R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32

A different-sex couple with a conscientious objection to marriage challenged the Civil Partnership Act 2004, which restricts civil partnerships to same-sex couples. Following the Marriage (Same Sex Couples) Act 2013, the Supreme Court granted a declaration of incompatibility under the Human Rights Act 1998.

Facts

The appellants, Rebecca Steinfeld and Charles Keidan, are a different-sex couple in a long-term relationship with two children. They wished to formalise their relationship through a civil partnership rather than marriage, to which they had a genuine conscientious objection. However, section 1(1) and section 3(1) of the Civil Partnership Act 2004 (CPA) restrict civil partnerships to same-sex couples.

When the Marriage (Same Sex Couples) Act 2013 (MSSCA) came into force on 13 March 2014, same-sex couples gained the choice between marriage and civil partnership, while different-sex couples remained restricted to marriage. The government, acknowledging an inequality had arisen, decided not to act immediately but to adopt a ‘wait and evaluate’ approach, conducting consultations in 2012, 2014 and beyond, with the 2018 command paper indicating further data collection until September 2019, followed by consultation no earlier than 2020.

The appellants sought judicial review and a declaration of incompatibility under section 4 of the Human Rights Act 1998. Andrews J dismissed the application, and the Court of Appeal (by majority) dismissed the further appeal, finding the government’s approach justified for the time being.

Issues

By the time the case reached the Supreme Court, it was accepted that: (i) article 8 was engaged; (ii) there was a difference in treatment between same-sex and different-sex couples based on sexual orientation; (iii) the appellants were in an analogous position to same-sex couples seeking civil partnerships; and (iv) the inequality required justification from the coming into force of MSSCA on 13 March 2014.

The principal issue was whether the government’s claimed justification — the need for time to investigate how best to eliminate the inequality (through abolition, phasing out, or extension of civil partnerships) — could constitute a legitimate aim for maintaining the discriminatory treatment, or whether this related only to remedy and not justification.

Arguments

Appellants

Counsel for the appellants, Ms Monaghan QC, advanced five propositions: the burden of proving justification lies on the respondent; it is the discriminatory effect, not the scheme as a whole, that requires justification; strict scrutiny applies where differential treatment is based on sexual orientation, requiring ‘particularly convincing and weighty reasons’; the four-stage proportionality test applies; and it must be shown that excluding the relevant group was necessary. The appellants argued that ‘taking time to decide’ does not address the inequality itself and so cannot amount to a legitimate aim intrinsically linked to the discriminatory treatment.

Respondent

Mr Eadie QC for the Secretary of State argued that the government wanted a ‘better sense’ of how civil partnerships would be regarded after the introduction of same-sex marriage before taking a final decision. Legislative change in this sensitive area of social policy had been incremental, reflecting evolving societal values. The government was entitled to a margin of discretion in the timing of legislative change, relying particularly on Schalk and Kopf v Austria and statements in M v Secretary of State for Work and Pensions.

Judgment

Lord Kerr (with whom Lady Hale, Lord Wilson, Lord Reed and Lady Black agreed) allowed the appeal and granted a declaration of incompatibility.

Margin of appreciation/discretion

The court distinguished the Strasbourg margin of appreciation from the exercise required of a national court. Citing Lady Hale in In re G (Adoption: Unmarried Couple), Lord Kerr emphasised that national courts must confront the interference directly and cannot simply defer. Where discrimination is based on sexual orientation, any margin of discretion is narrow and strict scrutiny applies.

Distinguishing Schalk and Kopf

Lord Kerr distinguished Schalk and Kopf, where the legislature was responding to evolving societal attitudes, from the present case, where Parliament itself had created the inequality through MSSCA. He drew an analogy with Vallianatos v Greece, holding that the government must show it was necessary to exclude different-sex couples from civil partnerships in order to achieve its aim, a necessity that had not been established.

Legitimate aim

Applying the four-stage proportionality test from R (Aguilar Quila) v Secretary of State for the Home Department and Bank Mellat v HM Treasury (No 2), Lord Kerr held that the legitimate aim must address the perpetration of the unequal treatment and be intrinsically linked to the discriminatory treatment. The government’s aim — taking time to assemble information — did not relate to justifying the difference in treatment; rather, it sought ‘tolerance of the discrimination while it sorts out how to deal with it.’ This could not be characterised as a legitimate aim.

The court rejected reliance on Walden v Liechtenstein, noting Lord Hoffmann’s criticism of that decision in R (Hooper) v Secretary of State for Work and Pensions. Unlike cases of historically justified discrimination gradually losing justification, MSSCA introduced a new discrimination that was never justified.

Fair balance

Even had the aim been legitimate, the balance would not have been struck: the community’s interests in denying civil partnerships to different-sex couples were unspecified, while the appellants faced serious consequences including potential fiscal disadvantage.

Declaration of incompatibility

The court rejected arguments for judicial restraint based on R (Nicklinson) v Ministry of Justice. Unlike in Nicklinson, no imminent legislative change was in prospect; the amendment to Mr Loughton’s Bill merely formalised an existing consultation commitment. A declaration does not oblige Parliament to act and does not offend the separation of powers.

Implications

The Supreme Court declared that sections 1 and 3 of the Civil Partnership Act 2004, insofar as they preclude different-sex couples from entering civil partnerships, are incompatible with article 14 read with article 8 of the ECHR.

The judgment establishes several important principles closely tied to its reasoning:

• Where a legislature itself creates an inequality (as distinct from responding to evolving social attitudes), it cannot rely on a ‘wait and evaluate’ approach to justify the continuation of that inequality for an indefinite period.
• A legitimate aim for proportionality purposes must be intrinsically connected to the discriminatory treatment itself, not merely to questions of how to remedy that treatment.
• Where differential treatment is based on sexual orientation, strict scrutiny applies and any margin of discretion afforded to the government is narrow.
• The Strasbourg doctrine of margin of appreciation does not translate directly into the national court’s task of assessing justification under the HRA.

Practically, the decision placed significant pressure on government and Parliament to address the inequality. While a declaration of incompatibility does not compel legislative action, it communicates the court’s assessment that existing law is incompatible with Convention rights. The decision is significant for couples who, like the appellants, object to marriage on conscientious grounds but wish for legal recognition of their relationship.

The judgment is carefully confined: the court did not dictate how the inequality should be removed (extension, abolition, or phasing out were all options), and Lord Kerr expressly made clear at paragraph 50 that the government was required to eliminate the inequality immediately upon MSSCA coming into force, by either abolishing civil partnerships or instantaneously extending them. The decision is an important authority on the proper analytical approach to justification in article 14 cases, particularly those involving sexual orientation, and on the circumstances in which courts should make declarations of incompatibility under section 4 of the HRA.

Verdict: Appeal allowed. The Supreme Court made a declaration under section 4 of the Human Rights Act 1998 that sections 1 and 3 of the Civil Partnership Act 2004, to the extent that they preclude a different-sex couple from entering into a civil partnership, are incompatible with article 14 of the ECHR taken in conjunction with article 8.

Source: 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