In Smyth, Re Judicial Review [2017] NIQB 55, Colton J had quashed the General Register Office (GRO)’s decision to refuse an application to authorise a humanist marriage on the grounds that the refusal breached the applicant's rights under Articles 9 and 14 ECHR. He ordered the GRO to grant the application and gave a temporary authorisation for a humanist celebrant to perform a legally valid and binding humanist wedding ceremony. That judgment was appealed by the Attorney General for Northern Ireland. However, in June 2017 the Court of Appeal granted interim authority for the wedding to go ahead and Ms Laura Lacole (alias Smyth) and her fiancé, Eunan O'Kane, were duly married in a humanist ceremony.
A year later, Morgan LCJ delivered the substantive judgment of the court. The Attorney General had contended:
i. That the British Humanist Association did not exercise a marriage ministry and that Colton J had therefore been wrong to rely upon its objectives for the purpose of establishing a nexus between the respondent's wish to have a particular form of marriage recognised by law and her underlying beliefs;
ii. That Colton J ought to have enquired into what was, from the respondent's perspective, missing from a civil ceremony and whether what was missing had a sufficiently close nexus with her underlying belief;
iii. That a humanist celebrant was not in a relevantly comparable situation to those who could be granted temporary authorisation to solemnise marriages pursuant to Article 14 of the 2003 Order because such an authorisation could only be issued to a member of a religious body and, in his contention, humanists did not constitute a religious body;
iv. That refusing temporary authorisation had been justified by the need to protect the dignity of marriage by preventing its commercialisation because the licensing of humanist celebrants merely provided a commercial platform for certain individuals to earn money; and
v. That the finding that Articles 9 and 14 ECHR required the state to provide legal recognition for humanist marriage went against the natural flow of existing Strasbourg case law.
The court held that the statutory prohibition on a humanist celebrant solemnising the respondent's marriage would have constituted discrimination pursuant to Articles 9 and 14 ECHR. However, it also concluded that Article 31 of the Marriage (Northern Ireland) Order 2003 already provided a basis for avoiding such discrimination by enabling the appointment of a humanist celebrant without the need for it to be read and given effect in a way that was compatible with the Convention rights pursuant to section 3 of the Human Rights Act 1998. The fact that the person solemnising the marriage was appointed pursuant to Article 31 of the Order (Registrars and other staff) rather than pursuant to Article 14 (Temporary authorisation to solemnise religious marriage) did not, in its view, give rise to any discriminatory difference of treatment. Therefore, humanist ceremonies were permitted under the existing legislation. Somewhat paradoxically, therefore, the court allowed the Attorney General's appeal, quashed the mandatory Order made by Colton J and set aside his declaration, but otherwise agreed with his carefully reasoned judgment. [Frank Cranmer]
