Northern Ireland Court of Appeal to consider same-sex marriage challenge

25 February 2018 by Martin Downs

The Court of Appeal in Northern Ireland will sit this week to consider an appeal against the refusal of the High Court to give recognition to the marriage of a gay man from Northern Ireland who had married his husband in London under the Marriage (Same Sex Couples) Act 2013. The original decision by Mr Justice O’Hara was published last August and reported as Re X [2017] NIFam 12. Under the terms of the 2013 Act, same sex marriage in England and Wales is treated for the purposes of the law of Northern Ireland as a civil partnership (in accordance with the Civil Partnership Act 2004). The Petitioner wants recognition of his marriage as such and argues that the denial of recognition is a breach of his Convention Rights.

When civil partnerships were being introduced for England, Wales and Scotland, Northern Ireland was going through one of its periods of direct rule from London. The UK government embarked upon a lightning consultation exercise and subsequently decided to include Northern Ireland in what came to be the Civil Partnership Act 2004. That meant that civil partnership was a UK wide arrangement. In fact, by a quirk of the law, the first civil partnership ceremony in the UK took place in Belfast, between Shannon Sickles and Grainne Close (who have also been refused a High Court Declaration that they can get married in the North). 

Marriage is devolved under the terms of the devolution settlements. By the time the government in London decided to introduce same-sex marriage there was a more assertive government in Scotland and so separate Acts were passed in London and Edinburgh extending marriage to same sex couples. The Northern Ireland Assembly neither enacted same sex marriage themselves nor passed a Legislative Consent Motion (LCM) allowing the Westminster Parliament to do so. In fact the only LCM that was approved was one that allowed the enactment of the provision for same sex marriages in England and Wales to be recognised as civil partnerships in Northern Ireland.

The failure to provide for same sex marriage has proved very controversial in the North – especially since opinion polls show it receives strong support in Northern Ireland and has received the support of the majority of members of the Stormont Assembly. Legislation has failed because it received only minority support in the Unionist Community and a Petition of Concern was used to block it.

Mr Justice O’Hara decided that the recent case law of the European Court of Human Rights, including Oliari v Italy [2015], shows that the Human Rights Court has not arrived at a position that the Convention mandates the extension of marriage to same sex couples. He concluded that it was not open to him to give an interpretation of the Convention which is quite different from that of the Strasbourg Court – and purported to follow the “Ullah” principle which he described as operating thus:

save in special circumstances I must follow [the] clear and constant jurisprudence of the Strasbourg Court.

This caused some surprise as it did not appear consistent with the way the Courts had treated the issue of adoption of children in Northern Ireland by unmarried different-sex and same-sex couples.

It is hard not to comment that O’Hara J had caused surprise by taking 20 months to hand down the original eleven page decision after the close of argument in the original hearing (the Sickles Judgment was four pages). It is hoped that the Court of Appeal might be somewhat speedier. In any event the case seems destined to head to the UK Supreme Court, assuming that the issue is not resolved in the meantime by either the UK Parliament (a Private Member’s Bill is due to be introduced in March) or legislation in Stormont – provided it returns to work.