Family Law

The House of Commons last week voted in favour of permitting same-sex marriage in Northern Ireland, with 383 MPs voting in favour and 73 against the proposed change. Northern Ireland is the only remaining part of the UK that does not permit same-sex marriage; the law was changed in England & Wales in July 2013, and the changes came into force in March 2014. In Scotland the law was changed in February 2014 and came into force in December of the same year. The Republic of Ireland has allowed same-sex marriage since May 2015 following a referendum, making it the only country in the world to make the change to the law by a public vote.

However, in the case of Northern Ireland, the constitutional background to the vote itself and how this affects the next steps for same-sex marriage there should not be overlooked; the vote and its outcome have wider political significance.

The question of same sex marriage would ordinarily be a matter for the Northern Ireland Assembly as it is covered by devolved power. Yet the collapse of the power-sharing agreement between the DUP and Sinn Fein back in January 2017 means that devolution is effectively suspended. If devolution is not restored by 21 October of this year then the government is compelled to make the necessary changes to the law to permit same-sex marriage in Northern Ireland. On that basis, same-sex marriage is not yet permitted in Northern Ireland but its political climate – with the DUP opposing same-sex marriage and Sinn Fein supporting it – means the restoration of devolution and therefore a derailing of the path towards same-sex marriage seem unlikely.

The progress made through Parliament needs to be seen in a wider context. There was a challenge to the ban on same-sex marriage brought in Northern Ireland in 2015. The case raised fundamental questions of human rights and access to relationship status for same-sex couples in Northern Ireland. The arguments in favour were rejected by the Court on this occasion.  The issue of access to relationship status was said to be a political one not a judicial one. This year’s Reith Lecturer , Jonathan Sumption, Formerly of the UK Supreme Court, made the same point and suggested in his lecture series that law was being expanded by judges too far and it needed to be limited. In the case of same-sex marriage in Northern Ireland this is/was disappointing when law reform had occurred previously in other parts of the UK.

If devolution has not been restored by 21 October, no further vote in the House of Commons would be necessary for the change in the law to take place. The Bill required to implement the change to the law would need approval in the House of Lords but given the strength of support shown in the House of Commons, any significant opposition would be unexpected.