R (on the application of Steinfeld and Keiden) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary)

Heard on 14 and 15 May 2018

( with whomLady Hale, Lord Wilson, Lord ReedandLady Blackagree)

Section 1(1) of the Civil Partnership Act (CPA) 2004 defines a civil partnership as “a relationship between two people of the same sex … (a) which is formed when they register as civil partners of each other — (i) in England or Wales …” Under section 2(1) of CPA two people are to be regarded as having registered as civil partners when they have signed the civil partnership register in the presence of each other, a civil partnership registrar and two witnesses. By section 3(1) of CPA, two people are not eligible to register as civil partners if they are not of the same sex.CPA was therefore explicitly and emphatically designed for same sex couples only. The obvious reason for this was that, at the time of the enactment of CPA, the government and Parliament did not consider it appropriate to extend the institution of marriage to same sex couples but recognised that access to responsibilities and rights akin to those which arise on marriage should be available to same sex couples who wished to commit to each other in the way married couples do.

All of that changed with the enactment of the Marriage (Same Sex Couples) Act 2013 (MSSCA). This made the marriage of same sex couples lawful from the date of coming into force of the legislation — 13 March 2014. From that date onwards, same sex couples who marry enjoy the same rights, benefits and entitlements as do married heterosexual couples. They also share the responsibilities that marriage brings.

CPA was not repealed when MSSCA was enacted. Consequently, same sex couples have a choice. They can decide to have a civil partnership or to marry. That choice was not — and is not — available to heterosexual couples. Under the law as it currently stands, they can only gain access to the rights, responsibilities, benefits and entitlements that marriage brings by getting married. This circumstance, it is now agreed, brought about an inequality of treatment between same sex and heterosexual couples. It is also now accepted by the respondent that this manifest inequality of treatment engages article 14 — prohibition of discrimination — read in conjunction with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention or ECHR) — the right to respect for private life.

It is also accepted by the respondent Secretary of State that the inequality of treatment of heterosexual couples requires to be justified from the date of its inception, ie the coming into force of MSSCA. The principal issue in this appeal, therefore, is whether justification of that inequality includes consideration of the period of time during which, the government claims, it is necessary to investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination. The respondent claims that justification does include an evaluation of the time needed to decide how the inequality of treatment can best be removed. The appellants argue that this relates solely to remedy, and is not relevant to the question of justification. Alternatively, they submit that, on the facts of this case, it is not proportionate to continue to deny civil partnerships to them in order to achieve the aim proffered by the government viz affording time thoroughly to investigate whether to abolish civil partnerships altogether; to extend them to different sex couples; or to phase them out.

The appellants therefore seek a declaration that sections 1 and 3 of CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) infringe their rights under article 14 taken with article 8 of the Convention. They also seek a declaration of incompatibility under section 4 of the Human Rights Act 1998 ( HRA).

The appellants are a different sex couple who wish to enter into a legally recognised relationship. They have a conscientious objection to marriage. They want to have a civil partnership with one another. They have been in a long-term relationship and have had two children together. It is not disputed that their unwillingness to marry is based on genuine conviction. Nor is it disputed that their wish to have their relationship legally recognised is other than entirely authentic.

When Parliament enacted MSSCA it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though, we were told, it was recognised at that time that this would bring about an inequality of treatment between same sex partners and those of different sexes and that this inequality was based on the difference of sexual orientation of the two groups. Rather, it was decided that further investigations were required. Some investigations had been carried out in 2012 and further inquiries were made in 2014. In the government's estimation the investigations did not indicate that significant numbers of different sex couples wished to enter civil partnerships. It was judged, however, that the review and consultation which comprised the investigations in 2014 were inconclusive as to how to proceed. The government therefore concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same sex marriages had taken root.

On 21 October 2015 Tim Loughton MP introduced a Private Members Bill which proposed extension of civil partnerships to different sex couples. That Bill did not receive the requisite support and did not progress. A second Bill met the same fate in 2016. Mr Loughton introduced another Bill, entitled Civil Partnership, Marriages and Deaths Registration etc Bill in the 2017–2019 session. The Bill received its First Reading on 19 July 2017 and its Second Reading on 2 February 2018. It proposed that different sex couples should be permitted to enter civil partnerships. The government felt unable to support that proposal but in advance of the Second Reading it agreed the terms of an amendment with Mr Loughton and a joint amendment was submitted to Parliamentary authorities immediately after the Second Reading. The amendment is in these terms:

“(1) The Secretary of State must make arrangements for a report to be prepared —

(a) assessing how the law ought to be changed to bring about equality between same sex couples and other couples in terms of their future ability or otherwise to form civil partnerships, and

(b) setting out the Government's plans for achieving that aim.

(2) The arrangements must provide for public consultation.

(3) The Secretary of State must lay the report before Parliament.”

In May 2018, the government published a command paper in which it recorded that the consultations in 2012 and 2014 had failed to produce a consensus as to how, or indeed if, the legal position as to civil partnerships should change. Those consultations had posited three possibilities: that civil partnerships should be abolished; that they should be closed to new entrants; or that they should be extended to allow different sex couples to register a civil partnership. The command paper stated that, because of the lack of consensus, the government “decided not to make any changes to civil partnerships at the time”. This is significant. The government knew that it was perpetrating unequal treatment by the introduction of MSSCA but it decided to take no action because of what it perceived to be equivocal results from its consultations.

In the 2018 command paper the government announced that it was looking at available data “on the take-up of civil partnerships and marriage amongst same sex couples”. It suggested that if demand for civil partnerships was low, the government might consider abolishing or phasing them out. If, on the other hand, there remained a significant demand for civil partnerships, this might indicate “that the institution still has relevance”. It concluded, therefore, that it was “proportionate” to obtain more data in order to decide that there was a need to preserve civil partnerships. It considered that by September 2019 it should have sufficient evidence to make a judgment about the demand for the institution. Thereafter, consultation on the future implementation of proposals for civil partnerships would take place. This would happen “at the earliest” in 2020. No indication was given as to how long the consultation period would last nor as to the likely date of any legislation that might be considered necessary.

The appellants sought judicial review of the government's failure to extend civil partnerships to different sex couples, arguing that the introduction of MSSCA rendered the provisions of CPA which confined the availability of civil partnerships to same sex couples (sections 1 and 3) incompatible with article 8 of ECHR, when read in conjunction with article 14. That application was dismissed by Andrews J in a judgment delivered on 29 January 2016 ( [2016] EWHC 128 (Admin)). The respondent had argued that article 8 was not engaged and that argument was accepted by the judge. At para 84 of her judgment she said that, “The difference in treatment complained of does not infringe a...