Forty Eighth Report Contents

Appendix 1: Civil Partnerships, Marriages and Deaths (Registration etc) Bill: Response

Letter from Baroness Hodgson of Abinger to the Rt Hon. Lord Blencathra, Chairman of the Delegated Powers and Regulatory Reform Committee

I am most grateful to the Committee for its consideration of provisions in the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill in its 45th Report of Session 2017–2019.

I recognise that the Committee has raised several concerns in respect of the delegated powers in Clauses 1, 2, and 4 of the Bill and I have addressed these in the paragraphs below.

Clause 1—Power to amend the Marriage Act 1949

The Committee raises a concern, in paragraph 15 of their Report, in respect of clause 1(4) of the Bill, which confer powers on the Registrar General to make no-procedure regulations in relation to certain administrative aspects of the marriage registration regime (the “RG Regulations”). The Report indicates that these matters may be of interest to Parliament and concludes that they should be subject to the affirmative procedure.

I take the view that it is appropriate for powers of this kind to be subject to no parliamentary procedure. As explained in the delegated powers memo submitted by the Home Office, the provisions of clause 1(4) deal with administrative matters such as the prescription of forms and the storage of documents. I believe these sorts of provisions are, by and large, unlikely to be of great interest to Parliament. Indeed, the Registrar General has a wide range of powers to make no-procedure regulations dealing with similar administrative matters not only in relation to marriage but also in other areas such as the registration of civil partnerships, births, deaths and the clause 1(4) powers are consistent with this approach. The making of regulations relating to the administrative aspects of the registration of marriage is a core function of the Registrar General have been delegated to them in this way since at least the 1940s10 and Parliament continues to confer similar new no-procedure powers to the present day.11 Making the power subject to the affirmative procedure would mark a departure from this long-standing practice.

The Registrar General is not a member of the Lords or Commons and thus could not speak to the regulations during an affirmative debate in Parliament or speak in any debate if negative resolution regulations were prayed against. Whilst it is possible that the regulations could be spoken to by a minister of the Crown or, instead, made by the Secretary of State I believe this would be undesirable. Since 1837 the registration of births, deaths and marriages and the collection of statistics have been entrusted to an independently appointed person with independent statutory powers who is outside of the elected government and not subject to direct political pressure, that person being the Registrar General. Accordingly, having a Government minister speak to Parliament on the Registrar General’s behalf would cut across this independence. If the regulations were, instead, made by the Secretary of State this would again undermine that independence by effectively transferring functions, of a kind that Parliament has consistently determined should be performed by an independent crown appointee, to a Minister of the Crown.

Nonetheless, I agree that Parliament has a clear interest in ensuring that the RG Regulations will enable both parents’ names to be recorded in marriage schedules. I believe that the Government addressed this point at Second Reading when the Minister, Baroness Williams of Trafford, reiterated her commitment to making this important change.12 Furthermore, the Government has indicated to me that, in the interests of transparency and scrutiny, it would be willing to make a draft of the first RG Regulations available in the House library prior to their signature to give Members an opportunity to comment on them and feed into their . development.

The Report also raises a concern, at paragraph 18, that the sunset provision in clause 1(6) only commences from the day on which the first regulations are made and that this would enable the Secretary of State to “delay indefinitely the making of any regulations”. I would like to reassure the Committee that the Government has confirmed to me that it intends to implement the changes as soon as is possible. Nonetheless, it is considered prudent to allow a three-year bedding in period for implementation once the regulations have been made. The reforms being ·introduced are detailed and technical and the provisions underpinning them may require minor adjustments during implementation to ensure that they operate as effectively as possible.

Clause 2—Power to amend the Civil Partnership Act 2004

Before responding to the Committee’s concerns about the power in clause 2, it may be helpful if I set out the background to these proposals. On 2 October 2018, the Prime Minister announced the Government’s intention to extend civil partnerships to opposite-sex couples, following the Supreme Court judgment in June 2018 that deemed the current system of civil partnerships to be incompatible with the European Convention on Human Rights and a violation of the Article 8 rights of opposite-sex couples ..

I understand that the Government considered use of the remedial order procedure but decided to rectify this imbalance through a Government Bill in the second session, as announced in a Written Ministerial Statement to Parliament by the Minister for Women and Equalities on 26 October. On the same day, however, the House of Commons decided on an alternative and speedier approach to eq·ualising access to civil partnerships by agreeing to an amendment to the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill, moved by my co-sponsor Tim Loughton MP, which is now clause 2 of the Bill.

I accept that the drafting of clause 2 presents difficulties. As the Committee’s report notes, the Minister, Baroness Williams of Trafford, also had reservations about the drafting of the current clause which she expressed at Second Reading. Baroness Williams, Tim Laughton and I have worked together to prepare an alternative to clause 2 and I successfully tabled moved amendments at Committee stage on 1 February which included a new version of that clause. I understand that The Home Office will submit a supplementary delegated powers memorandum in due course shortly.

Simply changing the eligibility criteria in the Civil Partnership Act 2004 to allow opposite-sex couples to form a civil partnership would not be enough to give such couples equivalent rights and benefits to those enjoyed by same-sex couples. The existing legal framework for civil partnerships was designed only with same-sex couples in mind. I am keen to ensure a fair and fully-functioning regime is in place for opposite-sex couples at the same time as eligibility is extended, to ensure couples have certainty about their legal rights and obligations.

The amendments new version of clause 2 set out in much greater detail how we envisage the delegated powers would be exercised. The regulations will need to deal with issues - for opposite-sex couples - such as parental responsibility, the effect of a legal change of gender, the financial consequences of a partnership and any conversion entitlements. The amendments also now include a power to make consequential changes. Regulations made in the exercise of all of these powers would be subject to the affirmative resolution procedure, and therefore to Parliamentary debate and approval.

Clause 4—Power to amend the Coroners and Justice Act 2009

The Committee suggests, at paragraph 39 of their Report that the Government’s justification for conferring the clause 4(4) powers is weak because “any legislation is unlikely to be regarded by Ministers as a priority in view of the lengthy deadline imposed by subsection 6.” I would like to reassure the Committee that the Government is committed to reducing the rate of still-births in England and Wales, and has confirmed to me that should the clause 4 report conclude that coroners’ investigations of stillbirths should be introduced, it will act, with as short a delay as possible.

In line with that commitment, I understand that the Government intends to launch a public consultation on proposals to introduce coronial investigations into stillbirth cases. This consultation will contribute towards the report for which arrangements are to be made by the Secretary of State under clause 4(1), and will follow an extensive series of meetings that have been held between key stakeholders and officials in both the Ministry of Justice and the Department of Health and Social Care, including with Members of Parliament. I understand that these meetings have helped officials to develop proposals for consultation

and have ensured that these are duly informed. The Government will continue to engage with interested MPs and Peers during the consultation period.

If the clause 4 report were to conclude that coroners’ investigations of stillbirths should be introduced, clause 4(4) will ensure that the Government can do so with a shorter delay than by a Government Bill, but only if approved by a resolution of each House of Parliament. Any such change to legislation would be done within the tight framework defined in clauses 4(4)(a) to 4(4)(b), which clearly limit this power to introducing coronial investigations of still­birth cases, specifying the circumstances and purpose of such investigations, as well as making provisions for coronial investigations of still-births equivalent to those relating to investigations into deaths.

The Committee also expresses a view, at paragraph 41 of the Report that “issues to which clause 4 gives rise argues for greater parliamentary involvement than that provided for by affirmative resolution procedure regulations.” I have considered the Committee’s recommendation to remove clause 4(4) from the Bill, but on balance, I consider it necessary to maintain these provisions. This power is limited to providing for coroners to investigate· stillbirths in circumstances similar to those under which coroners investigate deaths. This Bill also requires the Secretary of State to report on the issue before any regulations can be made. I believe this is an appropriate use of this power with sufficient safeguards in place to constrain its use.

Finally, paragraph 40 of the Report, queries why the Bill includes a power to implement the findings of the clause 4 report but similar powers are not included to implement the findings of the clause 3 report on registration of pregnancy losses. The primary reason for this difference is that the powers contained within clause 4(4) of the Bill, and the range of outcomes arising from the use of that power, are very narrow in scope. In particular, the power only enables regulations to be made that would amend Part 1 of the Coroners and Justice Act 2009 to confer new functions on coroners. By contrast, the range of potential outcomes of the clause 3 report is much broader and may, for instance, recommend the creation of statutory new bodies or officers or amendments to many different items of primary legislation. This difference would necessitate a much broader Henry VII power that may not be acceptable to the Committee.

12 February 2019

10 See e.g. s.55 and s.75(1)(b) of the Marriage Act 1949, as enacted.

11 See e.g. s.28G of the Marriage Act 1949, which was inserted by paragraph 3(1) of Schedule 4 to the Immigration Act 2014.

12 HL Debs, 18 January 2019, col 451.

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