The
Committee consisted of the following
Members:
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
childs 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 individuals 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 forthwitheffectively 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 Chambereffectively 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 Committees 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 Governments 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 respondedthe Church and the
Brethrenand the Government considered
that.
I have a few
questions for the Minister. Until nowI remember very occasional
high-profile casesif 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 relationshipsnot 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 Governments 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 exertedprimarily on Yorkshire Members, it seemsas
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 beand this is a joke I used to tell when I was a lecturer in
political sciencemaintained 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 sayingin her
alphabet soup of examples, marriage was L, I
gatherbut 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 issueincluding the age issue
even though it has not arisen in this caserather 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 states
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
oclock.