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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)
Factual and Procedural Background
The Appellants are a different-sex couple who have a conscientious objection to marriage but wish to enter into a legally-recognised relationship. Under the Civil Partnership Act 2004 (“CPA”) civil partnerships are available only to same-sex couples. The Marriage (Same Sex Couples) Act 2013 (“MSSCA”) subsequently permitted marriage for same-sex couples without repealing the CPA. Consequently, from 13 March 2014 same-sex couples could choose either marriage or civil partnership, whereas different-sex couples were confined to marriage, creating acknowledged unequal treatment.
Government consultations in 2012 and 2014, and later a 2018 Command Paper, considered three options: abolishing civil partnerships, closing them to new entrants, or extending them to different-sex couples. No consensus was reached and the Government adopted a “wait-and-evaluate” stance while collecting further data, indicating no firm decision would be taken before 2020.
The Appellants sought judicial review, claiming that sections 1 and 3 of the CPA (restricting civil partnerships to same-sex couples) violate their rights under Article 14 (non-discrimination) read with Article 8 (private and family life) of the European Convention on Human Rights (“ECHR”). The High Court dismissed the claim; the Court of Appeal (majority) upheld dismissal, holding the inequality temporarily justified by the Government’s evaluation period. The present appeal comes before the Supreme Court.
Legal Issues Presented
- Whether the exclusion of different-sex couples from civil partnerships under sections 1 and 3 of the CPA is incompatible with Article 14 ECHR read with Article 8.
- Whether the Government’s policy of delaying reform (“wait-and-evaluate”) constitutes a legitimate and proportionate justification for the admitted unequal treatment.
- If incompatibility is established, whether the Court should issue a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”).
Arguments of the Parties
Appellants' Arguments
- The burden of proving justification lies on the Respondent.
- The focus must be on the discriminatory effect, not the overall legislative scheme.
- Because the distinction is based on sexual orientation, “strict scrutiny” applies and “particularly convincing and weighty reasons” are required.
- The four-stage proportionality test (legitimate aim, rational connection, least intrusive means, fair balance) must be satisfied; the Respondent fails at every stage.
- Allowing time to decide how to remove discrimination cannot itself constitute a legitimate aim; the Government could have avoided discrimination by abolishing civil partnerships or immediately extending them to different-sex couples.
Respondent's Arguments
- The objective is to obtain reliable post-MSSCA data before determining whether to abolish, retain, or extend civil partnerships; this constitutes a legitimate social-policy aim.
- Changes in family-law policy have historically been incremental; Parliament is entitled to a margin of discretion on timing.
- Maintaining the status quo pending evaluation is rationally connected to the aim and proportionate given administrative and societal complexities.
- Interim extension of civil partnerships to different-sex couples would be a “practicable impossibility” if the eventual decision were abolition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Salgueiro Da Silva Mouta v Portugal (1999) 31 EHRR 47 | Sexual orientation is a protected “other status” under Article 14. | Confirms differential treatment here is on a prohibited ground. |
| Petrovic v Austria (1998) 33 EHRR 14 | Article 14 is not free-standing; discrimination must fall within the ambit of another right. | Supports requirement to link Article 14 claim with Article 8. |
| Schalk and Kopf v Austria (2010) 53 EHRR 20 | States may have a margin of appreciation in timing reforms on partnership recognition. | Distinguished; unlike Austria, the UK itself created the inequality by enacting MSSCA. |
| Vallianatos v Greece (2013) 59 EHRR 12 | Narrow margin where discrimination is based on sexual orientation; necessity requirement. | Court analogised: Government must show necessity for excluding different-sex couples, which it failed to do. |
| Oliari v Italy (2015) 65 EHRR 26 | No need to prove specific detriment to engage Article 8. | Supports finding that access to civil partnership falls within Article 8 ambit. |
| Ghaidan v Godin-Mendoza [2004] 2 AC 557 | Once discrimination is shown within Article 14, burden shifts to the state to justify. | Placed evidential burden on Respondent. |
| R (Aguilar Quila) v SSH [2012] 1 AC 621 | Four-stage proportionality test; burden of justification. | Framework adopted for analysis. |
| A v SSH [2005] 2 AC 68 | Justification must relate to the discriminatory effect, not the overall scheme. | Used to reject Government’s reliance on evaluation period as legitimate aim. |
| AL (Serbia) v SSH [2008] 1 WLR 1434 | Same principle as above. | Cited in support of Appellants. |
| EB v France (2008) 47 EHRR 21 | “Particularly convincing and weighty reasons” needed where distinction is sexual orientation. | Informed strict-scrutiny standard applied. |
| Karner v Austria (2003) 38 EHRR 24 | Same as EB v France. | Reinforced high threshold for justification. |
| Bank Mellat (No 2) [2014] AC 700 | Detailed structure of proportionality analysis. | Supreme Court followed four-stage test. |
| R (Tigere) v SSBIS [2015] 1 WLR 3820 | Restates proportionality framework. | Cited in Appellants’ proportionality submission. |
| Walden v Liechtenstein (ECtHR, 2000) | Temporary continuation of discriminatory law may be justified to maintain legal certainty. | Court of Appeal relied on Walden; Supreme Court distinguished it as inapplicable. |
| R (Hooper) v SSWP [2005] 1 WLR 1681 | Critiques Walden; unjustified discrimination cannot survive merely to allow legislative change. | Used to undermine Respondent’s reliance on evaluation period. |
| R v DPP, Ex p Kebilene [2000] 2 AC 326 | Certain areas allow executive “area of judgment.” | Cited by Respondent; Court held any such latitude is very narrow here. |
| M v SSWP [2006] 2 AC 91 | Limited margin of discretion in complex social-security reforms. | Respondent cited; Court found margin narrower in sexual-orientation cases. |
| Pajić v Croatia (ECtHR 2016) | Narrow margin when discrimination is sexual orientation. | Supports strict scrutiny. |
| In re G (Adoption: Unmarried Couple) [2009] 1 AC 173 | “Margin of appreciation” doctrine does not apply domestically. | Used to reject Respondent’s margin argument. |
| Nicklinson v MoJ [2015] AC 657 | Circumstances where court may refrain from declaration of incompatibility. | Court distinguished; no pending legislation justified reticence here. |
| Bellinger v Bellinger [2003] 2 AC 467 | When incompatibility is found, court should formally declare it. | Guided decision to issue declaration. |
Court's Reasoning and Analysis
The Supreme Court unanimously held that the differential treatment of different-sex couples violates Article 14 read with Article 8 and is not justified.
Legitimate Aim: The Court ruled that the Government’s aim—taking time to decide how to remove discrimination—does not relate to the discrimination itself and therefore cannot be “legitimate” for Article 14 purposes.
Proportionality: Even if data-gathering were a legitimate social-policy aim, the Government failed to show that excluding different-sex couples was necessary. Less intrusive alternatives (e.g., immediate extension or deferral of MSSCA commencement) were available. The continued exclusion lacks a fair balance, potentially causing serious fiscal and personal detriment to affected couples.
Margin / Area of Judgment: Domestic courts do not apply the Strasbourg “margin of appreciation.” Any domestic margin is especially narrow where sexual-orientation discrimination is involved. Precedents cited by the Respondent (e.g., Schalk, M, Kebilene) did not justify an open-ended evaluation period for a discrimination Parliament itself created.
Distinguishing Authorities: The Supreme Court rejected reliance on Walden (temporary delay to maintain legal certainty) because MSSCA introduced a new and immediately unjustified inequality, not a historical relic awaiting adjustment.
Declaration of Incompatibility: Exercising its discretionary power under section 4 HRA, the Court considered that no imminent legislative remedy existed and that a declaration merely signals incompatibility without dictating Parliament’s response. Institutional-competence concerns therefore did not warrant restraint.
Holding and Implications
HOLDING: Sections 1 and 3 of the Civil Partnership Act 2004, insofar as they prevent different-sex couples from forming a civil partnership, are INCOMPATIBLE with Article 14 ECHR read with Article 8.
Implications: The declaration does not strike down the provisions but places the onus on Parliament to amend the law. Until legislation changes, the discrimination formally recognised by the Court persists, but the judgment exerts significant pressure for reform and clarifies that “wait-and-evaluate” cannot justify ongoing sexual-orientation discrimination.
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