About this case:

• Citation:
  [2020] NICA 20
• Court:
  Court of Appeal
• Judge:
  Sir Declan Morgan

However, delivering the judgment, the Lord Chief Justice, Sir Declan Morgan, said there was no purpose to be served by making a declaration under section 4 of the Human Rights Act 1998 because the law had since changed.

Background

The appellants in the case were two same-sex couples, Grainne Close and Shannon Sickles, and Christopher Flanagan-Kane and Henry Flanagan-Kane, who entered into civil partnerships in December 2005. Both couples wished to enter into a civil marriage, but asserted they were prohibited from doing so by Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003.

The 2003 Order was made by the UK Parliament at a time when the Northern Ireland Assembly was suspended. Article 6(6)(e) provided that there was a legal impediment to a marriage if both the parties are of the same sex.

By November 2015, the Assembly had voted against the introduction of same sex marriage on four occasions. The vote, however, on 2 November 2015 was in favour. A petition of concern was lodged and the motion to introduce same sex-marriage did not receive the necessary cross-community support.

High Court

An application for judicial review was dismissed by the High Court in August 2017.

Justice O’Hara held that the European Court of Human Rights (ECtHR) case law established that the ECHR did not impose an obligation on a State to provide access to same sex marriage. He noted a trend towards the recognition of same-sex marriage but said there was no sign whatever of the ECtHR moving in that direction.

On the basis of the case law before him, the trial judge felt driven to conclude that the ECHR rights of the appellants had not been violated. He said it was not the role of a judge to decide on social policy: that was for the NI Executive and the NI Assembly.

The trial judge concluded that the statutory provisions in Northern Ireland did not violate any rights as those rights did not exist in any legal sense.

Grounds of appeal

The appellants were permitted to amend their Order 53 Statement before the Court of Appeal.

The sole declaration being sought was: “A declaration pursuant to section 4 of the Human Rights Act 1998 that Article 6(6)(e) of the 2003 Order is compatible with Article 14 taken with Articles 8 and 12 of the ECHR insofar as it prevents individuals of the same sex entering civil marriage.”

The court considered the relevant ECtHR and domestic case law, and made 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 this appeal were therefore whether intervention by a domestic court is appropriate, whether that intervention should include a determination that the prohibition of same sex marriage violated rights under Article 14 and what, if any, institutional respect to attach to the legislative choice.

Consideration

A claim under Article 14 ECHR generally raises 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?

The court said it was common case that the circumstances in this appeal fell within the ambit of Articles 8 and 12 and apparent that access to marriage and civil partnership in Northern Ireland was based on sexual orientation.

It commented that the policy of the legislature was 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. This had been accurately described as incorporating a separate but equal status.

The court noted it as a policy which the ECtHR continues to support in its recent case law and which is followed even today in many of the states of the Council of Europe, but accepted that the status in each case is different.

The court then considered the test for justification. It noted the trial judge had recognised there had been a clear trend towards providing legal rights and recognition for same-sex couples who wish to form long lasting relationships. It commented, however, that there was still some ambivalence about the entitlement to such rights which had not been resolved until a decision of the ECtHR in 2010.

The court said it was clear from Assembly debates that the principal objection to the introduction of same-sex marriage was to maintain and uphold a cultural 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.

The court considered 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 2015, there were some significant developments. Ireland introduced same-sex marriage following a referendum, and a majority of MLAs voted in favour of the introduction of same-sex marriage in Northern Ireland, which did not pass solely because a petition of concern had been introduced. The opinion poll evidence in Northern Ireland suggested that by the end of 2015 there was a clear majority in favour of the introduction of same sex marriage.

The statutory purpose of the petition of concern mechanism was to ensure protection for the traditions of both unionist and nationalist communities. The court noted that there was less enthusiasm for same-sex marriage in the unionist community but considered, however, that where the petition of concern is utilised to defeat the will of the Assembly on an issue dealing with a difference of treatment on the grounds of sexual orientation, the scrutiny required by the courts is enhanced.

The changes effected in Scotland in 2014 and in Ireland in 2015 were of considerable significance in this jurisdiction because there are “strong ties of kinship and friendship between many people in Northern Ireland and those countries”.

Sir Declan said: “In our view the events of 2015 and their consequences increasingly called into question the balance between the interests of those favouring tradition and the interests of those denied the opportunity to be seen as equal and no longer separate.”

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 Assembly was 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 this case in August 2017, the absence of same-sex marriage in this jurisdiction discriminated against same-sex couples, that a fair balance between tradition and personal rights had not been struck and that therefore the discrimination was not justified.

Conclusion

Same-sex marriage and opposite-sex civil partnerships were eventually introduced in Northern Ireland in 2020 under provisions of the Northern Ireland (Executive Formation etc) Act 2019.

The court concluded that, in light of the legislative developments, there was no purpose to be served by making a declaration under section 4 of the HRA.