S 1(1) Civil Partnership Act 2004 stipulates that only a same-sex couple may conclude a civil partnership:

“A civil partnership is a relationship between two people of the same sex…”.

At the end of its recent consultation, in Civil Partnership Review (England and Wales) – Report on Conclusions the Government announced that it did not propose to introduce opposite-sex civil partnerships because it had concluded that there was no demand for them. Of the 10,000+ on-line answers to the consultation:

• fewer than a third of respondents supported abolition of civil partnership;
• the majority were against closing civil partnership to new couples; but
• over three-quarters were against opening up civil partnership to opposite-sex couples.

Subsequently, Tim Loughton, former Conservative children’s minister, decided to take the matter forward and introduced a Civil Partnership Act 2004 (Amendment) Bill into the Commons. It has one effective Clause:

“1 Amendment of the Civil Partnership Act 2004

(1) Part 1 of the Civil Partnership Act 2004 is amended as follows.

(2) In Section 1, subsection (1), leave out ‘of the same sex’.”

The Bill was fifth on the Order Paper for Friday 5 December; but the on-line Hansard suggests that it was not moved and made no progress. So his prospects of securing a debate, still less of getting the Bill on to the statute book, are not very great.

Earlier this week, however, The Guardian reported a further development. A couple expecting their first child, Rebecca Steinfeld and Charles Keidan, wish to conclude a civil partnership. They tried to have a civil partnership ceremony in October but, said Ms Steinfeld, when they arrived at Chelsea Town Hall registry office,

“The registrar was very sympathetic but confirmed we were of the opposite sex and said consequently she could not provide a civil partnership” .

They are now seeking judicial review of the decision(s) of the London Borough of Kensington and Chelsea and the Secretary of State for Culture, Media and Sport, Sajid Javid, on the grounds that the refusal to allow them to conclude a civil partnership is unfair and discriminatory. Says Ms Steinfeld,

“The perception may be that opening up civil partnerships is a threat to marriage but in the Netherlands both institutions [co-exist], A survey in 2009 showed that nearly 90% of couples were choosing marriage. We hope that civil partnerships will draw their support from long-term cohabiting couples.”

Which is an interesting prospect but a complicated one.

Vallianatos & Ors v Greece [2013] ECHR (GC) 1110

In Vallianatos the applicants were a group of same-sex couples who alleged that the fact that the “civil unions” introduced by Law no. 3719/2008 were designed only for opposite-sex couples had infringed their right to respect for their private and family life, contrary to Article 8 ECHR, and amounted to unjustified discrimination between different-sex and same-sex couples to the detriment of the latter, contrary to Article 14. This was a first-instance hearing by the Grand Chamber; and by sixteen votes to one (Pinto de Albuquerque J dissenting in part) the GC found in favour of the applicants.

I suggested at the time that, had the applicants in Vallianatos been an opposite-sex couple, the result might have been no different and that the GC would probably have ruled against excluding opposite-sex couples from civil partnerships. But the subsequent failure of the application in Ferguson & Ors would appear to prove me wrong.

Ferguson & Ors v United Kingdom (Application No. 8254/11) 

In Ferguson, four heterosexual couples unsuccessfully attempted to give notice of their intention to register a civil partnership rather than enter into a marriage and four homosexual couples unsuccessfully attempted to give notice of their intention to marry; and in 2011 all sixteen lodged an application with the ECtHR. They argued that the combination of the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 segregated couples in England and Wales into two separate legal institutions with different names but virtually identical rights and obligations – and that this traversed Article 14 ECHR (discrimination) combined with Article 12 (right to marry), and Article 8 (respect for family life) or. alternatively, Articles 12 and 8 taken alone. They cited the Grand Chamber’s avowal in Burden & Burden v United Kingdom 13378/05 [2008] ECHR 357 that failure to seek a declaration of incompatibility under the Human Rights Act 1998 was not failure to exhaust domestic remedies:

“40. The Grand Chamber recalls that the Human Rights Act places no legal obligation on the executive or the legislature to amend the law following a declaration of incompatibility and that, primarily for this reason, the Court has held on a number of previous occasions that such a declaration cannot be regarded as an effective remedy within the meaning of Article 35 § 1 ..”.

Nevertheless, in the Report on Conclusions DCMS disclosed that

“We have … learned that the application to the European Court of Human Rights challenging the availability of civil partnership only to same sex couples was declared inadmissible on 12 December 2013” [3.1].

That is the only reference to the decision on inadmissibility that I can cite: it is untraceable on HUDOC – and we do not know on what grounds the decision was arrived at.

The judicial review application

Judicial review is a rather different matter from an application to Strasbourg on grounds of breach of Convention rights; and it will be interesting to see what grounds are argued in the Steinfeld/Keidan application.

The arguments in logic and equality of treatment for opposite-sex civil partnership are (for me, at least) irrefutable. There may not be very many couples like Ms Steinfeld and Mr Keidan and the “Ferguson Eight” who wish to register a civil partnership rather than a marriage; but it is difficult to see why they should be denied that choice. Christian Concern and the Christian Legal Centre contend that

“[t]he introduction of heterosexual civil partnerships will inevitably discourage some opposite sex couples from marrying, and result in greater instability within families, by offering a parallel institution that provides all the legal rights and privileges of marriage without the need for lifelong commitment” [Civil Partnership Review (England and Wales) – Report on Conclusions 2.13].

But that argument seems flawed. If a civil partnership “provides all the legal rights and privileges of marriage”, in what meaningful way is it different from marriage in law? And if civil partnerships end in dissolution, marriages also end in dissolution.

If what they are saying is that people enter into civil partnerships in a different frame of mind from those who marry, where is the evidence for that assertion? By the end of 2012, 3.2 per cent of male and 6.1 per cent of female civil partnerships in England and Wales had ended in dissolution [ONS Trends in civil partnerships]. In contrast, the ONS estimates [December 2012] that 42 per cent of marriages in England and Wales end in divorce. It should be said that this is not a like-for-like comparison because civil partnership has only been available for ten years; but, even so, the statistics hardly uphold marriage as “lifelong commitment”.

But to return to the law, s 1(1) Civil Partnership Act 2004 is quite unequivocal; and it is difficult to see how the registrar at Chelsea Town Hall could have done differently. Equally, it is difficult to see what decision of the Secretary of State falls to be reviewed, since the current bar is in an Act of Parliament rather than a ministerial decision. If what the couple is asking the court to review is the ministerial decision not to bring forward an amendment to the 2004 Act to extend civil partnerships to opposite-sex partners, it will (presumably) be argued in response that there has been a properly-conducted consultation and the result is a matter for ministers’ political judgment. (And the first element in that judgment is, presumably, “Will Parliament be willing to pass the necessary legislation?”.)

Equally, statute law has to conform with EU law [for which see R v Secretary of State for Transport, ex p. Factortame Ltd (No. 2) [1990] UKHL 13] because EU law takes automatic precedence – but that is not so in the case of the ECHR. And even if it were so, the inadmissibility declaration in Ferguson & Ors would appear to give the English and Welsh courts a considerable margin of appreciation in interpreting the domestic law against the Convention. On the other hand, as Adam Wagner pointed out on Twitter, we don’t know why the ECtHR declared the application in Ferguson inadmissible in the first place.

So, in conclusion, my suspicion is that the prospects for a JR application are very uncertain. But I’m by no means an expert on JR and there may be an obvious point I’ve missed. Comments/corrections below, please.