Finance and Personnel
Tuesday 25 June 2002
MINUTES OF EVIDENCE
Mr Molloy (Chairperson)
Mr R Hutchinson
Dr N Caven )
Mr M Foster ) Department of Finance
Mr G Johnston ) and Personnel
Mr G King )
The Chairperson: I welcome Dr Norman Caven, the Registrar General for Northern Ireland, Mr George King, the Deputy Registrar General, and Mr Michael Foster and Mr Gareth Johnston from the Office of Law Reform.
Dr Caven: The General Register Office and the Office of Law Reform are introducing the Bill jointly. Would the Committee like me to summarise the Bill or to move straight to questions?
The Chairperson: Please give a short presentation. The Committee will then ask questions.
Dr Caven: As the Minister of Finance and Personnel said in the Assembly today, the Bill addresses three major themes. First, present law, a palimpsest of legislation built up since 1844, needs to be consolidated and simplified.
Secondly, the driving force behind the Bill has been to ensure equality. Existing legislation has had faults in the eyes of officials and the Law Reform Advisory Committee for Northern Ireland when they examined it in detail. Issues ranged from the registration of buildings to the time that marriages could take place. The view was that everyone should be treated equally.
Thirdly, the Bill attempts to ensure additional choice for individuals while respecting the solemnity and dignity of the marriage ceremony. Therefore the Bill’s provisions relating to religious marriages will not take away from the Churches’ right to decide whether to officiate at such ceremonies. Similarly, the licensing of venues for civil marriages to take place will rest with the 26 district councils, which exercise the functions of local registration authorities in Northern Ireland.
There are several parts to the Bill. The first six clauses relate to the preliminaries to marriage. If the Bill becomes law, there will be a system of universal civil preliminaries whereby everyone must give notice to a civil registrar before a marriage can take place. Clause 1 details the notice of intention to marry. It states that the registrar must be that of the district in which the marriage is to take place. Clauses also provide for more detailed regulations, which will come before the Committee, to cover the information that will be required. Clause 1(4) provides for the possibility of reverting to a system whereby persons have to give notice in person.
Clause 2 relates to the marriage notice book. This is a record of the information about the individuals wishing to be married, and it will be made by the registrar. Some of the information will be put on public display. We will deal with that in more detail through secondary legislation to be brought before the Committee.
Clause 3 provides the registrar with power to initiate further investigations if he is not happy with the documentation received. This is to ensure that the capacity of a person to marry is not in doubt. There are also provisions for minor objections to be changed in the documents before the registrar with the approval of the Registrar General. In cases of more substantial objection, there is a provision whereby the issue of a schedule is withheld, or if one has already been issued, the officiant is contacted and the marriage is not proceeded with until there is a determination by the Registrar General on the substance of the objection.
Clause 5 relates to a new document called the marriage schedule, which will be issued to individuals when all is well with preliminaries. The schedule will be taken to the officiant when people want a religious marriage or retained by the civil registrar in civil marriage cases for use on the date of the ceremony.
I referred to the right of Churches to decide not to officiate at a marriage, perhaps because they have not been informed of it. That is covered in clause 4(5). If there is a reason why a marriage cannot be solemnised on the set date, there is provision in the Regulations for some requirements to be abridged. The final clause on preliminaries addresses the issue that someone from this jurisdiction marrying abroad may require a certificate of no impediment, which proves his or her freedom to marry. The registrar can issue such a certificate when provided with the information.
I shall hand over to my colleague Michael Foster, who will say a little more about religious marriages.
Mr Foster: Clauses 7 and thereafter deal with persons who may solemnise marriage. Clearly, that is divided into two sections. Religious marriages are dealt with in clauses 8 to 15. The major change, as has been mentioned in the summary, is the move away from the registration of buildings for religious marriages to the registration of the person who solemnises the marriage, known in legislation as the officiant.
Clause 8 outlines the provision whereby an application can be made by a religious body for the registration of a member to solemnise a marriage, and that is supplemented by clause 9, which goes into more detail regarding the registration of officiants. The two clauses mean that religious bodies in Northern Ireland will submit lists of those whom they consider registered to conduct marriage ceremonies here to the Registrar General on an ongoing basis. We imagine that the major administrative effect will occur in the initial tranche, after which it will be a case of updating the document, which the Registrar General will keep.
Clause 10 deals with such matters as cancellation of registration, outlining certain conditions and scenarios whereby an officiant’s registration can be withdrawn. It also details the procedure which must be carried out in that respect. The appeals section outlines the method by which a person or religious body can appeal against the Registrar General’s decision if he refuses to register a person.
Clause 12 deals with temporary authorisation to solemnise religious marriage. That concerns officiants not on the Registrar General’s list — perhaps from abroad. A religious body, or a member thereof, can apply to the Registrar General for the temporary right to officiate, perhaps for one ceremony. The Bill also allows for officiation at a number of marriages over a specified period.
Clauses 13, 14 and 15 deal with the solemnisation and registration of marriage, outlining the conditions which must be satisfied for those. Clause 15 concerns the registrar’s power to require the delivery of a marriage schedule and lays down the Registrar General’s avenues of action if he does not receive it. Dr Caven will now discuss the procedure for civil marriages.
Dr Caven: A central concern of the Bill has been that existing legislation requires that civil marriages take place only in registry offices. The Bill will extend the possibility for marriages to take place at venues other than registry offices but under regulated conditions. Clause 16 provides for marriages in registry offices or a place approved under subsection (2).
Local district councils, in their role as local registration authorities, will effect that role, and we will introduce detailed Regulations as to how that will all work. Clause 16(4) gives an indication of the kind of things that will be included in the Regulations — the type of places to be granted approvals, the procedures to be followed, the fees to be paid, et cetera. It will be for local democratic control to decide which, or how many, venues in the local authority area will be granted a licence, and the period for which that licence will extend.
Clauses 17 and 18 repeat for civil marriages what is the case with regard to solemnisation and registration. Clause 19 also provides for situations where a couple may have married abroad, but, for the purposes of Northern Ireland law, are not able to prove their marriage. The parties can undertake a further civil ceremony to satisfy the requirement of the law in respect of their existing marriage.
Mr Foster: The rest of the Bill — apart from one or two sections — is largely consolidatory, and it merely repeats the existing law on certain issues. The Law Reform Advisory Committee and the Department took the view that the existing law on the marriage of a person under 18 was working well, and consultees were in total agreement with that.
Clauses 20 to 22 are a replication of the existing law brought forward into this legislation to consolidate and simplify and to give the reader one piece of legislation from which to work.
Clause 23 is a new clause relating to statute, and it brings into a statutory basis the common law rule in relation to when a marriage takes place and when it has legally commenced. That results from the Australian case, Quick v Quick.
Clause 24 deals with the validity of registered marriage, and clause 25 deals with any corrections and cancellations that may be made.
When a marriage ceremony is taking place and the services of an interpreter are necessary, clause 26 provides a statutory basis whereby the interpretation can take place and the conditions that must be satisfied for that interpretation to go on.
Clause 27 replicates the existing law in relation to detained persons. From clause 28 onwards there are supplementary clauses that are a repetition of the existing law and bring into one statute certain necessary elements in relation to registration districts, registrars and other staff.
Clause 29 allows for additional registrars to be appointed on a temporary basis. That may be used if, for example, a marriage ceremony is to take place solely in one language and there is no registrar capable of performing that task. A local registration authority can appoint an additional person to solemnise that civil marriage and carry out any other functions necessary for the purposes of the Act.
The remainder of the section is largely consolidatory. Certain new ancillary criminal offences have been made at clause 36 to reflect the provisions early on the Bill. The rest of the Bill deals with Regulations, repeals, interpretation and commencement, which will be on such day or days as the Department may by order appoint. That will enable the necessary Regulations and guidance to be drawn up and will come under the consideration of the Committee in due course.
As the Minister of Finance and Personnel said in the Assembly today, we anticipate that the system should be ready to be brought into operation some time next year. That concludes our presentation.
Mr Weir: Several Churches made minor points during the consultation stage that have been largely dealt with. Would it be right to say that there were no objections from secular consultees, apart from Antrim Borough Council, which had a minor query?
Mr Foster: Yes. The responses from councils showed that they were very keen to see the system relaxed.
Mr Weir: Are the present restrictions on the timing of marriages being repealed?
Mr Foster: At the moment the Marriages (Ireland) Act 1844 states that marriages must take place between 8.00 am and 6.00 pm. That Act is being repealed.
Mr Weir: Therefore an evening wedding would be permissible. Has there been any legal restriction on the day of the week that marriages could be solemnised, or has it just been a matter of convention? It was suggested that marriages could not be solemnised on Sundays. Did particular Churches make that rule?
Dr Caven: Marriages covered by certain legislation could not take place on Sundays. It is envisaged that these aspects will be a matter for the religious bodies concerned.
Mr Weir: Therefore there will be no legal impediment against a Church deciding, for example, to marry people only on Wednesdays. There would be nothing in law to prevent a legal marriage taking place on any date or time.
Dr Caven: That is correct.
Mr Close: Captains of ships are not part of any religious body, but they have the power to marry people on board ship. Would they be covered by the clauses on civil marriage?
Mr Foster: Do you mean naval captains?
Mr Close: Yes.
Mr Foster: They have not been covered in this legislation; the existing law will continue. The provision for naval captains to perform marriage ceremonies is in a piece of legislation that is not being repealed.
Mr Close: Does this Bill not override all existing marriage legislation?
Mr Foster: No. If legislation is not being repealed, it will still be on the statute book and, therefore, it will still be law. If a reader wishes to delve into this matter, he will have to go through each of the repeals to see which parts of the existing law still apply and which parts do not. This Bill repeals virtually all existing marriage law. However, discrete areas are being maintained; this is an example of one of them.
Mr Close: Does clause 10 rule out the Las Vegas-type marriage in Northern Ireland? I am thinking particularly about the business of performing marriage ceremonies for profit and gain.
Mr Foster: Yes, if the organisation cannot prove to the Registrar General that it is a religious body.
Mr Close: This comes down to the definition of a religious body and the power vested in the Registrar General to demonstrate whether he considers that a body or a group is a religious body.
Mr Foster: That would be subject to the Registrar General’s interpretation in the first instance. In the appeals section, it states that there is a right of appeal to a county court. If a body feels suitably aggrieved that it is not considered to be a religious body, it can go ultimately to the court to have that decision arbitrated on.
Mr Close: That does not apply to a civil marriage, as opposed to a religious marriage?
Mr Foster: It does.
Mr Close: Sorry, it does?
Dr Caven: In a civil marriage, the registrar will perform a civil ceremony, and the local authority will license the venues allowed for that. That licence can be withheld if, for instance, the local authority felt that the venue turned out to be inappropriate. The local authority will protect the solemnity and dignity of the marriage location in that instance.
Mr R Hutchinson: If you register a man, he can marry a couple anywhere. If he is registered, he can marry them jumping out of an aeroplane or waterskiing up a river.
Dr Caven: Yes, but we will only register people whose names have been provided to us by a religious body. That religious body will have the power to rescind those names if it so desires, which is apart from anything that we, as a civil authority, may do. Recognised religious bodies will be called upon to submit the names of officiants whom they want to undertake marriages according to the rites of their Church.
Mr R Hutchinson: It is an excellent Bill.
Sorry, Mr Close, I may be interrupting you.
Mr Close: If you are following on from the same issue, fire away.
Mr R Hutchinson: Many places in Northern Ireland such as Brethren halls and house groups have no top authority to enable anyone to decide who can officiate at marriages. They are autonomous and individual; they have no leadership aside from what happens in that local group. In Larne, there are probably three gospel halls. It is difficult to legislate for those groups. It is easier to legislate for Methodist, Presbyterian, Elim, Assemblies of God or Apostolic groups. They have a top layer of leadership who say who is and who is not an ordained minister. However, these small local groups have theological objections to one person being at the front. Do you agree that there are difficulties in this area?
Dr Caven: If you are talking about who conducts the marriage ceremony, in the main Churches there is, of course, an officiant — the priest or clergyman — who takes a formal role in the ceremony and pronounces the couple man and wife at the end according to the rites of the particular Church. If the groups that you have spoken about are bona fide religious bodies, they will be asked to nominate an officiant. That officiant is not necessarily someone who takes an active role in the marriage ceremony, but they are there and are in a position of authority in that situation. In the Religious Society of Friends, it is the man and woman who take each other as husband and wife, and there is no pronouncement made by the officiating member from the Society of Friends. However, it has a registering officer.
Where there is an officiant, he will be the person who is present and representative of that religious body. The body will have to nominate an individual into that type of responsible role even though it may not be the role of a minister or priest.
Mr R Hutchinson: I still see merit in buildings being registered because there are those with strong theological arguments who will say "We cannot go along with this. We do not believe that one person should be given any title or authority". The couple may want a particular person to marry them, and that could happen with the registration of buildings.
Mr Close: I have a question on the sequence of events. Is it at the stage where two people give notice of marriage that the venue will have to be specified? How much "ad hocery" would there be in the laws? For example, if a couple wanted to, could they get married in their house, which up to that juncture had not been registered as a venue?
Dr Caven: If you are talking about a religious marriage in that situation, the religious officiant will have to be content to marry them in their house. If they want to get married in their house by virtue of a civil ceremony — for example, in a marquee at the back of the house — that venue has to be licensed by the local authority. The licence fees are borne by the parties to the marriage, and there will also be a fee for the attendance of the civil registrar outside the office to officiate.
Mr Close: Is that totally arbitrary and vested with the registrar?
Dr Caven: In the case of a civil marriage that would be vested with the local district council. It will decide if the venue can have a licence. The council could license, for example, National Trust properties, hotels and other venues that may apply. Now and again, some individuals may want a civil marriage in a venue other than those listed. However, the local authority will still have to go through all the requirements of licensing. For example, there would be health and safety considerations, and the fees associated would be borne by the parties involved. It is not envisaged that it would be a cost to the public purse.
Mr Close: Would the registrar have executive authority?
Dr Caven: The council will have executive authority. That is how the system has worked in local authorities in England and Wales since 1994, and it is the system that will operate in Scotland as of this summer.
Mr Close: The obvious way to avoid difficulties is to have a prescribed list of venues.
Dr Caven: Yes, there would be a list of venues that the council has already licensed in its area.
Mr Close: Will the couple getting married have any recourse in law against a local authority if it refuses to look at a venue other than those on the prescribed list?
Dr Caven: Yes, they will.
Mr Foster: That will be covered in the Regulations.
Mr Beggs: Clause 3(1) states that the registrar"may require the person giving the notice to provide him with specified evidence".
It was a long time ago, but, as far as I remember, birth certificates had to be provided, so why is the word "may" there?
Clause 3 takes that a step further, in the sense that if the registrar’s office is not happy after that stage, it may use clause 3 as the power to require further evidence. That is taken from the Immigration and Asylum Act 1999, which gives the registrar the power to ask for further information. The difference is that that power will not be used at the first stage of marriage notice, but it can be used at any time after the marriage notice is first given up to the issue of the marriage schedule, in order for the couple to get married.
Mr Beggs: May I take it that the procedures that are being proposed will not affect the smaller sects that are without a figurehead, so to speak? Will they still have someone who can register a marriage?
Mr Foster: That should still be the case. We consulted widely with all the religious organisations, and none of the smaller sects, as you described them, raised that point.
Mr R Hutchinson: They might object to being called a sect.
Mr Foster: I apologise. The smaller religious organisations had an opportunity to comment, and they all seemed to be happy. The Society of Friends made the point in relation to its rites and ceremonies that it does not have a figurehead. However, it has a registering officer, and that is catered for in the Bill.
The Committee Clerk: For the benefit of the Committee, may I ask about clause 39, which deals with interpretation? The definition of a religious body seems to be subjective. It says that a" ‘religious body’ means an organised group of people meeting regularly for common religious worship;"
Who decides what constitutes "regularly" and "organised"?
The Committee Clerk: Would that apply to house churches and similar small groups?
Mr Foster: The Bill is drafted widely enough to allow that type of organisation to show that it is a religious body. None of the existing recognised religious bodies have indicated that they have a difficulty with that definition.