1.The Committee reported on this Private Member’s Bill on 29 January. It is sponsored in the House of Lords by Baroness Hodgson of Abinger and supported by the Government. Report stage is scheduled to take place on 1 March.
2.Lady Hodgson responded to the Committee’s report by a letter dated 12 February (see Appendix 1 to this report). The Committee had made recommendations in relation to clauses 1, 2 and 4 of the Bill. None of the Committee’s recommendations was accepted. Given the unconvincing arguments made by the Government (to which we refer below in relation to clause 2), this response was particularly disappointing.
3.At Committee Stage on 1 February, the House agreed to amendments which substituted an entirely new clause 2 (about civil partnerships) and made consequential amendments to clause 5 and the long title. The changes were made because the Government doubted whether the original version of clause 2 would “deliver an effective and comprehensive opposite-sex partnership regime in the time it provided for”.
4.The Home Office has provided a supplementary memorandum about the delegated powers in the new clause 2, which are examined below.
5.Clause 2(1) in the Bill as introduced in the Lords imposed a duty on the Secretary of State to make regulations, within six months of Royal Assent, to change the law relating to civil partnership so as to “bring about equality between same-sex couples and other couples in terms of their future ability or otherwise to form civil partnerships”.
6.The clause made provision for the amendment of the Civil Partnership Act 2004 (“the 2004 Act”) and other legislation by regulations so as to allow an opposite-sex couple to form a civil partnership. The Supreme Court had declared in a judgment last year that provisions in the 2004 Act restricting civil partnerships to same-sex couples were incompatible with the European Convention on Human Rights (“ECHR”).
7.In our earlier report, we criticised the width of this Henry VIII power, and the inadequate justification given in the Home Office’s original delegated powers memorandum. We commented:
“More generally, we consider the power conferred by clause 2 to be objectionable as a matter of principle. Under this country’s constitution, it is for Parliament not Ministers to make laws. This Committee and the Constitution Committee have repeatedly said that Henry VIII powers should be conferred only where there is very clear justification for them–which is wholly lacking in this case.
Moreover, Members of both Houses may well wish to debate the principle of allowing an opposite-sex couple to form a civil partnership, and to table amendments to the proposed legislation needed to give effect to this. They would not have this opportunity with affirmative procedure regulations.”
8.We therefore recommended that the amendments to the 2004 Act to remedy the ECHR incompatibility identified by the Supreme Court should appear on the face of the Bill, rather than be dealt with in regulations, and that the Henry VIII regulation-making power should be narrowed so that it would allow for only necessary consequential amendments to other legislation. The Committee also questioned why the Home Office had not brought forward a proposed order under section 10 of the Human Rights Act 1998 so as to remedy the ECHR incompatibility detected by the Supreme Court.
9.The new clause 2 is significantly more detailed than the previous version which was nothing more than a bare enabling power. It allows the Secretary of State by regulations:
10.The affirmative procedure will apply to any regulations the Secretary of State wishes to make under clause 2.
11.The Secretary of State may also make regulations in consequence of clause 2, by affirmative procedure if they amend primary legislation or negative procedure in other cases.
12.The Secretary of State will be required to consult before making regulations under clause 2(5) about conversion of civil partnerships into marriage or vice versa, but not before using any other power conferred by that clause.
13.The supplementary memorandum (paragraph 18) explains why the Government rejected our recommendation that the necessary amendments to the 2004 Act to give effect to the Supreme Court’s judgment should appear on the face of the Bill, coupled with a more limited power to make other necessary changes by regulations. The reasons given are that the Committee’s approach would:
14.We find neither of these reasons convincing:
15.The supplementary memorandum (paragraph 21) asserts that—
“The powers in new clause 2 will enable the government to tackle a range of complex and partly technical issues relating to the introduction of opposite-sex civil partnerships, such as parental responsibility, the effect of a legal change of gender, the financial consequences of a civil partnership and any conversion entitlements. On some of these issues, such as conversion rights, it is important that the government seeks the views of interested parties, including religious organisations, before legislating. Clause 2(6) therefore requires the Secretary of State to consult before making regulations on conversion.”
16.However, the supplementary memorandum does not adequately explain why:
17.The supplementary memorandum also fails to justify the inclusion of clause 2(7). Paragraph 12 merely says, rather delphically, that it would permit—
“… the Secretary of State to protect the ability to act in accordance with religious belief in relation to civil partnership. The existing law seeks to reconcile the right to manifest one’s religion or belief with the rights of others. This subsection would enable appropriate provision to be made to ensure religious freedoms continue to be protected in relation to the new civil partnership regime.”
18.This does not explain why existing provisions of the 2004 Act are considered inadequate to protect religious freedoms, or why subsection (7) is drafted as a free-standing power not linked to the extension of civil partnerships to opposite-sex couples. It would even appear to allow the Secretary of State to make regulations which allowed for Registrars of Births, Marriages and Deaths to opt out of conducting civil partnerships (whether for same or opposite-sex couples) on grounds of their religious beliefs, and so preventing them from being disciplined or dismissed in these circumstances.
19.With regard to the Committee’s query about why the Home Office had not brought forward a proposed order under section 10 of the Human Rights Act 1998 (see paragraph 8 above), the supplementary memorandum states, amongst other things, that the remedial order procedure “would … confine the government to addressing the specific incompatibility that is the subject of the declaration …” and “would not enable the Minister to make other changes that might be desirable, or which are necessary for a reason other than to remove the incompatibility” and that “again, this would create the risk that government would not be able to establish a fully-functioning and compliant opposite-sex couple civil partnership regime” (paragraph 20). Nothing is said about what “other changes that might be desirable” the Government have in mind, and how their inability to make such changes by regulations would prevent the creation of a fully-functioning and compliant new regime. The House may wish to ask the Minister for an explanation.
20.This Bill deals with highly sensitive issues which require full debate in Parliament. It is therefore disappointing that the new clause 2, far from meeting the concerns of the Committee, raises significant new concerns.
21.We therefore remain of the view set out in our earlier report and recommend that the principal changes to the 2004 Act to remedy the ECHR incompatibility should appear on the face of the new clause 2. The House may wish to ask the Minister, since no explanation has been provided, to explain why the simple solution suggested in the Committee’s earlier report would not be feasible.
22.We further recommend, for the reasons set out in this report, that the new clause 2 should be amended so that:
1 Delegated Powers and Regulatory Reform Committee, (45th Report, Session 2017–19, HL Paper 274)
2 See the Minister’s speech at Second Reading: HL Debs, 18 January 2019, .
3 Delegated Powers and Regulatory Reform Committee, (45th Report, Session 2017–19, HL Paper 274), paras 28 and 29
4 , clause 5(7) [HL Bill 158 (2017–19)]
5 , clause 5(2), (7) and (8)
6 The supplementary memorandum gives no reason for this discrepancy.
7 The supplementary memorandum mentions, by way of example, that religious organisations are currently free under the 2004 Act to decide not to host civil partnership conversions.
8 The House may recall the judgment of the European Court of Human Rights in Eweida and others v United Kingdom  in which the Court held that a local authority had not contravened a registrar’s convention rights by dismissing her after she declined to conduct civil partnership ceremonies because of her religious beliefs.