Marriage (Same Sex Couples) Bill

Baroness Northover Excerpts

Wednesday 10th July 2013 Lords Chamber

Moved by

[Baroness Northover]

123A: Clause 16, page 14, line 19, at end insert—
“(4A) The provision that the Secretary of State may make in any relevant instrument includes provision enabling the Registrar General to make regulations by statutory instrument (with or without the consent of a minister of the Crown).
(4B) But the Secretary of State—
(a) may not make enabling provision which gives the Registrar General power to require a fee to be paid or power to set the amount of a fee; and(b) may not make other enabling provision unless the Secretary of State is satisfied that the provision is necessary in connection with administrative matters relating to functions of the Registrar General or functions of superintendent registrars or registrars.(4C) Regulations made by the Registrar General under any enabling provision are subject to annulment in pursuance of a resolution of either House of Parliament.
(4D) But that is subject to any provision in a relevant instrument about the kind of Parliamentary scrutiny, if any, to which the regulations are to be subject.
(4E) In subsections (4A) to (4D)—
“enabling provision” means provision made under subsection (4A) enabling the Registrar General to make regulations;
“relevant instrument” means—
(a) regulations under section 9(1) or (2), or(b) an order under section (Marriage according to the usages of belief organisations)(4).”

--- Later in debate ---

[Baroness Northover]

My Lords, Amendment 123A replaces government Amendment 123, which, as I explained to the House on Monday, the Government were considering withdrawing and have just done so.

To give a little background, the Delegated Powers and Regulatory Reform Committee reported on this Bill in its fourth report of the Session. We are most grateful to the committee for its comments and recommendations, to which we responded in a series of amendments that the House debated on Monday. One of the recommendations of the committee was that regulations made under Clause 9, which deals with the conversion of civil partnerships, should be made by the Secretary of State rather than the Registrar-General and should be subject to the affirmative procedure on first use because it was not clear that all such provisions would be purely administrative in nature.

We were happy to accede to this recommendation but were also conscious that, in the future, the Registrar-General may need to update her administrative procedures. To require regulations to be made by the Secretary of State regarding such matters would be overly bureaucratic and break with the convention that the Registrar-General makes regulations relating to her functions that are purely administrative. For example, the Registrar-General already makes regulations, without any parliamentary procedure, prescribing the detail of marriage and civil partnership registration, the duties of those responsible for registration and the forms to be used.

We therefore proposed through Amendment 123, which has now been withdrawn, that the Secretary of State or the Lord Chancellor could make enabling provision for the Registrar-General to make regulations relating to administrative matters. We continue to believe that such sub-delegation is the appropriate way of dealing with these administrative details. However, as the chairman of the committee, my noble friend Lady Thomas of Winchester, helpfully highlighted to us before Monday’s debate, the amendment had been drafted in a way that would allow the Secretary of State or the Lord Chancellor to sub-delegate in respect of any of their order-making or regulation-making powers in the Bill.

While it was never the Government’s intention to use the proposed power in such a far-reaching way, and the use of the power was limited in any event only to where it was in connection with administrative matters relating to functions of the Registrar-General, superintendent registrars or registrars, we accept that it would not have been appropriate to move the amendment with such concerns outstanding. That is why we have tabled Amendment 123A, which is more restrictive as to the circumstances in which the Secretary of State may sub-delegate regulation-making powers to the Registrar-General. Its effect is that there are just two provisions where the Secretary of State can now exercise such a power.

The amendment states explicitly that sub-delegation may occur only where the Secretary of State considers that it is necessary in connection with the administrative functions of the Registrar-General, superintendent registrars and registrars under Clause 9, concerning conversion of civil partnerships to marriages, and Amendment 90, concerning marriage by belief organisations—if the Government in future decide to allow such marriage. We consider that the sub-delegation of regulation-making powers to the Registrar-General is necessary and appropriate in these two contexts, but it must be subject to clear restrictions. In particular, there is no power for the Secretary of State to sub-delegate provision as to fees.

Amendment 123A also makes it clear that the default position is that any delegated regulations made by the Registrar-General would attract the negative procedure, unless varied by the Secretary of State in the event that she felt that this was justified because of the nature of the particular regulations. I can assure noble Lords that any regulations of the Secretary of State’s sub-delegating powers to the Registrar-General will be put before Parliament for scrutiny.

The chairman of the committee has written today to confirm that the committee is content with the revised amendment; I am pleased about that. I hope that noble Lords will agree that this amendment is a measured and appropriate response to the committee’s concerns, which delivers our policy intention while ensuring that there can be no inappropriate use of the powers. It is extremely nice to end Report on what I hope is a constructive and consensual basis; I note that many noble Lords left the Chamber as I started. I commend Amendment 123A to the House.

[Baroness Thornton]

My Lords, I thank the noble Baroness for that very clear exposition of this very sensible amendment. I am pleased to say that we will, of course, support it.