Commons Library analysis: Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

This briefing paper deals with the position in England and Wales unless otherwise stated.

The Bill

The Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill (the Bill) is a Private Member’s Bill introduced by Tim Loughton (Conservative), who came fifth in the ballot for Commons Private Members’ Bills for the 2017-19 Parliamentary session. The Bill, as amended in Public Bill Committee, has Government and Opposition support.

The Bill would deal with the following matters:

• marriage registration;
• report on civil partnership;
• report on registration of pregnancy loss; and
• coroners’ investigations into stillbirths.

As well as this longer paper which covers the whole Bill, four separate papers are available for those who are only interested in specific aspects:

• Mothers' details on marriage certificates (Number 07516);
• The future of civil partnership (Number 07586);
• Registration of stillbirth (Number 5595); and
• The investigation of stillbirth (Number 01867).

Mothers’ details on marriage certificates

In England and Wales, the law requires all marriages to be registered once they have taken place. The system for registering marriages is currently paper-based. The prescribed particulars to be registered for a marriage include details of the father but not the mother of the bride and groom.

There have been calls from both within and outside of Parliament for mothers’ details to be included in marriage registration.

The Bill would enable the Secretary of State to make regulations with the intention of changing the way in which marriages are registered in England and Wales. There would be a move from a paper-based system to registration in an electronic register. The Bill would enable changes to be made to the register entry and would facilitate inclusion of mothers’ details (among other things). The Government considers that this would create a more secure system for the maintenance of marriage records.

Two other Private Members Bills, in similar terms to one another, have been introduced in the current Parliamentary session.

Civil partnership for opposite sex couples

In England and Wales and Scotland, same sex couples have the option to marry or to register a civil partnership if they wish to gain legal recognition for their relationship. In Northern Ireland, same sex couples may register a civil partnership but may not marry. Across the UK, opposite sex couples may marry but they may not register a civil partnership.

In 2014, the Coalition Government consulted on the future of civil partnership in England and Wales. Among other things, the Government asked for views on opening up civil partnership to opposite sex couples. In June 2014, the Coalition Government stated that, in responses to the consultation, there was no united call for reform and that it had decided not to do anything at that time.

Calls continue to be made for civil partnership to be made available to opposite sex couples. Supporters of this position argue that opposite sex couples, like same sex couples, should be able to choose whether to marry or to register a civil partnership.

In a judgment delivered on 27 June 2018, the Supreme Court decided that the current law on civil partnership is incompatible with the European Convention on Human Rights to the extent that it precludes opposite sex couples from entering into civil partnerships.

The Bill, as amended in Public Bill Committee would require the Secretary of State to make arrangements for the preparation of a report “assessing how the law ought to be changed to bring about equality between same-sex couples and other couples in terms of their future ability or otherwise to form civil partnerships” and setting out the Government’s plans for achieving that aim. The arrangements would have to provide for a public consultation. The Secretary of State would be required to lay the Report before Parliament.

A new clause “Reform of civil partnership” has been tabled for Report stage of the Bill, in the names of Tim Loughton and others, which would require the Secretary of State to make regulations, to take effect within six months of the Bill being passed, “to change the law relating to civil partnership to bring about equality between same-sex couples and other couples in terms of their future ability or otherwise to form civil partnerships”.

Registration of stillbirth

The birth and subsequent death of a baby who is born alive must be registered, whatever the length of the completed pregnancy. When a baby is stillborn (born dead) after 24 weeks pregnancy, the stillbirth must be registered in the stillbirth register. The process for registering a stillbirth combines features of both birth and death registration.

There is no provision to allow the registration of stillbirths before the 24th week of pregnancy.

On a number of occasions, the Government has indicated that it has no plans to change the definition of stillbirth, which is based on clinical evidence and the age of viability.

In January 2014, Tim Loughton introduced a Private Members’ Bill, intended to enable registration of a baby stillborn before the threshold of 24 weeks. The definition of stillbirth was to be based on the experience of giving birth. The Bill did not progress any further. Tim Loughton has also raised the issue of registration of stillbirth before 24 weeks of pregnancy in other Parliamentary debates, speaking of the arbitrary nature of the 24 week threshold.

There have been a number of petitions calling for the law to be changed, to allow the registration of a stillbirth before the 24th week of pregnancy.

The Bill would require the Secretary of State to “make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to require or permit the registration of pregnancy losses which cannot be registered as still-births under the Births and Deaths Registration Act 1953”. The Secretary of State would be required to publish the report.

Investigation of stillbirth

All unexpected or avoidable deaths, including those of mothers or babies, which may have been the result of healthcare failings should currently be investigated as serious incidents, under NHS England and NHS Wales national frameworks.

The Department of Health and the Welsh and Scottish Governments have also jointly commissioned a standard Perinatal Mortality Review Tool, to assist maternity and neonatal units in investigating all stillbirths and perinatal deaths.

At present coroners do not have power to investigate a stillbirth. There has to have been an independent life before the coroner has jurisdiction to investigate a subsequent death. The definition of stillbirth is based on there not having been an independent life, meaning that the coroner does not have jurisdiction to investigate.

There have been a number of calls for the law to be changed, including by Sands, the stillbirth and neonatal death charity, and in Parliamentary debate.

In Northern Ireland, which has its own legislation, the position is now different. In 2013, in a landmark decision, the Northern Ireland Court of Appeal held that coroners do have jurisdiction to carry out an inquest on a child that had been capable of being born alive.

On 28 November 2017, the then Health Secretary, Jeremy Hunt, made a statement to the House on the Government’s new strategy to improve safety in NHS maternity services. This included an announcement that from April 2018, the Healthcare Safety Investigation Branch (HSIB) would investigate every case of a stillbirth, neonatal death, suspected brain injury or maternal death notified to the Royal College of Obstetricians and Gynaecologists (RCOG) Every Baby Counts programme, amounting to around 1,000 incidents per year. Investigations began in the South region of England in April 2018, with full national roll‑out expected by March 2019.

Jeremy Hunt also said that he would work with the Ministry of Justice “to look closely into enabling, for the first time, full-term stillbirths to be covered by coronial law, giving due consideration to the impact on the devolved Administration in Wales”.

Report stage in the Commons is scheduled for 26 October 2018.

The Bill would require the Secretary of State to “make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to enable or require coroners to investigate stillbirths”. The Secretary of State would be required to publish the report. Following publication of the report, the Lord Chancellor would have power to make regulations which could amend Part 1 of the Coroners and Justice Act 2009.