I penned an earlier post on the procedure for Third Reading in the Lords in response to clear interest shown in it during passage of the Marriage (Same Sex Couples) Bill. Many people outside the House appeared unaware of how we differed from the Commons. The passage of the Bill also prompts comment on when its provisions take effect. Many people appear to assume that once a measure has become an Act of Parliament its provisions take immediate effect. In some cases, they do, but frequently they do not.
The provisions of Acts of Parliament usually take effect when a minister has made a commencement order. This is a statutory instrument which brings into force the whole or part of an Act. If the Act does not state that provisions take effect when a commencement order is made, the Act comes into force from midnight at the start of the day of Royal Assent.
To take two recent examples. The Fixed-term Parliament Act 2011 provides that ‘This Act comes into force on the day it is passed’. The Marriage (Same Sex Couples) Act 2013, on the other hand, provides at section 21:
‘(2) This section and sections 15 and 16 come into force on the day on which this Act is passed.
(3) Subject to that, this Act comes into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.’
[Section 15 deals with a review of civil partnerships and section 16 with a review of survivor benefits.]
This means that same-sex marriage cannot yet take place. It awaits an order made by the minister. The same with converting civil partnerships into marriages. The Government believes that some time is required to make all the necessary administrative changes and anticipates giving effect to same-sex marriages next year and converting civil partnerships into marriages the year after, though it is possible that pressure on ministers may result in the process being speeded up.
One remarkable feature of UK legislation is the number of provisions embodied in Acts of Parliament that have never been brought into effect. The Easter Act 1928 (providing for a fixed date for Easter) is on the statute book and has never been repealed, but because the churches cannot reach agreement it has never been brought into effect. Answers to parliamentary questions have listed a great many provisions of other Acts that have never been commenced.
There is a case for reviewing the use of commencement orders. Putting measures on the statute book, but without giving effect to their provisions, is both confusing and likely to undermine confidence in the legislative process. Why pass an Act of Parliament if its provisions are never given effect?
Maude indulges shall we say hatred by using its language in her posts. I try not to indulge hatred, the basest of all emotions, but try to understand why I hate and I hated this bill.
So I took three months off from the blog to find out what was going on inside my head. Understanding why we hate something or someone is the first faltering step toward forgiveness.
It turns out that it was not so much a marriage bill but a divorce bill. The Act has turned marriage from explicit to implied monogamy. Polygamy can now establish itself within the framework of marriage.
Also the constitutional precedent set by Isabella redefines adultery when homosexuality interposes itself between man and women in a heterosexual marriage.
When the King of Belgium first announced his retirement he said in conclusion that his role was to support democracy and democratic government. He is not a member of the executive so Royal Assent is guaranteed on this basis.
The Queen is a member of the executive but her outlook or attitude is very much that of the King of Belgium and indeed all of Europe’s Kings. This is the problem. Her duty as a member of the executive is to be the last link in a series of constitutional safeguards that prevent bad laws from establishing themselves.
Here we have a bad law but she has not, it seems, had any problem with giving Royal Assent. If she has in her wisdom chosen to support democracy and democratic government in the manner of European Kings then why is she a member of the executive?
Hence the bill was prospectively a divorce bill. One might say that events have conspired to forge a key that unlocks the door to a Senate.
Only the Queen can turn this key.
Did she refuse Royal Assent or not?
bad law – good law – doesn’t matter.
It’s an undemocratic law. It’s MPs keeping secret their intentions from the electorate and then dictating the law without democratic control.
Senex: See JH’s response to your post under Third Reading of Bills.
@Senex:
Your first line in the post above is rather biased. From another point of view, my stance on this SSM issue could be from a position of ‘love’ rather than ‘hatred.’
For example, ‘love’ of what exists in its natural interpretation. For legislation to forcefully remove the meaning of marriage as the foundation for ‘family’ and ‘blood ties’ thereby creating solace in life for those who unite as one to procreate, as it presently exists, is abhorrent. I believe it is an intolerable denial of fact no sane institution can impose without dire consequences. And using Sweden or Canada or others as an example of all is well is delusional, for, they have seen consequences they do not wish to expose. As we are learning now through this debate.
So, my belief in what is already lawful, that of marriage being between a man and a woman, with no others included, is a devotion to the status quo, not predominantly a ‘hatred’ of what is to come.
This Act personifies hatred of the special ‘love’ acknowledged and embraced by society for hundreds of years. With its manifestation shown this week by the birth of little Prince George. That short clip of two young people taking the step of mother and father was approved and ‘loved’ by the entire planet. For, it was the natural order of things. It was balance. It was the expectation of their ‘marriage’ and the fulfillment of their ‘different genders’ to satisfy each others soul.
Again, although I abhor the changes being floated and pushed forward into law, my first response to the premise was disbelief followed by an overwhelming sense of loss. Long before a full understanding and subsequent feeling of unacceptability crept in.
To take up such a stance in law is an attack on our natural human condition and our spiritual needs as men and women.
Equality does not mean conformity as this link explains with humour.
http://www.simplypsychology.org/conformity.html
Maude: love, hate, desire and passion are all emotions that cloud judgement and switch off the cold light of reason. The trick is to remain calm under fire. Surely, this is the basis to the art of legislation? Such strong emotions always serve legislatures’ poorly.
@Senex:
Now you may well feel that the idea you float is a scenario we should all adhere to. However, if you read through this thread, the obvious manipulation, machinations and downright duplicity, in order to get through Parliament a bill not wanted by the people of this country in its majority, more than fully explains the apathy of those who stay away from the polling stations.
And which clearly shows those involved in the carry on are not in anyway worried about their own ’emotion’ being exposed for what it is.
When the equality act was changed to allow CPs to be registered on religious premises and the subsequent regualations governing the implementation had come into effect ie everything to most people’s understanding had legally passed, a few days/weeks later Baroness O’Cathain raised a “prayer” in the Lord and Edward Leigh raised a “prayer” in the commons to make the whole thing illegal. The “prayer” was addressed to the Queen I think. If the Lords or commons had voted in favour of Leigh or O’Cathain then we would now have “religious” CP.
Could something similar happen with the same sex marriage bill?
“Why pass an Act of Parliament if its provisions are never given effect?”
Because many provisions in acts are largely political gestures not practical? It’s very similar to the constant creation of new offences for things which are already offences under other legislation but you make political capital of being seen to ‘ban’ something.
Insofar as commencement orders go perhaps the simplest solution would be to pass a new one line act.
Any commencement order not issued within 5 years of the passage of the containing act shall lapse without an affirmative resolution of both houses.
If ministers can’t manage in 5 years there is obviously a problem parliament needs to investigate
Croft: I was thinking along exactly the same lines, though thinking of a shorter period than five years. I am going to try to get a debate on the subject.
Croft/Lord Norton: ‘sunsetting’ seems a good idea, but do you mean that the commencement section/sub-section would be repealed (thereby bringing the unimplemented sections into force by virtue of s.4 of the Interpretation Act 1978) or that the uncommenced sections would be repealed (thereby tidying up the statute book)?
Prof. Sandra Fredman has noted that the legality of a government refusing to bring duly enacted legislation into effect is dubious, which suggests the former, but if Parliament has decided not to stipulate a date (but has decided that it should not be immediate) then one view must be that the decision as to when and whether, in the circumstances, has been left to the government (which may suggest, or at least be compatible with, the latter).
LN”I was thinking along exactly the same lines, though thinking of a shorter period than five years. “
I originally typed one year but could almost hear the minister reading out a civil service brief about how rushed and difficult that time line would be. I don’t buy that argument but I felt perhaps the House might. Five years seemed to shoot that fox dead but obviously the shortest practical time line would be best. After all in my proposal both houses can of course reactivate it if lapsed anyway so one year ought to be workable.
JH: I meant the uncommenced section are suspended and cannot be brought into force by a commencement order without a prior affirmative resolution of both houses to revive the sections.
On the latter point I don’t accept that logic at all. If parliament had wanted ministers to bring a commencement order in within a set time frame it could have placed such wording on the face of the bill. Ultimately parliament has the power to compel (if it so wished – which is I accept unlikely) ministers to implement the order. Parliament chooses not to act. I do not see how this can be legally problematic.
However as a matter of good governance and decluttering the statute book and forcing government to put into bills things they thinks can be implemented in a workable timeframe reform seems an obvious step forward.
The commencement provisions of the Easter Act, as passed, already require an affirmative resolution of both houses (they have to approve a draft commencement order).
Croft: Thanks (and I had forgotten the 2000 report Lady Tizzy cites so I see Lord Norton takes the same view). I admit I am puzzled by Prof Fredman’s note (albeit one made in passing) but haven’t looked into it in detail. I think I prefer repeal unless there’s a vote to sustain.
JH: “Prof. Sandra Fredman has noted that the legality of a government refusing to bring duly enacted legislation into effect is dubious, which…”
Yes, but we are a constitutional pre-process Parliament that used to have Judges to assist with interpreting the constitution and now they are gone along with the Lord Chancellor. All bills submitted to the Commons are therefore illegal and all governments are illegal because they are now formal dictatorships or tyrannies.
For revolutions to succeed they must have a basis in law and a noble cause. Is this our future to bear arms against a dictatorship; to remove both Parliament and Monarchy because they have failed us so badly?
We could of course give everybody a pay rise isn’t that the way we usually reward failure; to heck with revolutions?
Tim: That doesn’t change the issue made by several above in relation to removing those provisions from the statute book altogether. Also we enter the problem in other cases of negative -v- affirmative resolution procedures
Lord Norton:
“There should be a statutory provision that
any sections of an Act which are not brought
into effect within five years of Royal Assent
shall cease to have effect.”
Strengthening Parliament, July 2000
http://www.conservatives.com/pdf/norton.pdf
If today’s thinking is something less than five years, is this not a fine example of how good intentions become outdated?
It is very strange that the Bill has now been passed into law but, as Lord Norton explains, has no effect and no definite timetable for implementation.
In France the first wedding took place around a week after the passing of their law. In NY, if memory serves me right, weddings began almost the next day. I don’t understand why in the UK, having had such a struggle to get this through, everyone seems content to see it pushed into “the long grass’ of bureaucracy.
There will surely be many couples who will postpone registering their relationship until they can have a proper marriage ceremony. By doing so they will be risking all their rights. Only last week I read of a couple of very many years who had resisted doing a CP as they were confident that marriage would be available within their lifetime; but one unexpectedly died and the result was an enormous IHT charge and the complete loss of the partners pension.
I myself have a CP certificate; this is largely unrecognised overseas and will remain so. Plainly I will not be legally married for a very long time, two years or so Lord Norton suggests. There is plainly a chance that I will die officially un-married, certainly there will be a significant number of people who will do. I do not need a CP certificate to tell me that Society recognises me as being Married, I need a need a Marriage Certificate.
If a same sex couple apply now to the Registry Office to get married they will still be told they cannot. The only option, for at least another year, will be a Civil Partnership, with the prospect of being able to exchange that certificate for a marriage certificate at some uncertain date in the future. They will miss forever the chance to have a Marriage Ceremony. Likewise people form Spain, Belgium, France etc who have a marriage certificate from their own country who come to live in the UK will remain treated as CP’s for the foreseeable future.
Please, please, please could we have some sense of urgency.
Can someone remind me again why it has to take so long before gay couples can get married and even longer before CPs can be converted to a marriage certificate?
If it can take France to implement not only gay marriage but also gay adoption (plus equalising all other the benefits now given to gay couples) within a week of passing their “marriage for all” bill then why does it have to take the UK an indefinite period (and possibly never ) to implement their same sex marriage bill?
David Cameron was full of praise yesterday of how quickly he passed this Act (not implemented it I note) and how the UK should export how to implement Acts in good time but surely having no implementation date for the Act apart from some riduclous off the cuff date in the future is not what other countries would like to copy!
Surely the govt finds this delay to implement such a high profile Act unacceptable and embarrassing? Afterall the Easter Act 1928 is not something most people have ever heard of yet so who cares whether that was implemented in good time or not at all!
It is the Substances and Real-Life-Outcomes[Results] of Acts
and of their alas! all-too-often-carefully-concealed-greater Contexts
that must be got right first and foremost,
and got very publicly right before Procedures are allowed to influence those substances one way or another.
—————————-
None of the publicly-participant democratic places and channels of Britain are working here, certainly not in this “Same Sex Marriage” legislation
which has become as others
[than Lord Norton and The Establishment]
have found and submitted, more of an Inhibitive-Mess than being a Constructively-Substanced-Act*
(* “Act” that is to dictate to The People what of their acts/behaviours/conducts will be legally healthy, sustainworthy, godly, right, and both publicly and privately permissible, even encouragable and costly-educable, under the now various sorts and sizes of Certificates-of-Marriage).
————–
My submission to the previous “Third stage” blog bears summarising:
Lord Norton should have called upon disinterested expert comment, to reply to submissions such as maude elwes’s and Senex’s.
=======
I was struck by Harriet Harman’s recent assertion that, in order to get one or more equality Bills through, she decided to forego attempting to outlaw sports clubs with a men-only membership.
Are there any stats on the ratio of provisions to amendments of the original Bill? Put another way, can it be shown that amendments, successful or not, make a difference to the passage of a Bill?
Lady Tizzy: I don’t have any stats to hand but with regard to the Equality Act it is down to how the last government played it. Despite carrying the Bill over from one session to the next, with Evan Harris lamenting
“It is nothing short of disgraceful that we are in this position now… the Leader of the House will go down in history as having organised things in such a way that more amendments and new clauses than ever before have fallen without scrutiny in this place” (UK Hansard HC Deb 2 December 2009, vol. 501, col. 1193)
and Lord Lester of Herne Hill commenting, during Third Reading in the House of Lords, that
““[t]he Bill reached this House very late, with parliamentary time scarce before the general election” (UK Hansard HL Deb 23 March 2010, vol. 718, col. 863).
(Nonetheless he holds it out to be a fine piece of legislation, much considered and not to dallied with according to recent speeches).
It was among the final Bills to receive Royal Assent so any further debate could have prevented it from passing.
For a different example, see the much (correctly) maligned House of Lords Bill of Nick Clegg. Labour’s refusal to support the guillotine killed it off as without it there would have been all sorts of delaying amendments.
As one new lady member of the hofC remarked,
“It is a pity that laws apply to everybody.”
If you find ways of bending them, perhaps they don’t.
JH a reply to your comment: Third Reading of Bills Jul 14.
“This raises a number of questions:
Who is Chris Grayling?
How could the marriage be anulled [sic] in those circumstances?
Why wouldn’t W have cited unreasonable behaviour?”
“Who is Chris Grayling?” He is a politician not the head of the judiciary; he cannot exercise impartiality in interpreting the constitution. Plus, he is a minister within the executive.
“How could the marriage be annulled in those circumstances?” In a religious ceremony the Pronouncement of Marriage states “Whom therefore God has joined together, let no one put asunder.” This complies with Exodus and the Seventh Commandment “And you shall not commit adultery”. Its the spirit of the law that matters here.
In a future time the Prince of Wales (PoW) marries a Muslim girl called Sultana. They grow old and plump together and like all marriages the excitement beneath the bed sheets is eventually replaced by separate sleeping arrangements. Both agree things need spicing up.
Sultana suggests that a hareem might fit the bill however the PoW somewhat concerned says that it cannot happen. Sultana, a Kings’ Councillor by profession, points out that marriage is no longer explicit monogamy but implicit or implied monogamy. Monogamy establishes itself depending on the circumstances within the marriage.
So they hatch out a scheme. Both are soon to attend the BAFTA awards where their respective masks will be honoured. Sultana says she will very publicly engage in a prearranged tongue swapping kiss with one of her close friends; the press go bananas stating that Sultana is a lesbian leaving the PoW to confirm that she is bisexual.
Next, the PoW searches out some hotty’s, six of them and persuades each pair to marry. He then moves them into Clarence House along with a very large Jacuzzi. As all parties are consensual in this arrangement there are no grounds for unreasonable behaviour. The marriage has now changed from monogamy to polygamy.
Why house an old horse when you can stock your stable with fillies. Hereafter, the Anglican PoW rather oddly becomes known as the Sultan of Winsor.
This answers “Why wouldn’t W have cited unreasonable behaviour?” The cohabiting of a homosexual within a heterosexual marriage is no longer grounds for unreasonable behaviour in divorce proceedings as was previously the case under the 1949 Marriage Act?
In our unwritten constitution Explicit Monogamy is the constitutional precedent for marriage. In codified constitutions monogamy is not articled allowing Implicit Monogamy to establish itself.
Thanks. That is a very different story to the one at http://lordsoftheblog.net/2013/07/14/third-reading-of-bills/#comment-146947!
Re annulment, in the circumstances it would be the law as helpfully summarised at https://www.gov.uk/how-to-annul-marriage/when-you-can-annul-a-marriage that would apply.
If the parties are content then there can be no unreasonable behaviour, but if one of the parties is not content then it might be (incidentally, this applies to adultery too which is actually adultery + intolerability – adultery alone is not sufficient).
I am no supporter of Tony Blair’s tampering with the Lord Chancellorship, but we do appear to have one who as before is a member of the executive and who is charged with upholding the rule of law (although there may well be questions on that point).