There’s been a lot of analysis of the Westminster vote – but not quite enough understanding of its true implications.
Around this time last year I provided an update on the campaign for same sex marriage so I’ll try and do the same again.
Given that NI is still in limbo with no direct rule, but no devolved assembly the Secretary of State is constantly relying on senior civil servants or emergency legislation to keep the lights on in NI. The latter has given opportunity for Love Equality to focus minds and seek to raise equal marriage at every opportunity in Westminster were work is actually getting done. Enter stage left, Conor McGinn MP. Mr McGinn, who hails from Armagh, took up the challenge to apply for 10-minute rule bills or table amendments to any bills affecting Northern Ireland affairs.
This week, the House of Commons discussed and debated the Northern Ireland Executive Formation Bill. This bill proved necessary as the Secretary of State was obliged to call an election by 25 August and given that “talks” are ongoing (or maybe happening soon) Karen Bradley wanted to gain some additional time and breathing space. The new proposed date is 25 October 2019.
McGinn tabled an amendment that ultimately would bring about same sex marriage within 3 months should the Assembly not be reconstituted. On Tuesday morning (9 July 2019) we learned this amendment had been considered in scope by the speaker’s office and selected for discussion. Now you may be surprised that we didn’t shout more about this or organise a big gay party, but the campaign has been here so many times! We worried about setting false expectations, getting peoples hopes up for nothing and finally loosing the support of society purely through attrition. So, we all sat quietly and nervously watching live streams of parliament and Twitter of course, hoping for the best!
The amendment was passed by 383 ayes and 72 noes. So, what now?
If we do not have an Assembly by 21 October 2019 same sex marriage will become lawful. I think this will be brought about by extending the legislation that applies to England and Wales, Marriage (Same Sex Couples) Act 2013 to Northern Ireland. In any event, I’m positive there is someone in the legislative drafting offices cancelling holidays and bulk ordering energy drinks to navigate this legal conundrum. The 2013 Act allows for conversion of civil partnerships. It also mean marriages formed outside NI will be treated as marriages and no longer converted to civil partnerships when in our jurisdiction – as is currently the case.
A tight and jam-packed timetable is now in flow. Yesterday (10 July) the Lords had a second reading, committee stage will follow on Monday, a report will be prepared, then a third reading will occur on Wednesday and it is at this stage the Lords vote. The bill returns to the House of Commons on 18 July to look at any amendments from the Lords. Only then will a final vote in House of Lords happen. I hear some sour mongering about the Lords not accepting the bill or difficulty arising there however with the overwhelming support in the Commons we should have plain sailing.
In the unlikely event the Assembly decide to return to power sharing government before 21 October then the passage of same sex marriage will NOT occur at Westminster and it will be for the devolved institutions to bring about legislation in a democratic manner if they choose to do so.
I have listened to the debates that this ordeal has undermined the constitutional arrangements of devolution gives some parties no incentive whatsoever to go back to power sharing and is all very dangerous. But let’s deal with the reality: there is no government here and there has not been for over 2 years. We do not appear to be any further on with the talks process. Brexit and the RHI fallout continue to loom and moreover same sex marriage is and has always been an equality matter and not any political party’s chattel.
Even by some form of miracle we get the assembly in October, we should all expect some form of a sustainable reincarnated government. This must include a reform of the Petition of Concern (POC). This means that the private members bill can be dusted off and debated and passed in the Northern Ireland Assembly. If we take this hypothetical scenario further and say the POC in its current form remains, Love Equality is confident it will still achieve marriage equality as there are not enough signatures to trigger the petition.
Love Equality has fought for eight long and hard years and it seems to finally have been worth it. We are not wrapping up the agenda, posters and flags just yet and if we have to take this fight back to the Assembly we are ready!
So, like any good lawyer the answer is never straight forward. It should be safe enough to start looking at what Save the Date cards you fancy. You can maybe start lightly perusing the hat shops. Just hold back on any deposits until after 21 October to see where the land lies.
Ciaran Moynagh is partner at Phoenix Law Solicitors