Special Guest Post by Professor Robert Wintemute
On 19-20 January, the England and Wales High Court (Mrs. Justice Andrews) heard the judicial review of the ban on different-sex civil partnerships brought by Rebecca Steinfeld and Charles Keidan. It was argued on behalf of the supposedly LGBTI-friendly UK Government (represented by Nicky Morgan, the Secretary of State for Education and Minister for Women and Equalities) that the High Court should follow two anti-LGBTI decisions from 2006.
The first is Secretary of State for Work and Pensions v. M, in which the House of Lords ruled (Baroness Hale dissenting) that the Human Rights Act 1998 did not require that a lesbian couple be treated in the same way as an unmarried different-sex couple, with regard to child support payments (see Wintemute,  EHRLR 722). The second is Wilkinson v. Kitzinger, in which the High Court, relying on M., found no obligation under the HRA to recognise the Canadian marriage of a British lesbian couple as a marriage (rather than a civil partnership) in the UK. The M. case went on to the European Court of Human Rights, which found sexual orientation discrimination violating Article 14 of the European Convention on Human Rights (J.M. v. UK, 2010),
The UK Government now claims that the M. and Wilkinson decisions from 2006 prevent Steinfeld and Keidan from relying on Article 14 in 2016, because their exclusion from civil partnership (but not marriage) does not have a sufficient impact on their Article 8 right to respect for their family life, putting their case “outside the ambit” of Article 8. The UK Government insists that the law is frozen as it was in 2006, despite the legal and social changes of the last decade. In Schalk & Kopf v. Austria (2010), the ECtHR declared that same-sex couples have “family life”, overruling its 2001 Mata Estevez decision to the contrary, which the M. and Wilkinson courts had cited. In Vallianatos & Others v. Greece (2013), the ECtHR ruled that same-sex couples excluded from Greece’s civil partnership law could invoke Article 14, even if the law would give them no more rights than they could obtain through private contracts, because “civil partnerships … as an officially recognised alternative to marriage have an intrinsic value for the applicants irrespective of the legal effects, however narrow or extensive, that they would produce”. And, of course, the coming into force of the Marriage (Same Sex Couples) Act 2013, in March 2014, was supposed to represent the achievement of full legal equality for same-sex couples in England and Wales, and an end to UK Government support for discrimination against them.
Despite these developments, the effect of the UK Government’s argument (if accepted by lower UK courts) is that same-sex couples may be shut out of Article 14, in the same way as Steinfeld and Keidan, and find themselves unable to claim discrimination under Article 14 of the HRA, until the UK Supreme Court overrules its mistaken application of the “within the ambit” test in M. This could mean that same-sex couples in Northern Ireland cannot rely on Article 14 (combined with Article 8 as opposed to Article 12) in challenging their exclusion from marriage, because they have access to civil partnership. Similarly, if a town hall in England and Wales were to create separate waiting rooms for same-sex and different-sex couples seeking to register their relationships, the UK Government’s reasoning would preclude an Article 14 challenge by a same-sex couple under the HRA, because the separate waiting room would not have a sufficient impact on their family life.
This is not the first time that the UK Government has supported discrimination against same-sex couples. In 2007, it argued at the hearing in the Maruko case in the Court of Justice of the European Union that Directive 2000/78 banning sexual orientation discrimination in employment does not apply to employment benefits linked to marital status, because of Recital 22 in its preamble. The CJEU disagreed, finding that pension plans must provide the same survivor’s benefits to the civil partners of employees as they do to the spouses of employees (in Germany and other EU countries where civil partnership exists and is sufficiently similar to marriage).
Later in 2007, the UK Government intervened in Schalk & Kopf v. Austria. It agreed with the Austrian Government that Articles 14 and 8 of the Convention did not require European governments to pass laws for same-sex couples, like the UK’s Civil Partnership Act 2004, because the absence of “a specific mechanism for legal recognition or registration of same-sex relationships has not been shown to have a significant impact on the ability to develop and maintain such relationships”. Although the ECtHR in Schalk & Kopf found no such obligation prior to 1 January 2010, it held in Oliari & Others v. Italy (2015) that Italy must provide a “specific legal framework” for same-sex couples. The ECtHR noted that, by June 2015, the majority of Council of Europe member states (24 of 47) had some form of civil partnership law.
I would like to think that the UK Government consistently supports equality for same-sex couples in the UK and the rest of Europe, at least since the Marriage (Same Sex Couples) Act 2013. It is very disappointing to learn that, in 2016, the UK Government is willing to invoke the overly strict and out-dated application of the “within the ambit” test in M. and Wilkinson, to argue that same-sex (and different-sex) couples are barred from claiming discrimination under Article 14 of the HRA.
Robert Wintemute is Professor of Human Rights Law at King’s College London.