|Explanatory Memorandum to Draft Law Reform (Miscellaneous Provisions) (Northern Ireland) Order|
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This Explanatory Memorandum refers to the Draft Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006
DRAFT LAW REFORM (MISCELLANEOUS PROVISIONS) (NORTHERN IRELAND) ORDER
1. The above draft Order is being made under the Northern Ireland Act 2000 (c.1) and is subject to affirmative resolution.
2. The Explanatory Memorandum has been prepared by the Department of Finance and Personnel ("the Department") in order to assist the reader in understanding the draft Order. It does not form part of the draft Order.
BACKGROUND AND POLICY OBJECTIVES
3. The draft Order deals with three issues: the defence of reasonable chastisement; the law relating to marriage; and a minor technical correction to the Civil Partnership Act 2004 (c.33).
THE DEFENCE OF REASONABLE CHASTISEMENT
4. In A v UK  the European Court of Human Rights held that the UK had breached Article 3 of the European Convention on Human Rights ("the Convention") by failing to provide a young boy with adequate protection from inhuman and degrading treatment in the form of beatings from his step-father. When the matter was before the domestic courts the step-father had relied on the defence of reasonable chastisement. Following the judgment the UK undertook to review the operation of the defence and introduce measures which would prevent a repeat of the violation found by the Court.
THE LAW RELATING TO MARRIAGE
5. The judgment of the European Court of Human Rights in B and L v UK  was critical of the current law which prohibits a man from marrying his former daughter-in-law while his son and his son's mother are still alive. The law was held to be in breach of the man's right to marry under Article 12 of the Convention. The Government is committed to remedying this breach.
THE DEFENCE OF REASONABLE CHASTISEMENT
6. The restriction of the defence of reasonable chastisement was one of the options which were consulted on widely, following the judgment in A v UK. Whilst there was strong support for a complete ban and retaining the status quo, the Department has concluded that the restriction of the defence will offer additional protection to children and ensure the necessary compliance with the Convention.
THE LAW RELATING TO MARRIAGE
7. The judgment in B and L v UK has created an inescapable obligation to change the law so that it becomes Convention compliant. Therefore, the Department concluded that there was no need for formal public consultation on these provisions.
FINANCIAL EFFECTS OF THE ORDER
8. No exchequer, staffing or other costs to the public have been identified.
HUMAN RIGHTS ISSUES
9. The provisions of the Order are compatible with the European Convention on Human Rights.
10. There is no adverse impact on any equality groupings as a result of this draft Order which has been screened as regards section 75 of the Northern Ireland Act 1998 (c. 47).
11. There is no regulatory impact as a result of this draft Order, as it has no impact on the costs of business, charities or voluntary bodies. Neither does it impact on any public bodies.
MAIN ELEMENTS OF THE ORDER
12. This draft Order has four main Articles. Article 2 largely follows section 58 of the Children Act 2004 (c.31) by restricting the defence of reasonable chastisement to a charge of common assault and precluding its use on more serious charges, such as wounding, causing grievous bodily harm, assault occasioning actual bodily harm or cruelty to persons under sixteen. It also precludes the use of the defence in a claim for civil damages where the harm caused amounted to actual bodily harm.
13. Articles 3 to 5 consist mainly of a series of repeals of impugned provisions in existing legislation which prevent certain persons from marrying. They also repeal as yet uncommenced provisions of the Civil Partnership Act 2004 which are indirectly impugned by the European Court's judgment.
COMMENTARY ON ARTICLES
14. A commentary on the provisions follows.
Article 1: Title, interpretation and commencement
This Article sets out the title to the draft Order. It also specifies when the provisions come into effect.
Article 2: Physical punishment of children
Article 2 lists those offences which will no longer give rise to a defence of reasonable chastisement. The defence will, however, still be available on a charge of common assault under section 42 of the Offences Against The Person Act 1861 (c.100). It also precludes the use of the defence in a claim for civil damages where the harm caused amounted to actual bodily harm.
Article 3: Marriage between certain persons related by affinity not to be void
Article 3 repeals the provisions of Article 18 of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984 (S.I. 1984/1984 (N.I. 14)) which offend against the judgment of the European Court of Human Rights in B and L v UK. It also removes other references to those provisions in Article 18 and makes consequential repeals of provisions of the Civil Partnership Act 2004 (c.33) which amend Article 18. A savings provision is included in Article 3(4) to ensure that the validity or otherwise of a marriage solemnised before the Order comes into force is not affected by the repeal of provisions of Article 18.
Article 4: Corresponding provision for civil partnership
Article 4 repeals paragraph 3 of Schedule 12 to the Civil Partnership Act 2004 (c.33). This provision contains prohibitions relating to the formation of civil partnerships, but was not commenced as the judgment in B and L v UK predated the commencement of that Act on 5th December 2005.
Article 5: Repeal of superseded provisions
Article 5 repeals other provisions amending Article 18 of the 1984 Order which have been superseded by subsequent legislation.
Article 6: Minor correction
Article 6 makes a minor correction to Schedule 16 to the Civil Partnership Act 2004 (c.33) to ensure that courts of summary jurisdiction have a full range of powers to vary orders for financial relief.
15. The Order will come into effect two months after the date of the making of the Order.
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