Trinity Term [2018] UKSC 32 On appeal from: [2017] EWCA Civ 81

JUDGMENT
R (on the application of Steinfeld and Keidan)
(Appellants) v Secretary of State for International
Development (in substitution for the Home
Secretary and the Education Secretary)
(Respondent)
before
Lady Hale, President
Lord Kerr
Lord Wilson
Lord Reed
Lady Black
JUDGMENT GIVEN ON
27 June 2018
Heard on 14 and 15 May 2018
Appellants Respondent
Karon Monaghan QC Sir James Eadie QC
Sarah Hannett Dan Squires QC
(Instructed by Deighton
Pierce Glynn
)
(Instructed by The
Government Legal
Department
)
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LORD KERR: (with whom Lady Hale, Lord Wilson, Lord Reed and Lady
Black agree)
Introduction
1. 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.
2. 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.
3. CPA was not repealed when MSSCA was enacted.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.
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4. 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.
5. 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).
Factual background
6. 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.
7. 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.
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8. 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.”
9. 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.
10. 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
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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 proceedings
11. 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 personal interest close to the core of the
right to family life, still less the right to private life protected by article 8”.The judge
held, however, that even if article 8 was engaged, there was “sufficient objective
justification for maintaining the disparity [between same sex and different sex
couples] in the short term whilst the Government takes stock of the impact of the
2013 Act on civil partnerships” – para 71 of the judgment.
12. Before the Court of Appeal (Arden LJ, Beatson LJ and Briggs LJ – [2017]
EWCA Civ 81; [2018] QB 519) the argument that the appellants’ case did not come
within the ambit of article 8 was again advanced by the respondent. It was
unanimously rejected (and has not been renewed before this court). By a majority
(Beatson and Briggs LJJ), the Court of Appeal held that the interference with the
appellants’ rights under article 8, read together with article 14 was, at least for the
time being, justified. At para 158, Beatson LJ said:
“In my view, at present, the Secretary of State’s position is objectively
justified. The future of the legal status of civil partnerships is an
important matter of social policy that government is entitled to
consider carefully. At the hearing the Secretary of State’s approach
was described as a ‘wait and see’ approach, although it would be more
accurate to describe it as a ‘wait and evaluate’ approach. Whatever
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term is used to describe the approach, it would not have been available
to the Secretary of State prior to the enactment and coming into force
of the 2013 Act. This is because it would not have been possible at
that time to determine how many people would continue to enter into
civil partnerships or want to do so because they share the appellants’
sincere objections to marriage. The relevant start date for
consideration is thus 13 March 2014 when the provisions extending
marriage to same sex couples came into force.”
13. At para 173, Briggs LJ said:
“I can well understand the frustration which must be felt by the
appellants and those different sex couples who share their view about
marriage, about what they regard as the Government’s slow progress
on this issue. Some couples in their position may suffer serious fiscal
disadvantage if, for example, one of them dies before they can form a
civil partnership. This is a factor in the proportionality balance, and
because this is a case of differential treatment on the basis of sexual
orientation, that balance must command anxious scrutiny. But against
the background of a serious but unresolved difficulty which affects the
public as a whole, and the practicable impossibility of some interim
measure, such as temporarily opening civil partnership to different sex
couples when the eventual decision may be to abolish it, I am unable
to regard the Secretary of State’s current policy of ‘wait and evaluate’
as a disproportionate response.”
14. Although she found that the interference with the appellants’ article 8 and
article 14 rights was not justified (because it was not proportionate), Arden LJ
considered that it pursued a legitimate aim – para 105, where she said that the state
had the option to eliminate the discrimination “in any way it sees fit” and therefore
must be entitled to “some time to make its choice.”
15. The question whether the legislation pursued a legitimate aim occupied
centre field on the hearing of the appeal before this court. In particular, the argument
focused on the question whether the legitimate aim required to be “intrinsically”
connected to the unequal treatment or whether it was enough that the government’s
aim was to take the time necessary to decide which form of removal of the
discrimination was most appropriate.
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The Convention rights
16. Article 14 of ECHR provides that the enjoyment of the rights and freedoms
set forth in the Convention shall be secured without discrimination on any of a
number of specified grounds (including sex, race or colour) and “other status”. It is
accepted that sexual orientation qualifies as a ground on which discrimination under
article 14 is forbidden – Salgueiro Da Silva Mouta v Portugal (1999) 31 EHRR 47
at para 28. Article 14 does not enshrine a freestanding right to freedom from
discrimination – see Petrovic v Austria (1998) 33 EHRR 14. It prohibits
discrimination in the enjoyment of the Convention rights. It is now well settled,
therefore, that, to have recourse to article 14, the complained of discrimination must
“come within the ambit” of another Convention right.
17. The ECHR right within whose ambit the appellants claim to come is article
8 which provides:
“Right to respect for private and family life
1. Everyone has the right to respect for his private and family life,
his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
18. Before Andrews J and the Court of Appeal it had been submitted that an
adverse effect in relation to article 8 had to be demonstrated in order for an avowed
infringement to come within its scope or ambit. Counsel for the respondent did not
seek so to argue before this court. They were right not to do so. Recent case law
from the European Court of Human Rights (ECtHR) makes it clear that no
detrimental effect need be established – see, for instance, Schalk and Kopf v Austria
(2010) 53 EHRR 20; Vallianatos v Greece (2013) 59 EHRR 12; and Oliari v Italy
(2015) 65 EHRR 26. In particular, in Vallianatos ECtHR found that the introduction
of registered partnerships only for different sex couples, to exist alongside marriage
which was also only open to different sex couples, constituted a breach of article 14
read with article 8 of the Convention (paras 80-92).
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19. It is therefore now accepted that access to civil partnerships falls within the
ambit of article 8; that there is a difference in treatment between same sex couples
and different sex couples in relation to the availability of civil partnerships; that this
difference in treatment is on the ground of sexual orientation, a ground falling within
article 14; and that the appellants are in an analogous position to a same sex couple
who wish to enter into a civil partnership. In these circumstances, the only basis on
which the respondent can escape a finding that there has been an infringement of the
appellants’ article 14 rights is by showing that the unequal treatment is justified –
Ghaidan v Godin-Mendoza [2004] 2 AC 557, per Baroness Hale at para 130.
Justification – the arguments
20. On the question of justification, Ms Monaghan QC for the appellants
advanced five propositions:
1. The burden of proving justification is on the respondent: R (Aguilar
Quila) v Secretary of State for the Home Department (AIRE Centre
intervening) [2012] 1 AC 621, per Lord Wilson at para 44 and Lady Hale at
para 61;
2. It is not the scheme as a whole which must be justified but its
discriminatory effect: A v Secretary of State for the Home Department [2005]
2 AC 68 per Lord Bingham at para 68 and AL (Serbia) v Secretary of State
for the Home Department [2008] 1 WLR 1434 per Baroness Hale at para 38;
3. Where the difference in treatment is based on sexual orientation, a
court must apply “strict scrutiny” to the assessment of any asserted
justification: “particularly convincing and weighty reasons to justify” it are
required – EB v France (2008) 47 EHRR 21, at para 91 and Karner v Austria
(2003) 38 EHRR 24 at para 37;
4. The conventional four-stage test of proportionality (as outlined in
cases such as Bank Mellat v HM Treasury (No 2) [2014] AC 700 and R
(Tigere) v Secretary of State for Business, Innovation and Skills (Just For
Kids Law intervening) [2015] 1 WLR 3820, at para 33) should be applied;
and
5. In cases involving discrimination on the grounds of sexual orientation,
to be proportionate, the measure must not only be suitable in principle to
achieve the avowed aim, it must also be shown that it was necessary to
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exclude those of the specific sexual orientation from the scope of the
application of the provision (Vallianatos at para 85).
21. For the respondent, Mr Eadie QC did not take particular issue with any of
these propositions. He submitted, however, that the government wanted to have a
“better sense” of how civil partnerships would come to be regarded after same sex
marriage became possible, before taking a final decision on their future. This was,
he claimed, a legitimate aim. Moreover, it required to be considered in its historical
context. Between 2005 (on the coming into force of CPA) and 2014 (when MSSCA
came into force) there was no question of discrimination between same sex and
different sex couples. Both had access to all the rights, entitlements and
responsibilities that marriage entailed. The only difference was that the gateways to
those entitlements etc were differently labelled (although that is not quite how Mr
Eadie put it).
22. Counsel emphasised that the various items of legislation were the product of
evolution in societal values and standards; the executive’s and Parliament’s
consideration of those changes; and the measured response of the legislature to the
conclusions that they had reached about them. (Again, I acknowledge that this is a
paraphrase, rather than a verbatim rendition, of Mr Eadie’s formulation of the
argument).
23. The respondent’s defence of the appeal therefore proceeded principally on
two related but distinct strands. The first was that changes in the law in this sensitive
area of social policy had been incremental. CPA had been introduced as a reaction
to perceived changes in social attitudes and to address the increasingly recognised
anomaly that same sex couples did not have the opportunity which different sex
couples had of legal recognition of their commitment to each other, with all the
benefits that flowed from such commitment. At the time CPA was enacted, it was
judged by the government and Parliament that society as a whole in the United
Kingdom was not ready to contemplate extending the institution of marriage to same
sex couples. It is not disputed that this was a judgment that they were entitled to
make.
24. The second strand of the respondent’s argument can be described in the
following way: when in 2013 it was decided that same sex couples should be
allowed to marry, the government and Parliament were presented with a choice.
Should they do away with civil partnerships for same sex couples or should they be
retained? On one view, they should be abolished. After all, same sex couples were
being placed in precisely the equivalent position as different sex couples. And,
incidentally, in none of the countries of the Council of Europe where civil
partnerships for same sex couples were transformed to marriage entitlement, had the
civil partnership institution been maintained.
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25. Rather than take that step, so says the respondent, the government and
Parliament chose a sensible course of investigating whether there was a case for
preserving the institution of civil partnership. After all, some same sex couples
might not wish to marry but to remain, or become, civil partners. And, incidentally,
a period of reflection and inquiry would allow a decision to be made on whether
different sex couples should be allowed to avail of civil partnerships. Momentous
decisions of this type need, the respondent says, time for proper inquiry and
consideration. Requiring that time to be available while assessment of the options
was taking place is a legitimate aim, it is claimed. It is legitimate, therefore, to
perpetuate the acknowledged inequality of treatment between the two groups, since
that inequality is going to be eliminated one way or another in due course. That
course also fulfils, the respondent argues, the other requirements of proportionality.
Discussion of justification generally
26. In Schalk and Kopf the applicants were a same sex couple. They complained
that Austrian law, which prescribed that the institution of marriage was available
only to different sex couples, discriminated against them. ECtHR held (by four votes
to three) that there had been no violation of article 14, taken together with article 8.
The court held, however, that same sex couples were in a relevantly similar situation
to a different sex couple “as regards their need for legal recognition and protection
of their relationship” – para 99. At the time that they lodged their application, there
was no possibility of recognition of their relationship under Austrian law. That
changed with the coming into force of the Registered Partnership Act on 1 January
2010. The court had to examine whether Austria should have provided a means of
legal recognition of their partnership before that Act came into force. In para 105 of
its judgment the court noted that there was a growing European consensus about the
recognition of same sex couples but that there was not yet a majority of states
providing for legal recognition of same sex partnerships. It concluded, therefore,
that “the area in question must … be regarded as one of the evolving rights with no
established consensus, where states must … enjoy a margin of appreciation in the
timing of the introduction of legislative changes”.
27. The respondent relied on this decision as being an example of the many
occasions on which the ECtHR has held that, in terms of timing of legislative change
to recognise different forms of relationship, a wide margin of appreciation is
appropriate. That was so, Mr Eadie argued, even where there had been differential
treatment on grounds of sexual orientation for some time. He sought to draw an
analogy between the Schalk and Kopf case and that of the appellants, by suggesting
that a significant measure of discretion should be accorded to Parliament in its
decision as to when the timing of legislative change in the field of civil partnerships
should occur.
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28. I do not accept that argument. In the first place, the approach of the ECtHR
to the question of what margin of appreciation member states should be accorded is
not mirrored by the exercise which a national court is required to carry out in
deciding whether an interference with a Convention right is justified. As Lady Hale
said In re G (Adoption: Unmarried Couple) [2009] 1 AC 173, para 118:
“… it is clear that the doctrine of the ‘margin of appreciation’ as
applied in Strasbourg has no application in domestic law. The
Strasbourg court will allow a certain freedom of action to member
states, which may mean that the same case will be answered
differently in different states (or even in different legal systems within
the same state). This is particularly so when dealing with questions of
justification, whether for interference in one of the qualified rights, or
for a difference in treatment under article 14. National authorities are
better able than Strasbourg to assess what restrictions are necessary in
the democratic societies they serve. So to that extent the judgment
must be one for the national authorities.”
29. It follows that a national court must confront the interference with a
Convention right and decide whether the justification claimed for it has been made
out. It cannot avoid that obligation by reference to a margin of appreciation to be
allowed the government or Parliament, (at least not in the sense that the expression
has been used by ECtHR). The court may, of course, decide that a measure of
latitude should be permitted in appropriate cases. Before Andrews J the respondent
had relied on the well-known statement of Lord Hope in R v Director of Public
Prosecutions, Ex p Kebilene [2000] 2 AC 326 at 381B where he said:
“… difficult choices may have to be made by the executive or the
legislature between the rights of the individual and the needs of
society. In some circumstances it will be appropriate for the courts to
recognise that there is an area of judgment within which the judiciary
will defer, on democratic grounds, to the considered opinion of the
elected body or person whose act or decision is said to be incompatible
with the Convention.”
30. It was therefore suggested to Andrews J that since the decision on the timing
of legislation to extend or abolish civil partnerships lay firmly in the field of social
policy, the court should show an appropriate degree of reticence in deciding whether
the unequal treatment between same- and different sex couples was justified. That
argument was repeated in this court. Mr Eadie relied on the decision of the House
of Lords in M v Secretary of State for Work and Pensions [2006] 2 AC 91. In that
case M was the divorced mother of two children who spent most of the week with
their father, M’s former husband. She contributed to their maintenance under the
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Child Support Act 1991. She lived with a partner of the same sex. In calculating the
amount of her child support contribution according to regulations made under the
1991 Act, M’s partner’s contribution to their joint housing costs was treated as
reducing M’s deductible housing costs whereas if she had been living with a man
his contribution to the mortgage would have been treated as part of hers so that her
weekly child support payment would have been smaller. She argued that the
assessment of her child support contributions engaged her rights under article 8 and
Article 1 of the First Protocol to ECHR, and that she had suffered discrimination in
her enjoyment of those rights contrary to article 14. By a majority, the House of
Lords rejected M’s arguments.
31. Mr Eadie placed particular emphasis on the statement of Lord Mance at para
153, where he said:
“… Because of the front-line importance of a home, the Strasbourg
and United Kingdom courts have been active at a relatively early stage
to eliminate differences in treatment which were evidently unfair. The
area of law with which the House is concerned is not so front-line. It
is one where there are swings and roundabouts, advantages and
disadvantages, for same sex couples in achieving complete equality of
treatment. There are many allied areas of legislation that used similar
terminology and required close attention, to achieve coherent,
comprehensive reform. It is an area in relation to which Parliament
and the democratically elected government should be recognised as
enjoying a limited margin of discretion, regarding the stage of
development of social attitudes, when and how fast to act, how far
consultation was required and what form any appropriate legislative
changes should take.”
32. In as much as it can be suggested that what Lord Mance described as “a
margin of discretion” is analogous to the margin of appreciation applied by the
Strasbourg court, it must be noted that, even on the supranational plane, the margin
in cases where distinctions are made on the ground of sexual orientation is narrow –
Vallianatos at paras 84 and 85; and Pajić v Croatia (2016) (Application no
68453/13) para 59. The margin of discretion available to the government and
Parliament in this instance, if it exists at all, must be commensurately narrow.
Moreover, as Ms Monaghan has submitted (see para 20.3 above), where the
difference in treatment is based on sexual orientation, a court must apply “strict
scrutiny” to the assessment of any asserted justification and particularly convincing
and weighty reasons to justify it are required.
33. In this context, it is significant that the government consciously decided that
it would not extend civil partnerships to different sex couples, at the time that it
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introduced MSSCA. And, as Andrews J observed in para 65 of her judgment,
quoting Mr Squires (who then appeared on behalf of the respondent), the
government had not only reached that definite conclusion, it elected to carry out a
review before deciding what, if anything, it should do. Indeed, when, in its
estimation, that review proved inconclusive, the government decided “to wait for a
time until further hard evidence was available to enable it to take a considered view
as to what to do”. 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, this displayed, at best, an attitude of some insouciance.
34. Moreover, although it is now accepted that the inequality of treatment
between the two groups has engaged article 8 and, when read with article 14, has
constituted an interference with the appellants’ rights which has required to be
justified from the date of the coming into force of MSSCA, this cannot have been
the government’s view at that time. The respondent had argued before Andrews J
and the Court of Appeal that article 8 was not engaged. If that argument had
succeeded, no need for justification would have arisen. One can only infer, therefore,
that, certainly before the judgments of the Court of Appeal were handed down, the
government did not consider that steps needed to be taken to eliminate unlawful
discrimination. The decision to carry out investigations as to the way forward must
have been related to circumstances unconnected with the government’s perception
of its obligations under ECHR.
35. Andrews J rejected the suggestion that the present case was analogous to
Vallianatos, stating, at para 71 of her judgment that “it is far closer to Schalk, in
which there was recognition by the ECtHR that a member state should be afforded
a relatively generous leeway as to the timing of introducing legislative changes in
areas of social policy where there is no clear consensus among member states”. I do
not agree that the situation of the appellants is close to that of Schalk and Kopf or
that some analogies with Vallianatos cannot be drawn.
36. Indeed, in my view, the case of Schalk and Kopf provides an obvious contrast
to the circumstances of the present appeal. In that case the enactment of the
Registered Partnership Act was the product of evolving societal acceptance of the
need to provide some legal recognition of same sex partnerships. Here the inequality
between same sex and different sex couples is the creature of Parliament. In one
instance (the Registered Partnership Act in the Schalk and Kopf case), one can
understand that the timing by the legislature of a measure to reflect the developing
changes in attitude should be considered to fall within the government’s margin of
appreciation. In the case of MSSCA, however, it was Parliament itself that brought
about an inequality immediately on the coming into force of the Act, where none
had previously existed. The redressing by the legislature of an imbalance which it
has come to recognise is one thing; the creation of inequality quite another. To be
allowed time to reflect on what should be done when one is considering how to deal
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with an evolving societal attitude is reasonable and understandable. But to create a
situation of inequality and then ask for the indulgence of time – in this case several
years – as to how that inequality is to be cured is, to say the least, less obviously
deserving of a margin of discretion.
37. In Vallianatos, most of the applicants were in established same sex
relationships. In November 2008 the Civil Unions Law came into force in Greece.
It created civil unions as an official form of partnership other than marriage. Such
unions could only be entered by two adults of different sex. The applicants claimed
that the failure to make civil unions available to same sex couples breached their
rights under article 14, taken in conjunction with article 8. The government claimed
that the restriction of civil unions to different sex couples was to enhance the legal
protection of children born outside marriage and indirectly to strengthen the
institution of marriage.
38. At para 85 of its judgment the court said:
“In cases in which the margin of appreciation afforded to states is
narrow, as is the position where there is a difference in treatment based
on sex or sexual orientation, the principle of proportionality does not
merely require the measure chosen to be suitable in principle for
achievement of the aim sought. It must also be shown that it was
necessary, in order to achieve that aim, to exclude certain categories
of people – in this instance persons living in a homosexual relationship
– from the scope of application of the provisions at issue …”
39. Applying that approach to the present case, it is for the government and
Parliament to show that it was necessary, in order to achieve the aim of having time
to consider what to do about the difference in treatment between same sex and
different sex couples brought about by MSSCA, to exclude different sex couples
from CPA. One can understand why the government might have wished to maintain
the status quo while considering various options. But that is a far cry from saying
that it was necessary to exclude different sex couples from the institution of civil
partnership.
40. It appears to me, therefore, that some, albeit not perfect, analogy can be
drawn between Vallianatos and the present case. In Vallianatos same sex couples
were excluded from civil unions. In this instance, different sex couples are being
denied the range of choice available to same sex couples. In the present case, of
course, as the respondent has been at pains to point out, the inequality of treatment
arose because of the enlarging of options for same sex couples. It is also observed
that the appellants do not suggest that before the coming into force of MSSCA, there
Page 15
was an interference with their article 8 rights, when read together with article 14.
But this is nothing to the point. The government and Parliament must be taken to
have realised that, when MSSCA came into force, an inequality of treatment would
inevitably arise. For the reasons given earlier, one must assume that they did not
recognise that that inequality would engage article 8. But, again, that is not relevant.
What must now be shown is that it was necessary to exclude different sex couples
from civil partnerships for an indefinite period, while inquiries, consultations and
surveys were conducted and a decision based on these could be made. I consider
that that necessity has not been established.
Legitimate aim
41. The four-stage test designed to establish whether an interference with a
qualified Convention right can be justified is now well-established. The test and its
four stages were conveniently summarised by Lord Wilson in R (Aguilar Quila) v
Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621,
para 45. They are (a) is the legislative objective (legitimate aim) sufficiently
important to justify limiting a fundamental right; (b) are the measures which have
been designed to meet it rationally connected to it; (c) are they no more than are
necessary to accomplish it; and (d) do they strike a fair balance between the rights
of the individual and the interests of the community? (See also Lord Reed at para 75
of Bank Mellat v HM Treasury (No 2) [2014] AC 700 and Lord Sumption in the
same case at para 20).
42. The legitimate aim articulated by the respondent in the present appeal is the
need to have time to assemble sufficient information to allow a confident decision
to be made about the future of civil partnerships. But, as Lord Bingham stated in
para 68 of A v Secretary of State for the Home Department (para 20.2 above),
“[w]hat has to be justified is not the measure in issue but the difference in treatment
between one person or group and another”. To be legitimate, therefore, the aim must
address the perpetration of the unequal treatment, or, as Ms Monaghan put it, the
aim must be intrinsically linked to the discriminatory treatment. In this case it does
not and is not. The respondent does not seek to justify the difference in treatment
between same sex and different sex couples. To the contrary, it accepts that that
difference cannot be justified. What it seeks is tolerance of the discrimination while
it sorts out how to deal with it. That cannot be characterised as a legitimate aim.
43. In reaching its conclusion that a wait and see (or, as Beatson LJ called it, “a
wait and evaluate”) policy amounted to a legitimate aim, the Court of Appeal relied
on the decision of ECtHR in Walden v Liechtenstein (Application No 33916/96)
(unreported, 16 March 2000). In that case the applicant was a pensioner who
complained that calculation of the joint pension due to himself and his wife by
reference only to his own contribution record discriminated unfairly against couples
Page 16
where the wife had a better contribution record than the husband. A new law,
correcting this imbalance was introduced on 1 January 1997. (In May 1996 the State
(Constitutional) Court had found the law to be unconstitutional but refused to set it
aside as it would have been disruptive and contrary to good administration.)
44. The applicant complained that, until the new law had come into force, his
Convention rights had been violated. The Strasbourg court agreed with the domestic
court that the previous law had infringed the applicant’s rights under article 14 taken
with Article 1 of Protocol 1, but that the refusal to quash the discriminatory law was
equivalent to a stay. The temporary preservation of the offending law served the
legitimate aim of maintaining legal certainty, and the period of just over six months
to rectify the position was proportionate.
45. This decision was described by Lord Hoffmann in R (Hooper) v Secretary of
State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681 as “puzzling”
– para 62. Hooper concerned benefits under the Social Security Contributions and
Benefits Act 1992 which were payable to widows, but not to widowers. The Welfare
Reform and Pensions Act 1999 amended the 1992 Act so as to provide survivors’
benefits payable to both sexes on the death of their spouses with effect from 9 April
2001, whilst preserving existing rights. The widower claimants alleged a breach of
article 14 taken with article 8 for the period between the coming into force of the
Human Rights Act 1998 in October 2000 and the coming into effect of the 1999 Act
during which period they did not receive survivor’s benefits.
46. Although the claimants’ appeal was dismissed on other grounds, the House
of Lords rejected the argument based on the Walden decision, Lord Hoffmann
observing at para 62:
“… I can quite understand that if one has a form of discrimination
which was historically justified but, with changes in society, has
gradually lost its justification, a period of consultation, drafting and
debate must be included in the time which the legislature may
reasonably consider appropriate for making a change. Up to the point
at which that time is exceeded, there is no violation of a Convention
right. But there is no suggestion in the report of Walden v
Liechtenstein that the discrimination between married couples was
ever justified and I find it hard to see why there was no violation of
Convention rights as long as the old law remained in place.”
It is clear from this passage that Lord Hoffmann rejected the notion that an otherwise
unjustified discriminatory measure can be justified by a need for a period to change
the law. The present case does not involve a form of discrimination that was
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historically justified but has gradually lost its justification. The exact reverse is the
case here. A new form of discrimination was introduced by the coming into force of
MSSCA. There was, therefore, in the words of Lord Hoffmann, no reason to
conclude that this discrimination “was ever justified”.
Rational connection
47. If the aim of the government and Parliament could properly be described as
legitimate, I accept that there would be a rational connection between the aim and
the delay in addressing the discrimination.
Less intrusive means
48. It is accepted by all that, before MSSCA came into force, there was no
discrimination against same sex or different sex groups. Since Parliament and the
government are to be taken as having realised that discrimination would begin with
the Act taking effect, it seems to me that at least two options were available. First,
its introduction could have been deferred until the researches which are now deemed
necessary had been conducted. Secondly, the government could have extended the
institution of civil partnerships to different sex couples until those researches had
been completed. (A third, but admittedly less palatable, option would have been to
suspend the availability of civil partnerships to same sex couples, while the inquiries
were carried out.)
49. Each of these options would have allowed the aim to be pursued with less,
indeed no, discriminatory impact. In the Court of Appeal, Briggs LJ suggested that
the second of the options outlined above was a “practicable impossibility” but it is
not clear on what material this conclusion was based. One can certainly recognise
that it would not be a particularly attractive proposition to introduce civil
partnerships for different sex couples as an interim measure, if ultimately, they were
to be abolished altogether but that does not make that course impossible as a matter
of practicability.
50. I should make it unequivocally clear that the government had to eliminate the
inequality of treatment immediately. This could have been done either by abolishing
civil partnerships or by instantaneously extending them to different sex couples. If
the government had chosen one of these options, it might have been theoretically
possible to then assemble information which could have influenced its longer term
decision as to what to do with the institution of civil partnerships. But this does not
derogate from the central finding that taking time to evaluate whether to abolish or
extend could never amount to a legitimate aim for the continuance of the
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discrimination. The legitimate aim must be connected to the justification for
discrimination and, plainly, time for evaluation does not sound on that. It cannot be
a legitimate aim for continuing to discriminate.
51. Since the less intrusive means stage of the proportionality exercise did not
feature to any significant extent in oral argument and as it is unnecessary for me to
reach a final view in order to dispose of the appeal, I say nothing more on the subject.
A fair balance
52. If the interference with the appellants’ rights could be regarded as being in
pursuit of a legitimate aim, I would have no hesitation in concluding that a fair
balance between their rights and the interests of the community has not been struck.
The point at which the now admitted discrimination will come to an end is still not
in sight. The interests of the community in denying those different sex couples who
have a genuine objection to being married the opportunity to enter a civil partnership
are unspecified and not easy to envisage. In contrast, the denial of those rights for
an indefinite period may have far-reaching consequences for those who wish to avail
of them – and who are entitled to assert them – now. As Briggs LJ observed in the
Court of Appeal, some couples in the appellants’ position “may suffer serious fiscal
disadvantage if, for example, one of them dies before they can form a civil
partnership”.
53. Moreover, undertaking “research with people who are current civil partners
to understand their views on civil partnership and marriage, and their future
intentions and preferences” – (command paper para 20) is, at best, of dubious
relevance to the question of whether the continuing discrimination against different
sex couples can be defended. Given that further inquiries are said to be necessary in
order to decide how to eliminate the unequal treatment suffered by different sex
couples, the government’s investigations should surely have been geared to
determining the extent of demand for civil partnerships among those of different
genders who had a settled and authentic objection to being married.
Institutional competence
54. This court was encouraged to refrain from making a declaration of
incompatibility because, it was said, the decision not to take action about extending
or abolishing civil partnerships was one which fell squarely within the field of
sensitive social policy which the democratically-elected legislature was preeminently suited to make.
Page 19
55. That argument has significantly less force if the decision not to take action at
present does not pursue a legitimate aim but it must nevertheless be considered for
what principled basis it may have.
56. The starting point is that the court is not obliged to make a declaration of
incompatibility when it finds that a particular provision is not compatible with a
Convention right. Section 4(2) of HRA provides that if the court is satisfied that the
provision is incompatible with a Convention right, it may make a declaration of that
incompatibility. The provision clearly contemplates that there will be circumstances
in which the court considers that an item of primary legislation is not compatible
with a Convention right but that it is not appropriate to have recourse to the section
4(2) power.
57. The circumstances in which such self-restraint should be exercised have not
been comprehensively catalogued. This is understandable. Different considerations
may favour reticence. Others may call for a declaration to be made. An obvious
example where reticence was considered appropriate was the case of R (Nicklinson)
v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657 where what
was at stake was the compatibility of section 2 of the Suicide Act 1961 (which makes
encouraging or assisting a suicide a criminal offence) with article 8 of the
Convention. At the time of this court’s decision, Parliament was due to debate the
issues arising in the appeal in the context of the Assisted Dying Bill introduced by
Lord Falconer into the House of Lords on 5 June 2014. It was argued that the court
should defer expressing any final view of its own regarding the compatibility of
section 2 with article 8 until Parliament had first considered that Bill. A clear
majority of the nine-member panel concluded that the issue was one that lay within
the institutional competence of the Court, but, of that majority, only two considered
that a declaration of incompatibility should be made. The others decided that, as
Parliament was on the point of considering Lord Falconer’s Bill it would be
premature for the court to consider making a declaration of incompatibility.
Parliament should first have the opportunity to consider the issues for itself.
58. I do not consider that Nicklinson sets a precedent for reticence in this case.
The amendment to Mr Loughton’s Bill which the government has agreed does no
more than formalise the consultation process to which it was already committed. It
does not herald any imminent change in the law to remove the admitted inequality
of treatment. Even if it did, this would not constitute an inevitable contraindication
to a declaration of incompatibility. In Bellinger v Bellinger (Lord Chancellor
intervening) [2003] 2 AC 467 it was said that where the court finds an
incompatibility, it should “formally record that the present state of statute law is
incompatible with the Convention” – para 55.
59. Observations by Lord Hobhouse at para 79 are especially pertinent:
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“The Government cannot yet give any assurance about the
introduction of compliant legislation. There will be political costs in
both the drafting and enactment of new legislation and the legislative
time it will occupy. The incompatibility having been established, the
declaration under section 4 should be made.”
60. In this context, it is salutary to recall that a declaration of incompatibility does
not oblige the government or Parliament to do anything. This point was made in para
343 of Nicklinson:
“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.”
61. In my view, there is no reason that this court should feel in any way reticent
about the making of a declaration of incompatibility. To the contrary, I consider that
we have been given the power under section 4 of HRA to do so and that, in the
circumstances of this case, it would be wrong not to have recourse to that power.
Conclusion
62. I would allow the appeal and make 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) are incompatible with article 14 of ECHR taken in conjunction with
article 8 of the Convention.