Steinfeld and Keidan v Secretary of State for Education 2017

The Court of Appeal have today handed down judgment refusing judicial review of the government’s policy on civil partnerships.

Since 2005 same-sex couples have been able to formalise their relationship with a civil partnership, which gives them broadly same rights and legal protection as marriage.

Since 2014, same-sex couples have had the choice between marriage or civil partnership. This has led to a sharp drop in the number of civil partnerships registered, as the majority of same-sex couples opt for marriage instead. These changes have come at an interesting time for this area of social policy, as there are now over 3 million opposite-sex couples living together in the UK, without any of the legal protections or rights conferred by marriage or civil partnership.

The appeal was brought by a straight couple who challenged their ineligibility for a civil partnership. They wanted their relationship formally recognised with the ensuing legal protection and advantages, and the stability that this would provide for their young child. However, they felt that a civil partnership would better reflect the equal nature of their relationship and objected on ideological grounds to marriage, which they considered patriarchal.

The couple’s argument was that denying them a civil partnership infringed the European Convention on Human Rights, particularly the right to respect for private and family life (Article 8) and the prohibition of discrimination (Article 14).

The government argued that they are currently reviewing the law in this area, as the relatively recent introduction of same-sex marriage has impacted on the take-up of civil partnerships. They argued that they would take more time to assess the impact of the 2014 changes, before deciding on any further change. The argument was made that any immediate legislative changes would be costly and potentially short-lived once a more substantive review had taken place.

The Court of Appeal decided unanimously that there was a potential violation of the couple’s rights. A two-thirds majority of the judges agreed that the ‘wait and evaluate’ stance taken by the Secretary of State was not incorrect, in light of the possibility of an overhaul of policy.

Lord Justice Briggs was keen to dismiss the perception that this was an issue of there being two ‘options’ for same-sex couples and only one for opposite-sex couples. He emphasised instead that there is a group for whom, for ideological reasons, marriage is not a viable option and that for this group, if they are in a relationship with a member of the opposite sex, there is no equivalent alternative.