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Supreme Court decides law on civil partnerships is incompatible with European Convention on Human Rights

On 27th June 2018 the Supreme Court unanimously decided that the UK’s law on civil partnerships was incompatible with Article 14 (prohibition on discrimination), read in conjunction with Article 8 (right to respect for private and family life), of the European Convention on Human Rights (ECHR), as enshrined in UK law by the Human Rights Act 1998. Civil partnerships are currently only available to same-sex couples but, after a 3 year legal battle, Rebecca Steinfeld and Charles Keidan have successfully managed to get a ‘declaration of incompatibility’ from the Supreme Court* which should lead to a change in the law to make civil partnerships available to all couples.

The case began when Dr Steinfeld and Mr Keidan walked into a registry office in London and tried to form a civil partnership. They were denied on the basis that they were not a same-sex couple. The couple say that they wish to form a civil partnership, as opposed to marrying, because, in their own words:

“Personally, we wish to form a civil partnership because that captures the essence of our relationship and values. For us, a civil partnership best reflects who we are, how we see our relationship and our role as parents – a partnership of equals. We want a civil partnership to cement our commitment and strengthen the security of our family unit.”**

After the refusal a the registry office, the couple launched a judicial review of the government’s policy which, despite unsuccessfully being heard in the High Court and Court of Appeal, culminated in the Supreme Court’s recent decision in their favour.

The government had originally introduced civil partnerships under the Civil Partnership Act 2004. It then extended marriage to cover same-sex couples under the Marriage (Same Sex Couples) Act 2013. However, they did nothing to address the inequality that arose at the point of implementing the 2013 Act: same-sex couples had a choice of civil partnership or marriage whereas heterosexual couples could only marry. The government argued that they needed time to assess the societal impact of the 2013 Act before deciding how to address this inequality. However, Lord Kerr (giving the lead judgment in the Supreme Court case) gave short shrift to this argument. The government had brought about the inequality by its own legislative action and so could not argue that it needed time to assess the situation. He ruled that they should have either removed civil partnerships as an option for same-ex couples, or extended them to heterosexual couples at the time of implementing the 2013 Act.

The government must now address what it will do with civil partnerships; will they be opened up to all people or should the book be closed on them entirely following the introduction of same-sex marriage‎ and the ability to convert a civil partnership? The government has previously indicated that it will not be removing civil partnerships for same-sex couples, as this would create far-reaching problems in respect of those who have already entered into civil partnerships. Therefore, the only solution that appears open to bring UK law into compliance with the ECHR would be extending civil partnerships so that they are available to all couples. Whilst some argue that civil partnerships are no longer necessary for most of the UK, for those in Northern Ireland they remain vital as there is still no option for same-sex couples to marry so an end to civil partnerships would make their union invalid with no option to convert it to a marriage. In light of this, it appears to be a question of when, not if, the government opens up civil partnerships to heterosexual couples. Steinfeld and Keidan have indicated that they will continue their campaign and have written to the Minister for Women and Equalities, Penny Mordaunt, to ask that urgent legislative action be taken.

Kevin Skinner (Partner) & Edward Nicklin (Trainee Solicitor)

*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) (Respondent) [2018] UKSC 32

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