Breaking news: Article 9 challenge to lack of provision for humanist weddings in England & Wales dismissed

In R (Harrison & Ors) v Secretary of State for Justice [2020] EWHC 2096 (Admin), the Claimants were humanists who complained that the legal recognition of different forms of religious wedding ceremonies under English law did not extend to weddings carried out in accordance with their humanist beliefs. They contended that this discriminated against them unjustifiably and in breach of their rights under the European Convention on Human Rights and the Human Rights Act 1998. They were supported in their claim by Humanists UK. The focus of their claim was Article 9 ECHR (freedom of thought, conscience and religion) [70].

It was not in dispute that humanism has been afforded equal status to the major world religions in many aspects of public life in the United Kingdom, such as education, healthcare, public broadcasting and remembrance, and humanist marriage had been given legal recognition in Scotland, Northern Ireland and Jersey. Further, the Secretary of State accepted that humanism was a recognised belief system with a number of core beliefs [22].

Eady J dismissed the claim.

The discrimination suffered by the Claimants was real: “the difference of treatment they experience in seeking to manifest their humanist beliefs through the ceremony of marriage is a matter of substance, not merely one of form” [122] and “subject only to the question of justification – the present law gives rise to Article 14 discrimination in the Claimants’ enjoyment of their article 9 rights” [124].

However, the Government had asked the Law Commission to undertake a review of the law on how and where people can marry, and though the review had been delayed due to the COVID-19 pandemic, “but there is no reason to think that the public consultation exercise will not take place later this year” [123]. Crucially:

“In the present case, the Government has identified concerns as to the potential consequences of addressing one area of unequal treatment without doing so as part of a more general reform.  Specifically, in relation to the treatment of humanist and other non-religious belief marriages, particular issues were identified relating to the location where the ceremony might take place and/or as to the potential registration of celebrants; these were matters seen to potentially give rise to new species of discrimination if reform was only undertaken on a piecemeal basis.  The legitimacy of those concerns was acknowledged by the Law Commission’s Scoping Paper, which also recommended that any reform be undertaken on a wholesale basis.  While such concerns could not justify the taking of no action – the deference due to the Defendant cannot simply trump the discrimination identified in this case – they do demonstrate why this is a more nuanced area of social policy and one that engages a wider range of community interests than just those identified in these proceedings” [125].

Further, she appeared to endorse the Government’s view – which was supported by the Law Commission – that the order-making power granted by s.14(4) Marriage (Same Sex Couples) Act 2013 would not be sufficient, given the wider reform needed [127].

The Government’s failure to extend legal recognition to humanist marriages had to be seen in context:

“This is an area of social policy where a margin of judgment is properly to be allowed.  Although that does not mean that taking no action would be justified, or that the balance might not shift over time, addressing the differences in treatment identified by the Claimants would not be straightforward and this justifies the aim of considering the appropriate remedy as part of a more wholesale reform.  Although I may deprecate the delay that has occurred since 2015, I cannot ignore the fact that there is currently an on-going review of the law of marriage in this country that will necessarily engage with the wider concerns that have been raised.  Given these circumstances, at this time, the Defendant has demonstrated that a fair balance has been struck between the individual rights of the Claimants and those of the broader community” [128].

She concluded, therefore, that:

(1) the facts of the case fell within the ambit of Article 9 ECHR;

(2) there was a difference of treatment in respect of that right between the Claimants and others put forward for comparison;

(3) the difference was on a prescribed ground under Article 14 ECHR; and

(4) the Claimants’ comparators were in an analogous situation; but

(5) the Government had demonstrated a legitimate aim in seeking to address differences in treatment as part of a wholesale reform of marriage law “and, given the on-going review, has – at this time – established that a fair balance has been struck between the individual rights of the Claimants and wider community interests” [129].

Claim dismissed [130].

Andrew Copson, Chief Executive of Humanists UK, commented on Twitter,

“Though this judgment falls short of declaring a formal breach, the legal reasoning is clear. Government must act to address the discrimination faced by humanist couples. It’s a case of ‘when’ and not ‘if’.”

Humanists UK put out a press release commenting on the judgment, here.

Cite this article as: Frank Cranmer, "Breaking news: Article 9 challenge to lack of provision for humanist weddings in England & Wales dismissed" in Law & Religion UK, 31 July 2020, https://lawandreligionuk.com/2020/07/31/breaking-news-article-9-challenge-to-lack-of-provision-for-humanist-weddings-in-england-wales-dismissed/

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