Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Explanatory Notes

Commentary on provisions of Bill

Part 1:

Chapter 1:

Clause 1: Registration of marriages and civil partnerships

24 Clause 1 requires the Secretary of State to review the system of registering marriages and civil partnerships to allow for the inclusion of both parents in a register entry.

Clause 2: Reform of civil partnerships

25 Clause 2 requires the Secretary of State to undertake an assessment (which may include assessing the demand for civil partnerships amongst opposite-sex couples) and then bring forward proposals for how the law ought to be changed to bring about equality of treatment with respect to the future ability of opposite-sex and same-sex couples to form a civil partnership. It then provides a power to amend the law accordingly. The power to make regulations is subject to the affirmative resolution procedure.

Clause 3: Report of registration of pregnancy loss

26 Clause 3 sets out a provision by which Secretary of State must undertake the preparation and publication of a report on whether or not legislation is required to register pregnancy loss which cannot currently be registered as stillbirths under the Births and Deaths Registration Act 1953.

Clause 4: Coroners’ investigations into stillbirths

27 Clause 4(1) places a duty on the Secretary of State to 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. Under clause 4(2) "stillbirths" is given the meaning in section 41 of the Births and Deaths Registration Act 1953. Section 41 of that Act provides: "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". Under clause 4(3) the Secretary of State must publish the report produced.

28 Subsection (4) of clause 4 confers a power on the Lord Chancellor, after the report under clause 4(1) has been published, to make investigation regulations in accordance with clause 4. Under clause 4(5) investigation regulations may amend Part 1 of the Coroners and Justice Act 2009 ("CJA") to enable or require coroners to conduct investigations into stillbirths. Part 1 of the CJA contains the current powers of coroners to investigate deaths. A description of the current provisions in Part 1 is provided above in the Legal Background section of these Explanatory Notes.

29 Clause 4(5)(b) provides that investigation regulations may limit the circumstances in which investigations are to take place. For example, this could be used to provide that a power or duty to investigate stillbirths only applies to stillbirths of more than a specified gestation. Clause 4(5)(c) provides that investigation regulations may provide the purposes of a coroner’s investigation. Under clause 4(5)(d) investigation regulations may make provision equivalent or similar to provisions in Part 1 of the CJA that relate to investigations into deaths.

30 Subsection (6) of clause 4 makes further provision about the power to make investigation regulations and includes a power to make incidental, consequential or supplemental provision including making provision amending provisions made by or under an Act, whenever passed or made. Under subsection (7) of clause 4, investigation regulations may not create criminal offences other than by applying (with necessary modifications), or making equivalent or similar provision to, provision already contained in Part 1 of the CJA. For example, this power could be used to apply the offences in Schedule 6 to the CJA to investigations into stillbirths. Subsection (7) also provides that investigation regulations may not confer any power to make provision of a legislative character other than applying, or making equivalent or similar provision, to provision already contained in Part 1 of the CJA. For example, this power could be used to make provision equivalent to the Lord Chief Justice’s power in section 45 of the CJA to make rules relating to inquests.

31 The power to make investigation regulations is subject to the affirmative resolution procedure (clause 4(9)). Under clause 4(10) the power to make investigation regulations will cease to be exercisable after the period of five years beginning with the day on which the report is published under clause 4(3).

 

Prepared 1st February 2018