Gay rights issues, and particularly issues of equality of treatment for gay people living in the UK have created a flurry of headlines in recent months. In January, two of the conjoined cases Eweida v UK (Ladele v UK and McFarlane v UK) involved clashes between rights to religion (Article 9 ECHR) and equality legislation (now contained within the Equality Act 2010) protecting gay people from discrimination (protected under Article 14 ECHR). In these cases, the European Court of Human Rights noted that the claimants did have religious objections to being involved in civil partnerships as a registrar and in advising gay couples as a relationship counsellor, but found that the UK had needed to “balance” the competing interests.
In Ladele, the Court explained (at ) that in such cases it gave considerable leeway to member states in reaching appropriate solutions:
[I]t cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention. The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.
Before gay rights campaigners can celebrate too loudly, two clouds darken the judgment. First, as Joshua Rozenberg points out, the ECHR applies to 47 member states, some of which are yet to provide effective protections for gay people against discrimination. This judgment does not oblige them to follow the UK’s approach, rather ‘in stressing that member states have a wide discretion in striking a balance between conflicting rights, it allows for the possibility that future disputes will be decided in favour of religious groups’. Moreover, given this diversity of opinion, it should be no surprise that the Ladele decision was not unanimous (but a five-to-two majority). In the joint dissenting opinion of judges Vincent A. De Gaetano (of Malta) and Nebojša Vučinić (of Montenegro) considerable opprobrium was displayed towards the UK’s equality laws and their enforcement (at ):
[A] combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights) eventually led to her dismissal.
This view calls into question the idea of the indivisibility of rights which underpin the ECHR. Some judges see “gay rights” as an agenda produced by “political correctness” and separate from, and of less importance than what they regard as fundamental rights like the right to religion. This is the view of rights for gay people, which continues to predominate within the DUP, as highlighted by this month’s gay marriage debate in the UK Parliament. DUP members repeatedly interjected in the debate to decry the measure. Jim Shannon expressed the following objections:
I have listened carefully to the argument that this is a matter of equal rights. That is not how I or my constituents view this matter. The introduction of civil partnerships, which enshrined legal and financial rights, ensured that people in civil partnerships had the same protection as a married couple. There is parity of rights here, so this is not a matter of equality of rights.
Many would see this claim as particularly rich given the DUP’s strident opposition to civil partnerships legislation in 2004. He continued:
Marriage is the union of one man and one woman. That has not changed for thousands of years. My constituents tell me they see no reason to redefine marriage, and I agree. We do not need to push through a measure which so many people believe will affect their ability to live out their Christian faith, but which does not give rights or correct wrongdoing.
As with the Ladele case (which he cited), Shannon’s argument was that the acceptance of gay marriage would prevent people from manifesting their belief that marriage is between one man and one woman. But it only impacts upon someone’s beliefs, as in Ladele, if they manifest them in such a way as to discriminate against others. Shannon is arguing that gay people should be able to face discrimination in a matter that affects their lives profoundly, as this interest is less important in his eyes to being able to manifest religious objections to such unions in the course of employment.
Shannon was supported by his fellow DUP MPs, with varying degrees of invective towards the proposals. Injecting a degree of hyperbole into the debate, William McCrea warned that for religious groups ‘the day of persecution is not here in this country, thank God, but, sad to say, it could come’, casting the dark shadow of potential imprisonment for discriminatory conduct over the debate with little concern for the absence of any such threat from the proposals. Whereas Nigel Dodds questioned whether the true aim of these measures was to ‘detoxifying the Tory brand’, Ian Paisley Jr presented figures which he argued suggested that ‘[s]ince same-sex marriages were introduced in Portugal, Spain and the Netherlands, the number of mixed-sex marriages have decreased considerably—indeed, by tens and tens of thousands’, seemingly oblivious to the impact of less prosaic influences on marriage figures, such as the intervening economic downturn. David Simpson (pictured above left) plunged the standard of House of Commons debate to new lows with his hackneyed contribution that ‘[i]n the garden of Eden, it was Adam and Eve, not Adam and Steve’.
Despite the vehemence of these interjections, not one of these MPs’ constituents will be affected by the new legislation, as under devolution the legal status of marriage is a matter for the Northern Ireland Assembly (and an issue on which the DUP and UUP combined to reject a private members’ petition in October 2012). During this Assembly debate no questions of competence to legislate were raised, and given that legal questions of marriage are not explicitly reserved or excepted matters the presumption must be that the issue lies within legislative powers transferred to the Assembly. In the same vein, as the proposals did not extend to Scotland, SNP MPs abstained from voting in the Westminster debate.
SNP MPs considered that the “West Lothian Question” precluded them from taking part in this debate. The Question, frequently asked by Tam Dayell whilst he was MP for the Scottish constituency of West Lothian, concerns whether it can be legitimate for MPs whose constituents are not affected by a measure (because it is within the competence of a devolved law-making institution) to affect the shape of legislation affecting other parts of the country.
Should this month’s debate have seen the DUP MPs address not only their objections to gay marriage (some of which, as we have seen, seem to have the support of particular ECHR judges) but also explain why they considered their intervention legitimate at all? By intervening without addressing West Lothian concerns, DUP MPs help to undermine the current devolution settlement, and potentially hasten the introduction of reduced representation at Westminster from parts of the UK with devolved assemblies.
There is nothing in law, however, to prevent the DUP intervention. For now, in spite of the grumbling the West Lothian Question induces, all MPs have equal competences as legislators. In such circumstances (especially given that clashes of human rights are at issue, as my fellow humanrights.ie blogger Sinead Ring pointed out to me when we discussed the debate), elected representatives should retain the possibility of influencing debate even if their constituents will not be directly affected. In the final calculus, questioning the legitimacy of the DUP intervention does not substitute for challenging their substantive arguments.
The value of having MPs from any part of the UK speak out on rights issues, however, cuts both ways. Just as the DUP MPs are entitled to deliver arguments against gay marriage, so can other Northern Ireland MPs oppose this stance. So it fell to Mark Durkan of the SDLP to cast a ‘vote for equality’, and give a voice to people in Northern Ireland who reject the DUP’s arguments on this issue, and especially the language in which they are couched. Whilst the DUP interventions received disproportionate coverage throughout reporting on the debates, that party’s stance should not be considered the sole voice of Northern Ireland on the issue of gay marriage.