In Smyth, Re Judicial Review  NIQB 55, Colton J had quashed the General Register Office’s decision to refuse an application for authorisation for a humanist marriage in Northern Ireland on the grounds that the refusal breached the applicant’s ECHR rights. He ordered the GRO to grant the application and gave a temporary authorisation for a humanist celebrant to perform a legally valid and binding humanist wedding ceremony. Accordingly, in June 2017 Ms Laura Lacole (alias Smyth) and her fiancé Eunan O’Kane were married in a ceremony conducted by Humanists UK celebrant Isabel Russo.
This morning, 28 June, the Northern Ireland Court of Appeal handed down its substantive judgment on the issue of principle.
The Attorney General had contended that
- the British Humanist Association did not exercise a marriage ministry and that Colton J had therefore been wrong to rely upon its objectives for the purpose of establishing a nexus between the respondent’s wish to have a particular form of marriage recognised by law and her underlying beliefs;
- that Colton J ought to have enquired into what was, from the respondent’s perspective, missing from a civil ceremony and whether what was missing had a sufficiently close nexus with her underlying belief;
- that a humanist celebrant was not in a relevantly comparable situation to those who could be granted temporary authorisation to solemnise marriages pursuant to Article 14 of the 2003 Order because such an authorisation could only be issued to a member of a religious body and, in his contention, humanists did not constitute such a body;
- that refusing temporary authorisation had been justified by the need to protect the dignity of marriage by preventing its commercialisation because the licensing of humanist celebrants merely provided a commercial platform for certain individuals to earn money; and
- that the finding that Articles 9 and 14 ECHR required the state to provide legal recognition for humanist marriage went against the natural flow of existing Strasbourg case law.
Perhaps paradoxically, though the Court of Appeal accepted that the statutory prohibition of a humanist celebrant as the person solemnising the respondent’s marriage would have constituted discrimination pursuant to Articles 9 and 14 ECHR, it considered that Article 31 of the 2003 Order provided a basis for avoiding such discrimination by enabling the appointment of a humanist celebrant without the need for it to be read and given effect in a way that was compatible with the Convention rights pursuant to section 3 of the Human Rights Act 1998. The fact that the person solemnising the marriage was appointed pursuant to Article 31 of the Marriage (Northern Ireland) Order 2003 (Registrars and other staff) rather than pursuant to Article 14 (Temporary authorisation to solemnise religious marriage) did not, in its view, give rise to any difference of treatment.
Accordingly, it allowed the Attorney’s appeal, quashed the mandatory Order made by Colton J and set aside his declaration – but otherwise agreed with his judgment.
[At the time of writing, the full judgment was not available. The above has been prepared from the Court’s summary.]