Limiting civil partnerships in UK to same-sex couples does not breach ECHR

R (Steinfeld and Keidan) v Secretary of State for Education [2016] EWHC 128 (Admin) (29 January 2016)

The UK High Court held that the enactment of same-sex marriage legislation in 2013 did not render restrictions on opposite-sex couples entering into civil partnerships incompatible with the European Convention of Human Rights.

Facts

In 2004 the UK enacted the Civil Partnerships Act (the CPA) to allow same-sex couples to register as civil partners. The enactment provided formal recognition for same-sex relationships without having to amend marriage laws.

The UK legislature returned to the issue in 2013, enacting the Marriage (Same Sex Couples) Act (the 2013 Act) which permitted same-sex couples to marry (from March 2014) and, should civil partners so elect, civil partnerships to be converted into marriages (from December 2014). Consequently, same-sex couples could have their relationship formally recognised through either civil partnership or marriage, while opposite-sex couples were limited to formal recognition through marriage.

The 2013 Act obliged the Government to review the CPA, which the Government completed in mid-2014. The Government concluded in the review that no changes would be made to the CPA at that time. Justice Andrews described this as a decision to 'wait and see'.

The Claimants are an opposite-sex couple living in a long-term relationship, with a child and also with ideological objections to the institution of marriage. They wished to enter into a civil partnership but were precluded from doing so by the CPA. Pursuant to the UK Human Rights Act 1998, the Claimants sought a declaration that the CPA was – to the extent it limited the ability to enter into civil partnerships to same-sex couples – incompatible with Article 14 (the prohibition of discrimination) read together with Article 8 (the rights to family life and private life) of the Convention.

Decision

In the UK, a successful anti-discrimination (Article 14) claim requires the Claimant to establish that a personal interest close to the core of a Convention right – in this instance, the right to family life and private life (Article 8) – is infringed by the differential treatment. Justice Andrews followed the UK precedent in assessing the Article 14 claim with a staged analysis of:

• whether there was an infringement falling within the ambit of the relevant right (Article 8); and
• if there was such an infringement, whether it was objectively and legally justified.

Ambit of a Convention right

The Claimants accepted that exclusion of opposite-sex couples from entering into a civil partnership by reason of sexual orientation was lawful when first enacted. However, the Claimants argued that the 2013 Act had rendered the CPA unlawful as the UK had engaged in discrimination by extending marriage rights to same-sex couples without extending the ability to enter into civil partnerships to opposite-sex couples.

In response, the Government argued that the Court was bound by Wilson v Kitzinger [2006] EWHC 2022 (Fam) (Kitzinger). In Kitzinger, the treatment of a same-sex couple's lawful marriage in Canada as a civil partnership in the UK was held to be compatible with Articles 8 and 14, read together. Such treatment was argued by the claimants in Kitzinger to be a devaluation of their relationship relative to relationships of opposite-sex couples and this argument was dismissed by the Court. The Government argued that since recognition only through civil partnership did not impinge upon the rights to family or private life in Kitzinger, the Claimants' argument that recognition only through marriage would impinge upon those rights was weak.

Justice Andrews referred to the core values of the right to family life in Article 8 as '“love, trust, confidence, mutual dependence and unconstrained social intercourse” and held that the provisions of the CPA had neither interfered with these values, nor constrained social intercourse. Her Honour held that it was 'open to [the Claimants] to obtain formal state recognition by getting married' and that the only obstacle to their doing so was 'their conscience'. In relation to the right to private life, her Honour dismissed the allegation of interference by the State as 'even more tenuous'.

Accordingly, her Honour dismissed the claim that the CPA restrictions were an infringement upon Article 8, but proceeded in the alternative to consider arguments as to justification.

Objective and legal justification

The European Court of Human Rights (European Court) affords States a 'margin of appreciation' in applying the Convention's prohibition on discrimination in a flexible way according to local needs and conditions. A difference in treatment within the ambit of a Convention right will not be declared incompatible with the Convention if there is an objective and reasonable justification for the infringement.

The Claimants submitted that the Government's decision to wait-and-see was not objectively justifiable. The failure to specify when it proposed to address the discriminatory exclusion from the institution of civil partnership had no legitimate aim. The Claimants submitted that direct discrimination on the grounds of sexual orientation required the application of strict scrutiny and a narrow margin of appreciation.

In reply, the Government argued that its decision to 'wait-and-see' was within the 'margin of appreciation' and had a legitimate aim. On the basis that there is no consensus between member states in extending civil partnerships to opposite-sex couples; that opposite-sex couples have not historically been subjected to adverse treatment on the grounds of their sexual orientation; and that the Claimants' issue ultimately concerned the timing of reform, the Government argued for a wide margin of appreciation.

Justice Andrews dismissed the Claimants' application for a declaration of incompatibility. Her Honour held that the Government's decision to wait and see served a legitimate aim and the failure to provide a timeline for reform did not negate this aim. Her Honour noted that precedent from the European Court afforded member states 'relatively generous leeway as to the timing of introducing legislative changes in areas of social policy where there is no clear consensus among Member States'. Her Honour's judgment rested on considerations such as the 'light' impact on the Claimants; the difficulty for the Government in assessing the likely impact of the 2013 Act; the lack of a social consensus on the future of the CPA; and the cost and disruption of immediate change without a plan.

Commentary      

Justice Andrews applied recent European Court authority in the second stage of analysis of justification; however, such authorities were distinguished on their facts in considering the first stage of engagement. For the first stage of analysing whether an infringement engages the relevant right, her Honour resorted to the older UK decision of Kitzinger. The application of the narrow interpretation of Kitzinger to when a right is engaged has the potential to render lawful forms of discrimination on grounds of sexual orientation.

The full decision can be found online here: https://www.judiciary.gov.uk/judgments/steinfeld-v-the-secretary-of-state-for-education/

Patrick Easton is a Lawyer at Allens.