Although the legislation allowing civil partnerships to take place on religious premises is due to come into force on Monday 5/12/2011, the law is not yet entirely safe from being annulled. The change in the law allowing civil partnerships to take place on religious partnerships is part of the Equality Act 2010 but it is being implemented through Statutory Instrument 2011/2661. Bizarrely, the statutory instrument comes into force on 5/12/2011 but this is before the end of the period for which objections could be made to it.

How the legislation is jeopardised

The Equality Act 2010 was put forward by the former Labour government but the implementation of the part on civil partnerships on religious premises has been proposed by the current Conservative and Liberal Democrat government, meaning that it has had support of all the three main parties in parliament. It may be this widespread support that has led to the statutory instrument being given an implementation date ahead of its passage through parliament.

The attempt to annul the statutory instrument is being led by Detta O’Cathain, a Conservative baroness in the House of Lords, who has opened the procedure to state her opposition and force a debate and vote. This procedure is called “prayed against”. See http://www.nayler.org/?p=468.

Additionally, Edward Leigh MP has issued an Early Day Motion that also attempts to halt the legislation in the house of commons. He told The Catholic Herald: “These regulations don’t do what the government promised which is to protect churches that do not want to register civil partnerships. It is an issue of the utmost seriousness. Yet the commons currently isn’t even being given a chance to debate them.

“We’ve seen all this before. The Sexual Orientation Regulations went through parliament without proper scrutiny and they closed down our adoptions agencies as a result. If the government cares anything about the churches, it will withdraw these regulations and think again.”

The EDM has been signed by nine MPs, all Conservatives. As well as Edward Leight, they are Mark Pritchard, Stewart Jackson, Andrew Turner, Laurence Robertson, Fiona Bruce, Julian Brazier, Peter Bone and Nadine Dorries.

Defence of the legislation

The defence of the legislation recently received a boost with a memorandum written by Scot Peterson, an Oxford academic. Scot Peterson’s memorandum has been written in direct response to a submission by Mark Hill, a top ecclesiastical lawyer. Mark Hill’s document was written in connection with submissions by three evangelical Christian organisations to the House of Lords Select Committee on the Merits of Statutory Instruments. His opinion says that members of the organisations would be exposed to litigation if they refuse to conduct civil partnerships, unless the regulations are annulled.

The document by Scot Peterson states that Mark Hill’s document has misinterpreted case law and makes contradictory claims. He concludes: “Neither the [Government Equalities Office] nor the legislature should cave in to these efforts. The regulatory scheme proposed and submitted to the legislature offers every protection to the Objectors which is available under English law and applicable human rights and equality laws. They should be permitted to go into force as planned.”

Church of England position

The Church of England has issued an opinion on the law, which states that any church wishing to carry out civil partnerships must apply to their General Synod for approval. Their statement suggests that they believe that their right not to have to conduct civil partnerships is sufficiently protected.

See http://churchofengland.org/media/1370209/gs%20misc%201005%20-%20civil%20partnerships%20in%20religious%20premises.pdf for the Church of England position.

Quakers keen to carry out civil partnerships

Quakers in Britain have welcomed the opportunity to register their premises for civil partnerships. Quakers recognise same sex unions as equal to those for different sex couples.

“Quakers are keen to hold civil partnerships in our meeting houses and we hope to work with these regulations,” says Paul Parker, recording Clerk for Quakers in Britain.

British Quakers made a decision at their yearly meeting in 2009 to recognise unions of same sex couples as marriage. “However,” explains Paul Parker, “we specify that such couples must have a civil partnership as we recognise such marriages are not recognised by the state as lawful at the present time. Thus we have encouraged and welcomed this ability to register civil partnerships on our own premises. In 1753 Quakers were given the right to conduct marriages in England and Wales. We welcome and cherish this privilege.”

Statutory instruments explained

Statutory instruments are a type of secondary (or delegated) legislation that are made by ministers (or occasionally by public bodies) under authority given to them by parliament in primary legislation. Parliament is required to approve or reject the statutory instrument but does not have the same opportunities to change or influence the document as it would have with primary legislation. Secondary legislation was first introduced as a means to stop acts of parliament becoming too unwieldy and to save time. It was also intended to allow the law to be changed without a whole new Act having to be passed.

According to a parliamentary guide to secondary legislation:

There are different levels of scrutiny applied to SIs that come before Parliament:

 Made – not laid and not subject to debate or voting (no scrutiny)

 Made – laid but not subject to further debate or voting (no scrutiny)

 Made – laid in draft but can be revoked if either House of Parliament votes against it (the negative procedure). Occasionally instruments are laid in draft and cannot be made if the draft is voted against within 40 sitting days

 Laid (normally after being made) and cannot come into force unless agreed to by both Houses of Parliament (or in urgent cases cannot remain in force after a specified period unless approved). This is the affirmative procedure. A higher hurdle is set for instruments under the affirmative procedure, when a positive decision is required in each House of Parliament (or in the case of SIs dealing with taxation, by the Commons only) before the instrument can become (or remain) law. Statutory Instruments, when they are considered by Parliament, must generally be accepted as laid or rejected outright. There is normally no mechanism by which Parliament can amend an SI or accept part of it.

For more information on this type of legislation and procedures and to see the context of this extract visit: http://www.parliament.uk/documents/commons-information-office/Brief-Guides/Delegated-Legislation.pdf.

SI 2011/2661 is in the third category of types of statutory instrument procedure described above.

Edit: 04/12/2011: for a Church of England vicar’s perspective on the Church of England memo, see Oliver Coss’s The Vicar of Purgstall blog.