In Re an application by Laura Smyth for Judicial Review, Colton J has quashed the General Register Office’s decision to refuse an application for authorisation for a humanist marriage in Northern Ireland on the grounds that the refusal breached the applicant’s ECHR rights. He ordered the GRO to grant the application, which would give temporary authorisation for a humanist celebrant to perform a legally valid and binding humanist wedding ceremony.

Background

Laura Smyth is a humanist and a member of the British Humanist Association. She and her fiancé, Eunan O’Kane, want a legally-recognised humanist wedding ceremony when they get married on 22 June. Her application to the GRO seeking temporary authorisation for a British Humanist Association wedding celebrant to perform the marriage under Article 14 of the Marriage (Northern Ireland) Order 2003 was refused and she challenged both the decision and the lawfulness of the legislation which, she argued, were incompatible with her rights under the ECHR.

The 2003 Order which introduced a uniform system of civil preliminaries for both religious and civil marriages shifting the emphasis in relation to religious marriages from a system based on the registration of buildings to one based on the registration of officiants and allowed for civil marriages to be solemnised in a wider range of locations, subject to the control of the local registration district. The Order provides for two types of marriages: “religious marriages” and “civil marriages”. Under Article 14, the Registrar General may grant a member of a religious body a temporary authorisation to solemnise a religious marriage.

The arguments

Ms Smyth complained that while a wide range of religious groups could marry their members in accordance with their own beliefs and traditions, that privilege was denied unjustifiably to humanists. She argued that the term “religious marriage” could, and should, now be read to include the concept of “belief marriage” which should be afforded equal protection and which would encompass a humanist marriage performed by a BHA accredited celebrant. Alternatively, she argued that those provisions of the 2003 Order which only permit the authorisation of religious marriage on behalf of a religious body by the GRO and exclude the possibility of granting temporary authorisation (and thereby legal recognition) for a humanist marriage ceremony contravened Article 9 (thought, conscience and/or Article 14 (discrimination) ECHR. Further, the Department of Finance had acted unlawfully in failing to introduce regulations to correct this illegality and discharge its statutory obligation under section 75 of the Northern Ireland Act 1998.

The respondents argued that there was no obligation on the state to facilitate every manifestation of religion or belief and there was no interference with the applicant’s Article 9 and/or 14 rights. The Attorney General contended that there was no illegality and that a requirement to provide legal recognition for humanist marriage would go against the natural flow of existing Strasbourg case law.

The judgment

Colton J concluded that Article 9 was engaged. The legal test for “belief” could be stated like this:

“The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance … Provided this is satisfied, the state’s duty of neutrality and impartiality is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.”

He agreed that Ms Smyth’s humanist beliefs easily met the test of cogency, seriousness, cohesion and importance necessary to engage Article 9(1). The courts in England and Wales had looked at the issue of manifestation and had stated that, as a minimum, the belief had to be consistent with basic standards of human dignity or integrity, relate to matters more than merely trivial and possess an adequate degree of seriousness and importance. The freedom to hold a belief was an absolute right, whereas the right to manifest a belief was a qualified right. In order to count as a “manifestation” within the meaning of Article 9 ECHR, the act in question had to be intimately linked to the religion or belief. There had to be a sufficiently close and direct nexus between the act and the underlying belief; and that had to be determined on the facts of each case.

The applicant and her fiancé wanted an explicitly humanist marriage ceremony (not a civil ceremony with attenuated humanist “bits”), involving a clear public affirmation of their humanist values as individuals and as a couple before their family and friends. She said that legal validity for the marriage was important because it signified that the state recognised her values as legitimate and worthy of legal recognition equal to the diverse religious beliefs that were afforded the same legal privilege. Her wish for a legally valid humanist marriage was central to her own humanist identity and that the act of getting married was deeply personal and is bound by her humanist beliefs, values and aspirations.

Colton J noted that the essence of the applicant’s case was based on the different treatment between religious bodies and humanists who both share beliefs. The basis of her claim was that the state had chosen to empower religious bodies to perform legally valid marriages and had refused to extend that privilege to humanists. More importantly, the respondents missed the fundamental point made on behalf of the applicant: she did not want a “civil marriage”, but rather a marriage solemnised by a humanist celebrant – which was different and distinct from a civil marriage. She did not understand her marriage as a “purely legal” construct but rather as a manifestation of her beliefs.

He concluded that the applicant’s desire to have a humanist officiate at her wedding was a manifestation of her humanist beliefs that engaged Article 9. Further, humanist ceremonies were a manifestation of humanist beliefs in general and were entirely consistent with the stated objects of the BHA, which included the advancement of humanism – namely, a non-religious ethical life-stance – the essential elements of which were commitment to human wellbeing and a reliance on reason, experience and a naturalist view of the world. There had therefore been an interference with the applicant’s Article 9 rights because distinctions had been made between religious and secular beliefs that held the same place in adherents’ lives.

He then considered whether that interference was justified, for which the starting point must be that if the law was to protect freedom of religion under Article 9 it had to recognise that all religions and beliefs should be treated equally:

“The State must be neutral and impartial in the arrangements it makes for the exercise of manifestations of various religions and beliefs. In relation to the solemnisation of marriage the State has chosen to authorise the solemnisation of religious marriage ceremonies in recognition of those bodies’ beliefs. Having done so, in my view, it should provide equal recognition to individuals who hold humanist beliefs on the basis of my findings that humanism does meet the test of a belief body and that a wedding ceremony conducted by a humanist constitutes a manifestation of that belief. I consider that there has been a breach of the applicant’s rights under Articles 9 and 14 of the ECHR.”

Colton J then considered whether the breach or difference in treatment was capable of objective justification and concluded that it did not chime with the State’s obligation to respect all religions and beliefs and that the “floodgate argument” was not borne out by the evidence. First, this was the only application that had been received by a non-religious body. Secondly, if granted temporary authorisation, the application was still subject to the series of checks and balances applied to all marriages by the 2003 Order. There was significant public interest in controlling and regulating marriage but that could be achieved without discriminating against those who wished to manifest humanist beliefs. He concluded that there was no objective basis for the justification raised by the respondents.

He concluded that there had been an unlawful interference with the applicant’s Convention rights with no objective justification in law. As to the question of remedy, he decided to echo the approach taken in Scotland by reading in the words “or belief” in Articles 14, 15, 16 and 17 of the 2003 Order in each reference to “religious marriage” so that the Order reads “religious or belief marriage”. Though the applicant might complain that this still discriminated against her in that it provides for temporary authorisation only, he  considered it appropriate relief in the circumstances for the following reasons:

• It was consistent with the approach adopted by Ms Smyth in seeking temporary authorisation only;
• It would provide the GRO with an opportunity to monitor and assess the extent to which belief bodies sought to avail of the opportunity for temporary authorisation;
• It would provide a greater degree of control over the process which would enable the GRO to guard against the potential difficulties it had suggested might arise in the event that belief bodies were permitted to avail of the entitlements provided in respect of religious marriages; and
• The GRO could impose conditions deemed necessary for any temporary authorisations and all the other protections in the 2003 Order remained in place.

He declined to make a declaration of incompatibility in respect of the 2003 Order or that the Department had failed to discharge its statutory obligations pursuant to s 75 Northern Ireland Act 1998. He did, however, consider that the Department should now proceed to introduce Regulations to remedy the breaches of Convention rights identified in his judgment.

He granted the following relief:

• An order quashing the decision of the GRO;
• An order compelling the GRO to take all necessary steps so as to grant the application of Ms Russo so as to permit her to perform a legally valid and binding humanist wedding ceremony on the applicant on 22 June 2017;
• A declaration that the decision of the GRO was in breach of section 6 of the Human Rights Act 1998 as contrary to the applicant’s rights under Article 9 and Article 14 ECHR;
• A declaration against the GRO and the Department that the provisions of the 2003 Order can be read and given effect to in a way that it is compatible with the applicant’s rights thereby enabling the GRO to grant the application for temporary authorisation under Article 14 of the 2003 Order by “reading in” the words “or belief” so that all references to “religious marriage” and “religious body” in Articles 14, 15, 16 and 17 of the Order read “religious or belief marriage” and “religious or belief body”; and
• An order compelling the Department to direct the GRO to grant the application made by Ms Russo.

The full judgment is here.