R v Secretary of State for International Development

Discrimination contrary to article 14 of the Convention must be justified by reference to the difference in treatment itself. A government’s wish for time to decide how to remove acknowledged discrimination cannot constitute a legitimate aim for continuing it.

Where differential treatment is based on sexual orientation, particularly convincing and weighty reasons are required. The exclusion must be necessary to achieve the asserted aim. A domestic court must determine justification for itself; the Strasbourg margin of appreciation does not apply domestically.

Legislation which made civil partnership available only to same-sex couples became incompatible with articles 14 and 8 when marriage was extended to same-sex couples. The inequality had to be eliminated immediately, whether by extending or abolishing civil partnerships.

The appellants were a different-sex couple who wished to formalise their relationship through a civil partnership because they held a genuine conscientious objection to marriage. Sections 1 and 3 of the Civil Partnership Act 2004 confined civil partnerships to same-sex couples. Following the Marriage (Same Sex Couples) Act 2013, same-sex couples could choose between marriage and civil partnership, while different-sex couples could only marry.

Andrews J dismissed the application for judicial review: [2016] EWHC 128 (Admin). The Court of Appeal accepted that articles 14 and 8 were engaged but held by a majority that the government’s policy of waiting and evaluating the future of civil partnerships was temporarily justified: [2017] EWCA Civ 81; [2018] QB 519.

The central issue was whether the time sought to decide how to eliminate the inequality could justify its continuation, or was relevant only to remedy.

1. Appeal allowed unanimously. Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Reed and Lady Black agreed, held that sections 1 and 3 of the Civil Partnership Act 2004, so far as they precluded a different-sex couple from entering a civil partnership, were incompatible with article 14 read with article 8 of the Convention.

2. Access to civil partnership fell within the ambit of article 8. No detrimental effect upon the enjoyment of article 8 had to be established. The legislation treated same-sex and different-sex couples differently on the ground of sexual orientation, although they were in analogous positions regarding access to civil partnership. The respondent therefore bore the burden of justifying the inequality.

3. The object requiring justification was the discriminatory difference in treatment, rather than the legislative scheme as a whole. The government’s wish to collect information before deciding whether to abolish, phase out or extend civil partnerships did not address why the discrimination should continue. It sought tolerance of acknowledged discrimination while the government decided how to remove it. That was not a legitimate aim.

4. Differences based on sexual orientation required strict scrutiny and particularly convincing and weighty justification. The government had not shown that excluding different-sex couples was necessary to obtain time for evaluation. Parliament had itself created the inequality when the Marriage (Same Sex Couples) Act 2013 came into force. The government had to remove it immediately, either by abolishing civil partnerships or extending them to different-sex couples.

5. The Strasbourg margin of appreciation did not govern a domestic court’s assessment. Although domestic institutions may receive appropriate latitude, any latitude concerning discrimination based on sexual orientation was narrow. The court had to decide for itself whether justification had been established.

6. Even if the asserted aim had been legitimate, the delay was rationally connected to it but failed to strike a fair balance. The end of the discrimination remained uncertain, the community interest in maintaining it was unspecified, and affected couples could suffer serious consequences. Less discriminatory options had also been available.

7. A declaration under section 4 of the Human Rights Act 1998 was appropriate. The prospect of further consultation supplied no reason for judicial reticence. Such a declaration records incompatibility but leaves Parliament free to decide how, or whether, to respond.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The court declared sections 1 and 3 of the Civil Partnership Act 2004 incompatible with article 14 read with article 8: [2018] UKSC 32.
2. Court of Appeal: The court unanimously held that the complaint fell within article 8, but by a majority held that the government’s policy was temporarily justified: [2017] EWCA Civ 81; [2018] QB 519.
3. High Court, Administrative Court: Andrews J dismissed the judicial review claim, holding that article 8 was not engaged and that, alternatively, the short-term disparity was objectively justified: [2016] EWHC 128 (Admin).