Fiftieth Report Contents
Appendix 2: Civil Partnerships, Marriages and Deaths (Registration etc): Amendments: 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 further consideration of the Civil Partnerships, Marriages and Deaths (Registration etc.) Bill in its 48th Report of Session 2017–19.
As the Committee acknowledges, the amended version of clause 2 that I successfully moved at Committee stage on 1 February is significantly more detailed than the previous version. It now gives a much clearer indication of how the relevant delegated powers might be exercised in future.
The Committee raised some concerns about the drafting of the revised clause, which I have addressed in the paragraphs below.
In paragraph 19 of the Report, the Committee queried the Government’s rationale for not using the remedial order process (under section 10 of the Human Rights Act 1998) to extend civil partnerships to opposite-sex couples. The Committee queried, in particular, the reference to the need to make “other changes that might be desirable or which are necessary” to establish a fully-functioning regime. I understand that the Government will need to consider a range of issues in order to bring about a fully-functioning and compliant opposite-sex civil partnership scheme. This includes matters such as future conversion rights which may not be consequential or incidental in nature and so may not fall within the limited scope of the remedial order-making power.
In paragraph 21 of the Report, the Committee restated its view that the principal changes to the Civil Partnership Act 2004 (“the 2004 Act”) should be set out on the face of the Bill, with a more limited power to make changes by regulations. The Committee queried the Government’s rationale for not adopting this approach. Again, changing the Bill in the way the Committee suggests could, I understand, prevent the Government from establishing a fully-functioning and compliant opposite-sex civil partnership regime. This is because the existing legal framework for civil partnerships, as set out in the 2004 Act, was designed only with same-sex couples in mind. Limiting the regulation-making power in clause 2 in the way the Committee suggests could prevent the Government from tackling issues such as religious protections and conversion rights that may go beyond changes that are simply consequential to the extension of eligibility to form a civil partnership.
In paragraph 22 of the Report, the Committee made four further recommendations:
- The Committee recommended that the power conferred by subsection (3) should be replaced by a more limited power which allows only the provisions in subsection (4) to be made by regulations. Since October, when the House of Commons agreed to extend civil partnerships via the Civil Partnerships, Marriages and Deaths (Registration etc.) Bill rather than through the Government’s proposed second session bill, the Government has worked hard to identify what changes might be needed to establish a new regime. I set out in clause 2(4) how the regulation-making power may be used but the Government has not, in the time available, been able to identify every potential issue that the regulations will need to cover. The list of provisions in subsection (4) is not, and is not intended to be, exhaustive.
- The Committee recommended that the consultation requirement in clause 2(6) should be applied to regulations made under subsections (3), (4) and (7), as well as those under subsection (5). I included in my amended clause 2 a duty on the Secretary of State to consult before making regulations on conversion rights as a further safeguard and because this issue will be of considerable interest to some organisations and members of the public. The Government has already announced its intention to consult on other elements of the new opposite-sex civil partnership scheme and including a wider duty to consult on the changes under clause 2 is, I suggest, unnecessary.
- The Committee recommended that clause 2(7) should either be narrowed or removed altogether unless the Government can provide a convincing justification for its inclusion. Subsection (7) makes provision for regulations that protect the ability to act in accordance with religious belief in relation to matters provided for in regulations made under clause 2. It is intended to allow provision for similar protection in relation to opposite-sex civil partnerships to that provided in relation to same-sex marriages and civil partnerships, and which will not be available under existing statutory provision. This includes issues such as whether to host an opposite-sex civil partnership on religious premises, which should remain a decision for an individual religious organisation to take. Again, the 2004 Act provisions were designed with same-sex couples in mind. Some religious organisations may object to hosting opposite-sex civil partnerships, given their belief in the sanctity of marriage. At the same time, they may choose not to solemnize same-sex marriages but may be prepared to host same-sex civil partnerships instead. Subsection (7) is not expressly linked to the extension of civil partnerships to opposite sex couples to ensure that appropriate provision for religious protection associated with conversion rights can be made. It is not designed to allow civil partnership registrars who do not want to conduct civil partnerships on religious grounds to opt out and I am assured that the Government does not intend to use the power in this way. It is worth noting that in 2013, the European Court of Human Rights found that requiring a registrar to conduct civil partnerships against her religious beliefs did not breach ECHR rights.
- Finally, the Committee recommended that no regulations should be made under clause 2 more than three years after Royal Assent. Clause 2(2) requires the Secretary of State to make regulations relating to eligibility for civil partnerships by the end of 2019. The other measures in clause 2 are not subject to a sunsetting provision as this would tie the hands of future governments to adjust the regime of opposite-sex civil partnerships should, for example, the policy on conversion rights change. The regulations under clause 2 are subject to the affirmative resolution procedure and so any future changes would be subject to parliamentary scrutiny and debate.
6 March 2019