About this case:

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Finding that the recognition of his marriage as a civil partnership in Northern Ireland was not a violation of his rights under the European Convention on Human Rights, Justice O’Hara stated that same sex marriage was a matter for the legislature, and not for the Courts.

Background

The applicant, X, who lives and works in Northern Ireland, married his husband in London in September 2014 – a same sex marriage recognised in law by the Marriage (Same Sex Couples) Act 2013. This Act applies to England and Wales bus does not extend to Northern Ireland save that in Schedule 2 it is provided that a same sex marriage is treated for the purposes of the law of Northern Ireland as a civil partnership in accordance with the Civil Partnership Act 2004.

The law on marriage is a matter which is a transferred matter under the Northern Ireland Act 1998, and therefore lies within the competence of the Northern Ireland Executive and the Northern Ireland Assembly.

NI High Court

X sought a declaration that his marriage in London was a valid and subsisting marriage under the law of Northern Ireland, contending that the failure to recognise his marriage as valid contravened his rights under the European Convention on Human Rights.

Specifically, the Court had to consider:

Discussing the consultation process which took place prior to the Marriage (Same Sex Couples) Act 2013, Justice O’Hara cited the Ministerial Forward to the Government’s response. This emphasised that marriage has been a civil institution since 1836, as well as a religious one, that sexuality was not a justifiable reason for the State preventing someone from marrying, and that extending this right to same sex couples would strengthen this vital institution.

Justice O’Hara sympathised with the frustration of supporters of same sex marriage, given that the NI Assembly had not yet passed into law any measure to recognise and introduce same sex marriage. He added, “…their frustration is increased by the fact that the Assembly has voted by a majority in favour of same sex marriage”, but that this vote has had no effect in law due to special voting arrangements. Justice O’Hara added, “…it is not at all difficult to understand how gay men and lesbians who have suffered discrimination, rejection and exclusion feel so strongly about the maintenance in Northern Ireland of the barrier to same sex marriage”

Nevertheless, Justice O’Hara stated that his judgment was “not based on social policy but on the law.”

Acknowledging the strong social policy arguments in favour of same sex marriage, Justice O’Hara held that based on the case law from the European Court of Human Rights in Strasbourg he could not conclude that X’s Convention rights had been violated.

This conclusion was supported by the following:

Ø While the Northern Ireland Human Rights Commission supports an equal level of human rights protection across the UK, in June 2012 its Chief Commissioner wrote that “the restriction of marriage to opposite sex couples does not violate the international standards and this is clear from both the international treaties and the jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee.” Justice O’Hara stated that the Chief Commissioner was correct to make this statement.

Ø The extensive papers from the consultation process did not at any point suggest that legislation was required to make English law compliant with the Convention.

Ø According to Justice O’Hara, it was not open to him “to give an interpretation of the Convention which is quite different from that of the Strasbourg Court”. This followed from the “Ullah” principle (R v Special Adjudicator, ex parte Ullah UKHL 26) that save in special circumstances, the judiciary must follow clear and constant jurisprudence of the Strasbourg Court.

Ø The doctrine of the margin of appreciation is replaced in domestic courts by a doctrine of a discretionary area of judgment – i.e. while the courts are obliged to intervene in some circumstances, they should be careful about how and when they do so and respect the separation of powers.

Ø According to Justice O’Hara, it was doubtful that the area of discretionary judgment should arise in this case because the Strasbourg Court held that same sex marriage was not a Convention right. As such, while it remains open to Governments and Parliaments to provide for it, they are not obliged to do so; and whether they do so is a matter for them, not for the Courts.

Ø “In its judgment in Re P UKHL 38, the House of Lords declared that an unmarried couple could be considered as adoptive parents for a child despite a specific statutory provision that only married couples could so be considered. That judgment was heavily influenced by the conclusion that the Strasbourg Court which had previously taken a contrary view would no longer do so. There is simply no reason in this case to believe that the Strasbourg Court will take a different view in the foreseeable future in light of its clear, repeated and recent rulings”.