In a guest post, Neil Addison questions the legality of the current ban on weddings.
The coronavirus pandemic has bought most aspects of normal life to an end in the UK. Most of the restrictions have been brought in through Statutory Instruments under the Public Health (Control of Disease) Act 1984, the most far-reaching of which is The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which came into force at 1 pm on 26 March 2020 (equivalent Regulations for Wales, Scotland and Northern Ireland were made by the relevant devolved administrations).
One of the effects of the Regulations has been to prevent any marriages taking place and considering the amount of publicity there has been about police enforcement and legal overreach with these Regulations, there has been surprisingly little comment on whether the blanket restriction on marriage is either necessary or lawful.
Like all UK legislation, the 1984 Act and the 2020 regulations are subject to the Human Rights Act 1998 (HRA), which incorporates the European Convention on Human Rights into UK law. Section 3(1) of the 1998 Act states that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Since 26 March 26, no marriages have been allowed to take place in the UK despite Article 12 of the Convention which says in unequivocal terms:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
Of course, the right to marry is not the only Convention right which has been affected by the Regulations, by limiting travel even for the purpose of visiting family, by closing churches and by preventing people meeting in groups of more than two, the regulations have infringed the following rights: Article 8 – Right to respect for private and family life, Article 9 – Freedom of thought, conscience and religion, Article 11 – Freedom of assembly and association. However, these rights are all “qualified rights” and can be restricted “in the interests of public safety … for the protection of health or morals … for the protection of the rights and freedoms of others.”
There is no doubt that the Regulations can be legally defended as being ”for the protection of health” and “for public safety”; and even if it were argued in court that the restrictions go too far, it is unlikely that any court would want to interfere in what is ultimately a value judgment based, as we are repetitively told, on scientific advice.
However, unlike the rights under Articles 8, 9 and 11, Article 12 is an absolute right which is not subject to any restrictions. Under Article 12, “Men and women of marriageable age have the right to marry’’: no ifs, no buts and no provision permitting restrictions “in the interests of public safety etc etc”. Therefore, by preventing any marriages taking place, the Government is in breach of Article 12 and it cannot justify that breach by reference to the dangers and disruption caused by the coronavirus epidemic.
It is also important to remember that that the Regulations are just that: Regulations, made under the provisions of a statute. As s.3 of the HRA makes it clear, Regulations have to be read in a manner which is compatible with the Convention unless the primary legislation (in this case the 1984 Act) requires them to be incompatible with the Convention. However, in the case of the Coronavirus Regulations, the 1984 Act merely permits regulations to be made: it does not require them to be in any particular form.
Under s.6 of the HRA, it is unlawful for a public authority to act in a way that is incompatible with a Convention right; and since the Regulations are unlawful in preventing marriages being solemnised and registered, all that is necessary is for a couple who want to get married to demand that their local registration office organise a wedding. If the Registration Office refuses, he or she could then be sued under the HRA and ordered to register the marriage. For religious couples for whom a purely civil marriage would not be a “real” marriage, the same principle would apply: they have a right to have a religious marriage that is compatible with the national legislation on marriage. That does not mean that any church, mosque, meeting house etc would be obliged to perform a religious marriage, but it does mean that the Government would have to allow the wedding to take place even if that involved more than two people being together in the same premises or required that a church was opened for the purpose of solemnising the marriage.
It is important to note, however, that Article 12 only grants a right to a “marriage”; it does not grant the right to a wedding with bridesmaids, best man and tearful parents and it certainly doesn’t grant any right to have a wedding reception with cake, speeches and rude jokes from Uncle Frank. If a couple wants that sort of wedding, then they will have to wait until the lockdown is lifted; however, if the couple simply wants to be married, then the Government is obliged to permit the marriage to take place. In many respects, there may be no harm in people being reminded that it is the marriage that is important, not the wedding ceremony.
Obviously, the Government could still regulate how many people are in the same room when the marriage takes place. Five is the minimum number required by law: namely, the happy couple, the celebrant and the two witnesses. However, there is no reason why the two witnesses cannot watch the ceremony via video link rather than being in the same room and there can hardly be any objection to the happy couple being together since, presumably, they will not intend to be social distancing on their wedding night.
In Love in a Covid-19 Climate Professor Rebecca Probert has carefully examined ways in which marriage could be made easier in order to comply with the problems caused by the coronavirus. The Government needs to take some of those recommendations on board soon. The continued ban on marriage is not simply bad politics – it is also unlawful and the Government needs to deal with that fact ASAP rather than waiting to be dragged unnecessarily through the courts.
Cite this article as: Neil Addison, “Is the coronavirus ban on weddings lawful?” in Law & Religion UK, 11 May 2020, https://www.lawandreligionuk.com/2020/05/11/is-the-coronavirus-ban-on-weddings-lawful/#more-57809.