This morning, 27 June 2018, the Supreme Court handed down the judgment in R (on the application of Steinfeld and another) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary)  UKSC 32.
This appeal considered whether the bar on different-sex couples entering into civil partnerships breaches the appellants’ rights under Article 14 together with Article 8 of the European Convention on Human Rights.
Partner Hazel Wright commented:
“This appeal is based on a claim that UK legislation is not compatible with the European Convention on Human Rights article 14 (regarding the prohibition of discrimination) and Article 8 (regarding the right to respect for private and family life).
“If the UK is to abide by this ruling, the law will have to be amended. On occasion, we must remember, it can be slow to act where there is political or other meaningful opposition. The Civil Partnership Act 2004 is for same sex couples, as was the Marriage (Same Sex Couples) Act 2013. The legislation for heterosexual couples is expressly for “a man and a woman” (the Marriage Act 1949).
“As recognised by the President of the UK Supreme Court, Lady Hale, the law could be changed to allow heterosexual couples to have civil partnerships, or arguably, could be changed to stop same sex civil partnerships. The number of civil partnerships being registered is falling fairly steadily, although in 2016 there was a slight rise.
“The previous court, the Court of Appeal, said the current law was not incompatible with those Human Rights, as the Government is reviewing the situation.
“Remarkably, this year the Supreme Court is spending a great deal of time reviewing family law issues in light of various societal changes. Today’s decision perhaps implies that there is a mood for reform. In another “test” case, the Supreme Court could also decide to promote the notion of “no fault divorce” in Owens v Owens and allow Mrs Owens to divorce her husband, Mr Owens. In support of Mrs Owens, it is arguably open to the court to decide that previous interpretations of legislation have been wrong on one of two bases: either the legislation does not say what the judges have previously been deciding it says, or that the legislation needs to be updated because society has changed, as has happened with regards to financial settlements on divorce. The wording of the law for both divorce and financial claims is in the same legislation, the Matrimonial Causes Act 2973. This was passed at a time of great movement towards equality of the sexes.
“By adopting the arguments above with regards to the interpretation of divorce law, at last heterosexual couples can rely on the law to give them the same structures for the registration of their relationships. It is unlikely that Parliament would legislate soon for what is such a major change, given its already busy programme. Legislation would be necessary. However, all must recognise that there would be significant opposition for example from the Church.
“The Supreme Court has today pushed English law forward.”