When this appeal was decided in 2018, same-sex couples in England and Wales could marry or enter a civil partnership, while different-sex couples could only marry. The issue was whether the government could justify maintaining that difference while it decided the future of civil partnerships.
The Civil Partnership Act 2004 created civil partnership as a legal relationship between two people of the same sex. People who were not of the same sex were not eligible to register. Marriage was not then open to same-sex couples, and the Act was meant to give those couples responsibilities and rights akin to marriage.
The Marriage (Same Sex Couples) Act 2013 made same-sex marriage lawful from 13 March 2014. The 2004 Act was not repealed, so same-sex couples could marry or form a civil partnership. Different-sex couples could obtain the associated rights, responsibilities and benefits only by marrying. The Secretary of State accepted that this was unequal treatment on the ground of sexual orientation. It engaged article 14 of the European Convention on Human Rights — which prohibits discrimination in the enjoyment of Convention rights — read with article 8, the right to respect for private and family life. Justification was required from 13 March 2014.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The couple and the government’s delay
Ms Steinfeld and Mr Keidan were a different-sex couple who wanted the legal recognition of a civil partnership and had a conscientious objection to marriage.
Parliament knew that the 2013 Act would create this inequality, but decided not to abolish same-sex civil partnerships or extend them. Consultations in 2012 and 2014 were treated as inconclusive. They had raised three possibilities: abolition, closure to new couples, or extension to different-sex couples. The government decided not to choose until attitudes were clearer after same-sex marriage had taken root. Private Members’ Bills introduced by Tim Loughton MP failed in 2015 and 2016. A further Bill, given a Second Reading on 2 February 2018, proposed extension. The government did not support that proposal, but agreed an amendment requiring a consulted-upon report on how equality should be achieved and on its plans.
The government proposed further investigation and consultation. It had set no date by which the unequal treatment would end.
The courts below
Andrews J dismissed the judicial review on 29 January 2016. She held that article 8 was not engaged and that, even if it was, there was sufficient justification for maintaining the difference in the short term while the government took stock.
The Court of Appeal unanimously rejected the argument that the claim fell outside article 8. That argument was not renewed in the Supreme Court. Beatson and Briggs LJJ held that the interference was, for the time being, justified. Beatson LJ described the policy as “wait and evaluate”, and treated 13 March 2014 as the relevant starting point. Briggs LJ accepted that a couple might suffer serious fiscal disadvantage if one died before a civil partnership could be formed, and that sexual-orientation discrimination required anxious scrutiny. He nevertheless thought a temporary extension impracticable if abolition might follow, and held that the policy was not disproportionate. Arden LJ disagreed on the result: she considered the interference disproportionate, although she accepted that the state could choose how to remove the discrimination and was entitled to some time to choose.
Why waiting was not a justification
Lord Kerr gave the judgment of the Supreme Court; Lady Hale, Lord Wilson, Lord Reed and Lady Black agreed. It was accepted that civil partnership fell within article 8, that the difference was based on sexual orientation, and that the appellants were in an analogous position to a same-sex couple seeking a civil partnership. The remaining question was justification. The burden lay on the Secretary of State, and what had to be justified was the discriminatory effect, not the scheme as a whole. Particularly convincing and weighty reasons were required.
The Secretary of State said that the government wanted a better sense of civil partnership after same-sex marriage before deciding its future. Change in this area had been incremental. From the coming into force of the 2004 Act in 2005 until 2014, both groups could obtain the legal consequences of commitment, although through differently labelled routes. Time to inquire was said to be a legitimate aim, especially because the inequality would eventually be removed one way or another.
Lord Kerr rejected reliance on the Strasbourg margin of appreciation. That doctrine does not apply in a domestic court, which must decide whether the justification has been made out. Some latitude may be allowed, but where the distinction is based on sexual orientation any margin is narrow. He distinguished Schalk and Kopf v Austria, where timing was considered in an evolving area of legal recognition. Here Parliament itself created an inequality that had not existed before the 2013 Act. Asking for several years to decide how to cure an inequality of its own making was less obviously deserving of discretion. The earlier argument that article 8 was not engaged also showed that the investigations were not a response to a recognised Convention obligation. Lord Kerr said that the decision to wait, despite awareness of the inequality, displayed at best an attitude of some insouciance.
It was not enough that the government wished to maintain the status quo while considering options. Following Vallianatos v Greece, it had to be necessary to exclude different-sex couples in order to secure that time. That necessity had not been shown.
Nor was the stated aim legitimate. The aim has to be directed to the unequal treatment itself. The Secretary of State accepted that the difference could not be justified and sought only tolerance of it while a solution was chosen. Lord Kerr held that this was not a legitimate aim. The Court of Appeal had relied on Walden v Liechtenstein, where a discriminatory rule was preserved for a little over six months. Lord Kerr preferred Lord Hoffmann’s view in Hooper: time for consultation may matter where discrimination was once justified and has gradually ceased to be. This was the reverse. The 2013 Act introduced a new discrimination, and there was no reason to treat it as ever justified.
Lord Kerr accepted that delay could be rationally connected to further inquiry if the aim itself were legitimate. It was unnecessary to reach a final view on whether less intrusive means were available.
Even if there had been a legitimate aim, he would have held that a fair balance had not been struck. No end to the discrimination was in sight. The community interest in denying civil partnership to different-sex couples with a genuine objection to marriage was unspecified, while the denial could have far-reaching consequences, including the fiscal disadvantage identified by Briggs LJ. Research into the views of existing civil partners was at best of dubious relevance.
Whether to make a declaration
Section 4(2) of the Human Rights Act 1998 allows, but does not require, a declaration that primary legislation is incompatible with a Convention right. The Court was asked to refrain because the future of civil partnership was sensitive social policy for Parliament. Lord Kerr held that Nicklinson did not require that restraint. There, most of the justices who regarded the issue as suitable for the Court still thought a declaration premature while Parliament was about to debate an Assisted Dying Bill. Here, the agreed amendment only formalised a consultation to which the government was already committed. It did not show an imminent change, and even an imminent change would not necessarily bar a declaration. A declaration records the court’s conclusion. It does not oblige the government or Parliament to legislate, and Parliament may decide to do nothing.
Verdict: The Court unanimously allowed the appeal. It declared sections 1 and 3 of the Civil Partnership Act 2004 incompatible with article 14, read with article 8, insofar as they precluded a different-sex couple from forming a civil partnership. The declaration left the legislative response to Parliament.
Source: R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32
