Rules for secular marriage? The Irish Civil Registration Service is making it up as they go along

In Ireland, to solemnise marriages under the Civil Registration Act, secular bodies must be ethical and humanist and cannot promote a political cause. On the other hand if you are a religious body that wants to solemnise marriages, you are not required to be ethical and you can promote a political cause. This is direct religious discrimination.

It seems that this Labour/Fine Gael government is not prepared to explain in writing the reasons for putting in place this piece of religious prejudice and discrimination. This is not an acceptable approach to protecting equally the human rights of all of our citizens in a supposedly democratic republic.

This article explains the detail of this religious discrimination and our efforts over the last year to obtain the information we need to combat it. It includes a summary of our correspondence with the Civil registration office and the Information Commissioner.

We will continue in our efforts to fight this prejudice and discrimination using all of the options and resources at our disposal.

What is a secular body under the Act?

A body can only be a secular body for the purposes of the Civil Registration Act if its principal objects are secular, ethical and humanist. This means that the discriminatory criteria about being ethical in the Civil Registration Amendment Act are specifically targeted at a body whose principal objects are secular and humanist.

There are also other criteria that secular humanist bodies are required to fulfill that are not required of religious bodies. The most significant of these is that a secular body that solemnises marriages cannot promote a political cause, while a religious body that solemnises marriages can promote a political cause.

For a background to this, and to our efforts to challenge this religious prejudice and discrimination see here.

Promoting the political cause of secularism

What is the difference between a religious body and a secular humanist body that would require this Labour/Fine Gael government to legally require a secular humanist body to be ethical and not promote a political cause?

This Labour/Fine Gael government obviously believes that marriage must be protected from secular atheism, whether or not it is political and from political secular humanism. Because of this, it believes that it must put in place legislation to ensure that secular bodies are ethical and humanist and non-political if they wish to legally solemnise marriages.

The Humanist Association of Ireland has certified in writing that it does not promote a political cause. Secularism, in the form of promoting separation of church and state, is unambiguously a political cause. It is also regarded as a philosophical conviction under the European Convention and protected by Article 9 the right to freedom of conscience.

Atheist Ireland is the only primarily secular national body in Ireland that actively promotes the political cause of separation of Church and State, and consequently also promotes a secular education system.

This is very significant as the UN Human Rights Committee has raised concern regarding the human rights of secular parents and their children in the Irish education system. They raised concern regarding such rights as freedom from discrimination, freedom of conscience, the rights of the child and the right to equality before the law.

What criteria does the Civil Registration Service use?

For the last year, Atheist Ireland has been trying to find out exactly what standards are being used to decide if a body fulfils the requirements of the Civil Registration Act. We decided to seek the rules, guidelines and criteria that the Civil Registration Service will use to ensure that a secular humanist body will comply with these standards. We have a right to this information both within and outside the FOI Act but despite this to date we have not got access to this information.

It is worth noting here that applications for inclusion on the Register of Solemnisers must certify that they comply with all the requirements. Applications should be accompanied by documentary evidence to confirm that the body conforms to the definition of a secular humanist body under the Act. If documentary evidence is required, one would think that there must be some rules, criteria or guidelines available if the Civil Registration Services are to decide if the documentary evidence is sufficient to confirm that the body conforms to the definition of a secular body.

The Civil Registration Service has informed us that, “it is not uncommon for designated officials to make decision based directly on primary legislation”, that the “decisions are made with reference to the primary legislation, with recourse to qualified legal interpretation and advice where necessary and also with reference to the principles of natural justice”. They have also stated that, “The decisions must be in keeping with the applicable provision and to imply that the absence of supporting material allows for decision to be “(made) up as they go along” is inaccurate”.

It is difficult to understand why the Civil Registration Service requires documentary evidence if they have no rules, guidelines and criteria in place. It is of course extremely difficult for secular bodies to ascertain what documentary evidence would suffice if they do not know exactly what documentary evidence is required. It is also difficult for applicants to understand and appeal any refusal as there are no rules, guidelines, or criteria in place so that they can understand the reasons for that refusal.

Our most recent letter to the Civil Registration Service

This is the culmination so far of our correspondence with the Civil Registration Service and the Information Commissioner about this issue over the past year. On the 29th of October 2013, Atheist Ireland wrote the following letter to the Civil Registration Service outlining our reasons for seeking this information.

“Thank you for your letter dated 23rd September. We would like to point out that we are not looking for private information regarding individual applications by third parties. We are seeking the rules, procedures, practices, guidelines and interpretation in relation to the application of the Civil Registration Act, which must exist in order for the Act to be applied to any application.

It is not in dispute that the Civil Registration Act discriminates between religious and secular bodies, and between different secular bodies, given the differences in treatment in the Act. What is in dispute is whether this overt discrimination has a legitimate aim and is proportionate.

We acknowledge your comment that it is not uncommon for designated officials to make decisions based directly on primary legislation. In this instance we believe that it is undemocratic for designated officials to make decisions based directly on primary legislation, as the Civil Registration Act explicitly discriminates between religious and secular bodies, and between different secular bodies, and we have the right to know the basis upon which we are being discriminated against in order to be able to decide in an informed way how to respond to that discrimination.

We can only assume that the State believes that it was pursuing a legitimate aim when it decided to directly discriminate on ethical, political and other grounds between religious and secular bodies and between secular bodies. We are hoping that the State took its constitutional and Human Rights obligations seriously when enacting this piece of legislation and that this discrimination is not based on religious prejudice. To date the State has not demonstrated that the discrimination is necessary and proportionate and that it has a legitimate aim.

Article 40.1 of the Irish Constitution states that: “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function. “

In essence the State is claiming that the explicit discrimination in the Civil Registration Act is legitimate under the Constitution given the differences in capacity, moral and social function between religious and secular bodies and between secular bodies.

Ireland has ratified the UN Covenant on Civil and Political Rights. Article 2, paragraph 1, of the International Covenant on Civil and Political Rights obliges each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognised in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 not only entitles all persons to equality before the law as well as equal protection of the law but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground, (General Comment ICCPR No. 18).

Any restrictions to the right to equality and non-discrimination must be permissible under the relevant provision of the Covenant. Where restrictions are made, the state must demonstrate their necessity and only take measures that are proportionate to the pursuance of legitimate aims. Restrictions cannot be applied or invoked in a manner that would impair the essence of a Covenant right (General Comment ICCPR No. 31).

Given the Constitutional and Human Rights obligations of the State, we believe that we have a right to the information requested. Simply informing us that it is not uncommon for designated officials to make decisions based directly on primary legislation is unacceptable in a democracy. Claiming that decisions are based on natural justice, while at the same time not giving us access to the rules, procedures, practices, guidelines and interpretation, that would demonstrate the necessity and proportionality of the supposedly legitimate legislation, is undemocratic and is actually contrary to natural justice. Every citizen has a right to information to assess whether the arguments advanced by the State, for justifying the difference of treatment in the legislation between us and other citizens, are relevant and sufficient. We have a right to assess whether there exists a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

You have stated that the absence of supporting material does not mean that the Civil Registration Service is making up the rules as they go along. Given the overtly discriminatory nature of the Civil Registration Act and the Constitutional and human rights obligations of the state, the absence of supporting material does mean that decisions are made up as you go along. I’m sure you will appreciate that given the Constitutional and Human Rights obligations of the State we have a right to the information requested. If it is not available then we have no option but to conclude that the discrimination in the Civil Registration Act is based on religious and related prejudice which breaches our Constitutional and Human Rights, and to act on the basis of that conclusion.

We therefore again request that you furnish us with the information that we have repeatedly requested, as the reasons that we have been given for denying us the information are undemocratic and certainly not based on natural justice.”

Summary

The Civil Registration Service replied to that letter stating that they had nothing further to add to previous correspondence on the matter. We include below a full list of the correspondence with the Civil registration Service and the Information Commissioner over the past year on this issue.

We are not altogether surprised that the Civil Registration Service is making it up as they go along, because the reasons given in the Dail for this direct religious discrimination simply don’t make any sense. Spelling out this religious discrimination in rules, guidelines and criteria would be quite difficult as it would outline in detail the religious prejudice and discrimination that this piece of legislation is based on, and it would show clearly that this government discriminates against political secular humanists, and against other secular and/or atheist bodies that may or may not be political.

It seems that this Labour/Fine Gael government is not prepared to explain in writing the reasons for putting in place this piece of religious prejudice and discrimination. This is not an acceptable approach to protecting equally the human rights of all of our citizens in a supposedly democratic republic.

Below please find a list of our correspondence so far to various bodies to try and get the information that we have a right to. We will continue in our efforts to fight this prejudice and discrimination using all the various resources at our disposal.

Appendix

Here is a summary of our correspondence with the Civil Registration Service and Information Commissioner over the past year.

  1. 14th January 2013 To Civil Registration Service / Requesting information on implementation of the Act.
  2. 15th January 2013 To Civil Registration Service / Requesting information on implementation of the Act.
  3. 16th January 2013 To Civil Registration Service / Requesting information on implementation of the Act.
  4. 19th February 2013 To Civil Registration Service / FOI Request under Section 7 of the FOI Act.
  5. 25th February 2013 From Civil Registration Service / Acknowledgement of FOI Request
  6. 21st March 2013 From Civil Registration Service /Response to the FOI Request under Section 7
  7. 27th March 2013 To Civil Registration Service / Requesting an Appeal
  8. 3rd April 2013 From Civil Registration Service/ Acknowledgment of Request for an Appeal and request for reasons for Appeal.
  9. 8th April 2013 To Civil Registration Service / Response re grounds for appeal.
  10. 26th April 2013 From Civil Registration Service/ Refusal to release documents under Section 16 of the FOI Act as it would cause substantial and unreasonable interference to a public body (Section 10.1(c) of the FOI Act.
  11. 29th April 2013 From Civil Registration Service / Refusal of Appeal under Section 7 as the Head of the GRO had dealt with the initial request.
  12. 1st May 2013 To Civil Registration Service / Responding to a query.
  13. 9th May 2013 To Information Commissioner / Requesting a Review.
  14. 10th May 2013 From Civil Registration Service / Response under Section 16 Acknowledging Request for an Appeal.
  15. 15th May 2013 To Civil Registration Service / Request for an Appeal under Section 16
  16. 30th May 2013 From Office of the Information Commissioner / Acceptance of Appeal under Section 7 of the FOI Act.
  17. 8th April 2013 To Civil Registration Service / Request under Section 16 FOI.
  18. 4th June 2013 From Civil Registration Service / Response to Appeal – Uphold original decision.
  19. 7th June 2013 To Information Commissioner / Request Review by Information Commissioners under Section 16 of the FOI Act.
  20. 18th June 2013 To Information Commissioner / Submission regarding our Appeal under Section 7 of the FOI Act.
  21. 18th June 2013 From Information Commissioner / Acceptance of Appeal under Section 16.
  22. 24th June 2013 From Civil Registration Service / Outlining reasons for refusing request under Section 7 of the FOI Act.
  23. 2nd July 2013 From Civil Registration Service / Confirming the it is the policy of that Office under Section 26 (1) of the FOI Act not to publish information in relation to decisions made by the office.
  24. 8th July 2013. From Civil Registration Service / Confirming that the Depot of Social Protection being the Dept that the General Register Office is assigned. The Section 16 Manual in the Dept of Social Protections is The Manual on which of CRS relies.
  25. 12th July 2013 To Information Commissioner / Withdrawing appeals as we would not get anywhere with them.
  26. 16th July 2013 From Civil Registration Service / Acknowledging receipt of FOI Request under Section 7
  27. 16th July 2013 From Information Commissioner acknowledging withdrawal of application.
  28. 19th July 2013 From Civil Registration Service / Releasing information requested Under Section 7
  29. 29th July 2013 From Civil Registration Service / Seeking clarification of the Information we require as the FOI Section in the Dept of Social Protection has been on to them.
  30. 14th August 2013 To Civil Registration Service / Outlining the reasons again why we are seeking the information.
  31. 20th August 2013 From Civil Registration Service / outlining that they do not have any Rules, procedures, practices and guidelines pertaining to Section 45 and 55 of the Civil Registration Act 2004 as amended.
  32. 9th September 2013 To Civil Registration Service / Seeking information again.
  33. 23rd September 2013 From Civil Registration Service/Stating that they are not making it up as they go along.
  34. 29th October 2013 To Civil Registration Service/ Stating our reasons for seeking information and outlining our Constitutional and Human Rights.
  35. 15th November 2013 From Civil Registration Service/ Stating that they had nothing further to add to previous correspondence on the matter.
Atheist Ireland
Atheist Ireland
Promote Secularism in Ireland
Join Atheist Ireland
Become a member today for as little as €10* per annum
*unwaged price / waged price €25 p.a.