Registration of Marriage Bill [HL]

Lord Bishop of St Albans Excerpts

2nd reading (Hansard): House of Lords
Friday 26th January 2018 Lords Chamber

Moved by

[The Lord Bishop of St Albans]

That the Bill be now read a second time.

[The Lord Bishop of St Albans]

My Lords, the purpose of this Bill is to correct a clear and historic injustice. When a couple are married and that marriage is registered, there is currently provision only for a father’s name to be recorded. This is an archaic practice and unchanged since Victorian times, when children were seen as a father’s property and little consideration was given to a mother’s role in raising them.

As we approach the centenary of the Representation of the People Act, it is only right that we consider how existing legislation excludes, or does not recognise, the contribution made by women. This Bill allows for this important and symbolic change to be made. As I am a bishop in the Church of England, it is important to note that the Bill will allow mothers’ names to be included when registering all marriages, not just those taking place in Church of England churches. I also draw your Lordships’ attention to an identical Bill introduced in the other place by the second church estates commissioner, Dame Caroline Spelman. We are hoping that between us appropriate time will be given so that this change can be made.

A marriage officially recognises the start of a new family. Including parents’ names on marriage registers gives children an opportunity to recognise the contribution of their parents in bringing them to that day. It is only right that mothers are recognised in their role just as much as fathers. Unsurprisingly, and as many Members of this House are aware, calls for reform of this system of marriage registration are not new. Indeed, in August 2014, the then Prime Minister David Cameron announced his support for a move to facilitate the inclusion of mothers’ names on marriage registers, and Members in the other place from all major parties have supported Early Day Motions in favour of the change. Much to the amusement of the staff in my office, a number of magazines written for what one might call the stylish woman have been interested in, and supportive of, my Bill. However, that should not be surprising. I imagine that many Members of this House who have been married themselves or whose children have married will have been shocked that only the father’s details are recorded. As someone who has performed hundreds of marriages, it seems to me wholly unreasonable that mothers are systematically overlooked on this special occasion.

The Church welcomes this change and has been working for many years with the Home Office and General Register Office on the finer points of its implementation. We have also solicited feedback from the Dean of the Arches, archdeacons and diocesan registrars.

Interestingly, I have also received a great deal of correspondence from genealogists, who are anxious for this change to be made. They find the current system of registration very frustrating as it registers only one half of the family tree. I believe that the Bill I have put forward is the best way to enact this necessary change. But, unfortunately, to enact the change is not as simple as creating another box for mothers’ names on marriage certificates, as has previously been proposed. To do so would require 84,000 hard-copy marriage registers, located around the country, to be replaced at a cost of roughly £3 million. It would also not solve the problems that arise when 84,000 hard-copy registers serve as the formal legal record. Books can be easily lost or damaged, and an opportunity for fraud exists when blank registers and certificate stock are stolen. Thus, the Bill also provides for marriages to be registered electronically, as is already the case in Scotland and Northern Ireland. The General Register Office already has a system for this sort of electronic registration, and, apart from set-up costs, no wheels need to be reinvented.

Before I outline one or two further details of the Bill, I will mention what it does not intend to do. It does not alter who can get married, where they can get married or who can perform that marriage. The Bill does not propose any changes to marriage ceremonies or the Church of England’s doctrine of marriage. These are all far greater questions, but they all fall outside the scope of this quite narrowly focused Bill. I understand that some Members of this House may have strong feelings on some of the other issues, but respectfully submit that I hope that these concerns will not get in the way of this simple and important change being made, which many people have wanted for such a long time.

I will also comment on the way in which this change will be enacted. It has been drawn to my attention that there may be some anxiety either in this House or in the other place about the power the Bill grants the Secretary of State to,

“make provision in relation to the registration of marriages in England and Wales”,

by regulation. Concern has been expressed that this constitutes a Henry VIII clause. Before your Lordships take a view on the constitutional appropriateness of the power provided for in the Bill, I humbly submit that the Bill is very bounded, both at Clause 1(1) and in the accompanying Explanatory Notes. The powers enacted by the Bill are simply those required to make this change in the simplest and most logical manner possible.

I am also extremely grateful to all Members who have come to speak in today’s debate, and I hope that I will gain their support so that this necessary change can be made. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I gently remind those taking part in this debate of the advisory Back-Bench speaking time and urge them to follow the excellent example of the right reverend Prelate.

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[The Lord Bishop of St Albans]

My Lords, I thank noble Lords for this very helpful debate. I was particularly keen, and grateful, to hear the wide range of concerns from various parts of the House. We have had such a comprehensive response on many of the technical answers to questions that I do not think I need to add to them. I shall just say one or two things very briefly.

I absolutely recognise that there is concern about humanist marriages. I stress, however, that, having taken advice, I have been told again and again that, if we are going to get this very simple but really key win, the more the Bill is amended the less likely it is to get through. I have been approached with many requests to put all sorts of things in it and the advice I keep getting from very experienced Members of your Lordships’ House is to keep it absolutely simple. I am also slightly puzzled, as the noble Baroness, Lady Meacher, has conceded that it does not need to be in this Bill, if I understood what she said a few moments ago—perhaps we could talk about it afterwards.

As I said at the beginning, this is an opportunity for us to correct a clear and historic injustice. I have found myself in touch with all sorts of people with whom I do not necessarily get in touch very often. We have had articles in The Stylist—can you imagine?—and Good Housekeeping, and an online platform for young women called The Pool, which I have never even heard about before, has got involved. Every single one of these people has said, “Please, please can you get this change through?”. I simply note the passionate desire for us to get this through. I do not believe it will unless somehow we can find common cause together. I am of course happy to talk to anyone, and when the regulations are published we will look at those in detail.

In the light of those comments, and with thanks to all my noble colleagues, I ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

Registration of Marriage Bill [HL]

Lord Bishop of St Albans Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 29th June 2018 Lords Chamber

Moved by

[The Lord Bishop of St Albans]

1: Clause 1, page 1, line 2, leave out subsections (1) and (2) and insert—
“(1) The Secretary of State may, by regulations, amend the Marriage Act 1949 to provide for a system whereby details relating to marriages in England and Wales are recorded in documents used as part of the procedure for marriage, and entered into and held in a central register which is accessible in electronic form.”

[The Lord Bishop of St Albans]

My Lords, I want to move Amendment 1 and speak to the other amendments in my name in the group. Their purpose is to limit the scope of delegated powers to amend legislation conferred by the Bill. I am most grateful to the noble Lord, Lord Blencathra, and the committee for its considered response to the provisions in the Bill.

The Bill’s purpose is straightforward and clear: to enable the system for registering marriages to be flexible enough to include the names of each of the couple’s parents, while taking the opportunity to introduce a secure and reliable digital system of registration. The amendments, which are a direct response to the committee’s observations, put into sharper focus the changes in law that are needed for that specific purpose. In fact, the essence of the Bill is that its scope is restricted. It relates only to the registration of marriage, not any aspect of the solemnisation of marriage—that is, the who and when and how and where of marriage ceremonies.

I want to explain the proposed changes in more detail. I have worked closely with Home Office officials to consider the amendments that could be made to the Bill to limit the delegated powers it currently contains. The amendments are quite technical, but I assure noble Lords that they do not affect the policy intent behind the Bill in any way. I thank the Minister for making illustrative regulations available in the Library to demonstrate how the Marriage Act 1949 will be amended.

Clause 1 currently confers a broad power on the Secretary of State,

“to amend, repeal … any provision made by or under any Act of Parliament”.

That power is wider than is needed to bring in the required changes. Any changes to primary legislation will now be limited to amending the Marriage Act 1949. The regulations would change the current procedures in Part III, “Marriage under Superintendent Registrar’s Certificate”, to provide that a marriage can be solemnised on the authority of a single schedule for the couple instead of two authorities, one for each person, as is currently the case.

The regulations would also provide for a member of the clergy to issue the equivalent of a marriage document for marriages that have been preceded by ecclesiastical preliminaries, such as the calling of banns or the granting of a common licence. Once a marriage ceremony has taken place, the signed marriage schedule or document will be returned to the local registry office for entry in the electronic register and a certificate will be issued.

A sunset clause will also be included in Clause 4, which places a time limit on the Secretary of State’s use of their power to amend primary legislation to a period of three years, beginning on the day when the regulations are first made.

I assure noble Lords that the regulations that amend the Marriage Act to introduce a schedule system would be subject to the affirmative resolution procedure and will require the approval of both Houses of Parliament. I hope that this will assure the House that it will continue to oversee any changes made to primary legislation.

The committee raised concerns that the power for the Registrar-General to make regulations in Clause 2 may entail delegation on matters that are currently provided for in the Marriage Act. That was never the intention, so it is proposed to limit the scope of the powers to making regulations under Section 74(1) of the Marriage Act.

The provisions in the Marriage Act which refer to the Church of England are construed as referring also to the Church in Wales unless otherwise required, in accordance with Section 78(2). However, it is proposed to amend Clause 2(1)(f), which relates to the keeping of records of all marriages solemnised in the Church of England to include reference to the Church in Wales. This will enable the Registrar-General to make different provisions for the keeping of records, if required, in the Church of England and the Church in Wales.

The powers in Clause 2 would be used to enable the Registrar-General to make regulations to prescribe the content of the marriage schedule or document and for how long they should be kept. They would make provisions to correct or reissue a marriage schedule or document prior to the marriage taking place if any information, such as the couple’s occupations, has changed since a notice of marriage was given or after ecclesiastical preliminaries.

The regulations also make provision for the keeping and maintenance of existing paper marriage registers and how the entries should be corrected. These regulations made by the Registrar-General are procedural and intended only to supplement the relevant provisions in the Act.

We have included a consequential amendment in the Bill in Clause 3 to repeal the Marriage of British Subjects (Facilities) Acts 1915 and 1916. These provisions are rarely used and would no longer work with the introduction of a schedule system.

I hope that the amendments I propose to make to the Bill provide noble Lords on the Committee with reassurance regarding use of the delegated powers in the Bill. We very much value the scrutiny that the House provides through the legislative process. I beg to move.

[The Lord Speaker (Lord Fowler)]

My Lords, I should inform the Committee that, if this amendment is agreed to, I am unable to call Amendment 2 by reason of pre-emption.

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[Baroness Williams of Trafford]

I think that it is because we are dealing here with the legality rather than the tradition. I understand my noble friend’s point, but I would hope that such a small but important matter did not derail this important Bill. I am not for a moment suggesting that that is my noble friend’s intention; I understand his point.

Moving from a paper-based system to registration in an electronic register will facilitate the updating of the marriage entry to include both parents of each of the couple without having to replace all register books and it would introduce savings of £33.8 million over 10 years. The changes which the right reverend Prelate seeks are not controversial and have received a lot of cross-party support, hence the support in the Chamber today.

As the Bill contains delegated powers. I advised at Second Reading that the Home Office would produce and publish illustrative regulations prior to Committee to demonstrate to noble Lords how the powers in Clause 1 would be used. I can confirm that the draft regulations were made available in the Library of the House on 17 April.

I must emphasise that the regulations are an early draft and further drafting is required. We would welcome any comments from noble Lords on the content. It is our aim to be transparent during the process of amending the Marriage Act 1949 as we move towards the introduction of the schedule system.

We will continue to work with all key stakeholders, including the Church of England, in developing the policy. I will make further drafts of the regulations available in the Library in due course. I assure noble Lords that the changes to the Marriage Act will be made using the affirmative resolution procedure, ensuring they are debated in both Houses of Parliament and providing parliamentary oversight.

My noble friend Lord Blencathra expressed concern at Second Reading about the use of delegated powers in the Bill. To address those concerns, I can confirm that Home Office officials have been working with the right reverend Prelate to make technical amendments to Clauses 1 and 2 to limit the use of delegated powers to introduce these changes and to provide noble Lords with some reassurance as to how the powers are intended to be used.

The scope of the enabling language in Clause 1 will be narrowed to reflect the policy intent of the Bill to replace the current paper-based system with an electronic schedule-based system. Amendments required to primary legislation will be limited to the Marriage Act 1949. The broad power in Clause 1(2), which gives the Secretary of State the power to amend, repeal or revoke provisions in other Acts of Parliament, will be removed. As the right reverend Prelate has already explained, it is also proposed to include a sunset clause in the Bill limiting the power for the Secretary of State to make regulations which amend primary legislation to a period of three years beginning on the day on which the regulations are first made.

Concern has been raised that the powers in Clause 2 may delegate matters currently provided for in primary legislation. Amendments to Clause 2 will limit the scope to making regulations under Section 74(1) of the Marriage Act. I reassure the noble Baroness, Lady Hamwee, and the House that these regulations are intended only to supplement the current provisions in the Act.

I know that noble Lords recognise the importance of taking these changes forward to modernise the process of registering marriages, and I hope that the amendments made to the Bill will provide some reassurance to them of the value we place on parliamentary scrutiny throughout the legislative process.

I want finally to answer a question posed by the noble Lord, Lord Rosser. When the Bill was drafted, the policy was not so advanced and the powers in the Bill provided flexibility. We have been working closely with Home Office officials to develop policy further, which has allowed us to make these changes.

[The Lord Bishop of St Albans]

I am grateful to the Minister for her summary and for responding to the two points made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser. More importantly, I should point out that part of the problem in the early stages, where I have been grateful to have advice from all sorts of people, is my sheer personal ineptitude in understanding what I might have been proposing. Somebody in my position without legal training does not always understand the breadth of what is offered. I am sorry about that. We have been grateful for the clarity with which the committee pointed out some of the implications. That is why we worked hard to try to get through this very simple legislation.

There is clamour from all over the place for this very simple, focused change, particularly from young women, who are horrified and astonished that it has not happened already. What caught me by surprise was a number of genealogists writing to me to point out that we are out of step with many countries and that, over the decades, this change will make a huge difference to people’s ability to understand their background. I hope that we can fully support it.

Amendment 1 agreed.

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Moved by

[The Lord Bishop of St Albans]

3: Clause 1, page 1, line 7, leave out “, amend the Marriage Act 1949”

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[Baroness Williams of Trafford]

My Lords, I hope that I can now give those assurances. I am very grateful to the noble Lord, because he distinguished very much between the argument for another day, which is about same-sex marriages in churches, and the very important point of children of same-sex parents on the register: it is not called the register, of course, but we will probably continue to call it the register.

As the noble Lord pointed out, the Marriage (Same Sex Couples) Act 2013 made provision for couples of the same sex to enter into a marriage. However, under Sections 3 and 4 of the Act, the provisions to solemnise marriages of same-sex couples do not apply to marriages taking place in the Church of England. As with all other religious ceremonies, there is no compulsion on an individual to solemnise a marriage where the reason is that it concerns the marriage of a same-sex couple.

The provisions in the Bill do not seek to make any changes to marriage preliminaries, or to how or where marriages can be solemnised; it simply seeks to change how marriages are registered, moving from a paper-based system of registration to an electronic register. The electronic system of registering marriages will apply to all marriages, irrespective of whether the couple are of the opposite sex or of the same sex.

I have just received a note containing the answer to the point made by my noble friend about the move to a schedule system not creating differences between the registration process for opposite-sex and same-sex couples. To clarify, by the names of the parents it will say “Mother/Father/Parent” for both parents. That will apply to children of opposite-sex couples, same-sex couples and whatever we have to come.

[The Lord Bishop of St Albans]

My Lords, I am grateful to the noble Baroness for clarifying those matters. It only remains for me to say, in response to the noble Lords, Lord Faulkner of Worcester and Lord Cashman, that of course the wider debate about the nature of marriage is going on right across society, but particularly in the Church of England and in other churches. That will continue. That, of course, is not the focus of the Bill today; that will come back at other points, there will be all sorts of discussions in the General Synod and so on, and they will continue. I am grateful to the noble Lords for stating their view on that, but this is particularly about registration and therefore I hope that we can give this the green light and the go-ahead to speed through.

[Lord Faulkner of Worcester]

My Lords, I am very grateful to all noble Lords who have spoken and for the words of the right reverend Prelate. I am particularly grateful to my noble friend Lord Cashman. The words of the Minister are fine with me: I accept that that is the answer to the question that was posed by my noble friend Lady Gale and I am therefore content to seek leave to withdraw the amendment.

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Moved by

[The Lord Bishop of St Albans]

13: Clause 2, page 2, line 11, after “regulations” insert “under section 74(1) of the Marriage Act 1949”

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Moved by

[The Lord Bishop of St Albans]

16: Clause 3, page 2, line 42, leave out from “regulations” to end of line 43 and insert—
“(a) amend the Marriage of British Subjects (Facilities) Acts 1915 and 1916 so that they no longer apply in England and Wales;(b) make other provision in consequence of regulations under section 1 .”

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Moved by

[The Lord Bishop of St Albans]

17: Clause 4, page 3, line 14, at end insert—
“( ) No regulations may be made under section 1 or 3 after a period of three years beginning with the day on which regulations under either of those sections are first made.”