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Sitting in the High Court in Belfast, Mr Justice Colton quashed the decision of the General Register Office to refuse the application, finding that it breached the applicant’s ECHR rights.

Background

Ms Laura Smyth, a humanist and a member of the BHA, brought an application to the General Register Office (GRO) seeking temporary authorisation for a BHA wedding celebrant to perform the marriage to her fiancé, Mr Eunan O’Kane, under article 14 of the Marriage (Northern Ireland) Order 2003.

The application to have the marriage legally recognised by the State, was refused by the Registrar General, and Ms Smyth challenged both the decision and the lawfulness of the legislation which she said were incompatible with her rights under the European Convention on Human Rights.

Marriage (Northern Ireland) Order 2003

Marriages in Northern Ireland are governed by the Marriage (Northern Ireland) Order 2003 which introduced a uniform system of civil preliminaries for both religious and civil marriages.

Under article 14 of the 2003 Order, the Registrar General may grant to a member of a religious body a temporary authorisation to solemnise a religious marriage.

Ms Smyth complained that whilst a wide range of religious groups were afforded the legal privilege of being able to marry their members in accordance with their own beliefs and traditions, this same legal privilege is being denied to humanists without any proper justification in law.

She argued that the term “religious marriage” should be read to include the concept of “belief marriage” and afforded equal protection and which would encompass a humanist marriage performed by a BHA accredited celebrant.

Alternatively, she argued that those provisions of the 2003 Order which permit only authorisation of religious marriage on behalf of a religious body by the GRO and which thereby operate to exclude the possibility of granting temporary authorisation (and thereby legal recognition) for a humanist marriage ceremony are unlawful as they are in breach of Articles 9 and/or 14 of the ECHR.

She further argued that the Department of Finance acted unlawfully by its failure to introduce regulations to correct this illegality, and for its failure to discharge its statutory obligation under section 75 of the Northern Ireland Act 1998.

The respondents argued that there was no obligation on the State to facilitate every aspect of manifestation of religion or belief and there was no interference with Ms Smyth’s rights.

The Attorney General appeared at the hearing as Ms Smyth was challenging the compatibility of the provisions of the 2003 Order – the AG contended that there was no illegality and that a requirement to provide legal recognition for humanist marriage would go against the “natural flow” of existing Strasbourg case law.

Article 9 (Freedom of thought, conscience and religion)

Mr Justice Colton stated that there were two related elements to the question of whether Article 9 was engaged:

Article 9(1) ECHR provides that “Everyone has the right to freedom of thought, conscience and religion…”

Article 9(2) qualifies the right to manifest one’s religion or beliefs.

The Court found that Ms Smyth easily met the legal test for “belief”; that her humanist beliefs reached the level of cogency, seriousness, cohesion and importance to engage her Article 9(1) rights; and that her desire to have a humanist officiate at her wedding was a manifestation of her humanist beliefs.

Unlawful interference

Ms Smyth submitted that Article 9 imposed an obligation on the State to afford legal recognition to her humanist marriage which would be conducted by a BHA celebrant.

The respondents said there was no interference with the manifestation of Ms Smyth’s beliefs as she was not prevented from marrying; she was not restricted from having a humanist influenced civil ceremony officiated over by a registrar; and that she could also have a separate humanist wedding, albeit without legal status, officiated over by a celebrant of her choosing.

Mr Justice Colton concluded that there had been an interference with Ms Smyth’s Article 9 rights as distinctions had been placed between religious and secular beliefs; as such, there had been an unlawful interference with Ms Smyth’s Convention rights with no objective justification in law.

The Court consequently had to interpret the 2003 Order in a way that would be compatible with the ECHR, as required by section 3 of the Human Rights Act 1998.

Conclusion

Mr Justice Colton declined to make a declaration of incompatibility in respect of the 2003 Order, or that the Department has failed to discharge its statutory obligations pursuant to section 75 of the Northern Ireland Act 1998; however, he stated that the Department should now proceed to introduce regulations to remedy the breaches of Convention rights identified.

Accordingly, the Court made orders:

Furthermore, the Court made declarations: