Northern Ireland – the journey to legalising same-sex marriage

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John Guerin
BLM, Belfast
john.guerin@blmlaw.com

On 22 May 2015 the Government of the Republic of Ireland held a referendum to amend the Irish Constitution and legalise same-sex marriage. This amendment was approved by 62 per cent of the electorate (with 38 per cent voting against it) and therefore a country that was widely considered to be historically conservative became the first country in the world to legalise same-sex marriage by popular vote. The Irish parliament in Dublin subsequently passed the legislation permitting same-sex marriage and the first marriage ceremony in the Republic of Ireland took place on 17 November 2015.

In Northern Ireland the situation was quite different and it took another four years before same-sex marriage was legalised. In fact, this occurred when the Government of Northern Ireland collapsed and Northern Ireland had to be governed from London. Before this, various attempts at legislating for same-sex marriage in Stormont (the seat of the Northern Ireland Assembly) took place as early as 2012, however these attempts were always defeated.

Given Northern Ireland's troubled history, the current Assembly is set up with a rather unique voting system. All parties can vote and put through legislation if a majority chooses to do so however there is also a mechanism called a ‘Petition of Concern’. This was put in place to ensure that if a piece of legislation did not have the support of both the Nationalist and Unionist parties in the Assembly then either side could lodge a petition of concern with the Speaker of the Assembly and a vote on the proposed legislation would only pass if supported by a weighted majority of both Nationalist and Unionists parties. However this meant that one side of the political divide in Northern Ireland could effectively veto a piece of legislation.

The voting record in relation to same-sex legislation in Northern Ireland since 2012 is as follows;

• 1 October 2012: 45 voted for – 50 against
• 29 April 2013: 42 voted for – 53 against
• 29 April 2014: 43 voted for – 51 against
• 27 April 2015: 47 voted for – 49 against

Accordingly you will see that a vote for the proposal to introduce same sex marriage in Northern Ireland was always narrowly defeated within the Northern Ireland Assembly.

However on 2 November 2015 the vote on same-sex marriage was 53 for and 52 against.

Therefore by simple majority, the legislation should have passed. However, the Democratic Unionist Party (DUP) lodged a petition of concern to ensure that a majority in both the Unionist and the Nationalist parties had to vote in favour of the bill. The DUP tabled the petition of concern with 32 members signatures and as a result, the bill collapsed because a majority of the Unionist side of the Assembly did not support it.

As a result of further unrelated political issues, the Power Sharing Government between the Nationalists and Unionists in Northern Ireland collapsed in 2017 and Northern Ireland was subsequently governed from London. This provided the opportunity for the Westminster legislature to attempt to legislate for same-sex marriage in Northern Ireland. A bill was initially introduced into the House of Commons at Westminster in March 2018 but was subsequently blocked. In March 2019 a further bill was introduced in the House of Lords at Westminster which was intended to extend same-sex marriage to Northern Ireland however it faced some opposition and was ultimately withdrawn.

In July 2019 Conor Maginn, an MP with the Labour Party in the UK, originally from Northern Ireland, put forward a proposal to a bill in Westminster which was totally unrelated to same-sex marriage in Northern Ireland but was more to do with trying to restore the devolved government. The amendment that Maginn proposed said that if the Government of Northern Ireland was not restored by 21 October 2019 then the UK government would have to legislate for same-sex marriage in Northern Ireland. This bill passed into law as the Northern Ireland (Executive Formation) Act 2019.

On 21 October 2019 the DUP attempted to call the Northern Ireland Assembly back into session for the first time since 2017. However, due to the absence of nationalist members of the assembly, there was a lack of cross community support for the election of a new Speaker and therefore, the DUP’s bid to restore the Assembly before 21 October as contained within the Northern Ireland (Executive Formation) Act 2019 failed. As a result, under this legislation the UK government was required to issue regulations extending same-sex marriage to Northern Ireland and these regulations took effect on 19 December 2019. The first marriage ceremony between a same-sex couple finally took place in Northern Ireland on 11 February 2020.

The journey to same sex marriage between the two parts of the island of Ireland could not have been more different, and whilst the popular vote in the Republic of Ireland indicated an overwhelming majority of support for same-sex marriage, there were some political parties in Northern Ireland who prevented same-sex marriage legislation passing. It took the UK government to ensure that Northern Ireland residents were treated in the same way as the other residents of the UK.