Marriage and Civil Status Law - Ministerial Response - 13 March 2018

Findings

Comments

1

It is not clear what impact the requirement for the Office of the Superintendent Registrar to be cost- neutral will have on the cost of registering a marriage. We are also concerned that there may be wider implications for the cost of registering births and deaths.

As set out in the 2017 – 2019 Medium Term Financial  Plan –  and  as  agreed  by  the  States Assembly – it is intended that the Office of the Superintendent Registrar will be self-funding by 2019. In order to achieve this, there will be an increase  in  fees  in  relation  to  the  services provided by the Superintendent Registrar. These fees will be prescribed by Order.

The  amended  Law  provides  opportunities  to create  savings,  which  will  help  minimise necessary fees increases, for example, through –

• better use of information technology

• the potential relocation of the Superintendent Registrar's office

• use of standard paper sizes to reduce binding and archiving costs.

Despite these savings, however, fees will need to rise across the board if the agreed MTFP2 savings target is to be realised.

Fees for the registration of births and deaths will remain, except that:

- Fees for re-registration of births, as opposed to  the  registration,  will  increase.  Re- registration, which  is  resource-intensive,  is currently only charged at £5.

- A new fee will be introduced for express' services relating to quick turnaround of copy certificates.

Findings

Comments

2

We empathise with concerns raised about the potential for civil celebrants to offer marriage ceremonies who have not been deemed qualified by a relevant organisation.

See response to Recommendation 2 below.

3

The proposed changes to the processes associated with the solemnization and registration of marriage are appropriate and proportionate, particularly in relation to sham, forced or coerced marriage.

Agreed.

4

In light of the proposed changes set out in the Draft Law, the Roman Catholic Church is seeking to give up its current privilege of being authorised clergy with registered buildings for weddings, thus separating the civil from the religious ceremony.

It is understood that the Roman Catholic Church has  decided  to  separate  civil  marriage requirements  from  religious  service.  The Superintendent  Registrar  will  work  with  the Church to help support the transition.

5

There is a risk that buildings owned by, used by, or in trust of, religious organisations may be compelled to act against their religious conviction and be required to permit the solemnisation of same-sex marriages and wedding receptions for same-sex couples.

See response to Recommendation 3 below.

6

Canon Law, which was approved by the States of Jersey and which governs the Church of England, defines marriage as being between one man and one woman.

The  conflict  with  Canon  Law  is  an acknowledged  complexity.  Appropriate protections have been provided in law in order that religious organisations and officials cannot be compelled to participate in the solemnization of same-sex marriages.

7

The so called quadruple lock enshrined within the Draft Law provides certain protection to clergymen of the Church of England, an authorised religious official or a religious organisation who shall not be compelled by any means to consent, certify, be present at, participate in, or solemnise a same sex marriage.

Agreed.

8

People who provide goods and services in respect to marriages and wedding ceremonies will be required to comply with all aspects of this Law, even if it goes against their firmly-held religious belief or conviction in respect to same- sex marriage.

See response to Recommendation 4 below.

Findings

Comments

9

There is a risk that employees may be compelled to undertake work in relation to same-sex marriage or wedding receptions, even if this goes against their firmly-held religious belief or conviction.

See response to Recommendation 5 below.

10

In the Law as drafted, civil celebrants will determine what does, and what does not, constitute religious content in relation to a civil marriage ceremony.

See response to Recommendation 6 below.

11

Introducing the Draft Law, as lodged, will create a situation where there will be discrimination between same-sex couples and heterosexual couples. The examples identified by the Panel include: heterosexual couples will not be able to enter into civil partnerships and same- sex couples may not be able to seek a divorce on the grounds of adultery.

As  confirmed  by  the   Deputy  Chief  Minister during the debate on the principles of P.91/2017 (16th  November  2017),  changes  to  the Civil  Partnership  (Jersey)  Law  2012 will  be

brought  forward  pending  the  conclusion  of  a UK Supreme Court hearing.

12

After lodging the Draft Law, 2 weeks before it was due to be debated, the Chief Minister lodged 24 separate amendments to the Draft Law. The majority of these amendments were correcting inaccuracies, typographical errors and spelling mistakes.

As acknowledged by the Deputy Chief Minister during the debate on the principles of P.91/2017 (16th  November  2017),  corrections  were required. The Deputy Chief Minister pushed to lodge P.91/2017 in order to try and ensure that the amended Law could come into force in the shortest possible timeframe.

13

The Draft Law is a long and complex piece of legislation. In addition to substantially rewriting the 2001 Law, it will make 31 consequential amendments to other pieces of legislation. There has not been sufficient time to consider the implications of all of these consequential amendments.

See response to Recommendation 9 below.

14

Whilst consulting during the early stages and on the Law Drafting instructions, the Chief Minister and his staff did not directly consult on the Draft Law with all key stakeholders.

This  is  acknowledged.  There  was  extensive consultation on both the principles of proposed changes and Law Drafting instructions with key stakeholders,  including  representatives  of religious  organisations.  Consultation  on  the draft  Law  was  curtailed  in  order  to  try  and ensure that the amended Law could come into force in the shortest possible timeframe.

15

We are concerned that not all key stakeholders have had adequate opportunity to review and comment on the Draft Law prior to lodging.

See above.

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

1

In response to this report, the Chief Minister should publish the costs of registering a marriage under the existing system, and the new system which will be implemented once the Office of the Superintendent Registrar is required to be cost- neutral. In addition, the Chief Minister should publish the justification for requiring the Office to be cost-neutral. The Chief Minister should also publish the costs of registering a birth or a death under the existing system and the new system. If there is a change he should justify this change.

CMD

Accept

Information  about  existing and  new  costs  will  be published.

All  cost  increases  will  be justified. As increases will be more  that  2.5%,  the agreement of the Minister for Treasury  and  Resources  will be sought.

To coincide with Appointed Day Act

2

We recommend that the Draft Law should be amended to require civil celebrants to be qualified when delivering certain types of ceremony (e.g. humanist). The Panel has lodged an amendment on this issue.

CMD

Accept

As  per  previous  responses provided to the Panel during its  review,  this  concern  had been identified and was to be addressed  via  secondary legislation.  It  is,  however, now a requirement in primary Law,  as  per  the  Panel's amendment  to  P.91/2017, which  was  adopted  by  the States  on  1st  February  2018

N/A part of primary Law

(P.91/2017 Amd.(2)).

3

The Draft Law should be amended to protect buildings owned by, used by, or in trust of, religious organisations who object to same- sex marriage on the grounds of their religious conviction, and who may be required to permit the solemnisation of same-sex marriages and wedding receptions for same- sex couples. The Panel has lodged an amendment on this issue.

CMD

Accept in part

It  is  acknowledged  that  it would  be  appropriate  to provide limited protections for church halls and similar, but this  does  not  include  all buildings owned by religious organisations.

The   Deputy  Chief  Minister lodged the 3rd amendment to P.91  (P.91/2017 Amd.(3))  to address  this  issue.  This amendment  was,  however, subsequently  withdrawn with the Assembly's agreement.

Options for resolution to be con-

sidered prior to enactment of amended Law

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

This  matter  will  be  given further consideration prior to enactment of amended Law.

4

The Law should be amended so that a person who, on the basis of their firmly-held religious belief or conviction, objects to same-sex marriage, cannot be compelled to provide goods or services in relation to a same-sex marriage or any social event or function associated with such a marriage. The Panel has lodged an amendment on this issue.

CMD

Reject

The  Scrutiny  Panel's proposed  amendment, introducing  a  no  compulsion clause,  was  rejected  by  the Assembly.

N/A

5

We did not address the concept of reasonable accommodation in the workplace, because it was not within the scope of the Draft Law. However, this is an important issue and the Chief Minister should, in response to this report, set out what work he will undertake to address it.

CMD

Reject

It is not clear how this can be achieved, given that the States Assembly rejected the Panel's proposed  no  compulsion clause.

N/A

6

The Draft Law should be amended to require the Superintendent Registrar to consult with the Island's main religious organisations on what religious content must or must not be permitted in a civil marriage ceremony. The Superintendent Registrar should then issue detailed guidance on this topic for the avoidance of doubt. The Panel has lodged an amendment to this affect.

CMD

Reject

The  Panel's  proposed amendment,  introducing  a requirement  to  consult appropriate  religious authorities was rejected.

N/A

7

The Chief Minister should report back to the States Assembly before the Appointed Day Act for the Draft Law and confirm that there are no outstanding inaccuracies, typographical errors and spelling mistakes in the Draft Law. If there are outstanding issues, the Chief Minister should bring forward amendments to correct such matters.

CMD

Accept

–

To coincide with Appointed Day Act

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

8

In response to this report, the Council of Ministers should commit publicly to ensuring that all key stakeholders have the opportunity to review and comment on a proposed final version of a Law prior to lodging.

CMD

Reject

The copy of the draft Law, as amended, will be circulated to stakeholders  for  information. Some  of  those  stakeholders may  choose  to  comment  on that  draft.  Given,  however, that  the  Assembly  have adopted  the  draft  Law,  it  is not clear how those comments can  be  considered –  unless they  relate  to  processes  that are not a matter for the Law.

N/A

9

The rules governing the process for legislative scrutiny should be reformed so that draft Laws are subject to legislative scrutiny and that sufficient time is allowed for the process to be completed.

PPC

N/A

Legislative scrutiny is a vital and  necessary  function.  The review  of  the  Marriage  and Civil  Status  Law  highlights the  need  to  reform  the processes.

N/A