Section 18 – Orders and regulations
73.This section sets out the arrangements for how Ministers are to exercise their delegated powers. Section 18 determines which powers, exercisable by the Secretary of State or Lord Chancellor under the Act, require which parliamentary procedure:
affirmative procedure is required for:
an order under section 8 and paragraph 9(8) of Schedule 6 to allow marriage of same sex couples according to the rites of the Church in Wales;
regulations made for the first time under section 9 setting out arrangements for the conversion of civil partnerships;
an order under section 14;
an order under section 16;
an order amending an Act of Parliament under section 17(1) or (2);
an order under paragraph 1(1) of Schedule 2, which provides for a marriage of a same sex couple under the law of England and Wales to be treated as a civil partnership in Scotland, or an order made under paragraph 1(2) modifying or disapplying the provisions of an order made under paragraph 1(1);
an order under paragraph 2 of Schedule 2 modifying or disapplying the effect of paragraph 2(1) (which provides that marriages of same sex couples are treated as civil partnerships under the law of Northern Ireland);
an order under paragraph 27 of Schedule 4, to make contrary provisions to the general proposition in the Act which makes marriage in law have the same effect in relation to marriages of same sex couples as it does for marriages of opposite sex couples.
negative procedure is required for:
regulations under section 9 making provision in relation to the conversion of civil partnership into marriage, other than on the first exercise of this power;
an order under section 17(1) or (2) which does not amend an Act of Parliament.
74.Subsection (4) provides for orders and regulations under the Act to make different provision for different purposes; and to make transitional, transitory, saving or consequential provision.
75.Subsection (5) enables the Secretary of State to delegate the making of certain regulations to the Registrar General, but only where the regulations are to be made under section 9 (Conversion of civil partnership to marriage) or under section 14(4) (in relation to marriage by belief organisations).
76.Subsection (6) provides that such provision may not enable the Registrar General to require a fee to be paid or set the amount for such a fee. The Secretary of State may not delegate his or her regulation-making power to the Registrar General unless he or she is satisfied that it is needed in connection with the administrative functions of the Registrar General.
77.Subsections (7) and (8) provide that the default parliamentary procedure for regulations made by the Registrar General is the negative procedure, but the Secretary of State may make alternative provision in the order made under subsection (5).
78.Subsection (10) provides that the power to amend legislation by secondary legislation includes the power to repeal or revoke legislation.
79.Subsection (11) requires the Secretary of State or Lord Chancellor to obtain the consent of the Scottish Ministers or the Department of Finance and Personnel in Northern Ireland before making any orders or regulations amending legislation within the devolved areas of competence of the Scottish Parliament or the Northern Ireland Assembly.
