The Queen (on the application of Kate Harrison and Others) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Eady |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] EWHC 2096 (Admin) |
| Date | 31 July 2020 |
| Docket Number | Case No: CO/4609/2019 |
| Year | 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 2096 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Eady DBE
Case No: CO/4609/2019
and
Ms Gallagher QC and Mr McQuitty (instructed by PHOENIX LAW) for the Claimants
Mr O'Brien and Ms Greenley (instructed by GOVERNMENT LEGAL DEPARTMENT) for the DEFENDANT
Hearing dates: 7–8 July 2020
Approved Judgment
Contents
Hyperlinks to headings and (sub-headings)
| Paragraphs | |
| Introduction | 1 – 4 |
| Marriage According to English Law | 5 – 17 |
| Humanism | 18 – 22 |
| Marriage and Humanism | 23 – 29 |
| The Claimants | 30 – 37 |
| Legislative Developments and Consideration of Reform | 38 – 48 |
| The Challenge in these Proceedings | 49 – 55 |
| Ambit | 56 – 70 |
| ( The Parties' Submissions) | (56 – 64) |
| ( Ambit — Discussion and Conclusions) | (65 – 70) |
| Difference of treatment and analogous position | 71 – 94 |
| ( The Parties' Submissions) | (71 – 86) |
| ( Difference of Treatment and Analogous Position – Discussion and Conclusions) | (87 – 94) |
| Prescribed ground | 95 |
| Justification | 96 – 128 |
| ( Approach) | (96–103) |
| ( Legitimate Aim and Rational Connection) | (104 – 117) |
| ( Less Intrusive Means) | (118 – 120) |
| ( Fair Balance) | (121 – 128) |
| Conclusion | 129 – 130 |
Introduction
A wedding is not only an event of personal significance for the couple concerned; it has legal implications such that there is a wider public interest in preventing sham and forced marriages, in confirming that those who seek to marry are legally free to do so, and in ensuring there is certainty as to when a marriage has taken place. The legal recognition of a marriage by the state is a matter of considerable importance and this claim concerns the requirements laid down under English law that provide for that recognition. The Claimants are humanists who complain that the legal recognition of different forms of religious wedding ceremony under English law does not similarly extend to weddings carried out in accordance with their humanist beliefs; they contend that this gives rise to an unjustified discrimination in the exercise of their rights under the European Convention on Human Rights (“ECHR”) and thus breaches the Human Rights Act 1998 (“the HRA”).
Permission to apply for judicial review was granted by Mrs Justice Steyn on the sole ground whereby the Claimants contend that English law breaches their rights under article 14, taken together with articles 8, 9 and/or 12 of the ECHR. The Claimants – six couples who identify as humanists — have submitted statements in support of their claims, but also rely on evidence from other humanists and from expert witnesses, who speak more generally about the role and celebration of marriage by humanists and by those who hold various religious beliefs (the comparators relied on by the Claimants).
The Defendant resists the claim, contending that the system of marriage permitted under English law provides the Claimants with a legally recognised, non-religious ceremony that is sufficiently capable of accommodating their wishes and beliefs. He submits that any difference between that which is permitted and the recognition of humanist marriages sought by the Claimants does not satisfy the requirements for a claim of discrimination contrary to article 14 ECHR. In defending these proceedings, the Defendant primarily relies on the evidence given in (and exhibited to) the statement of Mr Barcoe, Deputy Director of Family Justice Policy at the Ministry of Justice, but has also submitted a statement from Ms Tighe, of the General Register Office for England and Wales (“the GRO”), the entity that oversees the civil registration of marriages.
The remedy sought by the Claimants in this claim is in the form of declaratory relief; specifically, they seek a declaration that the legislation providing for the legal recognition of marriage in England violates their rights under the HRA, and a declaration of incompatibility pursuant to section 4 of the HRA. The Defendant disputes the Claimants' claim that there has been any violation of their rights, arguing that, even if there is any difference in treatment between the Claimants and their religious comparators, the measures under challenge are objectively and reasonably justified, not least given ongoing consideration of reform in this area of social policy.
Marriage According to English Law
The history of the statutory regulation of marriage in England is summarised in A v A [2013] Fam 51 at paragraphs 42–52, and by the Court of Appeal in Akhter v Khan [2020] 2 WLR 1183 at paragraphs 32–39. That history explains how we arrived at the current position, which is primarily set out within the Marriage Act 1949 (“the 1949 Act”). Within the 1949 Act, there is separate provision for the solemnization of marriage according to the rites of the Church of England (see Part II) and for solemnization of marriages in naval, military, and air force chapels (Part V); otherwise, legal recognition is provided by Part III of the 1949 Act, requiring authorisation by a superintendent registrar.
Within Part III, for opposite-sex couples, section 26(1) provides as follows:
“(1) The following marriages may be solemnized on the authority of two certificates of a superintendent registrar—
(a) a marriage of a man and a woman, in a building registered under section 41, according to such form and ceremony as the persons to be married see fit to adopt;
(b) a marriage of any couple in the office of a superintendent registrar;
(bb) a marriage of any couple on approved premises;
(c) a marriage of a man and a woman according to the usages of the Society of Friends (commonly called Quakers);
(d) a marriage between a man and a woman professing the Jewish religion according to the usages of the Jews;
(dd) a qualifying residential marriage;
(e) a marriage of a man and a woman according to the rites of the Church of England in any church or chapel in which banns of matrimony may be published.”
I note at this stage that all the Claimants are in opposite-sex relationships; I have, therefore, not included references to the statutory provisions relating to same-sex couples. It is also convenient to observe here that the reference to “qualifying residential marriage” at section 26(1)(dd) is to a marriage where one or each of the marrying couple is housebound or detained; it is, again, not a situation relevant to any Claimant.
For all marriages authorised by certification by a superintendent registrar, under Part III of the 1949 Act, specific preliminary formalities must be met, for example, as to prior notification of the marriage under section 27. Subject to these legal preliminaries, however, by sub-paragraphs (c), (d) and (e), section 26(1) provides for legal recognition of marriages according to the rites of the Church of England and to the usages of Quakers and Jews. Amongst other things, that will mean Anglican, Quaker and Jewish weddings will be legally recognised notwithstanding that no state official – in the form of a registrar employed by the relevant local authority — is present at the ceremony.
Section 26(1) also provides a gateway for the legal recognition of marriages that adopt the form and ceremony of other religions; this is provided by sub-paragraph 26(1)(a), by means of the registration of places of religious worship. That is made apparent by section 41, which allows for the registration of buildings for these purposes in the following terms:
“(1) Any proprietor or trustee of a … building, which has been certified as required by law as a place of religious worship may apply to the superintendent registrar of the registration district in which the building is situated for the building to be registered for the solemnization of marriages therein.”
For religious groups other than Anglicans, Quakers or Jews, section 44(2) of the 1949 Act provides that, where a certified place of worship has been registered under section 41 (and once duplicate marriage register books have been supplied by the Registrar General, see section 44(4)), marriages may be solemnized in that building in the presence of an authorised person and without the presence of a registrar (section 43 explains how those responsible for the relevant place of worship might authorise a person for these purposes). Moreover, whilst certain declarations must be included within the ceremony (section 44(3), (3A)), and the doors of the registered building must remain open (section 44(2)), by section 44(1) it is otherwise allowed that the form of ceremony adopted may be as the participants see fit, subject only to the consent of those presiding over the place of worship.
For marriages under section 26(1)(b) and (bb) – often referred to as ‘civil marriages’ — separate provision is made. Specifically, whether the marriage takes place in a register office (section 26(1)(b)), or on approved premises (section 26 (1)(bb)), it is a legal requirement that both a superintendent registrar and a registrar are present.
Thus, for the purposes of section 26(1)(b), solemnization of marriage in a register office, section 45 provides:
“(1) Where a marriage is intended to be solemnized on the authority of certificates of a superintendent registrar, the persons to be married may state in the...
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