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On appeal from: [2017] EWCA Civ 81

The appeal considered whether the bar on different-sex couples entering into civil partnerships breaches the appellants’ rights under ECHR, art 8, in conjunction with art 14.

The Supreme Court unanimously allowed the appeal, issuing a declaration of incompatibility in respect of the Civil Partnerships Act 2004, ss 1 and 3 with the ECHR to the extent that they preclude an opposite sex couple from entering into a civil partnership.

When Parliament enacted the Marriage (Same-Sex Couples) Act 2013, it consciously decided not to abolish same-sex civil partnerships or to extend them to different-sex couples, despite recognising that this would bring about an inequality of treatment between those in same-sex partnerships and those of different sexes, and that this inequality would be based on the sexual orientation of the two groups. The Government considered that time was required and 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. However, consultations since this point have failed to produce a consensus as to how, or if, the legal position relating to civil partnerships should change and as such the Government decided that there should be further investigation.

The Supreme Court rejected the respondent’s argument that ECtHR case law requires a wide margin of appreciation in relation to the timing of legislative change to recognise different forms of relationship, holding that the concept of a “margin of appreciation” as applied by the ECtHR has no application in domestic law – a national court must confront the interference with an ECHR right and decide whether it is justified. The Court considered that to create a situation of inequality and then ask for time – in this case several years – to determine how that inequality is to be cured is less obviously deserving of a margin of discretion. It concluded that tolerance of discrimination while the respondent determines how best to remedy it cannot be characterised as a legitimate aim. Even if it were, a fair balance between the appellants’ rights and the interests of the community has not been struck because the interests of the community in denying civil partnerships to different-sex couples who do not wish to marry are unspecified, whereas the consequences of this denial for such couples may be far-reaching.

For judgment, please download: [2018] UKSC 32
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (15 May 2018 morning session) (15 May 2018 afternoon session)