Select Committee on Delegated Powers and Deregulation Twenty-Fifth Report



Memorandum by the Lord Chancellor's Department

1. This memorandum identifies the provision in the proposed Government amendment to the Divorce (Religious Marriages) Bill which confers power to make delegated legislation. It explains the purpose of the power, the reason why it is to be left to delegated legislation, and the nature and justification for any parliamentary procedures which apply.

Outline and scope of the Bill

2. This is a Private Peer's Bill, introduced into the House of Lords by Lord Lester of Herne Hill, which received First and Second Reading on 18 May and 30 June 2000 respectively.

3. The Bill seeks to ensure that where those who married in accordance with usages of a kind mentioned in section 26(1) of the Marriage Act 1949 (the Jews and the Quakers) and are required to co-operate to dissolve the marriage in accordance with those usages, both parties must make a declaration to the court that they have done so prior to the decree absolute being granted by the civil court.

4. This Bill replicates the provision contained in section 9(3) and (4) of the Family Law Act 1996 which has not been implemented.

5. Subject to an amendment, The Government is supporting this Bill, which will provide assistance, under the existing law on divorce, to Jewish women denied a religious divorce.

The Power in the Government Amendment

6. The Government has been advised that the Bill, as it stands, is not compatible with Article 14 of the European Convention on Human Rights, in that it may discriminate on the grounds that it will only apply to Jews and Quakers and not to other religious groups. The amendment seeks to ensure such compatibility.

7. The Government does not, however, believe that the Bill should be amended to include all religious groups. Only the Jewish community have so far presented a case to the Government to have this provision extended to them. It is not considered appropriate to confer rights upon other faith groups without evidence that this would be welcome to them.


Power conferred on:      The Lord Chancellor

Power exercisable by:    Statutory Instrument

Parliamentary procedure:    Negative resolution

8. This confers power on the Lord Chancellor by statutory instrument to extend these provisions to other religions where the parties have been married according to religious usages of a prescribed kind. It will only be in cases where a religion provides for a 'religious divorce' that this order making power can be used.

9. The order would be made by statutory instrument under the negative resolution procedure.

10. It is considered that this level of Parliamentary control is appropriate to essentially non-contentious issues as there may be other religious groups in England and Wales, who may wish this provision to be extended to them and it would seem inappropriate to require primary legislation each time a group needed to be covered.

Lord Chancellor's Department.

6 July 2000

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