The High Court of Northern Ireland has delivered two related judgments dealing with the issue of same-sex marriage. Three brief critiques of the approach and findings of O’Hara J in the case of Petition X are set out below in order to inform deliberations on the merits of an appeal. The same critiques feed into a more general debate about the status of domestic human rights protection in the UK. An official court summary of the case is available here.

The Dubitable Appraisal of Strasbourg Jurisprudence

O’Hara J concludes that ‘here is simply no reason in this case to believe that the Strasbourg court will take a different view in the foreseeable future in light of its clear and repeated recent rulings’; rulings which do not impose a positive obligation on Contracting States to introduce same-sex marriage under any provision of the European Convention on Human Rights (ECHR). This conclusion is reached after reference is made to the following leading decisions made by the European Court of Human Rights (ECtHR): Schalk and Koph v Austria ECHR 1996, Hämäläinen v Finland ECHR 787 and Oliari and Others v Italy ECHR 716. It is unfortunate, however, that the learned judge does not explore in detail the reasoning of the ECtHR in each of these cases in order to discern possible distinctions from Petition X, opting instead to recite its final rulings in short form.

Two points can be made to illustrate the importance of greater engagement with the Strasbourg jurisprudence. First, closer readings show that different reasoning is adopted by the ECtHR in respect of different rights as they relate to the issue of same-sex marriage in particular contexts. It is clear, for example, that a narrower margin of appreciation is afforded to Contracting States by the ECtHR in so far as Article 8 is engaged by same-sex marriage cases, in comparison to the broader margin currently available in respect of Article 12.To take this example one step further, note that it was confirmed in Hämäläinen that‘the coherence of the administrative and legal practices within the domestic system’ are ‘regarded as an important factor in the assessment carried out under Article 8’ – a ruling of obvious relevance to Petition X in so far as it challenged the coherence of a law responsible for at once enhancing and suspending the enhancement of the right to enjoy a private life via same-sex marriage.It is certainly feasible that such circumstances might persuade the ECtHR to find there is an obligation on Contracting States to ensure that same-sex couples should be able to remain married and move throughout the Contracting State which permitted them to marry, in order to fully enjoy their right to a private life without illegitimate, unjustified and disproportionate interference.

This takes me to my second point. Closer readings also reveal that there are several judges on the ECtHR who have dissented from the majority’s approach to the interpretation of Article 12, because the majority have not examined the question whether Article 12 encompasses not only a right to marry but also a correlate right to remain married. Thus, in Hämäläinen, Judges Sajó, Keller and Lemmens indicated in a Separate and Joint Dissenting Opinion that they did not consider ‘the gender reassignment undergone by one spouse to be a compelling reason justifying the dissolution of a marriage where both spouses expressly wish to continue in their pre-existing marital relationship’. This opinion arguably supports Petitioner X’s submission that Schedule 2 to the Marriage (Same Sex Couples) Act 2013 is incompatible with Article 12, for if gender reassignment is not considered a compelling enough reason to justify the dissolution of a marriage (which, by virtue of that process, becomes one between individuals of the same sex) it is arguably unlikely that crossing a regional border would be considered a justifiable reason for same. This much is compounded by the fact that although the ECtHR recognises it is for national authorities to decide how to regulate marriage, it will not tolerate rules which are arbitrary or interfere with the essence of the right: F v Switzerland ECHR 32.

The above points are simply examples demonstrating that the future trajectory of Strasbourg jurisprudence on this issue is less than certain. While it is true that the ECtHR reiterated its decision not to impose an obligation to grant same-sex couples access to marriage under Article 12 ‘despite the gradual evolution of States on the matter’ in Oliari, there are a number of arguments which the court has yet to address which arise with reference to the specific facts of Petition X. Moreover, that the ECtHR has relied heavily on the absence of a European-wide ‘consensus’ on this issue highlights the flaws of that concept as an interpretative tool of the court more so than it grounds any principled argument as to the normative content of the rights engaged. The forceful arguments of George Letsas seem particularly apposite in this context: ‘using consensus as an interpretive criterion risks conditioning the enjoyment of the ECHR rights on the currently held moralistic preference of the majority, and hence offending one of the most fundamental moral values which human rights serve’. This is a powerful reason to be sceptical of Claire Poppelwell-Scevak’s suggestion that 24 represents the ‘magic number’ of supportive Contracting States necessary before same-sex marriage will be recognised in any form under Article 12. Although it is possible to highlight some further ‘evolution of States on the matter’ – given that 13 out of 47 Contracting States now recognise same-sex marriage, compared to only 6 out of 47 when Schalk and Koph was decided in 2010 – domestic judges in the UK should be wary of importing jurisprudence founded on such a problematic basis. Indeed, judges on the ECtHR should be strongly encouraged to fundamentally reconsider it in my view.

The Outmoded Influence of Ullah

An appraisal of Strasbourg jurisprudence was of course conducted by O’Hara J as a consequence of his duty under s 2 of the Human Rights Act 1998 (HRA) to take decisions of the ECtHR, among other bodies, ‘into account’ when deciding domestic cases. While cognisant of Petitioner X’s submission that this requirement does not mean UK judges are strictly bound to follow Strasbourg judgments, O’Hara J appears to have placed considerable weight on the respondents’ counter-arguments. They submitted that the House of Lords and the UK Supreme Court ‘have repeatedly made the point that national courts should not without strong reason dilute or weaken the effect of the Strasbourg case law’ together with the submission that ‘they have ruled that while Member States can legislate to give rights more generous than those guaranteed by the Convention, they should not interpret (or misinterpret) the Convention to do so because the Convention must bear the same meaning for all states who are party to it’.

These propositions reflect the opinions of what Helen Fenwick calls ‘full mirror principle supporters’, that is: those who ‘consider that the domestic courts’ judgments should not outpace Strasbourg and should mirror those where Strasbourg has spoken, with exceptional departure’. As Fenwick explains, ‘he mirror metaphor is often used to indicate that s 2 requires the domestic courts to ‘mirror’ Strasbourg’s approach – to adopt the approach Strasbourg has adopted and to hold back if it has not spoken on an issue, since its approach cannot be mirrored’. The principle has its origins in a ruling of the late Lord Bingham who, in R (Ullah) v Special Adjudicator UKHL 26, created the impression that the requirement to take ECtHR decisions ‘into account’ meant that ‘in the absence of some special circumstances’ UK judges should ‘keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. O’Hara J appears to regard a ‘full mirror principle’ interpretation of Ullah as binding on him, where he states:

It is not open to me to give an interpretation of the Convention which is quite different from that of the Strasbourg Court. This follows from the “Ullah” principle that save in special circumstances I must follow clear and constant jurisprudence of the Strasbourg Court.

This statement evidences little awareness of the considerable caveats to and weight of opinion against Ullah that have developed over time. Roger Masterman’s work, which is informed by a thorough study of the authorities, should be consulted for more detailed information on the position of Ullah as it was in 2013. Fenwick’s suggestion that in 2012 ‘most academics and some judges, but mainly – not always – speaking extra-judicially’ were either only‘partial mirror principle supporters’ or ‘anti-mirror principle HRA-supporters’ is also instructive, though it is crucial to note that her account was written some time before the important UK Supreme Court case of R (Nicklinson) v Ministry of Justice UKSC 38. One need look no further than the analysis of that decision by Nuno Ferreira in order to appreciate that it ‘has clarified beyond doubt that domestic courts (and authorities, more generally) are not only allowed to go beyond Strasbourg jurisprudence, but are even expected to do so’. Lord Neuberger has made it clear, in particular, that it is within the powers of the senior judiciary to establish higher standards of human rights than those enunciated by the ECtHR, even if Parliament has legislated giving effect to those rights at a standard in between the minimum set by Strasbourg and the standard UK courts believe is appropriate for and applicable to all of the UK. Although Lord Neuberger’s leading judgment ‘carefully avoids taking issue with Lord Bingham’s approach’ in Ullah directly, it does expressly raise the possibility of modifying or reconsidering Ullah in a more pertinent case. It is entirely possible that the circumstances presented by Petition X will qualify for that purpose, which clearly casts doubt on the approach O’Hara J believed he was bound to take.

The Invisibility of the Common Law

The combined effect of the ECtHR’s problematic reliance on domestic-level consensuses about the modern requirements of human rights and a domestic court approach which self-inhibits the development of standards higher than those required by the ECtHR is to create something akin to a repulsive magnetic force from above and below that perpetuates the status quo and stultifies an openly evolutive human rights framework. This unfortunate state of affairs makes it somewhat surprising that the resurgent role of the common law in UK human rights protection does not appear to have featured in Petition X.

UK Supreme Court Justices have been going to great lengths recently to remind the legal community that ‘it was not the purpose of the Human Rights Act that the common law should become an ossuary’ (per Lord Toulson in Kennedy v The Charity Commission UKSC 20) and that it is an error ‘to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law’ (per Lord Reed in Osborn v Parole Board UKSC 61).

Although there are important questions to be answered about how to conceputalise the relationship between the common law and ECHR rights scheduled to the HRA, which Roger Masterman and Se-shauna Wheatle have ably highlighted, the potential of the common law to further Petitioner X’s case is plain to see. For while it is arguable that the scope and strength of common law rights are less robust than those protected by the HRA, to rule out a plea for protection of the rights engaged by Petition X with reference to the existing common law principles of equal treatment and respect for human dignity, among others, would be contrary to the strongest possible words of encouragement from the UK Supreme Court.