Rebecca Steinfeld and Charles Keidan appealed against the decision of the Court of Appeal in Steinfeld & Anor v Secretary of State for Education [2017] EWCA Civ 81. They sought judicial review of the Government’s continuing refusal to amend the Civil Partnership Act 2004 to allow opposite sex couples to enter into civil partnerships. In the snappily-titled R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32, the five Justices of the Supreme Court unanimously allowed their appeal in a single judgment delivered by Lord Kerr.

Background

The facts are too well-known to our readers to need further rehearsal. Suffice it to say that section 1(1) of the Civil Partnership Act (CPA) 2004 defines a civil partnership as “a relationship between two people of the same sex … (a) which is formed when they register as civil partners of each other – (i) in England or Wales”. With the coming into force of the Marriage (Same Sex Couples) Act 2013, same sex couples have had the choice between marriage or civil partnership – a choice denied to opposite sex couples. Ms Steinfeld and Mr Keidan argued that the bar on opposite sex civil partnership violated Article 14 (discrimination) ECHR together with Article 8 (respect for private and family life) and sought a declaration of incompatibility under section 4 of the Human Rights Act 1998. Before the Court of Appeal  – [2017] EWCA Civ 81 – the argument that the appellants’ case did not come within the ambit of Article 8 was unanimously rejected; however, a majority (Beatson and Briggs LJJ) held that the interference with their Article 8 rights, read together with Article 14 was justified, at least for the time being.

The judgment

For the Government, the respondent Secretary of State cited Schalk and Kopf v Austria – in which the ECtHR had held that, though there was a growing European consensus about the recognition of same sex couples, there was not yet a majority of states providing for such legal recognition and concluded that the matter fell within the margin of appreciation accorded to states parties to the ECHR – and sought to draw an analogy between the Schalk and Kopf case and that of the appellants by suggesting that a significant measure of discretion should be accorded to Parliament in its decision as to the timing of legislative change on civil partnerships [25].

At [26], Lord Kerr rejected that argument, citing Lady Hale in In re G (Adoption: Unmarried Couple) [2009] 1 AC 173 at [118] that “… it is clear that the doctrine of the ‘margin of appreciation’ as applied in Strasbourg has no application in domestic law”. It followed that a national court had to confront the interference with a Convention right and decide whether the justification claimed for it had been made out – and it could not avoid that obligation by reference to a margin of appreciation to be allowed the government or Parliament, though it might decide that a measure of latitude should be permitted in appropriate cases [29].

The situation in Schalk and Kopf was in any event different:

“In that case, the enactment of the Registered Partnership Act was the product of evolving societal acceptance of the need to provide some legal recognition of same sex partnerships. Here the inequality … is the creature of Parliament. In one instance (the [Austrian] Registered Partnership Act in the Schalk and Kopf case), one can understand that the timing by the legislature of a measure to reflect the developing changes in attitude should be considered to fall within the government’s margin of appreciation. In the case of [the Marriage (Same Sex Couples) Act 2013], however, it was Parliament itself that brought about an inequality immediately on the coming into force of the Act, where none had previously existed. The redressing by the legislature of an imbalance which it has come to recognise is one thing; the creation of inequality quite another. To be allowed time to reflect on what should be done when one is considering how to deal with an evolving societal attitude is reasonable and understandable. But to create a situation of inequality and then ask for the indulgence of time – in this case, several years – as to how that inequality is to be cured is, to say the least, less obviously deserving of a margin of discretion” [36: emphasis added].

Nor did the discrimination have a legitimate aim:

“A new form of discrimination was introduced by the coming into force of [the Marriage (Same Sex Couples) Act 2013]. There was, therefore, in the words of Lord Hoffmann [in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29], no reason to conclude that this discrimination ‘was ever justified'” [46].

As to the issue of “less intrusive means”, Lord Kerr was absolutely unequivocal:

“… 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” [50: emphasis in original].

He was equally dismissive of what might be termed the “time for reflection” argument [52 & 53].

The appeal was allowed and the Court made a declaration that sections 1 and 3 of the Civil Partnership Act (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with Article 14 ECHR taken in conjunction with Article 8 [62].

Comment

First, as Lord Kerr pointed out at [60], “a declaration of incompatibility does not oblige the government or Parliament to do anything”. Reports that the judgment means the introduction of opposite sex civil partnership are therefore premature.

Secondly, immediately following the judgment there was this exchange at Prime Minister’s Questions:

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.”

Which looks very much like “wait and see”.

[Full disclosure: I contributed to the crowdfunding appeal for Rebecca Steinfeld’s and Charles Keidan’s legal costs.]