09 June 2017

Summary of Judgment - In re Laura Smyth (Humanist Marriage) 090617

Friday 9 June 2017

COURT GRANTS HUMANIST MARRIAGE APPLICATION

Summary of Judgment

Mr Justice Colton, sitting today in the High Court in Belfast, quashed the General Register Office’s decision to refuse an application for authorisation for a humanist marriage on the grounds that it breached the applicant’s ECHR rights. He ordered the GRO to grant the application which will give temporary authorisation for a celebrant to perform a legally valid and binding humanist wedding ceremony.

Laura Smyth (“the applicant”) is a humanist and a member of the British Humanist Association. She and her fiancé, Eunan O’Kane, would like to have a humanist wedding ceremony when they get married on 22 June 2017 and for it to be legally recognised by the State. Her application to the GRO seeking temporary authorisation for a British Humanist Association (“BHA”) wedding celebrant to perform the marriage under Article 14 of the Marriage (Northern Ireland) Order 2003 (“the 2003 Order”) was refused and the applicant challenged both the decision and the lawfulness of the legislation which she said were incompatible with her rights under the European Convention on Human Rights.

Marriages in Northern Ireland are governed by the 2003 Order which introduced a uniform system of civil preliminaries for both religious and civil marriages shifting the emphasis in relation to religious marriages from a system based on the registration of buildings to one based on the registration of officiants and allowed for civil marriages to be solemnised in a wider range of locations, subject to the control of the local registration district. The 2003 Order provides for two types of marriages, namely “religious marriages” and “civil marriages”. Under Article 14, the Registrar General may grant to a member of a religious body a temporary authorisation to solemnise a religious marriage.

In this case, the applicant complained that whilst a wide range of religious groups are afforded the legal privilege of being able to marry their members in accordance with their own beliefs and traditions, this same legal privilege is being denied to humanists without any proper justification in law. She argued that the term “religious marriage” can, and should, now be read to include the concept of “belief marriage” which should be afforded equal protection and which would encompass a humanist marriage performed by a BHA accredited celebrant. Alternatively, she argued that those provisions of the 2003 Order which permit only authorisation of religious marriage on behalf of a religious body by the GRO and which thereby operate to exclude the possibility of granting temporary authorisation (and thereby legal recognition) for a humanist marriage ceremony are unlawful as they are in breach of Articles 9 and/or 14 of the ECHR. She further argued that the Department of Finance (“the Department”) had acted unlawfully by its failure to introduce regulations to correct this illegality and for its failure to discharge its statutory obligation under section 75 of the Northern Ireland Act 1998.

The respondents argued, however, that there is no obligation on the State to facilitate every aspect of manifestation of religion or belief and there was no interference with the applicant’s Article 9 and/or 14 rights. The Attorney General appeared at the hearing as the applicant was challenging the compatibility of the provisions of the 2003 Order. He contended that there was no illegality and that a requirement to provide legal recognition for humanist marriage would go against the natural flow of existing Strasbourg case law.

Is Article 9 Engaged?

Mr Justice Colton felt there were two related elements to this question. Firstly, is the applicant’s humanism a “belief” within the meaning of Article 9(1) ECHR and secondly whether the applicant’s desire to have a humanist officiate at the wedding is “a manifestation” of her humanist beliefs.

Article 9(1) ECHR provides that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” Article 9(2) qualifies the right to manifest one’s religion or beliefs. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The legal test for “belief” can be stated as: “The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance. … Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.”

Mr Justice Colton concluded that the applicant easily meets this test and that her humanist beliefs have reached the level of cogency, seriousness, cohesion and importance to engage her Article 9(1) rights. He then turned to consider whether or not her wish to have a legally recognised humanist marriage ceremony conducted by a humanist celebrant is a manifestation of that belief.

The courts in England and Wales have looked at the issue of the manifestation of beliefs and stated that, as a minimum, the belief must be consistent with basic standards of human dignity or integrity. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. This is clear authority for the proposition that the freedom to hold a belief is an absolute right, whereas the right to manifest a belief is a qualified right. In order to count as a “manifestation” within the meaning of Article 9 ECHR, the act in question must be intimately linked to the religion or belief. There must be a sufficiently close and direct nexus between the act and the underlying belief and this must be determined on the facts of each case.

The applicant submitted that she and her fiancé want to have an explicitly humanist marriage ceremony (not a civil ceremony with attenuated humanist “bits”), involving a clear public affirmation of their humanist values as individuals and as a couple before their family and friends. She said that legal validity for the marriage is important as it signifies that the State recognises her values as legitimate and worthy of legal recognition equal to the diverse religious beliefs that are afforded the same legal privilege. Her desire to have a legally valid humanist marriage is central to her own humanist identity and that the act of getting married is, of course, deeply personal and is bound by her humanist beliefs, values and aspirations. Ms Isobel Russo is head of ceremonies at the BHA and the BHA wedding celebrant that the applicant is seeking to engage to perform her wedding ceremony. Ms Russo told the court that humanist wedding ceremonies are hugely popular because they allow humanist and non-religious couples to be married in a manner and at a time of their choosing, creating a bespoke and profound ceremony that accords with their wishes and deepest held beliefs.

Mr Justice Colton commented that the State has chosen to expressly recognise marriage within organised religions as being a manifestation of religious belief. The 2003 Order defines a “religious body” as “an organised group of people meeting regularly for common religious worship”. Solicitors for the respondents contended that there is a long tradition in this jurisdiction and others of a religious or spiritual dimension to marriage. They said that in making the 2003 Order, the State elected to continue the longstanding position whereby it gave legal recognition to marriages conducted according to religious rite and with a spiritual dimension. By contrast, for persons such as the applicant, the marriage is a “purely legal construct” with no accompanying religious or spiritual right and this is fully recognised by the State by way of a civil marriage which is wholly secular in nature.

The judge said the essence of the applicant’s case is based on the different treatment between religious bodies and humanists who both share beliefs. The basis of her claim is that in this jurisdiction the State has chosen to empower religious bodies to perform legally valid marriages and has refused to extend this privilege to those like her who wish to marry in accordance with their humanist beliefs. More importantly the respondents miss the fundamental point made on behalf of the applicant in that she does not want a “civil marriage”, but rather a marriage solemnised by a humanist celebrant which is different and distinct from a civil marriage. The applicant does not understand her marriage as a “purely legal” construct but rather as a manifestation of her beliefs.

Mr Justice Colton concluded that the applicant’s desire to have a humanist officiate at her wedding is indeed a manifestation of her humanist beliefs and that therefore Article 9 is engaged in this case. He further concluded that humanist ceremonies are a manifestation of humanist beliefs in general and are entirely consistent with the stated objects of the BHA which include the advancement of humanism, namely a non-religious ethical lifestance, the essential elements of which are commitment to human wellbeing and a reliance on reason, experience and a naturalist view of the world.

Has there been an unlawful interference with the applicant’s Article 9 rights?

The applicant submitted that Article 9 imposes an obligation on the State to afford legal recognition to her humanist marriage which would be conducted by a BHA celebrant. The respondents said there was no interference with the manifestation of the applicant’s beliefs as she is not prevented from marrying and she is not restricted from having a humanist influenced civil ceremony officiated over by a registrar. She could also have a separate humanist wedding, albeit without legal status, officiated over by a celebrant of her choosing. The judge, however, concluded that there had therefore been an interference with the applicant’s Article 9 rights as distinctions had been placed between religious and secular beliefs that hold the same place in adherents’ lives.

The judge then considered whether this interference is justified. He said the starting point must be that if the law is to protect freedom of religion under Article 9 it must recognise that all religions and beliefs should be treated equally:

“The State must be neutral and impartial in the arrangements it makes for the exercise of manifestations of various religions and beliefs. In relation to the solemnisation of marriage the State has chosen to authorise the solemnisation of religious marriage ceremonies in recognition of those bodies’ beliefs. Having done so, in my view, it should provide equal recognition to individuals who hold humanist beliefs on the basis of my findings that humanism does meet the test of a belief body and that a wedding ceremony conducted by a humanist constitutes a manifestation of that belief. I consider that there has been a breach of the applicant’s rights under Articles 9 and 14 of the ECHR.”

The judge then considered whether the breach or difference in treatment is capable of objective justification. The legal test is whether the limitation is pursuing a legitimate aim and, if so, are the needs chosen to achieve that aim proportionate in the circumstances? Mr Justice Colton referred to evidence submitted by the respondents that the Order was intended to simplify, consolidate and modernise the law of marriage. In granting the “privileges” to religious bodies it was recognising the “deep rooted involvement of religion in the communities in Northern Ireland”. The intention was to provide equal treatment insofar as it was possible balanced against the “need” to properly regulate marriage. By adopting the approach of a distinction between religious ceremonies and civil ceremonies it was argued that it has achieved the aim of simplifying the law, regulating marriage and achieving equal treatment.

The respondents suggested that if the applicant is successful it will create huge difficulties for the regulation of marriage. Mr Justice Colton refuted this. He said this does not chime with the State’s obligation to respect all religions and beliefs and the “flood gate argument” is not borne out by the evidence. Firstly, this is the only application that has been received by a non-religious body. Secondly, if granted temporary authorisation, the application is still subject to the series of checks and balances applied to all marriages contained in the 2003 Order. The judge recognised that there is significant public interest in controlling and regulating marriage but said this could be achieved without discriminating against those who wished to manifest humanist beliefs. He concluded that there is no objective basis for the justification raised by the respondents.

The 2003 Order was based very much on the model set out in the Marriage (Scotland) Act 1977. Section 12 of the Scottish Act provides for the temporary authorisation of celebrants. Paragraphs [113-119] of the judgment set out how the law evolved in Scotland to permit section 12 to be read to allow the authorisation of humanist celebrants by applying to them the provisions which also applied to religious marriages.

The applicant says the court should take a similar view in this case. The respondents, however, pointed out that the wording of section 12 is different from that of Article 14 of the 2003 Order in that it provides that authorisation may be granted “to any person” as opposed to “a member of a religious body” in Article 14. Mr Justice Colton said it was clear that the General Register Office in Scotland initially took the same view as the respondents in this case but, in light of relevant case law, accepted that it should read section 12 to permit it to apply the provisions to humanist marriages in the same way that they are applied to religious marriages. The Marriage and Civil Partnership (Scotland) Act 2014 subsequently amended the 1977 Act to recognise this by substituting “religious or belief body” for references to “religious body” and provided a specific definition for “a belief marriage”. The judge said there was no evidence to suggest that the temporary authorisation of humanist marriages in Scotland gave rise to administrative chaos.

Mr Justice Colton concluded that there has been an unlawful interference with the applicant’s Convention rights with no objective justification in law. He then turned to the question of remedy. In light of his findings he is required by section 3 of the Human Rights Act 1998 to interpret the 2003 Order in a way that is compatible with the ECHR. The judge noted that it was on this basis that in Scotland the authorities chose to interpret section 12 of the 1977 Act to permit it to grant temporary recognition to humanist officiants. The respondents claimed that Article 14 is unambiguous and applies only to “a member of a religious body” but the judge said that case law makes it clear that section 3 enables a court to read in words which change the meaning of the legislation so as to make it Convention compliant. This, of course, is subject to the caveat that the court cannot adopt a meaning inconsistent with a fundamental feature of the legislation.

The court heard that the precursor to the 2003 Order was a report of the Law Reform Advisory Committee for Northern Ireland (“LRACNI”) which sought to simplify the law and put in place clear preliminary requirements for marriage. A guiding principle was to provide for the continuing validity of religious as well as civil marriages and thus the Committee did not recommend the exclusively secularist approach adopted in countries like France where a civil marriage alone gives rise to the creation of the legal marriage state. The LRACNI was anxious to ensure equality of treatment of all religions but there is nothing in the report that suggests that belief bodies other than religious bodies were considered - the only distinction was between “religious” and “civil” ceremonies. Mr Justice Colton considered that placing belief bodies on a par with religious bodies for the purpose of marriage ceremonies would be entirely consistent with the approach and intention of the LRACNI’s report:

“The “imperative” that all legislation should provide equal and fair treatment of all irrespective of any particular religious beliefs or practice in my view embraces equal and fair treatment of all religions or belief bodies. I consider that this interpretation is in keeping with the aims of the LRACNI having regard to their concern for equality under the law. If the law is going to protect freedom of religion and belief then it has to accept that all religions and beliefs are equal. Such an interpretation does not in my view go against the grain of the legislation nor does it cross the constitutional boundary which section 3 seeks to demarcate and preserve.”

Mr Justice Colton then considered how he can give effect to an interpretation of the 2003 Order which would be consistent with the applicant’s Convention rights. He said that on one view the appropriate remedy would be to “read in” the words “or belief” to those parts of the Order which refer to “religious body”. The same approach would be required for reference to “religious marriage” and would also require a definition of a “belief body”. He decided, however, to take a more modest approach which echoes the approach taken in Scotland by reading in the words “or belief” in Articles 14, 15, 16 and 17 of the 2003 Order in each reference to “religious marriage” so that the Order reads “religious or belief marriage”.

He felt the applicant may complain that this still discriminates against her in that it provides for temporary authorisation only. He considered, however, this is an appropriate relief in the circumstances of this case for the following reasons:

• It is consistent with the approach adopted by the applicant in seeking temporary authorisation only;
• It will provide the GRO with an opportunity to monitor and assess the extent to which belief bodies seek to avail of the opportunity for temporary authorisation;
• It will provide a greater degree of control over the process which will enable the GRO to guard against the potential difficulties it has suggested might arise in the event that belief bodies are permitted to avail of the entitlements provided in respect of religious marriages; and
• The GRO can impose conditions which are deemed necessary for any temporary authorisations and all the other protections in the 2003 Order remain in place.

Conclusion

Mr Justice Colton declined to make a declaration of incompatibility in respect of the 2003 Order or that the Department has failed to discharge its statutory obligations pursuant to section 75 of the Northern Ireland Act 1998. He did, however, consider that the Department should now proceed to introduce regulations so as to remedy the breaches of Convention rights identified in his judgment.

The judge granted the following relief:

• An order quashing the decision of the GRO;
• An order compelling the GRO to take all necessary steps so as to grant the application of Ms Russo so as to permit her to perform a legally valid and binding humanist wedding ceremony on the applicant on 22 June 2017;
• A declaration that the decision of the GRO was in breach of section 6 of the Human Rights Act 1998 as contrary to the applicant’s rights under Article 9 and Article 14 ECHR;
• A declaration against the GRO and the Department that the provisions of the 2003 Order can be read and given effect to in a way that it is compatible with the applicant’s rights thereby enabling the GRO to grant the application for temporary authorisation under Article 14 of the 2003 Order by “reading in” the words “or belief” so that all references to “religious marriage” and “religious body” in Articles 14, 15, 16 and 17 of the Order read “religious or belief marriage” and “religious or belief body”; and
• An order compelling the Department to direct the GRO to grant the application made by Ms Russo.

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 Court Service website (www.courtsni.gov.uk).

2. The British Humanist Association (“BHA”) was founded in 1896 and “promotes humanism and supports and represents people who seek to live good lives without religious or superstitious beliefs”. It defines a humanist as describing someone who;

· Trusts the scientific method when it comes to understanding how the universe works and rejects the idea of the supernatural (and is therefore an atheist or agnostic);

· Makes their ethical decisions based on reason, empathy and a concern for human beings and other sentient animals;

· Believes that in the absence of an afterlife and any discernible purpose of the universe, human beings can act to give their own lives meaning by seeking happiness in this life and helping others to do the same.

3. The BHA has over 55,000 members and supporters. There have been humanist organisations in Northern Ireland since 1964 and the Northern Ireland Humanist (“NIH”) section of the BHA currently has 781 registered members.

4. Since humanist weddings were given legal recognition in Scotland in 2005 the number of humanist marriages has increased from 82 in 2005 to over 4,200 in 2015, greater than Church of Scotland marriages (4,052). In the Republic of Ireland, Humanist Association of Ireland celebrants performed 1,264 marriages in 2015, putting them only behind the Catholic Church and civil marriages in terms of popularity.

ENDS