This report was not approved formally by the Committee prior to the suspension of the Assembly on 14 October 2002, but is published by order of the Speaker.
Committee for
Finance and Personnel
Tuesday 24 September 2002
Marriage Bill:
Committee Stage
(NIA 18/01)
Members present:
Mr Molloy (Chairperson)Mr Beggs (Deputy Chairperson)
Mr B Bell
Mr Close
Mr Hussey
Mr R Hutchinson
Ms Lewsley
Mr Morrow
Mr Weir
Witnesses:
Mr M Foster )
Mr G King ) Office of Law Reform
Mr G Johnston )
The Chairperson:
You are very welcome here today.
Mr Foster:
The Office of Law Reform received a letter from the Committee yesterday, and we have provided our draft reply. If it is appropriate, I am happy to take questions on the points that you have raised.
The Chairperson:
We will listen to your presentation first and then ask questions arising out of that.
Mr Foster:
In order to strengthen the law on marriage, the Committee requested that that the interpretation section blends in a reference to the current definition of marriage from the Matrimonial Causes (Northern Ireland) Order 1978.
Section 13 of that Order states that a marriage will be void if the parties are not respectively male and female. The commonly held definition, which has been referred to several times previously by the Committee, is that marriage is a voluntary union between one man and one woman to the exclusion of all others. That has its basis in common law, and it is also strengthened by the 1978 Order. We have not had the opportunity to think it through to its final conclusion. However, our initial view is that a reference in the interpretation clause, which refers only to the Matrimonial Causes (Northern Ireland) Order 1978, would not take things much further with regard to what the Committee is trying to achieve — to get a commonly held definition of marriage into the Bill.
As I have stated before, the process has been based on the fact that the scope of the Bill is focused on the formalities and preliminaries for marriage. However, it does not deal with the concept of marriage. I asked the draftsman of the Bill for his views on that. He suggested that, given the scope of the Bill as it stands, an interpretation of marriage would have to be a reference to the marriage ceremony as opposed to the concept and longer-term effects of that relationship.
If the Committee is seeking for the law to have a clearer definition of marriage — that already exists — and it is implicitly catered for in the current draft of the Bill. There are several references in the Bill to the declaration that each party accepts each other as husband and wife for example. That is stated in the Bill several times. The primary consideration is that you are dealing with a definition of the concept of marriage, even interpretively, without having gone through the process of consultation. I have particular concerns about the equality side under section 75 of the Northern Ireland Act 1998, and we are still wary of adopting that stance. However, I am happy to answer questions on those points.
Mr Morrow:
Clause 1(1) of the Marriage Bill states:
"Each of the parties to a marriage intended to be solemnised in Northern Ireland shall give the registrar a notice of intention to marry."It then states that a marriage notice is a notice of intention to marry. At the beginning of the Bill, marriage is expressed, but the definition of marriage is not, and that is a contradiction.
You said that you were concerned about section 75. In that respect I am also concerned. If section 75 protects a section of people, is there legislation to protect people who think that marriage should be clearly defined? If we do not kick off the Bill with a definition of marriage, then it is downhill from here on in. It will get complicated and disorientated. Will marriage be defined at the beginning of the Bill? It will become difficult if it is not.
Mr Weir:
I was not going to raise the definition of marriage directly, at this stage, because we will not have a meeting of minds. However, it is clear that an amendment will be drafted with regard to that issue.
Two items were not dealt with directly because they were not included in the paper. Is now an appropriate time to deal with them?
The Chairperson:
Do you want to deal with Mr Morrow’s point first?
Mr Foster:
I understand Mr Morrow’s point. I refer him to the long title of the Bill, which outlines its provisions to deal with the formalities for marriage and the solemnisation and registration of marriages. The Office of Law Reform has been open with consultees and told them that the Bill does not deal with the concept of marriage. At this stage, the debate does not relate to man and woman but to current law. The Bill changes the formalities that must be undertaken before marriage can take place. It is straightforward, and marriage law is strict and narrow. The Bill deals only with the procedure that must be adhered to before a couple walk up the aisle. Its remit ends as soon as the couple exchange vows. However, in dealing with the concept of marriage, the more long-term effects must be considered. Various aspects of marriage law have knock-on effects if the marriage dissolves and there are children involved. It has always been the Office of Law Reform’s view that the Bill should deal with formalities and preliminaries; it should not deal with the concept of marriage, and we consulted on that basis.
Ms Lewsley:
Marriage is defined in existing legislation, and the Bill is an appendix to the main legislation. Like Mr Foster, I am concerned. Some people have told me that when they submitted their response to the consultation paper, they did so without knowing the agreed definition of marriage, which opens debate on a separate issue. I, therefore, have reservations, and, although the Committee is to table an amendment, I do not agree with it.
Mr Weir:
I have read the responses to the consultation document, which satisfy most of my queries. Two areas, however, have not been dealt with adequately. First, the Religious Society of Friends is concerned about the use of the term "registering officer", whereas all other denominations and religious bodies are content to tolerate the phrase "officiant".
Mr Foster:
People did not leap out to tell us to use the term "officiant". Several of the bigger Churches suggested it as an adequate term. Several groups did not like the term "celebrant", which is used in Scotland. Several groups queried the term "officiant", but we referred them to clause 39(2) of the Bill, which basically states that Regulations will outline what "officiant" can mean.
It has always been the Office of Law Reform’s intention to include "registering officer" and, perhaps, several other terms. The advantage of having the term in the Regulations, as opposed to having it on the face of the Bill is, if, five years down the line, a group registers as a religious body and is not overly content with the use of the term "officiants", it can add its preferred term to the list in the Regulations without the need to amend the primary legislation. The Office of Law Reform believes that it would be advantageous to include the term "officiant and/or registering officer" in the interpretation section or anywhere else in the Bill where the term "officiant" is used. Perhaps advantageous is not the right word but, just because the Religious Society of Friends was the only body to object to the term "officiant" does not mean that all other groups were satisfied with its inclusion in the Regulations.
Mr Weir:
It is not a question of that. As far as I am aware, they were the only group that objected to the term "officiant". All of the others were prepared, either by silence or support, to tolerate that term. The Society of Friends has a problem with it because no-one officiates at their marriages. They are clearly unhappy with the terminology. I intend to put down an amendment that the wording is changed to "officiant or registering officer" and that same definition be given to each in clause 39(2).
Mr Foster:
The Society of Friends is one of over 100 religious groups. I accept that some groups are happy with the term "officiant" and that others can tolerate it. The Society of Friends does not like it; however, the Friends do not have to call themselves "officiants".
Mr Weir:
That is not the point.
The Chairperson:
Is it acceptable that different bodies, such as the Friends, use whatever term they wish?
Mr Foster:
Absolutely. Our response to the Committee Clerk’s letter mentioned that there will be consultation on the Regulations in clause 39(2). The Regulations will set out references to the use of the word "officiant" in the legislation. For example, "registering officer" could be one of several definitions in that section. It provides the scope for others to be added without the need to amend primary legislation.
Mr Weir:
Several groups, particularly the Presbyterians, raised the point that, in exceptional circumstances or emergency situations, any registered person of that religious body can substitute for the named officiant.
Mr Foster:
We are content with that policy, and Regulations will be an adequate vehicle for that provision. Mr King might wish to address that point from the operational angle. If, for whatever reason, there was a very late change of officiant it would be preferable if some effort was made by the religious organisation to contact the Registrar General before the ceremony; but it is appreciated that that might not be possible. A system will, however, be in place to enable that to be done in 99·99% of cases.
Mr King:
The issue is the detail of how it operates. Our concern is that it is rigid if it appears in the Bill and may not necessarily meet all requirements on the ground. We speculate as to what type of emergency may crop up. The best vehicle to deal with the matter is a Regulation that would allow us to make an amendment at a later date, should there be a gap.
We deal with an officiant-based organisation; therefore we are keen that every effort should be made to contact the Registrar General, and arrangements are in place for him or her to be contacted outside hours. Only in exceptional circumstances will we be happy for an emergency facility to be put in place, and we would like to be reasonably assured that every effort has been made to contact the registrar and to ensure that the right person will be carrying out the marriage. We hope to cater for that by Regulation.
Mr Beggs:
If, for some reason, the registrar cannot be contacted for a change of officiant to be approved, do you accept that that the individuals concerned and their families will want to know whether they are definitely married? How can that be clear?
I am not clear about the matter, and I would not want anybody to be unsure about whether they were really married. How can you be certain that the provisions in the Bill would allow for a last minute change of officiant in exceptional circumstances?
Mr King:
If a person is unable to contact a registrar at the last minute, it then becomes the responsibility of the named officiant to ensure that the replacement officiant is an approved person.
Mr R Hutchinson:
I understand your argument and some of the other points that have been raised. However, this is an important, practical matter. I have been there, done that, worn the sweatshirt. It is a difficult time. If someone takes ill suddenly, panic sets in. For the sake of a few words, the Department is making this very awkward. The issue was raised not only by the Presbyterians, but by the Church of Ireland, the Methodists and many others. It was top of the agenda for many people, which shows how important it is. The Department is making this awkward; it must allow some leeway. Provision must be made for emergency situations. People’s nerves are bad enough on a wedding people, without somebody dropping dead or having a heart attack. I have been there too often.
Mr King:
If I have not explained myself, I apologise. We want that provision to be included in the Regulations, which would set out the necessary criteria.
Mr R Hutchinson:
There are so many variables. How could the criteria be agreed? If somebody dies or has an angina attack, or a heart attack, would it be deemed OK to continue with the ceremony? What criteria would be set?
Mr King:
The criteria would list the actions that must be taken to try to contact a registrar. If those attempts have failed, then an approved officiant may step in and perform the marriage. A facility would be in place.
Mr R Hutchinson:
You said that the onus would be on the original named minister. What if he is the poor chap that has just dropped dead?
Mr King:
That is the difficulty. How could we get round that without an approved officiant stepping in?
Mr R Hutchinson:
It is quite easy to get round it. An approved minister who is on the list should be able to perform the ceremony. Keep it simple — that is the easiest way.
The Committee Clerk:
There seems to be some confusion. Mr King, you appear to suggest that even if a person has not made contact with the registrar, as long as he or she has attempted to do so, an approved officiant may step in.
Mr R Hutchinson:
With all due respect, it is not up to the Clerk to argue against anybody.
The Committee Clerk:
I am not; I am trying to clarify the matter.
Mr Beggs:
I understand the argument, but those who have concerns about the matter would be reassured if a copy of the draft Regulations could be made available. Can we see them at this stage?
Mr King:
I am sorry, but they are not available at the moment. They have not been prepared.
Mr Beggs:
Your comments are on the record, and we appreciate them.
Mr Foster:
I want to be clear about this: does the Committee propose that a clause should be inserted in the Bill that would allow a deputy named officiant to conduct the marriage if the named officiant takes ill?
Mr Weir:
An amendment to clause 5 should perhaps be drafted. I would suggest that if in exceptional circumstances the named officiant of a registered body is unable to solemnise the ceremony, then any other person registered under section 9 may solemnise the ceremony.
Mr Foster:
I think that we could give that consideration. Would the named deputy officiant have to be from the same religious body?
Mr R Hutchinson:
He would have to be from the same denomination.
Mr Foster:
What happens when a small religious organisation has only one named officiant on the list?
Mr Weir:
That Church would have to decide who to nominate. It would be the same if the one named person falls ill and the Church has to find a substitute. That situation will arise whether or not it is provided for in the legislation.
Mr Foster:
That can be given consideration. We would still want Regulations that would give detail to the procedures.
Mr Weir:
That may be in opposition to clause 5(5). The amendment that I have suggested is that "Regulations may make further provision for any case".
Mr Johnston:
I take the points about flexibility. However, we do not want to prescribe so much in the primary legislation only to find in six months’ time that it is not working as we had intended.
Mr Weir:
I appreciate that, but I do not think that it alters the clause that much.
Mr Foster:
We can give it reasonable consideration.
The Committee Clerk:
Can Mr Weir give me his exact wording?
Mr Weir:
If, in exceptional circumstances, the named officiant is unable to solemnise the ceremony, then any other person registered under section 9 may solemnise the ceremony.
The Committee Clerk:
You added another one —
Mr Weir:
Clause 5(5) would become 5(6), or rather it would be inserted into 5(5). The new 5(6) would insert the word "further".
Mr Close:
I accept the concept of "in which for any reason" in clause 5(5). However, what would happen if the officiant discovered an impediment to the marriage that made him unable to solemnise it? He may be unable due to sickness or accident.
Mr Weir:
The reference is "if in exceptional circumstances". An impediment would override that.
Mr Foster:
It takes care of itself. We would back that up with guidance that would list reasons such as sickness or delay.
The Committee Clerk:
There are other points in the letter relating to officiants. Mr Weir has indicated that there is some substance to your response, Mr Foster.
Mr Foster:
A couple of Churches raised the issue that officiants may only hear of an intended marriage at the last minute.
That will not happen because of the wording of the Regulations and the fact that the prescribed notice forms will have a section where the officiant must declare that he or she has agreed to solemnise the marriage between the parties on the stated day and at the stated venue. The marriage will not take place without that declaration; therefore the concerns rightly raised by some of the religious organisations will be catered for in the notice, as prescribed in the Regulations. Therefore we consider that it is not necessary to make an amendment to primary legislation to take account of that issue.
The Chairperson:
If everyone is content with that explanation, we will move on.
Mr Foster:
The Committee raised the issue of the inclusion in the records of the denomination of the parties. The present procedure is that the General Register Office (GRO) registers the name of the groom and bride, but the denomination is not recorded.
Mr King will explain, from the operational point of view, how GRO intends to do that.
Mr King:
The marriage notice will include details of the officiant, the church, and the denomination. That information will be recorded electronically and means that the record of marriages for a particular denomination will be available if called upon.
Mr R Hutchinson:
The difficulty is that the bride and groom like the book they fill in.
Mr Foster:
There is absolutely nothing to stop — [Interruption]
Mr R Hutchinson:
I would like to keep the Church at the top of it and the minister signs it. The bride and groom receive a copy, and a copy is left for their personal records.
Mr Foster:
There is no problem with that at all.
The Chairperson:
We will move on if everyone is happy with that.
Mr Foster:
The Committee’s next point was on consultation and the Regulations. Our proposal is to consult directly with those parties who gave evidence to the Committee. When they are ready, we will publish the draft Regulations on the GRO website, and will issue a circular to notify bodies of the availability of the Regulations, and those bodies will be invited to forward their comments to the GRO.
The Committee’s final point of concern relates to education and training. If the Bill becomes law, a reasonable amount of time will elapse before the Act goes on to the statute book. During that time officials intend to provide help and guidance to officiants on the understanding of the legislation and its implications for them. It is GRO’s intention to have a telephone helpline, handouts, press announcements, and a guide to the conduct of the marriage ceremony under the new law. Seminars will be offered to officiants who wish to further understand the system.
The key is that much of the administration procedure is being taken away from officiants and placed centrally. It is hoped that once officiants are aware of the new system and its operation, they will be able to get into the swing of things. The Scottish experience of similar legislation has been going for 25 years without any reported difficulties, and we should base our legislation on that. The Scottish clergy took to the situation like a proverbial duck to water.
The Committee Clerk:
As we go into a clause-by-clause consideration of the Bill, it would be helpful if officials would stay at the table to answer any points as they arise.
Another issue that should be placed on the record is included on page 2 of the brief. Does the Committee agree with the Assembly’s legal advisor that the concern on legislative competence raised by the Northern Ireland Human Rights Committee, with reference to transexuals and the Goodwin case, was not substantiated?
Further, does the Committee agree that the Bill does not deal with the nature of marriage and that it would be outside the scope of the Bill to include a provision on same sex marriage, as recommended by the Northern Ireland Human Rights Commission?
The Committee Clerk:
The scope of the Bill allows it to ratify the definition of marriage as well, so you may not be able to have it both ways.
Clause 1 (Notice of intention to marry)
The Committee Clerk:
No substantial concerns have been raised about the clause, and the Committee may wish to put it to a vote.
Mr Weir:
Some of us have suggested marriage be defined on the face of the Bill. That would be the best place to do so given that "marriage notice" and "registrar" are defined in the Bill. I know that there is a definition clause at the end of the Bill, but we feel that it should be on the face of the Bill. We would suggest that clause 1(2) be amended to include the following: "Marriage means the voluntary union for life of one man and one woman to the exclusion of all others."
That is exactly how marriage was defined in the case of Hyde v Hyde.
Mr Foster:
If you include the words "the voluntary union for life", you are effectively making divorce illegal.
Mr Weir:
Are the words "marriage means" not also those from Hyde v Hyde?
Mr Foster:
In the case of Hyde v Hyde, the commonly held definition of marriage was quoted from one of the judges in the case. It was not what was, in legal terms, the ratio decidendi: it was said in obiter dictum, which is another legal phrase that means that the ratio decidendi of the case can be relied on in court for those type of purposes; but the obiter dictum of the case is there to add the weight to it. If you want to put an amendment down on that it might be better to say "intended for life".
Mr Weir:
We can agree on that if we change it to: "the voluntary union intended for life of one man and one woman to the exclusion of all others."
Mr Morrow:
Why do we need the word "intended"? Can we not remove that completely?
The Committee Clerk:
Does that imply lesser competence under the European Convention on Human Rights?
Mr Foster:
I do not think that we would advise the Minister to support that.
Mr Weir:
I appreciate that the word "intended" slightly weakens the intention, but it gets over cutting out divorce and states that the key principle is intention for life.
The Chairperson:
OK.
The Committee Clerk:
The Committee clearly intends to debate that at Consideration Stage. If the advice that we have received from the Bill Office and the Department is correct, then it would be outside the scope for debate and may not get selected. The alternative version in the letter of 23 September was a means around that at least to allow it to be considered to be within the scope to allow the Committee to raise it in debate at Consideration Stage. Therefore there is a risk —
Mr Weir:
I would be keen to press ahead with an amendment on clause 1, irrespective of whether is it allowed. In addition to tabling the amendment, it is possible that the Committee could recommend that marriage should be defined as "the voluntary union intended for life of one man and one woman", and that that is part of the Committee’s report. It should be on record that the majority of the Committee members wanted the amendment, and that we go for both routes, even though the legislative amendments could be knocked out.
The Chairperson:
Will we do that instead?
Mr Weir:
No. I am putting an amendment down, and I am also suggesting that the Committee make a recommendation in its report about the members’ definition of marriage.
The Chairperson:
Is the Committee agreed?
Ms Lewsley:
No, I do not agree.
Mr Weir:
I beg to move
That the Committee recommend to the Assembly that the clause be amended as follows: in clause 1(2) add
"Marriage means the voluntary union, intended for life, of one man and one woman to the exclusion of all others."The Committee divided: Ayes 5; Noes 2.
Question, That the Committee recommend to the Assembly that the clause be amended, put and agreed to.
Mr Close:
Do any of the repeals consequent on this Bill contain a definition of marriage? There is a list in the schedule.
Mr Foster:
I am not aware of any. That is based on the fact that the legal definitions are in the Matrimonial Causes (Northern Ireland) Order 1978, and that has not been repealed.
The Committee Clerk:
Is there a potential or a required consequential on that amendment to be tabled in respect of the Matrimonial Causes (Northern Ireland) Order 1978?
Mr Foster:
I do not think so as it would stand alone. Article 13.1 of that Order states that a marriage would be void if the parties are not respectively male and female. That does not sit at odds with the definition that the Committee is proposing.
Question, That the Committee is content with the clause, subject to the Committee’s proposed amendment, put and agreed to.
Clauses 2 and 3 agreed to.
Clause 4 (Objections)
Mr Weir:
This is the first time "officiant" is used.
This issue has been raised before. However, I suggest that each reference to officiant in the Bill should be substituted with the words "officiant or registering officer" to take account of the problem raised by the Religious Society of Friends. Every other religious body is happy with the word "officiant", but it does not take into account the way in which the Religious Society of Friends conducts wedding ceremonies. I think that clause 4 contains the first reference to officiant, but it is also referred to in other clauses. If the general concept were accepted, consequential amendments would be necessary. I am not sure whether we need to deal with those consequential amendments individually.
The Chairperson:
Presumably, that amendment would apply to the rest of the Bill.
Mr Weir:
If the amendment were accepted, would the Committee have formally to amend each individual reference to "officiant"?
The Committee Clerk:
If an amendment were agreed to that would lead to consequential amendments to other parts of the Bill, and those amendments would also have to be tabled. If it were felt that changing all references to "officiant" to "officiant or registering officer" would do no harm, would the Department be happy to accept the amendments? That seems to be the question that the Committee is asking the Department.
Mr Foster:
The matter will be adequately catered for in Regulations. The Bill would look extremely untidy if every reference to "officiant" were suffixed by the words "or registering officer". If the Committee is not content to extend the definition of the word "officiant" to include "registering officer" in Regulations, it may wish to consider extending the definition of "officiant" in the clause as it stands.
The Chairperson:
What about using the words "registering officiant"?
Mr Weir:
The Religious Society of Friends made it clear when giving evidence that it objects to the use of the word "officiant" full stop. To use the words "registering officiant" would be to reach a compromise that would not suit anybody. It will not address the concerns of the Religious Society of Friends, while other religious groups may have problems with the use of the words "registering officant" instead of simply "officiant".
Mr Johnston:
During consideration of the Bill, Mr Roger Hutchinson, among others, mentioned the position of some of the smaller denominations. Because of their nature, smaller denominations may not have been as aware of the proposals in the Bill as larger denominations were. The Religious Society of Friends is not necessarily the only denomination that deals with marriage on a congregational basis. I recognise the point that Mr Weir makes, and would like the concerns of the Religious Society of Friends to be accommodated in Regulations. However, it would be unfair to accommodate those concerns in primary legislation because similar concerns raised by other bodies would have to be dealt with in Regulations.
Mr Weir:
It is possible that other religious bodies are not keen on that term — we do not know. We can only go by the evidence that we have. No religious body, other than the Religious Society of Friends, has said that it has a problem with that wording. As regards equality, to use a term which seems to be acceptable to most religious bodies but which goes against the grain of one is to discriminate against that body and to fail to take account of its beliefs. I propose that an amendment to clause 4(3)(c)(i) and clause 4(3)(c) (ii) be made to add the words "or registering officer" to the word "officiant".
Mr Foster:
We were aware of the concerns of the Religious Society of Friends during the drafting of the Bill. That organisation made its concerns very clear to us perhaps three, four or five times. Just because it has shouted loud enough does not mean that it should automatically get special dispensation in primary legislation.
In many ways there is some compromise in the Bill. We accept the society’s point that the phrase "registering officer" is special to it. We are happy to cater for that by inserting Regulations that say that an officiant can mean A, B, C or D. In that way, other groups that did not have such strong feelings and did not shout as loudly as the Society of Friends can then say that because the Society of Friends accepted "registering officer", they will accept "authorised person", "celebrant" or something else. That way those other groups are catered for more neatly without the need to change the primary legislation constantly. If groups see that the Society of Friends has succeeded in getting its particular phraseology inserted in the Bill by way of amendment, they will say that they should have done likewise.
Mr Morrow:
Are you satisfied that the Society of Friends, which raised equality, is adequately catered for in that respect?
Mr Foster:
Yes.
Mr Beggs:
Could the terminology be dealt with in clause 39, which deals with interpretation?
Mr Foster:
For the sake of neatness, if the Committee wished to follow Mr Weir’s thinking on that, yes, it could. However, it still creates a special case for the Society of Friends, but we will be able to deal with that. In a year or two’s time, will it really matter to the Society of Friends whether the phrase "registering officer" is on the face of the Bill for its benefit, or whether it is in Regulations? That is how those people will be known.
Mr Weir:
I appreciate that, but that matters to the Society. It may be worth suggesting an amendment and determining how much support it gets.
Mr Close:
Have all other possible words been thought about and discarded?
Mr Foster:
"Officiant" was one word that the Law Reform Advisory Committee proposed. The first word that it proposed was "celebrant", following the model in Scotland. Several organisations were unhappy with that phrase, but my recollection is that a couple of the main Churches suggested using a neutral phrase such as "officiant". However, I am not sure; I would need to check the consultation files from a couple of years ago. That neutral phrase could cater for everybody, and would not demand the use of the words "clergyman", "priest", "pastor", "registering officer", or whatever phrase that you can ever think of to describe somebody who is solemnising a marriage.
Mr R Hutchinson:
Those people do not solemnise it.
Mr Foster:
I accept that, but the Society of Friends is not the only organisation that believes that.
Mr R Hutchinson:
Absolutely, and I argued that.
Are you clearly stating that they will be allowed to use the term "registering officer"?
Mr Foster:
Absolutely.
Mr Johnston:
That is just one example of the freedoms that religious denominations have.
The Chairperson:
The term "officiant", which covers everything and which is not a very solemn word, could be open to interpretation. It is probably a more open and equal term. Some people may use "clergy", some may use "celebrant", some may use —
Mr Weir:
I am not suggesting that "officiant" be replaced; I am simply saying that it be considered as an alternative to take into account the religious persuasion of the Society of Friends.
The Chairperson:
If you accepted that, you could say that Catholic priests would want to see "priest" in the Bill, or somebody else would want to see "clergyman", or whatever else.
Mr Close:
I should not like to think that we are effectively being told that the Society of Friends will accept only their words, because therein lies a problem, and you do not get over that by tagging it on beside "officiant".
Mr Weir:
It is not a question of the Society accepting only its words; it is the fact that "officiant" does not describe what happens in a Society of Friends’ ceremony.
It is outside the remit, because no one officiates at that ceremony. The couple marry themselves.
Mr Close:
Yes. However, it is in the Regulations.
Mr Weir:
There is a slight lack of neatness. Perhaps the law already covers the issue that concerns the Society of Friends. However, the amendment is worthwhile, if it is necessary to make them feel that they are not discriminated against. It is a small concession.
The Chairperson:
What do you propose?
Mr Weir:
I beg to move
That the Committee recommend to the Assembly that the clause be amended as follows: in 4(3)(c)(i) and 4(3)(c)(ii), following the word "officiant", add the words
"or registering officer".Question put.
The Committee divided: Ayes 3; Noes 3.AYES
Francie Molloy, Roy Beggs, Séamus CloseNOES
Peter Weir, Roger Hutchinson, Maurice MorrowQuestion accordingly negatived.
Question, That the Committee is content with the clause, put and agreed to.Clause 5 (Marriage Schedule)
The Committee Clerk:
In previous discussions an amendment was proposed to clause 5. A new subsection (5) was proposed that in exceptional circumstances if a named officiant is unable to solemnise the ceremony, any other person registered under section 9 may solemnise the ceremony. Consequential to that, a new subsection (6) would state that Regulations make further provisions on which substitution would be appropriate. Is that the Committees view?
Mr Weir:
It is close. The wording is:
"If in exceptional circumstances the named officiant is unable to solemnise the ceremony then any other person registered under section 9 may solemnise the ceremony".The Committee Clerk:
What about the wording of the other subsection?Mr Weir:
It is the addition of the word "further".
The Chairperson:
The phrase "any other" seems to be extremely open. Can we make the wording more precise?
The Committee Clerk:
The words "any other authorised person" might be more appropriate.
Mr Weir:
Yes. Although, the person would have to be authorised to be included in section 9. I am not worried about whether the word "authorised" is included, but it must specify section 9.
The Chairperson:
Do you want to comment, Mr Foster?
Mr Foster:
No.
The Chairperson:
I beg to move
That the Committee recommend to the Assembly that the clause be amended as follows: in 5(5) add the words
"If in exceptional circumstances the named officiant is unable to solemnise the ceremony then any other person registered under section 9 may solemnise the ceremony."Question put and agreed to.
The Chairperson:What about the second amendment?
Mr Weir:
No. That was only about the addition of the word "further".
The Chairperson:
So we vote on clause 5 as amended?
Mr Close:
What if the Office of Law Reform says that it accepts the concept but not the wording? Has the Committee committed itself to the wording?
The Chairperson:
There would be consultation with the Department.
Mr Weir:
If the concept is accepted, the wording could be tweaked. There will be opportunities to vote on it even in the House. It will not be a problem.
Question, That the Committee is content with the clause, subject to the Committee’s proposed amendment, put and agreed to.
Clauses 6 and 7 agreed to.
Clause 8 (Application by religious bodies for registration of member to solemnise marriages)
The Committee Clerk:
There were concerns about the perceived administrative burden that registration would create, particularly from the larger, more established Churches. Some Churches expressed a preference for the Scottish three-tier system of registering the religious body, rather than individual officiants. Officials explained that that procedure had operated in Scotland for 25 years, and that it was also intended for England and Wales. The use of electronic registration and amendment procedures would provide a significantly reduced administration problem.
The Committee will wish to consider the merit of the evidence from officials and Churches, and whether it is content to accept the need for individual registration of officiants on equality grounds. The Committee is convinced that the registration procedure will not be onerous. I feel that the Committee is in favour of retaining the provisions as drafted.
Mr R Hutchinson:
We took on board the objections that were raised, which were mostly from the Church of Ireland with regard to an issue that the Church named, rather than the individuals. We came to the conclusion that it is a fair way to proceed.
Mr Close:
What would be the effect of allowing the Church or religious body to marry without the use of registration?
Mr Foster:
It is simpler, but it is arbitrary. For example, the Church of Scotland is the established Church in Scotland, and it sits by itself on the first of the three tiers. We do not have an established church in Northern Ireland, so that point does not apply to us. The second tier is a group of approximately 11 or 12 Churches and religious bodies, which are determined through their ministers or registry office. Those bodies can conduct marriages without having to send in a list to the Registrar, because they are named in the Regulations as being a member of the Presbyterian Church or the Roman Catholic Church.
In 1977, the Government decided that 11 bodies were enough and they drew a line. At that stage, the eleventh body had approximately 300 members, and the twelfth body had 200 members.
Mr Morrow:
They were below the line.
Mr Foster:
The body with 200 members had to do the same as the other smaller religious organisations; it had to send in a list of all its officiants every three years.
Mr R Hutchinson:
In a sense, the twelfth body was in division one and not the premier league.
Mr Foster:
Exactly. However, in 2002 they have the odd scenario where the group with 200 people now has 10,000 people and the group with 300 people now has 10. Yet it still has to send in a list of its officiants. Officials in Scotland have said that if they have to do it again, they would probably adopt the system that we are using.
The Chairperson:
How do you have that control over who is a registered officiant?
Mr Foster:
In Scotland, they decided that bigger Churches policed themselves. However, under section 75 of the Northern Ireland Act 1998, our advice is that there is no way to go through a list and suddenly have a cut-off point. We cannot treat a slightly smaller group differently.
Question, That the Committee is content with the clause, put and agreed to.
Clauses 9 to 15 agreed to.
Clause 16 (Places at which civil marriages may be solemnised)
The Committee Clerk:
The clause provides another major reform by allowing for approved places for civil marriages. Some of the correspondence and evidence indicated a preference for the legislation to specify that it is a matter for religious bodies, particularly the established Church, to determine an approved place. It was made clear by officials that Churches and religious bodies have absolute discretion on where they are prepared to conduct a marriage ceremony.
If the Committee is content with that explanation, then it can accept clause 16 as drafted.
Mr Close:
May I have clarification about the Regulations that will govern local authorities? How wide or how narrow will those Regulations be?
Mr Foster:
We have not got into their exact detail, but we envisage following the system that has begun to operate in Scotland. You will have the opportunity to examine those Regulations in due course and offer any changes that you wish to make. We hope to give local councils the discretion to license various venues in their areas. There would be two types of licensing: the first would be on a periodic basis. There are some venues that would be frequently used for weddings. Equally, there might be individual applications from people asking if they can license their back garden for the use of a marquee. The council would deal with those on a case-by-case basis.
The Chairperson:
Some of the Churches raised the issue of the authority to say where a ceremony could take place.
Mr Foster:
Any religious body registered under this legislation can conduct a marriage anywhere it wants.
The Chairperson:
Or can refuse to.
Mr Johnston:
They can restrict the range of places that are acceptable.
Mr R Hutchinson:
They can set their own frameworks.
Mr Foster:
Absolutely. In practice, there will not be any change to where religious marriages take place in the vast majority of cases. However, it will give some of the religious organisations the opportunity to have more discretion as to where they marry a couple.
Mr Close:
My concern would be that a local authority in Northern Ireland would allow all kinds of strange places to be used.
Mr Foster:
Parameters will be set. The Registrar General will give guidance to local councils.
Question, That the Committee is content with the clause, put and agreed to.
Clauses 17 to 19 agreed to.
The Committee Clerk:
Clauses 20 to 22 deal with various consents. One of the correspondents suggested that in clause 20 the phrase "informed consent" should be used. The advice of the officials was that the word "consent" was sufficient, and that the use of the word "informed" was unnecessary in legislation.
Clauses 20 to 22 agreed to.
The Committee Clerk:
The Society of Friends explained that they considered a couple to be married on foot of their own declaration rather than on the pronouncement of an officiant or registering officer. The Committee may wish to consider whether that matter is covered by clause 23, which says that
"The parties to a marriage solemnised in accordance with this Act shall be taken to be married to each other when both of them have made a declaration in the presence of each other, the person solemnising the marriage and two witnesses that they accept each other as husband and wife."Clauses 23 to 27 agreed to.
The Committee Clerk:No concern was expressed about clauses 28 and 29.
Clauses 28 and 29 agreed to.
Clause 30 (Registrars’ offices)
The Committee Clerk:
Clause 30 concerns registrars’ offices. Is the Committee content to suggest that it wants larger groups for the denomination of a couple? That issue was dealt with earlier, with regard to the pro forma and the electronic copy, which would include the denomination. Records could be provided on request.
Question, That the Committee is content with the clause, put and agreed to.
The Committee Clerk:
No concerns were raised about clauses 31 to 36, which deal with the requisite documents to be sent to the Registrar General, such as report searches and proof of managed fees and offences.
Clauses 31 to 36 agreed to.
Clause 37 (Regulations)
The Committee Clerk:
No concerns were raised about the drafting of clause 37, although several groups made the point that adequate consultation was required on the proposed Regulations. The Committee has sought and received assurance from officials that consultation will take place with the groups that sent evidence to the Committee.
Mr Weir:
There would be no legislative change, but it would be useful for the Committee to make recommendations. I appreciate that there will be consultation — there is no doubt about that. However, it is important that the Committee recommend clear consultation on the Regulations with the relevant bodies. With regard to the evidence given, it struck me that a great deal was misunderstood, and that some parts needed to be clarified by various bodies. The consultation did not seem to communicate some of the messages effectively. That is not a criticism of anybody — it is just the way that it happened. We need to make a recommendation that clear consultation takes place, rather than make any change to the wording. I know that the Department will recommend that anyway.
The Committee Clerk:
The Committee has clearly made that recommendation, and I plan to put it in the draft report.
Mr Weir:
I appreciate that a recommendation was made in relation to the Quakers’ situation. A specific recommendation should be made that the Regulations are drafted to cover a broad definition of the term "officiant", in consultation with religious groups. This would ensure that acceptable terminology is used to accommodate religious bodies.
The Chairperson:
The definition should be flexible to take the various religious groups into account.
Mr Weir:
I have a third point of a general nature. Shall I leave that until we have dealt with the other clauses?
The Chairperson:
Yes, we will deal with the other clauses, and then come back to your point.
Question, That the Committee is content with the clause, put and agreed to.
Clause 38 agreed to.
Clause 39 (Interpretation)
The Chairperson:
The Committee dealt with clause 39 when it discussed the proposed definition of marriage. The suggestion in the brief was that the definition of marriage from the Matrimonial Causes (Northern Ireland) Order 1978 would be included. However, the Committee agreed to table an amendment to clause 1, so that is no longer an issue.
Mr Beggs:
This is a neater way to deal with the definition of officiants and registering officers. I would prefer this to be on the face of the Bill so that the Quakers would not be referred to only in the Regulations.
Mr Weir:
An amendment could be made to the definition of "officiant" so that it meant such officiant or registering officer as defined in clause 7(1)(a). That would make the point that it is on the face of the Bill.
Mr Beggs:
It will be easier for minority groups to accept that their views have been taken into account.
Mr Weir:
The word "officiant" will mean such officiant or registering officer as —
Mr Morrow:
How can the word "officiant" be explained by the word "officiant"? It is the same word.
The Committee Clerk:
The point that was made by Mr Foster was that they might consider changing "officiant" to a definition of officiant and registering officer.
Mr Foster:
I have difficulty understanding that by dealing with that in the Regulations, we are somehow not catering for the Society of Friends.
Mr Weir:
Going back to Mr Beggs’s point, there would be a degree of comfort if, somewhere on the face of the Bill, reference was made to "registering officer" or "officiant" meaning such officiant or registering officer as mentioned in clause 7(1)(a). It is not ideal, but it would go a long way to covering their point.
The Chairperson:
Are we agreed on that amendment?
Mr R Hutchinson:
Are you saying "officiant" or "registering officer"?
Mr Weir:
"Officiant" means such officiant or registering officer as mentioned.
Mr Foster:
"Registering officer" is not mentioned anywhere.
Mr Beggs:
I think he means "officiant" means officiant or registering officer.
Mr Weir:
"Registering officer" is not in inverted commas.
Mr Foster:
I will stick to my guns; the Regulations will be adequate.
The Chairperson:
Maybe we could say that "officiant" means a person mentioned in clause 7(1)(a) and registering officer.
Mr Weir:
Yes, but then there is a question of whether the registering officer refers to clause 7(1)(a).
Mr Beggs:
The registering officer will be referred to in the Regulations. Is there a problem putting in a definition of Regulation in the primary legislation? Registering officer could also mean a person mentioned in section 7(1)(a).
Mr Foster:
That would obviate the need for a Regulation to cover that.
The Committee Clerk:
You would be defining something that is not in the Bill.
Mr R Hutchinson:
Ministers would be likely to refer to it as "registering officers".
Mr Weir:
The amendment would cover it to some extent.
The Committee Clerk:
There is a difficulty with the amendment, with regard to competence. "Registering officer" is not defined anywhere in the Bill — you would be introducing the term.
Mr Weir:
Strictly speaking, there is no definition of the word "person" anywhere in the Bill. There are several things in the Bill that are not defined at any stage.
Mr Foster:
It can be adequately dealt with in the Regulations. There is a reference to registration and registering in the Bill. I am worried that if we add "registering officer", some people might misinterpret it.
Mr Weir:
Anything can be deliberately misinterpreted if someone intends to. However, at least it gives them a degree of provision.
The Chairperson:
My only concern is that it may be interpreted as the Registrar General.
Mr Foster:
That is not our main concern; however, it is a side concern.
Question, That the Committee is content with the clause, subject to the Committee’s proposed amendment, put and agreed to.
Clauses 40 and 41 agreed to.
Mr Weir:
I would like to make a recommendation that does not involve legislative changes. Several groups, including CARE, mentioned marriage support services. It would be appropriate for the Committee to make a recommendation that the Department should look at giving greater support to marriage support services.
The Chairperson:
We agree on that.
The Committee Clerk:
The question before the Committee is that the Committee’s report should include a recommendation, but not an amendment, that the Department needs to look at provision for supporting marriage.
Members indicated assent.
That concludes the clause-by-clause consideration of the Bill. There is a short title and a schedule. Some issues were raised about the title of the Bill, but nothing that would require an amendment.
Schedule agreed to.
Long title agreed to
The Committee Clerk:
I will endeavour to have a draft report that includes all those amendments for the Committee by next Tuesday.
17 September 2002 (iv) / Menu