This Commons Library briefing paper considers the current law relating to marriage of same sex couples in Northern Ireland and provisions in the Northern Ireland (Executive Formation etc) Act 2019Jump to full report >>
The issue of marriage of same sex couples is highly controversial in Northern Ireland. It is one of the issues on which the parties in Northern Ireland disagree.
Issues in relation to marriage and civil partnership are devolved. Eligibility to marry differs across the UK.
In Northern Ireland, marriage of same sex couples is not possible. Same sex couples may register a civil partnership, but opposite sex couples may not do so.
In England and Wales, and in Scotland, same sex couples have the option to marry or to register a civil partnership if they wish to gain legal recognition for their relationship.
Campaigners, including human rights and equality bodies, have strongly supported the introduction of legislation for marriage of same sex couples in Northern Ireland.
The DUP and some churches and religious groups are among those who believe that marriage should only be between a man and woman, arguing that civil partnerships are an option for same sex couples.
The Government’s stated view has been that, although Parliament could legislate on the issue, any decision to introduce marriage for same sex couples in Northern Ireland should be taken by the Northern Ireland Assembly.
In June 2015, the High Court in Belfast granted permission to two same sex couples to seek a judicial review of the ban on marriage of same sex couples in Northern Ireland. The couples argued that the law discriminated against gay and lesbian couples. In August 2017, the Court dismissed the two cases, saying that it was for the Northern Ireland Assembly, and not a judge, to decide social policy.
The Northern Ireland Assembly has voted on five occasions on motions on the marriage of same sex couples. The most recent occasion was on 2 November 2015 when, for the first time, the Assembly voted, by a majority of one, in favour of a motion brought jointly by the SDLP and Sinn Féin, which called on the Executive to table legislation to allow for marriage of same sex couples. However, the motion failed because it did not achieve a cross‑community majority: the DUP had presented a “petition of concern”, a mechanism which can, effectively, allow a group of at least 30 MLAs to “block” a decision of the Assembly.
Private Members’ Bills at Westminster, intended to change the law in Northern Ireland, have not made progress.
There has been no fully-functioning Northern Ireland Assembly or Executive since 9 January 2017. The Northern Ireland (Executive Formation) Bill (the Bill) was introduced in the House of Commons on 4 July 2019. Its purpose was to extend the period for Northern Ireland Ministers to be appointed, following the Assembly election held on 2 March 2017, to 21 October 2019; and to impose a duty on the Secretary of State to report on progress towards the formation of an Executive in Northern Ireland.
A Commons Library briefing on the Bill, prepared for second reading in the House of Commons, provides further information.
The Bill was amended by both Houses of Parliament and became the Northern Ireland (Executive Formation etc) Act 2019 (the Act) by Royal Assent on 24 July 2019. It includes section 8, Same sex marriage and opposite sex civil partnership, which was added during the passage of the bill through Parliament.
Section 8 will come into force on 22 October, unless the Northern Ireland Executive is reformed on or before 21 October. The section requires the Secretary of State to make regulations, to come into force on or before 13 January 2020, to provide that, in Northern Ireland, same sex couples are eligible to marry, and opposite sex couples are eligible to register a civil partnership. The Secretary of State may also make supplementary regulations.
In debates on the Bill, some argued against the entire concept of marriage of same sex couples, and/or that it was for the Northern Ireland Assembly, rather than Westminster, to legislate, if at all, on this issue. Others spoke of this being an equality issue which, in view of the lengthy absence of a functioning Assembly, Westminster must deal with, in order to bring Northern Ireland into line with the rest of the UK. Some also pointed out that there was no longer a sufficient number of MLAs in the Assembly who might use a petition of concern to defeat legislation on the marriage of same sex couples.
Several parties, including Conservatives and Labour, gave a free vote on the issue of marriage of same sex couples. Because of this, John Penrose, who was then Minister for Northern Ireland, said that the Government would not be putting across a principled view, one way or another.
The Government recognised the strength of feeling on the issue shown by the size of the majority in the Commons voting in favour of providing for the introduction of marriage for same sex couples (383 votes to 73).
Junior Northern Ireland Minister, Lord Duncan of Springbank stressed that he did not have any concerns with the final version of section 8. He committed to meeting the challenging deadlines imposed by the section.
Commons Briefing papers CBP-8646
Author: Catherine Fairbairn