Regular readers may recall the long-running battle over the Adoption (Northern Ireland) Order 1987, which imposes a blanket ban on all unmarried couples (whether same-sex, opposite sex or civil partners) adopting as a couple. In P & Ors, Re (Northern Ireland)  UKHL 38 (18 June 2008) the House of Lords declared this illegal – but precisely nothing was done to remedy the situation and the Northern Ireland Executive has simply ignored the judgment.
Immediately following that judgment, in July 2008, the NI Human Rights Commission wrote to the Minister of Health asking about his plans for implementing it and did not receive an answer. Eventually, in April 2010, the proposed Adoption and Children Bill (which, it was assumed, would deal with the issues raised in Re P) was postponed indefinitely by the NI Executive.
The NIHRC took the matter to the High Court in Northern Ireland Human Rights Commission, Re Judicial Review  NIQB 77, when the specific issue was same-sex adoption. Treacy J noted that
“… there is no right to adopt, either in convention law or domestic law … However, statute has created a legal opportunity in the form of the right to apply to adopt. That right or opportunity falls squarely within the ambit of Art 8 and the state is enjoined by Art 14 to secure the enjoyment of the right without discrimination on any prohibited ground” (para 71: emphasis added).
“The justification for retaining the current eligibility criteria when considered from the point of view of a child’s right to be adopted has been demolished by the judgment in Re P” (para 72).
Following the subsequent remedies hearing he ruled as follows:
“Notwithstanding Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 it does not prevent couples who are not married, or in a civil partnership, from applying to adopt a child pursuant to the terms of that Order. All individuals and couples, regardless of marriage status or sexual orientation are eligible to be considered as an adoptive parent(s)” (postscript to para 83).
Nothing happened; and the Executive appealed and lost. In Northern Ireland Human Rights Commission, Re Judicial Review  NICA 37 provisions of the Order were found unjustifiably discriminatory to those in same-sex relationships, contrary to Articles 8 (private and family life) and 14 (discrimination) ECHR.
Moreover, in a second-parent adoption case at Strasbourg, X & Ors v Austria  ECHR 148 (19 February 2013), the Grand Chamber ECtHR held by 10 votes to 7 that Austrian law discriminated against a same-sex couple because it prevented them from adopting jointly the biological child of one of them – the discrimination being that if the applicants had been an unmarried opposite-sex couple they would have been permitted to adopt jointly. Apart from the result, the most interesting feature of the case is that Attorney-General for Northern Ireland intervened. He argued:
- that Article 7 of the 2008 European Convention on the Adoption of Children made it clear that there was no consensus in respect of adoption by same-sex couples (para 84);
- that the ECHR did not guarantee a right to adopt (para 86); and
- that Strasbourg had so far exercised judicial restraint, accepting that domestic legislatures were better-placed than European judges to assess questions about family, marriage and the relations between parents and children (para 86).
And the Attorney intervened in Strasbourg without the knowledge or approval of the UK Government. In a written answer in the House of Lords on 22 October 2012 c WA2 the Advocate-General for Scotland said that the Westminster Government had not been consulted before the intervention, had not approved its terms and had made it clear to the ECtHR that the Attorney-General for Northern Ireland was not representing the views of HMG.
The Supreme Court has now refused the Northern Ireland Department of Health, Social Services and Public Safety permission to appeal the judgment of the NI Court of Appeal. The Supreme Court issued an order on 22 October stating that the application did not satisfy the criteria of raising an arguable point of law of general public importance.
So it’s back to the NI Executive which, having done damn-all to implement the initial judgment in Re P and having intervened in a case in Strasbourg that was none of its business, will now – presumably – have to address the issue of incompatibility with an amending Order.
Don’t hold your breath…
Have I understood correctly? That the UK government is saying that its permission is needed for the NI government to intervene in an Austrian case in the ECtHR about an issue in which the UK SC earlier ruled against NI, giving victory to UK?
What happened to old-fashioned concepts like subsidiarity, margin of appreciation, different peoples’ right self-determination, multiculturism and diversity? What will happen to the Scots now, if the Scottish Parliament rejects same-sex marriage that Westminster Parliament has allowed in England and Wales?
I don’t think that the Advocate-General said that permission was needed: merely that the intervention had been made without the knowledge or agreement of HMG.
But you raise an interesting point about human rights in relation to devolution. Perhaps the extreme example is judicial corporal punishment, which was abolished generally in the UK in 1948, though it persisted in prisons as a punishment for serious assaults on prison staff until it was abolished by s 65 (Abolition of corporal punishment in prison) Criminal Justice Act 1967.
However, birching and caning persisted in the Isle of Man until brought to an end, in practice, as a result of Tyrer v UK  ECHR 2 on the grounds that they violated Article 3 ECHR (inhuman or degrading treatment or punishment) – though they were not removed from the Manx statute book until 1993. The effect of Tyrer was that the UK Government had to go along to Strasbourg to defend a practice – judicial corporal punishment of young offenders – that had been long since abolished in the UK.
I’m not convinced that there is an issue of subsidiarity here because compliance with human rights is not something that can be devolved except in the sense that the devolved administrations are expected to be in compliance with the ECHR. However, they are not signatories to it (nor, for that matter, to the EU Charter of Rights): it’s the UK Government that is the signatory. And if a devolved administration or Crown dependency chooses to do something in breach of the Convention it’s HMG that will have to carry the can at Strasbourg.
But to return to the Northern Ireland adoption issue, the House of Lords ruled that the ban was contrary to the ECHR, since when the NI Executive did nothing about it. The NI Court of Appeal confirmed that position and the Supreme Court has now decided that there is no further issue to examine. So the NI Executive appears to be in flagrant breach of repeated adverse judgments by the courts: what about the rule of law?