Harrison & Ors, R (On the Application Of) v Secretary of State for Justice

It is common ground that article 14 ECHR does not give rise to a freestanding right to freedom from discrimination but prohibits discrimination in the enjoyment of rights under the ECHR; to have recourse to article 14, the discrimination in question must fall within the ambit of another ECHR right (see per Lord Kerr of Tonaghmore JSC at paragraph 16 and R (oao Steinfeld) v Secretary of State for Education [2020] AC 1 SC).

In the Detailed Grounds of Defence, it was contended that the facts of this case did not fall within the ambit of any of the articles of the ECHR relied on by the Claimants. On the basis of the evidence filed relating to the individual Claimants, however, the Defendant now accepts “that the facts as they relate to the Claimants in this case fall, just, within the ambit of article 9 of the ECHR …” (paragraph 35, Defendant’s Skeleton Argument).

Notwithstanding this concession, it is common ground that I must make my own findings on the question of ambit: (i) because the extent of the connection with the underlying rights relied on is material to the other questions I need to answer, in particular as to justification; and (ii) because no such concession is made in respect of article 8 ECHR.

The parties do not, however, agree as to the approach I am to adopt in determining this question. For the Defendant, reliance is placed on guidance provided by the House of Lords in M v Secretary of State for Work and Pensions [2006] 2 AC 91, where Lord Nicholls held that:

“14.

… the approach to be distilled from the Strasbourg jurisprudence is that the more seriously and directly the discriminatory provision or conduct impinges upon the values underlying the particular substantive article, the more readily will it be regarded as within the ambit of that article; and vice versa. In other words, the EC)HR makes in each case what in English law is often called a “value judgment”.”

The Defendant also refers to the speech of Lord Bingham of Cornhill in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, holding that the term “ambit” denotes:

“13.

… a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M, at para 14, for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect.”

The Defendant further references the Judgment of Arden LJ (as she then was), in R (Steinfeld) v Secretary of State for Education [2018] QB 519 CA, where (referring back to Lord Bingham’s phrase “personal interest close to the core of such a right”), she held that:

“61.

…The core of a right is ascertained by identifying the values at stake. It means that the Convention is only concerned with disputes about discrimination which are “of moment” and not peripheral issues.”

The Claimants contend that they are not required to demonstrate that the subject matter of their complaint goes to “the core of a right” under either article 8 or 9: where the state provides a positive measure falling within the scope of an ECHR right (here, the recognition of certain forms of marriage under section 26 of the 1949 Act), it must do so without discrimination (see paragraphs 22-29, Petrovic v Austria (2001) 33 EHRR 14). As Sir Thomas Etherton MR explained in Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2018] 2 WLR 1063, CA, at paragraph 42:

“It is also well established and common ground that, even where the state is under no obligation to provide a particular measure in order to comply with its obligations under article 8, if it does provide a particular measure which does fall within the ambit of article 8, it must provide the measure without discrimination in compliance with article 14. There are numerous Strasbourg authorities to that effect, in which the positive measure is described as a “modality” of the right conferred by the substantive provision of the Convention. …”

In Smith, having reviewed the domestic case-law on ambit, the Master of the Rolls summarised the approach to be adopted, at paragraph 55:

“… where, as here, the claim is that there has been an infringement of article 14, in conjunction with article 8. The claim is capable of falling within article 14 even though there has been no infringement of article 8. If the state has brought into existence a positive measure which, even though not required by article 8, is a modality of the exercise of the rights guaranteed by article 8, the state will be in breach of article 14 if the measure has more than a tenuous connection with the core values protected by article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question.”

This passage was cited with apparent approval by Lord Kerr in In re McLaughlin [2018] 1 WLR 4250 SC (albeit that Lord Kerr observed that “core values” – a concept derived from domestic law – might give rise to too restrictive a test).

The present proceedings concern a measure that the state has chosen to introduce. As is apparent from the evidence (see the Law Commission’s Scoping Paper at paragraphs 3.28-3.29 and the discussion at paragraph 74 of Mr Copson’s first statement), signatories to the ECHR have adopted different approaches to the legal recognition of marriage: some only recognise civil marriage ceremonies, some allow for recognition of civil, religious and humanist marriage, and some just for civil and religious marriage. If the legal recognition of marriage is a modality of the exercise of rights guaranteed by article 8 or article 9 (and it is not suggested that any different approach should be taken where the underlying right is provided by article 9 rather than article 8), I agree with the Claimants: the question is not whether that measure goes to the core of the right, it will fall within the ambit of that right if it has a more than tenuous connection with the core values it seeks to protect.

The measure in issue in this case is the legal recognition of religious marriages under sub-section 26(1)(a), (c), (d) and (e) of the 1949 Act; it is the Claimants’ primary submission that, to the extent the state has failed to extend such recognition to humanist marriages, this gives rise to a more than tenuous connection with rights guaranteed under article 9 ECHR.

I have summarised the parties’ respective positions on the evidence relating to humanism and marriage, above. As the Defendant has observed, not all humanists will consider it is necessary to manifest their beliefs through marriage and not all of those who marry by way of a humanist ceremony will be humanists (although, as the Claimants have pointed out, those are observations that could also be made about many who hold religious beliefs or who undergo a religious marriage). The Claimants object that (save in exceptional circumstances) it is not for the state to determine what principles and beliefs are to be considered central to any religion or belief, or to assess the legitimacy of such beliefs or the ways in which they are expressed (Kovalkovs v Latvia [2012] ECHR 280, at paragraph 60; Eweida and ors v United Kingdom (2013) 57 EHRR 8, at paragraph 81). For the Defendant, however, it is submitted that these principles cannot serve to prevent the state from considering

To the extent that it is therefore necessary for me to consider the content of humanist beliefs relevant to marriage, I am satisfied that the evidence shows that, for many who hold those beliefs, the ceremonies that mark significant life events, such as marriage, provide a close and direct link to the beliefs of the participants such as to amount to a manifestation of those beliefs. The evidence of witnesses such as Ms Birch, and of the Claimants themselves, makes clear that for many humanists such ceremonies are not simply motivated or influenced by their beliefs; rather, there is an intimate link with the humanist belief system; in particular, in the way in which couples prepare for their wedding with their celebrant, in the statements made during the ceremony and in the emphasis on individual freedom of choice.

In my judgment, that evidence would establish the necessary connection between humanist marriage and humanist beliefs to amount to the manifestation of those beliefs for article 9 purposes (see Eweida v UK (2013) 57 EHRR 8 at paragraph 82). The Claimants do not, however, have to go so far; they merely have to establish that the conduct of a humanist marriage falls within the ambit of article 9; it is clear to me that it does. In this respect I entirely concur with the conclusion reached by the Court of Appeal of Northern Ireland in the case of Smyth, Laura, an Application for Judicial Review [2018] NICA 25 (also involving a challenge to a failure to extend legal recognition to humanist marriages), where it was held:

“[41] … the issue in this case is not whether there has been an interference with the freedom to manifest one’s view but rather whether the conduct of a humanist wedding ceremony by a humanist officiant has a sufficiently close and direct nexus with humanist beliefs to be within the ambit of Article 9. It is not concerned with whether the BHA [British Humanist

Association] has espoused a particular view about the marriage ceremony as an expression of belief but rather whether the facts of this case demonstrate that the ceremony satisfies the necessary connection.

[42] We are inclined to agree with the learned trial judge that such a ceremonial act is a direct expression of the respondent’s humanist beliefs and satisfies the test for manifestation of belief but we are entirely satisfied that the conduct of a humanist wedding ceremony by a humanist wedding officiant for a person holding humanist views is within the ambit of that Article. …”

The focus of the Claimants’ case has been on article 9 ECHR; whilst reliance is also placed on article 8, the Claimants’ submissions have not addressed this alternative case in any depth. That, it seems to me, reflects the rather weaker ground the Claimants are on in this respect. The measure in issue in this case gives legal recognition to particular marriage ceremonies but (in contrast to the position in R (oao Steinfeld) v Secretary of State for Education – see as addressed in the Court of Appeal, at [2018] QB 519 paragraphs 62 and 147) is otherwise unconcerned with the status of the Claimants’ relationships. The Claimants’ complaint is not of a denial of their right to a private and family life: they acknowledge that they are able to enter into marriages that have legal recognition, their complaint is that they cannot do so through the ceremony that manifests their humanist beliefs. On this alternative case, I therefore agree with the Defendant: the Claimants have not demonstrated a more than a tenuous connection with the core values protected by article 8 ECHR.

There is a significant dispute between the parties as to whether there is a difference in treatment arising from the measure in issue in this case. Even if there is such a difference, the Defendant contends it is because the Claimants are not comparing like with like: they are not in an analogous position to their religious comparators.

The Claimants make their comparison with members of all religious groups; although the outcome they seek is put in terms of recognition of marriage “according to the usages of Humanists UK” (Claimants’ Skeleton Argument at paragraph 38) - which echoes the language used in respect of Quakers and Jews (section 26(1)(c) and (d) of the 1949 Act) and is similar to the “rites of the Church of England” (section 26(1)(e)) – the Claimants make a principled objection to the legal recognition afforded (albeit in different ways) to all forms of religious marriage ceremonies as compared to humanist marriages. The Claimants further object to the consequences that flow from that general difference of treatment, summarised as follows.

First, in contrast to Anglicans, Quakers and Jews, or those who marry in a registered building (i.e. other religious marriages), humanists who (consistent with their beliefs) do not marry according to a religious ceremony, must have a civil marriage under the direction and control of state officials (the superintendent registrar and registrar), that being the effect of sections 45 and 46B of the 1949 Act (in argument, this was referred to as the “unwanted guests” point). For those getting married in a registered building, a registrar is only required to be present until duplicate marriage books have been supplied to an authorised person (normally a priest or other religious official), see section 44 of the 1949 Act. There is no such requirement in respect of Anglicans, Quakers or Jews.

Second, the “unwanted guests” come at a price: in contrast to the solemnization of religious marriages, humanists who have a civil marriage ceremony will have to pay the relevant fees for the attendance of the required state officials (on Mr Barcoe’s evidence, this is currently £46 for a registrar at a register office (there is no separate fee for the superintendent registrar), or the fee set by the local authority for the attendance of the superintendent registrar and registrar at a civil wedding on approved premises).

Third, marriages according to the usages of Quakers and Jews are not subject to any requirement as to venue (albeit the evidence before me is that Quakers will marry in a Friends’ Meeting House); in contrast, humanists who undergo a civil marriage ceremony must use either a register office or approved premises (the latter specifically requiring that solemnization of the marriage take place under a physical structure (regulation 2(1) of the 2005 Regulations).

Fourth, there is greater freedom afforded in respect of religious marriage ceremonies, which may be conducted according to the rites of the Church of England (section 26(1)(e)), or to the usages of Quakers or Jews (section 26(1)(c) and (d)), or for other religious weddings: “according to such form and ceremony as those persons [getting married] may see fit to adopt”, subject to the consent of those presiding over the place of worship in question (section 44). No such provision is made for humanist marriages.

Fifth, the registration of a religious marriage can be carried out by the person who (in effect) conducted or facilitated the marriage (section 53); for humanists who undergo a civil wedding, the marriage must be registered by the registrar who witnesses the solemnization of that marriage.

The Defendant disputes that there is any, or any significant difference in respect of the ECHR rights in play between the Claimants and their chosen comparators.

In respect of the “unwanted guests” point - the objection that civil marriages must be under the direction and control of state officials – the Defendant initially sought to suggest that this might be overcome by the appointment (possibly on a temporary basis) of humanists (including Humanists UK celebrants) as registrars. Having reflected, during the course of the hearing, on the difficulties that would arise in this regard, this point was not pursued. The Defendant did, however, assert that a civil wedding could incorporate the “usages” of a Humanists UK ceremony, conducted by a Humanists UK celebrant, provided the superintendent registrar and registrar were present (these “unwanted guests” did not have to carry out the ceremony).

There was some dispute as to whether this was correct as a matter of practice. As the Claimants have observed, guidance issued by the GRO in 2016/17 stated that “there must be a clear break between the civil ceremony and any other blessing or commemorative event”; which suggests that a humanist, legally recognised civil wedding could not be one, continuous event. It is, however, the Defendant’s public position (as confirmed in this litigation, and supported by the statement of Ms Tighe, from the GRO) that there need be only one ceremony, which can incorporate humanist elements and can be conducted by a humanist celebrant, provided this is in the presence of a superintendent registrar and registrar. That, it seems to me, is a position that is entirely consistent with the requirements of the 1949 Act.

Although the Defendant accepts that participants in such a wedding will have to pay a fee for the attendance of the state officials concerned (and it is not suggested that this is de minimis), it is pointed out that religious marriages will generally involve far greater costs, whether by way of a fee to marry in the building concerned, or other costs associated with the particular religion, and/or in respect of a fee for the authorised person who will officiate. The Claimants counter, however, that such costs are also incurred for humanist civil marriages, where a fee will be paid for the celebrant, and there will be additional costs (which may be significant) if the wedding takes place on approved premises. The difference, the Claimants point out, is that they must also pay for the state officials, who attend the wedding as unwanted guests.

As for the objection that there is greater “control” over civil marriages, the Defendant contends this is really a complaint as to form rather than substance. Section 26(1) of the 1949 Act provides for state oversight by the superintendent registrar for both religious and non-religious marriages; that might take a different form in different cases (it is accepted that there is specific, separate treatment of Anglican, Quaker and Jewish marriages) but the overarching supervision of the state in all cases is provided by the requirement for preliminary formalities to be met (for example, the notification requirements under section 27) and there are specific requirements for the registration of places of worship.

Similarly, as for the complaint regarding venue, given the wide range of approved premises permitted, the requirement that the solemnization of the marriage take place under a permanently immovable structure need not prevent the ceremony taking place in a location of the participants’ choosing. In any event, religious marriages would generally also have to be constrained by this requirement (either because that was required by the particular religion – as was the case with Anglican and Quaker marriages – or because the marriage would be solemnized in a registered building). Only marriages according to the usages of Jews might not have to be solemnized under a physical structure, although, even then, the Defendant points out that the couple will generally be married under the Chuppah - a canopy used in Jewish wedding ceremonies to represent the couple’s new home. For completeness, I record that the Claimants do not accept this point; relying on the evidence of Rabbi Romain in these proceedings, they note that the Chuppah, which is not a permanent immovable structure (indeed, it may simply be a sheet, held over the couple), is not a legal requirement of a Jewish wedding).

More generally, the Defendant points to the freedoms afforded to the Claimants (and other humanists) to have a marriage ceremony, conducted by a humanist celebrant, that accords with their beliefs, which may be held in one of a wide choice of venues. To the extent that the Claimants are able to point to any difference of treatment, the Defendant contends they are not comparing like with like. Unlike humanism, marriage – as with other forms of ceremony and communal expression - is generally a core part of, and intimately linked to, the beliefs of the Claimants’ religious comparators; it forms part of the practice of those religions in a way that is not true of humanism.

The Claimants object to this characterisation of the difference between humanist and religious belief but, more fundamentally, say it is entirely irrelevant to the difference of treatment of which they complain, observing that English law lays down no requirement that marriage, or ceremony, is intimately linked to religious belief, or that either should form part of the practice of a religion before it can obtain the necessary authorisation under the 1949 Act. In argument, the Claimants point to the apparently neutral position of Buddhism towards marriage and they draw attention to the Aetherius Society – a religious movement that is stated to profess that “the Master Jesus, the Lord Buddha, Sri Krishna, St Peter, Confucius, Lao Zi and Moses, to name a few, were in fact extra-terrestrial in origin” being among the “Cosmic Masters … from civilizations, ancient beyond conception, which exist on higher planes of existence on other planets in our solar system” who revealed themselves to a London taxi driver in the 1950s (see the Claimants’ Skeleton Argument at paragraph 86) – which is able to legally marry its adherents under the 1949 Act (it has a building in Warrington registered for this purpose, although there is no evidence that any marriage has been solemnized there), albeit there is no indication that marriage has any particular significance for this religion.

The Defendant does not accept that the Claimants’ references to Buddhism or to the Aetherius Society in argument provide evidence that can serve to undermine the more general point made: the Claimants must prove their case on discrimination and the Defendant submits that the evidence does not establish that they are in an analogous position to their religious comparators.

The right under article 14, not to be discriminated against in the enjoyment of rights guaranteed under the ECHR, is violated when, without objective and reasonable justification, the state treats differently persons in analogous situations, or fails to treat differently persons whose situations are significantly different (see Thlimmenos v Greece [2001] 31 EHRR 15, at paragraph 44); as Elias LJ put it in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, at paragraph 34:

“Like cases should be treated alike, and different cases treated differently. This is perhaps the most fundamental principle of justice. If defendant A is sentenced to a harsher sentence than equally culpable defendant B that is universally perceived to be unfair. Conversely, if A is sentenced to the same sentence as more culpable defendant B, that is also unfair. The sentences themselves may be harsh or lenient, but that is not the source of this particular injustice or unfairness. It is the unjust differentiation in the first case, and the unjust failure to make a differentiation in the second, which constitutes the unfairness. This is so whatever the reason for making, or failing to make, the differentiation.”

Whether or not there has been a relevant difference in treatment thus requires an understanding of the circumstances of those who are being compared. In the present case, it is helpful to undertake this assessment by considering together both the question whether there has been a difference of treatment (question (2)) and that of analogous position (question (4)).

The right in issue is that guaranteed by article 9 ECHR - to manifest religion or belief - and it is clear that, under English law, there are differences in how people are able to manifest their religion or belief through marriage. I note, in passing, that there are differences in treatment for those holding different religious beliefs: Jews and Quakers are treated differently to Anglicans and yet further differences arise in respect of other religious groups. To some extent this might be said to reflect the differences in the beliefs of the different religions – different cases being treated differently – but, whether or not that is so, this is not an issue I am required to determine in these proceedings. The Claimants’ complaint is of the difference between the legal recognition of a religious ceremony solemnizing a marriage, without (once initial authorisations have been given in certain cases) a registrar and superintendent registrar being present, and the lack of such recognition given to a humanist ceremony in the same circumstances. At a superficial level, this can be characterised as the “unwanted guests” problem (with the consequential additional costs entailed); more fundamentally, however, this gives rise to a difference in how the law treats the manifestation of religious and other beliefs through the ceremony of marriage.

The Defendant contends that this is not a relevant difference because the ceremony of marriage has a significance for adherents to particular religious beliefs, which is not the same for those who hold humanist beliefs. In addressing the question of ambit, however, I have already found that for many humanists the ceremonies that mark significant life events – including marriage - provide a close and direct link to the beliefs of the participants such as to amount to a manifestation of those beliefs. The position of such a humanist (which would include each of the Claimants in this case) is directly analogous to the position of a person holding a religious belief who similarly wishes to manifest that belief when they enter into marriage.

More generally, as the Claimants have observed, the legal recognition of religious marriage ceremonies under English law is not made dependent on a link being shown between marriage and a particular religious belief. The need to compare like with like – the requirement that complainant and comparator are in analogous positions – must refer to circumstances that are material to the treatment in issue. Although the 1949 Act lays down a number of requirements before certain religious marriage ceremonies can be legally recognised (for example, in respect of the registration of a place of worship, see section 41), there is no requirement that the religion in question must be shown to place any particular significance on marriage. The examples relied on by the Claimants are merely illustrations of a point that is made good by the legislation in issue: the distinctions that the Defendant seeks to draw in these proceedings are not distinctions made within the 1949 Act.

That said, it is right to note that marriage ceremonies that take place in a register office or on approved premises (which should not be religious premises, see schedule 1, paragraph 4(a) of the 2005 Regulations), are subject to the requirement that no religious service shall be used (see sections 45(2) and 46B of the 1949 Act). Does that mean that those who wish to manifest their religious beliefs through marriage are thus placed in a different position to those who do not? In my judgment that question must be answered in the negative. The state has chosen to make separate provision for the legal recognition of religious marriage ceremonies; in so doing, it places trust in those authorised by the religions in question to officiate over such ceremonies. While couples who hold humanist beliefs may be able to manifest those beliefs through a ceremony conducted by a humanist celebrant and according to the usages of Humanists UK (I am proceeding on the basis that the Defendant is correct in his characterisation of what is allowed in practical terms), that celebrant – who will, consistent with the emphasis humanism places on the individual person, have got to know the couple and devised a ceremony that is individual to them (see the evidence set out at paragraph 28 above) – will not be an authorised person for the purposes of the solemnization of the marriage, or able to register the marriage, and that ceremony will not, of itself, be given legal recognition absent the presence of officials who need have no connection with humanism.

Comparing like with like, the humanist couple who wish to have a marriage ceremony that manifests their belief, in the same way as a religious couple might do, are thus treated differently: unlike their religious comparators, the conduct of their marriage ceremony, according to their humanist beliefs will not be legally recognised absent the supervisory presence of state officials.

That is the difference of treatment at the heart of this claim, and I am satisfied that it is a difference of substance, not merely one of form. Although many of the consequences of that difference - such as the additional costs involved - do not give rise to such a fundamental point of principle, they also represent differences of treatment between the Claimants and their comparators that are more than de minimis.

Although article 14 ECHR does not specifically identify “belief” as a prescribed ground, the Defendant accepts that it must fall under the category “other status”. It is thus common ground that this question is to be answered in the affirmative. Justification

At this stage, the burden of proof shifts to the Defendant to demonstrate that the difference in treatment established by the Claimants is objectively justifiable. In determining the question of justification under article 14 ECHR, the court is required to apply a fourfold test, as explained by Lady Hale, in R (Tigere) v. Secretary of State for Business, Innovation and Skills [2015] UKSC 57, at paragraph 33:

“It is now well-established in a series of cases at this level, beginning with Huang v. SSHD [2007] UKHL 11, [2007] 2 AC 167, and continuing with R (Aguilar Quila) v SSHD (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, that the test for justification is fourfold: (i) does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community.”

In assessing whether justification has been shown, the assessment of the balance struck requires justification not of the measure in issue but of the difference in treatment between one person or group and another; see per Lord Bingham of Cornhill in A v Secretary of State for the Home Department [2005] 2 AC 68 at paragraph 68 and, for a more recent iteration of the point, per Lord Kerr of Tonaghmore JSC at paragraph 42 R (oao Steinfeld) v Secretary of State for Education [2020] AC 1):

“To be legitimate, … the aim must address the perpetration of the unequal treatment ….”

As for the standard that is to be applied, for the Defendant it is submitted that, in assessing proportionality in this case, the test is properly to be characterised as raising the question whether the measure is “manifestly without reasonable foundation”; that, the Defendant contends, is correct because the context is one involving issues of social policy, see Carson v United Kingdom (2010) 51 EHRR 13, in which the ECtHR held (at paragraph 61) that:

“The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment …. The scope of this margin will vary according to the circumstances, the subject-matter and the background. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v the United Kingdom [GC], no. 65731/01 and 65900/01, §52, ECHR 2006-VI).”

As the Defendant observes, this is a test that has been adopted in domestic case-law with approval; thus in DA v SSWP [2019] 1 WLR 3289 SC, Lord Carnwath (with whom Lord Reed and Lord Hughes agreed, and with whom Lord Hodge also agreed in relevant part (see paragraph 125)) held (see paragraph 118) that the “manifestly without reasonable foundation” test is:

“used as a means of allowing the political branches of the constitution an appropriately generous measure of leeway when assessing the proportionality of measures concerning economic and social policy.”

See further, R (TP) v SSWP [2020] EWCA Civ 37 at paragraph 159(in the Judgment of Sir Terence Etherton MR and Singh LJ) and R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502.

Where, as here, the protected characteristic or status in issue was not “one of the suspect grounds” - that is, race, sex or sexual orientation - it was also clear that the test to be applied would be less onerous, see R (Carson) v SSWP [2006] 1 A.C. 173 at paragraph 57; DA v SSWP [2019] 1 WLR 3289 at paragraph 114; R (TP) v SSWP [2020] EWCA Civ 37 paragraph 161 (Judgment of Sir Terence Etherton MR and Singh LJ); and R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502 paragraph 76.

Accepting that this is not a case involving a “suspect ground”, the Claimants nevertheless disagree that the relevant standard is that of “manifestly without reasonable foundation”. They note that that was a test laid down at international level, where signatory states need to be afforded a margin of appreciation. Moreover, in the case of JD and A v United Kingdom (ECtHR Applications Nos 32949/17 and 34614/17) (24 October 2019) at paragraph 88, the ECtHR had made clear that, whilst there is a wide margin of appreciation in the context of general measures of economic or social policy, such measures must not violate the prohibition of discrimination as

There is a helpful discussion of the evolution and application of the “manifestly without reasonable foundation” test in R (oao Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, at paragraphs 121-141 of the Judgment of Hickinbottom LJ (Henderson and Davies LJJ also agreeing with this analysis), concluding as follows:

“140.

The manifestly without reasonable foundation criterion, as used domestically, is derived from the Strasbourg court, which, as I have already indicated …, generally shies away from formalism. Properly construed, in my view, the criterion cannot simply apply to some cases where there is an issue of justification in respect of a measure involving an element of social or economic policy separated from other cases by a bright line. No such line can sensibly be drawn: the degree of social and economic policy involved in any measure will be infinitely variable. In my view, the criterion simply recognises that, where there is a substantial degree of economic and/or social policy involved in a measure, the degree of deference to the assessment of the democratically-elected or -accountable body that enacts the measure must be accorded great weight because of the wide margin of judgment they have in such matters. The greater the element of economic and/or social policy involved, the greater the margin of judgment and the greater the deference that should be afforded. That is, for obvious reasons, particularly so when that body is Parliament. However, if the measure involves adverse discriminatory effects, that will reduce the margin of judgment and thus the degree of deference. That will be particularly so where the ground of discrimination concerns a core attribute such as sex or race. That, in my respectful view, explains Baroness Hale's observation in Humphreys …: she could not have meant that, where some element of social or economic policy is concerned, that simply "trumps" any degree of discrimination.

141.

If that analysis is right, whether seen in terms of the application of the manifestly without reasonable foundation criterion or simply in terms of the usual balancing exercise inherent in the assessment of proportionality, the result should be the same ….”

This passage from the Judgment of Hickinbottom LJ is not only binding on me, I respectfully agree with that analysis. Having thus clarified the approach I should adopt, I now turn to its application in this case.

In seeking to demonstrate that the difference in treatment between the Claimants and their religious comparators is justified, the Defendant relies on the following three matters as constituting legitimate aims (see the Detailed Grounds of Defence paragraphs 56-58).

First, it is said that the aim of the system of marriage under English law (in broad terms, providing for (i) marriage ceremonies for those of a variety of religious beliefs, and (ii) civil marriage ceremonies for those wishing to marry by a non-religious ceremony) “is to recognise the special place of marriage and of particular marriage ceremonies to the religions in question” (Detailed Grounds of Defence, paragraph 56).

Second, by not amending the law so as to create a separate category of marriage ceremony for those wishing to marry “according to the usages of Humanists UK”, it is said that the Defendant is pursuing the legitimate aim of avoiding the introduction of (i) further complexity into an already complex marriage system, and (ii) a new species of discrimination as between (a) humanists and members of religions who are restricted to their registered place of worship, and (b) humanists and non-humanists who marry by civil marriage ceremony. (Detailed Grounds of Defence paragraph 57)

Third, the Defendant contends that it is a legitimate aim not to wish to reform the law in a piecemeal fashion when there are further issues arising in this area of social policy (presently being considered by the Law Commission). In this regard, the Defendant submits that the present context is one in which the Government and then Parliament should be allowed time to “reflect on what should be done when one is considering how to deal with an evolving societal attitude…” (see the Supreme Court’s Judgment in Steinfeld, at paragraph 36).

In respect of the first aim thus identified – to recognise the special place of marriage, and of particular marriage ceremonies, to the religions in question – the Claimants object that this cannot be legitimate. The UK state is not obliged to give any special legal rights or privileges to religious groups in respect of marriage (see Savez Crkava

“Riječ Života” v Croatia (2012) 54 EHRR 36 at paragraph 56). The only obligation (imposed by article 12 ECHR) is that the state must recognise the right of men and women of marriageable age to marry and found a family according to national law; choosing to provide - in piecemeal and largely arbitrary fashion - a patchwork quilt of additional rights and privileges, but only for religious groups, does not represent the pursuit of any legitimate aim.

On this point, I agree with the Claimants. First, because the “aim”, as stated, amounts to nothing more than a statement of the discrimination of which the Claimants complain: without any further investigation as to the content of the beliefs held regarding marriage, this objective could only privilege religious attachment over the traditions and beliefs of those who adhere to other, non-religious belief systems. Second, because there is no rational connection between the way in which English

As for the second and third aims identified, the Claimants object that the continued denial of legal recognition for humanist marriages cannot be legitimate if this results in the continuation of unlawful discrimination against humanists: it is no defence to plead that the system is already discriminatory and no answer to rely on a possible risk of some new, hypothetical discrimination as justification for the very real adverse impact already suffered by the Claimants. As for the amendment to the law that would be required, the Claimants say this is already provided by section 14(4) of the 2013 Act, by which Parliament has given the Defendant the power to amend the law to permit marriages according to the usages of belief systems.

In my judgment, if the second aim identified by the Defendant – not to introduce further complexity and any new forms of discrimination into English law relating to marriage – is to have any legitimacy, it can only be as a preamble to the third aim – that of undertaking any reform on a wholesale, rather than piecemeal, basis. Otherwise, as the Claimants have observed, the Defendant would be seeking to justify the continuation of an established discriminatory difference of treatment, as between humanists and their religious comparators, on the basis that the remedy sought – providing legal recognition of marriages according to the usages of Humanists UK - might not address other differences in treatment. Acknowledging that the removal of discrimination may be complex cannot, of itself, make a failure to address that discrimination a legitimate aim; it cannot be open to the Defendant to simply sit on his hands because taking steps to address a discriminatory difference in treatment impacting upon one group may give rise to issues relating to others.

All that said, these are considerations that give relevant context to the Defendant’s stated desire to consider any reform on a wholesale, rather than piecemeal, basis – the third aim identified by the Defendant. The question then effectively becomes whether the Defendant has established a legitimate aim in taking time to consider the appropriate solution as part of a wider reform of the law in this regard?

Giving the Judgment of the Supreme Court in Steinfeld (which concerned a challenge to the Government’s failure to extend civil partnerships (open to same-sex couples) to different sex couples), Lord Kerr of Tonaghmore JSC dismissed the argument that the Government’s desire for time to consider the question of reform amounted to a legitimate aim, holding (see paragraph 42):

“… The respondent does not seek to justify the difference in treatment between same sex and different sex couples. To the contrary, it accepts that that difference cannot be justified. What it seeks is tolerance of the discrimination while it sorts out how to deal with it. That cannot be characterised as a legitimate aim.”

In rejecting the conclusion reached by the Court of Appeal on this point, Lord Kerr acknowledged that in Walden v Liechtenstein (Application No 33916/96) (16 March 2000) the ECtHR had held that a refusal to quash a discriminatory law could be justified as equivalent to a temporary stay pending rectification by primary legislation. In R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, Lord Hoffman had described this decision as “puzzling” (see paragraph 62), but had allowed:

“62.

… I can quite understand that if one has a form of discrimination which was historically justified but, with changes in society, has gradually lost its justification, a period of consultation, drafting and debate must be included in the time which the legislature may reasonably consider appropriate for making a change. Up to the point at which that time is exceeded, there is no violation of a Convention right. But there is no suggestion in the report of Walden v Liechtenstein that the discrimination between married couples was ever justified and I find it hard to see why there was no violation of Convention rights as long as the old law remained in place.”

Unlike Steinfeld, the present case does not involve a challenge to a relatively new change in the law that has introduced a difference of treatment; the discrimination of which the Claimants complain is long-standing, although the catalyst for their claim is the more recent power afforded to the Defendant under the 2013 Act (or, more specifically, his failure to exercise that power). While there has plainly been a very real change in social attitudes towards marriage (and see the discussion at paragraphs

That said, there is evidence to support the Defendant’s position that this is not an area where reform can properly be undertaken in a piecemeal fashion. If legal recognition is to be afforded to marriages conducted according to the Usages for humanist marriages, that may well give rise to questions as to whether wider reforms are necessary (most obviously in relation to current requirements as to the place where a wedding may be solemnized). In this regard, I am bound to note that the Law Commission concurred with the Government’s view, that reform was needed on a wholesale, rather than piecemeal, basis, concluding (see paragraph 1.50 of the Law Commission’s Scoping Paper):

“… the answer cannot be simply to exercise the order-making power contained in section 14(4) of the Marriage (Same Sex Couples) Act 2013 to enable non-religious belief organisations to solemnize marriages. That is not to say that the law should not be reformed to accommodate marriages by non-religious belief organisations; but any steps to do that need to take place alongside a broader updating of the law of marriage that seeks to address a number of long-standing problems.”

(and see the fuller citation at paragraph 42 above)

I remind myself that the Claimants’ challenge is to the Defendant’s continuing failure to provide for state recognition of humanist marriages, notwithstanding the power afforded to him under section 14(4) of the 2013 Act. Any omission on the Defendant’s part has, however, to be seen both in the light of the Government’s considered response to the Marriages by Non-Religious Belief Organisations consultation in 2014 (see the summary at paragraphs 40-41 above) and the conclusions reached by the Law Commission. Given, in particular, the recommendations made in the Law Commission’s Scoping Paper, I am prepared to accept that the Defendant has demonstrated a legitimate aim in seeking to address this issue as part of a wider reform. Moreover, the measure adopted – essentially to maintain the existing differences in treatment arising from the 1949 Act until that reform takes place – is rationally connected to that aim.

If I am right in my conclusions on legitimate aim and rational connection, the next question is whether the measure adopted does no more than would be necessary to accomplish the aim in question?

On this point, the Claimants contend that an alternative, less discriminatory measure is already provided to the Defendant by means of the power afforded him under section 14(4) of the 2013 Act. The difficulty with that objection is that it does not engage with the Law Commission’s conclusion (acknowledging the difficulties identified in the Government’s response to the 2014 consultation) that this power is not, of itself, able to address the issues raised if any reform be limited to the legal recognition of marriage according to non-religious belief systems.

That said, I am concerned that there have been delays in the Defendant’s response. In 2017, the explanation for taking no action was stated to relate to other pressures in the family justice system (see the letter from the Minister of Justice of 11 September 2017), but there must be a question as to whether the Defendant could have mitigated against the continuing discriminatory impact of the law by moving more quickly. This is something that seems to me to be relevant when considering the final question identified in Tigere: whether the Defendant has demonstrated that a fair balance has been struck, allowing for the degree of deference due in matters of social policy?

On a claim pursuant to article 14 ECHR, it is for the court to determine whether the difference in treatment is justified. That said, where – as here - the decision under challenge clearly relates to a matter of social policy, the court must afford a measure of latitude to the democratically elected, and duly accountable, primary decision maker. I have, however, found that there is a continuing discriminatory impact upon those who seek to manifest their humanist beliefs through marriage - something that amounts to more than falling “just, within the ambit of article 9 of the ECHR” (to use the language of the Defendant’s concession) – and that will reduce the margin of judgment, and, therefore, the degree of deference, to be allowed. Whilst article 9 ECHR is a qualified right, and the discrimination in issue is not on one of the “suspect grounds” (race, sex or sexual orientation), the deference to be afforded to the Defendant in this area of social policy does not simply trump questions of discrimination.

As I have found, the discrimination suffered by the Claimants is real: the difference of treatment they experience in seeking to manifest their humanist beliefs through the ceremony of marriage is a matter of substance, not merely one of form. The only question is whether that discriminatory treatment can be justified by the Defendant’s stated concern to address this as part of a wider reform of the law of marriage in this country, albeit there remains no certainty as to when that law may be changed so as to remove the adverse impact of which the Claimants complain.

The Claimants are entitled to question the Defendant’s response, both in terms of the time taken and given the position adopted in these proceedings: the denial of any difference in treatment is unlikely to have given the Claimants confidence in the Defendant’s commitment to reform. That said, since October 2018, the Government has returned to this issue and has asked the Law Commission to undertake a review of the law on how and where people can marry. The Law Commission’s work has been delayed due to the Covid-19 pandemic but there is no reason to think that the public consultation exercise will not take place later this year.

The Claimants complain that the Law Commission has not been asked to consider the question whether or not the current law on marriage discriminates against those who adhere to a non-religious belief system but that, of course, has been the question at the heart of these proceedings and, contrary to the Defendant’s case, I have found that – subject only to the question of justification – the present law gives rise to article 14 discrimination in the Claimants’ enjoyment of their article 9 rights.

On one view, the aim pursued by the Defendant – not to engage in piecemeal change in this area – might be seen as seeking tolerance of on-going discrimination while a decision is made as to how to reform the law of marriage in more general terms; an argument rejected as demonstrating objective justification in Steinfeld. There is, however, a difference between the two cases. In Steinfeld, remedying the discrimination was straightforward - the immediate extension of civil partnerships to different sex couples, see per Lord Kerr at paragraph 50 – and the aim pursued by the Government related not to that discrimination but to the desire to take time to evaluate the future of civil partnerships in more general terms. In the present case, the Government has identified concerns as to the potential consequences of addressing one area of unequal treatment without doing so as part of a more general reform. Specifically, in relation to the treatment of humanist and other non-religious belief marriages, particular issues were identified relating to the location where the ceremony might take place and/or as to the potential registration of celebrants; these were matters seen to potentially give rise to new species of discrimination if reform was only undertaken on a piecemeal basis. The legitimacy of those concerns was acknowledged by the Law Commission’s Scoping Paper, which also recommended that any reform be undertaken on a wholesale basis. While such concerns could not justify the taking of no action – the deference due to the Defendant cannot simply trump the discrimination identified in this case - they do demonstrate why this is a

In this regard, it seems to me that the observations made by the Court of Appeal in R (oao McConnell and anor) v Registrar General for England and Wales [2020] EWCA Civ 559 are apposite, identifying two particular considerations that will arise in social policy cases such as this:

“81.

… The margin of judgement which is to be afforded to Parliament in the present context rests upon two foundations. First, there is the relative institutional competence of the courts as compared to Parliament. The court necessarily operates on the basis of relatively limited evidence, which is adduced by the parties in the context of particular litigation. Its focus is narrow and the argument is necessarily sectional. In contrast, Parliament has the means and opportunities to obtain wider information, from much wider sources. It has access to expert bodies, such as the Law Commission, which can advise it on reform of the law. It is able to act upon draft legislation, which is usually produced by the Government and often follows a public consultation exercise, in which many differing views can be advanced by members of the public. Both Government and Members of Parliament can be lobbied by anyone with an interest in the subject in hand. The political process allows legislators to acquire information to inform policy decisions from the widest possible range of opinions. … If there is to be reform of the complicated, inter-linked legislation in this context, it must be for Parliament and not for this Court.

82.

The second foundation is that Parliament enjoys a democratic legitimacy in our society which the courts do not. In particular, that legitimises its interventions in areas of difficult or controversial social policy. That is not to say that the courts should abdicate the function required by Parliament itself to protect the rights which are conferred by the HRA. The courts have their proper role to play in the careful scheme of the HRA, as Lord Bingham emphasised in A v Secretary of State for the Home Department, at para. 42. In appropriate cases that can include making a declaration of incompatibility under section 4 in respect of primary legislation where an incompatibility between domestic legislation and Convention rights has been established and the interpretative tool provided by section 3 does not provide a solution. Democratic legitimacy provides another basis for concluding that the courts should be slow to occupy the margin of judgement more appropriately within the preserve of Parliament.”

Although the Claimants emphasise that the challenge in the present case is focused on the Defendant’s failure to exercise the power already afforded him by Parliament, I do not consider that gives rise to a material distinction in this regard. The conclusion reached by the Government was that the order-making power granted by section 14(4)

The Claimants’ challenge is to the Defendant’s failure to extend legal recognition to humanist marriages. That failure has, however, to be seen in context. This is an area of social policy where a margin of judgment is properly to be allowed. Although that does not mean that taking no action would be justified, or that the balance might not shift over time, addressing the differences in treatment identified by the Claimants would not be straightforward and this justifies the aim of considering the appropriate remedy as part of a more wholesale reform. Although I may deprecate the delay that has occurred since 2015, I cannot ignore the fact that there is currently an on-going review of the law of marriage in this country that will necessarily engage with the wider concerns that have been raised. Given these circumstances, at this time, the Defendant has demonstrated that a fair balance has been struck between the individual rights of the Claimants and those of the broader community.

Returning to the questions identified in R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196, for the reasons explained, I find: (1) that the facts of this case fall within the ambit of article 9 ECHR; (2) there is a difference of treatment in respect of that right between the Claimants and others put forward for comparison; (3) this difference is on a prescribed ground under article 14 ECHR; (4) the Claimants’ comparators are in an analogous situation; but (5) the Defendant has demonstrated a legitimate aim in seeking to address differences in treatment as part of a wholesale reform of the law of marriage and, given the on-going review, has - at this time - established that a fair balance has been struck between the individual rights of the Claimants and wider community interests.

The claim is therefore dismissed. The parties are to endeavour to agree any outstanding points and submit a Minute of Order accordingly. If any matter cannot be resolved, concise written submissions are to be lodged within 7 days of the handing down of this Judgment and the court will then decide the matter on the papers.