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Harrison & Ors, R (On the Application Of) v Secretary of State for Justice
Factual and Procedural Background
This claim concerns six couples who identify as humanists and challenge the legal recognition framework for marriage under English law. They contend that while religious wedding ceremonies receive legal recognition, humanist weddings do not, resulting in unjustified discrimination contrary to their rights under the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA). Permission for judicial review was granted on the basis that the Claimants allege breaches of article 14, taken with articles 8, 9, and/or 12 of the ECHR. The Defendant, the Secretary of State for Justice, resists the claim, arguing that English law provides an adequate civil marriage route accommodating non-religious beliefs and that any difference in treatment is justified. The Claimants seek declaratory relief and a declaration of incompatibility under section 4 of the HRA. The case was heard remotely before Mrs Justice Eady, with submissions from both parties and evidence from expert and lay witnesses.
Legal Issues Presented
- Whether the facts of this case fall within the ambit of one or more rights guaranteed under the ECHR, particularly articles 8 and 9.
- Whether there is a difference in treatment between the Claimants and religious comparators regarding legal recognition of marriage ceremonies.
- Whether such difference in treatment is on a prescribed ground under article 14 ECHR.
- Whether the Claimants and their comparators are in analogous positions for the purposes of article 14.
- Whether any difference in treatment is objectively justifiable, considering legitimate aims, rational connection, less intrusive means, and fair balance.
Arguments of the Parties
Appellants' Arguments
- The Claimants argue that humanist weddings are a manifestation of their beliefs and should be legally recognised in the same way as religious weddings are under English law.
- They contend that the current legal framework discriminates against them by requiring humanist couples to have a civil ceremony with state officials present, which they find intrusive and inconsistent with their beliefs.
- The Claimants assert that the difference in treatment breaches their rights under articles 8, 9, and 14 of the ECHR and seek declaratory relief and a declaration of incompatibility.
- They reject the Defendant’s contention that marriage is not a core belief of humanism and maintain that ceremonial acts are important manifestations of their humanist values.
- The Claimants criticize the delay and refusal to exercise the power under section 14(4) of the Marriage (Same Sex Couples) Act 2013 to legally recognise humanist marriages.
Defendant's Arguments
- The Defendant submits that English law provides a legally recognised civil marriage route that accommodates humanist beliefs adequately, including the ability to incorporate humanist elements into civil ceremonies.
- He argues that the difference in treatment is justified because marriage ceremonies hold a special place in religious beliefs, which is not the case for humanism.
- The Defendant highlights the complexity of reforming marriage law and the ongoing Law Commission review, asserting that piecemeal reform is undesirable.
- He contends that the power under section 14(4) of the 2013 Act is insufficient on its own to address the issues raised and that wider reform is necessary.
- The Defendant relies on the margin of appreciation doctrine, emphasizing Parliament’s role and democratic legitimacy in social policy matters.
- He notes that any difference in treatment is rationally connected to legitimate aims such as avoiding complexity and ensuring a coherent marriage system.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A v A [2013] Fam 51 | Historical statutory regulation of marriage in England | Provided background on the development of marriage law relevant to the case |
| Akhter v Khan [2020] 2 WLR 1183 | Explanation of marriage law provisions | Clarified the statutory framework under the Marriage Act 1949 |
| R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196 | Framework for assessing discrimination under article 14 ECHR | Guided the court’s structured approach to the discrimination claim |
| R (oao Steinfeld) v Secretary of State for Education [2020] AC 1 | Margin of appreciation and discrimination principles under article 14 | Informed the analysis of ambit and justification of difference in treatment |
| Petrovic v Austria (2001) 33 EHRR 14 | Positive measures under article 8 must be provided without discrimination | Supported the Claimants’ argument that legal recognition must be non-discriminatory |
| Eweida and ors v United Kingdom (2013) 57 EHRR 8 | Manifestation of belief and state’s role in assessing religious beliefs | Used to assess whether humanist marriages manifest protected beliefs |
| Kovalkovs v Latvia [2012] ECHR 280 | State’s limited role in assessing legitimacy of religious beliefs | Addressed the limits of state interference in belief content |
| Thlimmenos v Greece [2001] 31 EHRR 15 | Principle of like cases treated alike under article 14 | Applied to determine whether Claimants and religious comparators are analogous |
| R (oao Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542 | Explanation of the "manifestly without reasonable foundation" test and margin of judgment | Guided the court’s approach to proportionality and deference in justification |
| R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 | Fourfold test for justification of difference in treatment under article 14 | Framework used for assessing justification in this case |
| Carson v United Kingdom (2010) 51 EHRR 13 | Margin of appreciation in social policy matters | Supported the Defendant’s argument on deference to government policy |
| R (Steinfeld) v Secretary of State for Education [2018] QB 519 | Assessment of ambit and justification in discrimination claims | Referenced in relation to the Claimants’ alternative article 8 claim |
| A v Secretary of State for the Home Department [2005] 2 AC 68 | Justification of difference in treatment must address perpetration of unequal treatment | Applied in assessing legitimacy of Defendant’s aims |
| R (oao McConnell and anor) v Registrar General for England and Wales [2020] EWCA Civ 559 | Margin of judgment in social policy cases and institutional competence | Informed the court’s deference to Parliament on complex social policy |
| Savez Crkava Riječ ivota v Croatia (2012) 54 EHRR 36 | State not obliged to confer special legal rights to religious groups | Used to reject the legitimacy of the Defendant’s first stated aim |
| JD and A v United Kingdom (ECtHR Applications Nos 32949/17 and 34614/17) | Limits on margin of appreciation in discrimination cases | Considered in argument on the appropriate standard of review |
| R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681 | Temporary tolerance of discrimination pending legislative change | Discussed in context of delay and justification |
| Walden v Liechtenstein (Application No 33916/96) | Refusal to quash discriminatory law may be justified temporarily | Referenced in relation to delay in reform |
Court's Reasoning and Analysis
The court began by establishing that the facts fell within the ambit of article 9 ECHR, as the conduct of humanist marriage ceremonies manifests the Claimants' humanist beliefs. It rejected the Claimants’ alternative article 8 claim as lacking a more than tenuous connection to the core values of that right.
The court identified a clear difference in treatment: religious marriages, including those of Anglicans, Quakers, and Jews, receive legal recognition without the presence of state officials, whereas humanist marriages require a civil ceremony with registrar attendance, imposing additional costs and procedural burdens.
The Claimants and their religious comparators were held to be in analogous positions because the legal recognition of religious marriages does not depend on the religion placing a special significance on marriage, but rather on statutory provisions. The difference in treatment was thus substantive and not merely formal.
The court accepted that belief is a prescribed ground under article 14 and that the burden shifted to the Defendant to justify the difference in treatment.
Applying the fourfold test for justification, the court found that the Defendant's first stated aim—to recognise the special place of marriage in religion—was not a legitimate aim, as it amounted to privileging religious beliefs over non-religious ones without rational connection.
The second and third aims—avoiding piecemeal reform and addressing the complexity of marriage law reform—were accepted as legitimate and rationally connected to the measure.
The court acknowledged the Law Commission’s conclusion that reform must be comprehensive and not piecemeal, and that the Defendant’s delay in exercising the power under section 14(4) of the 2013 Act was concerning but contextualized by the ongoing review and social policy considerations.
Regarding less intrusive means, the court noted the Claimants’ suggestion that the existing power under section 14(4) could suffice but accepted the Law Commission’s view that it would not fully address the issues.
In balancing the interests, the court recognized the discriminatory impact on the Claimants but also the legitimate social policy considerations and parliamentary supremacy in this area. The margin of appreciation was reduced due to the discrimination but not eliminated.
Ultimately, the court concluded that at this time, given the ongoing Law Commission review, the Defendant had demonstrated a fair balance between individual rights and community interests.
Holding and Implications
The court DISMISSED the claim for judicial review.
The direct effect is that the current legal framework remains unchanged, and humanist marriages continue to lack legal recognition under English law absent civil ceremony requirements. No immediate reform is mandated by this judgment. The decision does not establish new legal precedent on the substantive question of discrimination but acknowledges ongoing reform efforts by the Law Commission. The parties were directed to agree any outstanding procedural matters or submit them for determination by the court.
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