It has recently been announced that the challenge to the prohibition on opposite sex couples entering into civil partnerships in England and Wales is due to be heard by the Court of Appeal in November 2016. This announcement provides an opportunity to consider what was decided in High Court.
The Marriage (Same Sex Couples) Act 2013 permits same-sex couples to marry and enabled those couples who were already in civil partnerships to convert those partnerships into marriages. Rather than abolish civil partnerships altogether or extend them to opposite-sex couples, the Coalition Government decided to wait to ascertain how the availability of marriage impacted upon the demand for civil partnerships.
The claimants, an opposite-sex couple in a committed and long-term relationship, preferred to formalise their relationship through a civil partnership, rather than marriage, an option unavailable to them under current law. The claimants contended that in consequence of the enactment of the Marriage (Same Sex Couples) Act 2013, the provisions in the Civil Partnership Act 2004 limiting civil partnerships to same-sex couples were incompatible with Article 14 of the European Convention on Human Rights (“ECHR”) taken in conjunction with Article 8. The claimants sought a declaration of incompatibility, pursuant to section 4 of the Human Rights Act 1998.
Hearing the case, Mrs Justice Andrews held that there was no impact upon Article 8, placing reliance upon two cases: Secretary of State for Work and Pensions v M and Wilkinson v Kitzinger. In the latter case, the High Court, drawing on M, held that the Human Rights Act 1998 did not impose an obligation upon the UK to recognise the Canadian marriage of a lesbian couple as a marriage (as opposed to a civil partnership). Her ladyship concluded:
The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same-sex couples, does not amount to unlawful state interference with the claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 Act.
Her ladyship nevertheless proceeded to consider whether the unequal treatment could be justified. The issue of whether the decision to afford different types of legal recognition to couples of different sexual orientation fell within the state’s margin of appreciation did not arise because the Government intends to return to the issue of whether civil partnerships ought to be extended to opposite-sex couples.
The true basis of the complaint therefore was the failure of the Government to indicate when it will return to this issue. Interestingly, Mrs Justice Andrews held that just because opposite-sex couples have not been historically subject to adverse treatment on the basis of their sexual orientation did not necessarily mean that the more exacting standard of strict scrutiny ought to apply to them. Her ladyship accepted it was legitimate for the Government to wait for further information about the practical impact of same-same marriage on civil partnerships, regardless of impact this would have on opposite-sex couples such as the claimants.
Three aspects of her ladyship’s analysis are worth highlighting here. First, the cases of M and Wilkinson, relied upon in determining the obligations under Article 8, have been rightly criticised by Professor Robert Wintemute as outmoded and overly strict. These cases would, for example, prevent same-sex couples in Northern Ireland from arguing that the failure to extend same-sex marriage to Northern Ireland constitutes a violation of Article 14 in conjunction with Article 12.
Second, the judgment potentially permits the unequal treatment complained of to continue indefinitely. If it is found that state action is discriminatory, then surely there must be an obligation to remedy that discrimination within a reasonable timeframe. Her ladyship’s conclusion that the failure to provide an alternative route for opposite-sex couples is of “marginal impact” underappreciates the fact that for opposite-sex couples such as the claimants, marriage is not a viable alternative. They are therefore denied the benefits and protection state recognition of their relationship would provide.
Third, it is questionable whether measures treating opposite-sex couples unequally on the ground of their sexual orientation are subject to the same strict scrutiny that would apply in the context of a same-sex couple. The European Court of Human Rights has typically invoked this standard in the context of groups who are vulnerable and have traditionally been marginalised. It is debatable, therefore, whether the same standard ought to apply.
Whether the Court of Appeal will take a different approach to the case is difficult to predict. The possibility that it could do so, however, might cause the Government to set out its timeframe for returning to the issue of civil partnerships.
Presumably if the Government abolished c.p. altogether that would not be problematic in HRA terms?