Earlier posts, here, and here, have analysed the developments in Ireland relating to same-sex marriage and the progress that has been made towards its introduction. The forthcoming establishment of a Constitutional Convention with the purpose of proposing amendments to the Constitution of Ireland is expected to consider inter alia “provision for same-sex marriage”, and it has been suggested that the inclusion within the 100-strong Convention of one Member (MLA) of the Northern Ireland Assembly from each of the political parties at Stormont might help stimulate debate on same-sex marriage in Northern Ireland.
However, in Northern Ireland the Assembly recently rejected a motion which called upon the Executive to introduce same-sex legislation.
Some commentators have observed that in Northern Ireland the legislation concerned with human sexuality tends to lag behind that elsewhere in the UK, citing the fifteen year gap between the Sexual Offences Act 1967 and the Homosexual Offences (Northern Ireland) Order 1982 which was adopted as a result of Dudgeon v The United Kingdom 7525/76  ECHR 5 (1981) at the European Court of Human Rights. Similarly, the Abortion Act 1967 does not extend to Northern Ireland, where termination of pregnancy remains illegal in principle under ss 58 and 59 Offences Against the Person Act 1861, subject to s 25 Criminal Justice Act (Northern Ireland) 1945.
However, with regard to civil partnerships brought in under the United Kingdom’s Civil Partnership Act 2004, the dates for their registration in England, Wales, Scotland and Northern Ireland were identical, the respective commencement orders bringing the provisions of the Act into effect on 5th December 2005. In practical terms, this meant that civil partnership registrations under the standard procedure (i.e. as set out in sections 8-17 of the Act) have been available throughout the UK from 20th December 2005, i.e. 15 days later. Since then, it has been recognized by the English courts that the rights, responsibilities, benefits and advantages of same-sex partners available within the Act are virtually the same as those for married couples, except the actual title and status of marriage.
Whilst it is clear that the LGBT agenda has progressed in a number of European countries and is being considered in England and Wales, and in Scotland, these countries remain in the minority. Consequently, the ECtHR has been unwilling to go beyond its interpretation of Article 12 in Schalk and Kopf v Austria 30141/04  ECHR 995 and require states to permit same-sex marriage. Currently 22 of the 51 countries in Europe recognize some type of same-sex unions, among them a majority of members of the European Union; only 8 European countries have legal recognition of same-sex marriage.
Against this background, what can be deduced from the Assembly vote on 1st October? The joint proposal was brought in by Sinn Fein and the Green party:
‘[t]hat this Assembly believes that all couples, including those of the same sex, should have the right to marry in the eyes of the State and that, while the rights of religious institutions to define, observe and practise marriage within their beliefs should be given legal protection, all married couples, including those of the same sex, should have the same legal entitlement to the protections, responsibilities, rights, obligations and benefits afforded by the legal institution of marriage; calls on the Minister of Finance and Personnel to introduce legislation to guarantee that couples of any sex or gender identity receive equal benefit; and further calls on the First Minister and deputy First Minister to ensure that all legislation adheres to the Government’s commitments to protect equality for all.’
The motion was defeated 45 to 50, and analyses of the voting, here, and, here, suggest that the result was obtained by a combination of tactical voting and non-voting through absence. The Guardian article explains:
‘Under the rules of the Stormont parliament, any party can trigger a so-called petition of concern on a motion that then can only pass if the majority of nationalists and unionists back it. The rule was drawn up to protect minorities and ensure that there would never be a return to unionist domination of the assembly. In this instance the DUP used the law to scupper any move to liberalize the law on gay marriage’.
The article goes on to note that the motion was defeated as the Democratic Unionists (DUP) ensured that it would have to obtain cross community support in on order to succeed. The Slugger O’Toole blog analyses the raw voting figures in terms of party performance, here, and notes the poor representation of the SDLP at the vote; and if their six missing MLAs (including the current and previous party leaders) had attended and voted for the motion, there would have been a numerical majority. Furthermore, a month after the Alliance Party’s ruling council had voted in favour of introducing same-sex civil partnership, its MLAs expressed divergent views.
What is evident is that the LGBT agenda is being strongly pursued globally, and this is not the last time same-sex marriage will be discussed in Northern Ireland. On an issue associated with such strongly-held views as this, the Assembly should undertake a consultation on whether to introduce same-sex marriage, but unlike in England and Wales, this should not be limited as to how its unmandated decision on ‘equal civil marriage’ is to be introduced.
No surprise there, then. In 2008 there were rumours at Westminster that the then Government had agreed with the Democratic Unionist Party not to interfere with the abortion law in Northern Ireland in return for the DUP’s support for its proposal in the Counter-Terrorism Bill to detain suspects for up to 42 days without charge. Both sides denied having made such a deal and, in any case, the 42 days proposal was dropped; however, on the last day before the 2008 summer adjournment a cross-party group of MPs tried to force the issue by tabling a new clause to the Human Fertilisation and Embryology Bill that would have extended the 1967 Act to Northern Ireland.
In the event, there was no time to debate the new clause; but in a subsequent debate in Westminster Hall, in July 2009 Paul Goggins, then Minister of State at the Northern Ireland Office, reiterated the Government’s view that “… the best place for discussion [about] decisions on abortion law in Northern Ireland is the Northern Ireland Assembly, when criminal justice powers are restored” (HC Deb (2008–09) 15 July 2009 c 94WH).
I should be very surprised indeed if the general run of MLAs took a different view on same-sex marriage.
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