Heterosexual Civil Partnership Refusal Not A Human Rights Breach

Photo: BBC News

Photo credit: BBC News

Steinfeld & Anor v The Secretary of State for Education [2016] EWHC 128 (Admin) – Read judgment

The High Court has ruled in the case of Steinfeld and Keidan v Secretary of State for Education, a human rights challenge to the law of Civil Partnerships. Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

The case arises from the odd state the law was left in after same-sex couples were given the legal right to marry in 2014. Since 2005, same-sex couples had been allowed to form “Civil Partnerships”  which give them essentially the same legal rights and protections as marriage without being able to actually marry. Only same-sex couples can have a civil partnership. Civil Partnerships were a kind of half-way house; the message they sent was that the (New Labour) government wanted to give same-sex couples legal protection akin to marriage but didn’t feel that society was quite ready for full marriage equality.

Once same-sex couples were given the right to marry in 2014, the law was left in a bit of a mess. Same-sex couples have dual means of recognising their partnerships (Civil Partnerships and Marriage) whereas opposite-sex couples could only marry. This is clearly an unintended consequence of the winding route to marriage equality rather than any well-thought out plan.

In 2014, it would have been open to the government to abolish civil partnerships altogether or permit everyone to enter into them. Instead, a “wait and see” approach was adopted.

Rebecca Steinfeld and Charles Keiden (full disclosure: they are friends of mine) wanted to enter into a civil partnership but were prevented because they were not of the same sex. They brought a human rights case against the government saying they were being discriminated against by the current law.

Mrs Justice Andrews rejected their case in strong terms. You can read the full judgment here. I recommend doing so – it is tightly argued and very clear.

In cases involving the right to family and private life, there are two basic stages a judge needs to consider. First, is there an interference with the right – in other words, does the thing that is being complained about interfere with family or private life as it is defined in the European Convention and court judgments. Let’s call that Gate 1. If you get through Gate 1, you then have to get through Gate 2, which is to show that the interference was not justified with reference to proportionality (did the end justify the means?) and other balancing factors which are the text of the right itself.

The claimants here didn’t get through the first gate. Mrs Justice Andrews accepted the government’s argument that Article 8 of the European Convention on Human Rights (the right to family and private life) was not even engaged, let alone breached. Here’s a key bit of the judgment explaining why:

  1. The only obstacle to the Claimants obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience. That was the case both before and after the enactment of the 2013 Act. Whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them. The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same- sex couples, does not amount to unlawful state interference with the Claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 [Same-Sex Marriage] Act. There is no lack of respect afforded to any specific aspect of the Claimants’ private or family life on account of their orientation as a heterosexual couple. Thus the statutory restrictions complained of do not impinge upon the core values under either limb of Art 8 to the degree necessary to entitle the Claimants to rely upon Art 14. The link between the measures complained of, and their right to enjoy their family and private life, is a tenuous one.

See the powerful argument on UK Human Rights Blog (written before the judgment) about why this might be problematic.

As judges usually do, Mrs Justice Andrews went on to consider “Gate 2″ anyway, in case she was wrong about Gate 1. She accepted the government’s argument that their approach to the issue (“wait and see”) had been perfectly reasonable.

Where next? Potentially an appeal. The BBC reports the couple were given permission to appeal which means they can appeal to the Court of Appeal if they choose to do so. If they do appeal, they will have to convince the Court of Appeal that there has been an interference with the right to family life (Gate 1 – certainly arguable) but also that the interference was not justified. Gate 2 will be harder.

As things stand, the law is in a mess. Even if it is not a breach of human rights to refuse opposite sex couples the right to have civil partnerships, that doesn’t mean it is fair or right.

Continue reading

Event: The Future of Human Rights Protection in the UK – Tuesday 24 November 2015

eustrainedI am co-organising an event to mark the launch of a fascinating new book, The UK and European Human Rights: A Strained Relationship? Edited by KS Ziegler, E Wicks and L Hodson. It will feature a talk by Dominic Grieve QC MP, the former Attorney General, on “The Future of Human Rights Protection in the UK: What Do We Know About the Government’s Proposals”.
 
The launch is brought to you by the University of Leicester, in conjunction with RightsInfo, and kindly hosted by Reed smith.
Date: Tuesday 24 November
Time: 4.30-7pm
Venue: Reed Smith, Broadgate Tower, 20 Primrose St, London EC2A 2RS.
Please register with Teresa.Rowe@leicester.ac.uk if you would like to attend.
The event will begin at 4:30pm, followed by a drinks reception. Doors will open at 4:15pm. The venue is on the 33th floor of Broadgate Tower, and security passes will need to be issued, so please allow around 10 minutes of time upon arrival.

The European Convention on Human Rights in 16 beautiful infographics

rightsinfo-bundle01-lrgI’m very excited to tell you about RightsInfo’s new project, #YourHumanRights. We have produced 16 beautiful infographics each representing a key right in the European Convention. They don’t just show the text, but also explain in plain-English where the rights come come from, what they mean and why they matter

Click here to see Your Human Rights

Wait! There’s more…

Everyone is welcome to download and print these infographics for free by clicking the “download” link.

But if you or your organisation want a professional-quality print, for the first time on RightsInfo, you can order prints from our partner Magnolia Box. Each article is available as an individual poster for either £9 or £12 depending on size – buying the set saves you at least £40. We even have framed versions, and postcards, perfect timing with the holiday season just around the corner!

RightsInfo is part of Global Dialogue, a charity, so we are not out to make a profit. But we have been asked so many times for professional quality printing options, we decided to open this up for these infographics.

Please share these infographics to get the word out about why human rights matter.

The UK Human Rights Blog turned five, and we’re celebrating!

No particular reason

No particular reason….

We’re about to have a fifth birthday party for the UK Human Rights Blog (a bit late – we turned five at the end of March…) so it seems like as good as time as any to reflect on what we have achieved. 

First, some numbers.

  • Five years and seven months
  • 2,245 posts
  • 4.7 million hits
  • 6,258 comments
  • 13,273 subscribers (just email – loads more on Facebook and Twitter)

Not bad, eh? I started this blog towards the end of my pupillage (year of training) at 1 Crown Office Row in 2009. Thanks to the incredibly hard work and dedication of our dedicated band of authors and editors, the UKHRB has become a key source of human rights information in the UK and also across the world. Particular thanks to Angus McCullough QC, Rosalind English, David Hart QC and Martin Downs who have been total champions.

After five years on the job, you will probably noticed that I have drawn back my involvement to concentrate on my new project, RightsInfo, which fills in some gaps which the blog couldn’t have, without changing its basic nature. Into the breach has stepped another 1COR hero, Jim Duffy, who has brought a fresh approach and a lot of fantastic new authors. We are very grateful to him.

Anyway, keep reading and thanks for all of your support, comments and bizarre emails. See you at our 10 year party.

We are five! And we’re having a party to celebrate

ann-marie-calilhanna-mardigras-party-2012_1514-bannerThe UK Human Rights Blog recently turned five years old, and it would only be right if we celebrated with you, our loyal readers. So, we’re having a party on Thursday 29 October 2015. The full details are below. There will be drinks and some great music.

It’s a free event, but places are very limited so if you want to reserve a place, please email Lisa Pavlovsky (lisa.pavlovsky@1cor.com) with the subject heading “UKHRB Birthday Party”. The body text should only include your name, position (e.g. “solicitor” or “student”) and organisation, if you are attached to one.

Full details:

UK Human Rights Blog Birthday Party

Thursday, 29 October 2015

 7pm – 10:30pm

 4th Floor Studios,

255-259 Commercial Road,

London E1 2BT

We really hope to see you there and thanks again for your support over the years.

Donate a billable hour for refugees. Go on.

COfH99nUsAA09q0Have you seen 11KBW’s Sean Jones’ brilliant (and extremely successful) “Billable Hour” appeal?

He has already exceeded his target by about a million percent but the target was pretty modest so please consider donating. The idea is that you donate the equivalent of what you charge for one hour of your time.

You can donate find his Just Giving page by clicking here. All money goes to Save The Children.