Opposite sex civil partnerships – updated

On 15 March 2019, the Commons considered and agreed to the Lords Amendments to Tim Loughton’s private Member’s bill, the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill, (“the Bill”), which was then presented for Royal Assent. Details of the Bill were reviewed in our post, Opposite sex civil partnerships, but at the time of writing, 26 March, neither a consolidated version of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, (“the Act”) nor revised Explanatory Notes was available.

In the March 2019 round-up, 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”. In view of the renewed interest in the application of the Act triggered by concerns relating to the new system for the registration of marriage, herehere and elsewhere, we have updated our initial post now that both Act and Explanatory Notes are available.

Background

Judicial consideration

The issue of opposite sex civil partnerships (or their absence) had been the subject of litigation, culminating on 27 June 2018 with the unanimous judgment in R (Steinfeld and Keidan) v Secretary of State for International Development [2018] 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) [62]. Lord Kerr rejected the proposition that the Government had any margin of appreciation in the matter [29] and held that the discrimination against opposite sex couples introduced by the Marriage (Same Sex Couples) Act 2013 – because opposite sex couples were restricted to marriage, while same sex couples had a choice of marriage or civil partnership – did not have a legitimate aim. We noted the judgment here.

Progress through Parliament

The Bill was introduced on 19 July 2017 by Tim Loughton (Conservative), who came fifth in the ballot for Commons Private Members’ Bills for the 2017-19 Parliamentary session. Dates for all stages of the passage of the Bill, including links to the debates, are available here.

The earlier version of this post reviewed 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 as it was brought from the House of Lords on 7 March 2019 (190314) had been made available in the Explanatory Notes to the Bill. Since all six Lords Amendments were approved during ping-pong, at the time these Notes provided a good overview of the content of the Act.

Explanatory Notes

As with the Notes relating to the Bill, supra, the Explanatory Notes to the Act were prepared by the Home Office with the consent of Tim Loughton. These explain what each part of the Act will mean in practice; provide background information on the development of policy; and provide additional information on how the Act affects existing legislation in this area. However, they are not intended to be a comprehensive description of the Act and should be read alongside the Act itself.

The Explanatory Notes give the following overview of the Act:

“The purpose of the Act 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 eligibility to form a 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.

Times constraints

Four aspects of the Act are subject to time constraints:

  • The Act came into force at the end of the period of two months beginning with the day on which it was passed, (Section 6(3));
  • 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 Section 1 are first so made, (Section 1(6));
  • Under section 4(6) the power to make regulations will cease to be exercisable after the period of five years beginning with the day on which the report is published under section 4(3)).
  • Section 2(2) 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, a.k.a. “the sunset clause”, which was discussed during the ping-pong debate in the Commons on 15 March 2019.

Regulations which impact primary legislation are subject to the Affirmative procedure.

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.

Comment

At the time of writing this updated post, no regulations had been laid for this, or for any other part of the Act. However, as we noted in our post, Registration of marriage from end-2019 – Faculty Office, it was reported by the Faculty Office that the General Register Office (GRO) was under pressure from ministers to bring these changes into effect as soon as possible, and when this was first published, the proposal was that this should be by 2 December 2019. However, the Faculty Office subsequently revised its report first to indicate a desired implementation “by the end of the year”, and then to add a footnote stating that this and other issues were yet to be decided.

There was also an understandable degree of disquiet regarding a mistaken suggestion that couples who do not register their completed marriage document within seven days of the wedding will be subject to a significant fine. This was considered in our post Enforcing the registration of marriages – lessons from Scotland. Again, regulations are yet to be laid on this aspect.

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.

Comment

On 26 March, the Ministry of Justice launched its consultation on the coronial investigations of stillbirth.

Legislation in Scotland

The Scottish Government’s consultation on the future of civil partnership in Scotland closed on 21 December 2018. This set 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.

A total 481 responses was received, and following careful consideration of the points made by consultees, the Scottish Government decided to remove the ECHR incompatibility from Scots law by making civil partnership available to all couples in Scotland. As announced in its Programme for Government for 2019-20, it will do this by introducing a Civil Partnership Bill in the Scottish Parliament in autumn 2019; this will ensure that same sex and mixed sex couples have the same choices of civil partnership or marriage.

David Pocklington and Frank Cranmer

Cite as: David Pocklington and Frank Cranmer, “Opposite sex civil partnerships” in Law & Religion UK, 4 September 2019, https://wp.me/p2e0q6-dye.

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