Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): Joining us via Zoom are Michael Foster, who is head of civil law reform at the Department of Finance and Martin Tyrrell, who is policy adviser in the same team. Welcome to you both. Michael or Martin, do you want to give us a really brief update on where this legislation is, please?

Mr Michael Foster (Department of Finance): Sure. I do not propose to overly rehearse the paper that we sent to you. We last spoke to you in April and outlined the general policy proposals. Since then, the Minister agreed to take a paper to the Executive asking her ministerial colleagues to agree the policy. Members will recall that the proposals centred around two main areas, those being to bring belief marriage within the statutory framework and to raise the minimum age of marriage and civil partnership from 16 to 18. That paper also sought approval to begin drafting a Bill. That paper was circulated for comment to Ministers back in May, and we had hoped that it would be considered at the Executive before the summer. However, perhaps due to the general election and other factors, the paper did not make the agenda until 26 September. It has subsequently been agreed by the Executive, so I am pleased to update members that the Office of the Legislative Counsel (OLC) has received full instructions on the Bill. We have been in touch with the draftsperson, and drafting is under way. We hope that that will be completed in the first part of 2025, with a Bill being introduced when it is ready for that stage. I do not propose to take up too much more time on an opening statement, Chair. I am happy if you want to proceed to questions.

The Chairperson (Mr O'Toole): Thank you very much, Michael. That was admirably brief. You get a gold star and definitely a Christmas card from the Finance Committee [Laughter.]

The Committee Clerk: A Christmas email, Chair.

The Chairperson (Mr O'Toole): A Christmas email, yes. We are the Finance Committee after all — "Caesar's wife" etc.

As instructions have gone to counsel and the drafting of a Bill will be complete by, you hope, early 2025, is the broad intention to introduce the Bill before summer recess 2025?

Mr Foster: That is our hope, Chair. At the moment, the Bill is a year 2 Bill, which, technically, makes it a 2025-26 session Bill, but, having spoken to OLC about it, we are hopeful that a Bill will be ready for introduction before the summer.

The Chairperson (Mr O'Toole): This is a relatively open question: the Committee has a very busy schedule, but, were there availability in any of our evidence sessions, to whom do you, as the lead officials, think that we should listen in pre-legislative scrutiny?

Mr Foster: I think that it would be right for the Committee to take cognisance of those who responded to the departmental consultation. For example, some of the Church groups may well have an interest in the Bill, and there are belief bodies, including the humanist bodies, that will, doubtlessly, wish to provide evidence to you. Some of the local NGOs have a keen interest in the age of marriage. The Children's Commissioner, the Human Rights Commission and other such bodies have expressed a keen interest in the proposals on the age of marriage. Those are the main types of bodies, but I am more than happy to liaise with the Committee on the broader tranche of people and bodies that gave constructive evidence to the consultation that we conducted.

The Chairperson (Mr O'Toole): On a separate but related point in your bit of the Department, remind us where we are on the report on the operation of the 2022 Defamation Act.

Mr Foster: The report on the Defamation Act was published. Martin will correct me if I am wrong, but it was laid before the Assembly in, I think, June in order to meet the statutory deadline. That report has been circulated to all of those who participated in the private Member's Bill, which you will recall from the previous mandate, Chair. We are keeping a watching brief on things and keeping an eye on developments elsewhere.

The Chairperson (Mr O'Toole): One of the main thrusts of that report is that it is slightly too early to tell.

Mr Foster: Yes, that is right. The legislation has been in force for just over two years. Given the nature of defamation cases, it takes some time for those to filter through. Therefore, it is difficult to gauge with any degree of certainty how the Defamation Act 2022 has landed in practical terms, although we got a small sense of that during the work that we did on the report. We will not have a clear idea of that for a year or two years, or maybe even longer.

The Chairperson (Mr O'Toole): Finally, last week, we received a briefing from Professor Latu and her colleague on the research that had gone into gender recognition and the possible reform of gender recognition certificates. Is that an active work programme, or is that research simply sitting in the Department awaiting a policy intention?

Mr Foster: I would not go so far as to say that it is just sitting in the Department; neither is it an area that is top of our current workload list. That said, it is very much an area on which we are keeping a watching brief. The key driver for us in policy development is that we have a new Labour Government in place, and they have expressed a different view of gender recognition reform from the Conservative Government previously in power. I met colleagues in the relevant English Department last month.

The Chairperson (Mr O'Toole): Which Department is that? Is it the Department of Health and Social Care or the Ministry of Justice?

Mr Foster: No, it is the Government Equalities Office, which is part of the Cabinet Office. Understandably, because the Ministers there are relatively new in post, the team is still probing with their Ministers the nature and scale of what policy development looks like. There was a clear outline in the Labour manifesto on the gender recognition process: it wanted to modernise it, simplify it and make it less intrusive. We are liaising with colleagues in England and Wales to see how that will manifest itself in concrete policy proposals. At that point, we will, of course, provide further advice to the Minister.

The Chairperson (Mr O'Toole): That is great. Thank you.

Ms Forsythe: Thanks, Michael and Martin, for joining us. Since the Minister assumed office, what engagement has the Department had with Churches and faith-based organisations on the proposal to raise the minimum age of marriage?

Mr Foster: We have not had any additional meetings with the Churches. At the request of the Northern Ireland humanist body, the Minister met the humanist organisations. During the consultation process, we got a sense from the Churches that they understood and were relatively comfortable with the idea of raising the minimum age of marriage from 16 to 18. Martin may be able to give specific examples of the main Churches that responded to the consultation.

Mr Martin Tyrrell (Department of Finance): We had responses from the Church of Ireland, the Catholic Church and the Presbyterian Church. The Catholic Church and the Church of Ireland were supportive of increasing the minimum age to 18. From memory, the Presbyterian Church had some reservations to do with the fact that the proposed minimum age would be higher than the age of consent. However, the other two Churches were supportive.

Ms Forsythe: Thank you. In practice, will the Bill reflect some of the concerns raised around creating a disparity between the age of consent and the age of marriage in the context of religious belief and freedom?

Mr Foster: No is the simple answer. We have conducted very careful analysis of the various arguments raised during the consultation. The fact is that 97% of consultees were in favour of raising the age to 18. That is very much in line with the direction of travel in international best practice and the developments on these islands: England and Wales raised the minimum age to 18 quite recently, as did the South. The Department's view, which the Minister shares, is that it is right to raise it from 16 to 18.

The Chairperson (Mr O'Toole): OK. I have one brief question. What is at the root of the concern? Is the belief that the age of consent should be the same as the age of marriage based on a principled reason? I am intrigued and would like to understand what the rationale is there.

Mr Foster: I do not think that any of the consultees during the process were advocating that we look again at the age of consent with a view to raising it. Obviously, reservations were expressed. Although a reason was not specified, it probably relates to a situation where a pregnancy occurs in teenage years and the fact that there might be some preference for that to be undertaken in the context of marriage. Those types of arguments were very much outweighed by the counterarguments and concerns raised by consultees about marrying at 16 and 17 years of age.

The Chairperson (Mr O'Toole): OK. That is useful.

Mr Carroll: I have a quick comment on gender certificates and gender recognition. We had a really excellent presentation last week, and I am sure that you paid attention to it. It talked to the problems, difficulties and barriers faced by the trans community and the difficulties with and slowness of the current system. It also pointed to the fact that there is a self-ID system in the South of Ireland, and, lo and behold, the sky did not fall in. I want to put on record that the presentation was very useful. Hopefully, it forms part of the Minister's thinking on any changes, including, I hope, a self-ID system.

The Chairperson (Mr O'Toole): OK. Those points are on the record. No one else wishes to come in. Thank you, Michael and Martin. That was really helpful. We appreciate your coming in and giving us an update. We hope to see that draft Bill sooner rather than later. Whether on defamation, gender recognition or other civil law matters, we appreciate the really important work of your small team. Thank you.