Today the High Court dismissed a number of legal challenges against Northern Ireland’s current definition of marriage. In doing so the Court recognised that this fundamental issue of social policy is a matter for the Assembly and not the Courts. I welcome this decision because I am a democrat. I believe our laws should be made by politicians. I have a long and consistent record of opposing judicial activism both in my political career and my legal practice.
I believe that those who brought these challenges did so because they feel passionately that same sex marriage should be legal in Northern Ireland. They believe they are being discriminated against and that the state deems their relationships to be of less value that heterosexual relationships. Whilst I do not agree with their views, I understand them.
It would also appear from the judgement that the High Court Judge who ruled in this case understood their reasons for bringing the application. However, the Judge correctly based the decision upon the law rather than upon a subjective view of what should and shouldn’t be legal. This is rightly the prerogative of elected politicians.
As a result of this ruling I have no doubt that renewed attention will be placed on our Members of the Legislative Assembly. Without a functioning Assembly there will not be another opportunity for a same sex marriage bill to be presented and voted on. Those who support a campaign to legalise same sex marriage should first concern themselves with the restoration of the Assembly.
I thoroughly expect the Assembly to reconvene. When it does I imagine that a same sex marriage bill will be one of the first items on the agenda. The Assembly has previously voted 5 times on motions expressing support for the legalisation of same sex marriage. The most recent attempt was blocked by a petition of concern by the DUP.
Were I an MLA I would oppose a bill to legalise same sex marriage. I sincerely believe that marriage is between a man and a woman. I believe that civil partnerships offer broadly equivalent rights to marriage. I believe the same sex marriage debate is not about the rights available to same sex couples. I believe the debate is about equivalence. I believe a large and well organised political lobby want to change the law to show that their relationships are just as valid as anyone else’s. I don’t believe it is the state’s role to decide the value of a relationship.
However, were I an MLA I would refuse to sign a petition of concern because, as I have already stated, I am a democrat. This would of course be conditional on sufficient protection for the Christian and broader faith community. The petition of concern was created as a protection for minority communities in the fledging Northern Ireland Assembly. These sorts of minority protections were long opposed by Unionists who believed that they were fundamentally undemocratic.
I don’t like petitions of concern. I want Northern Ireland to be a normal democracy that doesn’t need mechanisms like the petition of concern. However, as a means of restoring devolution to Northern Ireland I’m prepared to live with it on the condition that it is used sparingly and for the purpose it was intended, namely the protection of minority communities.
One of the greatest ironies in our political system is that the DUP who complained so bitterly about power-sharing are the greatest users of petitions of concern. The DUP have long used this minority protection as a way of a single party vetoing everything they do not like. This is an abuse of the petition of concern and it is an affront to ordinary democratic principles.
As everyone will know the situation changed drastically in March 2017 which had two revolutionary outcomes. The first was that unionism under the leadership of Arlene Foster lost its majority in the Assembly for the first time. The second was that the DUP fell under the required number of MLAs to deploy a petition of concern without assistance from other parties.
The result is that campaigners for same sex marriage have reason to be hopeful. All 28 DUP MLAs will have to sign a petition of concern with support from Jim Allister and at least one Ulster Unionist MLA.
I would urge the DUP and other Unionist MLAs to reflect carefully on this issue and on the broader impact on our democracy that the continued abuse of petitions of concern would have. I believe passionately that Northern Ireland needs to mature as a democracy and move away from the structural impediments on normal parliamentary democracy that we currently have. This has been a long-term unionist objective. However, this can only be achieved if it is built on a foundation of trust between communities and respect for fundamental democratic principles.