Official Report: Minutes of Evidence

The Deputy Chairperson (Ms Forsythe): I welcome Mr Michael Foster, the head of the civil law reform division in the Departmental Solicitor's Office (DSO), and Dr Martin Tyrrell and Mr Maurice Dowling, who are policy advisers in the civil law reform division in DSO.

I invite you to make an opening statement, Michael.

Mr Michael Foster (Department of Finance): Thank you, Deputy Chair and members, for the opportunity to assist the Committee in its scrutiny of the Marriage and Civil Partnership Bill following its Second Stage on Monday. From previous oral briefings, the Committee will be familiar with the Bill's policy intentions. We have provided an updated paper for today's session that, we hope, you will find useful. I intend to make only a short opening statement.

The Bill does two main things. First, it brings non-religious belief marriage fully within the statutory framework of the Marriage (Northern Ireland) Order 2003, placing belief bodies on the same statutory footing as religious bodies for the purposes of registering officiants and granting temporary authorisations. Secondly, the Bill raises the minimum age for marriage and civil partnership to 18 without exception and introduces an offence aimed at conduct intended to cause a child to enter into a marriage. Thirdly, it updates overseas recognition rules and includes necessary consequential and savings provisions.

To assist the Committee's scrutiny, I will briefly outline the key elements of the Bill. Clauses 1 to 4 deal with belief marriage. The Bill implements the direction of travel that followed the court cases in 2017 and cements the temporary arrangements that are currently in place. It amends the 2003 Order by inserting after "religious" the words "or belief" into the relevant articles in that Order and enables belief bodies to nominate officiants on the same basis as religious bodies. The Bill also includes regulation-making powers to prescribe qualifying requirements, thus ensuring appropriate safeguards. That aspect will involve further policy development and a further assessment of the need for and scope of such additional requirements.

Clauses 5 to 7 deal with the minimum age for marriage and civil partnership. The Bill introduces a clear and universal minimum age of 18 for both.

That will align us with several neighbouring jurisdictions and international safeguarding standards. Clause 6 further strengthens protections by creating an offence that targets conduct intended to cause a child to enter into a marriage.

Clauses 8 to 10 deal with overseas recognition, consequential amendments and savings provisions. We have provided the Committee with a delegated powers memorandum that outlines the limited delegated powers that we propose to place in the Bill, the main one of which is the qualifying requirements powers, which, as noted, may be employed to help future-proof the 2003 framework if that is deemed to be necessary. If regulations are proposed, they will be subject to scrutiny by the Committee and debated in the Assembly using the affirmative resolution procedure. The consequential power in clause 12 is standard for such Bills, with the affirmative resolution procedure applying if primary legislation is amended and the negative resolution procedure applying otherwise.

On implementation, the General Register Office (GRO) is responsible for the operational aspects of the marriage law system, and it will update the relevant forms, guidance materials and IT systems to reflect the revised statutory framework, with those adjustments expected to be manageable within existing resources, representing a continuation of the processes already operating under the 2003 Order and under temporary arrangements.

In summary, the Bill places belief marriage on a clear statutory footing and raises the minimum age for marriage and civil partnership to 18, thus strengthening safeguarding. My colleagues and I are happy to take whatever questions the Committee may have at this stage.

The Deputy Chairperson (Ms Forsythe): Thank you for briefing us today and throughout the process. You have kept us up to date on how the Bill has been progressing. We are currently operating under temporary arrangements following the Smyth judgement, and it is my understanding that the legislation will put those arrangements into the framework of the 2003 Order. What legal risks or gaps would exist if you were to continue in that way without bringing in the temporary arrangements under the Order?

Mr Foster: The legal risk is that, over time, we would not have a firm statutory framework in place. It could, in theory, be subject to challenge in due course. The temporary arrangements have been in place for close to seven or eight years. They have worked effectively. We have not received any particular concerns about the nature of the status of belief marriage. The courts, particularly the High Court, were clear that action needed to be taken. The Court of Appeal, although it took a slightly different approach to the issue, also took the view that humanist marriages should be able to be performed in this jurisdiction. Since then, we have had over 5,000 such marriages without any concerns having been raised.

The Deputy Chairperson (Ms Forsythe): It is as simple as including the temporary arrangements that already exist in the legal framework in the Bill to future-proof and secure the process.

Mr Foster: Pretty much, yes. It is really about cementing what is already in place. From a process point of view, anybody who has had a humanist marriage in the past few weeks will notice no difference when the legislation comes into operation. It will be the exact same process.

The Deputy Chairperson (Ms Forsythe): In the Second Stage debate, the Minister of Finance said something that I was thinking about raising: he referenced his consideration of the removal of the ability to profiteer from the solemn part of the ceremony. Are the Department and the Minister developing something to remove that? Will an amendment be tabled to the Bill? I consider there to be an opportunity to do that. When the Minister mentioned that, I wondered what work was being done.

Mr Foster: The simple answer to that is that the statutory framework already provides for that. The Marriage (Northern Ireland) Order 2003 contains specific provision that, if an officiant is deemed to be operating for the purposes of profit and gain or is running a business of marriage, their registration will be cancelled by the Registrar General. It is therefore already in place.

The Deputy Chairperson (Ms Forsythe): For marriage but not on the belief side. Does there need to be an amendment tabled to cover both?

Mr Foster: It will apply equally to religious marriage and belief marriage.

The Deputy Chairperson (Ms Forsythe): When they have equal status, the same provision will therefore apply.

Mr Foster: The same provision will apply, yes. Essentially, we are updating the 2003 Order. For every time that you see in the 2003 Order the word "religious", it will now be replaced by "religious or belief". What applies currently to religious bodies will apply in future to belief bodies. The issue of profit and gain is a tricky one, because what one person might think is profit and gain might be another person's due compensation for work that they have undertaken with a couple to carve out a particular ceremony. That is probably slightly more apparent in the case of a belief marriage, where, typically, it is not what you find with many religious marriages, where the officiant already knows the couple and has spent a lot of time with them in other ways. In belief scenarios, it tends to be the case that a belief officiant or celebrant will get to know the couple in advance through a number of meetings to help get a sense of what their philosophical beliefs are and of what their understanding of a marriage ceremony is. The officiant or celebrant will then present a bespoke ceremony on their behalf.

The Deputy Chairperson (Ms Forsythe): That is useful. Thank you very much.

Mr Tennyson: During the Second Stage debate, it was said that no-fault divorce will not form part of the Bill: why is that the case? When are we likely to see legislation to introduce no-fault divorce?

Mr Foster: I think that the Minister made it clear on Monday, but I want to make it clear that there was never an intention for no-fault divorce to form part of this Bill. It is a separate work steam and one on which, as members will know, we consulted last year between June and the end of October. The Minister considered the outcome of the consultation and brought policy proposals to his ministerial colleagues. He covered that at Second Stage. To an extent, that issue is more in the political space, so I do not want to get into too much detail about it, but, at this stage, it is looking particularly unlikely that divorce reform will happen during this mandate.

Mr Tennyson: When would you need a decision from the Minister for the Executive in order for that to be achievable during the mandate?

Mr Foster: I will speak in general terms, if that is OK.

Mr Tennyson: Yes.

Mr Foster: Typically, it takes a minimum of three months to draft a Bill. We are at the end of April, and, as yet, we do not have Executive approval to proceed with the policy that the Minister outlined. The Speaker has indicated that legislation would need to be introduced before the summer to stand a realistic chance of completing the legislative process during the mandate. Taking a step back, we are now past the point at which the drafting of a Bill would have needed to be under way for it to stand a chance of being introduced in this mandate.

Mr Tennyson: That is helpful, Michael. Thank you.

Another issue that is not dealt with in the Bill, which, from my perspective, is a missed opportunity — I appreciate that other members may disagree — is the recognition of independent celebrants. When we talk about independent celebrants, we often get into the space of talking about how to regulate and protect against profiteering, but there is a more fundamental argument to be made, which is that not everybody fits neatly into the category of wanting either a belief marriage or a religious ceremony. Lots of people, particularly same-sex couples, may be of faith and be affiliated to a mainstream Church that will not recognise and solemnise their marriage. They are not humanists, so a humanist ceremony is entirely inappropriate for them, yet their faith group will not marry them. Even if it is not the Minister's intention to recognise independent celebrants in the Bill, is any work being done to monitor developments in England and Wales or to create opportunities to recognise independent celebrants in future?

Mr Foster: There are probably two separate aspects to that. First, belief marriage is not confined to humanist marriage: belief marriage is a broader subset of marriage. In the circumstances that you describe, there may well be other groups that will offer a slightly different outlook. To an extent, we have seen examples of that. Some organisations that have registered through the GRO offer what you might describe as an atypical religious outlook, but they offer something that can combine aspects of that.

There is therefore an element of that already in the system.

Having independent celebrants is, however, untested policy on these islands and, by and large, throughout the world. We have been and are keeping an eye on developments in England and Wales, bearing in mind that the report on wedding law reform was a Law Commission report. The British Government have indicated that they want to reform in that area, but they have not said what that reform will look like, and they had indicated that they would consult on it during the early part of 2026. As yet, we have not seen a consultation emanate from the British Government, but we will keep a careful eye on how policy develops in that jurisdiction.

The British Government are coming at it from a pretty different perspective from ours, though. They have a different system of marriage law where it is the building that is registered as opposed to the officiant. Humanist marriage has not been recognised in England and Wales, so, again, their starting point differs from ours. Broadly speaking, the Minister has an open mind on that issue. He also recognises, however, that there are difficult regulatory hurdles to overcome on the issue of profit and gain, and there will potentially be unintended consequences if we open up the market, if you like, to independent celebrants to operate from a business perspective, because it would not really be fair not to permit religious and belief bodies to operate on a profit basis. We would need to think through the ramifications of that carefully before we introduced legislation.

Mr Tennyson: That is helpful, Michael.

Mr Kingston: Thanks for your attendance today. A marriage should be a joyful occasion, and, by and large, it is, but it is also a solemn occasion. A serious and lifelong commitment is being made. The wording of the Bill is very broad. I appreciate your point that the Bill is updating the 2003 Order. Clause 3 states:

The first covers religious bodies, while the second covers belief bodies. A belief body is therefore just an organised group of people who "uphold or promote philosophical beliefs". That is extremely broad. You referred to the Registrar General. I know that the situation differs in different parts of the UK and Ireland. I do not want to give an example, but there could be quite extreme groups that could seek to hold marriages in a way that undermines the solemnity and seriousness of marriage. The definition of who can conduct marriages is so broad.

Mr Foster: What I would say to assuage some of those concerns is that the marriage framework under the 2003 Order already provides powers for the Registrar General to cancel the registration of anybody who is deemed not to be a fit and proper person. I think that that has been employed — if not in this jurisdiction, certainly in comparative jurisdictions — to nip in the bud any applications for registration from completely random bodies that are trying to claim that they are religious. One example is the rather infamous case of — I may not get the terminology absolutely correct, and I apologise in advance if I do not do so — the Church of the Flying Spaghetti Monster. That body's idea of a marriage ceremony would not necessarily fit in with the vast majority of people's views on the issue. Its application was not permitted, and it would not be permitted under the Bill. There is no promotion or upholding of any particular philosophical belief associated with that group. There are therefore safeguards in place already. Given that, in theory, under the temporary arrangements, those types of belief bodies could already have attempted to submit applications for registration, there is not an awful lot of concern from the Department that that is likely to happen. If it does, the tools are there already for the Registrar General to refuse such applications.

Mr Kingston: Who is the Registrar General in Northern Ireland? Is that a title?

Mr Foster: "Registrar General" is a title. The current Registrar General is also the chief executive of the Northern Ireland Statistics and Research Agency (NISRA), Dr Philip Wales, whom you will know well. The day-to-day operation of the marriage system falls to the Deputy Registrar General, who has also appeared before the Committee. The staff are in a small unit in the GRO.

Mr Kingston: Your briefing paper explains that the Bill will raise the minimum age to 18. In Scotland, for example, it is still 16.

Mr Foster: It is, but Scotland is consulting on raising the minimum age to 18.

Mr Kingston: OK. For my understanding, if someone in Scotland or, indeed, somewhere else where it is legal to marry at a younger age were to marry at 16 or 17 in that jurisdiction and then to move to Northern Ireland, would that have any impact on the status of their marriage?

Mr Foster: The simple answer is no. The caveat to that is that our legislation will prevent a 16- or 17-year-old who is resident here from going to Scotland simply to marry and then come back here.

Mr Kingston: Good.

Mr Foster: If, however, two 16- or 17-year-olds who were domiciled in Scotland and, for whatever reason, were to get married in Scotland and then move here before they were 18, we would still recognise their marriage.

Mr Kingston: Right. How will the Bill prevent two 16- or 17-year-olds here from going to Scotland to get married?

Mr Foster: Anyone who is ordinarily resident in this jurisdiction cannot do that. Their marriage will not be recognised under our law.

Mr Kingston: Would it be stopped in Scotland? Would somebody there check where the people were normally resident?

Mr Foster: Probably. I cannot speak for the law and practice in Scotland. Currently, a 16- or 17-year-old can get married in Scotland without parental consent. Scotland has an even more generous system for 16- and 17-year-olds than we do.

Mr Kingston: Some countries permit marriage at a younger age, such as 14 or 15.

Mr Foster: Such marriages would still be recognised in this jurisdiction under our common law.

Mr Kingston: Right. It would therefore be up to the country in question to prevent someone from going there to get married.

Mr Foster: It would.

Mr Kingston: For example, someone could be trafficked at a young age for the purpose of being married in a foreign country and then be brought back here.

Mr Foster: Anybody under 18 who is ordinarily resident in this jurisdiction will not be able to get married anywhere in the world and have their marriage recognised in this jurisdiction.

Mr Kingston: Should someone be coerced into an early marriage elsewhere, there may be a role for the authorities here to play in being aware that that is happening.

Mr Foster: No evidence has been presented to us that that is an issue in this jurisdiction.

Mr Kingston: OK. Thank you.

Mr Carroll: My questions are on belief bodies. Humanists are not mentioned in the Bill, I think, but it is implied that that is the main organisation to which the Bill relates. In response to one question, you said that there is a broader subset of belief organisations: do you have a rough idea of how many there are?

Mr Foster: Four bodies have registered with the GRO under the temporary arrangements. The Northern Ireland Humanists is the main one. It has conducted something like 96% of the belief marriages that have taken place in this jurisdiction to date. There are three other bodies that are much smaller.

Mr Carroll: Are they humanists of a different persuasion?

Mr Foster: Those other three bodies are. In addition, a couple of bodies that define themselves as "spiritualist" have registered relatively recently with the GRO on the religious side. They have been subject to a degree of criticism from humanists, which, I am sure, the Committee will get to hear about in due course.

They would not really strike you as being religious in the common sense of the word. They may redefine themselves as "belief bodies" in due course, but, at this stage, we do not know.

Mr Carroll: So the 96% is the humanists, and the other 4% is the spiritualist organisations.

Mr Foster: No: the other 4% of belief marriages are conducted by the three smaller humanist groups.

Bear in mind that religious bodies come in all shapes and forms. I have a list, should members wish to see it, of over 120 religious bodies in this jurisdiction.

Mr Carroll: Maybe another time. Thanks.

My other question is for clarification. Under the Bill, if people were to have a humanist ceremony, would they have to go to the registration office at City Hall, for example, beforehand?

Mr Foster: No.

Mr Carroll: They would not. Do they have to do so currently?

Mr Foster: No.

Mr Carroll: OK. There will therefore be no change, because that requirement does not exist.

Mr Foster: It has not done so since the court case in 2017. That was the situation before the courts intervened.

Mr Carroll: There will be no change, because the change was made in 2017.

Mr Foster: Yes.

Mr Carroll: This is not really about the Bill, but is DSO or the Minister looking at gaps in legislation for humanist ceremonies for deaths?

Mr Foster: The simple answer, which is the only one that I can give you, is that that does not fall to my team to look at. I am not aware of any ongoing work being done on that.

Mr Carroll: OK. Thanks.

The Deputy Chairperson (Ms Forsythe): Michael, you said that you have a list: will you share that list with the Committee?

Mr Foster: Absolutely.

The Deputy Chairperson (Ms Forsythe): It would do us no harm to have it as evidence as we scrutinise those bodies. It would be really helpful.

Mr Foster: That is no problem.

Miss Hargey: I have just a quick question, Michael. You said that having independent celebrants is an untested policy area. You talked about what is happening across the water, but I presume that you are looking at the South as well, because we are on an island, to make sure —.

Mr Foster: When we met our counterparts in Dublin less than a month ago, they indicated that there are no plans for reform in that area.

Miss Hargey: When developing policy, however, are you looking North/South as well as east-west?

Mr Foster: Yes.

The Deputy Chairperson (Ms Forsythe): Michael, while we have you here, I will ask you about something that I raised with members at the start of our meeting. I tabled a question for written answer about the extension of Jade's law to here: has the work on that fallen to your team?

Mr Foster: It has.

The Deputy Chairperson (Ms Forsythe): The Minister said that he had asked the team to start a little bit of work on that. Are you in a position to say anything about it?

Mr Foster: We have been aware of the matter for a while. We will meet the Minister on Monday to discuss it further, so I am limited in what I can say at this stage, but it is very much on our radar.

The Deputy Chairperson (Ms Forsythe): That is good to know. We are keen to be kept up to date on that.

Mr Tennyson: In answer to Brian's question, Michael, you said that, if married young people domiciled in other countries were to move to Northern Ireland, their marriage would, under common law, still be recognised. I just wanted to ask —.

Mr Foster: That is only the case if it is legal in that country.

Mr Tennyson: In your development of policy, what consideration was given to whether that should change? For example, somebody may move to Northern Ireland from a country where marriage is permitted at 15. I appreciate that this is tricky legal territory, but what consideration was given to making a legislative change that would mean that such arrangements would not be recognised?

Mr Foster: You are right: it is particularly tricky. Dealing with the law of a different country brings with it all sorts of difficult issues around competence and so on that the Assembly would have to address before it could legislate in that area. There has been no evidence of any 14- or 15-year-olds from countries that permit marriage at that age coming to live in this jurisdiction, however. We are alive to the fact that, a short boat trip away, we have a neighbouring jurisdiction that still permits 16- and 17-year-olds to marry, so, if we were to step in and say that we will not recognise marriages of that nature, that would create particular problems. The situation in Scotland could well change in the coming years, however, given the Scots' consultation on the minimum age for marriage, which closed yesterday. We will keep a close eye.

Mr Tennyson: That is helpful. Thank you.

Mr Carroll: My question draws on non-molestation orders (NMOs) more generally. We raised that issue briefly with you the previous time, Michael. Will you outline what policy changes the Minister may or may not be considering making? Can you give us a sense of what power the Minister has over NMO legislation? I think that all powers are devolved, so it is within his remit. Is that correct?

Mr Foster: The substantive law for non-molestation orders falls to us. It is more historical than anything else. We have powers under the Family Homes and Domestic Violence (Northern Ireland) Order 1998, but domestic violence and abuse policy sits with the Department of Justice more generally. We have policy responsibility for the specific issue of non-molestation orders, however.

Mr Carroll: Are you aware of the powers that the Minister has?

Mr Foster: The Minister could amend the substantive law, if he were so minded.

Mr Carroll: The law is the Order that you mentioned. What is its title again?

Mr Foster: The Family Homes and Domestic Violence (Northern Ireland) Order 1998.

Mr Carroll: The Minister could amend that, if required. What form of legislation would be required to do that?

Mr Foster: It is certainly outside the scope of the Bill.

Mr Carroll: I appreciate that, but could the 1998 Order be amended by way of a statutory rule? Would it have to be amended by primary legislation?

Mr Foster: It would have to be done through a Bill. A non-molestation orders is one protection that is available to people who are subjected to domestic violence and abuse. Separate to that, the Department of Justice is developing proposals on other protections. NMOs form part of the armoury of available protections.

Mr Carroll: Thanks.

The Deputy Chairperson (Ms Forsythe): Thank you, Michael, and your team for coming here today. We look forward to progressing the legislation.