marriage (same sex couples) bill -...
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MARRIAGE (SAME SEX COUPLES) BILL
DELEGATED POWERS MEMORANDUM
INTRODUCTION
1. This memorandum concerns the Marriage (Same Sex Couples) Bill as introduced into
the House of Lords on 22 May 2013.
2. This memorandum has been prepared to assist the Delegated Powers and Regulatory
Reform Committee in their consideration of the Bill. It identifies the provisions for
delegated legislation in the Bill. It explains the purpose of the delegated powers
taken, describes why the matter is to be left to delegated legislation, and explains the
procedure selected for each power and why it has been chosen.
SUMMARY OF PROPOSALS IN THE BILL
3. The purpose of the Bill is:
a. to allow same sex couples to marry in England and Wales and for such
marriages to be treated for all purposes as equivalent to marriage of opposite
sex couples in England and Wales;
b. to permit marriage of same sex couples by way of a civil ceremony and to
permit marriage of same sex couples according to religious rites and usages
where a religious organisation has opted in to that process (except in the case
of the Church of England and Church in Wales);
c. to provide protection under equality law for organisations and individual
ministers of religion who do not wish to marry same sex couples.
4. The Bill will also:
a. allow same sex couples who have registered a civil partnership in England and
Wales (and in specified circumstances abroad) to convert their relationship to
a marriage;
b. allow individuals to change their legal gender without having to end their
marriage;
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c. allow extra-territorial marriages of same sex couples to be treated in the same
way as marriages of same sex couples solemnized in England and Wales.
THE DELEGATION OF POWERS
Clause 6 (Armed forces chapels)
Power: to make regulations about the registration of military chapels for marriage.
Power conferred on: Secretary of State
Parliamentary procedure: affirmative resolution
Reasons for the power and procedure
5. Clause 6 amends Part 5 of the Marriage Act 1949 and in particular inserts a new
section 70A (registration of armed forces chapels) which provides for the registration
of naval, military and air force chapels for the solemnization of marriages of same sex
couples. Section 70A(5) confers power on the Secretary of State to make regulations
about the registration or cancellation of registrations of such chapels for that purpose.
Subsection (6) provides that regulations may include provisions about the procedures
to be followed and any consents that must be obtained. This power is needed because
each such chapel is used for worship by several religious organisations, some of
whom may have doctrinal objections to its use for marriage of same sex couples.
Since military chapels are Crown land, used for the purposes of the State, it is
necessary not only to accommodate the concerns of the religious organisations which
use them but also for the Secretary of State to ensure that the interests of same sex
couples who may wish to get married in such a chapel are taken into account. In
relation to shared civilian places of worship, the Bill requires that in certain
circumstances all of the organisations using the building must consent to its
registration for marriage of same sex couples. However, it is not possible to replicate
that provision as military chapels are Crown land, used for the purposes of the State.
The regulation-making power is designed to offer maximum flexibility to the
Secretary of State in balancing the different considerations.
6. Any use of this power could potentially create a difference between the State‟s
treatment of same sex couples and of opposite sex couples and would therefore
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require careful consideration and full Parliamentary scrutiny. It is for this reason that
any regulations made under this power would be subject to the affirmative resolution
procedure.
Clause 8 (Power to allow for marriage of same sex couples in Church in Wales)
Power: by Order to allow the Church in Wales to conduct marriages of same sex couples,
following decision of the Church’s Governing Body
Power conferred on: the Lord Chancellor
Parliamentary procedure: affirmative resolution
Reasons for the power and procedure
7. The Bill provides that a marriage of a same sex couple cannot be carried out on
religious premises or through a religious ceremony without the express consent of the
relevant governing authority. The Church of England and the Church in Wales are in a
unique position, in that their clergy are both under a common law duty to marry a
parishioner in their parish church (or one in which they have a qualifying
connection)1. Part 2 of the Marriage Act 1949, which provides that the Church of
England and the Church in Wales can marry couples without the authority of the
superintendent registrar has not been amended to enable marriage of same sex
couples. As the established Church, the Church of England can amend or repeal the
law if it were to decide in the future to allow for the marriage of same sex couples
according to the rites of the Church of England. This could be achieved through a
Measure passed by its Synod, provided the Measure is subsequently debated and
approved by both Houses of Parliament. However, the disestablishment of the Church
in Wales means that it does not have legislative powers, unlike the Church of England
(Welsh Church Act 1914) and will not be able to amend legislation should it decide,
in the future that it wishes to carry out marriage of same sex couples.
8. This clause therefore requires the Lord Chancellor by order to make such provision
as he considers appropriate to allow for the marriage of same sex couples according to
the rites of the Church in Wales, should the Governing Body of the Church in Wales
1 Agar v Holdsworth (1758) 2 Lee 515; Church of England Marriage Measure 2008 (2008 No.1).
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resolve that the law of England and Wales should be changed to allow for this to
happen. The provision that may be made under such an order includes provision
amending England and Wales legislation. In making an order under this section, the
Lord Chancellor must have regard to the terms of the resolution of the Governing
Body of the Church in Wales. The power of the Lord Chancellor to make such an
order cannot be transferred under a transfer of functions order and is therefore listed
in Schedule 7 to the Constitutional Reform Act 2005.
9. An order made under this power would be subject to affirmative resolution procedure
as it will amend primary legislation and impact upon marriage according to the rites
of the Church in Wales, which would require careful consideration and full
Parliamentary scrutiny, to ensure that it reflects the resolution of the Church in Wales.
Clause 9(1) (conversion of civil partnership into marriage)
Power: to make provision setting out the procedural arrangements enabling the parties to a
civil partnership registered in England and Wales to have their partnership converted into a
marriage
Power conferred on: Registrar General (with the consent of the Secretary of State)
Parliamentary procedure: none
Reasons for the power and procedure
10. Regulations made under this power will need to set out the procedure to be followed
by parties to a civil partnership registered in England and Wales who wish to convert
that partnership to a marriage. The conversion is intended to be a purely
administrative process: it will not amount to the solemnization of a new marriage, and
the rights, responsibilities and benefits which accrued to the parties to the civil
partnership will continue, so far as they are relevant to marriage. The detail of the
administrative process for conversion and where responsibility will lie for registering
the conversion is still under consideration by the Registrar General. However, it is
anticipated that the regulations will normally require a couple to attend a register
office in person as part of the application process.
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11. Subsection (1) empowers the Registrar General to make regulations enabling civil
partners who have registered their partnership in England or Wales to have their
partnership converted into a marriage.
12. Subsection (4) sets out the scope of the Registrar General‟s regulation-making power,
including regulations making provision for:
the application procedure for conversion;
the information required to support the application;
declarations to support an application to convert (for example, by the civil
partners themselves);
a requirement for applicants to appear, for example, before a local registrar or at a
register office to validate their identity;
connected functions on the Registrar General, local registrars and others, for
example record-keeping; issuing certified copies of records; conducting civil
ceremonies or services following conversion into a marriage;
application fees and fees for connected functions of the Registrar General or local
registrar.
13. Subsection (5) provides that the functions conferred on the Registrar General,
registrars or others in connection with the application to convert may include
functions relating to:
the recording of information;
issuing certified copies of records;
conducting civil ceremonies or services (other than religious services or
ceremonies) following conversion into a marriage.
14. Subsection (6) provides that regulations made under subsection (1) may not be made
without the consent of the Secretary of State.
15. Because of the administrative nature of the provision we do not propose to make the
power subject to any parliamentary procedure. This is consistent with the Registrar
General‟s powers under section 39 of the Births and Deaths Registration Act 1953,
section 74 of the Marriage Act 1949 and section 20 of the Registration Service Act
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1953 to prescribe the particulars required to be prescribed under those Acts by
statutory instrument.
Clause 9(2) (conversion of consular and armed forces civil partnerships into marriage)
Power: to make provision enabling the parties to a civil partnership formed under Chapter 1
of Part 5 of the Civil Partnership Act 2004 (registration at British consulates etc or by armed
forces personnel), where the relevant part of the United Kingdom is England and Wales, to
have their partnership converted into a marriage
Power conferred on: Secretary of State
Parliamentary procedure: none
Reasons for the power and procedure
16. Regulations made under this power will need to set out the procedure to be followed
by parties to a civil partnership registered in England and Wales who wish to convert
that partnership to a marriage, where the partnership was formed under Chapter 1 of
Part 5 of the Civil Partnership Act 2004 (i.e. on consular premises or by armed forces
personnel overseas), where the relevant part of the United Kingdom is England and
Wales. It is necessary to have a power exercisable by the Secretary of State, separate
from that conferred by clause 9(1), in order to maintain flexibility as to the procedure
for the conversion of consular and armed forces civil partnerships and because such
conversions may require a different process, involving different personnel, to those
civil partnerships registered in England and Wales. The conversion is intended to be a
purely administrative process: it will not amount to the solemnization of a new
marriage, and the rights, responsibilities and benefits which accrued to the parties to
the civil partnership will continue, so far as they are relevant to marriage. The detail
of the administrative process for conversion, and where responsibility will lie for
registering the conversion, is still under consideration.
17. As explained above in relation to clause 9(1), subsection (4) sets out the scope of the
Secretary of State‟s regulation-making power and subsection (5) outlines the matters
which functions conferred on the Registrar General or superintendant registrars may
include.
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18. Because of the administrative nature of the provision we do not propose to make the
power subject to any parliamentary procedure. This is consistent with our approach to
regulations made by the Registrar General under section 9(1) for the same purpose.
Clause 15(1) (transitional, transitory or saving provision)
Power: to make such transitional, transitory or saving provision as considered appropriate
in connection with the coming into force of any provision of the Act
Power conferred on: Secretary of State or the Lord Chancellor
Parliamentary procedure: affirmative resolution if the order amends an Act of Parliament;
otherwise negative resolution (The Secretary of State or Lord Chancellor must obtain the
consent of the Scottish Ministers and the Department of Finance and Personnel in Northern
Ireland before making any orders or regulations containing provision within the devolved
area of competence of the Scottish Parliament or Northern Ireland Assembly).
Reasons for the power and procedure
19. Subsection (1) enables the Secretary of State or the Lord Chancellor by order to make
such provision as they consider necessary or expedient for transitory, transitional or
saving purposes in connection with the commencement of any provision made by or
under the Bill.
20. The transitory, transitional or saving power is needed to facilitate the transition
between the current arrangements and the new regulatory regime introduced by the
Bill. Any modifications or exclusions made in relation to any enactment will be of a
temporary nature.
21. Before making any orders or regulations which contain provision within the devolved
area of competence of the Scottish Parliament or Northern Ireland Assembly the
Secretary of State or the Lord Chancellor must, in accordance with clause 16(6),
obtain the consent of the Scottish Ministers and the Department of Finance and
Personnel in Northern Ireland
22. Where the provision made under this power includes any amendment of an Act of
Parliament, it will be subject to the affirmative resolution procedure, to enable fuller
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scrutiny to be given to the order. Where no primary legislation is being amended, it is
not considered necessary for transitional and savings provision to require the approval
of each House in draft, and it is appropriate for such orders under this provision to be
subject to the negative procedure.
Clause 15(2) (consequential provision)
Power: to make such consequential provision as considered appropriate in consequence of
the Act
Power conferred on: Secretary of State or the Lord Chancellor
Parliamentary procedure: affirmative resolution if the order amends an Act of Parliament;
otherwise negative resolution
Reasons for the power and procedure
23. Subsection (2) confers power on the Secretary of State and the Lord Chancellor to
make such consequential provisions as they consider appropriate for the purposes of
the Bill. The powers conferred by this subsection are potentially wide. However, the
Bill contains far-reaching provisions and it is possible that not all of the consequences
have been identified in the Bill‟s preparation, given the many and varied references to
marriages in legislation. The Government considers that it would therefore be prudent
for the Bill to contain a power to deal with these in secondary legislation.
24. Before making any orders which contain provision within the devolved area of
competence of the Scottish Parliament or Northern Ireland Assembly the Secretary of
State or the Lord Chancellor must, in accordance with clause 16(6), obtain the consent
of the Scottish Ministers and the Department of Finance and Personnel in Northern
Ireland
25. The Parliamentary procedure to be followed depends upon the content of the order.
Where the provision made under this power includes any amendment of an Act of
Parliament, it will be subject to the affirmative resolution procedure. This is to enable
fuller scrutiny to be given to the order. Where no primary legislation is being
amended, it is not considered necessary for consequential provision to require the
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approval by resolution of each House in draft, and it is appropriate for such orders to
be subject to the negative procedure. It is submitted that this provides the appropriate
level of parliamentary scrutiny for the powers conferred by this subsection.
Clause 18(3) (commencement power)
Power: commencement power
Power conferred on: Secretary of State or the Lord Chancellor
Parliamentary procedure: none
Reasons for the power and procedure
26. Subsection (3) of clause 18 confers a power on the Secretary of State to bring
provisions of the Bill into force by commencement order. It is not usual for
commencement orders to be subject to parliamentary procedure, as Parliament will
have approved the principle of the provisions to be commenced by enacting them.
Commencement by order on such day as the Secretary of State appoints enables the
provisions to be brought into force at a convenient time.
Schedule 1, paragraph 2 (Section 43D Regulations about sections 41 and 43 and 43A to
43C)
Power: to make provision for the procedure on the registration of buildings and appointment
of authorised persons for marriage of same sex couples
Power conferred on: Registrar General (with the approval of the Secretary of State)
Parliamentary procedure: none
Reason for power and procedure
27. The Bill creates a system of registering buildings, and authorising people to conduct
marriages in the absence of a registrar, for the purposes of solemnizing marriages of
same sex couples. This is akin to the current system of registration of buildings for
marriages between a man and a woman. The power in new section 43D(1) enables the
Registrar General to set out the detail of the procedures to be followed by the
applicant, and by the superintendent registrar and Registrar General on receipt of an
application.
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28. The power enables specific provision to be made for simultaneous applications for
registration under both section 41 of the Marriage Act 1949 (registration of buildings:
marriages of a man and a woman) and section 43A of that Act (registration of
buildings: marriages of same sex couples). The power can also be used to set fees
(subsection (2(d)).
29. The Bill also inserts into section 43D a power to make regulations modifying the
usual procedure in the event that an application for registration under section 41 of the
Marriage Act 1949 (marriages of a man and a woman) is made in respect of a building
that is already registered under section 43A of that Act.
30. In accordance with existing powers of the Registrar General in relation to
administrative matters such as prescribing procedures and duties under the Marriage
Act 1949 (see section 74 of that Act) the regulations are made by the Registrar
General with the approval of the Secretary of State but are not subject to
parliamentary approval.
Schedule 1, paragraph 3 (Section 44A Building subject to Sharing of Church Buildings
Act 1969: registration)
Power: to make provision about the use of shared buildings for the solemnization of
marriages under section 26A
Power conferred on: Secretary of State
Parliamentary procedure: affirmative resolution
Reasons for the power and procedure
31. Schedule 1, paragraph 3 inserts new section 44A into the Marriage Act 1949 which
makes provision about the registration and cancellation of buildings for marriage of
same sex couples where the building is shared by more than one religious
organisation.
32. The Sharing of Church Buildings Act 1969 makes provision about the sharing and
using of church buildings by agreement (section 1 of that Act). Section 6 of the
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Sharing of Church Buildings Act 1969 makes provision about solemnization of
marriages in shared or other inter-denominational buildings and by modifications to
section 41 of the Marriage Act 1949.
33. Section 44A sets out that where a building is shared (or is inter-denominational by
virtue of being a chapel of a university, college, school or hospital etc as mentioned in
section 6(4) of the Sharing of Church Buildings Act 1969), then the consent of the
relevant governing authority of all religious organisations sharing the building is
required for registration for marriage of same sex couples.
34. The Secretary of State may make regulations about the use of shared buildings for the
solemnization of same sex marriage to supplement that provision and to make
provision about buildings which are not subject to a sharing agreement (or mentioned
in section 6(4)) under the Sharing of Church Building Act 1969). To ensure that the
power is not unnecessarily wide, certain key elements are set out on the face of the
Bill. The regulations may include provision setting out the procedure (including what
consents are required) where a building becomes or ceases to be a shared building, or
the sharers change whilst a registration for same sex marriage is subsisting. The
power will also enable provision to be made about consents required for registration
where there is no formal sharing agreement but the building is used by more than one
religious organisation.
35. Any regulations made under this power would be a matter of interest for any religious
organisation which shares such buildings for religious purposes and use of this power
would be a serious matter that would require careful consideration and full
Parliamentary scrutiny. Accordingly, the clause provides for the affirmative resolution
procedure.
Schedule 1, paragraph 3 (Section 44B of the Marriage Act 1949: Buildings subject to
sharing of Church Buildings Act 1969: cancellation)
Power: to make regulations about the cancellation of an application relating to shared
buildings used for the solemnization of marriages under section 26A of the Marriage Act
1949
Power conferred on: Secretary of State
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Parliamentary procedure: affirmative resolution
Reasons for the power and procedure
36. Schedule 1, paragraph 3 inserts new section 44B into the Marriage Act 1949 which
makes provision for the cancellation of the registration of buildings shared under a
formal sharing arrangement.
37. Section 44B provides for the application for the cancellation of registration of a
shared building which has been registered in accordance with section 44A of the
Marriage Act 1949 for the marriage of same sex couples. Section 44B(7) empowers
the Secretary of State to make regulations supplementing that section. Regulations
relating to such cancellation would be a matter of interest for any religious
organisation which shares such buildings for religious purposes and use of this power
would be a serious matter that would require careful consideration and full
Parliamentary scrutiny. Accordingly, the clause provides for the affirmative resolution
procedure.
Schedule 1, paragraph 3 (Section 44C of the Marriage Act 1949: Other shared
buildings: registration and cancellation)
Power: to make regulations about the registration and cancellation of an application relating
to other shared buildings used for the solemnization of marriages
Power conferred on: Secretary of State
Parliamentary procedure: affirmative resolution
Reasons for the power and procedure
38. Paragraph 3 of Schedule 1 inserts new section 44C into the Marriage Act 1949,
making provision about the registration and cancellation of buildings for marriage of
same sex couples where the building is shared by more than one religious organisation
otherwise than pursuant to an agreement within the meaning given in section 1 of that
Act or as mentioned in section 6(4) of the Sharing of Church Buildings Act 1969.
New section 44C(1) of the Marriage Act 1949 empowers the Secretary of State to
make regulations about the use for solemnization of marriages of same sex couples
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under section 26A of that Act, of buildings that are shared by more than one religious
organisation, where the procedure set out in sections 44B and 44C do not apply.
39. Any regulations made under this power would be a matter of interest for any religious
organisation which shares such buildings for religious purposes and use of this power
would be a serious matter that would require careful consideration and full
Parliamentary scrutiny.
Schedule 2, paragraph 1(1) (Scotland: treatment of English & Welsh marriages)
Power: to provide that a marriage of a same sex couple under the law of England and Wales
is to be treated under the law of Scotland as a civil partnership formed under the law of
England and Wales
Power conferred on: Secretary of State
Parliamentary procedure: affirmative resolution procedure, unless the order only contains
provision made under paragraph 1(2); otherwise negative resolution
Reasons for the power and procedure
40. Scotland are consulting on their own proposals for the introduction of same sex
marriage under Scottish law, and it is envisaged that their legislative proposals will
provide for the recognition of same sex marriages made in England and Wales on the
same basis as Scottish marriages of same sex couples will be recognised in England
and Wales. However, in the event that this Bill comes into force before the Scottish
legislation, there would be a period during which it would not be possible for
marriages of same sex couples entered into in England and Wales to be recognised as
marriages in Scotland, because of the current requirement in Scotland that marriage
should be between a man and a woman. Also, Part 5 of the Civil Partnership Act
2004, which sets out the circumstances in which certain relationships are capable of
being treated as a civil partnership, limits such recognition to relationships which are
registered in a country or territory outside the United Kingdom.
41. Accordingly, this clause gives the Secretary of State power to make an order
providing that a marriage of a same sex couple under the law of England and Wales is
to be treated under the law of Scotland as a UK civil partnership. This power may be
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exercised only if same sex marriage is not lawful in Scotland and with the consent of
Scottish ministers.
42. If marriages of same sex couples are lawful under Scottish law, it is assumed that
marriages of same sex couples entered into in England or Wales will be recognised as
marriages under Scottish law.
43. The affirmative resolution procedure is provided for an order under this provision,
unless it only contains provision under paragraph 1(2) of Schedule 2.
Schedule 2, paragraph 1(2) (Treatment of marriage of same sex couples in Scotland:
varying or undoing the effect of an order under paragraph 1(1) )
Power: to vary or undo treatment under the law of Scotland of provision that a marriage of a
same sex couple solemnized under the law of England and Wales is to be treated as a civil
partnership formed under the law of England
Power conferred on: Secretary of State
Parliamentary procedure: affirmative resolution if the order contains provision made under
paragraph 1(2); otherwise negative resolution
Reasons for the power and procedure
44. This provision gives the Secretary of State a power to make a supplementary order,
which would allow him or her to vary or undo the effect of an order made under
paragraph 1(1) in particular cases.
45. Although paragraph 1(1) gives the Secretary of State a power to make an order
providing that, generally, a marriage of a same sex couple under the law of England
and Wales is to be treated under the law of Scotland as a United Kingdom civil
partnership, subparagraph (2) is needed because in certain circumstances the Secretary
of State may not want such a marriage to be treated in this way. For example, part 5 of
Schedule 4 to the Bill provides that same sex spouses qualify for state pension based
on a spouse's National Insurance on the same basis as civil partners. However it
makes an exception for women whose husbands change gender, to prevent any loss of
entitlement that may otherwise ensue as a woman in a same-sex marriage. In the
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event that such a couple moved to Scotland, the effect of treating them as civil
partners could result in the wife losing entitlement. To restore the entitlement, the
supplementary power in sub-paragraph (2) could be used to rein back the effect of the
main order. This is a limited power which can only be used in relation to the effect of
an order made under subparagraph (1). The Parliamentary procedure to be followed
depends upon the content of the order. Where an order contains provision which can
be made under paragraph 1(1) it will require approval by resolution of each House.
Where an order does not contain provision made under paragraph 1(1) it is
appropriate for such orders to be subject to the negative procedure. It is submitted that
this provides the appropriate level of parliamentary scrutiny for the powers conferred
by this subparagraph.
Schedule 2, paragraph 2 (Treatment of marriage of same sex couples in Northern
Ireland: varying or undoing the effect of paragraph 2(1))
Power: to vary or undo treatment marriage of a same sex couples solemnized under the law
of England and Wales is to be treated as a civil partnership in Northern Ireland
Power conferred on: Secretary of State
Parliamentary procedure: negative resolution
Reasons for the power and procedure
46. Paragraph 2 of Schedule 2 provides that marriages of same sex couples under the law
of England and Wales are to be treated as civil partnerships in Northern Ireland.
Paragraph 2(2) provides an order-making power for the Secretary of State to vary or
undo that treatment in particular cases.
47. This power is needed because in certain circumstances it may not be desirable for
such a marriage to be treated in this way This power is needed because when the
effect of the provisions in paragraph 2(2) do not achieve the desired effect and
appropriate alternative provision will need to be made. This is a fairly limited power
and as does not include the power to amend primary legislation. It is submitted that
this provides the appropriate level of parliamentary scrutiny for the powers conferred
by this subsection.
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Schedule 4, paragraph 5 (Power to make provision corresponding to Council
Regulation 2201/2003)
Power: to make provision as to the jurisdiction of courts in England and Wales over
matrimonial matters concerning the marriages of same sex couples
Power conferred on: The Lord Chancellor
Parliamentary procedure: affirmative resolution
Reasons for the power and procedure
48. Overseas same sex couples who enter into a marriage in England and Wales but
remain or become habitually resident or domiciled in another country may not be able
to end their marriage in that country if it does not recognise the existence of their
relationship. Part 4 of Schedule 4 to the Bill amends the Domicile and Matrimonial
Proceedings Act 1973 to provide a "jurisdiction of last resort" so that those same sex
couples who are unable to divorce or obtain some other matrimonial decree in the
country which would normally have jurisdiction are able to have their case heard in
the courts in England and Wales. "Jurisdiction" means the authority of a court to deal
with the case.
49. Part 4 of Schedule 4 to the Bill inserts a new Schedule 1A into the Domicile and
Matrimonial Proceedings Act 1973. Paragraph 5 of new Schedule A1 enables the
Lord Chancellor to make regulations dealing with the jurisdiction of the courts to deal
with divorce, judicial separation and nullity cases and dealing with the recognition of
such orders for a married same sex couple. The regulations would apply where one of
the couple is or has been habitually resident in a Member State of the European Union
(EU), is an EU national or is domiciled in a part of the United Kingdom or the
Republic of Ireland. The regulations may correspond with the terms of Council
Regulation (EC) No 2201/2003 (known as Brussels IIa) on jurisdiction, recognition
and enforcement of judgments in matrimonial matters and in matters of parental
responsibility, which deals with marriage of opposite sex couples. The provisions on
recognition of judgments can apply retrospectively.
50. A statutory instrument containing these regulations will be subject to the affirmative
resolution procedure in order to ensure proper scrutiny of its provisions.
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51. These are detailed matters which it is appropriate to deal with through a power of this
kind. Use of this power will also ensure that, in the event of future changes to the
relevant EU legislation, parallel changes can be made in relation to marriage of same
sex couples. This is consistent with the Lord Chancellor‟s power under section 219 of
the Civil Partnership Act 2004, which gives the Lord Chancellor the power to make
regulations concerning the jurisdiction of the courts in England and Wales to dissolve
or annul civil partnerships or to separate civil partners.
Schedule 4, paragraph 14 (Graduated retirement benefit)
Power: to make provision enabling a surviving same sex spouse to inherit graduated
retirement benefit
Power conferred on: Secretary of State
Parliamentary procedure: negative resolution
Reasons for the power and procedure
52. The graduated retirement benefit scheme (the precursor to the state earnings-related
pension scheme) was closed in 1975 but rights built up in it are preserved. The
relevant provisions (sections 36 and 37 of the National Insurance Act 1965) are
continued in force by regulations. These provisions may be modified under powers in
section 62 of the National Insurance Act 1992 so as to maintain alignment between
the graduated retirement benefit scheme and the principal state pension scheme,
where applicable. The additional powers inserted in section 62 of that Act are needed
to enable section 37 to be modified so as to extend graduated retirement pension
inheritance to surviving same-sex spouses. The powers are drawn so as to mirror the
equivalent regulation-making powers used to extend inheritance rights to civil
partners, who have the same rights as widowers currently; that is, where the survivor
reached pension age before 6 April 2010, they may inherit half the deceased‟s
graduated retirement benefit only if bereavement is after both members of the couple
have reached pension age. This restriction mirrors the restriction made in this
Schedule in relation to the principal state pension scheme.
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53. These powers are used to amend primary legislation and are subject to the negative
resolution procedure. This is consistent with powers in section 176 of the Social
Security Contributions and Benefits Act 1992.
Schedule 4, paragraph 23 (Power to make regulations about relevant gender change
cases)
Power: to set conditions for a widow in a relevant gender change case to be treated as if she
was a widow of a man in relation to inheritance of guaranteed minimum pension
Power conferred on: Secretary of State
Parliamentary procedure: negative resolution
Reasons for the power and procedure
54. Occupational Pension Schemes that were contracted out between 1978 and 1997 are
required to provide a minimum pension benefit (the guaranteed minimum pension or
„GMP‟). Schemes are required to provide survivors of scheme members („earners‟)
with half of the GMP but widows are entitled to half of any GMP accrued between
1978 and 1997 whereas widowers and surviving civil partners are entitled to half of
any GMP accrued between 1988 and 1997. Paragraphs 18 to 26 of Schedule 4
provide for same sex married couples to be treated in the same way as civil partners.
An exception is made for a widow of a same sex marriage in a „relevant gender
change case‟. This is a case where the earner was a woman by virtue of a gender
recognition certificate having been issued and the earner and her widow were married
before the certificate was issued. Widows in these cases will be entitled to inherit
half the GMP based on accruals back to 1978.
55. In order to benefit from this exception, widows in these cases will need to produce
evidence of their spouse having changed gender to support their claim for pension
benefits. Paragraph 20A inserts new section 38A into the Pension Schemes Act to
enable regulations to be made to specify the detail of what information may be needed
to be provided or other conditions that may be met before scheme trustees are obliged
to treat these widows as if they were widows of opposite sex marriages. Under
subsection 38A(3) regulations may also specify what schemes must do if the required
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information is not provided or the conditions are not met for this special exception to
apply.
56. These powers are subject to the negative resolution procedure. This is consistent with
other powers that make similar provision in the Pension Schemes Act.
Schedule 4, paragraph 27 (Contrary provision)
Power: to make provision modifying or disapplying any of the equivalence provisions in their
application in a specified case
Power conferred on: Secretary of State
Parliamentary procedure: negative resolution
Reasons for the power and procedure
57. Clause 11(1) and (2) and Schedule 3 provide that marriage of same sex couples is to
be treated as equivalent to marriage of opposite sex couples in England and Wales
(“the equivalence provisions”). All England and Wales legislation is to be read
subject to these provisions unless the context otherwise requires. Clause 9(7)(b)
provides that where a civil partnership is converted into a marriage the resulting
marriage is to be treated as having subsisted since the date the partnership was
formed. Paragraph 27(1)(a) of Schedule 4 provides that the provisions in Clause 11
(1) and (2), Schedule 3 and Clause 9(7)(b) (defined by paragraph 24(4) as the
“relevant enactments”) are subject to the preceding provisions of the Schedule, which
provide where the equivalence provisions do not apply. Those preceding provisions
relate to: existing private legal instruments, presumption of legitimacy, divorce and
annulment of marriages, jurisdiction of matrimonial proceedings, state pension and
occupational pension and survivor benefits. In addition, paragraph 27(1)(b) of
Schedule 4 provides that the relevant enactments are subject to any order made under
sub-paragraph (3) of that paragraph. Paragraph 27(1) is needed because it is not
desirable for the wide general effect of the equivalence provisions to apply in all
matters and the preceding provisions in Schedule 4 set out specific areas where that
effect should not apply. Subsection (3) provides the Secretary of State with a power to
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specify cases in which the equivalence provisions set out in a relevant enactment will
apply subject to specific modifications or will not apply.
58. Although the preceding paragraphs in Schedule 4 set out a number of provisions
where the equivalence provisions will not apply it is possible that the Government has
not identified every possible undesired effect. The power is needed to ensure that
where the effect of the equivalence provisions do not achieve the desired effect, the
effect may be corrected. This is a fairly limited power, as it cannot be used to amend
primary legislation and can only be used to modify the effect of the relevant
enactments contained in the Bill. It is submitted that the negative resolution procedure
provides the appropriate level of parliamentary scrutiny for the power conferred by
this paragraph.
Schedule 5, paragraph 10(2) (Registration)
Power: to make regulations about the registration of marriages and civil partnerships that
continue following the change of legal gender of one or both parties
Power conferred on: Registrar General
Parliamentary procedure: none
Reasons for the power and procedure
59. At present under section 10(1) of the Gender Recognition Act 2004 (“the 2004 Act”),
the Secretary of State must send a copy of a full gender recognition certificate to the
Registrar General of the country in which the recipient‟s birth certificate is registered.
In England and Wales, once in receipt of a certificate, the Registrar General for
England and Wales makes an entry in the Gender Recognition Register (which was
created under paragraph 2 of Schedule 3 to the 2004 Act) and makes certain
amendments to the birth entry of the person in receipt of the full gender recognition
certificate. The procedure for amendments to birth entries is set out in the Gender
Recognition Register Regulations (S.I. 2005/912) made by the Registrar General for
England and Wales under paragraph 3(1)(b) of Schedule 3 to the 2004 Act.
21
60. If a marriage or civil partnership will continue following a change of legal gender of
one or both parties, in addition to changes to the birth entry, couples may wish to seek
a new marriage or civil partnership entry from the General Register Office of England
and Wales.
61. Paragraph 10 therefore makes similar provision to that which already exists for the
registration of births, marriages and civil partnerships. Paragraph 10(1) amends
section 10 of the 2004 Act to require the Secretary of State to send a copy of the full
gender recognition certificate(s) issued to one or both parties to a marriage or civil
partnership to the Registrar General for England and Wales. Paragraph 10(2) amends
Part 1 of Schedule 3 to the 2004 Act and provides the Registrar General for England
and Wales with a power to make regulations about the registration of marriages and
civil partnerships where one or both parties have been issued with full gender
recognition certificates. In particular, the regulations may provide for the
maintenance of separate marriage and civil partnership registers that record details of
qualifying marriages and civil partnerships.
Schedule 6, paragraph 1 (Provision for consular marriage)
Power: to make provision for two people to marry each other in the presence of a consular
officer in prescribed countries or territories outside the United Kingdom
Power conferred on: Her Majesty in Council
Power exercisable by: Order in Council
Parliamentary procedure: (a recommendation cannot be made to Her Majesty to make an
order unless a draft of the statutory instrument containing the Order in Council has been laid
before and approved by a resolution of each House of Parliament)
Reasons for the power and procedure
62. Consular Marriages (that is, marriages conducted by Foreign and Commonwealth
Office officials at British embassies and consulates outside the United Kingdom) are
currently governed by the Foreign Marriage Act 1892, the Marriages with Foreigners
Act 1906, and the Foreign Marriage Order 1970. The power is being taken to update,
amend and repeal the provisions for consular marriage, and to bring the procedural
requirements for consular marriages into line with those for civil partnerships
22
performed and registered by FCO officials (consular civil partnerships). There are a
number of differences in the existing legislation between the provisions for marriages
and civil partnerships (for example, consular civil partnerships may take place in any
country or territory outside the United Kingdom2; consular marriages may only take
place in non-commonwealth countries);3 and under article 3 of the Foreign Marriage
Order 1970, there is a requirement for evidence that the marriage will be valid in the
country of domicile of the parties, which does not apply to consular civil partnerships.
Paragraph 1 of Schedule 6 to the Bill therefore provides for an enabling power to
make provision for consular marriages in the same terms as the enabling power set out
in section 210 of the Civil Partnerships Act 2004, which permits provision to be made
by Order in Council for the registration of civil partnerships abroad.
63. Most of the provisions required in relation to such marriages will relate to matters of
procedure as to the way in which a marriage may be entered into at an overseas
diplomatic post (such as the procedure for giving notice, the consents required and the
lodging of caveats). They will not involve significant issues of principle and it is
therefore appropriate for such provision to be made in secondary legislation (consular
civil partnerships are also wholly provided for in secondary legislation). This will
also allow for easier updating and revision of the provisions when this becomes
necessary (when, for example, new countries or territories need to be added to the list
of prescribed countries). The power in section 210 of the Civil Partnership Act 2004
is subject to the negative resolution procedure. However, the power being taken in
paragraph 1 of Schedule 6 may be used to amend, repeal or revoke primary legislation
(as set out in paragraph 14(3) of Schedule 6 to the Bill) and therefore a
recommendation cannot be made to Her Majesty to make an order unless a draft of
the statutory instrument containing the Order in Council has been laid before and
approved by a resolution of each House of Parliament. If the Order in Council makes
provision which would be within the legislative competence of either the Scottish
Parliament or the Northern Ireland Assembly, there is a requirement to consult
Scottish Ministers or the Department of Finance and Personnel (as the case may be)
before any recommendation to Her Majesty to make the Order in Council is made.
2The Civil Partnership (Registration Abroad and Certificates) Order 2005 S.I. 2005/2761, article 4(1).
3 Section 1(1) of the Foreign Marriage Act 1892 permits consular marriage in “any foreign country or place”.
This has been interpreted as meaning non-Commonwealth countries).
23
Schedule 6, paragraph 7 (Provision for certificates of no impediment)
Power: to provide for the issue of certificates of no impediment to UK nationals and other
prescribed persons who wish to marry persons who are not UK or Commonwealth nationals
in prescribed countries outside the UK
Power conferred on: Her Majesty in Council
Parliamentary procedure: a recommendation cannot be made to Her Majesty to make an
order unless a draft of the statutory instrument containing the Order in Council has been laid
before and approved by a resolution of each House of Parliament
Reason for power and procedure
64. Provision for the issue of certificates of no impediment (that is, certificates that there
are no objections to a marriage, which may be required for marriage in a foreign
country) (“CNI”), is governed by section 1 of, and the Schedule to, the Marriages
with Foreigners Act 1906. As with consular marriages, there are a number of
differences between the provision made for CNIs required for a foreign marriage, and
CNIs required for an overseas relationship equivalent to a civil partnership (which are
subject to article 17 of the Civil Partnership (Registration Abroad and Certificates)
Order 20054. This power is being taken to update the provisions relating to CNIs for
marriages, and in particular to align the conditions for their issue with those applying
to civil partnerships. The power is in the same terms as that set out in section 240 of
the Civil Partnership Act 2004, which gives power to make provision in relation to
CNIs for overseas partnerships. The power in section 240 of the Civil Partnership
Act 2004 is subject to the negative resolution procedure, but as the power being taken
in paragraph 4 of Schedule 6 permits the amendment of primary legislation (including
its repeal or revocation) (it is proposed to repeal section 1 of, and the Schedule to, the
Marriages with Foreigners Act 1906), therefore a recommendation cannot be made to
Her Majesty to make an order unless a draft of the statutory instrument containing the
Order in Council has been laid before and approved by a resolution of each House of
Parliament. If the Order in Council makes provision which would be within the
4 S.I. 2005/2761.
24
legislative competence of either the Scottish Parliament or the Northern Ireland
Assembly, there is a requirement to consult Scottish Ministers or the Department of
Finance and Personnel (as the case may be) before any recommendation to Her
Majesty to make the Order in Council is made.
Schedule 6, paragraph 8 (Provision for marriage of armed forces personnel)
Power: to provide for the marriage of armed forces personnel and accompanying civilians in
prescribed countries or territories outside the UK
Power conferred on: Her Majesty in Council
Parliamentary procedure: a recommendation cannot be made to Her Majesty to make an
order unless a draft of the statutory instrument containing the Order in Council has been laid
before and approved by a resolution of each House of Parliament
Reasons for the power and procedure
65. The Foreign Marriage (Armed Forces) Order 1964 made under section 22 of the
Foreign Marriage Act 1892, currently enables armed forces personnel serving
overseas, and civilians employed in related occupations, to marry in the presence of a
chaplain or authorised officer. Section 22 provides that such a marriage is valid as if it
had been solemnized in the United Kingdom. If it authorised the marriage of same sex
couples, such marriages would have effect under the law of every part of the United
Kingdom. It is therefore necessary to provide power to make a new Order in Council
(in place of the 1964 Order) which will authorise armed forces marriages only where
the couple would have been eligible to marry in a particular part of the United
Kingdom, to be determined in accordance with the order. The marriage of a same sex
couple would thus be authorised only if the relevant part of the United Kingdom is
one which permits such marriages.
66. Armed forces marriages may involve a religious ceremony, and marriages of same
sex couples may therefore require special consideration. For example, it may be
appropriate to require the consent of a religious organisation to the solemnization of a
marriage of a same sex couple in accordance with that organisation‟s rites or usages,
or to the solemnization of any such marriage (albeit in accordance with rites or usages
of another religious organisation) in a chapel which it uses for worship. Any
25
regulations made under this power would be a serious matter that would require
careful consideration and full parliamentary scrutiny. Accordingly, a recommendation
cannot be made to Her Majesty to make an order unless a draft of the statutory
instrument containing the Order in Council has been laid before and approved by a
resolution of each House of Parliament. If the Order in Council makes provision
which would be within the legislative competence of either the Scottish Parliament or
the Northern Ireland Assembly, there is a requirement to consult Scottish Ministers or
the Department of Finance and Personnel (as the case may be) before any
recommendation to Her Majesty to make the Order in Council is made.
Department for Culture Media and Sport
May 2013