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Session 2006 - 07
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Public Bill Committee Debates

Draft Marriage Act 1949 (Remedial) Order 2006



The Committee consisted of the following Members:

Chairman: Mr. Mike Weir
Browne, Mr. Jeremy (Taunton) (LD)
Cawsey, Mr. Ian (Brigg and Goole) (Lab)
Clapham, Mr. Michael (Barnsley, West and Penistone) (Lab)
Djanogly, Mr. Jonathan (Huntingdon) (Con)
Ellman, Mrs. Louise (Liverpool, Riverside) (Lab/Co-op)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Grogan, Mr. John (Selby) (Lab)
Harman, Ms Harriet (Minister of State, Department for Constitutional Affairs)
Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
Hughes, Simon (North Southwark and Bermondsey) (LD)
Kawczynski, Daniel (Shrewsbury and Atcham) (Con)
Mallaber, Judy (Amber Valley) (Lab)
Mitchell, Mr. Austin (Great Grimsby) (Lab)
Neill, Robert (Bromley and Chislehurst) (Con)
Newmark, Mr. Brooks (Braintree) (Con)
Trickett, Jon (Hemsworth) (Lab)
Truswell, Mr. Paul (Pudsey) (Lab)
Mark Etherton, Committee Clerk
† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 23 January 2007

[Mr. Mike Weir in the Chair]

Draft Marriage Act 1949 (Remedial) Order 2006

10.30 am
The Minister of State, Department for Constitutional Affairs (Ms Harriet Harman): I beg to move,
That the Committee has considered the draft MarriageAct 1949 (Remedial) Order 2006.
This instrument was laid before the House on16 February 2006, and amends the Marriage Act 1949. I shall outline the details of the case of B and L v. United Kingdom, which led to the making of the order. The case concerned a couple, B and L, who by virtue of marriage were father-in-law and daughter-in-law. Over the course of time both parties’ marriages broke down and ended in divorce. Some time afterwards B and L formed a relationship and started cohabiting. Before the relationship with the father-in-law, the woman had had a son in the original marriage, and the son now shared the home with his mother and grandfather. Some years later B and L, who, as I said, were cohabiting, decided that they wanted to get married. However, the registrar at the register office rightly informed the couple that the marriage was not possible unless both their former spouses were dead. Thus if the child’s father and grandmother were dead, his mother and grandfather could marry. However, they were not dead.
It was that provision, set out in the MarriageAct 1949, that the couple argued was incompatible with article 12 of the European convention on human rights, on an individual’s right to marry and found a family. The European Court of Human Rights accepted their arguments and declared on 13 September 2005 that the relevant sections of the Marriage Act 1949 were incompatible with article 12 of the convention. Section 10 of the Human Rights Act 1998 sets out the process for remedial action to remove any incompatibility with the European convention on human rights. The effect of the remedial order is to amend section 1 of the Marriage Act 1949 and schedule 1 to the same Act, to remedy the incompatibility forthwith—effectively to remove the bar. It removes the current prohibition on marriages between former parents-in-law and children-in-law.
We are using the remedial order to effect the change after considering several options for dealing with the incompatibility found by the Court. First, the Government could have applied for the judgment to be referred to the Grand Chamber—effectively appealing against it. However, our view was that the European Court of Human Rights had not misapplied the convention, and therefore effectively we accepted the judgment and decided not to appeal.
Secondly, consideration was given to changing the law to make it compatible with the ruling of the European Court by introducing primary legislation to amend the relevant sections of the 1949 Act. We decided against that because there was no relevant legislation in the pipeline and, even if there had been, that would have taken too long, given that a couple wanted to get married.
We therefore decided on a remedial order, and it was then necessary to decide whether to use the urgent or non-urgent procedure. The Government considered that the urgent procedure would not be right, and that the order should be subject to parliamentary scrutiny before coming into effect. The 16th report of the Joint Committee on Human Rights reported on the Committee’s consideration of the draft remedial order. It agreed that the Government had compelling reasons for proceeding with the amendment by way of remedial order rather than primary legislation. It also indicated that proceeding to remedy the incompatibility by way of a non-urgent order would strike a reasonable balance between the competing considerations of the need to avoid undue delay before remedying the incompatibility and the need to afford proper opportunity for parliamentary scrutiny.
The Joint Committee also considered the draft remedial order in its 29th report and took into account the representations that it had received from both the individuals involved, B and L, and the public. Two representations were received from the public, one simply making observations and the other proposing a change to the draft order. The Joint Committee concluded that
“the special attention of each House is not required to be drawn to the draft order”
on
“any of the grounds on which the Joint Committee on Statutory Instruments may so report in relation to most other statutory instruments”.
Basically, that meant that we could get on with it. The Committee also recommended that the draft order be approved.
The Government received two representations on the order: one raised a question of vires, asking whetherthe Lord Chancellor had the requisite power to remove the age restriction on marriage between parents-in-law and children-in-law. The bar is being lifted: the current situation is that a person can marry an in-law only after both their spouses are dead, if both have been married, and if both are over the age of 21. That is the age bar. The query was made on the grounds that the European Court of Human Rights had not considered the age restriction because it had not needed to do so. Infact, the UK might well have been able to mount a strong case for saying that it was not incompatible with article 12. We conceded that the court had not expressly considered the restriction, but we considered it necessary to remove it in order to remove the incompatibility with article 12 across the board and concluded that we had the vires to do so by means of this remedial order.
The Joint Committee on Human Rights accepted the Government's arguments and concluded that the Lord Chancellor is entitled to reach the view that the age restriction of 21 on marriage between parents-in-law and children-in-law is incompatible with article 12 as a result of the Court's decision in B and L v. the United Kingdom. He therefore has the power under the Human Rights Act 1998 to remove the age restriction by remedial order. That is what we are seeking to do now.
On other jurisdictions, the judgment in B and L v. United Kingdom has already been implemented in Scotland in the Family Law (Scotland) Act 2006, which amended section 2 of schedule 1 to the Marriage (Scotland) Act 1977 and came into effect on 4 May 2006. It has been implemented in Northern Ireland in the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006, which came into force on 20 September 2006.
10.38 am
Mr. Jonathan Djanogly (Huntingdon) (Con): I have to say that it took me some time to get my head round the various configurations of marriage that the order allows. I did in the end, and the best that I could think was that it will probably make for an interesting and cosy time at family gatherings.
I ask the Minister how many people are likely to be affected by the order? Probably not many. We noted the Church submission on the removal of the age restriction but, on the basis that an individual in question will previously have been married, we agree with the Government that such a person is likely to have the sense to decide whether to remarry.
10.40 am
Simon Hughes (North Southwark and Bermondsey) (LD): I am happy to serve under your chairmanship, Mr. Weir.
It is clearly right for the Government to comply with the European convention on human rights when there is a judgment on it. The Minister was right to say that if the Government’s assessment of the judgment was clear, it would have been nonsense to appeal against it for the sake of doing so. That compliance is welcome, as there was clearly an anomaly. They are unusual circumstances, as the hon. Member for Huntingdon implied, that make one think about what happens to those families in certain situations. None the less, it is perfectly understandable, however exceptional, that such circumstances might arise.
It was therefore necessary to change the law, and it certainly seems that the Government have chosen the right way to do so, as the matter was not so urgent as to require an urgent procedure. It shows the merit of the process under the Human Rights Act 1998, which allows a European Court finding to be dealt with by an alternative non-urgent procedure. That has clearly worked. There have been no protests about it. People had a view, a couple of organisations responded—the Church and the Brethren—and the Government considered that.
I have a few questions for the Minister. Until now—I remember very occasional high-profile cases—if people who were prohibited from marriage under the laws of affinity and close relationships wanted to change that, they could and still can have a private Act of Parliament passed to allow it. There have been a couple such famous cases. My question is whether any consideration has been given to whether that is an appropriate way to proceed in the new century. Would it not be better to review the Marriage Acts in such cases, and is that under way? As specific people must spend money, the Joint Committee on Human Rights report criticised the practice and suggested that it might be time to look at the wider question of how to deal with closer relationships—not the closest, clearly, but some of the intermediate relationships.
The Minister has addressed the age question. It seems that the Government have come up with the right answer. I understand why the Church had some reservations, but it might have been in contravention of the law not to have the same age requirements for people in these circumstances as for people who get married in other circumstances.
Will the Minister discuss two other things mentioned in the Joint Committee report? I did not know that there has always been a clergy exemption on conscience grounds, which it is proposed to continue. I do not know whether it applies only to the Church of England or to all clergy, but if they do not feel that they want to marry people who are so related, they are free not to do so. It is perfectly within their rights. Under the current rules, then, if somebody goes to their Church of England parish priest, who would normally be required to marry them, what happens if that local priest, rector or vicar is unwilling to do so? Presumably they could be referred to somebody who might be willing to marry them, rather than not being allowed a faith ceremony, if that is what is deemed appropriate. Will she reflect on that?
I ask this so that the Minister can put it on the record: consideration was given to whether the order would impinge on the civil partnership legislation that the Government rightly passed recently. The answer is apparently that it will not, because it has a different set of considerations, but it might be helpful for her to put on record why there has been no Government response to questions on that subject or statement of the Government’s position on whether people in civil relationships are dealt with adequately by the law as it stands.
10.44 am
Mr. Austin Mitchell (Great Grimsby) (Lab): I congratulate my right hon. and learned Friend the Minister on managing to keep a straight face throughout her long and illuminating presentation. That characteristic will make her a very good lawyer and a superb deputy leader, whose job it is to maintain a straight face in all circumstances.
The huge attendance on the Government Benches, compared with the paucity of attendance on the Opposition Benches, is a testament not so much to the whipping power and charm that my hon. Friend the Member for Brigg and Goole exerted—primarily on Yorkshire Members, it seems—as to the fact that we regard the sanctity of marriage as important, while the Opposition have a more profligate attitude.
I have two queries. Is it possible at this late stage to follow the practice that I am told used to be—and this is a joke I used to tell when I was a lecturer in political science—maintained with local government Bills? Could we not put in a clause saying that the marriage of the MP for Grimsby is hereby dissolved? That proposal would be passed through the various processes and come into effect with the passage of these regulations.
My second point is more basic. I forget what my right hon. and learned Friend was saying—in her alphabet soup of examples, marriage was “L”, I gather—but why did the Government decide to reject the views of the Church of England? They accepted them in the sense that they did not require marriage in church, on these occasions, but rejected them in terms of their age limit. It is so unlikely that a case below the age limit of 21 would come up where people would say that they have a right under European law to get married. It is so unlikely that it would have been more sensible, rather than affronting the Church, to say “In the very unlikely event that such a case should come before the European Court, we will make the change then rather rushing to make it now.” It is surely unnecessary to combine these two measures: it could be left to the eyes of Europe because I think no such case is ever likely to come up. Why did we rush to offend the Church?
10.47 pm
Ms Harman: I thank all hon. Members for their points. First, in respect to the points made in the questions asked by the hon. Member for Huntingdon, we are not aware of any other cases that are awaiting the outcome of this remedial order. As far as we know, this is the only case.
The hon. Gentleman also raised the question of the age limit. I think our view, like that of my hon. Friend the Member for Great Grimsby and the hon. Member for North Southwark and Bermondsey, is that if one can actually get married and have already been married at the age of eighteen and if one can already live together without contravening any law, what is the point of having a gap between 18 and 21? I do not think there is any intellectual argument that would justify saying to people who can live together or marry between the ages of 18 and 21 that they cannot marry their in-laws between the ages of 18 and 21.
The argument for making the remedial order now on the whole issue—including the age issue even though it has not arisen in this case—rather than waiting for another case is that that could take an awful long time. Rather than waiting for a case to arise and then dealing with it, it seems sensible to deal with the issue now while we have it under our consideration. Frankly, we not able to anticipate all the cases that might arise because we cannot predict what might happen.
As far as the clergy is concerned, we felt it was important to deal with the state’s responsibility, which covers registration of marriages in a registration office. That is what we have dealt with, and the remedial order does not disturb the exemption of a Church of England or Church of Wales clergyman from what would otherwise be the obligation to solemnise a marriage. The Church are not included in this remedial order.
The hon. Member for North Southwark and Bermondsey mentioned a private Act of Parliament. That option would have been available, but we did not think that that was the right route. We thought this was best way for us to take the issue forward.
We obviously keep the Marriage Act 1994 under consideration. The provisions that provide a bar in the Civil Partnership Act 2004 will be repealed when a suitable opportunity arises. I have to confess that I cannot be sure why this is not a suitable opportunity but it cannot be; otherwise we would have acted now. That matter is in hand, however. [Interruption.] Apparently there are some couples in the pipeline waiting to marry their in-laws, so we aware of some, but there are not many. That concludes my comments. I hope that I have answered the questions as best I could.
Question put and agreed to.
Resolved,
That the Committee has considered the Marriage Act 1979 (Remedial) Order 2007.
Committee rose at ten minutes to Eleven o’clock.
 
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