Judge Desmond Marrinan, who is heading up the review, noted that freedom of speech protections had been introduced into England to allow criticism of religion, inspried by Stephen Fry, and “a pretty wide ranging defence for any discussion of gay marriage”.
He noted that because gay marriage has now been introduced into NI, the same protections are also being carried across by the Northern Ireland Office (NIO). He said “they have now introduced regulations in Northern Ireland – which we queried with the Secretary of State – which provides a defence of freedom of expression for criticism of same sex marriage”.
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His review “didn’t query it because it disagreed with it necessarily – I have no view on it at the moment; I am waiting to hear [from] people [in the consultation]”. But he thought “they might have waited until they saw what the review said”.
The Secretary of State told him that freedom of speech concerns on gay marriage had been raised in the Commons, so the government promised to extend GB protections to NI, he said.
The government “went ahead anyway” and amended NI public order legislation to include the legal defence, he said.
“That of course now forms part of the [NI hate crime] review and that particular issue will be looked and is looked at and it might be something that people will be very interested in.
“But certainly it will be something that will be looked at – whether we need specific defences to cover issues like same sex marriage and freedom of criticism of religion or whether we should simply rely on article ten of the European Convention [of Human Rights].”
Although the Rainbow Project and Amnesty International and Peter Tatchell have voiced broad support for GB protections being extended to NI, the judge said that the English Law Commission is now reviewing whether “whether or not their protections for criticism of religion and same sex marriage should be retained in their law or whether or not”.
He added that those who argue against them being retained in England “argue they encourage homophobia”.
And while he has “no particular view at the moment” on this question, because the English Law commission is reviewing the matter “I thought, well we should do the same, we should at least look at whether or not they are worthwhile. Maybe they are.”