As we noted at the time, in Close & Ors, Re Judicial Review  NIQB 79, O’Hara J had dismissed a challenge to Article 6 of the Marriage (Northern Ireland) Order 2003 by two same-sex couples who had entered into civil partnerships in 2005. The applicants – Grainne Close and Shannon Sickles, and Chris and Henry Flanagan-Kane – had been the first two couples to register civil partnerships following the introduction of the Civil Partnership Act 2004, and they contended that the effect of the ECHR, as incorporated into UK law by the Human Rights Act 1998, was to render the denial of same-sex marriage in Northern Ireland unlawful. Since the first-instance hearing, however, the UK Parliament had made the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019.
The Court of Appeal has today, 7 April, handed down judgment on their appeal against O’Hara J’s judgment. The Court considered that, in the circumstances, the relevant ECtHR and domestic case law led it to 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 the appeal were whether intervention by a domestic court was appropriate, whether that intervention should include a determination that the prohibition of same-sex marriage had violated rights under Article 14 and what institutional respect, if any, to attach to the legislative choice that had been made.
A claim under Article 14 ECHR generally raised 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?
It was common cause that the circumstances in the appeal fell within the ambit of Articles 8 and 12 ECHR and apparent that access to marriage and civil partnership in Northern Ireland was based on sexual orientation. The policy of the legislature had been 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. It was as a policy that the ECtHR continued to support in its recent case law aIt did not, however, accept, the submission on behalf of the NI Department of Finance and Personnel that because marriage and civil partnership offered the same core rights there was no difference between them.
It had been clear from the NI Assembly debates that the principal objection to the introduction of same-sex marriage was to maintain and uphold acultural 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 2014 and 2015, however, there had been significant developments. Scotland had passed a Same Sex Marriage Act in 2014 and in May 2015 Ireland had held a referendum on the introduction of same-sex marriage that achieved a majority of more than 60 per cent. In November 2015, a majority of members of the NI Assembly voted in favour of the introduction of same-sex marriage: the vote failed solely because a petition of concern had been introduced. The opinion poll evidence in Northern Ireland had suggested that by the end of 2015 there was a clear majority in favour of the introduction of same-sex marriage.
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 had been 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 August 2017 the absence of same-sex marriage in Northern Ireland discriminated against same-sex couples, that a fair balance between tradition and personal rights had not been struck and that, therefore, the discrimination had not been justified; however, in light of the subsequent legislative developments, there was no purpose to be served by making a declaration under section 4 of the HRA.
This post has been prepared from the Court’s summary: the full text of the judgment is not yet available.
Update: The full judgment is now available – and the title has changed (hence the change in title of this post): Sickles & Anor, Re Judicial Review  NICA 20.