Joint Committee on Statutory Instruments Sixteenth Report


APPENDIX IV

Questions on the Registration of Marriages (Amendment) Regulations 1997 ( S.I. 1997/2204)

SCHEDULE 2

1. Forms 1 and 2

      (a)   Paragraph 5. Should the declaration "to the best of my knowledge and belief" not be translated: "Hyd eithaf fy ngwybodaeth a'm cred"?

      (b)   Paragraph 6, "of the parties" have not been translated.

2. Forms 6 and 7

      (a)   I "certify" has been translated as "tystiaf" ("I witness"). The correct verb is "ardystiaf";

      (b)   Printer's error. "dystrysgrif". Delete the underlined r.

3. Form 8

      (a)   Paragraph 2, 3rd line, "registration" ("registration district") has not been translated;

      (b)   Paragraph 5 (a) and (b), "declare" has been translated "hysbys". The correct word is "datgan". However, I believe that the Registrar General explained when the Committee raised the same point in relation to another Regulation this is a case where the prescribed words are governed by precedent established in the last century. There are compelling reasons for following the precedent.

      (c)   Paragraph 5 (c), "put to them successively" have not been translated;

      (d)   Paragraph 8, "certified" ("certified copy") has not been translated;

    4. Forms 1, 2 and Form 8

  In Forms 1 and 2, "presence" is translated as "presenoldeb", whereas it is translated in Form 8, paragraphs 4, 5 and 6 as "yngngwydd".

Memorandum by the Office for National Statistics


REGISTRATION OF MARRIAGES (AMENDMENT) REGULATIONS 1997 (S.I. 1997/2204)

SCHEDULE 2

1. Forms 1 and 2

      (a)   The words "hyd y gwn ac y credaf" are consistent with those contained in forms 1 and 2 of the Registration of Marriages (Welsh Language) Regulations 1986 [S.I. 1986/1445], which these regulations amend, and the Registration of Marriages (Welsh Language) Regulations 1971 [S.I. 1971/129] which first introduced bilingually prescribed forms, which the 1986 Regulations revoked.

      (b)   Agreed, Welsh translation of the words "of the parties" does not appear. This is consistent with 1986 and 1971 Regulations.

2. Forms 6 and 7

      (a)   "Tystiaf" is an alternative translation of the word "certify" and is consistent with the Registration of Marriages (Welsh Language) Regulations 1986.

      (b)   Agreed, this was a printing error. Hopefully the meaning of the word is clear.

3. Form 8

      (a)   Agreed, the Welsh translation of "registration" does not appear. This is consistent with the Registration of Marriages (Welsh Language) Regulations 1986.

      (b)   A note of the explanation given when this was previously questioned by the Committee is attached as an annex.

      (c)   Agreed, the Welsh translation of "put to them successively" does not appear. This is consistent with the prescribed form contained in the Registration of Marriages (Amendment) Regulations 1996 [S.I. 1996/2558] which amended the Registration of Marriages (Welsh Language) Regulations 1986.

      (d)   Agreed, the Welsh translation of "certified" does not appear. This is consistent with the 1986 Regulations.

  4. The words used are consistent with those prescribed by the Registration of Marriages (Welsh Language) Regulations 1986. The difference is maybe explained by the fact that forms 1 and 2 are required to be signed before the superintendent registrar whereas the marriage ceremony (form 8) requires the attendance (presence) of the authorised person and witnesses.

Annex: Letter from the Parliamentary Clerk, The Treasury, dated 4 December 1996

REGISTRATION OF MARRIAGES (AMENDMENT) REGULATIONS 1996 (S.I. 1996/2558)

  You wrote to me on 21 November about a point which Lord Prys-Davies had raised with you on this Instrument.

  Lord Prys-Davies is correct that the usual Welsh translation of "declare" is "datgan". However, the translation of "I do solemnly declare" in the 1986 Regulations (and previously in the Marriages (Welsh Language) Regulations 1971 (S.I. 1971/129)) was "Yr wyf yn ddifrifol yn hysbysu". It was for this reason and to maintain consistency that "hysbysu" was retained as the translation of "declare".

  Where the word "datgan" (or "datgainiad") is used elsewhere in the text of the 1986 Regulations (viz prescribed forms 1, 2, 3 and 5), it refers to the making of a written declaration. Where the declaration is in the form of a public statement, "hysbysu" seems to be an acceptable alternative. We hope that Lord Prys-Davies agrees.

  Otherwise it will be necessary for the Registrar General to prepare a further set of amending Regulations to be made in time for the coming into force of the 1996 Regulations on 1 February 1997. These would replace "hysbysu" with "datgan" in paragraph 3(b). However, as I have said, this would cause an inconsistency with the existing words of declaration as set out in paragraph 5 of form 8 in Schedule 1 of the 1986 Regulations (S.I. 1986/1445), unless, of course, they too were to be amended. Unfortunately there would be considerable presentational difficulties associated with amending the original text since the words "Yr wyf yn ddifrifol yn hysbysu" date back to an Order issued by the Registrar General in 1838, and they no doubt appear in printed form in the marriage ceremony booklets of countless non-conformist chapels in Wales.

  Gwyn Hughes, the head of the Marriages Branch of the Registration Division of the office for National Statistics (telephone number 0151-471-4463) would be happy to discuss the matter further, should Lord Prys-Davies wish to do so.

Further Questions sent to the Office for National Statistics before the meeting on Tuesday 9 December

SCHEDULE 2

  1. Form 1, paragraph 4(iii) and Form 2, paragraph 4(iii), the word "dispensed" ("consent has been dispensed with") has been translated as "dileu" (= abolished), instead of "hepgor".

  2. Form 1, paragraph 6, Form 2, paragraph 6, Form 7 (line 6 from bottom) and Form 8, paragraph 6 the verb "to contract" has been translated as "cyfamodi" (= covenant), instead of "contractu". [In Form 8, paragraph 5, the noun "contract" is translated as "contract".]

26th November 1997


REGISTRATION OF MARRIAGES (AMENDMENT) REGULATIONS 1997 (S.I. 1997/2204)

Examination of witnesses

MR GWYN HUGHES, Head of Marriages Branch, General Register Office, Office for National Statistics, Miss Susan Henstock, Marriages Section Manager, General Register Office, ONS, MS Sandra Walker, Solicitors Office, Department of Social Security and Ms Joy Talbot, Solicitors Office, Department of Social Security, examined.

Chairman

  1.  Good afternoon. I would like to welcome you to the Committee. This is the Joint Statutory Instruments Committee, as you are aware. This is a Committee of both Houses of Parliament and represented by Members of both Houses. Thank you for coming along this afternoon. I hope you find it a pleasant experience. I would like you please to give your names and positions and identify yourselves.

  (Mr Hughes) I am Mr Gwyn Hughes from the Office for National Statistics, Head of Marriages Branch.

  (Ms Walker) I am Sandra Walker from the Department of Social Security Solicitor's Office. We advise the Office of National Statistics in relation to registration matters.

  (Miss Henstock) I am Susan Henstock and I work for the Office for National Statistics. I am head of the Marriage Section which forms part of the Marriages Branch headed by Mr Hughes.

  (Ms Talbot) I am Joy Talbot from the Department of Social Security Solicitor's Office, again advising the Office for National Statistics.

  2.  Before we go on to questions, two points. First, it is a requirement of Parliament that the English language is used, not Welsh, in this Committee and in the whole of Parliament. Secondly, the issue before the Committee is whether the 1997 Regulations accurately translate the English forms for the registration of marriages into Welsh. The Committee felt that there were discrepancies in two categories, choice of words and missing words or phrases. I shall start the questioning now and you will be questioned by various Members of the Committee. The first question is does the Department accept that the discrepancies between the English and Welsh forms, in particular the omission from the Welsh of operative words or phrases, are likely to cause confusion and raise doubts as to the accuracy of the procedures followed? Now, before you answer these questions I know from my own experience going before Committees you do not have to answer it precipitately, you must think through your answers. I will ask this question again as it is the first question. Does the Department accept that the discrepancies between the English and Welsh forms, in particular the omission from the Welsh of operative words or phrases, are likely to cause confusion and raise doubts as to the accuracy of the procedures followed? We are thinking here for example of in form 8 the omission of "put to them successively" in paragraph five and "certified" in paragraph eight. Those are two examples which the Committee has identified. Who would like to answer that question?

  (Mr Hughes) I will. I think whilst accepting that there is a case for improving the clarity of the Welsh translations, the discrepancies highlighted by the Committee do not materially affect in our view the meaning of the Welsh text.

  Lord Prys-Davies: I am sorry, I did not hear what you said.

Chairman

  3.  Can you repeat the answer, please?

  (Mr Hughes) Whilst accepting that there is a case for improving the clarity of the Welsh translation, the discrepancies highlighted by the Committee do not materially affect in our view the meaning of the Welsh text.

Lord Prys-Davies

  4.  If I may take your form 8 - the words used in the course of a marriage ceremony - the question is to be " . . . put to them successively". If that is not in the Welsh version is that not likely to lead to confusion? It is not a material consideration?

  (Mr Hughes) I think the point is accepted that in the Welsh version there is no Welsh translation of those words specifically. The instructions are administrative instructions to authorised persons, people who will be ensuring the validity of the marriage. The instructions to those authorised persons, this is part of a package, part of instructions that are given to those people. We feel albeit that it is not specific in the regulations that the words should be put in this way, and that other training will ensure that this is what does happen in practice at a marriage ceremony.

  5.  Surely the practice should comply or rather that regulation should comply with the practice? It is clear enough here that the question is to be put to them successively but those words are not before you if you administer the ceremony in Welsh. Surely that affects the meaning materially?

  (Mr Hughes) Initially when the Regulations were drafted or rather the changes, we consulted with the Translation Unit of the Welsh Office and we have sought advice from a translator who is on the approved list issued by the Welsh Language Board also. The translations as they appear in the Regulations accord with the advice that we were given by both those authorities. Since, as a result of the concerns raised by this Committee, we have gone back to the Welsh Office Translation Unit and the head of the Welsh Translation Unit at the Welsh Office and whilst certainly confirming that the points which are being made by the Committee are valid points - I would not wish to play that down for one moment - the Welsh Office view, as is ours, is that despite the omission the intent of what should happen in this particular circumstance is clear nevertheless.

Chairman

  6.  Are you saying that there are words omitted in the Welsh translation?

  (Mr Hughes) Absolutely.

  7.  Fine. Do you agree that the Welsh language form does not correspond in legal meaning to the English language form?

  (Mr Hughes) I think we are saying that it is not a true and exact translation in that there are omissions but in our view, and that of the Welsh Office Translation Unit, the meaning and the purpose is not materially affected.

  8.  Notwithstanding that, given that these are statutory forms, how do precedents justify this action? How do precedents, what has gone before, justify the fact that the Welsh language form does not correspond in legal meaning exactly to the English language form? Are there precedents for this or is this a new departure is what we are saying?

  (Mr Hughes) If we look specifically at form 8 and the omission which has been quoted quite rightly, this is not the first time that this appears in the Regulations. This form of words appeared in the 1996 Regulations. The issues that are being discussed here are consequent to the Marriage Ceremony (Prescribed Words) Act 1996. The amending Regulations were the 1996 Regulations which first took on board the terminology here. In these Regulations we are merely repeating the form of words that already exists in the 1996 Regulations.

Lord Shaughnessy

  9.  I would like to ask the witness Mr Hughes if, for whatever reason, a court case developed in respect of the solemnisation, if you will, of this union, has the Welsh Office or any other authority expressed a positive opinion that it would not have any material effect?

  (Mr Hughes) We have not sought advice specifically.

  (Ms Walker) No, we have not.

  10.  I am thinking of a contested divorce or whatever. Could this be used?

  (Mr Hughes) The instructions that are issued separately from the Regulations to registrars of marriages and to authorised persons are, of course, that the words should be put successively to both parties, and it is common practice for that to be happening in all marriage ceremonies. I accept that the Welsh language translation here does not imply that that is a requirement, whereas clearly it is a requirement. In that context the Welsh language translation does not reflect what we would wish to happen in practice.

  11.  So it is assumed on your part and on the part of everybody else who has discussed this, that the practice is assured of being put successively?

  (Mr Hughes) Yes.

  Chairman: On this point, Mr Ross.

Mr Ross

  12.  I just wanted to ask, were these words left out deliberately?

  (Mr Hughes) No.

  13.  In other words, was it a mistake?

  (Mr Hughes) No. We sought a translation from an official translator, and the translations that came back were of this format. That is the way they then appeared in the 1996 Regulations. As a Welsh speaker, quality assured as best as I can, not being a translator, they did not appear to me to be defective. I was of the view at that time, as the administrator, that the meaning was clear, that no conscious decision was made to exclude them, and I had not considered and we had not considered that there may be a drafting omission here until they were drawn to our attention by the Committee.

Lord Vivian

  14.  Chairman, may I ask the witnesses the following. It seems that the Department points to various precedents to support its use of various questioned words. These Regulations of course amend the previous Regulations and could have been used to correct these discrepancies if the Department had so wished. So may I ask two questions in this respect. The first one is why does the Department not give reasons for following precedent in response to the Committee's points 1(a) and (b) and 3(a), (c) and (d) in the memorandum which is "1997 No. 2204 Registration of Births, Deaths, Marriages", the document I have here? My second question is when does the Department intend to eliminate the discrepancies between the two sets of forms?

  (Ms Walker) Could you repeat the first question, please?

  15.  Yes, of course. Why does the Department not give reasons for following precedent in response to the Committee's points 1(a) and (b) and 3(a), (c) and (d) in the memorandum? The memorandum is this document entitled "1997 No. 2204 Registration of Births, Deaths, Marriages Schedule 2".

  (Mr Hughes) The issues which are raised in the paper that is quoted were the first time that they had been raised as issues. They had not been raised previously. I think they originate back to 1971 when the Welsh language provisions first came into being. To my knowledge, they have not been queried during that time. Had they been, then I can provide an assurance that we would have sought an opportunity to consider amendments, and indeed we would wish to do so when the next opportunity presents itself, because I think that on the points that are being made with regard to the use of certain terminology, whilst the Welsh Office has confirmed that it does not materially affect the meaning, it is accepted, I think, by ourselves and the Welsh Office that some of the translations being suggested now as alternatives are in fact, 25 or 27 years on, probably far better and more appropriate translations. However, this was the first time that they had been brought to our attention.

Lord Prys-Davies

  16.  Mr Hughes, I really do not think we can leave your comments about the failure to translate that the question be "put to them successively". We are talking about a marriage ceremony. It has to follow a prescribed procedure. Parliament said that at a certain stage the question will be put successively to the parties "Are you free lawfully to marry?" Those words do not appear in the Welsh version. If the words are not put to the parties successively in a marriage ceremony conducted in Welsh, would that be a valid marriage?

  (Ms Walker) My understanding, my Lord, is that it would not affect the validity of the marriage, it would not go to the root of the marriage so as to cast doubt on the validity of it.

Chairman

  17.  This is point 5 of form 8: "It is essential to the validity of the marriage that in some part of the ceremony [and in the presence of the witnesses and the authorised person] each of the parties makes a declaration in one of the following forms".

  (Ms Walker) I accept that the wording in form 8 is that "It is essential to the validity of the marriage", but I think that if the questions were not put to the parties successively, then there may be an argument that the marriage was nevertheless still valid.

Lord Prys-Davies

  18.  But it is a debatable question?

  (Ms Walker) I would accept that.

  19.  It is debatable whether or not it is still valid?

  (Ms Walker) I would accept that.

  20.  I made the point in order to try to emphasise that I think this has a material effect on the validity of the ceremony. Would you go along with accepting that?

  (Ms Walker) I think it could have an effect on the validity, although I think it doubtful that the court would decide that the marriage was invalid.

  21.  I must leave it there. I believe that we cannot fudge that issue by merely saying that it is not material, and that steps ought to be taken to put it right. May I take another point. You referred, in reply to the Chairman, to a 1971 precedent in another context. Of course, in 1971 if there had been a discrepancy between the Welsh language version and an English language version, the English language version would prevail, but that rule no longer applies, so which does prevail?

  (Mr Hughes) Both languages would have equal status if we follow the principle no doubt as intended by the Welsh Language Act.

  22.  But you are looking in two different directions. The one document tells you "Yes, it is valid" and the other document tells you also "It is valid" but in fact the ceremony is not the same.

  (Mr Hughes) The requirements of the ceremony will be the same.

  23.  Do you not think that really you ought to reconsider the criticism that we are making of this translation?

  (Mr Hughes) Lord Prys-Davies, I think your point is without doubt a valid point. I think if the point had been made earlier by the translators, by the Welsh Office, and we had noticed it earlier then clearly the translation of "put to them successively" would have been in the Welsh language translation because then it would be absolutely clear what format would be used. I think from our viewpoint now it is an issue of when might it be suitable or necessary to put this beyond doubt in terms of further amending legislation.

  24.  The same problem arises with the exclusion of the word "certified" when you come to translate "certified copy". The word "certified" is excluded. Surely that is a material point? I am entitled to a copy of a certificate or a certified copy of a certificate. In the English version I am entitled to a certified copy but I am not entitled to a certified copy in the Welsh version. Is that not material?

  (Mr Hughes) Taking the literal interpretation of the Welsh text, certainly that is what it implies. I think again in terms of the material meaning, since these are instructions to Registrars of Marriages, there is only one form that a Registrar of Marriage is able to supply to the couple which is the certified copy.

  25.  You have assumed everything will go well but let us assume for some reason or another he decides not to issue a certified copy but merely a copy. In that case the Welsh party to the marriage would be under a disadvantage because under this version he does not have a certified copy of the certificate?

  (Mr Hughes) I think in the context of these instructions this is guidance to the authorised person. It is elsewhere in primary legislation which provides for a certified copy of an event to be made available to anybody who can identify the entry and pay the requisite fee.

  26.  Can I take you to Lord Vivian's point. All right, you accept that certain English words have been excluded. It seems to me you accept that certain English words have not been accurately translated, so where do you go from here? How do you propose to put things right?

  (Mr Hughes) Lord Prys-Davies, you use the term accurately, I think we are of the view, and the Welsh Office have confirmed, that what we have are not inaccurate, certainly they could be better, they could be more up-to-date, they could be clearer. What we propose in terms of putting this right is that when the opportunity for further amendment to the 1986 Regulations is viewed that we take the opportunity to make consolidating regulations, not further amending regulations but consolidating regulations, and that we consider the content of the whole Instrument in terms of the translations used because again we have been relying on a historical precedent here and merely repeating the words. The time has come perhaps, in view of the developments which certainly have been made in legal circles in particular in the Welsh language, to be almost wiping the slate clean and asking ourselves whether some of the prescribed words are now suitable in modern day Welsh. I think the only exception to that would be the traditional words of declaration and contract used within the marriage ceremony.

Mr Burgon

  27.  Can I ask a less complex and less testing question. If you have covered it it may be worth repetition. Can you remind us who is responsible for the translations and how are they checked?

  (Mr Hughes) Ultimately ONS has responsibility for the translations, certainly we take responsibility for the translations. In this particular Instrument the changes that were brought about by these amendments were as a consequence, as you will appreciate, of a very minor change to the law to allow notice of marriage to be given 12 months in advance rather than three months in advance. Also it consolidates some other relatively minor amendments that were made in the 1996 amendments. Therefore the procedure followed was that we went to a translator who is on the list of official translators and asked him for translations of the words that had changed. We did not ask him to translate the whole document because as far as we were concerned there were only bits of it that were due to be changed. The translations came back to ourselves and as a Welsh speaker not a translator I see whether there are any material differences which have been misunderstood perhaps by the translator before they go off to the Welsh Office Translation Unit for any comments that they may have and then they come back to us ultimately.

  Chairman: Fine. I think we are making progress. Lord Prys-Davies, do you want to come back on this or do you feel you have taken your line of questioning to its limit.

Lord Prys-Davies

  28.  I am really disappointed that you cannot give an undertaking that this Order will be amended as soon as possible. We are told that we have to wait until such time as you decide to make either another amending order or a consolidation order. Why can you not proceed now to make a new amending order so that the Welsh version corresponds with the English?

  (Mr Hughes) I would like to reassure the Committee that this is not an attempt on our part to play the game long. Certainly it would be our intention to consolidate this legislation as soon as the opportunity arises. Now if I may be more specific, it would be our intention to do so during the next year. It would be our intention to do so and I think the timetable for consolidating legislation will be dependent upon whether there are other legislative changes which will have an impact on the 1986 Regulations in any way. In other words we would not propose to make consolidating regulations in April, let us say, if we know there are other legislative changes coming in shortly afterwards. We would want to see what comes of the parliamentary process over the next few months to see whether there is a prospect of further legislation to modernise the registration service.

  29.  Let us suppose you are told there are no prospects of new legislation, why can you not proceed as soon as possible with an amending order?

  (Mr Hughes) I think we would be obliged to do so then. We would be obliged to do so within a very reasonable timescale.

Chairman

  30.  Thank you very much for that line of questioning. I would like to ask about certified copies. Which section of the Marriage Act 1949 entitles a married person to bespeak a certified copy?

  (Mr Hughes) It will be Section 70 something.

  31.  You can let us know.

  (Ms Walker) Can we undertake to let you know, Sir. I cannot remember.[2]

  Chairman: I see the steam rising from the benches! Do any other colleagues wish to ask any questions? In that case it is my duty to thank you for coming this afternoon. We are very grateful. It has been very helpful. We did feel that this issue of the Welsh Marriage Act was so important that we could not leave it to ourselves to deliberate. It has been very helpful. We will go back into private session now. I am most grateful to you - and I am sure I speak on behalf of the whole Committee - for coming along this afternoon. Thank you.



2   Note by Witness: The relevant provision is Section 63 of the Marriage Act 1949. Back


 
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