07 April 2020
Summary of Judgment - Court Delivers Same Sex Marriage Judgement
COURT DELIVERS SAME SEX MARRIAGE JUDGMENT
Summary of Judgment
The
Court of Appeal
today delivered its judgment in an appeal against the prohibition of same sex
marriage in Northern Ireland. It said
there was no need for the court to intervene and make a declaration that the
legislation which existed at the time the case was brought given the change to
the legislation in 2020 allowing for same sex marriage and opposite-sex civil
partnerships. The appellants had entered
into civil partnerships in December 2005:
Grainne Close with Shannon Sickles and Christopher Flanagan-Kane with
Henry Flanagan-Kane. Both couples wished
to enter into a civil marriage but asserted they were prohibited from doing so
by Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003 (“the 2003
Order”).
Statutory Background
The
2003 Order was made by the UK Parliament at a time when the Northern Ireland
Assembly was suspended. Article 6(6)(e)
provided that there was a legal impediment to a marriage if both the parties
are of the same sex.
By
November 2015 the NI Assembly had voted against the introduction of same sex
marriage on four occasions. The vote,
however, on this date was in favour. A
petition of concern was lodged and the motion to introduce same sex marriage
did not receive the necessary cross-community support.
Same
sex marriage was, however, enabled by the UK Parliament in 2020. Section 8 of the Northern Ireland (Executive
Formation etc) Act 2019 (“the 2019 Act”) required the Secretary of State to
make regulations by 13 January 2020 providing that two persons who are not of
the same sex are eligible to marry in Northern Ireland, and two persons who are
not of the same sex are eligible to form a civil partnership in Northern
Ireland. Section 8(5) enabled the
Secretary of State to make provision for the right to convert a marriage into a
civil partnership and a civil partnership into a marriage. The Marriage (Same-sex) Couples and the Civil
Partnership (Opposite-sex) Couples Regulations 2019 were passed on foot of the
legislation and provided that two persons of the same sex could marry in
Northern Ireland and that any marriage solemnised in any part of the UK or
elsewhere is not prevented from being recognised under the law of Northern Ireland
as a marriage only because it is the marriage of a same sex couple. Similar provision was made for opposite sex
civil partnerships.
Trial Judge’s Conclusion
At
first instance, the trial judge held that the European Court of Human Rights
(“ECtHR”) case law established that the ECHR did not impose an obligation on a
State to provide access to same sex marriage.
He noted a trend towards the recognition of same sex marriage but said
there was no sign whatever of the ECtHR moving in that direction. On the basis of the case law before him, the
trial judge felt driven to conclude that the ECHR rights of the appellants had
not been violated. He said it was not
the role of a judge to decide on social policy: that was for the NI Executive
and the NI Assembly. The trial judge
concluded that the statutory provisions in Northern Ireland did not violate any
rights as those rights did not exist in any legal sense.
Grounds before Court of Appeal
The
appellants were permitted to amend their Order 53 Statement before the Court of
Appeal. The sole declaration being
sought was: “A declaration pursuant to
section 4 of the Human Rights Act 1998 (“the HRA”) that Article 6(6)(e) of the
2003 Order is compatible with Article 14 taken with Articles 8 and 12 of the
ECHR insofar as it prevents individuals of the same sex entering civil
marriage.”
The
Court considered the relevant ECtHR and domestic case law. It made the following conclusions:
- The case law of the ECtHR makes it clear that
Article 12 does not establish a right to same sex marriage;
- The case law establishes that same sex couples in
loving relationships have rights under Article 8 of the ECHR in respect of
private and family life. The Court
noted that Article 8 cannot, however, supply what Article 12 does not
supply and cannot, therefore, provide a means of establishing a right to
same sex marriage;
- The issue of how to recognise same sex
relationships is within the ambit of both Articles 8 and 12 and,
therefore, a matter to which Article 14 of the ECHR applies;
- States enjoy a margin of appreciation in ECHR law
on the application of discrimination caught by Article 14.
The
Court concluded that the questions in this appeal were therefore whether
intervention by a domestic court is appropriate, whether that intervention
should include a determination that the prohibition of same sex marriage
violated rights under Article 14 and what, if any, institutional respect to
attach to the legislative choice.
Consideration
A
claim under Article 14 ECHR generally raises four questions:
- Do the circumstances “fall within the ambit” of
one or more of the ECHR rights?
- Has there been a difference of treatment between
two persons who are in an analogous situation?
- Is that difference of treatment on the ground of
one of the characteristics listed or “other status”?
- Is there an objective justification for that
difference in treatment?
The
Court said it was common case that the circumstances in this appeal fell within
the ambit of Articles 8 and 12 and apparent that access to marriage and civil
partnership in Northern Ireland was based on sexual orientation. It commented that the policy of the
legislature was to ensure that access to marriage should continue to be
available to those of the opposite sex but that those of the same sex should
have a corresponding opportunity to reflect their commitment. This had been accurately described as
incorporating a separate but equal status.
The Court noted it as a policy which the ECtHR continues to support in
its recent case law and which is followed even today in many of the states of
the Council of Europe but accepted that the status in each case is different:
“Civil partnership and marriage are two entirely
separate regimes with different pieces of legislation covering each of them. When making a declaration of marital status to
an employer or public authority an individual who is either married or in a
civil partnership will often effectively be declaring their sexual orientation
at the same time. We do not accept,
therefore, the submission on behalf of the Department [of Finance and
Personnel] that because marriage and civil partnership offer the same core
rights there is no difference between them.
There is a difference and it requires justification.”
The
Court then considered the test for justification. It
noted the trial judge had recognised there had been a clear trend towards
providing legal rights and recognition for same sex couples who wish to form
long lasting relationships. It
commented, however, that there was still some ambivalence about the entitlement
to such rights which had not been resolved until a decision of the ECtHR in
2010:
“Looking at the period between 2004 and 2014 it seems
clear that the aim of the exclusion of same sex couples from marriage was to acknowledge
the historical nature of marriage as a commitment between a man and a woman
which had an embedded cultural significance for those who had entered into
it. The provision of a civil partnership
alternative was necessary to justify that aim and in light of the aim the
difference in treatment could not have been less intrusive.“
The
Court said it was clear from the NI Assembly debates that the principal
objection to the introduction of same sex marriage was to maintain and uphold
that cultural tradition. While there was
an overriding religious aspect of some for their view the argument broadly
centred on whether the rights of same sex couples should be provided for
separately. The controversial social policy issue involved
the views of the Assembly, the absence of evidence of broad support in Northern
Ireland for a different approach to the rights of same sex couples during this
period and the position in the Council of Europe where a clear majority of
states had not introduced same sex marriage. We consider that during this
period a fair balance was struck between the rights of the appellants and the
interests of the community in the legitimate aim of preserving the established
nature of marriage. That period included
the time frame within which these proceedings were lodged.
In
2015 there were some significant developments. Scotland had passed a Same Sex
Marriage Act in 2014. Ireland carried
out a referendum on the introduction of same sex marriage in May 2015 which was
carried with a majority of more than 60%.
The legislation giving effect to that result was passed in November
2015. In the same month a majority of
members of the Assembly voted in favour of the introduction of same sex
marriage in this jurisdiction and the vote did not pass solely because a
petition of concern had been introduced.
The opinion poll evidence in Northern Ireland suggested that by the end
of 2015 there was a clear majority in favour of the introduction of same sex
marriage. The statutory purpose of the
petition of concern mechanism was to ensure protection for the traditions of
both unionist and nationalist communities.
The Court noted that there was less enthusiasm for same sex marriage in
the unionist community but considered, however, that where the petition of
concern is utilised to defeat the will of the Assembly on an issue dealing with
a difference of treatment on the grounds of sexual orientation, the scrutiny
required by the courts is enhanced.
The
changes effected in Scotland and Ireland were of considerable significance in
this jurisdiction:
“There are strong ties of kinship and friendship
between many people in Northern Ireland and those countries. To some extent people look to them as the
source of their culture and traditions.
There are long standing bonds in business and employment and of course
Northern Ireland’s only land border is with the Republic of Ireland. People who were married in those
jurisdictions did not have their marriages recognised here and those who had
formed civil partnerships here were prohibited from solemnising marriages in
their own neighbourhood unlike their friends and relatives in those
jurisdictions. In our view the events of
2015 and their consequences increasingly called into question the balance
between the interests of those favouring tradition and the interests of those
denied the opportunity to be seen as equal and no longer separate.”
By
January 2017 the Executive had collapsed and the Assembly did not sit to deal
with business until January 2020. The
only legislative vehicle during that period was the Westminster
Parliament. Since 2013 the UK Government
had considered it appropriate to recognise the interests of same sex couples by
providing them with access to same-sex marriage in England and Wales. The justification for not taking action in
the absence of an NI Assembly was based primarily on adherence to the devolution
understandings. The Court was satisfied
that by the time of the delivery of the first instance judgment in this case in
August 2017 the absence of same-sex marriage in this jurisdiction discriminated
against same-sex couples, that a fair balance between tradition and personal
rights had not been struck and that therefore the discrimination was not
justified.
Conclusion
The
Court concluded that, in light of the legislative developments, there was no
purpose to be served by making a declaration under section 4 of the HRA.
NOTES TO
EDITORS
1.
This summary should be read together with the
judgment and should not be read in isolation. Nothing said in this
summary adds to or amends the judgment. The full judgment will be
available on the Judiciary NI website (https://judiciaryni.uk).
ENDS