On 29th June 2018 the House of Lords considered in Committee the Registration of Marriage Bill [HL], a Private Member’s Bill introduced by the Bishop of St Albans, Rt Revd Alan Smith. The Bishop moved a number of amendments to the Bill in response to points raised by Peers at an earlier stage. Being content with the amendments, the House passed them and the Bill completed its Committee Stage. A full transcript is below:
Clause 1: Power for Secretary of State to make regulations about marriage registration
Moved by the Lord Bishop of St Albans
1: Clause 1, page 1, line 2, leave out subsections (1) and (2) and insert—
“(1) The Secretary of State may, by regulations, amend the Marriage Act 1949 to provide for a system whereby details relating to marriages in England and Wales are recorded in documents used as part of the procedure for marriage, and entered into and held in a central register which is accessible in electronic form.”
The Lord Bishop of St Albans: My Lords, I want to move Amendment 1 and speak to the other amendments in my name in the group. Their purpose is to limit the scope of delegated powers to amend legislation conferred by the Bill. I am most grateful to the noble Lord, Lord Blencathra, and the committee for its considered response to the provisions in the Bill.
The Bill’s purpose is straightforward and clear: to enable the system for registering marriages to be flexible enough to include the names of each of the couple’s parents, while taking the opportunity to introduce a secure and reliable digital system of registration. The amendments, which are a direct response to the committee’s observations, put into sharper focus the changes in law that are needed for that specific purpose. In fact, the essence of the Bill is that its scope is restricted. It relates only to the registration of marriage, not any aspect of the solemnisation of marriage—that is, the who and when and how and where of marriage ceremonies.
I want to explain the proposed changes in more detail. I have worked closely with Home Office officials to consider the amendments that could be made to the Bill to limit the delegated powers it currently contains. The amendments are quite technical, but I assure noble Lords that they do not affect the policy intent behind the Bill in any way. I thank the Minister for making illustrative regulations available in the Library to demonstrate how the Marriage Act 1949 will be amended.
Clause 1 currently confers a broad power on the Secretary of State,
“to amend, repeal … any provision made by or under any Act of Parliament”.
That power is wider than is needed to bring in the required changes. Any changes to primary legislation will now be limited to amending the Marriage Act 1949. The regulations would change the current procedures in Part III, “Marriage under Superintendent Registrar’s Certificate”, to provide that a marriage can be solemnised on the authority of a single schedule for the couple instead of two authorities, one for each person, as is currently the case.
The regulations would also provide for a member of the clergy to issue the equivalent of a marriage document for marriages that have been preceded by ecclesiastical preliminaries, such as the calling of banns or the granting of a common licence. Once a marriage ceremony has taken place, the signed marriage schedule or document will be returned to the local registry office for entry in the electronic register and a certificate will be issued.
A sunset clause will also be included in Clause 4, which places a time limit on the Secretary of State’s use of their power to amend primary legislation to a period of three years, beginning on the day when the regulations are first made.
I assure noble Lords that the regulations that amend the Marriage Act to introduce a schedule system would be subject to the affirmative resolution procedure and will require the approval of both Houses of Parliament. I hope that this will assure the House that it will continue to oversee any changes made to primary legislation.
The committee raised concerns that the power for the Registrar-General to make regulations in Clause 2 may entail delegation on matters that are currently provided for in the Marriage Act. That was never the intention, so it is proposed to limit the scope of the powers to making regulations under Section 74(1) of the Marriage Act.
The provisions in the Marriage Act which refer to the Church of England are construed as referring also to the Church in Wales unless otherwise required, in accordance with Section 78(2). However, it is proposed to amend Clause 2(1)(f), which relates to the keeping of records of all marriages solemnised in the Church of England to include reference to the Church in Wales. This will enable the Registrar-General to make different provisions for the keeping of records, if required, in the Church of England and the Church in Wales.
The powers in Clause 2 would be used to enable the Registrar-General to make regulations to prescribe the content of the marriage schedule or document and for how long they should be kept. They would make provisions to correct or reissue a marriage schedule or document prior to the marriage taking place if any information, such as the couple’s occupations, has changed since a notice of marriage was given or after ecclesiastical preliminaries.
The regulations also make provision for the keeping and maintenance of existing paper marriage registers and how the entries should be corrected. These regulations made by the Registrar-General are procedural and intended only to supplement the relevant provisions in the Act.
We have included a consequential amendment in the Bill in Clause 3 to repeal the Marriage of British Subjects (Facilities) Acts 1915 and 1916. These provisions are rarely used and would no longer work with the introduction of a schedule system.
I hope that the amendments I propose to make to the Bill provide noble Lords on the Committee with reassurance regarding use of the delegated powers in the Bill. We very much value the scrutiny that the House provides through the legislative process. I beg to move.
The Lord Speaker (Lord Fowler): My Lords, I should inform the Committee that, if this amendment is agreed to, I am unable to call Amendment 2 by reason of pre-emption.
Lord Cormack (Con): My Lords, I congratulate the right reverend Prelate on being so specific and particular. In fact, he has been exemplary in the way he has sought to limit delegated powers. He has given a lesson to us all, on which he should be most warmly congratulated.
Baroness Hamwee (LD): My Lords, I am afraid I was unable to speak at Second Reading. My noble friend Lady Scott of Needham Market is unable to be here. She takes a keen interest in matters genealogical and in registration. I am glad to have had the opportunity of the prompt to look at this. I congratulate the right reverend Prelate, as others have done.
The point I will raise is not to carp, but because I do not want to find that there has been a problem later on. I evidence that by saying that, when I came into this House I was asked, as we all are, by various directories to provide biographical details and I was asked for my father’s details, I said, “You can publish my father’s details if you publish my mother’s as well. It’s both or neither”.
I shall speak to Amendment 13, which brings the Clause 2 powers under Section 74(1) of the Marriage Act. I had some email correspondence yesterday with the General Register Office. I am very grateful to the official there. I will read the short paragraphs that constrain the power in Section 74. It allows for regulations,
“prescribing the duties of … authorised persons under this Act … prescribing anything which by this Act is required to be prescribed”.
It was not obvious to me that, within that prescription, one can bring in the provisions of Clause 2, as distinct from inserting as new paragraphs the paragraphs that are listed in Clause 2. I understand that that is what is envisaged and that the GRO takes the view—I am reading from an email from it—that the powers in Section 74,
“could be used to prescribe matters quite broadly”,
and that this would be sufficient.
I felt that, since this is the opportunity to raise issues—I am sorry that the right reverend Prelate might not have had notice through the various email contacts that I was going to raise this—it would be wrong of me just to ignore it at this stage. As I say, it is not to carp; it is intended to anticipate a possible problem, and I am probably wrong about it.
Lord Rosser (Lab): I will be brief. We supported the Bill at Second Reading, since when we have had the opportunity, as we all have, to read the report of the Delegated Powers and Regulatory Reform Committee, which has been quite forthright in the views it has expressed about the Bill’s wording as it stands. The committee pointed out that Clause 1 conferred very broad powers on the Secretary of State to make regulations about marriage registration. Indeed, Clause 1(2) includes a power to amend or repeal any provision made in any Act of Parliament. The committee expressed concern that the broad power was far wider than required to meet the policy aims of the Bill. It also had reservations, which the right reverend Prelate has already addressed, relating to Clause 2.
The amendments that have been brought forward are intended to address the quite justifiable concerns raised by the Delegated Powers and Regulatory Reform Committee. I assume that they achieve that objective. I noticed that the right reverend Prelate said that he has worked with officials at the Home Office. I do not know whether that means that he has worked with officials from the Home Office over not only these amendments but the original wording of the Bill, because I am curious as to why the Bill was drawn up in such wide-ranging terms, as far as the use of delegated powers is concerned, in the first place when presumably it could have been drawn up in the terms that these amendments seek to change the wording of the Bill. Would I not be right in saying that it would have been far more satisfactory if the Bill had been drawn up in the terms of the amendments we are now dealing with in the first place?
Lord Blunkett (Lab): My Lords, I shall not hold up the Committee. As a Methodist, and having sat through Second Reading and heard the right reverend Prelate this morning, I just wanted to say how grateful I am for a masterclass in how the Church of England operates.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con): My Lords, I thank the right reverend Prelate the Bishop of St Albans for his continued support in bringing forward changes to the way in which marriages are registered. Under present legislation, the marriage register entry provides space for the name of the father of each of the couple to be recorded but not that of the mother, and that has been the case since 1837.
This situation is outdated and it is widely accepted that changes are required to address this inequality. There has been growing pressure both from within Parliament and from the public for reform. For example, an online petition attracted in excess of 70,000 signatures. However, it should be noted that when deciding how the marriage entry should be updated we will need to ensure that we allow for all the different family circumstances in society today—for example, same-sex parents.
The most efficient and economical way to introduce these changes is to reform the way in which marriages are registered in England and Wales by moving to a “schedule”- based system similar to that in place for marriages and civil partnerships in Scotland and Northern Ireland and for civil partnerships in England and Wales.
The basis of a schedule system is that the couple sign a marriage schedule instead of the marriage register book. Couples will still be able to have that all-important traditional photo taken after the ceremony with their witnesses, but instead of signing the marriage register they will sign the marriage schedule with their witnesses. The schedule will contain all the information to be entered into the electronic marriage register maintained by the Registrar-General.
Those marrying in the Church of England or Church in Wales will still be able to marry by ecclesiastical preliminaries—for example, the publishing of banns or the issue of a common licence. Where ecclesiastical preliminaries are used, the member of the clergy will issue a “marriage document” similar to the schedule issued by the superintendent registrar, which will be returned to—
Lord Cormack: Why cannot we use the traditional word, “register”? Why do we have to go in for “schedule”?
Baroness Williams of Trafford: I think that it is because we are dealing here with the legality rather than the tradition. I understand my noble friend’s point, but I would hope that such a small but important matter did not derail this important Bill. I am not for a moment suggesting that that is my noble friend’s intention; I understand his point.
Moving from a paper-based system to registration in an electronic register will facilitate the updating of the marriage entry to include both parents of each of the couple without having to replace all register books and it would introduce savings of £33.8 million over 10 years. The changes which the right reverend Prelate seeks are not controversial and have received a lot of cross-party support, hence the support in the Chamber today.
As the Bill contains delegated powers. I advised at Second Reading that the Home Office would produce and publish illustrative regulations prior to Committee to demonstrate to noble Lords how the powers in Clause 1 would be used. I can confirm that the draft regulations were made available in the Library of the House on 17 April.
I must emphasise that the regulations are an early draft and further drafting is required. We would welcome any comments from noble Lords on the content. It is our aim to be transparent during the process of amending the Marriage Act 1949 as we move towards the introduction of the schedule system.
We will continue to work with all key stakeholders, including the Church of England, in developing the policy. I will make further drafts of the regulations available in the Library in due course. I assure noble Lords that the changes to the Marriage Act will be made using the affirmative resolution procedure, ensuring they are debated in both Houses of Parliament and providing parliamentary oversight.
My noble friend Lord Blencathra expressed concern at Second Reading about the use of delegated powers in the Bill. To address those concerns, I can confirm that Home Office officials have been working with the right reverend Prelate to make technical amendments to Clauses 1 and 2 to limit the use of delegated powers to introduce these changes and to provide noble Lords with some reassurance as to how the powers are intended to be used.
The scope of the enabling language in Clause 1 will be narrowed to reflect the policy intent of the Bill to replace the current paper-based system with an electronic schedule-based system. Amendments required to primary legislation will be limited to the Marriage Act 1949. The broad power in Clause 1(2), which gives the Secretary of State the power to amend, repeal or revoke provisions in other Acts of Parliament, will be removed. As the right reverend Prelate has already explained, it is also proposed to include a sunset clause in the Bill limiting the power for the Secretary of State to make regulations which amend primary legislation to a period of three years beginning on the day on which the regulations are first made.
Concern has been raised that the powers in Clause 2 may delegate matters currently provided for in primary legislation. Amendments to Clause 2 will limit the scope to making regulations under Section 74(1) of the Marriage Act. I reassure the noble Baroness, Lady Hamwee, and the House that these regulations are intended only to supplement the current provisions in the Act.
I know that noble Lords recognise the importance of taking these changes forward to modernise the process of registering marriages, and I hope that the amendments made to the Bill will provide some reassurance to them of the value we place on parliamentary scrutiny throughout the legislative process.
I want finally to answer a question posed by the noble Lord, Lord Rosser. When the Bill was drafted, the policy was not so advanced and the powers in the Bill provided flexibility. We have been working closely with Home Office officials to develop policy further, which has allowed us to make these changes.
The Lord Bishop of St Albans: I am grateful to the Minister for her summary and for responding to the two points made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser. More importantly, I should point out that part of the problem in the early stages, where I have been grateful to have advice from all sorts of people, is my sheer personal ineptitude in understanding what I might have been proposing. Somebody in my position without legal training does not always understand the breadth of what is offered. I am sorry about that. We have been grateful for the clarity with which the committee pointed out some of the implications. That is why we worked hard to try to get through this very simple legislation.
There is clamour from all over the place for this very simple, focused change, particularly from young women, who are horrified and astonished that it has not happened already. What caught me by surprise was a number of genealogists writing to me to point out that we are out of step with many countries and that, over the decades, this change will make a huge difference to people’s ability to understand their background. I hope that we can fully support it.
Amendment 1 agreed.
Amendment 2 not moved.
Amendments 3 to 11
Moved by The Lord Bishop of St Albans
3: Clause 1, page 1, line 7, leave out “, amend the Marriage Act 1949”
4: Clause 1, page 1, line 8, leave out “to”
5: Clause 1, page 1, line 13, leave out first “to”
6: Clause 1, page 1, line 17, leave out first “to”
7: Clause 1, page 1, line 19, leave out first “to”
8: Clause 1, page 1, line 21, leave out first “to”
9: Clause 1, page 1, line 22, after “Wales” insert “, which is accessible in electronic form”
10: Clause 1, page 1, line 23, leave out first “to”
11: Clause 1, page 1, line 26, leave out paragraph (g) and insert—
“(g) remove existing provision in relation to the registration of marriages which is not to form part of the system provided for under this section.”
Amendments 3 to 11 agreed.
Moved by Lord Faulkner of Worcester
12: Clause 1, page 1, line 26, at end insert—
“( ) Regulations under this section must make equivalent provision for the registration of same sex marriages and marriages between a man and a woman.”
Lord Faulkner of Worcester (Lab): My Lords, I have no wish to prolong the Committee’s debate this morning, as there are two important Private Members’ Bills to follow. I was not able to attend Second Reading on 26 January, but I have carefully read the report in Hansard. I was prompted to table this amendment because I believed it would be helpful to obtain confirmation of the point made then by my noble friend Lady Gale, whom I am pleased to see in her place, speaking from the Opposition Front Bench. Supporting the Bill—as of course I do today—she said,
“we should have both parents’ names on the marriage certificates. Since we now have civil partnerships and same-sex marriages, one day some children of those couples will no doubt get married”.—[Official Report, 26/1/18; col. 1245.]
It is precisely to obtain clarification that the inclusion of both parents’ names on their marriage certificates will apply equally to the children of same-sex marriages that I have tabled this amendment.
The right reverend Prelate the Bishop of St Albans, whom I commend for bringing the Bill before the House with such style and such humility, will be relieved that I am not seeking this morning to change the attitude of the Church of England towards same-sex marriages, except gently to point out that the Marriage (Same Sex Couples) Act 2013 has been an unqualified success, brought immense happiness to thousands of couples, and helped counter the decline in the number of marriages. What a pity that in 2015 the Office for National Statistics reported that, out of 15,000 marriages between same-sex couples, there were only 44 religious ceremonies, accounting for 0.7% of all marriages of same-sex couples. I must make the point that I hope it will not be too long before the Church of England feels able to follow the lead set by the Anglican churches in Scotland, the United States, Canada and other countries in permitting same-sex couples to marry in church. However, that is a debate for another day.
Meanwhile, I seek clarification that in future, following the passing of the Bill, the children of same-sex marriages will be able to include the names of both their parents. I beg to move.
Lord Cashman (Lab): My Lords, I shall speak very briefly in favour of this amendment and the eloquent way it was introduced into your Lordships’ House. The principle of equality must surely be embraced by us all, particularly in the words of my noble friend Lord Faulkner of Worcester. Including people within families, including children within families, and the registration thereof, is something upon which I hope all of us will agree.
Baroness Morris of Bolton (Con): My Lords, I supported the Bill at Second Reading. We had a good debate, but it was made quite clear that for the Bill to have the best chance of reaching the statute book, it had to leave your Lordships’ House unamended—apart from the technical amendments of the right reverend Prelate the Bishop of St Albans. I have great sympathy with what the noble Lord, Lord Faulkner of Worcester, said and I am very glad that he does not seek to press this, because I think it would be very wrong if we were to lose the best opportunity to right the long-established wrong that the Bill addresses by seeking to address another, equally important matter. I hope that my noble friend the Minister will be able to give the noble Lord the reassurance that he seeks and that therefore there will be no need to amend this important and long overdue Bill.
Lord Rosser: I shall just add, in light of what the noble Baroness, Lady Morris of Bolton, has just said, that my noble friend Lord Faulkner of Worcester is seeking assurances on this point, as I understand it, and I sincerely hope that those assurances can be given.
Baroness Williams of Trafford: My Lords, I hope that I can now give those assurances. I am very grateful to the noble Lord, because he distinguished very much between the argument for another day, which is about same-sex marriages in churches, and the very important point of children of same-sex parents on the register: it is not called the register, of course, but we will probably continue to call it the register.
As the noble Lord pointed out, the Marriage (Same Sex Couples) Act 2013 made provision for couples of the same sex to enter into a marriage. However, under Sections 3 and 4 of the Act, the provisions to solemnise marriages of same-sex couples do not apply to marriages taking place in the Church of England. As with all other religious ceremonies, there is no compulsion on an individual to solemnise a marriage where the reason is that it concerns the marriage of a same-sex couple.
The provisions in the Bill do not seek to make any changes to marriage preliminaries, or to how or where marriages can be solemnised; it simply seeks to change how marriages are registered, moving from a paper-based system of registration to an electronic register. The electronic system of registering marriages will apply to all marriages, irrespective of whether the couple are of the opposite sex or of the same sex.
I have just received a note containing the answer to the point made by my noble friend about the move to a schedule system not creating differences between the registration process for opposite-sex and same-sex couples. To clarify, by the names of the parents it will say “Mother/Father/Parent” for both parents. That will apply to children of opposite-sex couples, same-sex couples and whatever we have to come.
The Lord Bishop of St Albans: My Lords, I am grateful to the noble Baroness for clarifying those matters. It only remains for me to say, in response to the noble Lords, Lord Faulkner of Worcester and Lord Cashman, that of course the wider debate about the nature of marriage is going on right across society, but particularly in the Church of England and in other churches. That will continue. That, of course, is not the focus of the Bill today; that will come back at other points, there will be all sorts of discussions in the General Synod and so on, and they will continue. I am grateful to the noble Lords for stating their view on that, but this is particularly about registration and therefore I hope that we can give this the green light and the go-ahead to speed through.
Lord Faulkner of Worcester: My Lords, I am very grateful to all noble Lords who have spoken and for the words of the right reverend Prelate. I am particularly grateful to my noble friend Lord Cashman. The words of the Minister are fine with me: I accept that that is the answer to the question that was posed by my noble friend Lady Gale and I am therefore content to seek leave to withdraw the amendment.
Amendment 12 withdrawn.
Clause 1, as amended, agreed.
Clause 2: Power for Registrar General to make regulations
Amendments 13 to 15
Moved by the Lord Bishop of St Albans
13: Clause 2, page 2, line 11, after “regulations” insert “under section 74(1) of the Marriage Act 1949”
14: Clause 2, page 2, line 27, after “England” insert “or the Church in Wales”
15: Clause 2, page 2, line 36, leave out subsection (3)
Amendments 13 to 15 agreed.
Clause 2, as amended, agreed.
Clause 3: Consequential provision
Moved by the Lord Bishop of St Albans
16: Clause 3, page 2, line 42, leave out from “regulations” to end of line 43 and insert—
“(a) amend the Marriage of British Subjects (Facilities) Acts 1915 and 1916 so that they no longer apply in England and Wales;(b) make other provision in consequence of regulations under section 1 .”
Amendment 16 agreed.
Clause 3, as amended, agreed.
Clause 4: Supplementary provision about regulations
Moved by the Lord Bishop of St Albans
17: Clause 4, page 3, line 14, at end insert—
“( ) No regulations may be made under section 1 or 3 after a period of three years beginning with the day on which regulations under either of those sections are first made.”
Amendment 17 agreed.
Clause 4, as amended, agreed.
Clauses 5 and 6 agreed.
House resumed. Bill reported with amendments.