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Sympathising with the applicants, Justice O’Hara stated that he hoped the Northern Ireland Assembly would consider the evidence put forward in this application, and in Petition X, in order to properly understand the decision before them.

Background

The applicants in this judicial review are two same sex couples – Grainne Close and Shannon Sickles, and Christopher Flanagan Kane and Henry Flanagan Kane – who entered into civil partnerships in 2005.

Their challenge was to Article 6 of the Marriage (NI) Order 2003 which prohibits marriage “if both parties are of the same sex”. They both want to be married couples rather than civil partners but cannot be due to that provision.

The applicants’ brought the application for judicial review because their ambition to be married has been frustrated by the refusal of the Northern Ireland Assembly to pass legislation to permit same sex marriage.

In its initial form the judicial review challenged the use of the Petition of Concern in the NI Assembly, however that part of the case was not pursued.

As such, the case centred on whether Article 6 of the Marriage (NI) Order 2003 unlawfully discriminates against the applicants on the basis of sexual orientation contrary to the Human Rights Act and specifically Article 8 (right to respect for private and family life), Article 12 (the right to marry), and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

The Effect of the Human Rights Act and the European Convention on Human Rights

The applicants contended that the effect of the Convention, as incorporated into the law of the United Kingdom by the Human Rights Act, was that the denial of same sex marriage in Northern Ireland is unlawful.

It was accepted that the Strasbourg Court had not imposed on States an obligation to introduce same sex marriage under any provision of the Convention, but that the required legal recognition exists in NI through civil partnerships.

In Schalk and Kopf 53 EHRR 20, in the context of Article 12, the Strasbourg Court held that a provision of the Austrian Civil Code which provided that marriage had to be between people of the opposite sex was not contrary to Article 12. The court further held that changes in attitudes and social policy in recent times did not lead to a conclusion that a “living instrument” interpretation of the Convention was justified or tenable so as to lead to a conclusion that Article 12 now embraced the concept of same sex marriage. Further the court noted that there is no European consensus on same sex marriage.

In Hamalainen , in the context of Article 12, the Grand Chamber concluded that the Article could not be construed as imposing an obligation on member states to grant access to marriage to same sex couples.

Again, in Oliari v Italy the Court again rejected an Article 12 complaint about the failure to legislate for same sex marriage as being manifestly ill-founded, both on its own and even when read in conjunction with Article 14.

In Schalk and Kopf and in Hamalainen, the court also rejected the proposition that any different result could be reached under Article 8.

Justice O’Hara explained that all of the relevant case law from the Strasbourg Court was against the applicants’ case – to which Counsel for the applicants responded that the case law is wrong.

Ullah

The Attorney General and Counsel for the Department of Finance and Personnel submitted that the case must inevitably fail under the Ullah principle because Justice O’Hara could not take an independent view of that case law.

Justice O’Hara stated that although there appeared to be a trend towards recognition of same sex marriage in more and more countries, “…unfortunately for the applicants there is no sign whatever of the Strasbourg Court moving in that direction. It has had three opportunities to consider the issue during this decade and has turned its face firmly against it… Put simply, the Strasbourg Court does not recognise a “right” to same sex marriage. That being the case, the current statutory provisions in Northern Ireland do not violate any rights. Those rights do not exist in any legal sense”.

On that basis Justice O’Hara stated that he was “driven to conclude that the Convention rights of the applicants have not been violated” and that it was the Executive’s role to decide on social policy. As such, if equality in marriage is to be achieved for gay and lesbian couples such as these applicants, it would have to be achieved through the Assembly.

Dismissing the application for judicial review, Justice O’Hara said he hoped that “when the Assembly is next asked to consider the issue, those who have the responsibility of voting will read the evidence in this case and in Re X in order to understand more completely the issue before them”.