Legislation under which same sex couples can marry or enter into a civil partnership, but opposite sex couples wishing to formalise their relationship have no choice but to marry, constitutes an inequality of treatment that infringes the European Convention on Human Rights, the UK Supreme Court ruled today.

The court allowed an appeal by Rebecca Steinfeld and Charles Keidan, who sought a judicial review of the UK Government’s decision not to make changes to the Civil Partnership Act 2004 to allow different sex couples to enter into civil partnerships, following the change in the law of England & Wales to bring in marriage for same sex couples. A similar situation exists in Scotland. The applicants, who were in a long term relationship, had genuine ideological objections to marriage based upon what they considered to be its historically patriarchal nature, and wished instead to enter into a civil partnership, which they considered would reflect their values and give due recognition to the equal nature of their relationship.

The issue was whether the present law breached the appellants’ rights under article 14 (prohibition on discrimination) together with article 8 (right to respect for private life) of the ECHR. The High Court and Court of Appeal dismissed their claim. The respondent Secretary of State accepted before the Supreme Court that there was an inequality of treatment which engaged those articles, which required justification from the date it first began, and the principal issue before the Supreme Court was whether that justification included consideration of the period of time during which the respondent could investigate how best to eliminate the inequality, or whether it had be directed exclusively to the very existence of the discrimination.

Lord Kerr, with whose judgment Lady Hale, Lord Wilson, Lord Reed and Lady Black agreed, noted that when Parliament enacted the same sex marriage legislation, it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though it was recognised at the time that this would bring about an inequality of treatment that would be based on sexual orientation. It was decided that further investigations were required, and the Government concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same sex marriages had taken root. Government consultations since then had failed to produce a consensus as to how, or whether, the legal position relating to civil partnerships should change. The respondent concluded that it was proportionate to obtain more data in order to decide whether there was a need to preserve civil partnerships.

He rejected the respondent’s argument that European Court of Human Rights case law required a wide margin of appreciation in relation to the timing of legislative change, and that a significant measure of discretion should be accorded to Parliament. Although a measure of latitude should be permitted to Parliament, the concept of a “margin of appreciation” as applied by the ECtHR had no application in domestic law – a national court had to confront the interference with an ECHR right and decide whether it was justified. In as much as there was a margin of discretion analogous to that applied by the ECtHR, in cases of unequal treatment on grounds of sexual orientation, the margin was narrow. Whereas it was reasonable that the legislature should be allowed time to reflect on how to address an inequality that it had come to recognise due to evolving societal attitudes, to create a situation of inequality and then ask for time – in this case several years – to determine how that inequality was to be cured was less obviously deserving of a margin of discretion.

There was a well established four stage test to determine whether interference with a qualified ECHR right could be justified: (a) was the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) were the measures which had been designed to meet it rationally connected to it; (c) were they no more than necessary to accomplish it; and (d) did they strike a fair balance between the rights of the individual and the interests of the community? To be legitimate, the aim had to be intrinsically linked to the discriminatory treatment. In this case, it was not. Tolerance of discrimination while the respondent determined how best to remedy it could not be characterised as a legitimate aim.

Even if the interference with the appellants’ rights in this case could be regarded as a legitimate aim, a fair balance between their rights and the interests of the community had not been struck. The interests of the community in denying civil partnerships to different sex couples who did not wish to marry were unspecified, whereas the consequences of this denial for such couples might be far-reaching. A couple might, for example, suffer serious fiscal disadvantage if one of them died before their relationship was formalised.

In the present case the court would exercise its discretion to make a declaration of incompatibility, while pointing out that this did not oblige the Government or Parliament to do anything. It would make a declaration that ss 1 and 3 of the Civil Partnership Act, to the extent that they precluded a different-sex couple from entering into a civil partnership, were incompatible with article 14 taken in conjunction with article 8 of the ECHR.

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