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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> 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 (27 June 2018) URL: http://www.bailii.org/uk/cases/UKSC/2018/32.html Cite as: 45 BHRC 169, [2018] 2 FCR 691, [2020] AC 1, [2018] UKSC 32, [2018] WLR(D) 403, [2018] 3 WLR 415, [2018] HRLR 18, [2018] 4 All ER 1, [2018] 2 FLR 906 |
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[2018] UKSC 32
On appeal from: [2017] EWCA Civ 81
JUDGMENT
R
(on the application of
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before
Lady Hale, President Lord Kerr Lord Wilson Lord Reed Lady Black
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JUDGMENT GIVEN ON |
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27 June 2018 |
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Heard on 14 and 15 May 2018 |
Appellants |
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Respondent |
Karon Monaghan QC |
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Sir James Eadie QC |
Sarah Hannett |
|
Dan Squires QC |
(Instructed by Deighton Pierce Glynn) |
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(Instructed by The Government Legal Department) |
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.
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.
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.
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
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 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.”
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 31 EHRR 47 at para 28. Article 14 does not enshrine a freestanding right to freedom from discrimination - see Petrovic v Austria 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 Schalk and Kopf v Austria 53 EHRR 20; Vallianatos v Greece (2013) 59
EHRR 12; and Oliari v Italy 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).
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 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 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).
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.
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.
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 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.”
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 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.
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 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 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.
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.
“… 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 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
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 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.
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 pre-eminently suited to make.
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:
“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.”
“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.”
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.