Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office

PART IX: REGISTRAR'S CERTIFICATES: PROCEDURE

CLAUSE 149: POWER FOR REGISTRAR GENERAL TO MAKE PROVISION WITH RESPECT TO THE MAKING AND GRANTING OF APPLICATIONS TO REDUCE 15 DAY WAITING PERIOD BETWEEN NOTICE OF MARRIAGE AND MARRIAGE
Power conferred on: The Registrar General for England and Wales (the Registrar General)
Power exercisable by:Regulations made by statutory instrument
Parliamentary procedure:None

375.  At present in England and Wales there are two procedures for civil preliminaries prior to marriage. The first is marriage by superintendent registrar's certificate (without licence), which (broadly) may be issued 21 days after notice of marriage is given; the second is marriage by superintendent registrar's certificate with licence; which can be issued one clear day after notice of marriage has been given. Clause 149 abolishes the latter procedure but also reduces the waiting period for marriage on the authority of superintendent registrar's certificate (which is now required to be obtained by both parties) to 15 days. It is envisaged that there may be exceptional circumstances where it may be appropriate to reduce the 15 day period, where one party is unexpectedly about to leave on military service, for example. New section 31(5A) introduced into the Marriage Act 1949 by clause 149(5) enables the Registrar General to reduce the 15 day period because of the exceptional circumstances of the case, to as short a period as he considers appropriate. Under new section 31(5D) (also so inserted) the Registrar General is empowered by regulations to make provision with respect to the making and granting of applications for a reduction of the waiting period. Under new subsection (5E) the regulations may provide for the decision as to the length of the waiting period to be delegated to a superintendent registrar in prescribed circumstances and for appeals from a refusal of the superintendent registrar to the Registrar General himself. The regulations require the approval of the Chancellor of the Exchequer.

376.  Under new section 5H the power to make regulations under subsection 5D is exercisable by statutory instrument.

377.  It is considered appropriate to leave this matter to secondary legislation as the power is to do with matters of administrative detail and procedure. They may need to be changed in the light of experience and circumstance.

378.  The Registrar General's regulations under the Marriage Act are not subject to Parliamentary procedure (see section 74 of the Marriage Act 1949). This provision follows that precedent.

CLAUSE 149(5): POWER TO SET FEE FOR APPLICATIONS TO REGISTRAR GENERAL FOR REDUCTION OF 15 DAY WAITING PERIOD
Power conferred on: The Chancellor of the Exchequer
Power exercisable by:Order made by statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)

379.  The provisions inserted into the Marriage Act 1949 for applications to the Registrar General for a reduction of the waiting period between notice of marriage and marriage are explained in the discussion of the previous power. The present provision enables the Chancellor of the Exchequer to make regulations specifying fees for such applications (new section 31(5F)) of the Marriage Act 1949, inserted by clause 149(5). New section 31(5G) provides that the Order may make different provision in relation to different cases.

380.  The matter is considered appropriate to leave to delegated legislation as being a matter of detail; and because the level of fees will require revision from time to time not least to take account of inflation.

381.  Under new section 31(5H) the Order is to be made by way of statutory instrument; and under new section 31(5I), statutory instrument is to be subject to annulment in pursuance of a resolution of either House of Parliament. It is considered that a negative resolution procedure is appropriate for the setting of fees of this nature; and it follows the existing provision for the setting of fees under the Marriage Act 1949, namely an order made by the Chancellor of the Exchequer under section 5(1) and (2) of, and paragraphs 1 and 2 of Schedule 3 to, the Public Expenditure and Receipts Act 1968. See also paragraph 16 of Schedule 2 to the Transfer of Functions (Registration and Statistics) Order 1996 (S.I. 1996/173) which transferred this function to the Chancellor of the Exchequer.

CLAUSE 151: POWER FOR REGISTRAR GENERAL TO SPECIFY EVIDENCE WHICH A SUPERINTENDENT REGISTRAR MAY REQUIRE OF THOSE WHO ARE GIVING OR HAVE GIVEN NOTICE OF MARRIAGE
Power conferred on: The Registrar General for England and Wales in relation to England and Wales and the Registrar General in relation to Northern Ireland
Power exercisable by:Guidance
Parliamentary procedure:None

382.  Clause 151 of the Bill introduces new provision in the Marriage Act 1949 and the Marriage Law (Ireland) Amendment Act 1863 enabling respectively a superintendent registrar in England and Wales and a registrar in Northern Ireland to require a person giving notice of marriage to him to produce specified evidence relating to that person or, in exceptional circumstances, the other party to the proposed marriage. The Registrar General for each jurisdiction is given power in guidance to specify the evidence that may be so required (which can only relate to the person's name and surname, age, marital status and nationality).

383.  It is arguable that the guidance is analogous to delegated legislation. Hence its coverage by this Memorandum. The matter is left to guidance in this form because it is a matter of detail and, given that the Bill sets what the evidence is to relate to, very limited in extent. Furthermore, experience may result in a need to amend and update the guidance. It is not made a subject of the Registrar General's regulations since it is so detailed. The purpose of having the limitation is to standardise the evidence that may be requested to assist registration officers and to ensure that nothing is required beyond that which is appropriate.


 
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