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Refusal to extend civil partnership to straight couples not unlawful

Government’s ‘wait and see’ policy was proportionate and justified, appeal judges confirm

21 February 2017

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The refusal to extend civil partnerships to opposite-sex couples was not unlawful, appeal judges have confirmed as they rejected an appeal by long-term partners Charles Keidan and Rebecca Steinfeld, who alleged that government policy was discriminatory.

Keidan and Steinfeld had applied for judicial review of the government’s decision, arguing that the restriction in the Civil Partnership Act 2004 breached their right to family life under article 8 of the European Convention on Human Rights.

Last year, the High Court found that heterosexual couples wishing to formalise their relationship could get married and there was therefore no requirement that civil partnership law should be made available to straight couples.

Ruling in Steinfeld & Keidan v Secretary of State for Education [2017] EWCA Civ 81, the Court of Appeal said the applicants’ right to family life was engaged but it refused to make a declaration of incompatibility.

The Marriage (Same-Sex Couples) Act 2013 gave same-sex couples the option to get married while also providing for a review of the operation of civil partnership law. Such a review is yet to take place, with the government still gathering data about the popularity of civil partnership and its possible extension.

This ‘wait and see’ policy was considered an acceptable rationale by the High Court. It served ‘the legitimate aim of avoiding the unnecessary disruption and the waste of time and money that plunging into a programme of legislative reform without waiting is likely to produce,’ Mrs Justice Andrews said in her ruling at the time.

Upholding Andrews J’s approach, the majority in the appeal court, Lord Justices Beatson and Briggs, said that the different treatment of same-sex and opposite-sex couples was proportionate and, therefore, justified.

‘I am far from saying that every aspect of the internal reasoning behind the secretary of state’s “wait and evaluate” policy is beyond criticism,’ Briggs LJ said. ‘But like Beatson LJ I do not regard micromanagement of the government’s detailed thinking about this policy as being part of the business of the courts. The justifiable question is whether a policy of “wait and evaluate” is proportionate, and therefore justifiable, at present. In my view, for the reasons given by my Lord, it is.’

Lady Justice Arden dissented on the justification issue, saying the potential violation of the appellants’ rights was not justified by the current policy.

Arden LJ said the secretary of state’s decision not to propose any change to the Civil Partnerships Act 2004 until she has more statistical data about the number of same-sex couples entering into in civil partnerships, following the introduction of same-sex marriage, was both open-ended and focused solely on the reduction in number of civil partnerships.

‘It is not consistent with that approach that there should be a policy which is completely open-ended,’ she said. ‘Such a policy does not meet the requirement of proportionality. It is not shown to be a proportionate means of bringing the discrimination against the appellants to an end.’

The court also mentioned a private member’s bill introduced by East Worthing and Shoreham MP Tim Loughton, which is seeking to amend the Civil Partnership Act to achieve parity between same-sex and opposite-sex couples.

The ruling ‘effectively puts the Gov on notice that time is running out to come up with proposals to bring equality for opposite-sex couples’, Loughton said in a tweet in response to the judgment.

Loughton’s bill, which has received cross-party support, had its first reading on 13 January and due to have its second reading on 24 March.

The Office for National Statistics shows there were over three million opposite-sex cohabiting couple families in the UK in 2016 and this has been the fastest growing family type over the last 20 years.

Nicola Waldman, a private client lawyer at Hodge Jones & Allen, said the case adds to ‘growing pressure on the government to review the evidence that they have had since 2014 and to consider a change in the law to give the same benefits and legal recognition to those who choose not to marry’.

Lauren Evans, a family lawyer at Kingsley Napley, said it was now ‘imperative that MPs take up the cause and don’t hide behind the government’s current open-ended “wait and see” policy.’

‘Parliament urgently needs to step in to correct the legal hangover created by a government that was unwilling to go all the way first time around with the Civil Partnership Act,’ Evans commented. ‘Everyone, be they straight, gay or bisexual, should have the same freedom to choose how to define their relationship. Parliament has a real opportunity with this bill to finally put an end to this discrimination.’

Graeme Fraser, a partner at Hunters Solicitors, anticipates the claimants may appeal to the European Court of Human Rights.

‘Policy makers should be wary of the ramifications of this case being taken to Europe. They may wish to consider the abolition of civil partnerships completely, since the original intention was to serve same-sex couples who were unable to obtain equivalent rights to opposite-sex couples, as they were unable to marry,’ he explained.

‘Since the enactment of same-sex marriage, the retention of civil partnerships is no longer a necessity. However, same-sex couples who have chosen not to convert their partnership to civil marriage should be allowed to remain in civil partnerships if they so choose.’

However, Fraser said extending civil partnerships to opposite-sex couples would not protect people left vulnerable under the current law where there are no specific cohabitation family law remedies.

‘We must continue to advocate for change to protect people left vulnerable under the current law, many of whom are often women with children who have no financial provision, because their long term partners will not or cannot marry them. Only legislative cohabitation reform can achieve this aim.’

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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