Saturday, 30 March 2013

ECHR complaint is likely if same-sex couples cannot marry in Northern Ireland

With same-sex marriage legislation progressing promisingly through the UK Parliament, in the form of the Marriage (Same Sex Couples) Bill, it seems highly likely that marriage will be available to same-sex couples in England and Wales as soon as 2014. A similar legislative process is underway in Scotland in the form of the Marriage and Civil Partnership (Scotland) Bill.

However, in Northern Ireland, the situation is different. Last October, the Stormont Assembly in Northern Ireland rejected a motion to enable same-sex couples to marry. The Green Party and Sinn Fein were in favour of the motion, but it was defeated by the Democratic Unionist Party.

Yesterday, The Rainbow Project and Amnesty International warned Stormont that it will face court action if it fails to enable same-sex marriage when it is available in the rest of the UK.

Possible court action could be brought under the Human Rights Act in the domestic courts and, if that failed to remedy the situation, a complaint could be made to the European Court of Human Rights. Such a complaint to the Court would present a novel legal issue which it has hitherto not considered: the existence of different arrangements for same-sex marriage within a nation state. Whilst the Court has so far been reluctant to recognize a right to same-sex marriage under Article 12 of the Convention, the existence of differences in treatment in marriage within the jurisdictions of the UK based solely on sexual orientation could make a more compelling Article 14 case than those argued in previous applications. What would the Court make of a situation whereby citizens of a Council of Europe state could contract same-sex civil marriage in one part of the state but not in another?   

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