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Introduction and factual backgroundme-individual

The appellants have a “genuine and deeply rooted” objection to marriage based on what they see as its patriarchal trappings. They wish to enter into a civil partnership but the Civil Partnerships Act (“CPA”) 2004, s 3(1) imposes a bar (“the bar”) on opposite sex couples from entering into civil partnerships. Whilst The Marriage (Same Sex Couples) Act 2013 (“the 2013 Act”) finally extended the right of marriage to same-sex couples, the bar remains in place.

The appellants argued that the bar discriminates against them as an opposite-sex couple. This is contrary to their right to legal recognition of their relationship regardless of sexual orientation, pursuant to art 8, read together with ECHR, art 14. Accordingly, they invite the court to declare CPA 2004, s 3(1) incompatible with their ECHR rights, pursuant to the Human Rights Act (“HRA”) 1998, s 4.

The Government (now) accepts that the bar is discriminatory but argues that this justified because the Government needs to “wait and see” how the extension of marriage to same-sex couples will affect the viability of civil partnerships. This matters because, among the options being considered is the abolition of civil partnerships altogether. In those circumstances, the appellants’ complaint of discrimination would fall away, since they would be in no worse position than a same-sex couple conscientiously opposed to marriage.

The Government has conducted two recent public consultations on the future of civil partnerships. There has also been some statistical analysis by the Office of National Statistics. These are addressed in detail in an appendix to the judgment of Arden LJ. In short summary, the picture is mixed. Whilst there appears to be public support for retention and extension of civil partnerships to opposite-sex couples, the number of civil partnerships being entered into has dropped overall by 85% since the introduction of same-sex marriage. That said, the number of civil partnerships being entered into by those aged over 50 has increased.

The Government did not make detailed submissions on the existing data. Instead, it argued that it needed more time to accumulate data to assess the operation of civil partnerships in their current form.

The issue on appeal

The Government argued strongly in the courts below that the appellants’ case did not fall within the ambit of art 8. It lost that argument in the Court of Appeal: [2017] EWCA Civ 81, having succeeded at first instance: per Andrews J, [2016] EWHC 128 (Admin). However, the Government abandoned its appeal against this finding at the door of the Supreme Court. Therefore, this appeal is concerned with “objective justification”. Namely, per Beatson LJ at [152]):

[w]hether the Government’s decision not to immediately extend civil partnerships to different-sex couples (or to immediately abolish or phase them out) but instead, to maintain the status quo and wait and see what the impact on civil partnerships of the extension of marriage to same-sex couples will be, before deciding how to address the situation, is objectively justifiable.”

Justification in the courts below

In order to be “justified” for the purposes of art 14, the discrimination complained of must pursue a legitimate aim and be a proportionate means of achieving that aim.

A legitimate aim?

The courts below were all agreed that the Government had identified and sought to pursue the legitimate aim (per Beatson LJ at [155]), of:

“avoid[ing] the unnecessary expenditure of large amounts of taxpayers’ money as well as the disruption and the potential waste of time and effort that could be caused by immediate legislative change [to the 2004 Act], by taking a reasonable amount of time to make up its mind about when, and how best to deal with the situation.”

This was in the face of the appellants’ submissions that this could not be a legitimate aim at all. This was said to be because the purpose of the delay was not directly to address the discrimination against opposite-sex couples but to take account of developments in respect of same-sex couples and wider public interest considerations.

Proportionality

The Court of Appeal by a majority (Beatson LJ with Briggs LJ concurring but Arden LJ dissenting) also agreed with Andrews J that the Government’s policy was proportionate. Accordingly, this part of the appeal was dismissed.

The division followed from the differing ways that the Government’s case was perceived. For the majority, it was a case which turned on “the difficult and sensitive policy issues involved and the impact of any decision on the public at large” (per Beatson LJ at [155]).

The majority also emphasised that the discrimination resulted from the “unfinished business” (per Briggs LJ at [172]) of deciding what to do about civil partnerships after the introduction of same-sex marriage rights. Having come into force in March 2014, this was a relatively recent change and the Government was entitled to take more time to “carefully consider” its options.  This was an area in which the Strasbourg court would recognise a wide margin of appreciation. For the same reasons, the domestic courts recognised that this was an issue which fell into a discretionary area of judgment, where they should defer to the Secretary of State. Whilst the impact on the appellants was important, it was one of a number of factors in the proportionality assessment. Endorsing the conclusion of Andrews J, the fact that the appellants could marry, together with the prospect of further legislation in the short-term, meant that the impact on the appellants was “marginal.” For now, the balance fell in favour of the Government (see Beatson LJ at [158]).

The dissenting judgment of Arden LJ

Arden LJ took a different view. It was in this respect that she endorsed the appellant’s objection that the Government still was not proposing directly to address their situation. In “critical respects” this was not about the Government making judgments on the social or moral issues around civil partnerships per se. It was about “the measures which the Secretary of State has put in place to discharge the responsibility of determining how to resolve the issue of discrimination to which the bar gives rise” (per Arden LJ at [98]).

That meant that the Government had to show that a fair balance had been struck between competing interests. The burden on the Government was a strict one, which, in her view, it failed to discharge: see [110]-[117]. When it was subjected to strict scrutiny, the Government’s policy was criticised for being open-ended. It is to be noted that the Government proposed no decisive timetable for action. Even in so far as the Government did propose action, i.e. to consult further, that consultation was confined to obtaining information about same-sex couples’ attitudes to civil partnerships. It could not be assumed that the views and interests of opposite-sex couples would be the same. In addition, the Government had failed to analyse its existing data and offered no information on how it assessed what it relied on as the financial implications of extending civil partnerships, even in the short-term.

The appropriate relief

It is interesting to note that Arden LJ would still have declined the invitation to make a declaration of incompatibility. In this respect, she shared the majority’s concern not to be seen to be micromanaging Government policy (see Arden LJ at [128]-[131], cf Beatson LJ at [162] and Briggs LJ at [175]). She also noted that a Bill was already before Parliament which proposed to extend civil partnerships to opposite-sex couples (the Civil Partnership Act (Amendment) Bill 2015). The implication seems to be that a declaration of incompatibility would have been academic, in the circumstances.

As well as deciding between the two clearly divergent paths taken in the Court of Appeal, it will be interesting to see how the Justices grapple with this familiar but thorny issue of relief, if they are minded to allow the appeal.