Rebecca Hannah Steinfeld and Another v The Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 29 January 2016 |
| Neutral Citation | [2016] EWHC 128 (Admin) |
| Docket Number | Case No: CO/6008/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 January 2016 |
[2016] EWHC 128 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Andrews DBE
Case No: CO/6008/2014
Ms Karon Monaghan QC (instructed by Deighton Pierce Glynn) for the Claimants
Mr Daniel Squires (instructed by The Government Legal Department) for the Defendant
Hearing dates: 19 and 20 January 2016
Introduction
This case raises issues concerning the different routes by which same-sex and opposite-sex partners are able to achieve formal legal recognition of their relationships, which, without wishing in any way to minimise their importance to the Claimants, potentially have a wider public interest. The Defendant to the claim is the Secretary of State for Education, ("the Secretary of State") because equality issues currently fall within her ministerial portfolio.
The Claimants are a young couple in a committed long-term relationship, who now have a child. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to the institution of marriage, based upon what they consider to be its historically patriarchal nature. They wish, instead, to enter into a civil partnership, a status which they consider reflects their values and gives due recognition to the equality of their relationship. However, they are currently unable to do so.
A civil partnership is defined by s.1 of the Civil Partnership Act 2004 ("the CPA") as "a relationship between two people of the same sex when they register as civil partners of each other." S. 3(1)(a) of the CPA underlines this restriction by providing that two people are not eligible to register as civil partners of each other if they are not of the same sex.
The Claimants do not suggest that there is any substantial difference between civil marriage and civil partnerships in terms of the legal rights and responsibilities they accord or the process by which they can be entered into. Nor do they dispute that they could choose how to celebrate (or not celebrate) a civil marriage, and that they could continue to conduct their relationship, once married, as equals. Nevertheless, without the ability to enter into a civil partnership, the Claimants say they would be forced to enter into marriage against their conscience in order to obtain the legal protections and privileges to which they aspire, and the formal recognition of their relationship to which they say they are entitled.
It is not the Claimants' case that the UK has a legal obligation to make available to them an institution which will recognise their relationship but to which they do not have the same ideological objections as marriage. Rather, it is their case that, having chosen to create such an institution, the UK can no longer lawfully exclude them from entering into it by reason of their sexual orientation. They contend that, in consequence of the enactment of the Marriage (Same Sex Couples) Act 2013, ("the 2013 Act") which permits same-sex couples to marry and civil partners to convert their relationship into marriage, the provisions of the CPA which preclude opposite-sex couples from registering as civil partners have become incompatible with Article 14 of the European Convention on Human Rights ("the Convention") taken in conjunction with Article 8.
This is because same-sex couples now have a choice as to how they go about acquiring formal recognition of their relationship by the state, whereas opposite-sex couples have to marry in order to obtain the same recognition. The Claimants submit that there is no legitimate aim to be served by maintaining the difference in treatment on grounds of sexual orientation and consequently there can be no justification for it in law.
The claim is novel because unlike most challenges to legal measures on grounds of discrimination, it is not suggested that sections 1 and 3(1)(a) of the CPA were incompatible with the Convention when they were enacted. Plainly, they were not. The CPA was a breakthrough piece of legislation designed to afford same-sex couples a means of achieving formal recognition of their relationship and commitment to each other, where no such means previously existed. At the time when it was enacted, the position both in domestic law and in Strasbourg was that there was no positive obligation on a state to create a new category of legal institution or status which would afford couples (whether same-sex or opposite-sex) the same rights and benefits as are enjoyed by those who are married. That remains the case.
The Claimants do not seek to argue that, prior to the enactment of the 2013 Act, it would have been unlawful to deny a same-sex couple the right to marry. Indeed that issue was decided by Sir Mark Potter, President of the Family Division, in Wilkinson v Kitzinger and another (No 2) [2006] EWHC 2022 (Fam), [2007] 1 FCR 183, a case in which a same-sex couple who were lawfully married in Canada unsuccessfully contended that the statutory provisions of the Matrimonial Causes Act 1973 and of the CPA that precluded recognition of their union as a marriage, but treated it instead as a civil partnership, infringed Art 14 read together with Art 8.
The reasoning in that case (to which I shall return) and its outcome would apply with equal force to an opposite-sex couple who sought to contend that their inability to enter into a civil partnership infringed Art 14 read together with Art 8. In the light of that, if this claim had been brought prior to the enactment of the 2013 Act it would have been unsuccessful. On behalf of the Claimants, Ms Monaghan QC did not seek to suggest otherwise. Instead, she submitted that restrictions that were lawful when enacted have become unlawful in consequence of the enactment of a further statute which in itself promotes equality amongst people of different sexual orientations by opening up civil marriage to same-sex partners. The argument, in short, is that having chosen to create the status of civil partners, and then having subsequently chosen to allow same-sex couples to marry, it became incumbent on the UK to treat opposite-sex couples equally by allowing them to become civil partners.
The Claimants seek a declaration of incompatibility pursuant to s.4 of the Human Rights Act 1998. Such a declaration, of course, would go no further than establishing that the status quo is unlawful, if such be the case. The Claimants recognise that it would then be a matter for Parliament to decide how to redress the situation, and that its options would include abolishing the status of civil partners, or phasing it out over time. If Parliament chooses to go down either of those routes, Ms Monaghan accepted that it would not be open to challenge on the basis of incompatibility with Art 14 read together with Art 8 of the Convention, on grounds of discrimination, because marriage would still be available to all couples regardless of their sexual orientation.
The two public consultations
The claim is brought against a background in which the Government has been far from inactive in considering the impact on civil partnerships of the extension of marriage to same-sex couples. Having reviewed the situation in the light of responses to a public consultation carried out at a time when the changes brought about by the 2013 Act had not yet come fully into effect, the Government has decided to wait to discover how, in practice, the availability of marriage affects the continued demand for civil partnerships, before deciding what to do about them. However, it has given no indication of how long it plans to wait before making that decision.
In March 2012, the Government launched a public consultation exercise entitled "Equal Civil Marriage: a consultation". The Ministerial Foreword to that exercise recorded the Government's recognition that the personal commitment made by same-sex couples when they enter into a civil partnership is no different to the commitment made by opposite-sex couples when they marry. The stated aim of the consultation was to seek views on how lifting the ban on same-sex couples having a civil marriage could be implemented in a way that worked for everyone.
The consultation document made it plain that the Government was not considering changes on who could enter a civil partnership. Given that civil partnerships were an established mechanism to recognise same-sex relationships, the Government said it intended to retain them after the bar was removed on same-sex marriage. Nevertheless, the consultation asked three questions directed towards civil partnerships: question 6, whether the respondent agreed or disagreed with keeping the option of civil partnerships, question 7, if those respondents who identified as being lesbian, gay or bisexual would prefer to have a civil partnership or a civil marriage, and question 8, whether the respondent agreed or disagreed with the decision not to open up civil partnerships to opposite-sex couples.
The Government published its response to the consultation in December 2012. The response it had received was the largest ever to a Government consultation — over 228,000 individual responses, plus 19 petitions. In answer to question 7 the overwhelming majority of those who identified as lesbian, gay or bisexual said that they would prefer marriage, a statistic which has been borne out by the number of same-sex marriages and conversions from civil partnerships since the...
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