Sunday, 20 July 2014

Does marriage equality act contravene the Northern Ireland Act?

Something has just recently struck me that the wording in Schedule 2 of the Marriage (Same Sex Couples) Act 2013 may actually be worded in such as way that the Northern Ireland Act 1998 cannot support the wording.

Section 75 of the Northern Ireland Act 1998 states:

75 Statutory duty on public authorities.

(1)A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity—

(a)between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;

(b)between men and women generally;

(c)between persons with a disability and persons without;

and

(d)between persons with dependants and persons without.

(2)Without prejudice to its obligations under subsection (1), a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.

(3)In this section “public authority” means—

(a)any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;

(b)any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);

(c)any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation);
 Yeah one of the things that a public authority (Schedule 2 includes the Government of the United Kingdom) should have due regard to promote equality of opportunity is marital status. Now besides the fact that Civil Partnerships do not include a mention (even in amendments) within the Northern Ireland Act there does seem a requirement for the Northern Ireland Assembly and UK Government to promote equality of opportunity regardless of marital status.

However, when we turn to Schedule 2 of the Marriage (Same Sex Couples) Act 2013 we find the following wording:

Northern Ireland

2(1)Under the law of Northern Ireland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership formed under the law of England and Wales (and accordingly, the spouses are to be treated as civil partners).

(2)The Secretary of State may by order—

(a)provide for the treatment of a marriage as a civil partnership (by virtue of sub-paragraph (1)) to have effect subject to provision made by the order;

(b)specify cases in which a marriage is not to be treated as a civil partnership by virtue of sub-paragraph (1).

Is this equality of opportunity?

No!

A marriage by any other name is not a marriage, even if what was carried out is a marriage and not a civil partnership, it is still a marriage and should be treated with equality of opportunity by public authorities within and pertaining to Northern Ireland.

In their bid to retain institutionalised homophobia the Unionist parties (and at Westminster mainly the DUP) appear to have fallen into breaching the Act that gives them authority to make devolved decisions. In this case it appears to fail the equality of opportunity to have such marriages called exactly what they are and limiting such a marital status to something else.

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