R (Steinfeld) v Secretary of State for International Development

The Supreme Court held that sections 1 and 3 of the Civil Partnership Act 2004, insofar as they prevent different sex couples from entering into a civil partnership, engage article 8 read with article 14 of the European Convention on Human Rights and are not justified. The central legal principles were that the burden of justification lies on the respondent; the proper focus is on the discriminatory effect of the scheme rather than the scheme as a whole; distinctions based on sexual orientation require particularly convincing and weighty reasons; and the conventional four-stage proportionality test applies (legitimate aim, rational connection, necessity/less intrusive means, and fair balance).

The court rejected the respondent's contention that a desire to have time to evaluate the future of civil partnerships constituted a legitimate aim sufficient to justify continuing discrimination. The court found that time for review or evaluation is not intrinsically linked to the discriminatory treatment and therefore cannot furnish a legitimate aim for maintaining it. Less intrusive alternatives (for example, deferring MSSCA or extending civil partnerships to different sex couples pending review) were available. The court concluded that a declaration of incompatibility under section 4 of the Human Rights Act 1998 was appropriate.

Background and facts. The appellants are a different sex couple who conscientiously object to marriage and wish to enter a civil partnership. The Civil Partnership Act 2004 (CPA) limited civil partnerships to same sex couples (sections 1 and 3). The Marriage (Same Sex Couples) Act 2013 (MSSCA) made same sex marriage lawful from 13 March 2014, after which same sex couples could choose between marriage and civil partnership. MSSCA therefore created an inequality of treatment between same sex and different sex couples. The appellants sought judicial review and a declaration under section 4 of the Human Rights Act 1998 that sections 1 and 3 of CPA, to the extent that they exclude different sex couples, are incompatible with article 14 taken with article 8 ECHR.

Procedural history. The claim was dismissed by Andrews J in the High Court ([2016] EWHC 128 (Admin)). The Court of Appeal ([2017] EWCA Civ 81; [2018] QB 519) by a majority held that the interference was, for the time being, justified on the basis of the Government's "wait and evaluate" approach. The case then came to the Supreme Court on appeal.

Issues framed by the court.

• Whether the difference in treatment falls within the ambit of article 8 and thus engages article 14 (the court accepted that it does).
• Whether the Government could justify the continuing discriminatory effect of CPA by reference to a legitimate aim consisting of the time required to decide how best to remedy the inequality created by MSSCA.
• Whether the Government's policy met the proportionality test (rational connection, necessity or availability of less intrusive measures, and fair balance).

Reasoning and subsidiary findings. The court emphasised that national courts must examine justification themselves and cannot simply defer to a broad margin of appreciation. Distinctions based on sexual orientation attract narrow margins and require particularly convincing reasons. The respondent's asserted legitimate aim — obtaining time to gather evidence and decide whether to abolish civil partnerships, extend them to different sex couples, or phase them out — was not intrinsically linked to the discriminatory treatment and therefore could not justify continuing discrimination. The court observed that less discriminatory alternatives existed (for example, postponing MSSCA or extending civil partnerships to different sex couples while reviews proceeded). The court rejected reliance on certain ECtHR authorities as supporting a wide discretion in timing. It considered institutional competence and the section 4(2) discretion under HRA but concluded that a declaration of incompatibility should be made because Parliament had created the inequality and the Government had not shown that continuation was proportionate.

Remedy sought. The appellants sought declarations (including a section 4 declaration under the Human Rights Act 1998) that CPA sections 1 and 3, insofar as they exclude different sex couples, were incompatible with article 8 read with article 14. The Supreme Court allowed the appeal and made the declaration of incompatibility.

The appeal was allowed. The Supreme Court held that sections 1 and 3 of the Civil Partnership Act 2004 (to the extent they exclude different sex couples) engage article 8 read with article 14 and are not justified. The court found that the Government's claimed aim of taking time to evaluate the future of civil partnerships is not a legitimate aim that can justify continuing discrimination, less intrusive alternatives existed, and a fair balance was not struck. A declaration of incompatibility under section 4 of the Human Rights Act 1998 was appropriate.

High Court (Andrews J) - application dismissed: [2016] EWHC 128 (Admin). Court of Appeal (Arden LJ, Beatson LJ, Briggs LJ) - majority held the interference justified: [2017] EWCA Civ 81; [2018] QB 519. Supreme Court (Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lady Black) allowed the appeal: [2018] UKSC 32.