The draft Civil Partnership (Opposite-sex Couples) Regulations 2019 (“the Regulations”) was the first item of the secondary legislation within the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 (“the Act”) to achieve the necessary approval of both Houses under the affirmative resolution procedure. It was also the last item of debated business before parliament was dissolved on 6 November. Through section 2(2) of the Act the regulations were subject to a “sunset clause” which required them to be in force by the end of December, and as such, only limited time was available for its scrutiny and approval; this left a number of items of unfinished business, and these are summarized below.
Civil Partnership (Opposite-sex Couples) Regulations 2019
The draft regulations were the last piece of debatable business in both Houses before Parliament was dissolved. Had agreement not been reached, there would have been only a narrow window of opportunity after parliament returned on 17 December before the “sunset clause” came into effect at the end of the year. As a consequence, there was limited time for scrutiny of the measure, a consequence noted by Lord Collins of Highbury (ref.1) with reference to the two reports before the House (ref.2); there were also a number of items of “unfinished business” awaiting analysis of consultations that had been completed earlier in the year.
Conversions of marriage and civil partnerships
On 10 July 2019 the government published a consultation on its plans for extending civil partnerships to opposite-sex couples by the end of this year. These plans included the possibility of extending the rights for conversion from civil partnership to marriage and vice verse. The Consultation document set out the government position on conversion rights in the short-term, pending the outcome of the consultation , noting that “any longer-term changes on conversion are unlikely to come into force until later in 2020”; until then its intention was to “maintain the current position” ; it further stated: “This approach avoids making short-term changes that might have to be undone when the longer-term position on conversion rights is decided, following the consultation.”
The debates in parliament referred to reports by the Joint Committee on Statutory Instruments, 3rd Report and by the Secondary Legislation Scrutiny Committee, 4th Report (Ref.2); both were critical of the government approach, and the former concluded:
“[1.16]. The Committee therefore reports regulation 37 of the draft Regulations on the ground that there appears to be doubt as to whether it would be intra vires“.
Nevertheless, winding up the debate in the Lords, Baroness Williams of Trafford said:
“Extending conversion rights on an interim basis to allow opposite-sex couples to convert their civil partnership to marriage now, while we are considering responses to the consultation, would risk creating uncertainty and confusion over future rights. We do not wish to introduce a new, potentially short-term conversion right that might be changed later in 2020 when we determine our long-term position on conversion …
… Once we have made civil partnerships available to opposite-sex couples, our priority will be to resolve the longer-term position on conversion rights for all civil partners and to bring forward further regulations as soon as possible next year”.
Not all of their Lordships were convinced with the approach or the delivery of the promised changes. Furthermore, in view of the formulation of the sunset clause, a further extension of civil partnerships would require primary legislation. However, within the Statutory Instrument which was agreed, regulation 37. restricts the conversion of marriage to civil partnerships.
Conversions of marriage and civil partnerships – Scotland and Northern Ireland
In the Lords debate, Baroness Williams of Trafford said:
“In 25 June, the Scottish Government announced that they would introduce legislation extending civil partnerships to opposite-sex couples, and a Bill was introduced in the Scottish Parliament on 1 October. The [Civil Partnership (Scotland) Bill] provides for opposite-sex civil partnerships registered in England and Wales to be recognised in Scotland as marriages, initially, and as civil partnerships when those relationships are available in Scotland.
In Northern Ireland, Section 8 of the Northern Ireland (Executive Formation etc) Act 2019 places a duty on the Secretary of State to make regulations so that couples in Northern Ireland are eligible to form same-sex marriages and opposite-sex civil partnerships no later than 13 January 2020. The duty came into force on 22 October, after the Northern Ireland Executive did not reform, and my officials are working closely with the Northern Ireland Office towards the deadline”.
Subsequently, The Guardian has reported on an unfortunate glitch in the new law providing for same sex marriage in Northern Ireland. Section 9 Marriage (Same Sex Couples) Act 2013 provides that the parties to an England and Wales civil partnership may convert their civil partnership into a marriage under a procedure established by regulations made by the Secretary of State. However, no parallel procedure has yet been put in place for Northern Ireland. As the law stands, the 1,200 couples in Northern Ireland already in civil partnerships will not be able to convert them into marriage in the New Year – and some of them are preparing for a legal challenge to the anomaly.
Marriage certification – schedule scheme
Section 1 of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 provides for the introduction of a “schedule system” for the registration of marriages in England and Wales, similar to that already in place for civil partnerships in England; it also provides for the inclusion of a mother’s on the marriage certificate, section 1(2)(c). The Act was granted Royal Assent on 26 March 2019, and updates on the implementation of this subsection were given by the Church’s Faculty Office in June and early August. However, the lack of a timetable and the mis-reporting of some aspects of the provision gave rise to concerns within the clergy, reported in the Church Times.
With regard to the expected timetable, the Faculty Office’s update of 5 August succinctly identified the cause of these delays, viz
“As the necessary Regulations have not yet been laid before Parliament, the implementation timescale and the timelines for lodging a completed Marriage Document/Schedule with the Registry Office set out in this article remain liable to revision.”
This remains the case, although in September the Church issued the undertaking:
“Updates will be posted on www.churchofengland.org as well as on www.churchsupporthub.org and the website that gives couples planning to marry in church all the information they need www.yourchurchwedding.org will also be updated when the timescale is agreed”.
An important aspect to the functioning of section 1 of the Act is the need to ensure that the marriage document, completed after the marriage ceremony, is lodged at the Register Office. Details of the criteria regarding the associated time frame will only be known when the legislation is laid before parliament; our post Enforcing the registration of marriages – lessons from Scotland attempts to clarify some of the misunderstandings or misinterpretations of the intentions of the provisions which have been circulating in the media following the Faculty Office August update.
Marriage certification – changes to certificates
This was an issue which the Second Church Estates Commissioner, Dame Caroline Spelman, had promoted in her own Private Member’s Bill during the 2017-19 session, in parallel with another Bill with the Bishop of St Albans; neither of these progressed beyond their first reading.
During Church Commissioners’ Questions on 31 October, after seeking the assistance of Tim Loughton in “putting some pressure on the future Government to complete that process [on the slow progress on the accompanying regulation”], Dame Caroline suggested an interim solution that the Church might adopt the inclusion of the mother’s name on the marriage certificate.
Coronial investigation of stillbirths
The Ministry of Justice consultation on the coronial investigations of stillbirths ran from 26 March 2019 to 18 June 2019, and although the consultation document indicated that a response would be published by 10 September 2019, Baroness Williams informed the Lords on 5 November: “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”.
Review of pre-24 week stillbirths
This was not addressed in either House. However, during the Common’s consideration of Baby Loss Awareness Week on 8 October 2019, Tim Loughton observed “[the Act] gives the Secretary of State the power to have coroners investigate stillbirths and the other sets up a review by the Secretary of State to look into the registration of pre-24-week stillbirths. That review body has not met for over a year, so can the Minister update us on when the legislation will be laid so that, for the first time, coroners will have the power and ability to investigate stillbirths where they see fit to do so? In response the Minister made reference to the PMRT report but gave no information on new legislation.
Opposite sex civil partnerships – siblings
Lord Lexden gave an example of the difficulties in relation to inheritance tax faced by two unmarried sisters, not dissimilar to the case in the European Court of Human Rights of the unmarried Burden sisters which we covered here. This issue 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”.
With regard to financial issues, there are provisions within the Act which address these, i.e. section 2(4)(c); although not subject to the sunset clause, it is limited to opposite sex couples. The above view on the non-inclusion in the present Regulations was reiterated in the Lords by Baroness Williams, who said (ref.3):
“…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”.
In view of the government’s reluctance to pursue legislation and the time limit placed upon the extension of civil partnerships under section 2(2) (ref. 4) no further progress on this issue is possible.
Having narrowly avoided the enforcement of the “sunset clause”, there remain a further two time constraints within the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, although both of these are triggered by other provisions within the Act which are not themselves subject to time limitations. Whilst this poses questions regarding the necessity and motivation for such a clause, these are beyond the scope of this blog.
Nevertheless, there remain a number of provisions within the Act which are yet to be delivered by the next government after MPs return on 17 December. Whether the various “promissory notes” left by the outgoing administration hold good is uncertain, but we suspect that we will find out “in the fullness of time”.
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.”
. HL Hansard 5 November 2019 Vol 800 Col 1170.
. HL Hansard 5 November 2019 Vol 800 Col 1181.