Equality won’t wait – Supreme Court rules in Equal Civil Partnership

28 June 2018 by Martin Downs

As predicted on this Blog, the Supreme Court has made a declaration of incompatibility covering sections one and three of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership).

In Steinfeld and Keidan, R (on the application of) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 (27 June 2018) the Court found that the provision was contrary to article 14 of ECHR taken in conjunction with article 8 of the Convention.

To an extent, this was not a surprise as, by the time the case reached the Supreme Court, the government had conceded that the current situation in which same sex couples have had a choice between marriage and civil partnership since 13^th March 2014, whereas heterosexual couples only have the option of marriage, is discriminatory.

The Court of Appeal (with the significant dissent of Arden LJ – as she was then) had been prepared to grant the Government time to remedy the situation (most likely by extending civil partnerships or making them a closed category to new entrants). Patience expired by the time the case reached Parliament Square. Lord Kerr gave a somewhat acerbic Judgment for the whole Court. A flavour is given by the following sentence:

In light of what we were told was the government’s awareness that the effect of introducing MSSCA was inequality between same- and different sex couples, [they] displayed, at best, an attitude of some insouciance.

It was apparent that the Court was left unimpressed by arguments that the Government should be given time to remedy the anomalous state of affairs when the Court believed that it had created a new form of discrimination by the way it framed the Marriage (Same Sex Couples) Act 2013.

However, the Court also used one paragraph from its Judgment in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657 at [343] to explain the significance (and limitations) of its eventual course of action namely, a Declaration of Incompatibility:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.

What now?

As stressed by Baroness Hale, in the course of oral argument before the Court, by issuing a Declaration, the Court has left it up to Parliament how to act.

In PMQs straight after the Judgment was handed down, the chief parliamentary cheerleader for equal civil partnerships, Tim Loughton MP offered his Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill as the perfect vehicle with which to extent civil partnerships to all. Using the style which was met with such success in the last general election, the Prime Minister responded

We have committed to undertake a full review of the operation of civil partnerships. I know that there has been a lot of discussion with him about his Bill. We are supporting his private Member’s Bill, which would enshrine that commitment in law.

The proposals for the Review had been contained in a Command Paper published on the eve of oral argument in the Supreme Court by Penny Mordaunt MP. The reviews of this approach contained in the Judgment of the Supreme Court were show closing.

There must be many in government who wished that Justine Greening MP were still the Equalities Minister and had been allowed to bring forward a Bill in this session to extend civil partnerships to opposite-sex couples. We know so much about this as a Report entitled, Options for Extending Civil Partnerships to Opposite-Sex Couples was leaked to the Guardian on the eve of the Supreme Court hearing. It appeared to identify three problems that needed to be examined:

• The estimated £3.3bn bill to equalise occupational pension rights – 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.
• Devolution issues – Civil Partnership was introduced as a UK wide measure with the agreement of the Scottish parliament (NI was under direct rule at the time). Scotland has already undertaken a consultation exercise and its preparatory documents are of a really high standard. Civil Partnership reform here may create further difficulties in the North of Ireland.
• Recognition of opposite-sex partnerships – this is because Civil Partnerships/Civil Unions/Registered Partnerships – as the different names suggest, come with quite a variety of legal consequences and formality.

The government could just make current civil partnerships marriages by Act of Parliament. This was the model followed by most other countries that had originally created civil partnerships to recognise same sex relationships. However, that ship has probably sailed given the number of people who have entered into civil partnerships since marriage was opened up. Helen Fenwick and Andy Hayward of Durham law School have set out the perils of this approach in the most recent Child and Family Law Quarterly in an article entitled: From same-sex marriage to equal civil partnerships: on a path towards ‘perfecting’ equality? [2018] 2 CFLQ 97 (£). It also points out that even closing civil partnership to new entrants – as was done in the Republic of Ireland, has its problems.

Readers should beware some of claims as to the numbers of persons who are currently in civil partnerships deployed by some people who should know better. The Government and Resolution and other interested parties should co-opt Elizabeth McLaren of the ONS immediately to advise them on all the statistics. Readers should follow StatsLiz on twitter.

Arguments for civil partnership based on protecting the rights of millions of cohabitants should also be treated with caution. An opt-in system that precisely mirrors the legal consequences of marriage for the purposes of domestic law appears to be an unlikely solution to the problems faced by many unwary and vulnerable cohabitants.

Similarly excoriating comment about the amount of money the government wasted defending the equal civil partnership litigation seems misguided. In a reply to a written question, Home Office minister Victoria Atkins, said:

Since the start of the proceedings in 2014, the government has spent £64,923 in legal costs as a result of this judicial review.

This seems a strikingly low figure and yet another reason why James Eadie QC so thoroughly deserved his recent knighthood.

Now that I have established myself in the prediction market. It is irresistible to continue. If I were Rebecca Steinfeld and Charles Keidan I would be tempted to talk to the Registrar at Chelsea about the possibility of a civil partnership ceremony in June 2020.

Martin Downs is a barrister at One Crown Office Row.