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…”. In June 2014 the Coalition Government published the results of its second consultation on the future of civil partnership: Civil Partnership Review (England and Wales) – Report on Conclusions. After considering the responses to that consultation, the Government decided that it would not be making any changes at present.
Rebecca Steinfeld and Charles Keidan were refused permission to register a civil partnership at Chelsea Town Hall registry office and sought a declaration that, as a result of the enactment of the Marriage (Same Sex Couples) Act 2013, the bar in the Civil Partnership Act 2004 on opposite-sex couples registering as civil partners had become incompatible with Article 14 ECHR (discrimination) taken in conjunction with Article 8 (respect for private and family life). Their claim for a declaration of incompatibility was unsuccessful at first instance: see Steinfeld & Anor v The Secretary of State for Education  EWHC 128 (Admin) and Adam Wagner’s very helpful summary on RightsInfo. On appeal, they lost by two to one.
In Steinfeld & Anor v The Secretary of State for Education  EWCA Civ 81, the Court of Appeal agreed that the bar constituted a potential violation of the appellants’ human rights under Article 14 taken with Article 8 but that the Court should not make any declaration of incompatibility with the couple’s human rights. It noted that there was currently a private Member’s bill proposing the removal of the bar, so that question was already before Parliament.
Beatson LJ, with whom Briggs LJ concurred, agreed that
“the 2004 Act falls within the ambit of Article 8 for the purposes of Article 14 and that there is no need for those in the position of the appellants to show an adverse impact beyond the lack of respect caused by preventing different-sex couples from entering into civil partnerships” .
However, he considered that the difference of treatment of same-sex and opposite-sex couples was justified by the Secretary of State’s policy of “wait and evaluate” . Though the focus of the review on the demand by same-sex couples for civil partnerships rather than the position of all couples was open to criticism, it was proportionate, and therefore lawful, for the Secretary of State to have further time to undertake a proper assessment of the best way forward on an important matter of social policy, when a number of options, including the extension of civil partnership to opposite-sex couples – or its phasing out – could be considered. He did, however, feel that it was “clear that the Government will need to make a decision to eliminate the current discriminatory position and to do so within a reasonable timescale” and acknowledged “the appellants’ frustration with the uncertainty surrounding when the Government will make its decision” .
He concluded that the judge at first instance had erred in finding that the civil partnership regime in the 2004 Act did not fall within the ambit of Article 8; however, he agreed that the discrimination between the position of same-sex couples who now had the choice of two legal regimes recognising their relationship and different-sex couples who had only one legal regime was at present justified :
“It is, in my judgment, justified by the Government’s legitimate aim of undertaking a proper assessment of the optimum way forward in the light of the demand by couples (whether same-sex or different-sex) for civil partnerships as well as marriage, and inter alia avoiding unnecessary expenditure of taxpayers’ money as well as wasted time and effort in making a change that might have to be reversed” .
Arden LJ, dissenting, said that
“the appellants establish that their complaint is within the ambit of Article 14 taken with Article 8. Oliari [Oliari & Ors v Italy  ECHR 716] shows that there is a positive obligation to respect the family life which opposite-sex couples share. For them not to have the right to enter civil unions when same-sex couples do have that right in my judgment falls within the scope of that obligation. Discrimination does not cease because an opposite-sex couple can marry and so avoid the need for a civil union. This conclusion is in accordance with domestic case law.
That means that the Secretary of State must justify the discrimination. In my judgment she cannot do this on the evidence in this case.” [17 & 18]
She concluded that she would allow the appeal in part and declared:
“(1) in the answer to Issue 1, that the bar is within the ambit of Article 8 of the Convention of the Convention, and (2) in answer to Issue 2, that the potential violation of the appellants’ rights is not justified by the Secretary of State’s policy of ‘wait and see’ as set out in paragraph 3 of this judgment” .
[Full disclosure: I contributed to the appellants’ crowd-funded appeal for help with their legal costs]