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Civil partnership law incompatible with ECHR, concludes Supreme Court

Heterosexual couple denied civil partnership win appeal

Rebecca Steinfeld and Charles Keidan have won their appeal to the Supreme Court which has found that UK legislation in respect of civil partnerships is not compatible with the European Convention on Human Rights article 14 (regarding the prohibition of discrimination) and Article 8 (regarding the right to respect for private and family.

Under the Civil Partnership Act 2004 (CPA), only two people of the same sex may enter into a civil partnership. The Marriage (Same Sex couples) Act 2013 (MSSCA) made marriage of same-sex couples lawful. The CPA was not repealed when the MSSCA was enacted. Consequently, same-sex couples wishing to formalise their relationship have a choice as to whether to enter into a civil partnership or to marry. This choice is not available to different-sex couples. The appellants are a different-sex couple in a committed long-term relationship, which they wish to formalise. The Court has accepted that they have genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They wish instead to enter into a civil partnership, which they consider would reflect their values and give due recognition to the equal nature of their relationship. They sought judicial review of the respondent's continuing decision not to make changes to the CPA to allow different-sex couples to enter into civil partnerships.

The issue before the Supreme Court in R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 was whether the bar on different-sex couples entering into civil partnerships breaches the appellants' rights under article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life) of the European Convention on Human Rights (ECHR). The High Court and Court of Appeal dismissed their claim.

It is now accepted by the respondent that there is an inequality of treatment between same-sex and heterosexual couples, and that this inequality engages article 14 read in conjunction with article 8 of the ECHR. The respondent also accepts that the inequality therefore requires justification from the date it first began (ie. on the coming into force of the MSSCA). The principal issue before the Supreme Court was therefore whether justification of the inequality includes consideration of the period of time during which the respondent could investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination.

The Supreme Court has allowed the appeal. Lord Kerr gave the judgment with which all the other Justices agreed.

Lord Kerr said that when Parliament enacted the MSSCA, it consciously decided not to abolish same-sex civil partnerships or to extend them to different-sex couples, even though it was recognised at the time that this would bring about an inequality of treatment between same-sex partners and those of different sexes, and that this inequality would be based on the sexual orientation of the two groups. It was decided that further investigations were required, and the government concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same-sex marriages had taken root [para 7]. Government consultations since the introduction of the MSSCA have failed to produce a consensus as to how, or if, the legal position relating to civil partnerships should change. The respondent concluded that it was proportionate to obtain more data in order to decide whether there was a need to preserve civil partnerships [9].

The Supreme Court rejects the respondent's argument that European Court of Human Rights (ECtHR) case law requires a wide margin of appreciation in relation to the timing of legislative change to recognize different forms of relationship, and that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur. Although a measure of latitude should be permitted to Parliament, the concept of a "margin of appreciation" as applied by the ECtHR has no application in domestic law – a national court must confront the interference with an ECHR right and decide whether it is justified [27-28]. In as much as there is a margin of discretion analogous to that applied by the ECtHR, in cases of unequal treatment on grounds of sexual orientation, the margin is narrow [32]. It is reasonable that the legislature should be allowed time to reflect on what should be done when dealing with an inequality that it has come to recognise due to evolving societal attitudes. By contrast, to create a situation of inequality and then ask for time – in this case several years – to determine how that inequality is to be cured is less obviously deserving of a margin of discretion. [36]

There is a well established four stage test to determine whether interference with a qualified ECHR right can be justified: (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? [41].

To be legitimate, the aim must be intrinsically linked to the discriminatory treatment. In this case, it is not. Tolerance of discrimination while the respondent determines how best to remedy it cannot be characterised as a legitimate aim [42]. The government had to eliminate the inequality of treatment immediately when the MSSCA came into force. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different-sex couples. If the government had chosen one of these options, it might have been theoretically possible to then conduct research which could have influenced its longer term decision as to what to do with civil partnerships. Taking time to evaluate whether to abolish or extend could never, however, amount to a legitimate aim for the continuance of the discrimination as it is not connected to the justification for discrimination [50].

Even if the interference with the appellants' rights in this case could be regarded as a legitimate aim, a fair balance between their rights and the interests of the community has not been struck. The interests of the community in denying civil partnerships to different-sex couples who do not wish to marry are unspecified, whereas the consequences of this denial for such couples may be far-reaching. A couple may, for example, suffer serious fiscal disadvantage if one of them dies before their relationship is formalised. There is no end point in sight for the present inequality of treatment [52].

The court has discretion as to whether to make a declaration of incompatibility and must decide whether it is appropriate to do so in a particular case. It should be noted that a declaration of incompatibility does not oblige the government or Parliament to do anything, and in this case, the court should not feel reticent about making such a declaration. The court therefore makes a declaration that sections 1 and 3 of the CPA, to the extent that they preclude a different-sex couple from entering into a civil partnership, are incompatible with article 14 taken in conjunction with article 8 of the ECHR [54-62].

Graeme Fraser, a partner at OGR Stock Denton in Finchley and Resolution's national spokesperson on cohabitation, commented:

"It's not surprising that the Supreme Court declared that civil partnerships are incompatible with human rights because it is clear as the law stands that same sex couples have more options than opposite sex couples who can only marry.

"Changing the law to allow opposite sex couples to enter into formal unions that are not marriage enables those couples more choice while affording them financial security similar to marriage.

"While this case focussed on equalising the law for opposite and same sex couples, the more pressing issue for the estimated 3.3 millions cohabiting, is for Parliament to introduce specific family law remedies to protect vulnerable cohabitants.

"The existing law is discriminatory in particular for women who have brought up children within a family relationship for perhaps 20 or even 30 years to be left in poverty because only the financial contribution of their significantly wealthier partner is taken into account.

"It is not right or fair that the children of such relationships fare worse than children of married couples should their parents separate or one of them are left bereaved.

"Introducing such remedies would enable such women to obtain financial redress for them and their children as of right from their wealthier partners without reliance on the State and increasing strain on social security."

Hazel Wright, partner in the Family department at Lincoln's Inn firm Hunters Solicitors and accredited mediator, said:

"The Supreme Court has today pushed English law forward.

"This appeal is based on a claim that UK legislation is not compatible with the European Convention on Human Rights article 14 (regarding the prohibition of discrimination) and Article 8 (regarding the right to respect for private and family life).

"If the UK is to abide by this ruling, the law will have to be amended. On occasion, we must remember, it can be slow to act where there is political or other meaningful opposition. The Civil Partnership Act 2004 is for same sex couples, as was the Marriage (Same Sex Couples) Act 2013. The legislation for heterosexual couples is expressly for "a man and a woman" (the Marriage Act 1949).

"As recognised by the President of the UK Supreme Court, Lady Hale, the law could be changed to allow heterosexual couples to have civil partnerships, or arguably, could be changed to stop same sex civil partnerships. The number of civil partnerships being registered is falling fairly steadily, although in 2016 there was a slight rise.

"The previous court, the Court of Appeal, said the current law was not incompatible with those Human Rights, as the Government is reviewing the situation.

"Remarkably, this year the Supreme Court is spending a great deal of time reviewing family law issues in light of various societal changes. Today's decision perhaps implies that there is a mood for reform. In another "test" case, the Supreme Court could also decide to promote the notion of "no fault divorce" in Owens v Owens and allow Mrs Owens to divorce her husband, Mr Owens. In support of Mrs Owens, it is arguably open to the court to decide that previous interpretations of legislation have been wrong on one of two bases: either the legislation does not say what the judges have previously been deciding it says, or that the legislation needs to be updated because society has changed, as has happened with regards to financial settlements on divorce. The wording of the law for both divorce and financial claims is in the same legislation, the Matrimonial Causes Act 2973. This was passed at a time of great movement towards equality of the sexes.

"By adopting the arguments above with regards to the interpretation of divorce law, at last heterosexual couples can rely on the law to give them the same structures for the registration of their relationships. It is unlikely that Parliament would legislate soon for what is such a major change, given its already busy programme. Legislation would be necessary. However, all must recognise that there would be significant opposition for example from the Church."

For the judgment, click here.

27/6/18