected timing of this and other provisions under the Act is less certain. In relation to the certification of marriage, Section 1(6) of the Act, the Minister’s response that “the timescale will be announced in due course” alluded to the many unknowns before this is addressed.
In Church Commissioners’ Questions on 31 October, in response to Tim Loughton’s question regarding marriage certificates, Dame Caroline Spelman, Second Church Estates Commissioner said [emphasis added]:
“My hon. Friend was the Member of Parliament who landed the prize of securing a change in the law of 1837 that did not allow mothers the same right as fathers in terms of marriage registration, but progress is slow on the accompanying regulation. My hon. Friend may wish to join me in putting some pressure on the future Government to complete that process, because there are practical steps that can be taken in the short term. The Church has offered to allow existing registration books to be used, and where it says “father”, the name of the mother can be added in brackets. If it is to take a while to take marriage registration into the digital age, many mums who are hoping to have that new right can achieve it in the short term by means of a simple practical solution.”
[Update: On 14 January 2020, the House of Commons Library published the research briefing on Mothers’ details on marriage certificates which concluded: “The detail of the new marriage registration scheme will be set out in regulations which have not yet been published. The timing of the regulations is not yet known. The regulations will be subject to the affirmative resolution procedure, meaning that they require the approval of both Houses of Parliament to become law.”]
Coronial investigation of stillbirths and review of sub-24 week stillbirths
Victoria Atkins did not answer the part of Tim Loughton’s question relating to the Secretary of State giving the go-ahead for coroners to have the power to investigate stillbirths, section 4, and the review of sub-24-week stillbirths, section 3. However, in the House of Lords on 5 November, Baroness Williams of Trafford, Minister of State, Home Office noted that on 26 March 2019, the Ministry of Justice had launched a consultation on the coronial investigations of stillbirths. The on-line consultation concluded in 18 June 2019, and although feedback was expected by 10 September 2019, the responses are still being considered.
Baroness Williams said: “We received a good response from a wide range of people with an interest in this issue and officials are considering and analysing the evidence. The Government will publish the findings as soon as possible”.
Russell Sandberg has issued posts on both debates: Religion and Opposite Sex Civil Partnerships: An Update looks at the ‘Religious Protection’ provided in the Regulations. He comments “What was noticeable in the brief Hansard debate approving the Regulations was the sense that providing opposite sex civil partnership would solve the problem that cohabiting couples lack legal rights”.
With regard to the comments of Dawn Butler (Labour) referring to the 3 million cohabiting couples and welcoming the development on this basis, he disagrees, and states that “… extending civil partnerships is unlikely to provide a solution to this issue. Research has shown that there are many reasons why cohabiting couples are not getting married (or at least not originally) and many of these reasons would also apply to civil partnerships”. Russell further disagrees with the suggestion of Baroness Deech that the provision of opposite sex civil partnerships meant that the issue of cohabitation rights should be taken off the table.
He further notes: “there [was] a definite feeling in the [Lords] debate that the Regulations were approved in spite of the fact that they did not have time to scrutinise them properly. As … explained [in the above post], the feeling here [is] of an issue unresolved compares to the ‘job done’ tone in the Commons”.
On 30 September 2019 the Scottish Government introduced the Civil Partnership (Scotland) Bill. The 2018 consultation paper used the term ‘opposite sex’ (as in, ‘opposite sex’ civil partnership), but the Scottish Government said that, following responses noting that this is neither inclusive of non-binary people nor reflective of the terminology used in marriage legislation, the term ‘mixed sex’ had instead been used throughout their report.
. “Sunset clauses” are permissible under S14A Interpretation Act 1978. The Parliament web site defines these as “[a] provision in a Bill that gives it an expiry date once it is passed into law. Sunset clauses are included in legislation when it is felt that Parliament should have the chance to decide on its merits again after a fixed period”. Such provisions are “typically used as a form of concession when debating controversial proposals”, for example the 5-year review in S18 scrap Metal Dealers Act 2013 which reportedly included to “buy off” backbench opposition.