The ‘straight civil partnership’ challenge: All you need to know before the Supreme Court Judgment

25 June 2018 by Martin Downs

The Supreme Court will hand down Judgment on Wednesday 27^th June 2018 in R (on the application of Steinfeld and another) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary).

The claimants are Rebecca Steinfeld and Charles Keidan who contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. They do not want to enter into marriage as they say that it is patriarchal and is not consistent with their values.

The Civil Partnership Act 2004 created a regime for the recognition of same sex relationships modelled on that in Vermont which pretty much entirely replicated the rights and responsibilities available through marriage. One of the only anomalies was a less favourable provision for survivor benefits from an occupational pension but even that was equalised courtesy of the Supreme Court in Walker v Innospec Ltd.

The exclusion of different sex couples from Civil Partnership started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of that was that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.

This Blog has covered the story of the Steinfeld from the very beginning. The original hearing was in front of Mrs Justice Andrews and the arguments were examined by Professor Rob Wintemute in these pages. Ultimately, as reported by Adam Wagner, Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

A challenge to this ruling failed in the Court of Appeal which considered that the bar constituted a potential violation of the appellants’ human rights under article 14 ECHR (prohibition of discrimination) when read with article 8 (right to respect for private and family life). However, the majority held that the prohibition formed part of the Secretary of State’s policy of “wait and evaluate”. In the context of a Private Members Bill by Tim Loughton MP on the issue, the Court refrained from making a declaration of incompatibility with the appellants’ rights under the ECHR.

As is apparent from the oral arguments, while the claimants would like to enter into a civil partnership, the aim of the litigation is narrower than that – it seeks to insist that the government equalise the position between same sex and opposite sex couples. As Baroness Hale made clear in comments during argument, this could be done by levelling up or levelling down rights.

On the eve of the hearing before the Supreme Court, the Equalities Minster released a Command Paper, The Future Operation of Civil Partnership: Gathering Further Information which contended that the Government needs to undertake research on four matters before arriving at a decision as to the future of civil partnerships:

• Trends in civil partnership and marriage amongst same-sex couples (it was able to cite the fact that only 890 civil partnerships were registered in 2016 in England and Wales albeit this was an increase of 3.4% in civil partnership formation in 2016 compared to 2015;
• The demand for civil partnership and marriage amongst opposite-sex couples in the UK;
• The motivations of same-sex couples who choose civil partnership; and
• A review of what has happened in other countries.

The issue before the Supreme Court is quite narrow: should they issue a Declaration of Incompatibility or should they leave the government the space to review the matter in their own time? If I were to stick my neck out (and in a sentence which the editors can excise after Judgment is handed down), I would predict that the Court will issue a Declaration.

Either way, the government is likely to be pitched into more arguments about the future of civil partnerships. The formidable Durham University legal duo of Helen Fenwick and Andy Hayward have written a major piece in Child and Family Law Quarterly which sets out the thorny path ahead: From same-sex marriage to equal civil partnerships: on a path towards ‘perfecting’ equality? [2018] 2 CFLQ 97 (£). This is particularly strong on the problems that will face the government if they propose to close civil partnership to new entrants.

An interesting wider question is whether the government will use this as an opportunity to embark upon further reforms of marriage. It is arguable that one of the curiosities of the arguments for the retention (and expansion) of civil partnership is that it assumes that the meaning of marriage is immutable but as Munby P noted in the Court of Appeal Judgment in Owens v Owens, that is an unsustainable proposition. However further reforms seem inevitable – only the timing of them is in question.

It is however, a delicious irony that one of the strongest arguments for retaining Civil Partnerships is that their abolition may cause real problems for the Church of England. As matters stand, the Church allows priests to participate in same-sex civil partnerships providing they promise to remain celibate. Core doctrine would not allow them to engage in same-sex ‘marriages.’

Martin Downs is a barrister at One Crown Office Row.