The UK Supreme Court recently ruled in the Steinfeld and Keiden case, that the Civil Partnership Act 2004 (2004 Act), which allows civil partnerships for same-sex couples but not for opposite-sex couples, constitutes discrimination under the European Convention on Human Rights.
A key question is what this means for Scotland, given that family law is devolved.
Supreme Court Judgment
The 2004 Act introduced civil partnerships for same-sex couples in England, Wales, Scotland and Northern Ireland. It was introduced because of changing attitudes to same-sex relationships. The 2004 Act allowed same-sex couples to register their relationship so that they could have almost the same legal rights as opposite-sex couples who marry.
The 2004 Act was challenged by Rebecca Steinfeld and Charles Keidan. The long-term couple wish to enter a legally recognised relationship, but have ideological objections to marriage.
Before the Supreme Court judgment, the UK Government accepted that there was discrimination against opposite-sex couples. This had been established at the Court of Appeal ruling on 21 February 2017. However, it continued to argue that further investigations were required before taking a decision on the future status of civil partnerships. So far, investigations have been inconclusive on how to proceed.
The Supreme Court judgment accepted that, before the UK’s Marriage (Same Sex Couples) Act 2013 came into force, there was no discrimination against same-sex or opposite-sex couples. However, it stressed that the discrimination began when the 2013 Act came into effect. This meant that same-sex couples had two ways to have their relationship registered, whereas opposite-sex couples only had one. Lord Kerr stated:
“I should make it unequivocally clear that the government had to eliminate the inequality of treatment immediately. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different sex couples”.
The Civil Partnership Act 2004 is UK Parliament legislation that extends across the UK. As explained by Justice Scotland:
“Acts of the UK Parliament cannot be struck down by the courts (in line with the doctrine of Parliamentary Sovereignty) but the courts may issue a Declaration of Incompatibility where Convention rights are breached and may ‘disapply’ parts which conflict with EU law. Acts of the Scottish Parliament may be struck down by the courts if they are outwith the Parliament’s ‘legislative competence’, which includes where Convention rights or EU law has been breached”.
Although the judgment did declare the provisions in the Civil Partnership Act 2004 incompatible with the Convention it does not oblige the UK Government or Parliament to do anything. It is less clear what this means for the Scottish Government and Parliament, and no reference is made to Scotland in the judgment.
Civil partnerships for opposite-sex couples in Scotland
The registration of civil partnerships is devolved. However, the Scottish Executive chose to endorse a UK approach for the 2004 Act through a Sewel Motion, ensuring that the Scottish provisions were based on Scots law. It did this for two main reasons:
- The creation of civil partnerships would bring rights and responsibilities that relate to reserved matters, such as immigration, benefits and pensions.
- To avoid cross-border issues where a couple might have certain rights in England, but not in Scotland.
At the time, there was no desire from either government to open up marriage to same-sex couples. There was also no desire to allow civil partnerships for opposite-sex couples. The Scottish Executive said in 2003 that it did not “seek to undermine marriage by extending civil partnership registration to cohabiting couples”.
The Marriage and Civil Partnership (Scotland) Act 2014 introduced marriage for same-sex couples in Scotland. There was debate at the time about whether civil partnerships should be closed to new partnerships, or whether to open civil partnerships up to opposite sex couples. However, the Scottish Government said that it would review allowing civil partnerships for opposite-sex couples in the future.
The Scottish Government published its Review of Civil Partnership: a consultation on 21 September 2015. Three options were set out:
- No change, so that civil partnership would remain available for same sex couples only
- Stopping new civil partnerships being registered at some date in the future
- Introducing opposite sex civil partnership in Scotland.
At that time, it did not favour introducing opposite-sex civil partnerships in Scotland. Its view was that demand would be low, there would be costs, and that opposite sex couples already have the option to marry.
The consultation analysis was published in August 2016. The Scottish Government set out its position in response to the consultation in November 2017, and in PQ response S5W-12913.
It said that it would not legislate now, but would not rule out legislation later in this parliamentary session. This would follow further evidence gathering and evaluation. The Scottish Government also said it was monitoring the Steinfeld and Keiden case.
Finally, the Scottish Government has been consulting on the Gender Recognition Act 2004 (closed 1 March 2018). It has sought views on whether civil partners who can only be the same-sex, should be able to remain in a civil partnership if one of the couple obtains a Gender Recognition Certificate to change their gender.
Response to the judgment
Scottish Government
The Scottish Government stated in a personal communication with SPICe that it, “will carefully consider implications of this judgment for Scotland” (2 July 2018).
UK Government (England and Wales)
Tim Loughton MP introduced the Civil Partnerships, Marriages and Deaths (Registration Etc) Bill 2017-19 on 31 January 2018. This Private Members’ Bill would require the UK Government to prepare a report on whether the law on civil partnerships ought to be changed to bring about equality between same-sex and opposite-sex couples.
The Bill has now been committed to a Public Bill Committee, which will meet on 18 July 2018.
Tim Loughton asked the Prime Minister, on the same day as the judgment, whether she would support an amendment to the Bill “as the quickest way to resolve this illegal inequality and extend civil partnerships to everyone?”. The Prime Minister said the Government was considering the judgment with great care, and would continue to support the commitment to undertake a full review of the operation of civil partnerships.
Penny Mordaunt MP, the Minister for Women and Equalities, said on 3 July 2018 that opinion research on the issue will be published this autumn, a year earlier than planned.
A briefing by the House of Commons Library on the future of civil partnerships (1 February 2018) provides further background on the debate in England and Wales.
Nicki Georghiou, Senior Researcher, Justice, Health and Social Affars Unit