On 15 March, the Commons considered and agreed to the Lords Amendments to Tim Loughton’s Private Member’s Bill, which now goes for Royal Assent. We noted that “at some point … the Government will bring forward proposals for a digital registration system and will be introducing Regulations for opposite sex civil partnerships”. Many (other) commentators were quick to suggest that the changes relating to civil partnerships, marriage certificates, &c had already been incorporated within the law. However, an examination of the Bill documents reveals that it is comprised of enabling provisions, and additional secondary legislation is necessary before any of its provisions pass into law.
This post has been updated now that a consolidated version of the Act and Explanatory Notes on the Act have become available; the revised version is here, although the following notes remain relevant to the passage of the Bill.
The Bill was a Private Member’s Bill introduced by Tim Loughton (Conservative), who came fifth in the ballot for Commons Private Members’ Bills for the 2017-19 Parliamentary session. At the time of writing, a consolidated version of the Act had not been produced. However, the content of the Act may be evinced from the Bill as amended in Committee (190102), and the Lords Amendments (190307), all of which were agreed by the Commons on 15 March. An overview of the Bill is available in the Explanatory Notes as it was brought from the House of Lords on 7 March 2019 (190314). Since all six Lords Amendments were approved during ping-pong, these Notes provide a good overview of the content of the Act.
These Explanatory Notes to the Bill were prepared by the Home Office with the consent of Tim Loughton and: explain what each part of the Bill will mean in practice; provide background information on the development of policy; and provide additional information on how the Bill will affect existing legislation in this area. However, they are not intended to be a comprehensive description of the Bill and should be read alongside the Bill. The Explanatory Notes give the following overview of the Bill:
“The purpose of the Bill is fourfold. Firstly, it confers powers on the Secretary of State to enable them to reform the way in which marriages are registered in England and Wales, moving from a paper-based system to registration in an electronic register. This will facilitate change to the register entry, both now and in the future, including a line for the inclusion of the mother in the marriage entry and create a more secure system for the maintenance of marriage records.
Secondly, it requires the Secretary of State to make regulations to extend civil partnership to opposite-sex couples by no later than 31st December 2019, and empowers the Secretary of State to make other provision in view of extension of eligibility.
Thirdly, it requires the Secretary of State to prepare a report on whether the law ought to be changed to require or permit the registration of pregnancy losses which cannot be registered as still-births under the Births and Deaths Registration Act 1953.
Finally, it requires the Secretary of State to prepare a report on whether the law ought to be changed to enable or require coroners to investigate stillbirths, and confers powers to make those changes”.
At the same time, the issue of opposite sex civil partnerships (or their absence) was the subject of litigation, culminating in the unanimous judgment in R (Steinfeld and Keidan) v Secretary of State for International Development  UKSC 32, in which the Court made a declaration that sections 1 and 3 of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership) were incompatible with Article 14 ECHR (discrimination) taken in conjunction with Article 8 (respect for private and family life) . We noted the judgment here.
Four aspects of the Bill are subject to time constraints:
- The Act comes into force at the end of the period of two months beginning with the day on which it is passed, (Clause 6);
- No regulations on marriage registration may be made by the Secretary of State after a period of three years beginning with the day on which regulations under Clause 1 are first so made, (Clause 1(6));
- No regulations on Coroners’ investigations into still-births may be made after the period of five years beginning with the day on which the report is published under subsection (3), (Clause 4).
- Amendments to the Civil Partnership Act 2004 through regulations which the Secretary of State may make, must be in force no later than 31 December 2019 (New Clause, after Clause 1), a.k.a. “the sunset clause”.
Regulations which impact primary legislation are subject to the Affirmative procedure.
The “sunset clause”
During the ping-pong debate in the Commons on 15 March, Tim Loughton commented on the sunset clause that was added on Report, and the need to implement this legislation within six months of Royal Assent [emphasis added]:
“That was actually quite a tall order and, for all sorts of reasons, the Government were not as prepared as they might have been for this change in the law, which the Prime Minister finally gave her complete assent [in the Evening Standard] to in October. I was therefore content to let the six months slip, but the principle that it needs to happen by the end of the year is very important.
… a number of consultation exercises still need to take place to make sure that we get this absolutely right … this legislation does not give rise to the specific changes in the law; it enables the Secretary of State to bring in the changes that will enable opposite-sex couples to enter into a civil partnership. An awful lot of detail still needs to go with that, although I am glad to say that a lot of work has now been done by civil servants.”
Winding up the debate, Ben Wallace (Minister for Security and Economic Crime) said:
“The Government are very supportive of clause 2 and the policy intentions behind it. I would like to answer the concern voiced earlier about the difference between “may” and “must”. Clause 1 confers a power to make regulation, but clause 2(2) imposes an obligation to exercise that power by 31 December 2019. I hope that sets at rest those concerns arising from this long and often held debate about “may” and “must”…
“It is also important that we take the views of the public and stakeholders on many of these issues to ensure that we exercise the regulation-making powers to create a new civil partnership regime that works for opposite-sex couples, that is fair and that is human rights compliant. Previous experience suggests that we are likely to receive thousands of responses to the consultation, and we will need to allow time to consider these and for the Government to respond.
That said, the Government are committed to changing the eligibility requirements for civil partnerships by the end of the year. This is very much an end date, rather than a target, and we are working to implement the new regime at the earliest opportunity. Our aim is that by the end of this year opposite-sex couples will be able to register and form civil partnerships”.
Enactment of provisions within other clauses
Registration of marriages and civil partnerships: This is dependent upon regulations which the Secretary of State may make to amend the Marriage Act 1949 (“the 1949 Act”) to provide for a system whereby details relating to marriages in England and Wales are recorded in documents used as part of the procedure for marriage, and entered into and held in a central register which is accessible in electronic form. Under these regulations, the Registrar General may be empowered to make regulations under section 74(1) of the 1949 Act: prescribing the duties of authorised persons under the Act; and prescribing anything which by the Act is required to be prescribed.
Report on registration of pregnancy loss: The Secretary of State must make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to require or permit the registration of pregnancy losses which cannot be registered as still-births under the Births and Deaths Registration Act 1953. The Secretary of State must also publish the report so produced. Pregnancy loss is defined as occurring “when a person’s pregnancy ends and, after being parted from the person, the foetus does not breathe or show any other sign of life”; and “in the case of a multiple pregnancy, [this definition] applies as if there were a separate pregnancy in respect of each foetus“.
Coroners’ investigations into stillbirths The Secretary of State must make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to enable or require coroners to investigate stillbirths. The Secretary of State must also publish the report so produced. The term “stillbirths” is to be read in accordance with section 41 Births and Deaths Registration Act 1953, viz. “‘stillborn child’ means a child which has issued forth from its mother after the twenty-fourth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any other signs of life, and the expression “stillbirth” shall be construed accordingly.“
After the report has been published, the Lord Chancellor may by regulations amend Part 1 Coroners and Justice Act 2009 to: enable or require coroners to conduct investigations into stillbirths (whether by treating stillbirths as deaths or otherwise); specify the circumstances in which those investigations are to take place (including by limiting the duty or power to investigate to certain descriptions of stillbirth); provide for the purposes of those investigations; and make provision equivalent or similar to provision in that Part relating to investigations into deaths.
However, the regulations may not create any offence, or confer any power to make provision of a legislative character, other than by applying (with necessary modifications), or making equivalent or similar provision to, the provision already contained in Part 1 of the Coroners and Justice Act 2009.
We will not be drawn into undertaking an analysis of the mandatory “must” and the permissive “may” wording in the agreed Bill and in its earlier incarnations, interesting though this might be. Ultimately, the enactment of the provisions of the Act will be dependent upon the Government’s willingness to progress the secondary legislation. This was clearly demonstrated in relation to the 2013 amendment to the Equality Act 2010, Section 9(5)(a) Equality Act, on which in 2018 the government stated that its preference was to reply upon case law: see our post Outlawing caste discrimination – the Government says “No”.
Finally, at the time of writing a conclusion was still awaited on the Scottish Government’s consultation on the future of civil partnership in Scotland, which closed on 21 December 2018. The consultation sets out two options: the closure of civil partnership to new relationships from a specific date in the future or making civil partnership available to opposite sex couples. We await the outcome with interest.
[Update: Royal Assent was granted on 26 March and the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 published. Also on 26 March, the Ministry of Justice launched its consultation on the coronial investigations of stillbirths. An Explanatory Note of the Act is now available, and an updated version of this post is in preparation]
David Pocklington and Frank Cranmer
Cite as: David Pocklington and Frank Cranmer, “Opposite sex civil partnerships” in Law & Religion UK, 26 March 2019, https://www.lawandreligionuk.com/2019/03/26/opposite-sex-civil-partnerships/