On 3 October, the Ministry of Justice published the consultation on the Marriage (Same Sex Couples) Act 2013 Shared Buildings Regulations, which closes in less than a month on 1 November 2013. In addition to the Consultation, the MoJ has published Draft Regulations (as Annex A) and Revised provisions of the Marriage Act 1949 for Registration of Shared Buildings for marriages of same sex couples (as Annex B). The Consultation is in the form of an on-line survey, although the 9 questions and associated descriptive material are contained in the consultation document at pages 12 to 20.
Building upon the Parliamentary debates on the registration of shared buildings on the Bill that became the Marriage (Same Sex Couples) Act 2013, (“the 2013 Act”), and the meetings between government and a number of religious organisations , the consultation seeks to address the need to ensure that:
– the draft regulations do not in anyway undermine the overriding principle established by the 2013 Act that no religious organisation should be compelled to conduct marriages of same sex couples;
– whilst all of the religious organisations sharing a building must consent to the building they share being registered for marriages of same sex couples to take place, this consent does not of itself require any of the organisations to opt in to conduct such marriages unless it wishes to do so; and
– where possible, religious organisations are able to come to such reasonable agreements amongst themselves about the registration of the building they share.
With regard to the third point,
“the Government is conscious that it will be important to ensure that a sharing religious organisation that proposes to conduct marriages of same sex couples is not thwarted from doing so by a veto”.
Views are invited on the draft regulations with particular reference to the specific questions set out in the consultation paper, including:
– what should count as a “qualifying sharing church” in the case of informal sharing arrangements (“qualifying sharing church” is a new concept that is not contained in the 2013 Act);
– the procedure for how an informally shared building should be registered and how its registration should be cancelled under the 2013 Act;
– what should happen when the identity of any one of the sharing religious organisations changes;
– what should happen when a further religious organisation begins to share a building that may or may not have already been registered for marriages of same sex couples; and
– what should happen when a building ceases to be shared.
It should be noted that:
“[a]lthough the legislation and this consultation talk of e.g. ‘sharing of church buildings’ and ‘sharing churches’ etc, the existing arrangements and these proposals and draft regulations will apply to Christian denominations and to all other religious organisations, which have sharing arrangements.”
A response to the consultation is due to be published by 31 January 2014 on the Ministry of Justice web site, http://www.justice.gov.uk.
Apart from sections 15 and 16 of the Marriage (Same Sex Couples) Act 2013, [which require the Secretary of State to arrange for reviews of: the operation and future of the Civil Partnership Act 2004 in England and Wales; and survivor benefits under occupational pension schemes in relation to married same-sex couples], no other provisions of the Act have been brought in force as required by section 21(3). Consequently, the proposed Regulations which will become the Marriage of Same Sex Couples (Registration of Shared Buildings) Regulations 2014 are an important component in bringing the 2013 Act into force.
Formal arrangements for the sharing of churches are governed by the Sharing of Church Buildings Act 1969, for which the 2013 Act inserts into the Marriage Act 1949 new basic procedures for the registration, and cancellation of the registration, of religious buildings that are shared by more than one religious organisation for solemnizing marriages of same sex couples.
Whilst the 2013 Act does not make provision for the registration of shared buildings that are not subject to formal sharing arrangements, under Schedule 1 it empowers the Secretary of State to make regulations for the registration of such buildings, i.e. the draft regulations within the consultation. In addition to setting out the Government’s proposals for the procedure for the registration of shared buildings that are not subject to formal arrangements, the draft regulations make some proposals for additional provisions that are not covered by the 2013 Act for shared buildings that are the subject of formal arrangements.
The Consultation stresses that the government
“wants to ensure more generally that the regulations strike the right balance between protecting the religious freedom of religious organisations who do not wish to solemnize marriages of same sex couples and enabling those religious organisations who do wish to register places of worship to solemnize marriages of same sex couples to do so.”
Whilst those advocating the rights of same-sex couples will wish to secure maximum benefit from the regulations, religious organization may fear that this constitutes a “salami slicing” exercise to further reduce their religious freedom. We would therefore advise all organizations likely to be affected to read the consultation papers in detail, submit a response, and follow this up with appropriate representation where necessary.
 House of Commons committee debate on amendments 55 and 43 on 5 March (Hansard columns 378-391) and House of Lords committee debate on amendment 6 on 17 June (Hansard columns 96-100)