Trinity
Term
[2018] UKSC 32
On appeal from: [2017] EWCA Civ 81
JUDGMENT
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(on the application of Steinfeld and Keidan) (Appellants) v Secretary
of State for International Development (in substitution for the Home Secretary
and the Education Secretary) (Respondent)
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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
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Appellants
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Respondent
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Karon Monaghan QC
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Sir James Eadie QC
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Sarah Hannett
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Dan Squires QC
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(Instructed by Deighton
Pierce Glynn)
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(Instructed by The
Government Legal Department)
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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.
2.
All of that changed with the enactment of the Marriage (Same Sex
Couples) Act 2013 (MSSCA). This made the marriage of same sex couples lawful
from the date of coming into force of the legislation - 13 March 2014. From
that date onwards, same sex couples who marry enjoy the same rights, benefits
and entitlements as do married heterosexual couples. They also share the
responsibilities that marriage brings.
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.”
14.
Although she found that the interference with the appellants’ article 8
and article 14 rights was not justified (because it was not proportionate),
Arden LJ considered that it pursued a legitimate aim - para 105, where she said
that the state had the option to eliminate the discrimination “in any way it
sees fit” and therefore must be entitled to “some time to make its choice.”
15.
The question whether the legislation pursued a legitimate aim occupied
centre field on the hearing of the appeal before this court. In particular, the
argument focused on the question whether the legitimate aim required to be
“intrinsically” connected to the unequal treatment or whether it was enough
that the government’s aim was to take the time necessary to decide which form
of removal of the discrimination was most appropriate.
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).
22.
Counsel emphasised that the various items of legislation were the
product of evolution in societal values and standards; the executive’s and
Parliament’s consideration of those changes; and the measured response of the
legislature to the conclusions that they had reached about them. (Again, I
acknowledge that this is a paraphrase, rather than a verbatim rendition, of Mr
Eadie’s formulation of the argument).
23.
The respondent’s defence of the appeal therefore proceeded principally
on two related but distinct strands. The first was that changes in the law in
this sensitive area of social policy had been incremental. CPA had been
introduced as a reaction to perceived changes in social attitudes and to
address the increasingly recognised anomaly that same sex couples did not have
the opportunity which different sex couples had of legal recognition of their
commitment to each other, with all the benefits that flowed from such
commitment. At the time CPA was enacted, it was judged by the government and
Parliament that society as a whole in the United Kingdom was not ready to
contemplate extending the institution of marriage to same sex couples. It is
not disputed that this was a judgment that they were entitled to make.
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.”
32.
In as much as it can be suggested that what Lord Mance described as “a
margin of discretion” is analogous to the margin of appreciation applied by the
Strasbourg court, it must be noted that, even on the supranational plane, the
margin in cases where distinctions are made on the ground of sexual orientation
is narrow - Vallianatos at paras 84 and 85; and Pajić v Croatia
(2016) (Application no 68453/13) para 59. The margin of discretion available to
the government and Parliament in this instance, if it exists at all, must be
commensurately narrow. Moreover, as Ms Monaghan has submitted (see para 20.3
above), where the difference in treatment is based on sexual orientation, a
court must apply “strict scrutiny” to the assessment of any asserted
justification and particularly convincing and weighty reasons to justify it are
required.
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.
34.
Moreover, although it is now accepted that the inequality of treatment
between the two groups has engaged article 8 and, when read with article 14,
has constituted an interference with the appellants’ rights which has required
to be justified from the date of the coming into force of MSSCA, this cannot
have been the government’s view at that time. The respondent had argued before
Andrews J and the Court of Appeal that article 8 was not engaged. If that
argument had succeeded, no need for justification would have arisen. One can
only infer, therefore, that, certainly before the judgments of the Court of
Appeal were handed down, the government did not consider that steps needed to
be taken to eliminate unlawful discrimination. The decision to carry out
investigations as to the way forward must have been related to circumstances
unconnected with the government’s perception of its obligations under ECHR.
35.
Andrews J rejected the suggestion that the present case was analogous to
Vallianatos, stating, at para 71 of her judgment that “it is far closer to Schalk, in which there was recognition
by the ECtHR that a member state should be afforded a relatively generous
leeway as to the timing of introducing legislative changes in areas of social
policy where there is no clear consensus among member states”. I do not
agree that the situation of the appellants is close to that of Schalk and Kopf
or that some analogies with Vallianatos cannot be drawn.
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.
43.
In reaching its conclusion that a wait and see (or, as Beatson LJ called
it, “a wait and evaluate”) policy amounted to a legitimate aim, the Court of
Appeal relied on the decision of ECtHR in Walden v Liechtenstein
(Application No 33916/96) (unreported, 16 March 2000). In that case the
applicant was a pensioner who complained that calculation of the joint pension
due to himself and his wife by reference only to his own contribution record
discriminated unfairly against couples where the wife had a better contribution
record than the husband. A new law, correcting this imbalance was introduced on
1 January 1997. (In May 1996 the State (Constitutional) Court had found the law
to be unconstitutional but refused to set it aside as it would have been
disruptive and contrary to good administration.)
44.
The applicant complained that, until the new law had come into force,
his Convention rights had been violated. The Strasbourg court agreed with the
domestic court that the previous law had infringed the applicant’s rights under
article 14 taken with Article 1 of Protocol 1, but that the refusal to quash
the discriminatory law was equivalent to a stay. The temporary preservation of
the offending law served the legitimate aim of maintaining legal certainty, and
the period of just over six months to rectify the position was proportionate.
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.
46.
Although the claimants’ appeal was dismissed on other grounds, the House
of Lords rejected the argument based on the Walden decision, Lord
Hoffmann observing at para 62:
“… 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
47.
If the aim of the government and Parliament could properly be described
as legitimate, I accept that there would be a rational connection between the
aim and the delay in addressing the discrimination.
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.
51.
Since the less intrusive means stage of the proportionality exercise did
not feature to any significant extent in oral argument and as it is unnecessary
for me to reach a final view in order to dispose of the appeal, I say nothing
more on the subject.
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.
55.
That argument has significantly less force if the decision not to take
action at present does not pursue a legitimate aim but it must nevertheless be
considered for what principled basis it may have.
56.
The starting point is that the court is not obliged to make a
declaration of incompatibility when it finds that a particular provision is not
compatible with a Convention right. Section 4(2) of HRA provides that if the
court is satisfied that the provision is incompatible with a Convention right,
it may make a declaration of that incompatibility. The provision clearly
contemplates that there will be circumstances in which the court considers that
an item of primary legislation is not compatible with a Convention right but
that it is not appropriate to have recourse to the section 4(2) power.
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.”
60.
In this context, it is salutary to recall that a declaration of
incompatibility does not oblige the government or Parliament to do anything.
This point was made in para 343 of Nicklinson:
“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.”
61.
In my view, there is no reason that this court should feel in any way
reticent about the making of a declaration of incompatibility. To the contrary,
I consider that we have been given the power under section 4 of HRA to do so
and that, in the circumstances of this case, it would be wrong not to have
recourse to that power.
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.
