HOUSE OF LORDS

Delegated Powers and Regulatory Reform Committee

16th Report of Session 2003-04

Civil Partnership Bill [HL] – including Government amendment for Committee Stage

Employment Relations Bill

Fire and Rescue Services Bill – Government amendment for Committee Stage

Ordered to be printed 5 May and published 6 May 2004

London : The Stationery Office Limited £price

HL Paper 86 The Select Committee on Delegated Powers and Regulatory Reform The Delegated Powers and Regulatory Reform Committee is appointed by the House of Lords in each session with the orders of reference “to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate level of parliamentary scrutiny; to report on documents and draft orders laid before Parliament under the Regulatory Reform Act 2001; and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments”.

Current Membership The Members of the Delegated Powers and Regulatory Reform Select Committee are: Lord Brooke of Sutton Mandeville Baroness Carnegy of Lour Lord Dahrendorf (Chairman) Lord Desai Lord Harrison Lord Mayhew of Twysden Lord Temple-Morris Lord Tombs Lord Wigoder

Publications The Committee’s reports are published by The Stationery Office by Order of the House. All publications of the Committee are on the internet at http://www.parliament.uk/parliamentary_committees/dprr.cfm

General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at http://www.parliament.uk/about_lords/about_lords.cfm

Contacts for the Delegated Powers and Regulatory Reform Committee If you have any queries regarding the Committee and its work, please contact the Clerk to the Delegated Powers and Regulatory Reform Committee, Delegated Legislation Office, House of Lords, London, SW1A 0PW. The telephone number is 020 7219 3103/3233. The fax number is 020 7219 2571. The Committee’s email address is [email protected]

Historical Note In February 1992, the Select Committee on the Work of the House, under the chairmanship of Lord Jellicoe, noted that “in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion” (Session 1991–92, HL Paper 35–I, para 133). The Jellicoe Committee recommended the establishment of a delegated powers scrutiny committee in the House of Lords which would, it suggested, “be well suited to the revising function of the House”. As a result, the Select Committee on the Scrutiny of Delegated Powers was appointed in the following session, initially as an experiment for a limited period. It was established as a sessional committee from the beginning of Session 1994–95. Also in Session 1994–95, following the passage of the Deregulation and Contracting Out Act 1994, the Committee was given the additional role of scrutinising deregulation proposals under that Act. As a result, the name of the committee was changed to the Select Committee on Delegated Powers and Deregulation. In April 2001, the Regulatory Reform Act 2001 was passed which expanded the application of the deregulation order-making power under the 1994 Act, and the Committee was took on the scrutiny of regulatory reform proposals under the Act. With the passage of the 2001 Act, the committee’s name was further amended to its present form, the Select Committee on Delegated Powers and Regulatory Reform. Sixteenth Report

CIVIL PARTNERSHIP BILL [HL] – INCLUDING GOVERNMENT AMENDMENT FOR COMMITTEE STAGE

Introduction 1. This bill is to enable same-sex couples to obtain legal recognition of their relationship by registering as civil partners. The partnership has legal consequences, both with respect to each of the couple and to other people. The bill contains slightly different provisions for England and Wales, Scotland and Northern Ireland respectively. 2. In this Report we set out our conclusions on the bill as introduced. We have also been invited to comment on a Government amendment to the bill to be taken at Committee Stage. This Report includes our comments on the amendment.

The Delegated Powers in the Bill 3. The bill contains a number of delegated powers, all of which are identified in the memorandum from the Department of Trade and Industry (DTI). The memorandum is printed at Annex 1 to this Report. Many of the delegated powers are drafted by analogy with the law in relation to marriage. Whilst the analogy provides useful precedents, our conclusions on the appropriateness (or otherwise) of the delegations in this bill have not relied solely on the precedents. 4. We wish to draw the attention of the House to only one of the delegated powers in the bill, the power in clause 187.

Clause 187 5. Clause 187 enables a Minister of the Crown by order to make amendments of enactments, subordinate legislation or Church legislation relating to pensions, etc. This provision is explained in paragraphs 93 and 94 of the memorandum. Except in the case of judicial pensions, any order will be subject to affirmative procedure if it amends an Act. Those instruments not subject to affirmative procedure are subject to negative procedure. (Where the power is exercised by Scottish Ministers under clause 187(2), the affirmative or negative procedure in the Scottish Parliament applies.) 6. The power is limited to making provision considered appropriate for the purpose of, or in connection with, making provision with respect to pensions, allowances or gratuities for the surviving civil partners or dependents of deceased civil partners. None the less, it is a very wide provision. Indeed, we note that clause 187(4) emphasises that the provision made may be the same as, or different to, that made with respect to widows or dependents of those who are not civil partners. 7. The power in clause 187 is, in our view, inappropriately wide. We recommend that either some indication of the policy with respect to surviving civil partners or their dependents should be included on the 2 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

face of the bill or, failing this, any order made under clause 187, whether or not it amends an Act, should be subject to affirmative procedure.

Amendment to be moved in Committee 8. We have been invited to consider a Government amendment which would add a new clause (after clause 51) enabling the Lord Chancellor to validate civil partnerships in circumstances where it appears to him that a civil partnership is, or may be, void under clause 48(b) of the bill. We note that the exercise of the power is subject to the special parliamentary procedure, which includes requirements that a draft of the order should be advertised, that the Lord Chancellor should consider all written objections and, if it appears to him necessary, hold a local inquiry. 9. The delegated power is described in a letter sent to all Members of the House who spoke at Second Reading by the Baroness Scotland of Asthal, Minister of State at the Home Office. The relevant extract from the letter is set out in Annex 1 to this Report. 10. There is nothing in the amendment to which the Committee wishes to draw the attention of the House.

Conclusion 11. We draw the attention of the House to the recommendation in paragraph 7. There is nothing else in this bill on which the Committee wishes to report to the House.

DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3

EMPLOYMENT RELATIONS BILL

Introduction 12. This seven Part bill covers a number of areas, including trade union recognition, industrial action law and the rights of trade union members.

The Delegated Powers 13. There are delegated powers at clauses 9 (new paragraph 27C of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”)), 12 (new paragraph 119C), 14 (new paragraph 166(1)-(2B)), 15 (new paragraph 166A), 16( new paragraph 166B), 17( new paragraphs 169A–C), 19 (new paragraph 171A(2) and (3)), 39, 40, 50 and 55. Unusually, all of these powers (apart from the commencement order power at clause 55) have a Henry VIII element and are made subject to affirmative procedure (in the case of clause 40, before the Northern Ireland Assembly). There are also a clarification of existing powers to issue codes of practice (clauses 8 and 9) and an amendment to an existing order-making power (clause 37). 14. The delegated powers are explained in a memorandum from the Department of Trade and Industry (DTI). The memorandum is printed at Annex 2 to this Report. 15. We wish to draw to the attention of the House the delegated powers in clauses 9, 12, 14, 16 and 39. With respect to clauses 14 and 39, we do not make any recommendation but, in view of the width of the power in each case, we suggest that, given the absence of a satisfactory explanation in the material before the Committee, the House may wish to invite the Government to provide further justification.

Clauses 9 and 12 16. Clause 9 is about unfair practices in relation to recognition ballots. Clause 12 is about unfair practices in relation to derecognition ballots. The new powers (including the background) are explained in paragraphs 44 to 50 of the memorandum from the DTI. The power in each case is essentially the same – the Secretary of State is enabled to make provision by order about the consequences of a decision of the Central Arbitration Committee (CAC) that there has been an unfair practice. The order may, in particular, amend any provision of Schedule A1 to the 1992 Act. In our view, the provision in clauses 9 and 12 needs to be more specific about the consequences of there being an unfair practice. We note (paragraph 50 of the memorandum) that the Government intends to bring forward amendments to set out sanctions on the face of the bill. We recommend that it would be appropriate to do so.

Clause 14 17. Schedule A1 to the 1992 Act is a lengthy Schedule (172 paragraphs) about collective bargaining and trade union recognition. It was inserted by the Employment Relations Act 1999 (“the 1999 Act”). 18. As explained in paragraphs 55 to 58 of the memorandum, the Schedule already contains certain specific powers for the Secretary of State to amend 4 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

the Schedule by order. Amongst those powers is that given by paragraph 166 of the Schedule, whereby the Secretary of State may amend paragraph 22 or 87 of the Schedule if the CAC represents to the Secretary of State that the paragraph “has an unsatisfactory effect and should be amended”. Clause 14 of the bill replaces this power with a much wider one, whereby the Secretary of State may amend any provision of the Schedule if the CAC represents that it has an unsatisfactory effect and should be amended. The power applies not just to procedural provisions of the Schedule, but also to substantive provisions, such as those in paragraphs 156 (about detriment) or 161 (about when dismissal is to be regarded as unfair). 19. We recognise that the requirement for the change to be triggered by the CAC may be a sufficient limitation. However, the width of the power is not, in our view, justified by the material presented to us. We suggest, therefore, that the House may wish to invite the Government to provide a further explanation of why such significant power is needed.

Clause 16 20. Clause 16 is explained at paragraphs 51 and 52 of the memorandum (before clauses 14 and 15). The clause seeks to address the same problem as that addressed in clauses 9 and 12, but at an earlier stage – before the ballot period. This power, like those in clauses 9 and 12, leaves the consequences of there being an unfair practice to be settled solely by the order. We, therefore, take the view, as we do in respect of clauses 9 and 12, that the provision needs to be more specific about the consequences of there being an unfair practice, and recommend that the bill should be amended accordingly. 21. In addition, this provision leaves it to the order to specify the unfair practices, whereas the provisions of clauses 9 and 12 specify the unfair practices in the bill. We suggest that the House may wish to invite the Government to explain why a different approach has been adopted in respect of this provision to that adopted in respect of clauses 9 and 12.

Clause 39 22. Clause 39 confers a power on the Secretary of State to make regulations about employees’ rights to be informed or consulted by the employer. The background to this provision is an EC Directive (paragraphs 22 to 32 of the memorandum). It appears also that the Government wishes to take steps which go beyond the requirements of the Directive, since section 2(3) of the European Communities Act 1922 is not considered sufficiently wide (paragraph 24 of the memorandum). 23. This provision resembles in some respects section 19 of the 1999 Act, which contains a regulation-making power to prevent discrimination against part- time workers. In particular, the Henry VIII powers in clause 39(4) reflect those in section 19(3) of the 1999 Act. We note that, though the regulations must be for the purpose specified in subsection (1), they can amend any provision of the Employment Rights Act 1996, the Employment Tribunals Act 1996 or the 1992 Act. 24. Whilst this provision is not, in our view, necessarily inappropriate, the memorandum does not fully explain the need for so wide a power in this case. We suggest, therefore, that the House may wish to invite the DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 5

Government to provide a further explanation of why this power is needed.

Conclusion 25. We draw the attention of the House to the recommendations in paragraphs 16 and 20, and to the suggestions for further explanation in paragraphs 19, 21 and 24. There is nothing else in this bill on which the Committee wishes to draw the attention of the House. 6 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

FIRE AND RESCUE SERVICES BILL – GOVERNMENT AMENDMENT FOR COMMITTEE STAGE 26. The Committee considered this bill in our 13th Report of this Session (HL Paper 70). We have now been invited to consider a Government amendment to be taken at Committee Stage. The Office of the Deputy Prime Minister has provided a supplementary memorandum on the amendments which is printed at Annex 3 to this Report. 27. There is nothing in the amendment to which the Committee wishes to draw the attention of the House. ANNEX 1: CIVIL PARTNERSHIP BILL [HL]

Memorandum by the Department of Trade and Industry

Introduction

Background 1. This memorandum sets out the delegated powers conferred by the Civil Partnership Bill. It explains in each case the purpose of the power; the reason why it is left to delegated legislation; whether the power is subject to Parliamentary scrutiny and, if so, what procedure applies; and the justification for that procedure. 2. This memorandum does not include details of the cases where the Bill makes minor amendments to delegated powers in existing legislation. A list of such cases is set out in the Appendix to the Memorandum, along with an explanation. In none of these cases is there any change to the basic purpose of the delegated power in question, or to the procedure under which an instrument may be made under such a power. 3. The Committee may wish to note the effect of clause 190, which applies to all powers to make regulations or orders under the Bill (except court orders). It provides that any such power includes power to make different provision for different cases and different purposes. It also includes power to make such supplementary, incidental, consequential, transitional, transitory or saving provision as may be considered expedient by the person making the instrument.

Structure 4. The Bill itself contains 196 clauses and 22 schedules and is structured as follows: • Part 1 introduces the status of civil partnership • Part 2 deals with civil partnership in England and Wales • Part 3 deals with civil partnership in Scotland • Part 4 deals with civil partnership in Northern Ireland • Part 5 deals with civil partnerships formed or dissolved abroad • Part 6 concerns relationships arising through civil partnership • Part 7 contains miscellaneous provisions • Part 8 contains supplementary provisions. COMMENTARY ON CLAUSES

PART 2 – CIVIL PARTNERSHIPS: ENGLAND AND WALES

CHAPTER 1 – REGISTRATION

Clause 35 (1) to (3) and other provisions in Chapter 1 and Schedule 1: Various powers to make regulations supplementing the provisions of Chapter 1 Powers conferred on: Registrar General with the approval of the Chancellor of the Exchequer Powers exercised by: Regulations (Statutory instrument) Parliamentary procedure: None 8 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

5. The power in clause 35(1) to (3) enables regulations to be made by the Registrar General for England and Wales to supplement the provisions of Chapter 1, which concerns registration in England and Wales. The regulations require the approval of the Chancellor of the Exchequer. 6. Subsection (2) enables the power to be used, in particular, to make provision relating to the use of Welsh in documents and records relating to civil partnerships; to make provision with respect to the retention of documents relating to civil partnerships; to prescribe the duties of civil partnership registrars and persons in whose presence any declaration is made; and to make provision for the issue by the Registrar General of guidance supplementing any provisions made by the regulations. 7. In addition a number of clauses in this Chapter of the Bill and in Schedule 1 provide for specific matters which may be prescribed by regulations made under this Chapter (which similarly require the approval of the Chancellor of the Exchequer under clause 35(3)): • Clause 2(4): the information to be recorded in the register after the signing of the civil partnership document. The fact that the parties have registered as civil partners must in any event be recorded in the register as soon as possible by virtue of provision in clause 2 itself. It is intended that the register should also contain information such as the names of the parties, their dates of birth, their occupation at the time of the registration, and the names and occupation of their parents. • Clause 8(2): the content of a notice of proposed civil partnership. The declaration which must be made by the parties must in any event be set out in the notice, by virtue of provision in clause 8 itself. It is intended that the notice will also have to contain the names of the parties, their usual addresses and how long they have lived there, whether they have previously been married or in a civil partnership, and the venue where the registration is to take place. • Clause 10(2): the information to be published during the waiting period. Clause 10 itself provides that there must be publication of the name of the proposed civil partners. It is intended that there will also have to be publication of each partner’s date of birth, civil status (whether they have been married or in a civil partnership before), and the registration area where they live. It is not intended to require publication of more detailed personal information such as address. • Clause 12(2) and (3): provisions with respect to the making and granting of applications to shorten the 15-day waiting period between giving notice and signing the civil partnership schedule. Clause 12 enables the Registrar General to reduce the waiting period where there are compelling reasons to do so due to exceptional circumstances (which might, for example, include serious illness). The regulations will set out the content of the application forms and the process for dealing with such applications. In particular clause 12(3) allows the regulations to provide for this power to be exercised by a registration authority on behalf of the Registrar General in prescribed cases, and for appeals to the Registrar General in such cases. Similar provision is made in relation to marriage by section 31(5D) of the Marriage Act 1949. • Clause 14(2): the information to be contained in the civil partnership schedule. It is intended that the schedule should have to contain information relating to the couple, the place and date of the registration, as well as the signatures of the parties, witnesses and the civil partnership registrar. There is a similar power in respect of marriage in section 31(2) of the Marriage Act 1949. • Clause 18(4): the information to be contained in a medical statement that a person is house-bound so as to be able to register using the procedure for such persons. The main matters to be stated are set out in clause 18(2). In addition the statement will have to set DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 9 out the details of the person giving the statement. There is an equivalent power in section 27A(7) of the Marriage Act 1949. In addition the regulations may provide for the manner in which such a statement must be made. This will be used to provide for matters such as signature by the person making the statement. • Clause 19(5): the information to be contained in a statement by the responsible authority that a person is detained so as to be able to register using the procedure for such persons. The main matters to be stated are set out in clause 19(4). In addition the statement will have to set out the details of the person giving the statement. There is an equivalent power in section 27A(3) of the Marriage Act. In addition the regulations may provide for the manner in which such a statement must be made. This will be used to provide for matters such as signature by the person making the statement. • Clause 21(2): the content of a notice of proposed civil partnership under the special procedure. Certain information contained in the notice given under the special procedure will be different from that given under the standard procedure. For example, the couple will not declare that they have had a usual residence in England or Wales. This is equivalent to the power in section 2 of the Marriage (Registrar General’s Licence) Act 1970 in respect of marriage. • Clause 25(4): the content of the Registrar General’s Licence under the “special procedure”. There is an equivalent power in section 7 of the Marriage (Registrar General’s Licence) Act 1970. The licence will contain information including details of the name of the parties, whether or not they have been married or in a civil partnership previously, their occupation and the place of registration. The licence will not contain details of the period of residence of the parties as this is not required for the special procedure. • Schedule 1 paragraph 5(3): content of a declaration under paragraph 5(1)(b) of Schedule 1 concerning relationship between the proposed partners in cases subject to paragraph 2 of that Schedule (qualified prohibition), and the manner in which such a declaration is to be signed and attested. The declaration must in any event contain the information set out in paragraph 5(1))(b) of Schedule 1. The regulations will also make provision for signature. There is an equivalent power in section 27B(2)(b) of the Marriage Act. 8. All the above matters relate to the detail of the registration process and are therefore appropriate for inclusion in subordinate legislation. This will also provide the appropriate flexibility for the Registrar General to make such amendments as may be necessary from time to time. 9. Regulations made under these powers must be contained in a statutory instrument (see clause 35(5)), but are not subject to any Parliamentary procedure. The regulations concern routine details of procedure, which are administrative and uncontroversial in nature. As indicated above, many of the specific powers listed above are similar to powers in marriage legislation, powers which are similarly not subject to Parliamentary scrutiny. Whilst consideration has been given to taking a different approach for civil partnership, on balance it is not considered necessary to introduce Parliamentary scrutiny for matters of this nature. 10 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Clause 34: Power to provide for fees to be paid in connection with civil partnership Power conferred on: Chancellor of the Exchequer Power exercised by: Order (Statutory instrument) Parliamentary procedure: Negative resolution

10. This clause provides a power for the Chancellor of the Exchequer to provide for fees to be paid in respect of registration services and to prescribe the person to whom the fees are payable. In particular there will be a fee for giving notice of a proposed civil partnership and a fee for the attendance of the civil partnership registrar at the registration itself. It is anticipated that fees will be payable to either the Registrar General or the registration authority, depending on the registration procedure being used in the particular case. The use of a power here is appropriate given the routine administrative nature of this issue, and the need to ensure that fees can be varied as appropriate from time to time. There are broadly equivalent powers to prescribe fees in relation to marriage, again subject to the negative resolution procedure. Fees provisions equivalent to those in clause 34(1) (a)–(d) can be found in sections 27(6), 31(5F) and 51 of the Marriage Act 1949, and section 17 of the Marriage (Registrar General’s Licence) Act 1970. The fees to be prescribed for civil partnership may not be identical to those applicable for marriage since there will be differences, for example, in the persons required to be present to officiate and in the precise nature of the signing procedure. However it is intended that the broad level of the fees will be comparable. 11. Clause 34(1)(e) is sufficiently broad to enable fees to be charged and increased where necessary in respect of other registration services provided by registration authorities or by or on behalf of the Registrar General. In particular this is likely to be used in conjunction with clause 178 (1), which provides that the power under this clause may be used to prescribe fees in respect of anything which is required to be done by registration authorities or by or on behalf of the Registrar General for England and Wales by virtue of an Order in Council under Part 5 of the Bill. It is envisaged that this would be used, in particular, to set a fee for attesting notice of intention to register an overseas relationship under an Order in Council made under clause 175 (certificates of no impediment to overseas relationships) by a registration authority. 12. An order setting the fees payable for these services is a routine administrative instrument, and is subject to the negative resolution procedure (see clause 35(6)).

Clause 35(4): Power to amend this Act in consequence of any order under section 1 of the Regulatory Reform Act 2001 which includes provision relating to the system of registration of marriages in England and Wales. Power conferred on: Chancellor of the Exchequer Power exercised by: Order (Statutory instrument) Parliamentary procedure: Affirmative resolution procedure

13. The Financial Secretary to the Treasury has recently announced that a Regulatory Reform Order making amendments to marriage legislation will be taken forward early in the next Parliamentary session. This will provide the opportunity to ensure greater harmony between the provisions of the Civil Partnership Bill and the proposals for marriage set out in “Civil Registration: Delivering Vital Change”. 14. This is a fairly broad power to amend primary legislation by means of secondary legislation. However it is limited to the situation where an order is made under section 1 of the Regulatory Reform Act 2001 concerning the system of registration of marriages in DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 11

England and Wales and is necessary to ensure that the Civil Partnership Bill is kept in line with the new procedures. Because the order will amend primary legislation, it will be subject to the affirmative resolution procedure (see clause 35(7)).

CHAPTER 2 – DISSOLUTION, NULLITY AND SEPARATION

Clause 37(2) – (6): Power to vary the period before conditional orders may be made final Power conferred on: Lord Chancellor Power exercised by: Order (Statutory instrument) Parliamentary procedure: Negative resolution

15. This power is intended to enable the minimum period of six weeks between the granting of a conditional order and the making of that conditional order final to be increased up to a maximum of six months. There is an equivalent provision in respect of marriage in section 1(5) of the Matrimonial Causes Act 1973 (MCA), though in that legislation the period can be (and has been) amended by the High Court, using a General Order. The power for the High Court to make a “general order” is very unusual and in this context predates the Supreme Court of Judicature (Consolidation) Act 1925. It was felt inappropriate to recreate this power for the Civil Partnership legislation, so this clause provides for an order to be made by the Lord Chancellor, subject to the negative resolution procedure. The use of this procedure is in line with other rules of court affecting civil partnership proceedings. In addition, subsection (4) of this clause gives a power to the court dealing with a particular case to shorten the prescribed period. It is envisaged that this would be used in similar circumstances to the equivalent power in section 1(5) of the MCA, for example in deathbed situations, especially to permit remarriage. It is intended to issue Practice Directions in relation to the exercise of this power, mirroring those which exist in relation to divorce. 16. It is intended that the period before conditional orders may be made final will remain in line with the corresponding provisions in relation to the making of decrees absolute on divorce. The corresponding power in relation to divorce has only been used once since the MCA 1973. There are currently no plans to review the period before a decree nisi may be made absolute. It is unlikely that an order would be made to increase the length of the period between the granting of a conditional order and the making of that conditional order final. 17. It is considered appropriate to use the negative resolution procedure because the powers relate to administrative measures. The power to amend the period between the granting of a conditional order and the time at which that conditional order may be made final will only be used if the corresponding period in relation to decrees of divorce is also being amended. 12 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Clause 41: Power to make rules of court regarding attempts at reconciliation of civil partners Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

18. This clause requires rules of court to make provision for solicitors to discuss with an applicant for dissolution the possibility of reconciliation and provide details of persons qualified to help the civil partners effect reconciliation. 19. It is appropriate for matters of such detail to be left to rules of court. There is a specific procedure to be followed in relation to new rules of court, involving consultation with the legal profession, approval by the court rules committee, followed by approval by Parliament under the negative resolution procedure. As with other detailed procedural matters, the negative resolution procedure provides the appropriate level of scrutiny.

Clause 42: Power to make rules of court relating to the consideration of agreements or arrangements relating to dissolution or legal separation Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

20. This clause allows rules of court to make provision enabling either or both civil partners to refer to the court an agreement or an arrangement between them relating to proceedings for a dissolution or separation order, and to enable the court to comment or give directions as it sees fit. 21. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Clause 44: Power to make rules of court where a respondent agrees to a dissolution order Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

22. Subsection (4) of this clause requires rules of court to be made to ensure that, in cases where it is alleged in dissolution proceedings that the respondent consents to a dissolution order being made, the respondent has been given sufficient information to enable him or her to understand the consequences of consenting and what must be done to indicate consent. 23. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 13

Clause 59: Power to make rules of court relating to declarations under clause 56 Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

24. This clause enables rules of court to prescribe the form of an application for a declaration under clause 56. The rules may provide for the information to be supplied by the applicant and for the notice of the application to be served on the Attorney General. 25. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Clause 62: Power to make rules of court relating to parties to proceedings under this Chapter Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

26. This clause enables rules of court to allow for parties to be joined to proceedings for dissolution, nullity and separation if they are involved in allegations of improper conduct in proceedings. The Court can also allow a person to intervene if it thinks he or she should have been joined to the proceedings. The Court can also dismiss parties it has joined to the proceedings if appropriate. The provisions correspond to section 49 of the Matrimonial Causes Act 1973. 27. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

CHAPTER 3 – PROPERTY AND FINANCIAL ARRANGEMENTS

Clause 64: Power to make rules of court relating to disputes between civil partners about property Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

28. This clause allows civil partners to refer disputes over property to court. Court rules made for this purpose can confer jurisdiction on county courts in relation to the resolution of these disputes. 29. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. 14 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

PART 3 – CIVIL PARTNERSHIPS: SCOTLAND

CHAPTER 2 – REGISTRATION Note that the regulation-making power contained in clause 178(2) (fees for things done by virtue of an Order in Council under Part 5) is also described in this part of the memorandum as it is exercised by the Registrar General for Scotland.

Clause 122 (and see also clauses 84, 85, 86, 90, 91 and 178(2)): Delegated powers relating to registration in Scotland Powers conferred on: Registrar General for Scotland, with the approval of the Scottish Ministers Powers exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution

30. Clause 122 allows the Registrar General for Scotland, with the approval of the Scottish Ministers to make regulations supplementing Chapter 2 of Part 3. Such regulations are subject to the negative resolution procedure in the Scottish Parliament. This power will be used to set out matters concerning the detail of registration procedures for civil partnership in Scotland. As these are matters of detail, to which changes may be required over time, it is appropriate that these are subject to this form of delegation. 31. In particular regulations under clause 122 will be able to deal with the following matters mentioned in Chapter 2 or Chapter 5 of this Part of the Bill. These are all matters of procedural detail which it is appropriate to deal with in this way. With the exception of clause 86, these are equivalent to provisions in Scottish Marriage legislation: see sections 3(1), 4(1), 6(1) and 19(2) of the Marriage (Scotland) Act 1977 (c.15) (“the 1977 Act”) and sections 28A(3) and (4), 32(1) and 44(4) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c.49).

Clause 84: Notice of proposed civil partnership 32. The regulations may specify the form of notice of proposed civil partnership, and prescribe the related fees.

Clause 85: Civil partnership notice book 33. The regulations may prescribe the form and content of the civil partnership book in which details of proposed civil partnerships and civil partnership certificates are to be entered.

Clause 86: Publicisation 34. The regulations may prescribe the manner in which and means by which relevant information regarding a proposed civil partnership is to be publicised. The clause specifies the ‘relevant information’ to be publicised, but the power allows the manner and means by which this information is to be publicised to be prescribed. It is considered that this regulation-making power offers more flexibility than the equivalent provision in relation to marriage (section 4 of the 1977 Act) which currently does not provide for publicisation of marriage details outwith the registration district in which the marriage is to occur. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 15

Clause 90: The civil partnership schedule 35. The regulations may prescribe the form of the civil partnership schedule. The circumstances under which the civil partnership schedule is to be completed is set out in the clause.

Clause 91: Further provision as to registration 36. The regulations may prescribe the form and content of the civil partnership register and the fee payable for registration.

Clause 95: Correction of errors in civil partnership register 37. The regulations may prescribe the kind of error in the register which may be corrected by the district registrar.

Clause 178(2): Fees Powers conferred on: Registrar General for Scotland, with the approval of the Scottish Ministers Powers exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution

38. This power gives the Registrar General for Scotland, with the approval of the Scottish Ministers, the power to prescribe fees in respect of anything which, by virtue of an Order in Council under Part 5, is required to be done by him or on his behalf. It is envisaged that this will be used, in particular, to set fees for the issue of certificates of no impediment (provided for by an Order in Council under clause 175) and the transmission of certificates of registration of overseas relationships (provided for by an Order in Council under clause 176). (Equivalent provision is made for payment of a fee for transmission of a certificate of an overseas marriage in the Foreign Marriage Order 1970 (S.I. 1970/1539)). The setting of fees for such purposes is an appropriate use of delegated powers.

CHAPTER 3 – OCCUPANCY RIGHTS AND TENANCIES

Clause 102: Continued exercise of occupancy rights after dealing Power conferred on: Scottish Ministers Power exercised by: Regulations (Statutory instrument) Parliamentary Procedure: Negative resolution

39. This power allows Scottish Ministers to prescribe in regulations the form which consent from the non-entitled partner should take in respect of the dealing. This power is equivalent to the power contained in section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The clause specifies that consent is required, but the power allows the manner and form the consent will take to be prescribed and is an appropriate use of delegated powers. This power is subject to the negative resolution procedure (in the Scottish Parliament) (see clause 122(4)). 16 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

CHAPTER 5 – DISSOLUTION, SEPARATION AND NULLITY

Clause 113: Dissolution Power conferred on: Lord President of the Court of Session Power exercised by: Act of Sederunt (Statutory instrument) Parliamentary procedure: None

40. This power gives the Lord President of the Court of Session the power, by Act of Sederunt, to make provision to ensure that certain information is given to the defender in an action of dissolution of a civil partnership; to make provision for the indication by the defender of consent to the granting of a decree of dissolution; and to provide for the appointment of a curator ad litem where the defender is suffering from a mental illness. The manner in which information is given to a defender and the means by which he or she may indicate consent or otherwise are essentially administrative matters for a court and accordingly it is appropriate that provision is made by Act of Sederunt. Acts of Sederunt are rules of court made by the Lord President. The Scottish Parliament Subordinate Legislation Committee thereafter scrutinises the acts. This provision and procedure mirrors that provided in section 1 of the Divorce (Scotland) Act 1976.

Clause 118: Registration of dissolution of civil partnership Power conferred on: Registrar General, with the approval of the Scottish Ministers Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution

41. This clause (read together with clause 122) gives the Registrar General for Scotland, with the approval of the Scottish Ministers, the power to make regulations prescribing the form of the Register of Dissolutions of Civil Partnership. There is a separate power to prescribe the fee payable for a search of the index of entries in the register, and for issue of an extract of an entry in the register. These powers are equivalent to those which exist in relation to divorce (section 28A(3) and (4) of the 1965 Act). It is appropriate that administrative matters such as the prescribing of forms and fees should be provided for by subordinate legislation subject to negative resolution.

PART 4 – CIVIL PARTNERSHIPS: NORTHERN IRELAND

CHAPTER 1 – REGISTRATION

Clause 138: Regulations made under Chapter 1 Power conferred on: Department of Finance and Personnel Power exercised by: Regulations (Statutory rule) Parliamentary procedure: Negative resolution in Northern Ireland Assembly

42. This clause gives the Department of Finance and Personnel power to make such regulations as appear necessary for the purposes of registration, for example, regulations prescribing the form and content of notices and documents relating to registration, evidence to be provided and information to be publicised in relation to registration, as outlined in clauses 133, 134, 135 and 137. The regulations are subject to negative resolution in the Northern Ireland Assembly. A similar regulation making power in respect DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 17 of the above mentioned matters is found in Article 39 of the Marriage (Northern Ireland) Order 2003. 43. The clause also allows regulations to prescribe any fees for the purposes of the chapter as well as fees for any other matter considered necessary for the purposes of registration, including the prescription of fees as provided for in Clause 178(4) in respect of anything which is required to be done by or on behalf of the Registrar General for Northern Ireland by virtue of an Order in Council under Part 5 of the Bill. Article 37 of the Marriage (Northern Ireland) Order 2003 gives the Department of Finance and Personnel power by order subject to affirmative resolution of the Northern Ireland Assembly to prescribe fees. The use of the negative resolution procedure here and delegation of the power to the department is appropriate given the routine administrative nature of the subject matter of the regulations (including the need to change the level of fees from time to time). A stand alone provision in the Bill giving the department power, subject to affirmative resolution of the Northern Ireland Assembly, to prescribe fees will be added during passage in the House of Lords and the reference to fees in this clause removed.

CHAPTER 2 – DECLARATIONS

Clauses 147 and 148: Family Proceedings Rules in relation to declarations Power conferred on: Authority making family proceedings rules Power exercised by: Family proceedings rules (Statutory rule) Parliamentary procedure: Negative resolution

44. Clause 144 allows family proceedings rules to prescribe the form of declarations under clause 141, the information to be given by an applicant for a declaration and for a notice of an application to be served on the Attorney General and on persons affected by any declaration applied for. Clause 145 allows family proceedings rules to make provisions with respect to the persons who are to be parties to proceedings on an application for a declaration. 45. Family Proceedings Rules are made under Article 12 of the Family law (Northern Ireland) Order 1993 by the Northern Ireland Family Proceedings Rules Committee, with the concurrence of the Lord Chancellor. These Rules are subject to annulment in pursuance of a resolution of either House of Parliament. Rules made under the 1993 Order deal with the procedure for obtaining declarations as to the validity of a marriage contained in Part V of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989. Article 12 of the Family Law (Northern Ireland) Order 1993 will be amended during the passage of the Bill to ensure that rules made by the Northern Ireland Family Proceedings Rules Committee may deal with issues arising under the Civil Partnership Bill in the same way as they deal with corresponding matrimonial issues at present. This follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny. 18 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

CHAPTER 3 – SUPPLEMENTARY

Clause 149: Power to make Orders in Council to make further provision for Northern Ireland Power conferred on: Secretary of State Power exercised by: Order in Council (Statutory instrument) Parliamentary Procedure: Negative resolution

46. This power allows an Order in Council to make corresponding provisions to those in Part 2 (except chapter 1), chapter 3 of Part 5, Part 7, in respect of Northern Ireland. The intention is that the detailed provisions corresponding to those mentioned above will be added by amendment during passage. However this power would allow the Bill, as introduced, to create comprehensive provisions establishing civil partnership in Northern Ireland. The power will be removed from the face of the Bill once the additional Northern Ireland provisions have been added.

PART 5 – CIVIL PARTNERSHIPS FORMED OR DISSOLVED ABROAD

CHAPTER 1 – REGISTRATION OUTSIDE THE UK UNDER ORDER IN COUNCIL

Clause 150 and 179: Power to make provision by Order in Council for registration at British consulates etc. Power conferred on: Her Majesty the Queen Power exercised by: Order in Council (Statutory instrument) Parliamentary procedure: Negative resolution

47. This clause confers power for Her Majesty the Queen by Order in Council to make provision for two people to register as civil partners at British consulates etc. It is proposed to use this power to make provisions covering broadly the same ground as the Foreign Marriage Act 1892 (c.23) sections 2–17 and 20, and the Foreign Marriage Order 1970 (S.I. 1970 No. 1539). Under those provisions it is possible for UK nationals to marry in accordance with UK law at a diplomatic post overseas in certain circumstances, so this power will enable civil partnerships likewise to be formed at diplomatic posts overseas. 48. Most of the provisions to be made by the Order in Council will be purely matters of procedure as to the way in which a civil partnership is to be formed at an overseas diplomatic post. For example the Order will need to cover such matters as the procedure for giving notice, the consents required and the lodging of caveats, the procedure for registration, and so on. Clause 179(2) ensures that this power can be exercised by making provision corresponding to, or applying with modifications, provisions of the Bill itself or of subordinate legislation made under the Bill, or provisions of the Foreign Marriage Act and Order. It is likely that the procedures to be set out will be based on such existing provisions wherever possible. 49. The Order in Council will need to specify the countries or territories where consular registration can take place (see subsection (1)(a) and the definition of “prescribed” in clause 179). The Foreign Marriage Act extends to all countries and territories outside the UK except for Commonwealth countries. Consideration will be given to whether the present power should extend to Commonwealth countries also in order to facilitate registration of same-sex partnerships in such countries. However, whatever countries are DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 19 covered here, formation of a civil partnership will not be possible unless the requirements of subsection (2) are met (see below). 50. The Order will also need to specify the officers of Her Majesty the Queen’s Diplomatic Service in whose presence two people may register as civil partners (see subsection (1)(b)). It is anticipated that this will be extended to Consular Officers in her Majesty’s Diplomatic Service, meaning the officers of HM Diplomatic Service who are accredited to the mission in question and who exercise consular functions. 51. To ensure that the power is not unnecessarily wide, certain key elements are set out on the face of the Bill. In particular subsection (2) provides that the Diplomatic Service officer in whose presence the registration takes place must be satisfied of four conditions, analogous to conditions which apply under the Foreign Marriage Act 1892 and Foreign Marriage Order 1970. These are that: (a) at least one of the proposed partners is a United Kingdom national (as defined in clause 180), (b) the partners would have been eligible to register in the relevant part of the United Kingdom (which is to be determined in accordance with provisions to be contained in the Order), (c) the authorities in the country or territory in question will not object to the registration, and (d) there are insufficient facilities for an overseas relationship (as defined in clauses (152–154) to be formed under that country’s law. 52. In addition, by subsection (3), the officer is not required to allow the couple to register as civil partners if in his opinion to do so would be inconsistent with international law or the comity of nations. It is anticipated that the Order will contain provisions for an appeal against any refusal to register as civil partners on this basis, as permitted by subsection (4). (There is an equivalent right of appeal in section 19 of the Foreign Marriage Act 1892.) 53. Consideration is being given to how to determine the relevant part of the United Kingdom for the purposes of subsection (2). There is no equivalent provision under the Foreign Marriage Act 1892 and Foreign Marriage Order 1970, since eligibility to marry depends on the law of the person’s antenuptial domicile rather than the country of registration. Domicile will not always provide a suitable answer for present purposes, since the parties may be domiciled in different parts of the UK or outside the UK altogether. It is possible that the Order in Council might provide for a system whereby the couple elect, at the time of registration, which part of the UK should be the relevant part in relation to their civil partnership, and the power is wide enough to enable this kind of arrangement. 54. By virtue of subsection (5), this determination of the relevant part of the United Kingdom will be relevant when considering whether it is the English or the Scottish courts which have a residual jurisdiction in relation to dissolution etc. in cases where no other court has jurisdiction (see clauses 161 and 165). It will also be relevant when considering which law applies to questions of nullity under clause 52(4) (in England and Wales) and clause 120(4) in Scotland. Clauses 52 and 120 also require the Order in Council to prescribe which procedural requirements of the Order are mandatory in the sense that, if not met, the civil partnership is void. In exercising this aspect of the power it is intended to take account of the approach which the courts have taken when considering similar issues under the Foreign Marriage Act 1892. (The civil partnership will in any event be void under clause 52 or 120 if the conditions in clause 150(2)(a) and (b) are not satisfied.) 55. The procedural nature of the details to be set out makes it appropriate for these provisions to be contained in subordinate legislation. The use of an Order in Council, rather than regulations or an order, is appropriate because the provisions are closely 20 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE connected to diplomatic relations between the UK and other countries. This procedure is also consistent with the provision for making Orders in Council under the Foreign Marriage Act itself. 56. The existing power to make an Order in Council under the Foreign Marriage Act 1892 is not subject to any Parliamentary control: the Order need only be laid. However, it is recognised that some degree of control is appropriate. An Order in Council under this clause will therefore be subject to the negative resolution procedure (see clause 179(3), although a similar Order under the Foreign Marriage Act would not. Moreover, any Order which makes provision for both marriage and civil partnership will attract the negative resolution procedure by virtue of clause 179(4). 57. The negative resolution procedure is appropriate because the Order will be largely procedural in nature, will generally be following the approach either of the Bill or the Foreign Marriage Act and Order, and is subject to the conditions set out in the clause itself.

Clause 151 and clause 179: Registration by armed forces personnel Power conferred on: Her Majesty the Queen Power exercised by: Order in Council (Statutory instrument) Parliamentary procedure: Negative resolution

58. Members of the armed forces and certain civilians accompanying them can be married outside the UK by a forces chaplain or an officer authorised by the commanding officer under the Foreign Marriage Act 1892 (c. 23) section 22 and the Foreign Marriage (Armed Forces) Order 1964 (S.I. 1964 No. 1000, as amended by S.I. 1965 No. 137 and S.I. 1990 No. 2592). This provision will enable an Order in Council to be made prescribing an equivalent procedure for persons to register as civil partners in the armed forces. It will be possible for couples to register as civil partners outside the UK, in the presence of one of the officers responsible for the registration of births, deaths and marriages (and, in future, civil partnerships) among the Service community. 59. As under clause 150, the Order in Council will need to specify the countries or territories where registration can take place (see subsection (1)(a) and the definition of “prescribed” in clause 179). The Foreign Marriage Act extends to all countries and territories outside the UK except for Commonwealth countries. Consideration will be given to whether the Order in Council should extend to Commonwealth countries (as the power permits) in order to facilitate registration of same-sex partnerships in such countries. 60. To ensure that the power is not unnecessarily wide, certain key elements are set out on the face of the Bill. In particular, under clause 151(2) the members of the Service community who will be able to take advantage of the provisions are the same as those specified for the purposes of the corresponding power under the Foreign Marriage Act, and they may register only if they would have been eligible to register in the relevant part of the United Kingdom. The relevant part of the UK is to be determined in accordance with provisions to be contained in the Order. It is likely that the Order would approach this in the same way as an Order under clause 150 above, and the effects are also the same. 61. Other requirements for registration may be prescribed under subsection (2)(c). It is envisaged that the additional requirements will be similar to those laid down by the Foreign Marriage (Armed Forces) Order. They will include the presence of witnesses, and the production of a certificate, signed by or on behalf of the officer commanding the relevant forces, stating that he has no objection to the parties registering as civil partners. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 21

As with clause 150, the Order will also prescribe which requirements of the Order are mandatory such that, if not met, the civil partnership is void under clause 52(4) or 120(4). (It will in any event be void under clause 52 or 120 if the conditions in clause 151(2)(a) and (b) are not satisfied.) 62. As with clause 150, most of the provisions to be made by the Order in Council will concern matters of procedure. Clause 179(2) ensures that this power can be exercised by making provision corresponding to, or applying with modifications, provisions of the Bill itself or of subordinate legislation made under the Bill, or provisions of the Foreign Marriage Act and the Foreign Marriage (Armed Forces) Order. It is likely that the procedures to be set out will be based on such existing provisions wherever possible. 63. The procedural nature of the details to be set out makes it appropriate for these provisions to be contained in subordinate legislation. As with clause 150, the use of an Order in Council, rather than regulations or an order, is appropriate because the provisions are closely connected to diplomatic relations between the UK and other countries. This procedure is also consistent with the provision for making Orders in Council under the Foreign Marriage Act itself 64. The existing power to make an Order in Council under the Foreign Marriage Act 1892 is not subject to any Parliamentary control: the Order need only be laid. However, it is recognised that some degree of control is appropriate. An Order in Council under this clause will therefore be subject to the negative resolution procedure (see clause 179(3)), although a similar Order under the Foreign Marriage Act would not. Moreover, clause 179(4) ensures that it will be possible to make a single Order which would replace the existing Foreign Marriage (Armed Forces) Order and make provision for both marriage and civil partnership in a single instrument, using the power under this clause and the power under the Foreign Marriage Act. Such an Order would be subject to the negative resolution procedure by virtue of clause 179(4). 65. As with clause 150, the negative resolution procedure is appropriate because the Order will be largely procedural in nature, will generally be following the approach either of the Bill or the Foreign Marriage Act and Orders, and is subject to the key conditions set out in the clause itself.

CHAPTER 2 – OVERSEAS RELATIONSHIPS TREATED AS CIVIL PARTNERSHIPS

Clause 153: Power to make an order amending Schedule 14 to the Bill (list of specified relationships which qualify as “overseas relationships”) Power conferred on: Secretary of State with agreement of the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland Power exercised by: Order (Statutory instrument) Parliamentary Procedure: Affirmative resolution procedure if the order contains provision omitting a relationship from Schedule 14 or amending a description of such a relationship, otherwise negative resolution procedure

66. To be treated as a civil partnership under this Chapter, a relationship entered into in a country or territory outside the United Kingdom must fall within the definition of an “overseas relationship” set out in clause 152. This in turn requires it to be either a “specified relationship” (as listed in Schedule 14) or to be a relationship which meets the 22 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

“general conditions” under clause 154. There are other additional requirements set out in clause 152. 67. Clause 153(2) to (6) confers power on the Secretary of State to amend the Schedule 14 list by order. This will allow new kinds of same-sex relationship (whether same-sex partnerships or same-sex marriages) to be added to Schedule 14 as they come into existence. The law in this area is in a state of rapid evolution, and it would not be practicable to use primary legislation for each amendment that may be needed to the list. If a particular relationship is not listed, it can still come within the definition of an “overseas relationship” if the general conditions in clause 154 are met. 68. It is considered that all the relationships listed in Schedule 14 would meet the general conditions, in that they involve relationships which are exclusive in nature, indeterminate in duration, have the effect that the parties are treated as a couple or as married under the law of the relevant country or territory, and involve registration of the partnership. 69. The exercise of this power requires the agreement of the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. 70. The affirmative resolution procedure is appropriate to enable Parliament to scrutinise any order which removes a description of relationship from the list, as such an exercise of the power would reduce the scope of recognition and might involve amending the list as approved in the Bill by Parliament. This power would be used if a partnership scheme in another country were repealed or amended, or a court judgment in that country fundamentally changed the nature of the scheme in a way which made continued recognition of such relationships inappropriate. In such cases transitional or saving provisions could also be included by virtue of clause 190, for example to protect certain rights of existing partners. The amendment of a description in the list under subsection (2) will also require the use of the affirmative resolution procedure to provide appropriate Parliamentary scrutiny. 71. The affirmative resolution procedure is not considered necessary where an order under this clause adds new relationships to the list but does not amend or remove a description. Additions of this kind would not raise any new issue of principle for Parliament to consider, nor affect any cases previously considered by Parliament, but would simply ensure the list is kept fully up to date as new same-sex partnerships (or same-sex marriages) come into existence in other countries.

CHAPTER 3 – DISSOLUTION ETC.: JURISDICTION AND RECOGNITION

Clause 159: Power to make provision corresponding to EC Regulation 2201/2003 Power conferred on: Lord Chancellor or Scottish Ministers Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Affirmative resolution

72. This clause gives the Lord Chancellor or Scottish Ministers powers to make regulations concerning, first, the jurisdiction of the courts in England and Wales or Scotland to dissolve or annul civil partnerships or to separate civil partners, and second, the recognition and enforcement of equivalent judgments from other Member States. These regulations will apply in cases where the corresponding rules for dissolution, annulment or legal separation in matrimonial matters will be governed by EC Regulation 2201/2003. 73. Jurisdiction, recognition and enforcement between Member States of the EU except Denmark in matrimonial matters is currently governed by Council Regulation EC DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 23

1347/2000. References to this Regulation occur in the Domicile and Matrimonial Proceedings Act 1973 and in the Family Law Act 1986. Council Regulation EC 2201/2003 also contains provisions on jurisdiction, recognition and enforcement in matrimonial matters, and will replace Council Regulation EC 1347/2000 when it comes into force on 1 March 2005. The UK cannot unilaterally amend this legislation to include civil partners. Accordingly, in order to create equivalent provisions for civil partners as currently exist for married couples, this clause provides a power to make regulations which parallel the provisions of Council Regulation EC 2201/2003. 74. These are detailed matters which it is appropriate to deal with through a power of this kind. Use of a power will also ensure that, in the event of future changes to the relevant EC regulation, parallel changes can be made in relation to civil partnership. Since Regulation 2201/2003 will come into force on 1 March 2005, such amendment is not anticipated in the near future.

Clause 163: Rules of court relating to proceedings for dissolution, nullity or separation Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

75. This clause allows rules of court to be made corresponding to the provision made in relation to marriages by Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. Paragraph 19 above outlines the procedure followed in making rules of court. These provisions principally concern situations where proceedings equivalent to those before the English courts are continuing in another jurisdiction. As they relate to matters of detail which are supplementary in nature the negative resolution procedure is appropriate.

Clause 166: Rules of court relating to sisting of proceedings Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: None

76. This clause allows rules of court to make provision corresponding to that in relation to marriage in Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973 (sisting of Scottish consistorial actions). Paragraph 40 above explains the procedure involved in making rules of court in Scotland.

Clause 172(2): Power to recognise validity of overseas dissolutions, annulments and separations Power conferred on: Lord Chancellor or Scottish Ministers Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution

77. Subsection (2) gives the Lord Chancellor or the Scottish Ministers the power to make regulations concerning cases involving the recognition of the validity of overseas annulments where there are cross-proceedings, for example where the validity of an order is contested, and cases where a separation is converted into a dissolution effective under the law of the country where it is obtained. They may also make regulations concerning, first, proof of findings of fact in proceedings outside the UK and applying clauses 170 24 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

(grounds for recognition of overseas dissolutions etc) and 171 (refusal of recognition) with modifications for countries with territories with different systems of law for dissolution etc. 78. Subsection (2) corresponds to sections 47, 48 and 49 of the Family Law Act 1986. The powers contained in it deal with matters of detailed procedure of a supplementary nature which can appropriately be exercised by means of subordinate legislation. The technical and uncontroversial nature of the subject matter makes it appropriate for the negative resolution procedure to be used in relation to these powers.

CHAPTER 4 – MISCELLANEOUS AND SUPPLEMENTARY

Clause 174 and 179: Power to make provision by Order in Council for the issue of certificates of no impediment by a commanding officer in cases where one of proposed civil partners is a member of armed forces serving abroad Power conferred on: Her Majesty the Queen Power exercised by: Order in Council (Statutory instrument) Parliamentary procedure: Negative resolution

79. The power conferred by this clause corresponds to that conferred by section 39 of the Marriage Act 1949. That section allows a member of the Royal Navy at sea to give notice of intended marriage to the officer commanding the ship, rather than having to give notice in England and Wales. The statutory provisions relating to notices and certificates apply, subject to such adaptations as may be made by Order in Council. 80. Clause 174 similarly allows provision to be made for the issue, to a member of any of the armed forces, of a certificate which will enable him or her to form a civil partnership in England and Wales without having to give notice there. It is envisaged that the power will be exercised so as to provide details of the procedure to be followed before such a certificate may be issued. This may include such matters as the form of the notice to be given to the commanding officer, the publication of details of the notice, the lodging of objections to the proposed partnership, and the circumstances (if any) in which the certificate may be issued although such objections have been lodged. A power is appropriate because these provisions will be procedural in nature. The existing procedure for marriage is governed by an Order in Council, and it is appropriate to adopt a consistent approach. 81. There is no provision for any Parliamentary procedure in relation to an Order in Council made under section 39 of the Marriage Act 1949. While it is recognised that some degree of control is appropriate in this case, the negative resolution procedure is appropriate because the intention is to mirror as far as possible the corresponding provisions on marriage. (The present clause goes beyond the current text of section 39 of the Marriage Act in extending to all the armed services, but it is proposed that section 39 will itself also be so extended by the Regulatory Reform Order referred to in paragraph 13). An Order in Council under clause 174 will thus be subject to the negative resolution procedure, although a similar Order under section 39 of the Marriage Act would not. Moreover, an Order which makes provision for both marriage and civil partnership will attract the negative resolution procedure by virtue of clause 179(4). DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 25

Clause 175 and 179: Power to make provision by Order in Council for the issue of certificates of no impediment in relation to intended overseas relationships Power conferred on: Her Majesty the Queen Power exercised by: Order in Council (Statutory instrument) Parliamentary procedure: Negative resolution

82. This power enables provision to be made for the issue of certificates of no impediment (CONI), in relation to intended overseas relationships. The clause prescribes the persons to whom this may apply. Clause 179(2) ensures that the Order in Council may make provision in relation to overseas relationships corresponding to provision in relation to marriage in section 1 of, or the Schedule to, the Marriage with Foreigners Act 1906 (c.40). 83. The certificate will be to the effect that, after proper notices have been given, no legal impediment to the overseas relationship has been shown to exist. The Order in Council to be made under this clause will determine the procedure and form for the issue of the certificate. The substantive provisions of content of the certificate, and the categories of person to whom it may be issued, are covered in the Bill itself. Negative Resolution procedure is therefore appropriate. 84. The Marriage with Foreigners Act 1906 (c.40) was disapplied in Scotland and superseded by the Marriage (Scotland) Act 1977. Section 7 of that Act makes provision for a person residing in Scotland who wishes to marry outside Scotland to obtain a certificate in respect of his legal capacity to marry. The power to make an Order in Council under clause 175 will apply equally in Scotland and a separate Order will be made for Scotland for similar purposes.

Clause 176 and 179: Power to make provision by Order in Council for the transmission to UK Registrars General of certificates of overseas relationships Power conferred on: Her Majesty the Queen Power exercised by: Order in Council (Statutory instrument) Parliamentary procedure: Negative resolution

85. Clause 176 allows for provision to be made for the transmission to Registrars General in the UK of certificates of registration of overseas relationships. It is envisaged that this will be exercised in order to make provision broadly equivalent to that which exists in relation to overseas marriages under section 18 of the Foreign Marriage Act 1892. An Order in Council under this provision will need to provide for the transmission by a consular officer to any of the UK Registrars-General, of certificates of such partnerships issued in accordance with the local law. The Order in Council will also need to provide for the receipt of such documents by the Registrars General, and for the Registrars General to supply details of the relevant information in circumstances where proof is required of an overseas relationship. Under the Foreign Marriage Act this is done by issuing certified copies of the overseas certificate of registration, which can be received in evidence. However the precise procedures may change in line with changes to registration systems and procedures more generally, for example as a result of the proposed Regulatory Reform Order referred to in paragraph 13 above. This means that the detailed procedures may vary as between different parts of the United Kingdom (as is permitted by clause 179(1)(a)). 86. The existing power to make an Order in Council under the Foreign Marriage Act 1892 is not subject to any Parliamentary control: the Order need only be laid. However, it 26 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE is recognised that some degree of control is appropriate. An Order in Council under this clause will therefore be subject to the negative resolution procedure (see clause 179(3)), although a similar Order under the Foreign Marriage Act would not. Moreover, any Order which makes provision for both marriage and civil partnership will attract the negative resolution procedure by virtue of clause 179(4). 87. The transmission of certificates to the Registrar General is a purely administrative matter and as such we consider negative resolution to be the appropriate procedure.

Clause 177 and 179: Power to make provision relating to certain Commonwealth forces Power conferred on: Her Majesty the Queen Power exercised by: Order in Council (Statutory instrument) Parliamentary procedure: Negative resolution

88. This clause enables provision to be made if it appears that any law in force in Canada, Australia or New Zealand makes provisions similar to that in clause 151, so that the law has effect as part of the law of the United Kingdom. 89. This enables provision to be made equivalent to that which can be made in relation to marriage under section 3(2) of the Foreign Marriage Act 1947, and has been made by the Foreign Marriage (Armed Forces) Order 1964 (S.I. 1964 No. 1000) in relation to Australia and New Zealand. It is intended that this clause would be used in the event that any of the jurisdictions in question made provision to allow members of their armed forces to register a same-sex relationship while serving abroad. Such a partnership might not be treated as a civil partnership by virtue of Chapter 2 of Part 5 of the Bill because it would not necessarily be regarded as a valid relationship in the country where it was registered. Provision for this situation cannot be made on the face of the Bill because the issue would arise only if, in future, any of these jurisdictions make provision for registration of same- sex partnerships by members of their armed forces serving abroad. Although an Order in Council under the 1947 Act is not subject to Parliamentary control but need only be laid, it is recognised that some Parliamentary procedure is appropriate. Negative resolution procedure is appropriate because the intention is simply to mirror the existing provisions on marriage where an anomaly would otherwise arise.

PART 6 – RELATIONSHIPS ARISING THROUGH CIVIL PARTNERSHIP

Clause 182 and clause 183: power to amend Schedule 15 and 16 respectively to add provisions of existing Acts to those Schedules; and to apply the provisions in clause 181 to prescribed provisions of existing subordinate legislation Power conferred on Clause 182 – Secretary of State, or Scottish Ministers in relation to a relevant Scottish provision; Clause 183 – Department of Finance and Personnel, Northern Ireland Power exercised by: Order (Statutory Instrument / Statutory Rule in Northern Ireland) Parliamentary procedure: Negative resolution

90. Clause 181 sets out the way in which references to stepchild, step-parent and cognate expressions are to be read in legislation to which it applies. The clause will apply to any DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 27 provisions in the Civil Partnership Bill, any provision in a future Act (unless specified otherwise) and any provision in subordinate legislation made under a future Act (unless specified otherwise). Schedule 15 lists the references to stepchildren, step-parents and in- laws in existing UK Acts to which this section applies. Schedule 16 lists the same references in Northern Ireland legislation. 91. The power in clause 182 allows the Secretary of State to amend Schedule 15 to include any provisions of existing Acts or to apply clause 181 to subordinate legislation. The power is extended to the Scottish Ministers for matters within the legislative competence of the Scottish Parliament. While every effort has been made to produce a comprehensive list of existing enactments to which this clause should apply, in an exercise of this kind, it is inevitable that at as time goes by, other enactments will come to light to which this clause should apply. The power in clause 183 mirrors this provision in respect of Northern Ireland legislation. 92. The negative resolution procedure is appropriate level of Parliamentary control because while this is giving the power to amend a provision in the Bill, the principle is set out clearly on the face of the Bill.

PART 7 – MISCELLANEOUS

Clause 187: Power to amend enactments relating to pensions Power conferred on: Secretary of State (Lord Chancellor only in respect of judicial pensions) Power exercised by: Order (Statutory instrument) Parliamentary procedure: Affirmative resolution where an order contains any provision amending or repealing any enactment or Church legislation (other than any enactment relating to judicial pensions, allowances or gratuities); negative resolution for any other order

93. This power allows the amendment, repeal or revocation of legislation relating to pensions, allowances and gratuities for the purposes of, or in connection with, making provision with respect to pensions, allowances or gratuities for surviving civil partners or dependants of deceased civil partners. (a) The powers in this clause are needed for two distinct purposes: (b) To amend the statutory provisions relating to contracted-out pension arrangements to require contracted-out defined benefit pension schemes to make provision for survivor benefits for surviving civil partners, taking account of periods of pensionable service after commencement of the Civil Partnership Bill. The power will also be used to require contracted-out defined contribution schemes to make provision for a surviving civil partner, for the protected rights accrued after commencement of the Civil Partnership Bill if the member is in a registered civil partnership at the point of retirement. Contracted out schemes are already required to make provision for survivor benefits for legal spouses. Pensions legislation is complex and detailed, and it is important to ensure that the changes made by this Bill fit with the overall scheme of that legislation, particularly in light of the fact that the Pensions Bill currently progressing through Parliament will make further changes to it. It was therefore considered preferable to allow for changes to the pensions legislation to be made under 28 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

this power rather than making substantive provision on the face of the Bill at this stage. (c) To amend statutory provisions relating to public service pension schemes and other pension schemes contained in legislation. This power may be needed, in particular, to amend the pension arrangements for clergy and officials in the Church of England and to make changes in respect of judicial pensions. Amendments to judicial and church pensions may be extensive and for this reason we consider that a power should be taken.

Church legislation (i) The current provisions are set out in Church of England measures, and regulations made under those measures. By convention such matters would normally be dealt with in Church legislation, not Parliamentary legislation. Given the subject matter of the amendments, and the amount of General Synod time which would be required for the church to amend its own legislation, the Church of England has agreed that they should be dealt with in government legislation. However, the Church has not yet decided whether it will be permissible for members of the clergy to enter into civil partnerships, and it is therefore unclear how extensive such amendments will need to be. In addition, under the convention, it will be necessary to consult fully with the Church on the form and extent of the amendments. The uncertainty as to precisely what amendments will be required, and the need for full consultation of the Church mean that it will not be possible to make these amendments on the face of the Bill.

Judicial pensions (ii) In relation to judicial pensions, the power may only be exercised by the Lord Chancellor, unless the judicial officer holder in receipt of the pension has an exclusively Scottish jurisdiction, where the power may only be exercised by the Secretary of State. Amendments to other public service pension schemes which are more easily identifiable appear in Schedule 18. 94. The powers in this clause are subject to the affirmative resolution procedure, except in relation to judicial pensions, where the negative resolution procedure is to be followed. This is because the use of the power is appropriately restrained to the Lord Chancellor and any changes will be uncontroversial since they will be used simply to bring the judicial pensions regime in line with Civil Partnerships. This would be in keeping with the level of scrutiny provided for in the powers to make subordinate legislation found in the judicial pensions legislation. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 29

PART 8 – SUPPLEMENTARY

Clause 191: power to make further provision in connection with civil partnership Power conferred on: Minister of the Crown; Scottish Ministers (within competence); National Assembly for Wales (within their functions) Power exercised by: Order (Statutory instrument) Parliamentary procedure: Orders which amend or repeal primary legislation or Church legislation are subject to the affirmative procedure; other orders (except when made by the National Assembly for Wales) are subject to the negative resolution procedure.

95. Subsection (1) confers power (which is not restricted by any other provision of the Bill (see subsection (5)) to make, by order, further provision considered appropriate for the general purposes of the Bill, for any particular purpose of the Bill, or in consequence of any provision by or under the Bill, or for giving full effect to the Bill or such a provision. 96. This power is exercisable by a Minister of the Crown, by the Scottish Ministers in relation to a provision within the legislative competence of the Scottish Parliament and by the National Assembly for Wales in relation to matters with respect to which functions are exercisable by the Assembly (except in relation to a provision made by virtue of subsection (3)). 97. By subsection (3) an order may amend or repeal primary legislation (or Scottish primary legislation) and it includes the power to repeal or amend provisions conferring a power to make subordinate legislation whose exercise is currently limited to cases of marriage. An order may also amend, repeal or revoke Church legislation (subsection (3)(b)). 98. By subsection (4) an order may provide for provisions of the Bill to come into force with modifications until other provisions are commenced. An order may amend or revoke subordinate legislation (subsection (4)(b)), including subordinate legislation made by the Scottish Ministers. 99. The power is exercisable by statutory instrument and an order is subject to the negative procedure except that the affirmative procedure applies if the order contains any provision made by virtue of subsection (3). 100. This power is designed for a range of purposes. A major purpose is to enable amendment of primary legislation. The chief purpose of the Government’s policy is to secure equivalence of treatment by legal provisions between civil partners and married persons, except in cases which are judged to be inappropriate. However, the range of legal provisions that refer to married persons is very wide. Although the Department has coordinated extensive searches of primary and secondary legislation in preparing this Bill, it is inevitable in an exercise of this kind, that further legislation requiring amendment will be identified subsequently. Moreover, it has not been possible to conduct more specialist research (e.g. into private legislation). The power will enable the necessary amendments to be made without recourse to further primary legislation. 101. It is difficult, therefore, to give examples of primary legislation that would be amended under this power. However, Schedule 20 of the Bill may provide an indication both of the possible range of legislation that and of the changes that would need to be made. While many might involve little more than adding, where there is a reference to a person’s spouse or widow (or widower), an additional reference to that person’s civil partner or surviving civil partner, this would not always be the correct approach. 30 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Moreover, an assessment would need to be made whether change is appropriate in the particular case. For these a provision declaring all references to married persons to include a reference to civil partner would not be suitable. A power of the kind in this clause is thought to be the only feasible alternative. In line with the Committee’s past recommendations, any order which amends primary legislation will be subject to the affirmative procedure. It is intended that there would be consultation in appropriate cases with persons likely to be affected. 102. This power is available to deal with cases where the existing primary legislation is being amended in the current Parliamentary session, so that the necessary changes can be made to the legislation in its amended form. An example of this case is the legislation relating to mental incapacity which is currently being reformed. 103. The Department considered the issue carefully before including the power in subsection (3)(a) for such an order to amend primary legislation that confers delegated powers. It is aware that a power of this kind is unusual, although the clause does not enable the creation of any new delegated power. However, it is impossible to be sure of tracing all delegated powers which are subject to limitations that preclude changes being made to secondary legislation to deal with civil partnership. Here, too, the Department considered the possibility of a general provision declaring such delegated powers to be also exercisable in the case of civil partners, and rejected it for the reasons mentioned above. Another approach that was rejected was to create a power to make provision by order in relation to civil partners which would parallel any power to make such provision in the case of married persons (though this approach was adopted in the special circumstances covered in clause 192). This seemed likely to require two quite separate instruments setting out substantially the same provisions, differing only in their references to spouses or civil partners. Subsequent amendments would likewise require two instruments. Such an approach would duplicate effort and make legislation more complex. The Department concluded that taking a power to amend delegated powers of this kind was the appropriate and proportionate response to the problem. It has, however, sought to delimit clearly the type of case in which this power would be used (delegated powers limited by reference to persons who are or have been parties to a marriage). As with any amendment to primary legislation, an order of this kind would be subject to the affirmative procedure. 104. By agreement with the Church of England, the power also extends to amendment of Church legislation. The convention that Parliament should not legislate for the Church of England without the Church’s consent, and that the Church should be consulted in advance in relation to any legislation affecting it, will continue to apply. This convention renders it unnecessary to make express provision to that effect. 105. The power also enables the amendment of subordinate legislation. The Department’s initial thinking on this matter was that subordinate legislation should be amended using the power under which it had been made (amended as necessary under the Bill). However, this would be likely to require a very large number of small separate amending instruments of different types to be made in the early months after the Bill was enacted. Each would call for Parliamentary scrutiny in its own right, with a number requiring affirmative resolutions. In addition, many would require statutory consultation procedures to be followed in a situation where this is seen as unnecessary because the principle of legislating for civil partnership would have been approved by Parliament in enacting the Bill. The Department therefore concluded that it would be more appropriate and a better use of resources to gather these amendments into one or two instruments – perhaps entitled “Civil Partnership (Miscellaneous Amendments to Subordinate Legislation) Orders” – where they could be considered by Parliament together under the negative procedure. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 31

106. The National Assembly for Wales is given the power to make orders in relation to matters within its functions, except that in their case the power does not extend to amending primary legislation. No Parliamentary procedure is required in the case of orders made by the Assembly, as all instruments made by the Assembly require the collective approval of the Assembly. 107. The Scottish Ministers’ powers are equivalent to those of a Minister of the Crown, save that the procedure is before the Scottish Parliament. 108. Finally, the clause enables transitional and transitory provisions and savings. One example of the need for such provision concerns the registration provisions for England and Wales (Part 2, Chapter 1 of the Bill), which have been drafted so as to parallel, as far as appropriate, the registration procedures for civil marriage that are proposed in the Civil Registration Regulatory Reform Order (on a draft of which the Office for National Statistics has already consulted). It has now been announced that the changes to marriage legislation will be taken forward by Regulatory Reform Order early in the next Parliament (see paragraph 13 above) and the Bill is therefore expected come into force before the Regulatory Reform Order. If that happens, an order under the present clause will be required to adapt the Bill’s provisions during the period before the Regulatory Reform Order comes into force.

Clause 192: Community obligations & civil partners Power conferred on: Minister of the Crown; Scottish Ministers Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution where affirmative procedure not used

109. This power allows a Minister of the Crown or the Scottish Ministers, in a case where provision is made under section 2(2) of the European Communities Act 1972 concerning a Community obligation which relates to persons who are or have been married, to make parallel provision in relation to persons who are or have been civil partners. 110. This will ensure that the Government can maintain its overall approach (to make (where appropriate) parallel provision for civil partners or former civil partners to that made for persons who are or who have been spouses, where the Community law obligation does not extend to registered same-sex relationships or it is uncertain whether it does so. 111. A statutory instrument containing regulations under this provision is subject to the negative procedure if made without a draft having been approved by resolution of each House of Parliament. This allows us the flexibility to make provision for civil partners in the same way (and probably at the same time) as the provision being made for married persons under section 2(2) of the European Communities Act 1972.

Clause 195: Commencement Power conferred on: Secretary of State, Scottish Ministers, Department of Finance and Personnel Power exercised by: Order (Statutory instrument) Parliamentary procedure: None

112. All of the Bill will come into force by commencement order, save for certain closing provisions and delegated powers which take effect on Royal Assent. The main powers are vested in the Secretary of State, with a requirement to consult the Scottish Ministers and 32 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE the Department of Finance and Personnel in certain cases where devolved interests are interwoven. Part 3 and Schedule 21 are to be commenced by the Scottish Ministers, in consultation with UK Ministers, reflecting their responsibility to the Scottish Parliament for matters within its legislative competence. Part 4 and certain provisions in Part 6 are to be commenced by the Department of Finance and Personnel, in consultation with the Secretary of State. The intention is that the Bill will be commenced across the United Kingdom at the same time.

SCHEDULES

SCHEDULE 2

Part 4, paragraph 13(2): Power to make rules of court enabling applications made under Parts 2 or 3 of Schedule 2 to be heard in chambers in the High Court, to be heard by the registrar in the county court and to be heard otherwise than in open court in the magistrates’ court Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

113. This clause enables rules of court to be made to allow applications under Parts 2 or 3 of Schedule 2 to be heard in chambers in the High Court; to be heard and determined by a registrar in the county court; and to be heard and determined otherwise than in open court in the magistrates’ court. This clause is a procedural necessity to enable applications to be dealt with appropriately and replicates section 3(5) of the Marriage Act 1949. 114. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Part 4, paragraph 13(3): Power to make rules of court to require notice of an application in consequence of a refusal to give consent to be served upon the person who has refused consent Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

115. This clause requires that rules of court must provide that notice of an application, in consequence of a refusal to give consent, be served upon the person who has refused consent. These rules are a necessary procedural requirement. This clause replicates section 3(5) of the Marriage Act 1949. 116. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 33

SCHEDULE 5

Part 4, Paragraph 19(2): Power to prescribe period between pension sharing orders being made and when orders may take effect Power conferred on: Lord Chancellor Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution

117. This power enables the Lord Chancellor to prescribe in regulations the period which must elapse between the making of a pension sharing order and that order taking effect. The reason why there has to be a time lapse before the order can take effect is to allow time for the filing of a notice of appeal. The filing of a notice of appeal within the specified time period prevents the order taking effect until the appeal is determined. This provision replicates section 24C of the Matrimonial Causes Act 1973 (as inserted by Section 19 of the Welfare Reform and Pensions Act 1999). Current regulations made under the 1973 Act prevents the order from taking effect until 7 days after the time allowed for filing a notice of appeal. Therefore an order under the 1973 Act cannot take effect for 21 days. The order making power is purely a matter of procedure so that the effective date of a pension sharing order allows sufficient time for the appeal process to be effected. The flexibility of the use of secondary legislation in this instance is required so that any changes to the court procedures regarding appeals can be quickly addressed. 118. This power will only be used were there is a change in the court procedure or where a problem with the timing is identified. However any such change would need to be implemented quickly to prevent a pension sharing order being effected before due process has been completed. 119. The level of detail and the procedural nature of the power suggests that high level of Parliamentary scrutiny is not required. Therefore primary legislation or affirmative resolution would not be suitable and the regulations should be laid before Parliament and subject to negative resolution. This would also be in keeping with the level of scrutiny set out for the equivalent provision in the 1973 Act.

Part 6, Paragraph 28(1): Power to make regulations relating to Part 1 orders Power conferred on: Lord Chancellor Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution

120. This power enables the Lord Chancellor to make a number of provisions in regulations relating to Part 1 orders: (i) Regulations made under subparagraph (1)(a) can make provision, in relation to any provision of paragraph 25 or 26 which authorises the court making a Part 1 order to require the person responsible for a pension arrangement to make a payment for the benefit of the other civil partner, as to the person to whom and the terms on which, the payment is to be made. (ii) Regulations under subparagraph (1)(b) can make provision, in relation to payment under a mistaken belief as to the continuation in force of a provision in a Part 1 order, about the rights or liabilities of the payer, the payee or the person to whom the payment was due. 34 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

(iii) Regulations under subparagraph (1)(c) can require notices to be given in respect of changes of circumstances that are relevant to Part 1 orders. (iv) Regulations under subparagraph (1)(d) can be made to allow a person responsible for a pension arrangement to be discharged in certain circumstances from certain requirements (v) Regulations under subparagraph (1)(e) can make provision about calculation and verification in relation to the valuation of benefits under a pension arrangement or shareable state scheme rights. For example, regulations could prescribe the method of calculating the cash value of a pension arrangement. 121. These provisions mirror those in section 25D of the Matrimonial Causes Act 1973 (as inserted by section 166 Pensions Act 1995) and concern the detail and procedure connected with making pension orders under Schedule 5 of the Bill. All the regulation making powers in this provision would need to be flexible as they would be dealing with different pension providers and different types of pension. This requirement for flexibility is borne out by the need for subparagraph (3) which allows different provision to be made for different cases. There is a need for these regulations to be updated to keep in step with changes in the pension legislation and pension arrangements and regulation making powers will allow for a quick reaction to any such changes. 122. The regulation making powers under paragraph 28 of Schedule 5 are concerned with administrative issues, procedure and details of application. Therefore it is not considered that primary legislation or affirmative resolution would be required for any regulation made pursuant to paragraph 28. The level of detail and flexibility required suggests that a high level of Parliamentary scrutiny is not required and a negative resolution should be pursued in Parliament. This would also be in keeping the equivalent provision in the 1973 Act.

Part 9, Paragraph 38(3): Power to make rules of court in relation to commencement of proceedings for ancillary relief Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

123. This clause allows rules of court to provide that an application for commencement of proceedings for ancillary relief must be made in the application or response. It also states that rules of court may provide that an application for ancillary relief that is not made in the application or response or which is not made until the end of such period as may be prescribed, may be made only with the leave of the court. This Clause mirrors Section 26(2) of the Matrimonial Causes Act 1973. 124. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 35

Part 10, Paragraph 49(3): Power to prescribe period after making of a variation order before that order takes effect Power conferred on: Lord Chancellor Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative resolution

125. This power allows the Lord Chancellor to make regulations prescribing the period which must elapse after the making of a variation order, before the pension sharing order can take effect. This provision replicates that in section 31(4C) of the Matrimonial Causes Act 1973 (as inserted by Section 19 of the Welfare Reform and Pensions Act 1999). The requirements, in this provision, for a delegated power are precisely the same as those put forward under paragraphs 80 to 82 above. The order making power is purely a matter of procedure so that the effective date of a pension sharing order allows sufficient time for the appeal process to be effected. The flexibility of the use of secondary legislation in this instance is required so that any changes to the court procedures regarding appeals can be quickly addressed. 126. This power will only be used were there is a change in the court procedure or where a problem with the timing is identified. However any such change would need to be implemented quickly to prevent a pension sharing order being effected before due process has been completed. 127. The level of detail and the procedural nature of the power suggests that a high level of Parliamentary scrutiny is not required. Therefore primary legislation or affirmative resolution would not be suitable and the regulations should be laid before Parliament and subject to negative resolution. This would also be in keeping with the level of scrutiny set out for the equivalent provision in the 1973 Act.

Part 11, Paragraph 55(4): Power to make rules of court in relation to an application for leave of the court for arrears to be enforced through the court. Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

128. This Clause allows rules of court to prescribe the manner in which an application for the grant of leave to enforce arrears of financial provision or maintenance through the court is to be made. This clause mirrors Section 32(3) of the Matrimonial Causes Act 1973. 129. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. 36 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

SCHEDULE 6

Part 1, Paragraph 2(2): Maintenance Orders – Power to increase maximum lump sum payments Power conferred on: Lord Chancellor Power exercised by: Orders (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

130. This power allows the Lord Chancellor to increase from time to time the maximum lump sum which can be ordered by a Court under Paragraph 2(1) (b) or (d) of Schedule 6. The current maximum set out in paragraph 2(2)(a) is £1000, which is the same as that contained in section 2(3) of the Matrimonial Causes Act 1973 as amended by The Magistrates’ Courts (Increase of Lump Sums) Order 1988 S.I. 1988/1069. 131. This power is intended to be used in the same way as that under the Matrimonial Causes Act 1973. The original maximum under that legislation was set at £500 but was increased in 1988. Although it is not envisaged that the power would be used very often there is a requirement that the maximum can be easily altered in line with increases in other financial circumstances without having to wait for another suitable legislative vehicle. 132. The regulation making power under paragraph 2(2) of Schedule 6 is concerned with detail of application. The level of detail and flexibility required suggests that a high level of Parliamentary scrutiny is not required and a negative resolution should be pursued in Parliament. This would also be in keeping the equivalent provision in the 1973 Act.

Part 2, Paragraph 11: Power to make rules of court in relation to evidence that needs to be produced for orders for agreed financial provision where a respondent is not present at the hearing. Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative resolution

133. This Clause allows rules of court to prescribe the evidence necessary for a court to make an agreed financial provision order where a respondent is not present, or does not have legal representation, at the hearing. The Clause lists the circumstances in which such an order can be made and rules can provide for the level and manner of evidence required. This clause mirrors Section 6(9) of the Domestic Proceedings and Magistrates Courts Act 1978. 134. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 37

SCHEDULE 7

Part 1, Paragraph 2(3): Power to prescribe manner in which applications are made for an order under paragraphs 9 or 13 of Schedule 7 Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory Instrument) Parliamentary procedure: Negative Resolution procedure

135. This power enables the rules of court to prescribe the manner in which applications for an order under paragraph 9 or 13 to the Schedule must be made. This provision replicates that in section 24 of the Matrimonial and Family Proceedings Act 1984. The order making power is purely a matter of procedure. The flexibility of the use of secondary legislation in this instance is required so that any changes to the court procedures regarding the manner in which applications may be made can be quickly addressed. 136. As with paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Part 1, Paragraph 4(1): Power to prescribe procedure for obtaining the leave of court under paragraph 4 of Schedule 7 Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory Instrument) Parliamentary procedure: Negative Resolution procedure

137. This power enables the rules of court to prescribe the procedure for obtaining leave to apply for financial relief under paragraph 4 of Schedule 7. This provision replicates section 13(1) of the Matrimonial and Family Proceedings Act 1984. The order making power is purely a matter of procedure. The flexibility of the use of secondary legislation in this instance is required so that any changes to the court procedures regarding the procedure for applications for leave may be implemented quickly. 138. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Part 1, paragraph 12(1): Power to prescribe information required in support of an application for a consent order under paragraph 12 of Schedule 7 Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

139. This power enables the rules of court to prescribe what information should be supplied to the court in support of an application for a consent order. This provision replicates that in section 19 of the Matrimonial and Family Proceedings Act 1984. The order making power is purely a matter of procedure to enable the appropriate information to be supplied in support of an application for a consent order in these circumstances. 140. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. 38 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Part 1, paragraph 14(4): Power to make corresponding regulations for Schedule 7 to those regulations which may be made by the Secretary of State under paragraph 28(1) to (3) of Schedule 5 Power conferred on: Lord Chancellor Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

141. We refer to the comments made in relation to the powers contained in paragraph 28(1) to (3) of Schedule 5. The power contained in paragraph 14(4) concerns the detail and procedure connected with making pension orders under Schedule 7. The power given here to make regulations is the same as the power given to the Secretary of State in paragraph 28(1) to (3) of Schedule 5 and also replicates section 21(4) of the Matrimonial and Family Proceedings Act 1984. 142. The regulation making powers under paragraph 14 of Schedule 7 are concerned with administrative issues, procedure and details of application. Therefore it is not considered that primary legislation or affirmative resolution would be required for any regulation made pursuant to paragraph 14. The level of detail and flexibility required suggests that a high level of Parliamentary scrutiny is not required and a negative resolution should be pursued in Parliament. This would be in keeping with the equivalent provision in the 1984 Act.

SCHEDULE 20

Paragraph 47 – Amendment to the Matrimonial and Family Proceedings Act 1984 (c.42) – section 36A(1)(a) and (b): Power to designate any county court as a civil partnership proceedings county court, and to designate, as a court of trial, any county court designated as a civil partnership proceedings county court. Power conferred on: Lord Chancellor Power exercised by: Order (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

143. This power enables the Lord Chancellor to designate any county court as a civil partnership proceedings county court and also to designate, as a court of trial, any county court designated as a civil partnership proceedings county court. This provision replicates that in section 33(1) of the Matrimonial and Family Proceedings Act 1984. The order making power is an administrative necessity to enable county courts to hear civil partnership causes. The flexibility of the use of secondary legislation is required so that county courts may be designated as civil partnership proceedings county courts relatively quickly. 144. The level of detail and administrative nature of the power suggests that a high level of Parliamentary scrutiny is not required. Primary legislation or the affirmative resolution procedure would not be suitable and the orders should be laid before Parliament and subject to the negative resolution procedure. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 39

Paragraph 47 – Amendment to the Matrimonial and Family Proceedings Act 1984 – section 36A(5): Power to make rules of court to provide for a civil partnership cause pending in one court to be heard and determined partly in that court and partly in another court Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

145. This power enables rules of court to provide for a civil partnership cause pending in one court to be heard and determined in that court and partly in another court. This provision replicates section 33(2) of the Matrimonial and Family Proceedings Act 1984. The order making power is purely a matter of procedure. 146. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Paragraph 47 – Amendment to the Matrimonial and Family Proceedings Act 1984 (c.42) – section 36A(8): Power to designate a civil partnership proceedings county court as a court for the exercise of jurisdiction in civil partnership matters under Schedule 7 Power conferred on: Lord Chancellor Power exercised by: Order (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

147. This power allows the Lord Chancellor to designate a civil partnership proceedings county court as court with jurisdiction in relation to matters under Schedule 7 (Financial relief in England and Wales after overseas dissolution etc. of a civil partnership). This provision replicates section 33(4) of the Matrimonial and Family Proceedings Act 1984. The order making power is an administrative necessity to enable county courts to hear actions brought under Schedule 7. The flexibility of the use of secondary legislation is required so that county courts may be designated as civil partnership proceedings county courts relatively quickly. 148. The level of detail and administrative nature of the power suggests that a high level of Parliamentary scrutiny is not required. Primary legislation or the affirmative resolution procedure would not be suitable and the orders should be laid before Parliament and subject to the negative resolution procedure.

Paragraph 47 – Amendment to the Matrimonial and Family Proceedings Act 1984 – section 36B(2): Power to make rules of court to prescribe civil partnership proceedings county courts to hear and determine matters concerning financial relief and protection of children Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

149. This power enables rules of court to prescribe civil partnership proceedings county courts to hear and determine matters concerning financial relief and protection of 40 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE children. This provision replicates section 34(2) of the Matrimonial and Family Proceedings Act 1984. The order making power is purely a matter of procedure. 150. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Paragraph 47 – Amendment to the Matrimonial and Family Proceedings Act 1984 – section 36C: Power to make rules of court to confer jurisdiction to exercise the power contained in section 42 of the Civil Partnership Act 2004 on the civil partnership proceedings county court Power conferred on: Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

151. This power enables rules of court to confer jurisdiction to exercise the power contained in section 42 of the Civil Partnership Act 2004 on the civil partnership proceedings county court. This provision replicates section 35 of the Matrimonial and Family Proceedings Act 1984. The order making power is purely a matter of procedure. 152. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind.

Paragraph 51 – Amendment to the Matrimonial and Family Proceedings Act 1984 – section 42: Power to make rules of court to treat civil partnership causes and matters pending in the registry as pending in a civil partnership proceedings county court Power conferred on Authority making rules of court Power exercised by: Rules of court (Statutory instrument) Parliamentary procedure: Negative Resolution procedure

153. This power enables rules of court to treat civil partnership causes and matters pending in the registry as pending in a civil partnership proceedings county court. This provision amends the existing power contained in section 42 of the Matrimonial and Family Proceedings Act 1984 so that it applies in the same way to civil partnership causes as it does to matrimonial causes. The order making power is purely a matter of procedure. 154. As in the case of paragraph 19 above, this follows the standard rules of court procedure and it is considered that the negative resolution procedure is an appropriate level of scrutiny for procedural matters of this kind. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 41

Paragraph 69 – Amendment to the Immigration and Asylum Act 1999 – section 24A: Power to make regulations to prescribe the form and manner in which sham civil partnerships are reported Power conferred on: Registrar General (England and Wales), Secretary of State after consultation with the Registrar General (Scotland), Secretary of State after consultation with the Registrar General (Northern Ireland) Power exercised by: Regulations (Statutory instrument) Parliamentary procedure: None

155. This paragraph amends the Immigration and Asylum Act 1999 to impose a duty to report suspicious civil partnerships to the Home Office. Section 24A places a duty to report, where there are reasonable grounds for suspecting a sham civil partnership, on the registration authority to whom the notice of proposed civil partnership is given. It includes a power to prescribe, by regulations, the form and the manner in which suspicion of a sham civil partnership is to be reported to the Secretary of State. All powers to make regulations conferred by the Immigration and Asylum Act 1999 are exercisable by statutory instrument. 156. This power replicates the power in section 24 of the Immigration and Asylum Act 1999 in respect of marriage, for which there is no Parliamentary procedure. Given that the present power, like section 24, concerns matters of detail, it is appropriate to adopt the same position. 30 March 2004

Appendix to the Delegated Powers Memorandum: Amendment of existing powers in legislation The Delegated Powers Memorandum does not include details of the cases where the Bill will make minor amendments to delegated powers in existing legislation. A list of such cases is set out below:

SCHEDULE 17

Part 2, paragraph 26 This paragraph amends regulation making powers in section 77 of the Social Security Contributions and Benefits Act 1992 in respect of guardian’s allowance. This will enable a claim in respect of a child whose parent’s civil partnership has been dissolved to be treated in the same manner as that where the marriage of a child’s parents has been terminated by divorce. Subsection (1) and (2) of section 77 of the Social Security Contributions and Benefits Act provide the conditions of entitlement, which are required to be satisfied for a person to be entitled to guardian’s allowance in respect of a child. Subsection (3) provides that there is no entitlement in respect of a child unless at least one of the child’s parents satisfies or immediately before his death satisfied such conditions as may be prescribed relating to nationality, residence, place of birth or other matters. Subsection (8) provides a general regulation making power, which inter alia provides for the modification of subsections (2) and (3) in cases where the marriage of the child’s parents has been terminated by divorce. The Guardian’s Allowance (General) Regulations 2003 (SI 2003 No 495) are made under this power. These regulations enable a person to claim guardian’s allowance in respect of a 42 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE child in specified circumstances where the child’s parents are divorced and the surviving parent is alive and they are not in prison and their whereabouts are known. Once amended, the regulation will enable the exception to the general rules of entitlement to apply in cases where the civil partnership has been dissolved.

Part 2, paragraph 38 This paragraph amends provisions in Part IX of and Schedule 9 to the Act relating to child benefit. Section 143 of the Act defines the meaning of the term “person responsible for a child” and sets out the circumstances where a person can be so treated for the purposes of entitlement to child benefit. Subsection (5) provides the power to prescribe circumstances in which a contribution made or expenditure incurred by one of two spouses residing together is to be treated as made or incurred by the other spouse: this provision has been amended to include civil partners. The relevant regulation is regulation 4 in Part II of the Child Benefit (General) Regulations 2003 (SI 2003 No 493). The effect of the regulation is that where both members of a married couple residing together agree to it, the contribution made or the expenditure incurred in respect of a child by one member of the couple is treated as made or incurred by the other member. In the absence of any agreement the Board of the Inland Revenue has discretion to treat the contribution as made or incurred by the other member of the couple. In its amended form regulation 4 will enable the contribution made or expense incurred by one of two civil partners of each other who are residing together to be treated in the same manner as a contribution made or expense incurred by one of two spouses living together.

Part 4 paragraph 57 This paragraph makes the same amendments to section 77 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 as paragraph 24 of Part 2 makes to the Social Security Contributions and Benefits Act 1992. The power to make regulations under section 77(8) of the Act were exercised in conjunction with the equivalent provision in section 77 of the Social Security Contributions and Benefits Act 1992. Consequently, the Guardian’s Allowance (General) Regulations 2003 (SI 2003 No 495) also apply in Northern Ireland. Once amended regulation 6 will apply to claims made in Northern Ireland where the civil partnership of a child’s parents has been dissolved in the same manner as it will apply in Great Britain.

Part 4 paragraph 58 This paragraph amends section 139(5) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The power to make regulations under section 139(5) was exercised in conjunction with its equivalent provision in section 143(5) of the Social Security Contributions and Benefits Act 1992 to make regulation 4 in Part II of the Child Benefit (General) Regulations 2003 (SI 2003 No 493). Again, once amended, the regulation will apply in respect of two civil partners of each other and residing together in Northern Ireland as it will in relation to civil partners living in Great Britain.

Part 8, paragraphs 70–73 These paragraphs amend certain regulation-making powers in Part 1 of the Tax Credits Act 2002. This will enable tax credit regulations to be amended to extend to claims made jointly by civil partnerships and by same-sex couples whose members have not registered as civil partners but who, nevertheless, are living together as if they were. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 43

Section 4 of the Tax Credits Act allows for detailed rules about tax credit claims to be set out in regulations made by the Board of Inland Revenue. Setting out such a power in regulations gives the Inland Revenue the flexibility to alter the form of such claims in the light of operational and legislative developments. In particular, subsection (1) (g), which should be read in conjunction with section 17, provides that in certain circumstances, the regulations enable one member of a married or unmarried couple to be treated as acting on behalf of the other member when making a joint claim. Section 17 provides that the Inland Revenue should send recipients of a tax credit award a notice after the end of each tax year. This is to finalise the award for the tax year just ended and to set a provisional award for the new tax year. In most cases, the notice requires the claimants to confirm that the circumstances affecting their entitlement (such as the number of children, whether a recipient is disabled, and the level of income of the claimants) are as stated in the notice or, if different, to say how they differ. This must be done within the time limit specified in the notice. Subsection (10) (b) enables regulations to be made setting out the circumstances in which one member of a married or unmarried couple is taken to be acting for the other when responding to a notice. The relevant regulations are in the Tax Credits (Claims and Notifications) Regulations 2002 (S.I. 2002 No. 2014, as amended by S.I. 2003 No. 3240). In cases where a child tax credit award is set at only the family element (£545 for the tax year 2003-04), regulation 13, when read with regulation 12, allows the Board to deem a claim to renew that award as having been made jointly. For such claimants, even quite significant changes in their income and circumstances from one year to the next may have no effect on the amount of tax credits they are entitled to. To keep reporting requirements to a minimum, these claimants are not necessarily required to respond to the end-of-year notice but are informed that, unless they do reply, they will be treated as having declared that the information set out in the notice remains correct. In their amended form, sections 4 (1) (g) and 17 (10) (b) will allow the regulations to be extended to provide that a claim deemed to be made by one partner in a same-sex couple is to be treated in the circumstances prescribed in regulation 13 as also made by the other partner in that couple. Section 24 of the Tax Credits Act provides that payment of a tax credit award must be made to the person to whom that award has been made. Subsection (2) provides that in the case of a married or unmarried couple receiving a joint tax credit award, regulations are to prescribe to whom payment is to be made. Having these provisions in regulations gives the Inland Revenue the flexibility to alter them in the light of operational experience. These regulations are in the Tax Credits (Payments by the Board) Regulations 2002 (S.I. 2002 No. 2173). In particular, regulations 3, 4 and 5 prescribe the member of a married or unmarried opposite-sex couple to whom payment is to be made where that couple receives a tax credit award. Regulation 3 relates to the child tax credit and the child care element of the working tax credit and provides that in each case, payment will be made to the main carer of the children in that household, as identified by that couple. Regulation 4 relates to the working tax credit and provides that in a married or unmarried opposite-sex couple where only one member is working, payment of the working tax credit will go to that person. Where both members of that couple are working, it is up to that couple to tell the Inland Revenue to whom the working tax credit should be paid. Regulation 5 deals with cases where one member of a married or unmarried couple has died, in which case payment of the tax credit award is made to the survivor. Subsection (2) of section 24 is amended to refer to an award made to members of a couple. This will enable the Inland Revenue to extend the Tax Credits (Payments by the Board) Regulations to include same-sex couples, whether or not they have registered as civil partners. 44 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

SCHEDULE 19

Paragraph 1 Section 5 of the Greenwich Hospital Act 1865 enables gratuities to be appointed by Order in Council for the surviving spouses of naval personnel killed in service. This paragraph extends the power so as to include surviving civil partners.

Paragraph 4 Section 4 of the Greenwich Hospital Act 1883 enables regulations to be made in respect of payments authorised by the Act. Section 2(1) authorises the grant of pensions to the surviving spouses of naval personnel. This paragraph extends section 2(1) so as to include surviving civil partners, and thus indirectly extends the power conferred by section 4.

Paragraph 7 Section 1 of the Naval Medical Compassionate Fund Act 1915 provides for the regulation by Order in Council of a fund for the surviving spouses of naval medical officers. Under section 1(1)(f), such an Order in Council may provide for the surviving spouses of contributories to the fund to be eligible for benefits from the fund. This paragraph extends section 1(1)(f) so as to include surviving civil partners.

Paragraph 14 Section 1 of the Polish Resettlement Act 1947 enables a scheme to be made for the payment of pensions to the surviving spouses of members of the Polish forces in the 1939– 45 war. This paragraph extends the power so as to include surviving civil partners.

SCHEDULE 20

Paragraph 12 Section 1 of the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 confers power to provide by Order in Council for the recording of births, deaths and marriages among the armed forces outside the United Kingdom. This paragraph extends the power so that it can also be exercised in relation to the recording of civil partnerships.

Paragraph 63 This power allows the Secretary of State to make regulations to deal with a case where a person dies who was (or is alleged to have been) liable for council tax, as a civil partner, under section 9 of the Local Government Finance Act 1992 (“the Act”). Paragraph 63(1) of Schedule 20 of the Bill amends section 9 of the Act to include civil partners as persons jointly and severally liable for council tax. The power is made by way of amendment to the regulation making power in section 18 of the Act, to include the words “or civil partner” at section 18(1)(b). Section 18(1)(b) of the Act provides that the Secretary of State may make regulations to deal with a case where a person was (or is alleged to have been) liable for council tax, as a spouse under section 9 of the Act. The regulation making power in section 18(1)(b) is conferred on the Secretary of State and the parliamentary procedure is negative, see section 113(3) of the Act. Regulations have been made under section 18(1)(b) in respect of the death of a person who was liable for council tax as a spouse under section 9 of the Act, see regulation 58 of the Council Tax (Administration and Enforcement) Regulations 1992, S.I. 1992/613, as DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 45 amended (“the Regulations”). Regulation 58 provides that on the person’s death, his executor or administrator shall be liable to pay the outstanding council tax. The Council Tax (Administration and Enforcement) (Amendment) (Wales) Regulations 2004 will also need to be amended. It is proposed that equivalent provision will be made by way of amendment to the Regulations, using the amended power in section 18(1)(b), so that on the death of a person who was liable as a civil partner, that liability will also transfer to that person’s executor or administrator.

Extract from letter from the Baroness Scotland of Asthal, Minister of State at the Home Office, to Members of the House who spoke during Second Reading of the bill

After clause 51: Power to validate civil partnership This new clause lists circumstances in which a civil partnership will be void, including where the partners both knew that certain procedural requirements had not been complied with. Circumstances could arise in which it was unclear whether all the requirements in clause 48(b) had been complied with or whether both partners knew of the defect. It is also possible that a civil partnership registrar could allow the registration to proceed despite some manifest irregularity or by mistake, unaware that a procedural irregularity had occurred. Where it appears to the Lord Chancellor that a marriage solemnised in England and Wales is invalid or of doubtful validity for such reasons, section 1 of the Provisional Order (Marriages) Act 1905 gives him the power to make an order removing the invalidity or doubt. That power is extended under the Marriage Validity (Provisional Orders) Act 1924 to encompass the power to include supplemental, incidental and consequential provisions, including provisions for relieving from liability the officiating minister. This amendment would provide the Lord Chancellor with a similar power in relation to civil partnerships. Subsection 1 would empower him to make the order. Subsection 2 would empower him to relieve any person who officiated at the registration of the civil partnership from any liability under clauses 31(2) or 32(2); these deal with offences by civil partnership registrars and persons purporting to be civil partnership registrars in relation to the signing of civil partnership schedules and Registrar General’s licences. It would also empower him to relieve any person from liability under Clause 33 subsections (5) and (7) who are under a duty to record the prescribed information relating to the civil partnership formed either by signing the civil partnership schedule or by the signing of a Registrar General’s licence. Subsections 3, 4 and 5 deal with the method by which the order should be made. The clause provides – as is the case for marriage – that a draft of the order must be advertised, in such manner as the Lord Chancellor thinks fit, not less than one month before the order is made. Furthermore, the Lord Chancellor must consider all written objections sent to him during that month and hold a local inquiry if that appears to him to be necessary. At the end of this time, the order may be made, subject to the special parliamentary procedure laid down in the Statutory Orders (Special Procedure) Act 1945. By analogy with marriage, we would expect this power to be used very rarely. Most procedural irregularities that occur in relation to marriage are unknown to the couple beforehand and thus do not make the marriage void. An order made in 2003 to validate a marriage solemnised, in the absence of any valid preliminaries, shortly before the death of the husband was the first since 1960. May 2004 ANNEX 2: EMPLOYMENT RELATIONS BILL

Memorandum by the Department of Trade and Industry

Introduction 1. The main areas covered by this Bill are trade union recognition and derecognition, industrial action law, rights of trade union members, improvement to the operation of individual rights of workers and employees, powers to introduce information and consultation in the workplace and changes to the enforcement procedure for the national minimum wage and the agricultural minimum wage. The Bill also covers powers of the Certification Officer and the law on the administration of trade unions, including a power to widen the means of voting in statutory ballots or elections held by unions. 2. Following Government amendments to the Bill in House of Commons Committee and at Report, the Bill introduces measures to tackle intimidation of workers by employers or unions during recognition and derecognition ballots; clarification of the law on the exclusion or expulsion of individuals from a trade union on grounds of conduct relating to political activity; clarification of the reasonable steps which employers and unions are required to take to resolve industrial disputes, powers for Northern Ireland to make regulations on information and consultation, and a power to establish a fund to enable unions to modernise.

Overview of regulation-making powers 3. This Bill brings together a variety of Government policies relating to employment matters. The clauses which contain regulation or order-making powers, or other enabling powers are listed in the table at the Annex. This Memorandum goes into most detail on those powers which the Department considers to be particularly significant and therefore likely to be of most interest to the Committee. The clauses of primary interest to the Committee are: Clause 8: Additional duties on employers informed of ballots Clause 9: Unfair practices in relation to recognition ballots Clause 12: Unfair practices in relation to derecognition ballots Clause 14: Power to amend Schedule A1 to Trade Union Labour Relations (Consolidation) Act1992 Clause 15: Means of communicating with workers Clause 16: Unfair practices: power to make provision about periods before notice of ballot Clause 17: Power to make provision about effect of amalgamations etc. Clause 19: “Pay” and other matters subject to collective bargaining Clause 39: Information and consultation: Great Britain Clause 40: Information and consultation: Northern Ireland Clause 50: Means of voting in ballots and elections Clause 51: Provision of money for trade union modernisation 4. Section 1 of this Memorandum deals with the more substantial regulation and order making powers in clauses 17, 39, 40 and the enabling power in clause 51 in some detail, covering the purpose of each power, why it is appropriate for the issue to be delegated to secondary legislation, and the timetable for bringing forward and consulting on the regulations. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 47

5. The remaining order-making powers in the Bill are less substantial, in the view of the Department. They consist of amendments to existing powers, and new, clearly defined powers. These provisions are considered in Section 2 of this Memorandum. Section 3 covers other minor issues which, although not delegated powers, may be of interest to the Committee.

Timetable and consultation intentions 6. This Memorandum sets out any definite or provisional timetables under the relevant clauses. At present, only the regulations on information and consultation have been drafted and have been subject to consultation. In other areas, in the absence of actual drafts, the following accounts explain the policy direction of each set of regulations. In the case of the order-making powers these are largely reserve powers to be used at the appropriate time and after consultation. The Memorandum explains how the Government intends to use these powers in more detail below.

SECTION 1: MAJOR POWERS TO MAKE REGULATIONS AND ORDERS AND ENABLING POWERS

Clause 17: Power to make provision about the effect of union amalgamations and transfers of engagements and the effect of change of identity of employer

Overview 7. Schedule A1 (the Schedule) of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the 1992 Act’) ( inserted by section 1 of, and Schedule 1 to the Employment Relations Act 1999) established a statutory procedure for the recognition and derecognition of trade unions by employers for the purposes of collective bargaining on behalf of a particular group of workers. The present law is not clear what happens in circumstances where the identity of the union or employer changes. 8. Clause 17 provides powers for the Secretary of State to make provisions, by order, setting out how the statutory procedure should apply in two specific circumstances: first, where a union amalgamates or transfers its engagements; and second where there is a change in the identity of the employer of any group of workers in the bargaining unit (through a business transfer or any other means). 9. The powers will allow the Secretary of State to provide for cases where there is an application for recognition or derecognition before the Central Arbitration Committee (CAC) involving the union or employer in question, and for cases when there is an award of statutory recognition in place. It is the Government’s intention to provide that where a change of identity of a union or employer takes place responsibility for recognition awards or outstanding applications should be re-assigned to the new employer or union to preserve continuity for the workers involved. 10. The revised EC Transfer of Undertakings Directive1 makes provision for what should happen to collective representation following a TUPE transfer. Under the Directive, statutory awards of recognition must generally transfer to the new employer following a TUPE transfer. The regulations to be made under clause 17 of the Bill will cover all business transfers, including TUPE transfers. 11. The Schedule is lengthy and deals with many different situations. It refers frequently to “the employer” and “the union” throughout. The order will need to take account of all the different aspects of the Schedule and cover a range of different circumstances (for

1 Acquired Rights Directive (2001/23/EC). 48 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE example complex business restructuring where only part a bargaining unit is transferred to a new employer, or where a union divides it may not be clear to which of the new unions the recognition award should apply). 12. We therefore believe that it is appropriate to provide for a regulation-making power in this circumstance to allow flexibility, and enable regulations to cover the detail of how the Schedule applies in a range of different circumstances.

Consultation 13. The Government consulted on a proposal to make provision for situations where an employer’s identity changes during the course of the recognition procedure or after a CAC declaration of recognition in the Review of the Employment Relations Act 19992. The Government proposed in the consultation document to require the CAC to treat the new employer as if it were the original employer. Respondents largely agreed with the proposal. The Government also consulted on a proposal to allow the CAC to continue with an application for recognition or to apply an existing award of recognition where the union in question is involved in a merger, in the name of the newly merged union. Respondents to the consultation agreed with the basic proposal but sought further detail. 14. Full public consultation on the proposed draft regulations will take place as soon as practicable after Royal Assent.

Regulations 15. Draft regulations are not yet available. Amendments to legislation in this area will be complex and full public consultation on the detail of the draft regulations will necessary. 16. Regulations made under clause 17 of the Bill will be subject to the affirmative resolution procedure.

Regulatory-making powers in the clause 17. Clause 17 inserts new paragraphs 169A, 169B and 169C into Schedule A1 of the 1992 Act.

169A Effect of union amalgamations and transfers of engagements 18. Paragraph 169A deals with the effect of union amalgamations and transfers of engagements. Paragraph 169A (1) provides an order-making power for the Secretary of State to make provision for any case where anything has been done under the Schedule by or in relation to a union and that union amalgamates or transfers all or any its engagements. For example, the order may specify what will happen to an award of recognition where the union(s) in respect of which an award of recognition has been made merges with another union or unions. It may also cover the situation where a union breaks up, with the result that a section that was formerly part of it becomes a union in its own right (this would involve a transfer of engagements). 19. New paragraph 169A(2) of the Schedule is a specific power to deal with cases where the amalgamated or transferee union does not have a certificate of independence. This is because the statutory procedure is only open to unions with a certificate of independence, and a union that has just been formed will not have one, even where it is clearly

2 Review of the Employment Relations Act 1999 consultation document is available at http://www.dti.gov.uk/er/erareview.htm DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 49 independent.3 Clause 46 of Bill provides for the automatic issuing of a certificate of independence to the new union where all the amalgamating unions are independent. However, where not all the amalgamating unions are independent or where a union divides, the new union may not have a certificate of independence. This has implications for any award of recognition or application. This new paragraph enables provisions to be made to deal with these situations.

169B Effect of change of identity of employer 20. New paragraph 169B(1) which mirrors new paragraph 169(A) to a large extent, is similarly designed so that orders can deal with the full range of circumstances that may arise when the identity of the employer changes. In particular, the paragraph enables the order to deal with the case where the identity of the employer of only some of the workers in the bargaining unit changes (for example, where half of the workers in the unit are transferred to another employer).

169C Orders under paragraphs 169A and 169B supplementary 21. New paragraph 169C(1) contains appropriate supplementary powers to the main powers in 169(A) and 169B and provides that an order under the main powers is to be subject to the affirmative resolution procedure.

Clause 39 Information and consultation Great Britain

Overview 22. This clause will establish a power to make regulations implementing the EC Directive on Information and Consultation (Council Directive 2002/14/EC) in Great Britain which establishes a general framework for informing and consulting employees in the European Community. 23. The purpose of the Directive is to establish a general framework for ensuring that employees have the right to be informed and consulted on management decisions affecting their future. 24. The powers under section 2(2) of the European Communities Act 1972, which are usually used to implement EU Directives, are not considered sufficiently wide to cover all aspects of the proposed regulations, so the clause provides a general power to make regulations. 25. The power in clause 39 obliges the regulations to set out the employers to whom the regulations will apply by reference to factors which may include the number of employees in the undertaking, how that number is to be calculated and applying the regulations to different employers on different dates. 26. The power also provides that the regulations may, amongst other things, set out the circumstances as to the initiation and conduct of negotiations between employers and employees on an information and consultation agreement; the enforcement mechanisms to be used in the event of a dispute about the procedures involved in seeking to reach an agreement and about the operation of an agreement.

3 The statutory recognition procedure is only open independent trade unions. An independent trade union is one which is not under employer domination or control and which is not liable to interference in any form tending towards such control. A certificate of independence may be granted by the Certification Officer to listed trade unions. 50 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Regulations 27. Draft regulations are available (see below). Draft guidance on the regulations should be available before Summer 2004. It is not expected that significant changes will need to be made to the final regulations as a result of the consultation. Regulations made under clause 39 of the Bill will be subject to the affirmative resolution procedure.

Consultation 28. The Department for Trade and Industry published a discussion paper, High Performance Workplaces: the role of employee involvement in a modern economy4, in July 2002. A series of regional roundtable discussions with a range of stakeholders took place. These were followed by more detailed discussions with the CBI and TUC which resulted in an agreed framework for implementation. On the basis of that agreement a consultation document containing draft regulations, High Performance Workplaces: Informing and Consulting Employees5, was issued on 7 July 2003. The consultation came to a close on 7 November 2003 and a Government response will be published before Summer 2004. Member States are required to implement the Directive by 23 March 2005.

Regulatory-making powers in the clause 29. Clause 39 (1) introduces the order-making power for the Secretary of State to make regulations on the right of employees to informed and consulted by their employer. The matters on which the employees are to be informed and consulted are to be prescribed by the regulations. The Directive provides for employees to be consulted about management decisions affecting their future. 30. Subsection (2) provides that the regulations must make provision as to the employers to whom they apply which may be by reference to the number of employees employed in the undertaking, and that the regulations may stipulate the method by which the number of employees in the undertaking is calculated. This subsection also provides that the regulations may apply to undertakings of different sizes by different dates. 31. Subsection (3) provides that the regulations may make provision as to the circumstances in which information and consultation rights apply, including the initiation and conduct of negotiations between employers and employees for the purposes of agreeing the arrangements for informing and consulting. It also provides that the regulations may make provision for representatives of the employees for the purposes of information and consultation and how these representatives are to be selected. Subsection (3)(d) enables the regulations to make provision for the resolution of disputes between employers, employees or their representatives on the agreed arrangements for informing and consulting and the enforcement of obligations arising from the Regulations. 32. Subsection (4) makes provision for the regulations to provide that employment tribunals will have jurisdiction to resolve disputes arising out of them and to confer jurisdictions on the Employment Appeal Tribunal. It is intended that these powers will be used in relation to enforcement of individual rights under the regulations. Subsection (4) also makes provision for conferring powers on the CAC, which would allow the CAC to resolve disputes arising out of the more general provisions of the regulations.

4 The consultation document, High Performance Workplaces: The role of employee involvement in a modern economy is available at http://www.dti.gov.uk/er/consultation/informconsult.htm 5 The consultation document, High Performance Workplaces: Informing and Consulting Employees is available at http://www.dti.gov.uk/er/consultation/perf_work.htm DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 51

Clause 40 Information and Consultation Northern Ireland

Overview 33. The Information and Consultation Directive applies to the UK as a whole. However, employment is a devolved matter in Northern Ireland and it will put in place its own regulations on information and consultation. The Department of Employment and Learning Northern Ireland (DELNI) intends to make regulations mirroring those in Great Britain. 34. During times when the Northern Ireland Assembly is suspended, Northern Ireland usually implements employment legislation which mirrors employment legislation in Great Britain by an Order in Council. DELNI proposes to bring forward legislation mirroring the provisions of the Employment Relations Bill in this way. However, during House of Commons Committee an amendment was made to Bill, at the request of the Minister for Employment and Learning Northern Ireland, to provide a power to enable DELNI to make regulations on information and consultation directly under the Bill. This is because if devolution is restored before the Order in Council implementing the provisions of the Employment Relations Bill has been completed, it would revert to an Assembly Bill. This would delay the implementation process meaning Northern Ireland would not meet the March 2005 deadline for implementing the EC Directive. 35. The “Memorandum of Understanding and Supplementary Agreements” between the UK Parliament and the devolved legislatures provides for the UK Parliament to legislate on devolved matters at the request of a devolved administration. Giving timely effect to an EC Directive is considered to be an appropriate exercise of that facility. Clause 40 therefore provides separate powers for the Department of Employment and Learning Northern Ireland (DELNI) to make regulations on information and consultation.

Regulations 36. If the Assembly is restored, the regulations would be made by affirmative resolution. However, if the Assembly is suspended at the time when the regulations are due to be made they would be made by negative resolution in Westminster, as provided for in the Northern Ireland Act 2000. It would not be possible for a Northern Ireland MP to call for a debate on the Regulations. However the recently appointed House of Lords Select Committee on the Merits of Statutory Instruments can consider any statutory instrument, including Northern Ireland statutory rules, laid at Westminster. The Committee can determine whether the special attention of the House should be drawn to any statutory instruments it considers, on certain grounds.

Consultation 37. Consultations on the implementation of the Directive have taken place in Northern Ireland in parallel with consultations in Great Britain. The responses have been similar to those received on the mainland and have contributed to the overall UK approach to implementing the Directive.

Regulatory-making powers in the Clause 38. The regulatory-powers in clause 40 mirror those in clause 39. 52 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Clause 51: Provision of money for trade union modernisation

Overview 39. Clause 51 provides a general power to enable the Secretary of State to provide money to a trade union for the purposes of modernisation. The Government intends to use this enabling power to establish a Union Modernisation Fund. The scope of the fund is discussed below.

Details of the Scheme 40. Detailed rules and arrangements for the fund will be drawn up for Autumn 2004. The Government expects to publish these by the end of the year. The Fund is not expected to be up and running until the 2005 – 2006 financial year. It is envisaged that the Union Modernisation Fund would operate along similar lines to the Partnership at Work Fund. This would mean that unions would be asked to bid periodically for funding, and assessment of their applications would be against clear selection criteria. The process would be overseen by an independent supervisory body which could advise Ministers on the ranking of projects and, more generally, on the fund’s overall operation. A clear evaluation strategy will be developed to measure the effects of the fund, examining in particular whether the fund is achieving its stated objectives.

Consultation 41. There will be full public consultation, for at least three months, on the proposed scheme.

Enabling powers in the clause 42. The clause inserts a new section 116A into the 1992 Act. It defines the recipients of the support as independent trade unions and federations of trade unions. The clause sets out five categories of purpose to which the Fund may be put: (a) Provides for funds to be used to improve the carrying out of any existing function. For example, streamlining existing operations, using new management methods to achieve productivity gains and a better deployment of their limited resources. (b) Provides for funds to be used to enable unions to prepare themselves for carrying out new functions, for example assisting unions to widen their dialogue with employers. The new arrangements for information and consultation will require greater dialogue between employers and employees and their representatives and the Fund could assist unions in equipping union representatives and members to participate in this process. (c) Provides for funds to enable unions to increase the range of unions services to current and future members. In particular, this will assist unions to meet the needs of their young, female and ethnic minority members who have traditionally been less involved in union affairs. (d) Provides for support to assist unions to merge or to transfer any engagements. (e) Covers the funding of ballots and elections. For example to fund projects to increase turn-out (which is currently low). This reads across to clause 50 (discussed above) which provides a power to widen the range of methods which unions can use in statutory elections, for example electronic voting. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 53

SECTION 2: OTHER ORDER-MAKING POWERS IN THE BILL 43. The Employment Relations Bill contains a number of other clauses with order-making powers. The clauses are listed in full in the Annex. This section of the Memorandum describes the main powers in these remaining clauses.

Clauses 8, 9, 12 and 16: Intimidatory behaviour

Overview 44. Clauses 8, 9, 12 and 16 were brought forward at House of Commons Report to deal with intimidatory behaviour during statutory recognition or derecognition ballots. Clause 16 provides a power to address such behaviour at earlier stages of the recognition or derecognition process. 45. Clause 8 seeks to strengthen the protections against employer interference in union arrangements for access to workers during balloting periods which are aimed at disrupting union-worker dialogue. It adds to the three existing duties on employers who are notified by the CAC of a recognition or derecognition ballot. The existing duties are: to co-operate generally with the union and the qualified independent person appointed to conduct the ballot; to give the union reasonable access to workers in the bargaining union; and to give the CAC the names and home addresses of the workers in the bargaining unit. Clause 8 introduces two new obligations on employers during the ballot period : to refrain from making offers to workers to induce them not to attend a union access meeting (except in certain circumstances where it would not be not reasonable for a worker to attend a meeting, for example, to ensure a minimum staffing requirement in the workplace); and a duty not to take action or make threats against workers for attending, or intending to attend, a union access meeting. Clause 8 also qualifies the existing second duty to provide reasonable access to the union by making clear the circumstances under which an employer will have failed to comply with that duty. Complaints about access and the duties imposed on employers are determined by the CAC. The sanctions for failure to comply with the new duties are the same as the existing sanctions for failure to provide reasonable access. The CAC may order the employer to remedy the failure by whatever steps it considers appropriate. If the employer fails to comply with that order, the CAC may award automatic recognition. 46. Acas and the Secretary of State have existing powers under the 1992 Act to issue Codes of Practice for the purpose of improving industrial relations. Clause 8 makes clear that Acas and the Secretary of State may issue Codes of Practice in respect of the duty to give the union reasonable access, and the new duty on employers to refrain from making offers to workers to induce them not to attend union access meetings. 47. Clauses 9 and 12 place a duty on employers and unions to refrain from engaging in unfair practices during recognition or derecognition ballots. The unfair practices are largely defined in accordance with outlawed practices and behaviours in general and local elections, as set out in the Representation of the People Act 1983, with appropriate adjustments for the circumstances of the statutory procedure. 48. Clauses 9 and 12 provide that Acas and the Secretary of State may issue Codes of Practice in accordance with their powers under the 1992 Act in relation to unfair practices. 49. Clauses 9 and 12 do not contain the remedies for cases where a complaint of unfair practices is upheld by the CAC. It contains a power for the Secretary of State to provide for sanctions and remedies by order. However, it is the Government’s intention to consult further with stakeholders on the remedies with a view to bringing forward amendments in 54 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE the House of Lords to set out the sanctions on the face of the Bill. Remedies are a complex area and it is therefore desirable that consultation takes place with stakeholders on the Government’s proposals. 50. An order made under clauses 9 and 12 would be subject to the affirmative resolution procedure. 51. Clause 16 The new duty on employers and unions to refrain from unfair practices relates to the period before notice of a recognition or derecognition ballot is given to the employer. Evidence at present suggests that most intimidatory behaviour occurs during the ballot period. However, there remains the risk that parties may bring forward any intimidatory conduct to an earlier stage. Clause 16 therefore provides an order-making power for the Secretary of State to specify and prohibit unfair practices in relation to any period before notice of a recognition or derecognition ballot is given to the employer. This will enable the Secretary of State to prohibit improper campaigning activity in relation to an application for recognition, derecognition or determination of a new bargaining unit. 52. An order made under clause 16 would be subject to the affirmative resolution.

Consultation 53. The issue of intimidation was raised by respondents to the review of the Employment Relations Act 1999. The Government indicated its intention to keep this issue under active review. 54. The issue of intimidation was raised by MPs during the Second Reading debate on the Bill and during Committee. Both unions and employer organisations submitted evidence to the Department of Trade and Industry of alleged incidents of intimidation of workers during recognition campaigns. The Government has consulted informally with key stakeholders on the development of these provisions and will consult further with stakeholders before exercising the power to make provision on unfair practices to an earlier stage.

Clause 14 – Power to Amend Schedule A1 to the 1992 Act 55. Amends paragraph 166 of the Schedule to give the Secretary of State a general power to amend any provision of the Schedule, by order, if the CAC represents to her that it has an unsatisfactory effect and should be amended. At present, paragraph 166 contains limited powers for the Secretary of State to amend specific paragraphs of the Schedule, by order, if the CAC informs the Secretary of State that they have an unsatisfactory effect. 56. The provisions of the Schedule have so far been working well. However, the Schedule is lengthy and technical and there are large parts of the procedure that are so far untested. This power will enable the Secretary of State to make amendments to the Schedule where the CAC informs her that a provision is operating in an unsatisfactory way. There is no obligation on the Secretary of State to amend the Schedule in the way proposed by the CAC. 57. The Secretary of State has existing specific powers (specified in sub-paragraph 2(a) of clause 14) to amend particular parts of the Schedule on her own initiative (for example to change the 21 worker threshold). This new power will not affect operation of the Secretary of State’s existing powers. 58. Orders under this power will be made by the affirmative resolution procedure. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 55

Consultation 59. This provision was put forward as a proposal in the Government’s Review of the 1999 Act. The majority of respondents to the consultation supported the proposal. The power will be used to make amendments of a technical nature, following representations from the CAC. Significant revisions to the procedure will be subject to consultation with interested parties on the draft orders before they are laid.

Clause 15 – Means of communicating with workers 60. The statutory procedure contains a right for the union to formally communicate via the person appointed to conduct the ballot with workers in the bargaining unit by postal means during the balloting period. The employer must supply the names and home addresses of the workers to the CAC (who passes them on to a Qualified Independent Person (QIP) appointed to conduct the ballot). 61. Clause 15 inserts a new paragraph 166A into the Schedule which establishes a power for the Secretary of State to provide, by order, that an employer should provide to the CAC a different kind of address for the workers in the bargaining unit in addition to their home addresses. This will enable the QIP to send communications by new means, for example email, in the future. 62. The order-making power applies in relation to existing provisions in the Schedule which oblige the employer provide workers’ names and home addresses to the CAC to enable the union to send information to workers for the purposes of balloting on recognition or derecognition. The new power will also apply to the new provision introduced by Clause 5 of the Bill to enable the union to communicate with workers in the proposed bargaining unit at an earlier stage in the process - after acceptance of the union’s application for recognition by the CAC. An order made under clause 15 must be made by affirmative resolution.

Consultation 63. The Government consulted on the proposal to enable communications to take place with workers in the bargaining unit by electronic and other means in the Review of the 1999 Act. The proposal was supported by several organisations, subject to security concerns. Employers were opposed to the use of workplace technology for this purpose. It is intended that further consultation will take place before this power is exercised. The power will not be exercised unless such means of communication are accessible to all, are considered to be suitable for their purpose and are proved to work efficiently and safely. The Government will also consider, in particular, the impact on employers of the use of their email or other systems for disseminating information.

Clause 19 – Pay and other matters subject to collective bargaining 64. Where the CAC awards recognition the employer must, as a minimum, bargain about the core bargaining topics of pay, hours and holiday. Parties are free to bargain on other issues. The Government wishes to encourage a voluntary approach to collective bargaining with the statutory procedure acting as a fall-back. This is why the core bargaining topics reflect those which most commonly feature in voluntary arrangements. At present, pensions do not feature in the majority of recognition deals. However, the growing importance of pensions means that the issue is moving up the collective bargaining agenda. 65. Clause 19 inserts a new paragraph 171A into the Schedule. This provides in sub- paragraph (1) that “pay” does not include membership or rights in relation to particular 56 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE types of pension schemes. Sub-paragraph (2) provides that the Secretary of State may, by order, amend sub-paragraph (1). This would enable the Secretary of State to provide that rights and membership of new types of pension schemes did not amount to “pay”. Sub- paragraph (3) provides a further order-making power for the Secretary of State to add matters relating to pensions to the core bargaining topics, with a view to exercising that power when there is evidence that typical practice in voluntary recognition arrangements is for pensions to be included as a bargaining topic. Sub-paragraph (3) also enables such an order to provide that matters relating to pensions should also be a topic for collective bargaining under existing awards of statutory recognition. The sub-paragraph refers to ‘matters relating to pensions’ to allow for flexibility in specifying the matters to which collective bargaining on pensions might relate in future in what is an extremely complex area.

Consultation 66. The Government consulted on the proposal to take a reserve power to add pensions to the core bargaining topics in the Review of the Employment Relations Act 1999. Unions were in favour of including pensions as a core bargaining topic immediately, whereas employers were not in favour of any future extension of the core topics to include pensions. The Government intends to exercise this power when there is evidence that pensions are typically included as an item for negotiation in voluntary agreements. The Government will undertake consultation before making an order under this power. 67. An order made under clause 19 must be made by the affirmative resolution procedure.

Clause 50 – Means of voting in ballots and elections 68. Unions are required to hold ballots or elections for certain major purposes within the union (for example leadership elections), to approve a political fund resolution to enable the union to spend money on political objects, to give approval to the union amalgamating with or transferring its engagements to another union, and in order to take industrial action. The CAC may also call a ballot of workers under the statutory recognition procedure. The current provisions governing these ballots and elections require the method of voting to be by post (except in the case of statutory recognition ballots where the CAC may decide that a ballot should be held at the workplace or by a mixture of workplace and postal voting). This clause enables the Secretary of State to widen the means of voting that are to be available in statutory ballots and elections. The intention is to enable voting methods to be expanded to include new methods, for example e-voting, when future developments in communications technology result in the Secretary of State taking the view that a particular method has become satisfactory and secure. 69. This clause establishes an order-making power for the Secretary of State to provide that particular voting methods are permissible in particular statutory union ballots and elections, as regulated by the 1992 Act. 70. Subsection (3) provides that an order under this clause may identify a responsible person to determine the voting means that must or may be used. 71. Subsection (4) enables the order to specify the methods from which the person responsible for deciding the ballot method must choose in relation to a description of ballot or election. The order may also set out what factors the responsible person must or may take into account or what criteria should be applied. Orders made under this clause may allow the responsible person to choose different voting methods for different voters and to give voters a choice of methods. 72. Subsection (5) provides that an order must always include postal voting as a permissible means of voting. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 57

73. Subsection (10) prohibits the making of an order under this clause unless the Secretary of States considers that the voting method meets the required standard. 74. Subsection (12) provides that a voting method meets the required standard if it ensures that: (a) those entitled to vote to have an opportunity to do so, which means that the power to make available additional methods of voting such as e-voting cannot be exercised until it has been proven to be it is widely accessible; (b) the votes cast are secret; (c) the voting method is as secure against unfairness and malpractice as possible. 75. The power must be exercised by the affirmative resolution procedure.

Consultation 76. The Government consulted on the proposal to widen voting methods in the review of the Employment Relations Act 1999. Respondents were generally supportive. Employers voiced concerns about the use of workplace IT systems for union ballots. Respondents also expressed concern about the current extent of access to electronic voting and the secrecy and security of new methods. Further public consultation will take place prior to exercise of this power to ensure that new voting methods are appropriate and meet the criteria laid down in subsection (12).

SECTION 3: CAC POWERS AND OTHER MATTERS OF INTEREST TO THE COMMITTEE

CAC Powers 77. The Bill contains a number of specific powers to enable the CAC to manage the process of the statutory recognition procedure. These matters were the subject of consultation on the Employment Relations Act 1999 Review. 78. Clause 2 ~ Under the statutory recognition procedure a 20 day period is allowed to enable the parties to reach an agreement on the bargaining unit. Clause 2 enables the CAC to reduce this period if it concludes that there no is reasonable chance of the parties reaching an agreement within 20 days. This can be done on the CAC’s initiative, or if both parties request it.

Clause 5 – Union communications with workers after acceptance of the application 79. The statutory procedure provides for unions to access the workforce during the balloting period for union recognition. In order to enable the union to communicate with the relevant workers, the employer is under a duty to supply to the CAC the names and home addresses of the relevant workers. Clause 5 provides for union access to the workers in the bargaining unit at an earlier point in the process – at the point the CAC accepts the union’s application for recognition – and places a similar duty on the employer to provide the names and addresses of the relevant workers. 80. Where an employer fails to comply with this duty, clause 5 gives the CAC powers to issue an order requiring the employer to take such steps to remedy the failure as it considers reasonable. If the employer fails to comply with such an order, the CAC has the discretion to award automatic recognition without a ballot (subject to certain conditions). The CAC has similar existing powers in respect of communications which take place during the balloting period. 58 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Clause 6 – Power of the CAC to extend notification period 81. Where the CAC decides to hold a recognition ballot there are 10 working days for the parties to inform the CAC that they do not wish the ballot to go ahead. This gives the parties time to consider whether they wish to go to the expense of holding a recognition ballot. It provides time for the parties to come a voluntary agreement. This clause gives the CAC power to extend this time period, by a period of its choosing, should both the union and the employer request it.

Clause 7 – Postal votes for workers absent from ballot at workplace 82. When the CAC calls a recognition ballot it must decide the method of balloting. A ballot may take place by post, at the workplace or in certain, limited circumstances may be a combination of these two methods. Where the CAC has decided that a ballot should take place wholly or partly in the workplace, clause 7 gives the CAC a new power to require that arrangements are made for workers who are due to vote at the workplace but are prevented from doing so because they are unable to attend the workplace on the day of the ballot (for example, by reason of sickness or holiday) to receive a postal vote.

Clause 18 – Information about union membership and employment in bargaining unit 83. At certain stages of the statutory recognition procedure, the CAC requires information regarding the employment or union membership of workers in a bargaining unit to enable or assist it in exercising its functions under the procedure (for example, for an application for union recognition to be admissible the CAC must be satisfied that 10% of the bargaining unit are members of the union and a majority or workers are likely to favour recognition). The CAC currently seeks the voluntary agreement of parties to provide this information. This clause introduces a power for the CAC to require any party to an application to provide it the information it needs in order to conduct employment and membership checks. This enshrines in law measures to protect the confidentiality of sensitive worker details.

OTHER MATTERS

Clause 37 – Ways in which provision conferring employment rights on employees may be made 84. This clause makes a technical amendment to section 23 of the Employment Relations Act 1999. Section 23 enables rights contained in specified legislation to be conferred on individuals otherwise not covered by that legislation. (It does not enable new rights to be created). At present, this can only be done by a statutory instrument which amends the relevant piece of primary or secondary legislation. This clause will enable the Government to confer rights on a given group of individuals by means of a free-standing order that does not amend the legislation that originally conferred rights. This is a simplifying measure which is intended to make it easier for employers and workers to identify where employment rights apply (by checking the relevant order under section 23 rather than having to look at the statutory instrument and the legislation it is amending).

Consultation 85. The Government proposed to change the regulation-making power in the consultation in the Review of the Employment Relations Act 1999. Respondents were broadly supportive (but raised wider issues on employment status). Were the Government to propose to exercise its powers under Section 23, this would be subject to full consultation. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 59

Clause 54: Corresponding provision for Northern Ireland 86. The majority of the provisions in the Bill extend to Great Britain only since employment is a devolved matter in Northern Ireland. By virtue of the Northern Ireland Act 2000 legislation which was previously enacted by way of an Act of the Northern Ireland Assembly may be made by Orders in Council which are subject to the affirmative resolution procedure. 87. Clause 54 makes provision to enable such Orders in Council to be made by negative resolution. This enabling clause is used where there is a requirement for immediate parity in legislative provisions between Northern Ireland and Great Britain. The Northern Ireland Employment Relations Order 1999, which mirrored the Employment Relations Act 1999 in Great Britain, was also made by an Order in Council subject to the negative resolution procedure.

Consultation 88. Consultation on the provisions of the Bill have taken place in Northern Ireland in parallel with consultations in Britain. In March 2003 the Department for Employment and Learning carried out a public consultation in Northern Ireland based on the consultation document used by the Department of Trade and Industry for the review of the Employment Relations Act 1999. The responses reflected broadly the same range of views as in Britain and raised no issues specific to Northern Ireland. 5 April 2004 60 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

ANNEX to memorandum by DTI List of Clauses containing delegated powers in Employment Relations Bill Clause Description Procedure Part one: Union recognition Clause 8 Additional duties on N/A employers not to interfere with union access to workers during the statutory recognition ballots Clarification that Acas and the Secretary of State may exercise their powers under the 1992 to issue Codes of Practices relating to union access Clause 9 Duty on employers and Affirmative Resolution unions to refrain from unfair practices during recognition ballots Order- making power for the Secretary of State to set out the remedies where a complaint of unfair practices is upheld by the CAC Clause 12 Duty on employers and Affirmative Resolution unions to refrain from unfair practices during de- recognition ballots Order- making power for the Secretary of State to set out the remedies where a complaint of unfair practices is upheld by the CAC Clause 16 Power for the Secretary of Affirmative Resolution State to make provision on unfair practices in respect of the period before notice of the recognition or de recognition ballot Clause 14 Power for the Secretary of Affirmative Resolution State to amend Schedule

A1 to the 1992 Act

DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 61

Clause 15 Power for the Secretary of Affirmative Resolution State to extend the means

of communicating with workers during recognition ballots Clause 17 Power for the Secretary of Affirmative Resolution State to make provision about the effect of union amalgamations and transfers, and change of employer identity Clause 19 Power for the Secretary of Affirmative Resolution State to add pensions as a core bargaining topic for collective bargaining Part three: Rights of trade union members, workers and employees Clause 39 Power for the Secretary of Affirmative Resolution State for make regulations

on information and consultation in Great Britain

Clause 40 Power for Department of Negative Resolution Learning and Education (unless the Northern Northern Ireland to make Ireland Assembly is regulations on information restored) and consultation in Northern Ireland Part 6: Miscellaneous Affirmative Resolution Clause 50 Power for the Secretary of Affirmative Resolution State to widen the means of voting in statutory ballots and elections

Clause 51 Power for the Secretary of N/A State to provide money to trade unions for union modernisation Other matters of interest Clause 2 Power for the CAC to end N/A the period for agreement of the bargaining unit 62 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Clause 6 Power for the CAC to N/A extend the notification period for a recognition ballot Clause 37 Technical amendment to N/A the ways in which

provision conferring rights on individuals may be made (Section 23 of the ERA 1999 Clause 54 Corresponding provision Negative Resolution for Northern Ireland to make an Order in Council which corresponds to the provisions of this Bill by negative resolution

DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 63

ANNEX 3: FIRE AND RESCUE SERVICES BILL – GOVERNMENT AMENDMENT FOR COMMITTEE STAGE

Supplementary memorandum by the Office of the Deputy Prime Minister The Fire and Rescue Services Bill received its Second Reading in the House of Lords on 6 April. The Bill is to commence consideration in Grand Committee on 6 May. This supplementary memorandum explains the purpose of an amendment to the delegated power in clause 33 of the Bill to establish pension schemes. A copy of the proposed amendment is attached. The amendment rectifies a potential gap in the powers to establish arrangements for the funding of Fire and Rescue Service pensions. The White Paper “Our Fire and Rescue Service” (June 2003), said that the Government would “introduce alternative arrangements for local authority funding of Service pensions, in consultation with the fire and rescue authorities”. Although work on this is far from complete, some of the possibilities could require payments in both directions between the Secretary of State and authorities. For example, one of the options is for authorities to pay pensions from a separate pension account to which employers and employees both contribute, with a payment to balance the account at the end of the year. Such payment would normally be from the Government to the fire and rescue authorities, provision for which could be made under Clause 33(2)(e) of the Bill. In order to protect national taxpayers, however, we need also to ensure that any such balancing payment could travel in the opposite direction if the account was in surplus. The new Clause 33(2)(ea) would permit provision to be made for this. 4 May 2004