This week the Supreme Court issued a unanimous landmark judgement declaring that the provisions in the Civil Partnership Act 2004 preventing opposite sex couples from entering into a civil partnership is incompatible with the European Convention on Human Rights.
The appellants, Mr Keidan and Ms Steinfeld, are an opposite sex couple who wish to enter into a legally recognised relationship with each other, but who have a conscientious objection to marriage; they wish to be able to enter into a civil partnership with each other. The Civil Partnership Act 2004 doesn’t allow this because it expressly and purposely defines a civil partnership as a relationship between two people of the same sex. As a result, the appellants brought a judicial review of the government’s failure to extend civil partnerships to different sex couples. The crux of the case was that when the government introduced the Marriage (Same Sex Couples) Act in 2013, a discriminatory situation arose: same-sex couples could choose whether to marry or enter into a civil partnership, but opposite sex couples who wanted to enter into a legally recognised relationship could only marry. Crucially, this was not a situation where society’s views had evolved over time such that discrimination arose gradually, the Supreme Court held that in this case the discrimination was ‘a creature of parliament’, specifically that when parliament had enacted the Marriage (Same Sex Couples) Act 2013, they had brought about an inequality where none had previously existed. By the time the case reached the Supreme Court the government did accept that the appellants’ Article 8 rights to Private and Family Life were engaged (which they had not at first instance), and that inequality existed. In the Supreme Court it was accepted that this constituted an interference with the appellants’ rights which required justification. The government, however, sought to justify the continued discrimination on the basis that they wished to wait for a further period of time to evaluate what to do about the inequality having regard to the response to the Marriage (Same Sex Couples) Act and the extent of the subsequent take up of civil partnerships. Lord Kerr giving the unanimous judgement of the Supreme Court soundly rejected the reason given by the government that they wanted to ‘wait and evaluate’ for a further period of time as amounting to a justification for continued inequality; “I should make it unequivocally clear that the government had to eliminate the inequality of treatment immediately. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different sex couples. If the government had chosen either of these options it might have been theoretically possible then to assemble information which could have influenced its longer term decision as to what to do with the institution of civil partnerships. But this does not derogate from the central finding that taking time to evaluate whether to abolish or extend could never amount to a legitimate aim for the continuance of the discrimination. The legitimate aim must be connected for the justification for discrimination and, plainly, time for evaluation does not sound on that. It cannot be a legitimate aim for continuing to discriminate”. The court having reached that conclusion, the government went on to ask the Supreme Court not to make a declaration of incompatibility, it being clear that in some instances where the court finds that legislation is incompatible with the ECHR there is a discretion not to make a declaration. The Supreme Court rejected this plea and considered that it would be wrong not to make the declaration in this case. Although this is a huge victory for Mr Keidan and Ms Steinfeld, it remains to be seen what route the government will take to remedy the inequality. One route would be to abolish civil partnership altogether. The Supreme Court have highlighted that the enquiries in this regard ought to include determining the extent of demand for civil partnerships among those of different genders who have an authentic objection to being married. All of this could take some time, but since a key element of the Supreme Court decision is that the discrimination is continuing and that the government could and should have taken interim measures to remedy it whilst deciding what to do on a long term basis, it seems likely at least that the government will now have to take some interim steps to avoid being in a situation of continuing breach. Marisa Allman
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