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…”. Rebecca Steinfeld and Charles Keidan have sought judicial review of that provision and have been unsuccessful both at first instance and in the Court of Appeal.
The BBC now reports that the Supreme Court has given them permission to appeal against the ruling in Steinfeld & Anor v The Secretary of State for Education  EWCA Civ 81, in which the Court of Appeal agreed by a majority of two to one that the bar on opposite-sex civil partnerships was a potential violation of their human rights under Article 14 ECHR (discrimination) taken with Article 8 (private and family life) but declined to make a declaration of incompatibility.
In the Court of Appeal, 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, the issue of civil partnerships is still the subject of a Government review; and Beatson LJ 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. 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” . The discrimination between same-sex couples and opposite-sex couples was at present 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, took the view that, in light of Oliari & Ors v Italy  ECHR 716, the absence of civil unions for opposite-sex couples fell within the scope of the positive obligation to respect their family life; and
“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 on the Article 8 point .
On 19 July, Tim Loughton (Con, East Worthing and Shoreham) presented the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill: a private Member’s bill
“to provide that opposite sex couples may enter a civil partnership; to make provision about the registration of the names of the mother of each party to a marriage or civil partnership; to make provision about the registration of stillborn deaths; to give coroners the power to investigate stillborn deaths; and for connected purposes.”
What effect – if any – that may have on the attitude of the Supreme Court remains to be seen.
[Full disclosure: I contributed to the appellants’ crowd-funded appeal for help with their legal costs]