Is there any prospect for gay marriage in Northern Ireland?
The United Kingdom comprises of four countries: England, Wales, Scotland and Northern Ireland. Each of these nations has their own unique powers, which form part of a wider devolution arrangement. Marriage is a devolved issue and legislation to allow same sex-marriage is active in England, Wales and Scotland. However, the position in Northern Ireland is that same-sex couples cannot get married. In light of this, the article discusses the recent calls for a change of the law in Northern Ireland, and the difficult constitutional questions that are raised.
The debate in Northern Ireland
Historically, LGBT rights in Northern Ireland have not been as well recognised as in other parts of the UK. For example, Northern Ireland was the last of the home nations to legalise same-sex sexual activity. However, in recent years there has been a significant increase in public acceptance and support for LGBT rights. This begs the question as to whether it is time for Northern Ireland to grant full equality to gay couples by legalising gay marriage – especially given that polls suggest that this is supported by the majority of the Northern Irish public.
There has been a significant amount of political effort to legalise same-sex marriage. Indeed there have been five attempts to introduce a Bill to this effect in the Northern Ireland Assembly. The attempts to pass a gay marriage bill have been met with support, nevertheless, such attempts have ultimately proved unsuccessful – most notably, the Democratic Unionist party vetoed the passing of legislation in 2015, despite this legislation commanding the support of the majority of the Assembly.
Furthermore, in March this year a renewed call for a change in the law came in the House of Commons from the Labour MP Conor McGinn. McGinn, who is Northern Irish, told Theresa May that she has a “moral and political duty to act” to bring about change in Northern Ireland. Accordingly, McGinn seeks to bring a private members bill to the Commons that would pave the way for equal marriage in Northern Ireland.
Can we justify UK parliamentary intervention?
Whatever one’s personal stance on gay marriage, the prospect of a private members bill in the UK parliament on this issue raises the difficult question of to what extent it is appropriate for MPs in the House of Commons to vote on the issue of gay marriage in Northern Ireland, when traditionally this is an area reserved for the Northern Irish Assembly. Nevertheless, the article outlines three potential arguments that could be proposed in order to justify intervention.
- Firstly, Northern Irish politics is in the midst of a period of deadlock – following a split between the Democratic Unionist Party and Sinn Féin the country has been without an executive since January 2017. It could be argued that this vacuum renders outside intervention (in the form of the UK parliament) necessary.
- Secondly, same sex marriage has the support of the Northern Irish public; as already mentioned, opinion polls suggest that the majority of the public support a move to legalisation, as indeed do a majority in the Northern Irish Assembly. In fact, equal marriage has the backing of the SDLP, the Alliance party, Sinn Féin, the Green party, as well as the support of other smaller parties and senior members of the Ulster Unionist party. It is the Democratic Unionist party (incidentally the party that Theresa May relied on when the Tories failed to get a majority in the Commons in the last General Election) who is responsible for blocking proposals for change.
- Thirdly, if we were to take the position that the current law in Northern Ireland is discriminatory and thus should not be tolerated, intervention would be deemed not only desirable, but imperative.
The problem with this argument is that the European Court of Human Rights has ruled that gay marriage is not necessary for a state to introduce, in order for it to comply with the ECHR. In Schalk and Kopf v Austria  the Court held that the difference in treatment between homosexual and heterosexual couples (with regards to the availability of marriage) could be justified, it noting “that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society”.
It thus appears that any change in the law on gay marriage in Northern Ireland will likely come from the political desire for equality, as opposed to judicial challenge.
Article by Helen Taylor
Photograph: The Belfast Telegraph