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Marriage Act 1949 (Remedial) Order 2006

Volume 688: debated on Thursday 25 January 2007

rose to move, That the draft remedial order laid before the House on 20 February 2006 be approved. 16th and 29th Reports from the Joint Committee on Human Rights, Session 2005–06.

The noble Baroness said: My Lords, this instrument was laid before your Lordships’ House on 16 February 2006 and amends the Marriage Act 1949. It might be helpful if I outline the details of the case that led to the making of this order.

The case is called B and L v United Kingdom and concerns a couple, B and L, who by virtue of marriage were father-in-law and daughter-in-law. Over the course of time both parties’ marriages broke down and both ended in divorce. Some time after the breakdown of those marriages, B and L formed a relationship and started to cohabit. L’s son shared the home with B and L, and although B is his grandfather, the child called him “dad”. Some years later, B and L decided that they wished to formalise their relationship by getting married; however, the superintendent registrar of deaths and marriages at the local register office correctly informed them that such a marriage would be impossible unless both their former spouses were dead.

The couple argued that the relevant provision in the Marriage Act 1949 was incompatible with Article 12 of the convention, which concerns an individual’s right to marry. The European Court of Human Rights accepted those arguments and declared on 13 September 2005 that those sections of the Marriage Act 1949 were incompatible with Article 12.

I shall outline the effect of the Marriage Act 1949 (Remedial) Order 2006. Section 10 of the Human Rights Act sets out procedures for remedial action to remove any incompatibility with the European Convention on Human Rights. The remedial order amends Section 1 of and Schedule 1 to the Marriage Act 1949 to remedy the incompatibility immediately. It removes the current prohibition on marriages between former parents-in-law and children-in-law. It also exempts a Church of England or Church of Wales clergyman from what would otherwise be his obligation to solemnise such a marriage.

Noble Lords will be aware that the Civil Partnership Act contains similar prohibitions on civil partnerships between former parents-in-law and children-in-law; however, they have never been commenced. The judgment in B and L v United Kingdom came after the Civil Partnership Act had completed its passage through Parliament but before it was implemented. The prohibitions on civil partnerships between former in-laws therefore appear in the Act but have not been, and will not be, implemented. In time the provisions will be repealed.

Although the Government could have taken the opportunity to amend the Civil Partnership Act using the remedial order, there were concerns that the power to make incidental, supplemental or consequential provisions under the Human Rights Act might not extend to those changes and that they could be considered out of scope. As the provisions in the Civil Partnership Act have not been implemented, the decision not to include these amendments in the remedial order has no practical consequences.

The Government considered a number of options to address the Act’s incompatibility with the European Convention on Human Rights before deciding upon a remedial order. They may have applied for the judgment to be referred to the Grand Chamber. However, the judgment was not out of line with the direction of government policy intentions for marriage legislation. The Government’s view was that the European Court of Human Rights had not inaccurately interpreted or applied the convention. They therefore decided to accept the judgment.

Secondly, consideration was given to introducing primary legislation to amend the relevant sections of the 1949 Act. We decided not to do this because the necessary amendments fell outside any planned legislation, and the need to seek parliamentary time could lead to a substantial delay in implementing the judgment. Bearing in mind that the couple in question were waiting to marry, such a delay was considered unacceptable.

Finally, having decided to use a remedial order, we had to decide whether to use the urgent or non-urgent procedure. The Government considered that the urgent procedure would not be appropriate in this case as, given the importance of marriage as a fundamental social institution, it is appropriate for the proposed draft order to be subject to parliamentary scrutiny before coming into effect.

Noble Lords will have had the opportunity to read the 16th report of the Joint Committee on Human Rights, which considered the proposed draft remedial order. In its report the committee agreed that the Government had compelling reasons for proceeding with the amendments by way of remedial order rather than primary legislation. It also indicated that proceeding to remedy the incompatibility by way of a non-urgent order rather than an urgent order strikes a reasonable balance between the competing considerations of the need to avoid undue delay before remedying the incompatibility and the need to afford a proper opportunity for parliamentary scrutiny.

The Government received two representations on the order. One raised a question of vires. It queried whether the Lord Chancellor had the requisite power to remove the age restriction on marriage between parents-in-law and children-in-law, on the basis that the European Court of Human Rights did not consider the age restriction and, had it needed to do so, the Government might well have been able to mount a strong case for saying that it was not incompatible with Article 12.

The Government conceded that the European Court of Human Rights did not expressly consider the age restriction but they considered it necessary to remove the restriction in order to address the incompatibility with Article 12 of the convention across the board. They have the vires to do so by means of the remedial order.

The Government consider that there will be very few cases involving a party under 21. That is because the younger individual must have been 16 or over to enter into their first marriage, and then could not divorce for at least one year afterwards, and secondly because very few couples marry at so young an age. It should also be remembered that, as the younger party has already been through both a marriage and a divorce, the law has recognised them as an adult on at least two occasions. The Government therefore consider that requiring a couple who are ready to marry to delay that marriage until the younger is 21 is a breach of Article 12.

Noble Lords will also have had the chance to read the 29th report of the Joint Committee on Human Rights, which considered the draft order. In that report, the Joint Committee took into account the representations that were received from both individuals and the public. Two such representations were received; one made observations, while the other proposed a change to the draft order. The Joint Committee accepted the Government’s argument, and concluded that the Lord Chancellor is entitled to reach the view that the age restriction on marriage between parents-in-law and children-in-law is incompatible with Article 12 of the ECHR as a result of the Court’s decision in B and L v United Kingdom, and that he therefore has the power under the Human Rights Act to remove the age restriction by remedial order. The Joint Committee concluded that the special attention of each House is not required to be drawn to the draft order on any of the grounds on which the Joint Committee on Statutory Instruments may report in relation to most other instruments. It also recommended that the order should be approved.

I should also point out that the judgment in B and L v United Kingdom has already been implemented by Scotland in the Family Law (Scotland) Act 2006, which amended Section 2 and Schedule 1 of the Marriage (Scotland) Act 1977 and came into effect on 4 May 2006; and by Northern Ireland in the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006, which came into force on 19 September 2006. I beg to move.

Moved, That the draft remedial order laid before the House on 20 February 2006 be approved. 16th and 29th Reports from the Joint Committee on Human Rights, Session 2005-06.—(Baroness Ashton of Upholland.)

My Lords, we are quite content with this order. As the noble Baroness has pointed out to your Lordships, the order is the consequence of the case of B and L v United Kingdom, in the European Court of Human Rights in Strasbourg. The individuals concerned were, by virtue of marriage, father-in-law and daughter-in-law. Subsequently, both divorced and decided to get married to each other. This, they discovered, was prohibited by the Marriage Act 1949, unless both their former spouses were deceased. The Court held that this provision of the 1949 Act was incompatible with Article 12 of the convention.

Although it was no part of the judgment, the Joint Committee on Human Rights, as the noble Baroness has indicated, concluded that the Government were entitled to conclude that the age restriction of 21 in the 1949 Act between parents-in-law and children-in-law was also incompatible with Article 12. Although it is almost inconceivable that any of the very few couples who are likely to fall within this order will be under 21, they will perforce have been married before, and in our view the age restriction serves no purpose.

My Lords, unlike the noble Lord, Lord Kingsland, the Bench of Bishops is not content with the order; but we accept it.

The aim of the original prohibition was to uphold the sanctity of marriage, to prevent the development of inappropriate intimate relations or rivalries within the family and to protect the parent-child role. We accept that in the light of the ruling of the European Court of Human Rights the Government are obliged to amend the Marriage Act 1949. However, we regret that it has been judged necessary to make such a substantial change. I hear what the Minister and the noble Lord, Lord Kingsland, say about age, but retaining a legal impediment to marriage between parent-in-law and child-in-law, at least in cases where the younger party is under the age of 21, would have been our preferred outcome. Regrettably, that would not appear to be permissible following the decision of the Strasbourg court. Nevertheless, we are glad to see a conscience clause for the clergy of the Church of England and the Church in Wales included in the draft order, as the Minister has indicated.

In light of those changes to marriage law, the Bench of Bishops seeks the Minister’s assurance that the Government will continue to uphold marriage. I think she referred to it in her speech as a fundamental, social institution and, if I have understood her correctly, perhaps she would be good enough to reinforce that. I also ask the Minister to give an undertaking that the Government will seek to encourage healthy relations within families.

My Lords, I am grateful for the support of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Harris, and for the contribution of the right reverend Prelate. It is precisely because we want to uphold the importance of marriage as a fundamental social institution that we want to allow this to happen. There is nothing to prevent such people living together and never has been; it is not regarded as inappropriate in that sense. The individuals, having been together, may wish to marry. I think the right reverend Prelate would applaud that, but I understand his reservations.

The order allows these people who want to be together to solemnise that fact in their own way. I completely understand that for all sorts of reasons one has to be cautious about the pressures we put on people. I hope that the church will continue its teachings, as I am sure it will, to ensure that people understand the importance of the solemnity of marriage.

We have thought pragmatically about the age issue. People can get married at 16 and these individuals have already had a marriage and a divorce so they will already have been recognised in law twice as adults. Such people will not be 16 because there is not time to do everything and still be 16. I hope they will want to be with each other for as long as possible, if not the rest of their lives. While I accept the reservations of the right reverend Prelate—I completely understand what he has said—he has been good enough to raise them in a spirit of understanding what we are doing. We recognise that marriage, sometimes in unusual circumstances, is still fundamentally important.

On Question, Motion agreed to.