Marriage (Same Sex Couples) Bill Delegated Powers Memorandum

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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.

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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

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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).

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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.

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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

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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