Déjà I Do: Some Initial Thoughts on the Law Commission’s ‘Celebrating Marriage’ Report

 In a guest post, Russell Sandberg looks at the Law Commission’s final proposals on reforming weddings law in England and Wales.

Introduction

Amidst an unprecedented heatwave and the turbulence of the Conservative Party leadership battle, the publication of the Law Commission’s final Report on its wedding law project has been somewhat overshadowed. Those who have seen coverage of the Report may well have experienced a sense of déjà vu given that the schema presented is very similar to that presented in its 2020 Consultation Paper. This is not a bad thing: the system proposed in that Paper was sound and would make significant improvements over the current outdated and discriminatory law on marriage.

The final Report, entitled Celebrating Marriage: A New Weddings Law, is an exhaustive and dense document that is almost 500 pages in length and which will merit detailed study. This will include the proposed focus and reform of the position on preliminaries, the detailed proposals on validity and offences and the extent to which the revised reforms would mitigate the issue of unregistered religious marriages/religious only marriage. The following is based on a webinar presented to the Association of Independent Celebrants on 22nd July and so reflects on two aspects of particular concern to that audience: the proposed move to regulating officiants and a short reflection on the likelihood of reform. Given that the main recommendations are familiar and have already been summarised in an earlier post, the following will highlight some initial observations from reading the Report, focusing on these two dimensions.

Officiants

Central to the Law Commission’s proposals is the creation of the new role of officiant. However, as the Report notes, the scheme actually ‘envisages little change to how registration officers and Anglican clergy are authorised’ (para 1.10). The focus is on the appointment and regulation of nominated officiants from religions and beliefs and independent celebrants. The Commission has interpreted their terms of reference as precluding them from deciding whether weddings by belief organisations and independent celebrants should be legally recognised while ensuring that any new scheme they develop could include those two groups if the Government so decides that the groups should be recognised. The Report treats celebrants from belief organisations and independent celebrants differently. It distinguishes between civil marriages (which could include independent celebrants in addition to weddings at registry offices, and approved premises) and belief marriages (which could include belief organisations alongside the Anglican Churches and other religions). This distinction means that there are different and sometimes more onerous requirements upon independent celebrants than (say) humanist celebrants under the Law Commission’s schema. Independent celebrants would be ‘civil officials and under the same obligations to officiate at same-sex weddings as registration officers’, for example (para 4.287). The type of wedding (civil or belief) would be ‘determined based on the identity of the officiant’ (para 2.5). Officiants would need to choose which ‘box’ they fit in.

The basic distinction between the civil weddings conducted by independent celebrants and the belief weddings conducted by religious and belief organisations would be that while religious and belief organisations would be responsible for nominating and monitoring officiants to the General Register Office (GRO), independent celebrants would need to apply individually and be subject to GRO regulation directly. Further, ‘civil ceremonies will be subject to specific rules about the content of the ceremony’ (para 2.5). Independent celebrants but not humanist celebrants would ‘additionally need to ensure that the couple express their consent using the required words of contract or words to similar effect’ and would be required to ensure that the ‘civil ceremony is identifiable as such’ (para 2.37). By contrast, in ‘a belief ceremony – that is, a ceremony officiated by a member of the Anglican clergy or a nominated officiant – there will be no requirement as to how the couple expresses consent, as long as they do so clearly’ (para 2.59). It is difficult to see the justification for these slightly different requirements. If some religious ‘wedding ceremonies involve the expression of consent by a series of rituals’ then it is difficult to see why this should not suffice for ceremonies conducted by independent celebrants.

There would be no option for independent celebrants to be nominated by a professional association, as I argued for (para 4.270), on the grounds that there is no jurisdiction in which this happens (para 4.264). They would therefore be regulated directly by the GRO. This is the reason why they would be limited to officiating at civil weddings: ‘This limitation would be consistent with them being appointed and regulated by the General Register Office. It would also ensure a clear distinction between independent officiants and belief officiants, as well as between civil and belief weddings’ (para 4.265). The Report states that:

‘In our view, there are some fundamental differences between religious and non-religious belief organisations on the one hand and celebrancy organisations on the other. The former reflects specific beliefs, while the latter does not. The fact that many celebrancy organisations are well placed to provide training does not seem to be sufficient reason in itself to allow such organisations to nominate independent officiants. We also note that celebrancy organisations welcomed our proposal that authorisation should be by means of individual application to the General Register Office and were not seeking the right to nominate officiants’ (para 4.279).

I disagree. A bespoke wedding conducted by an independent celebrant could be a manifestation of belief, protected under Article 9 ECHR. If the existence of training is not sufficient for an organisation to be a nomination body, then it would be instructive to spell out what is and how all religion or belief organisations meet that requirement.  The point about celebrancy organisations is difficult to respond to until the responses are published but raises the question of what about the views of individual celebrants. It raises issues of insurance and would question what the role of celebrancy organisations would be under the new scheme. It may be questioned, however, why the ‘clear distinction between independent officiants and belief officiants, as well as between civil and belief weddings’ matters: surely it could be achieved by treating independent celebrants as a separate category, as was the case in the Consultation Paper.

The Law Commission is adamant that there would be no muddying of the water between humanist and independent celebrants: ‘any officiant should only be permitted to be authorised as one category of officiant at any one time, and that a nominated officiant should only be permitted to be nominated by one organisation at any one time’ (para 1.10). Officiants ‘will remain authorised unless or until they are de-authorised’ (para 2.50). They would be nominated personally rather than by office (para 4.199).

The Legal Obligations of Officiants

Officiants would have ‘specific legal obligations in relation to the wedding’ (para 2.4). As under the Consultation Paper, they may but do not have to be the person conducting the ceremony. They would need to be physically present at the ceremony (para 4.24).

In particular, they would have three legal duties to discharge:

(1) to ensure that the parties freely express consent to marry each other;

(2) to ensure that the other requirements of the ceremony are met, including that the wedding is attended by two witnesses, and

(3) to ensure that the schedule or marriage document is signed (para 2.37). Officiants would not be ‘required to explain the legal consequences of marriage to couples’ (para 4.30).

Moreover, ‘all officiants will have a responsibility to uphold the dignity and significance of marriage in their role as officiants and in officiating at weddings.’ (para 2.38). This is to be taken into account ‘when agreeing to the form of ceremony’ but will only extend to ‘responsibility for the parts of the ceremony at which they are present’. The GRO will provide guidance on this. The Report further states that:

‘In terms of dignity, there are a number of matters that officiants may need to take into account, including ensuring that the couple is able to focus on expressing their consent to be married and on the significance of that act. Whether a location has personal meaning to a couple may also be relevant to assessing its dignity and may prevent couples from choosing a location for frivolous reasons (for example, to impress on social media) or to try to “push the boundaries”. But it will also be important for any conception of dignity to be culturally sensitive, bearing in mind that culture plays a large role in what any given individual considers to be dignified or meaningful’ (para 2.76)

This appears to be quite a tightrope for officiants to walk, and while religion or belief officiants will be able to rely on their organisations for guidance, independent celebrants will not. Nominating organisations would ‘be able to set their own rules as to where weddings conducted according to their beliefs take place’(para 2.70). There is a role here that could be played by celebrancy organisations here in terms of advice and providing insurance for the decisions made by the independent celebrant.

The use of the word ‘significance’ is a change from the Consultation Paper that spoke of ‘solemnity’ and is intended to allay concerns about the subjectivity of these requirements. The Report states that ‘We think that “significance” captures the importance of marriage without implying that a wedding should not be a joyful event, and have phrased our recommendation accordingly’ (para 4.40). While the change in language is to be welcomed, the requirement remains subjective and is likely to be applied inconsistently. This could create a significant role for the GRO. The Law Commission concludes that: ‘We think it should be for the General Register Office to provide guidance to officiants on how to exercise their responsibility to uphold the dignity and significance of marriage, rather than defining these terms in legislation’ (para 4.33).

The officiant would need to agree on the choice of location and would ‘have responsibility for considering the safety of those attending’ (para 2.70). The Report clarifies that ‘the officiant’s responsibility is a contextual one: they must consider whether the location is safe for those attending that particular wedding, not whether it is safe for weddings in general’ (para 2.75). Further: ‘The officiant’s responsibility for considering safety does not mean that they are legally liable in the unlikely event that something does go wrong. The officiant having a “responsibility” simply means that, in making a decision about whether to approve a location, the officiant will have a statutory responsibility to consider the safety of those attending’. It would be interesting to see how watertight the Law Commission’s distinction between responsibility and liability would be in practice.

How the Scheme would operate

The proposed scheme, in the words of the Report, would mean that ‘in essence … religious organisations will be able to nominate officiants in the same way that Jewish and Quaker organisations have been able to do since 1836’ (para 4.108). The distinction would now simply be between the Anglican Churches and all other religions or beliefs. While Anglican clergy will be ‘recognised automatically’, the governing authority of other religions or belief organisations would nominate officiants to the RGO and would need be required to ensure that nominees are ‘are “fit and proper” persons to be officiants, by being of good character; not having been convicted of any offence determined by the General Register Office as preventing a person from being “fit and proper” to be an officiant; being at least 18 years old (although in practice they are likely to be much older); having undertaken training on the legal aspects of being an officiant; and understanding the legal requirements for being an officiant and performing the role’ (para 2.40). The same requirements would apply to independent celebrants but theywould need to demonstrate that they fulfil these requirements.  Moreover, independent celebrants alone would be directly subject to GRO training, though that could be sub-contracted out, possibly to professional associations:

‘Independent officiants will be required to undertake training provided by the General Register Office, or a provider approved by the General Register Office. The General Registrar Office will be responsible for monitoring independent officiants and deauthorising those who fail to comply with the “fit and proper” standard or with their duties and responsibilities. Independent officiants will be automatically de-authorised if they fail to comply with a requirement to undertake ongoing training prescribed by the General Registrar Office’. (para 2.54)

In order to nominate, a religious or non-religious belief organisation would need to show that it ‘has been established for a minimum period of time. During that period, it must have had members from at least 20 households who meet regularly in person for worship or in furtherance of or to practise their beliefs. It will also have to demonstrate that it has a policy in relation to nominating and monitoring officiants and that it would be a manifestation of an individual’s religion or beliefs to have a wedding officiated at by an officiant nominated by that organisation’ (para 2.43) .

This proposed minimum of 20 was based on ‘the current law, this being the number of householders required to certify that a particular building is their usual place of worship in order for it to be registered for weddings’ (para 4.115). The members ‘should be drawn from different households’ (para 4.151). It applies to the organisation as a whole (para 4.149). Transitional provisions would ‘be put in place to enable any registered place of worship whose membership has dropped below 20 since it was initially registered to nominate an officiant under our scheme’ (para 4.150). The reference to meeting regularly ‘would not preclude some meetings from being held online, but it would preclude organisations that exist entirely virtually from being able to nominate officiants’ (para 4.148). It would include those organisations that ‘have a sizeable number of members but only meet in person every few months’. These requirements all seem sensible but run the risk of excluding religions or belief organisations with a small number of members. If the focus is on the officiant, then should it matter how well-established their organisation is? These requirements will place burdens on religious and non-religious belief organisations that will not be faced by independent celebrants. This underlines the question of why these requirements are needed.

The Law Commission has ditched the requirement in its Consultation Paper that nominating organisations should be required to have a wedding service or a belief about marriage. This has been replaced by the requirement that ‘it should be a manifestation of an individual’s religion or belief for them to have a wedding officiated at by an officiant nominated by that organisation’ (para 4.160). It is difficult to understand what this means. It may be a manifestation of a person’s belief to have a bespoke ceremony by an independent celebrant but that is not a religion or belief wedding under the Law Commission’s schema. The Law Commission reasons that despite the reference to the manifestation of an individual’s religion or belief, the test focuses on the religion or belief group:

‘We should emphasise that this requirement is for the organisation to satisfy rather than a precondition for every individual seeking to be married by them. We do not think that it is for the law to insist that individuals must share the beliefs of the organisation under whose auspices they are getting married. Nonetheless, we think that the requirement provides a further important filter against joke or bogus organisations and aligns our scheme with the requirements of human rights law’ (para 4.161).

For me, this remains unclear. Do they basically mean that a wedding ceremony conducted by the organisation has to be a manifestation of the couple’s Article 9 rights? Again, this assumes that the definition of belief for the purpose of Article 9 is more tightly defined than it is. A vegan wishing to be married in a farm in a ceremony conducted by a similarly minded independent celebrant would arguably fall under the human rights definition of belief. But that is not what the Law Commission has in mind. The Report also states that:  ‘We also take the view that an organisation should not be able to nominate officiants if its only or primary activity is conducting wedding ceremonies. A belief in weddings is not the same as a belief about marriage’ (para 4.163). Surely, if there is a need to distinguish belief celebrants from independent celebrants then that alone ought to be the test?

The Law Commission also noted that these requirements may pose new difficulties for small religions. It acknowledged that there will ‘be a small number of independent churches who will continue to rely on civil registration officers to officiate at their weddings and for whom our scheme will not work as well as the existing law’ (para 4.82). The Report reasons that ‘the benefits of our scheme for the majority of religious organisations outweigh the impact that they will have on these independent churches, particularly in light of the courses of action that are available to those churches’. The reason why the scheme will not work so well as the current law is because it makes some seemingly minor changes to the law on registration officers. As per their Consultation Paper, ‘only one registration officer will be required to be present at a wedding, providing greater efficiency and flexibility’ (para 2.40). But, crucially, registration officers would ‘also be confined to officiating at civil weddings’ and so would be unable to register a ‘religious wedding in the place of a religious officiant (although they will, with the permission of the relevant religious organisation, be able to officiate at a civil wedding in a place of worship that could be accompanied by a separate religious ceremony)’. The Report further clarifies

‘There will be no legal limitations on registration officers’ attending religious (or non-religious belief) buildings for any type of wedding, though such use will of course depend on the permission of the religious organisation controlling that building. But under our scheme the nature of the wedding will depend on the officiant not the location. A wedding officiated by a registration officer in a place of worship will therefore be a civil wedding’ (para 4.80).

This seems odd. It is worth noting that this would not mean that ‘such a ceremony cannot include religious content’ as is the case under civil weddings now. This is because, like the Consultation Paper, the final Report proposes relaxing that rule so that ‘it will be possible for a civil ceremony to include religious content, and content reflecting non-religious beliefs, including music, readings, prayers, blessings and rituals’ (para 2.65). Moreover, ‘if the couple so wished and the religious organisation controlling the building allowed, a full religious service could either precede or follow the civil wedding’ (para 4.80).

The proposed relaxation of the rule prohibiting religious content is likely to prove problematic, especially if non-religious belief content is included. The Report states that ‘a civil wedding will need to be identifiably civil’ (para 2.65). This means that it needs to be ‘identified as such, either by the officiant or, where relevant, another person leading the ceremony’. Further, in expressing consent the couple would ‘not be able to use part of the marriage rites of any particular religion’ and presumably any belief. Furthermore, ‘they will not be able to replicate in their ceremony the words or form of any ritual, vow, statement or expression of consent required of any couple marrying in a religious or non-religious belief marriage ceremony’. Under their scheme, independent celebrants’ ceremonies would be civil and so would need to follow these rules. This may prove problematic, especially in relation to non-religious beliefs. If a belief system adopts a particular piece of literature as part of its ceremonies, would that then mean that this could not be included in any ceremony conducted by any independent celebrants?

The Definition of Belief

As ever, there are some interesting definitional questions in play. The definition of religion for the purpose of establishing religious organisations that could nominate would follow that in R (on the application of Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77, as per the Law Commission’s terms of reference. That definition is not particularly helpful in terms of clear lines of demarcation but it appears that we are stuck with it.

However, the Law Commission has changed its mind as to the definition of belief. While in the Consultation Paper, it offered a definition parasitical to the Hodkin definition (something I was very critical of), now the Report proposes that a non-religious belief organisation would be defined as ‘one whose sole or principal purpose is the advancement of a system of non-religious beliefs which have a level of cogency, seriousness, cohesion and importance that brings them within the meaning of article 9 of the European Convention on Human Rights’ (para 1.10). This is a significant improvement, though it does mean that the line between the type of belief systems that the Commission has in mind and the bespoke beliefs of couples who use independent celebrants is not as clear-cut as the Commission seems to believe.

The Report emphasises that ‘our original definition of non-religious belief organisations was intended to convey the types of groups under consideration rather than being an attempt to draft a definition that could be included in a statute’ and so now refer to a ‘description of non-religious belief organisations as that better reflects our intentions’ (para 4.139). The term ‘non-religious’ is now preferred to ‘secular’ given that that term ‘attracted both criticism and varying interpretations among consultees’ (para 4.140). Although they considered whether further qualifications such as ‘philosophical”’ or ‘ethical’ was needed, they concluded that ‘consultees’ concerns would be better addressed by limiting the types of non-religious belief organisations’ by reference to Article 9 (para 4.14). They then state that ‘this approach will help to convey that these are recognised belief systems that have been adjudged worthy of respect in a democratic society within the case law on protected beliefs under the Equality Act 2010’. This, however, ignores the differences in definition between the case law under discrimination law and the human rights jurisprudence.

The Commission is on stronger ground in arguing that it should be made ‘explicit that the organisation should have the advancement of non-religious beliefs as its sole or principal object, reflecting the approach taken in both Scotland and Ireland’ (para 4.142). They also note that there is a need to distinguish between religious and non-religious belief organisations for two reasons:

‘First, we are not considering whether religious groups should be obliged to solemnize the marriages of same-sex couples. Under our scheme, as under the current law, religious organisations will be free to determine whether or not to conduct same-sex weddings. By contrast, it is a policy assumption underpinning our review that any non-religious belief organisation given the right to conduct weddings will not be able to discriminate between opposite- and same-sex couples. Second, it is not our role to recommend whether non-religious belief organisations should be able to conduct weddings: given that our recommended scheme could apply if only religious organisations are able to conduct legal weddings, or if both religious and non-religious belief organisations are able to conduct weddings, depending on what Government decides, it must be possible to distinguish between the two’ (para 4.136)

Yet, might these two objectives be achieved by distinguishing religion from beliefs rather than beliefs from religion? The Law Commission also argues that it can ‘see the value in explicitly excluding sports clubs, trade unions and chambers of commerce, together with political parties or organisations that have as their primary purpose the promotion of political parties, causes or candidates’ (para 4.144). This would follow the approach of other jurisdictions. There is no explanation, however, of the principles underlining these exclusions. Unlike the rules elsewhere, they agree with Humanists UK that ‘it would be wrong to preclude non-religious belief organisations from championing political causes if no equivalent restriction applies to religious organisations’. They also contend that ‘there could be a case for excluding an organisation from nominating officiants if it encourages the conduct of weddings which involve the commission of a criminal offence in England and Wales’ (para 4.167). The Law Commission’s Report here is stronger than its Consultation Paper but there is clearly yet some work left to do. It is a pity that the Commission were not tasked with writing a draft Bill since that may have clarifies matters. I made several suggestions and included some sample draft legislation in my book on Religion and Marriage Law: The Need for Reform (Bristol University Press, 2021).

Concerns about Commercialisation

One of the reasons often given against recognising marriages by independent celebrants is that they are ‘commercial celebrants’. As I have pointed out on a number of occasions, all celebrants make money out of conducting weddings. Indeed, there’s probably no aspect of a couple’s big day that doesn’t involve an expense. It is good to see that the Law Commission’s Report recognises this.

It states that they have ‘no objection to nominated officiants profiting from their role. It is perfectly legitimate for nominated officiants to charge for officiating at weddings, and for that charge to reflect any preparation time and the costs involved in being an officiant’ (para 2.46). However, they state that is also ‘important to guard against the commercialisation of the role of officiant’. They propose achieving this by stating that ‘nominated officiants will therefore be prevented from subordinating the expression of their beliefs to commercial interests. This rule could, for example, prevent nominated officiants from advertising their availability to officiate without explaining their connection to their nominating organisation, or from conducting ceremonies otherwise than within the parameters set by their nominating organisation’. The Report further states that:

‘Examples of beliefs being subordinated to commercial interests could include a nominated officiant:

(1) charging a fee entirely disproportionate to the time spent in preparing for, and officiating at, a wedding;

(2) charging a low fee with the sole aim of conducting as many weddings as possible for commercial rather than belief purposes; or

(3) seeking to maximise the number of weddings they conducted, regardless of the beliefs of those concerned, by advertising their role as officiant without explaining their connection with their nominating organisation, conducting ceremonies outside the parameters set by their nominating organisation, or denigrating other officiants in order to persuade couples to employ them in preference to other officiants’ (para 4.234

How these requirements would be policed (presumably by the GRO) is open to question, unless fees were fixed either by them or by legislation. How prominent would the name of the nominating organisation need to be to ensure that an advertisement or a social media post by an officiant does not breach the third example?

In terms of independent celebrants, since they ‘would not be acting in pursuance of particular beliefs, a prohibition against putting profit over their beliefs could not apply to them’ (para 2.47). They ‘could act purely to make a profit and out of commercial motivations’. But independent celebrants would ‘be prevented from acting with a conflict of interest. It would, for example, be a conflict of interest for an independent officiant to make it a condition of them officiating at a wedding that the couple buy goods or services such as floristry and catering from them or their company (but not merely to offer the couple those other goods or services), or to accept a payment to recommend another provider of goods and services’. It is unclear why different rules would be needed for independent and humanist celebrants. Surely the conflict of interest rule could apply across the board since for officiants nominated by religion or belief organisations then it would be a conflict of interest for them to go against their beliefs. Again, this firm and neat distinction between independent and humanist celebrants is questionable and is likely to confuse those who are seeking to get married.

The model put forward in the Report is a vast improvement on the current law and would make a significant difference. However, the different treatment of officiants depending on if they are conducting civil or belief weddings seems to depend upon firms lines of demarcation that do not fit with the reality or with the understanding of belief under Article 9. It may lead to officiants claiming or not claiming to be part of a belief organisation depending on their judgment of which group has the most benefits and least burdens. Treating independent celebrants separately also means that it would be easier to jettison them in any reform. This raises the question of how likely it is that the Report will lead to legislation.

The Likelihood of Reform

The next step is for the Government to consider the Law Commission’s recommendations. Given that the Commission was not asked to develop a draft Bill, any legislation enacting these reforms will take some time – even if the Ministry of Justice is convinced to proceed further with the matter. And that is a big ‘if’.

It is clear throughout the Report that this is a topic that has attracted considerable interest and a great deal of consultation responses alongside new empirical research data. However, as the Report points out on a number of occasions, several of its main proposals were not supported by the majority of the consultees. The Report states that this was because ‘many individual consultees who responded to the questions …expressed concerns identical or similar to those outlined in the briefing texts of the Christian Institute and the Coalition For Marriage’ (para 6.4). The Law Commission has largely rejected these concerns on the basis that ‘since the current law generally works well for those who wish to marry in a Christian ceremony, these consultees would not necessarily have experienced, or even be aware of, the difficulties that other religious groups may face’ (para 6.5) and because the Commission’s Terms of Reference would not permit them to replicate the current law or make the law more restrictive (para 6.6).

At several points, the Report suggests that consultees had an inaccurate understanding of the law and some of what they objected to is already legally permissible. The complexity of the current law is itself both a reason for reform and also a reason why reform may be off-putting politically. This is especially true since as Report notes that they ‘understand that Government will ensure that it considers the work and recommendations of the report of the Independent Sharia Review, the Nuffield project report, and this Report when considering the case for comprehensive and enduring reform’ (para 1.61).

These consultation responses (which are yet to be published in full) also indicate how controversial the Law Commission’s proposals are to some and suggest that it may be politically difficult to get them through Parliament. It is worth noting that the objections applied to some of the central planks of the reform, such as the liberalisation of the law on locations to allow couples to marry wherever the officiant thinks fit. In terms of that, the Report noted that in addition to the stock responses that followed the briefing texts from the Christian Institute and the Coalition For Marriage, ‘other consultees, such as the Church of England and many Christian religious groups, also disagreed with these proposals’. The Church of England response is quoted as arguing that:

‘by abdicating any responsibility for enabling weddings to remain dignified, this proposal opens the door to frivolous, attention-seeking and farcical behaviours which could seriously undermine any notion that a wedding is a dignified and serious occasion in which both the state and the public have an interest. It is only necessary to see what has happened to the “dignity” of weddings in jurisdictions that make no requirements limiting locations to see that a kind of competitive absurdity is likely to develop among a small minority of attention-seeking couples trying to outdo each other in outlandish wedding locations’ (para 6.33).

The Law Commission’s response was to emphasise that ‘civil wedding venues are, by and large, commercial’ due to the current rules governing approved premises (para 6.57). They noted that most legal weddings take place on approved premises with 73.7% of all weddings in 2019 taking place in such settings (para 6.58). However, dismissing concerns about liberalism by stating that the current law is already liberal is unlikely to convince such critics that further reform is needed. There is no attempt to critique the conservative and discriminatory idea of what a wedding entails that seems to have animated at least some of the negative responses. A principled case for why such reform is necessary needs to be made. The Report highlights this in its account of the inadequacies of the current law but does not go far enough. Talk of ‘unfairness’ euphemistically short-changes the discrimination that the current law inflicts and its non-compliance with human rights norms.

This comes to the fore in the Report’s discussion of Humanist marriages where the decision in R (on the application of Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin), handed down weeks before the publication of the Consultation Paper, made it clear that the current law breached human rights in not affording equal treatment to non-religious beliefs and held that this was only justified for now by the fact that the Law Commission was working on the area. However, the Law Commission’s Report does not use this finding to galvanise the need for reform. On my reading, Harrison means that the Government must do something or be subject to further litigation (unless the Bill of Rights is passed and human rights law is neutered). The Report states that the Harrison ‘decision has not affected our review’ because the terms of reference prescribe that they are not considering ‘the question of whether non-religious belief organisations, including Humanists, should be able to conduct legally binding weddings’ but are being asked to ‘consider how weddings by Humanist and other nonreligious belief organisations could be incorporated into a new scheme’ (para 1.49). Yet, given that ‘fairness and equality’ is one of the principles underpinning the review, more could be made of a clear judicial finding that the status quo is not human rights compliant and why.

The Harrison litigation typifies the now long-standing arguments of Humanists UK that existing powers to recognise their weddings should be enacted now rather than waiting years for possible comprehensive reform. The Law Commission’s Report provides an answer to this call. It states that:

‘By transforming the law from the foundations up, our recommendations answer the difficult questions of fairness that would arise in making unique provision for Humanist weddings within the current buildings-based scheme. We recommend a scheme that will place all weddings on a level playing field: whether a civil, religious, or (if enabled) non-religious belief wedding, all will be able to take place in the form agreed between the parties and the officiant, and all will be able to take place in any type of location, subject to the agreement of the officiant considering safety and dignity. Our recommendations remove the unfairness in the current law, which limits some couples more than others in where and how they can marry. Our recommendations also prevent any unfairness from arising if provision is made in the law for Humanist weddings, in contrast to the difference in treatment that would arise with piecemeal reform’ (para 1.68).

It is difficult to know how convincing politicians and policy-makers will find this argument as they weigh up the risks of a quick fix against comprehensive reform. I remain convinced that full reform is required because of the number and variety of forms of discrimination perpetuated by the current law. Belief systems are clearly discriminated against. But there is also discrimination against many religious believers who cannot easily meet the arbitrary thresholds imposed by the current law while having the wedding that reflects their beliefs. The lack of recognition of independent celebrants detrimentally affects those who want a bespoke ceremony and/or the location of their dreams. And the complexity of the law only furthers the common law marriage myth that denies couples rights on relationship breakdown. Despite my quibbles about the detail of some of the proposals, the Report as a whole is to be welcomed. But it seems that it will fall to the groups directly affected to really make the case for reform.

Russell Sandberg

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