Section 1(1) of the Civil Partnership Act (CPA) 2004 defines a civil partnership as a relationship between two people of the same sex which is formed when they register as civil partners of each other in England or Wales. With the coming into force of the Marriage (Same Sex Couples) Act 2013, same-sex couples have had the choice between marriage or civil partnership – a choice denied to opposite-sex couples. Ms Steinfeld and Mr Keidan argued that this violated Article 14 (discrimination) of the ECHR, together with Article 8 (respect for private and family life), and sought a declaration of incompatibility under section 4 of the Human Rights Act 1998. Before the Court of Appeal, the argument that their case did not come within the ambit of Article 8 was unanimously rejected; however, a majority held that the interference with their Article 8 rights, read with Article 14, was justified.

In the Supreme Court, the Government, citing Schalk and Kopf v Austria App no 30141/04 (ECtHR, 24 June 2010), argued that, though there was a growing European consensus about the recognition of same-sex couples, there was not yet a majority of states providing for such legal recognition, that the matter of opposite-sex couples fell within the margin of appreciation accorded to states parties to the ECHR and that a significant measure of discretion should be accorded to Parliament in its decision as to the timing of legislative change on civil partnerships. Delivering the sole judgment, Lord Kerr rejected that argument, citing Lady Hale in Re G (Adoption: Unmarried Couple) [2009] 1 AC 173 that it is clear that the doctrine of the ‘margin of appreciation’ as applied in Strasbourg has no application in domestic law. A national court was obliged to decide whether or not the interference with a Convention right was justified; it could not avoid that obligation by reference to a margin of appreciation to be allowed to the Government or Parliament, though it might decide that a measure of latitude should be permitted in appropriate cases, and the situation in Schalk and Kopf was in any event different. Nor did the discrimination have a legitimate aim: the Marriage (Same Sex Couples) Act 2013 had introduced a new form of discrimination and there was no reason to conclude that that discrimination was ever justified.

As to the issue of ‘less intrusive means’, Lord Kerr was absolutely unequivocal that the Government had to eliminate the inequality of treatment at once, either by abolishing civil partnerships or by extending them to opposite-sex couples. If it had chosen one of those 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 did 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 did not sound on that. It could not be a legitimate aim for continuing to discriminate. He was equally dismissive of what might be termed the ‘time for reflection’ argument.

The court allowed the appeal and made a declaration that sections 1 and 3 of the Civil Partnership Act are incompatible with Article 14 ECHR taken in conjunction with Article 8. [Frank Cranmer]