Earlier this year I blogged about the policy document on the ‘next steps’ for introducing opposite sex civil partnerships, focusing on the provisions affecting religion: Religion and Civil Partnerships
One of the statutory instruments have now been published in draft form. Part 3 of the Civil Partnership (Opposite-sex Couples) Regulations 2019 provides for ‘Religious Protection’: http://www.legislation.gov.uk/ukdsi/2019/9780111190784/part/3
Here’s a quick run down of what is proposed:
• Amendments to Civil Partnership and Marriage Laws
Clauses 7 and 8 amend existing laws so to allow for religious premises to be approved for civil partnership formation. Religious premises can be approved in relation to civil partnerships generally; only in relation to civil partnerships formed by two people of the same sex; or only in relation to civil partnerships formed by two people of the opposite sex.
Clause 9 interestingly provides for what the explanatory notes refer to as ‘a new “non-compulsion” clause’. This would repeal section 6A (3A) of the Civil Partnership Act 2004 which reads:
‘For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so’.
With the following provision:
’30ZA.—(1) A protected person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement) to—
(a) seek or consent to the approval of religious premises for the purposes of section 6(3A)(a)(4),
(b) allow religious premises to be used as the place at which two people register as civil partners of each other under this Part, or
(c) provide, arrange, facilitate, participate in, or be present at—
(i) an occasion during which two people register as civil partners of each other on religious premises under this Part, or
(ii) a ceremony or event in England or Wales to mark the formation of a civil partnership,
where the person does not wish to do things of that sort in relation to civil partnerships generally, or those between two people of the same sex, or those between two people of the opposite sex’.
Subsection 2 defines ‘protected person’ as meaning ‘a religious organisation, a constituent body or part of a religious organisation, or a person acting on behalf of, or under the auspices of, such an organisation, body or part, but does not include a civil partnership registrar’.
This reference to a civil partnership registrar recognises the Ladele judgment. Section 29 of the Civil Partnership Act 2004 defines ‘A civil partnership registrar is an individual who is designated by a registration authority as a civil partnership registrar for its area’.
It might be thought therefore that such a person would fall outside the definition of ‘protected persons’ generally in that that definition already makes it plain that it includes only those who work on the behalf of or under the auspices of the religious organisation and relate entirely to religious premises.
However, ministers of religion can apply to their local authorities to become civil partnership registrars. (They cannot apply to be marriage registrars because there is disqualification for ministers on acting for any appointment in a registration office under Regulation 5 of the Registration of Births, Deaths and Marriages Regulations 1968.) This means that once a minister of religion becomes a civil partnership registrar then they personally cannot rely upon the non-compulsion clause.
More generally, however, the need for and framing of this new clause is suspect. It seems to be both a very broad exception for religious organisations and a conscience clause for those who work for them / under their auspices. This is rather cumbersome with religious organisations being defined as a person.
Indeed, other than the stipulation that this protection overrides any contract, statutory obligation or legal requirement, it is questionable whether there has been any increase in legal protection.
It is striking that again the clause can be used in respect to objections to civil partnerships generally, same sex civil partnerships or opposite sex civil partnerships. If this needs to be said, it is questionable whether a brand new detailed ‘non compulsion’ clause is needed to say it.
• Amendments to Equality Laws
Clause 10 amends the Equality Act 2010 to state that there would be no breach of that Act if someone does not allow religious premises to be used as the place at which two people register as civil partners or does not provide, arrange, facilitate or participate in, or is not present at an occasion during which two people register as civil partners.
A new no compulsion clause is also added to Part 6A of Schedule 3 to the Equality Act 2010, which provides that there is no compulsion of solemnise same sex marriage and a refusal to do so would not constitute discrimination in the provision of goods and services
Clause 11 amends the exception that allows discrimination when the employment is for the purposes of an organised religion (found in schedule 9 to the Equality Act). The amendment would add a new qualification that organised religions could apply: ‘a requirement not to be the civil partner of a person of the opposite sex’.
In my previous post I struggled to see why further protections were needed for opposite sex civil partnerships and why the same sex marriage legislation seemed to be the template for what was planned rather than just using the provisions that already applied in the Civil Partnership Act 2004 for opposite sex couples.
What is proposed in the draft statutory instruments do not seem to go as far as the ‘Next Steps’ paper suggested. Some of the provisions, most notably the amendment to schedule 9 to the Equality Act are necessary.
However, it remains questionable whether the further articulation as found in ‘the new “non-compulsion” clause’ is necessary. The move in language towards ‘persons’ does not seem to represent a significant shift in protection. Despite the language used, the protection is addressed to religious organisations and those who work for them or under their auspices and relate entirely to religious premises.
It remains unclear why the simplicity currently provided in the Civil Partnership Act will no longer be fit for purpose.