Civil partnerships for different-sex couples

R (o.a.o. Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 On appeal from [2017] EWCA Civ 81

Background

Rebecca Steinfeld and Charles Keidan appealed against the decision in Steinfeld & Anor v Secretary of State for Education [2017] EWCA Civ 81, arguing that the bar on civil partnership for opposite sex couples is in breach of Article 14 (discrimination) ECHR together with Article 8 (respect for private and family life): brief summary here. They sought judicial review of the respondent’s continuing decision not to make changes to the CPA to allow different-sex couples to enter into civil partnerships. Today, the Supreme Court allowed the appeal. Lord Kerr gave the judgment with which the other Justices – Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, and Lady Black – all agreed.

Judgment

The court rejected the respondent’s argument that European Court of Human Rights (ECtHR) case law requires a wide margin of appreciation in relation to the timing of legislative change to recognise different forms of relationship; and that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur.

Although a measure of latitude should be permitted to Parliament, the concept of a “margin of appreciation” as applied by the ECtHR has no application in domestic law – a national court must confront the interference with an ECHR right and decide whether it is justified [27-28]. In as much as there is a margin of discretion analogous to that applied by the ECtHR, in cases of unequal treatment on grounds of sexual orientation, the margin is narrow [32].

The full judgment is available here and the Supreme Court’s Press Summary “to assist in understanding [its] decision” is here. A more detailed analysis will be given in a later post.

Cite this article as: David Pocklington, "Civil partnerships for different-sex couples" in Law & Religion UK, 27 June 2018, https://lawandreligionuk.com/2018/06/27/civil-partnerships-for-different-sex-couples/

7 thoughts on “Civil partnerships for different-sex couples

  1. Theresa May has just given an answer at PMQs to a question from Tim Loughton (the MP promoting a private member’s bill to change the law: see para 8 of the Supreme Court judgment) that suggests the Government thinks it can get away with further procrastination, despite the clear terms of the judgment. At para 50, Lord Kerr said: “I should make it unequivocally clear that the government had to eliminate the inequality of treatment immediately.” That couldn’t be clearer, and Mrs May ought to read the full SC judgment when she gets back to No. 10.

    • For the benefit of other readers, the exchange during yesterday’s PMQs was [HC Hansard 27 June 2018 Vol 643 Col 896]

      Tim Loughton (East Worthing and Shoreham) (Con)

      This morning the Supreme Court ruled that the Government had created inequality in not extending civil partnerships to everyone when they passed the equal marriage legislation back in 2013, and that discrimination needs to be addressed urgently. Will the Prime Minister now support an amendment to my Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill when it goes into Committee next month, as the quickest way to resolve this illegal inequality and extend civil partnerships to everyone?

      The Prime Minister

      We are very well aware of our legal obligations, and we will obviously need to consider the judgment of the Supreme Court with great care. We also recognise the sensitive and personal issues that are involved in this case, and we acknowledge the genuine convictions of the couple involved. My hon. Friend refers to his private Member’s Bill. As he will know, we have committed to undertake a full review of the operation of civil partnerships. I know that there has been a lot of discussion with him about his Bill. We are supporting his private Member’s Bill, which would enshrine that commitment in law.

      Lord Kerr commented on the continuing nature of the discrimination,, [emphasis in original],

      50. 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 one of these options, it might have been theoretically possible to then 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 to the justification for discrimination and, plainly, time for evaluation does not sound on that. It cannot be a legitimate aim for continuing to discriminate.

  2. Pingback: (NPR) U.K. Supreme Court Rules It’s Unfair To Offer Civil Unions Only To Same-Sex Couples | TitusOneNine

  3. Apparently the Catholic Bishop of Northampton Bishop Peter Doyle has expressed concern over the Supreme Court decision to allow mixed-sex Civil Partnerships. http://www.catholicherald.co.uk/news/2018/06/28/dont-settle-for-less-than-marriage-bishop-urges-after-civil-partnerships-ruling/

    Sadly, the historic Christian understanding of Marriage as movingly expressed by Bishop Doyle no longer reflects the legal concepts of marriage in Britain or Europe. With easy divorce and same-sex relationships it is only the use of the same word which really unites Catholic and Legal ‘Marriage’, whilst ‘Civil Partnership’ more accurately reflects today’s legal reality.

    Rather than opposing the legalisation of Civil Partnerships perhaps the Church should embrace them and get itself out of the legal registration of Marriage altogether especially since at some point there is likely to be a legal challenge to the Church under Equality Legislation.

    A Civil Partnership only requires a visit to a Registry Office and the signing of the Register in front of witnesses with no exchange of vows or declarations being required because it is a legal event, nothing more. Maybe that is how the Church should approach Marriage in future with the couple being required to get a Civil Partnership to protect their legal status whilst going to Church for the real ‘marriage’. The same point could apply to Mosques which are not registering their ‘nikah’ marriages: see https://www.registerourmarriage.org

  4. ‘v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary)’ Does anyone know why International Development was substituted for Home Secretary?
    Seems illogical?

    • I think it was because ministerial responsibility for the Government Equalities Office was transferred to DfID between the decision in the Court of Appeal and the hearing in the Supreme Court.

      • Thank you, Frank. I see the GEO website gives its address as: Ministerial and Public Communications Division, Department for Education, Piccadilly Gate, Store Street, Manchester, M1 2WD
        The logic of governmental divisions.

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