The Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005

Explanatory Note

(This note is not part of the Order)

This Order makes amendments to various provisions of subordinate legislation. The amendments are consequential upon the Civil Partnership Act 2004 (“the Act”). The Act, the substantive provisions of which comes into force on the same date at this Order, enables same-sex couples to form a civil partnership by registering as civil partners of each other (and certain overseas relationships registered abroad may be treated as civil partnerships). The Act makes provision for civil partners to be treated in the same or similar way as spouses in relation to certain benefits and obligations.

Schedule 1 makes amendments to miscellaneous subordinate legislation.

Paragraph 1 amends the Smallholdings (Selection of Tenants) Regulations 1970 (S.I. 1970/1049) to ensure that civil partners have the same rights to the succession of smallholdings as spouses. It also amends those Regulations to ensure that a person treated by a deceased tenant as a child of the family applies to civil partnerships in the same way as it does to marriage.

Paragraph 2 amends paragraph 17 of Schedule 3 to the Local Authorities' Cemeteries Order 1977 (S.I. 1977/204). Paragraph 17 is an interpretation provision and defines “relative” for the purposes of Schedule 3, which is concerned with the removal of tombstones and other memorials and the levelling of graves. Under Schedule 3, if a relative objects to proposals to remove a tombstone or other memorial or to levelling of a grave, a burial authority may not proceed in relation to that particular tombstone or grave, unless in particular circumstances the consent of the Secretary of State is obtained. The effect of the amendment is to include a civil partner within the definition of a relative and so put a civil partner in the same position as a spouse.

Paragraph 3 amends the Trade Union (Nominations) Regulations 1977 (S.I. 1977/789) which deal with nominations made by members of trade unions as to the payment of any union funds which may be made on their death. The effect of the amendment to regulation 2 is to place a civil partner in the same position as a spouse in relation to an exception from a provision which renders a nomination invalid. The amendments to regulation 3 provide that, in relation to a nomination, forming a subsequent civil partnership is treated in the same way as entering into a subsequent marriage.

Paragraph 4 amends rule 20(2) of the Coroners Rules 1984 (S.I. 1984/552) which specifies persons who are entitled to examine witnesses at an inquest. Those listed include a spouse of the deceased and the effect of this amendment is to give a civil partner of the deceased the same right as a spouse to examine witnesses.

Paragraph 5 amends the Customs and Excise (Personal Reliefs for Special Visitors) Order 1992 (S.I. 1992/3156) to extend an existing relief on the payment of value added tax on motor vehicles for diplomats, members of international organisations and visiting forces who are married to those who are in a civil partnership.

Paragraph 6 amends the Education (Fees and Awards) Regulations 1997 (S.I. 1997/1972) so that civil partners are treated in the same way as spouses in relation to the charging of fees for certain courses and eligibility for certain awards. Paragraph 9 amends the Education (Grants etc.) (Dance and Drama) (England) Regulations 2001 (S.I. 2001/2587) to include in the categories of persons who may qualify for an award under the Regulations the civil partner of a refugee and the civil partner of a migrant worker.

Paragraph 7 amends the Good Laboratory Practice Regulations 1999 (S.I. 1999/3106), which implement Council Directive 87/18/EEC relating to the application of the principles of good laboratory practice and the verification of their applications for tests on chemical substances and Council Directive 88/320/EEC on the inspection and verification of good laboratory practice. Regulation 11(2) deals with incrimination. The amendment to regulation 11(2) ensures that civil partners have the same protection, in relation to incrimination of their civil partner, as those who are married have in relation to their spouses.

Paragraph 8 amends regulation 6(2)(b) of the Divorce etc (Pensions) Regulations 2000 (S.I. 2000/1123). Regulation 6 of those Regulations sets out when a person in whose favour a pension attachment order has been granted must notify the person responsible for the pension arrangement of any relevant change of circumstances, and what will happen should he fail to do so. The amendment reflects the fact that the formation of a subsequent civil partnership will become such a change of circumstances.

Schedule 2 amends certain Rules relating to health care professions. The General Chiropractic Council (Registration) Rules 1999 (scheduled to the General Chiropractic Council (Registration) Rules Order of Council, S.I. 1999/1856), the General Chiropractic Council (Professional Conduct Committee) Rules 2000 (scheduled to the General Chiropractic Council (Professional Conduct Committee) Rules 2000 Order of Council, S.I. 2000/3290), the Health Professions Council (Registration and Fees) Rules 2003 (scheduled to the Health Professions Council (Registration and Fees) Rules Order of Council 2003, S.I. 2003/1572) and the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004 (scheduled to the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules Order of Council 2004, S.I. 2004/1767) are amended so as to include references to a civil partner in the definition of “relative” and to include a reference to a civil partner as an alternative to the term “spouse” where they occur in the rules.

Schedule 3 amends subordinate legislation relating to the National Health Service.

Paragraph 1 amends the National Health Service (Charges to Overseas Visitors) Regulations 1989 (S.I. 1989/306) to include a reference to a civil partner as an alternative to the term “spouse” where the term occurs in these Regulations.

Paragraphs 2, 5 and 8-10 of this Order amend certain sets of Regulations made under sections 16(4) and 126(4) of, and Schedule 5 to, the National Health Service Act 1977.

Paragraph 3 amends the Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000 (S.I. 2000/89); paragraph 4 amends the Commission for Patient and Public Involvement in Health (Membership and Procedure) Regulations 2002 (S.I. 2002/3038) and paragraph 6 amends the Patients' Forums (Membership and Procedure) Regulations 2003 (S.I. 2003/2123). These Regulations state that where two people are living together as a couple, married or not, one person’s indirect pecuniary interest in a matter will, if known by the other person, be deemed to be an interest of that other person. The amendments are made so that indirect pecuniary interests of persons living together as a couple, whether civil partners or not, are treated in the same way.

Paragraph 7 amends the National Health Service (Travel Expenses and Remission of Charges) Regulations 2003 (S.I. 2003/2382) to remove the reference to a couple being “married or unmarried” in the definition of “partner” so as to include civil partners, or persons of the same sex living together as if they were civil partners of each other, in the definition.

Schedule 4 makes amendments to subordinate legislation relating to establishments and agencies regulated under the Care Standards Act 2000 and related Regulations.

Part 1 amends certain regulations made under Part 2 of the Care Standards Act 2000 which provides for the registration and inspection of establishments and agencies by the Commission for Social Care Inspection (in relation to care homes and adult placement schemes amongst others) and the Commission for Health Audit and Improvement (in relation to private and voluntary health care). Part 2 of the Act also provides powers for regulations governing the conduct of establishments and agencies, and the regulations being amended here are made under those powers. In relation to the Care Homes Regulations 2001 (S.I.2001/3965), the National Care Standards Commission (Registration) Regulations 2001 (S.I.2001/3969) and the Adult Placement Schemes (England) Regulations 2004 (S.I.2004/2071), the amendments are made in order to include references to a civil partner or a former civil partner in the definition of “relative” in each case, and to include a reference to a civil partnership status alongside the term “marital status” where it occurs in the Regulations. The Private and Voluntary Health Care (England) Regulations 2001 (S.I.2001/3968) are amended to include a reference to a civil partnership status alongside the term “marital status” where it occurs.

Part 2 amends regulation 6(2) of the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003 (S.I. 2003/762). Regulation 6 prohibits a direct payment from being used to secure a service from certain persons, except in specified circumstances, and is amended to include references to a civil partner and to a person who lives as if they were a civil partner.

Schedule 5 makes amendments to subordinate legislation relating to flood management. It amends the River Authorities (Compensation) Regulations 1965 (S.I. 1965/836) and the Land Drainage (Compensation) Regulations 1977 (S.I. 1977/339). These Regulations provide for the payment of compensation to persons who suffer loss of employment or loss or diminution of emoluments in consequence of the transfer of function or property to river authorities (or any alteration of river authority areas) or which is attributable to a scheme, order or agreement under the Land Drainage Act 1976. The Regulations provide for compensation to be payable to a widow on the death of a claimant and the amendments, in particular, make provision for compensation to be payable to surviving civil partners.

Schedule 6 makes amendments to subordinate legislation relating to the administration of estates. The Act amended section 47A of the Administration of Estates Act 1925 to enable a surviving civil partner, as well as a surviving spouse to have their life interest in an estate redeemed and to receive its capital value. The Schedule adds references to surviving civil partners to the Non-Contentious Probate Rules 1987 (S.I. 1987/2024) and the Intestate Succession (Interest and Capitalisation) Order 1977 (S.I. 1977/1491), which deal with notices to choose to have the life interest redeemed and with the calculation of the capital value. Paragraph 2 also amends the 1987 Rules to provide that a surviving civil partner has the same right as a surviving spouse to apply for a grant of administration where the deceased died intestate.

Schedule 7 makes amendments to subordinate legislation relating to legal aid. It amends the Community Legal Service (Costs) Regulations 2000 (S.I. 2000/441), the Community Legal Service (Funding) Order 2000 (S.I. 2000/627) and the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001 (S.I. 2001/1077)), all of which relate in whole or in part to family proceedings. The amendments provide for proceedings under the Act to be included in the definition of “family proceedings” in each of the three instruments.

Schedule 8 makes amendments to subordinate legislation relating to Parliamentary elections in England and Wales and European Parliamentary elections. Paragraph 1 gives civil partners the same status as a spouse in all matters connected to the conduct of Parliamentary elections. It also extends the definition of “relative” to include civil partners. Paragraph 2 has the same effect as paragraph 1 in relation to European Parliamentary elections. Paragraph 3 amends the Order which prescribes Welsh versions of certain forms or forms of words which may be used at European Parliamentary elections in Wales, by prescribing Welsh versions of the words “spouse” and “civil partner” in substitution for the words “husband and wife”.

Schedule 9 amends subordinate legislation relating to Parliamentary and European Parliamentary elections in Northern Ireland. Paragraph 1 gives civil partners the same status as a spouse in all matters connected to the conduct of Parliamentary elections. It also extends the definition of “relative” to include civil partners. Paragraph 2 has the same effect as paragraph 1 in relation to European Parliamentary elections.

Schedule 10 amends subordinate legislation relating to elections in Scotland to enable certain civil partners to claim a service qualification or a proxy or absent vote, prevent civil partners from attesting overseas electors' declarations in respect of their civil partners, and to clarify that a person is to be treated as a relative of their civil partner for various Scottish electoral purposes.

Schedule 11 makes minor amendments to the National Assembly for Wales (Representation of the People) Order 2003 so that civil partners are treated in the same way as spouses for electoral purposes.

Schedule 12 makes amendments to subordinate legislation relating to the conduct of Local Government elections in England and Wales, Greater London Authority elections, Local Authority referendums and Local Authority Mayoral elections so that civil partners are treated the same way as spouses for local election etc. purposes.

Schedule 13 makes amendments to subordinate legislation relating to immigration and nationality. Paragraph 1 amends the Asylum Support (Interim Provisions) Regulations 1999 (S.I. 1999/3056) to expand the definition of dependant in regulation 2(1) to include civil partners and those who live together as if they are civil partners. Paragraph 2 amends the Asylum Support Regulations 2000 (S.I. 2000/704) so that the definition of a dependant is expanded to include civil partners and those who live together as if they are civil partners. The formation or dissolution of a civil partnership or same-sex cohabitation is now also a relevant change of circumstances, which must be notified to the Secretary of State under regulation 15 of those Regulations. Paragraph 3 amends the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (S.I. 2002/3078) to expand the definition of dependant in regulation 2(2) to include civil partners and those who live together as if they are civil partners. Part 2 of the Schedule makes minor amendments to Regulations relating to nationality so that civil partners are treated in the same way as spouses for these purposes.

Schedule 14 makes amendments to subordinate legislation relating to probation. Paragraph 2 amends regulation 6(2)(e) of the Local Probation Boards (Miscellaneous Provisions) Regulations 2001 (S.I. 2001/786). Regulation 6 lists those persons who are eligible to make a complaint to a local probation board, and is amended so that a civil partner is included within the definition of an immediate family member who is entitled to complain on behalf of an eligible person who is deceased. Paragraph 1 amends the Probation (Compensation) Regulations 1965 (S.I. 1965/620) to include references to a civil partner for the purposes of who is eligible to lodge a claim under the provisions of the Regulations.

Schedule 15 contains amendments to subordinate legislation relating to merchant shipping so that civil partners and relatives of civil partners are treated in the same way as spouses and relatives of spouses for the purposes of the definition of “immediate family”.

Schedule 16 makes amendments to financial services and related legislation.

Paragraph 1 amends the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544). Sub-paragraph (2) amends article 3(1) so that civil partners are treated in the same way as spouses for the purposes of the definition of “close relative”. Sub-paragraph (3) amends article 61(4)(c)(i) so that civil partners are treated in the same way as spouses for the purposes of the definition of “related person” which may be relevant in determining whether a contract is a regulated mortgage contract as defined in article 61(3)(a). Sub-paragraph (4) amends article 71(2)(b) so that employees' or former employees' civil partners and surviving civil partners are treated in the same way as their spouses, widows and widowers in relation to employee share schemes. Sub-paragraph (5) amends paragraph 2 of Part 2 of Schedule 1 so that a contract of insurance to provide a sum on the formation of a civil partnership is treated as a contract of long-term insurance on the same basis as a contract of insurance to provide a sum on marriage.

Paragraph 2 amends article 2(1) of the Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001 (S.I.2001/1060) so that civil partners are treated in the same way as spouses for the purposes of the definition of “close relative”.

Paragraph 3 amends paragraph 8(2)(b) of the Schedule to the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001 (S.I. 2001/1062) so that employees' or former employees' civil partners and surviving civil partners are treated in the same way as their spouses, widows and widowers in relation to employee share schemes.

Paragraph 4 amends paragraph 41(3)(b)(ii) of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001 (S.I. 2001/1201) so that employees' or former employees' civil partners and surviving civil partners are treated in the same way as their spouses, widows and widowers in relation to employee share schemes in electricity industry shares.

Paragraph 5 amends regulation 44(8)(a) of the Open-Ended Investment Companies Regulations 2001 (S.I. 2001/1228) so that civil partners are treated in the same way as spouses for the purposes of determining whether a transaction is voidable under that regulation.

Paragraph 6 amends regulation 21 of the Savings Contracts Regulations 1969 (S.I. 1969/1342) so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the Civil Partnership Register.

Paragraph 7 amends regulation 29L(2)(c) of the National Savings Bank Regulations 1972 (S.I. 1972/764) so that civil partners are treated the same way as spouses for the purposes of opening individual savings accounts. Regulation 35(1)(c) is amended to allow a nomination to be revoked by the formation of a civil partnership by a holder in the same way as applies on the marriage of a holder. It also amends regulation 41(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 8 amends regulation 25 of the Premium Savings Bonds Regulations 1972 (S.I. 1972/765) so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the Civil Partnership Register.

Paragraph 9 amends regulation 52 of the National Savings Stock Register Regulations 1976 (S.I. 1976/2012) so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the Civil Partnership Register. Regulation 36(1)(c) is amended to allow a nomination to be revoked by the formation of a civil partnership by a holder in the same way as applies on the marriage of a holder. It also amends regulation 42(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 10 amends regulation 26 of the Savings Certificates (Yearly Plan) Regulations 1984 (S.I. 1984/779) so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the Civil Partnership Register. It also amends regulation 17(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 11 amends regulation 26 of the Savings Certificates Regulations 1991 (S.I. 1991/1031) so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the Civil Partnership Register. Paragraph 4 of Schedule 2 is amended to allow a nomination to be revoked by formation of a civil partnership by a holder in the same way as applies on the marriage of a holder. It also amends regulation 17(1)(c) so that civil partners are treated in the same way as spouses in relation to death duties or inheritance tax chargeable upon the death of a depositor.

Paragraph 12 amends regulation 23 of the Savings Certificates (Children’s Bonus Bonds) Regulations 1991 (S.I. 1991/1407) so that civil partners are treated the same way as spouses in relation to the fee for a certificate of marriage or civil partnership, or a certified copy of an entry in the Civil Partnership Register.

Paragraph 13 amends regulation 2 of the Industrial Assurance (Premium Receipt Books) Regulations 1948 (S.I. 1948/2770) so that civil partners are treated in the same way as spouses in relation to making an entry in a premium receipt book relating to a proposed policy.

Paragraph 14 amends article 5 of the Building Societies Act 1986 (Powers and Miscellaneous Transitional Provisions) Order 1986 (S.I. 1986/2169) so that civil partners are treated in the same way as spouses in relation to making an advance to which the article applies.

Paragraph 15 amends paragraph 5(6) of Schedule 8 and paragraph 4(5) of Schedule 9 of the Building Societies (Accounts and Related Provisions) Regulations 1998 (1998/504) so that civil partners are treated in the same way as spouses in relation to a directors' interest in shares in or debentures of, any connected undertaking of the society.

Schedule 17 amends subordinate legislation relating to paternity and adoption leave and pay, sexual orientation discrimination in employment and vocational training, and employment agencies and businesses.

Paragraphs 1, 2, 3, 5 and 6 amend the Paternity and Adoption Leave Regulations 2002 (S.I. 2002/2788), the Statutory Paternity Pay and Statutory Adoption Pay (Administration) Regulations 2002 (S.I. 2002/2820), the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (S.I. 2002/2822), the Paternity and Adoption Leave (Adoption From Overseas) Regulations 2003 (S.I. 2003/921) and the Statutory Paternity Pay (Adoption) and Statutory Adoption Pay (Adoptions from Overseas) (No. 2) Regulations 2003 (S.I. 2003/1194). These extend entitlement to paternity leave, adoption leave (including adoption from overseas), statutory paternity pay, statutory adoption pay (including adoption from overseas) to civil partners and also extend any evidential or information requirements relating to these entitlements to civil partners. Paragraph 4 amends the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (S.I. 2002/3236) to extend the entitlement to request a contract variation for flexible working to civil partners.

Paragraph 7 amends the Employment Equality (Sexual Orientation) Regulations 2003 (S.I. 2003/1661). These regulations implement in Great Britain Directive 2000/78 (establishing a general framework for equal treatment in employment) in so far as it relates to discrimination on grounds of sexual orientation. The Regulations make it unlawful to discriminate on grounds of sexual orientation in employment and vocational training. Subparagraph (2) inserts a new paragraph - paragraph 3 - into regulation 3 to ensure that the status of a civil partner is comparable to that of a spouse. The effect of the amendment is that if a spouse receives different treatment to a civil partner, the employer or training provider etc. cannot successfully argue that there is no discrimination because married persons are not comparable to civil partners. Sub-paragraph (3) substitutes a new regulation 25. Regulation 25 (a) preserves the existing exemption for benefits which are dependent on marital status where the right to the benefit accrued or the benefit is payable in respect of periods of service prior to the coming into force of the Act. Regulation 25(b) permits benefits to be conferred on married people and civil partners to the exclusion of all others.

Paragraph 8 amends the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (S.I.2003/3319) so that civil partners are included within the definition of connected persons for the purposes of those Regulations.

Schedule 18 makes amendments to subordinate legislation relating to insolvency.

Paragraph 1 amends the Insolvency Rules 1986 (S.I. 1986/1925) so that where a person is adjudged bankrupt, the person’s civil partner is to have the same rights and liabilities as the spouse of a bankrupt has at present in connection with dealings with a bankrupt’s home. In addition, Form 6.28 is amended to require information about the civil partnership status of a debtor petitioning for his own bankruptcy as well as his marital status. Paragraph 2 amends the Insolvent Partnerships Order 1994 (S.I. 1994/2421) to make equivalent amendments in respect of members of partnerships. Paragraph 3 makes amendments to the Limited Liability Partnerships Regulations 2001 (S.I. 2001/1090) so that the definition of “associate” in the Insolvency Act 1986, as applied to limited liability partnerships by those Regulations, extends to civil partners of members of limited liability partnerships in the same way that it applies to the spouses of such members. The definition is important, for example, in the context of determining whether transactions between an insolvent and other persons, including associates, prior to the onset of insolvency should be undone or adjusted to protect creditors.

A regulatory impact assessment has not been prepared for this Order, as it has no impact on the costs of business, charities, voluntary bodies or any public bodies distinct from that of the Act itself. A full regulatory impact assessment for civil partnership was published alongside the Act and can be viewed at http://www.dti.gov.uk/access/ria/index.htm#equality.