Ali Alrazak, a law lecturer at the University of Wolverhampton, revisits some of the Supreme Court judgments that impacted areas of family law in our '2018 Supreme Court' series: the cases that defined 2018.
Today: R (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)  UKSC 32.
R (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)  UKSC 32
This case dealt with the legal issues regarding a different-sex couple’s inability to successfully enter a civil partnership. The couple had ideological objections to marriage and therefore pursued civil partnership to express their commitment and benefit from the legal ramifications it would bring.
The fundamental issue in this case shifted between discrimination relevant to the European Convention of Human Rights, and whether an established form of discrimination was justifiable in the circumstances. Therefore it is useful to provide a background on the matters prior to the Supreme Court appeal itself.
The Civil Partnership Act 2004 allows for only same-sex couples to enter into a civil partnership. Years later the Marriage (Same Sex couples) Act 2013 was brought in which made same-sex marriages lawful. At the time the Marriage (Same Sex couples) Act 2013 was brought in, Parliament consciously decided to not abolish civil partnerships nor extend them to different-sex couples. The government decided that further investigations were required, though it is worth noting that since the introduction of the Marriage (Same Sex couples) Act 2013 consultations have not addressed an agreed view as to the future legal position of civil partnerships.
Given that civil partnerships were not available to different-sex couples, the appellants in this case, seeking to formalise their relationship via civil partnership, sought a judicial review of the Secretary of State’s ongoing decision to not make changes to civil partnerships with respect to different-sex couples.
The issue was whether a bar on different-sex couples entering into a civil partnership breached the appellants’ rights under article 14 in conjunction with article 8 of the European Convention on Human Rights.
Both the High Court and Court of Appeal dismissed the appellants’ claim. The Court of Appeal agreed that the appellants’ rights under article 8 and 14 were breached. The issue to then consider was whether the breaches of article 14 read with article 8 were justified under the government’s policy of ‘wait and see’ regarding the impact of same-sex marriage on civil partnerships. The Court of Appeal concluded the government’s policy was justified and referred to various European Court of Human Rights Cases that recognised that the state is entitled to flexibility when making legislative changes, such as Schalk and Kopf v Austria 30141/04  ECHR 995.
Arden LJ dissented on this matter and found that the Secretary of State had failed the proportionality test in regards to the justification argued by the respondent. Despite this she also agreed that the Court should not make a declaration of incompatibility as at the time Parliament would have considered the issue in the Civil Partnership Act (Amendment) Bill 2015 and that the Secretary of State was likely to consider the appropriate policy for the future, taking account of the points in this judgment.
The respondent eventually accepted that there was an inequality of treatment between different-sex and same-sex couples regarding civil partnerships that engaged article 14 when read with article 8. The Supreme Court now needed to determine whether there was a justification to this inequality.
The Supreme Court allowed the appeal, confirming that preventing different-sex couples from entering a civil partnership is discriminatory and unjustified on policy grounds. It rejected the respondent’s submission that European Court of Human Rights case law requires a wide margin of appreciation in the timing needed to assess the different relationships and that Parliament should be given a significant measure as to when the change would occur. It held that in regard to domestic law, in the current circumstances the margin is narrow as this was not a matter where Parliament needed time to assess a perceived inequality, but rather needed time to assess an inequality it itself had created.
The Supreme Court addressed the 4 stage test to establish whether an interference with a qualified Convention right can be justified under R (Aguilar Quila) v Secretary of State for the Home Department  UKSC 45.
The stages 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?
The court found that the aim of the respondent to need to have time for data collection in order to address civil partnerships did not satisfy the first requirement. This was on the basis that the respondent was not seeking to justify the difference in treatment between same-sex and different-sex couples but rather to allow the discrimination to continue whilst it determines how to deal with it. The court accepted that if there was a legitimate aim established then there would be a connection between the aim and time delay, addressing the second stage of the test.
Regarding the third stage, the court found that the government needed to have eliminated the inequality of treatment immediately after same-sex marriage had been established. This could have been by abolishing civil partnerships or extending them to different-sex couples. Even if done the court reiterated the point that needing more time to determine what to do with civil partnerships could not be a legitimate aim for allowing the continuation of discrimination.
Finally, regarding a fair balance, the court found that even if a legitimate aim was established, the balance between the rights and interests of the individual and the community had not been met. This is because it is unclear as to the impact on the overall community in denying different-sex civil partnerships, whilst the damage that could occur to those very couples may be far-reaching. Briggs LJ in the Court of Appeal judgment stated that such couples "may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership".