The Supreme Court has ruled that legislation stating that only same sex couples can enter into a civil partnership is not compatible with its human rights law obligations.

Background

Civil partnerships were introduced by the Civil Partnership Act 2004 (‘the CPA’) to offer same-sex couples an alternative to marriage. Section 1(1) defined a civil partnership as a ‘relationship between two people of the same sex’. S.3(1) further specifically excluded different sex couples from entering into a civil partnership.

Some years later, the Marriage (Same Sex Couples) Act 2013 (the ‘MSSCA’) was enacted and marriage was extended to same sex couples, no alteration was made to the CPA in response to this change. The effect was that same sex couples could marry or enter Civil partnerships, but different sex couples (i.e. a woman and a man) only had the option to marry.

In R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32, the appellants were a different sex couple in a long term relationship, who also had also children together. They had a strong conscientious objection to marriage on the basis of its historical patriarchal connotations.

The Argument

The appellants argued that s.1 and s.3 of the CPA were incompatible with Article 14 of the European Convention on Human Rights (‘ECHR’), their right to freedom from discrimination, read together with Article 8 of the ECHR, the right to respect for private life. They sought a declaration of incompatibility under s.4 of the Human Rights Act 1998 (the ‘HRA’), a mechanism under which the court may declare that in this case the legislation was not compatible with ECHR rights and therefore press the government to rectify the legislation.

The High Court

The appellants’ judicial review was dismissed by Andrews J in the High Court. She accepted the respondent’s argument that Article 8 was not engaged, as the appellant’s personal interest was not “close to the core of the right to family [and private] life” which Article 8 sought to protect.

Andrews J further stated that even if there was an interference with the appellants’ Article 8 rights, the Government’s argument that a period of consultation and data gathering was need in order to assess the impact of the MSSCA on civil partnerships, and to decide what the future of the institution would be, was a “sufficient objective justification for maintaining the disparity”.

The Court of Appeal

The Court of Appeal disagreed that there had been no interference with the appellant’s rights under Article 8 but the appeal was nevertheless dismissed on the grounds that the interference was justified. The majority of the bench found that the policy considerations of the Government consultation process made the interference proportionate.

Arden LJ, dissenting, found that the interference was not proportionate, but that the interference pursued a legitimate aim, as the Government needed “some time to make its choice”.

The Supreme Court

The Supreme Court focused on the question of whether there was a legitimate aim. The Government no longer sought to claim that Article 8 was not engaged, a decision which was approved by the Court, who clarified that case law, in particular that of Valliniantos v Greece (2013) 59 EHRR 12, made it clear that “no detrimental effect need[ed to] be established” for an interference to be found.

The Supreme Court then rejected the argument that the Government had a wide margin of appreciation with regards to such an interference, as, adopting the approach taken in In re G (Adoption: Unmarried Couple) [2009] 1 AC 173, margin of appreciation had no application in a national court. The court must confront the interference and decide whether it is justified. The Supreme Court noted that governments could only discriminate on the basis of sexual orientation in very limited circumstances.

In addition, the Supreme Court found that, for such discrimination to be justified on the basis that it pursued a legitimate aim, there must be an “intrinsic link” between the discrimination and that aim. In this case, the interference was not intrinsically linked to an aim or policy, but simply was due to the lack of any decision over several years on how to cure the inequality created by the 2013 legislation and the Government’s claim that it needed time to assemble sufficient information to allow a confident decision to be made about the future of civil partnerships. The “intrinsic link” simply was not there and therefore the interference could not be justified because the aim pursued was not legitimate. Further, there was no fair balance between the rights of the appellants and the interests of the community (if any) in denying civil partnerships to different sex couples.

Impact

As part of their judgment, the Supreme Court issued the requested declaration of incompatibility. This is of particular interest as the Government had argued strongly that this sensitive area of policy was for the elected government, not the court to decide on, i.e. that it was outside the court’s “institutional competence” and squarely within that of the democratically elected legislature.

That submission was rejected by the court which held that, as Parliament was planning no imminent change in the law, it was necessary for the court to apply formal pressure in this regard. Tim Loughton MP’s Private Members Bill, the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill, which was advocated by the Prime Minister in PMQs as a solution to the issue on the very day of the judgement, offered no legislative change according to the Supreme Court. They concluded that it did no more than formalise the current consultation.

The Government is not obliged to take action in response to a declaration of incompatibility, although it would be unusual for it not to do so. However, with the Prime Minister’s comments seemingly at odd with the court, it may be that the legislative change will still take time, and the opportunity for different sex couples to enter into civil partnerships is still a while off yet.