Love and marriage?

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Photo by Drew Coffman on Unsplash

Love and marriage, love and marriage
They go together like a horse and carriage
This I tell you, brother
You can’t have one without the other

(Songwriters: James Van Heusen / Sammy Cahn
Love And Marriage lyrics © Warner/Chappell Music, Inc, Concord Music Publishing LLC)

So sang Frank Sinatra for the first time in 1955, but do love and marriage go together like a horse carriage? In 2019, some people (heterosexual couples) would beg to differ, instead preferring to opt for a civil partnership arrangement.

In Chapter 7 of Introductory Scots Law, it was noted that, according to Section 8 of the Equality Act 2010, a person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.

In 2004, the UK Parliament passed the Civil Partnerships Act 2004, which came into force on 5 December 2005 and permitted same sex couples to enter into legally binding relationships. It should be recalled that the Scottish Parliament gave its consent to the Westminster Parliament to pass this Act for Scotland too.

This legislation also extended the same employment benefits that married couples already enjoyed to same sex couples who entered a civil partnership. In relation to the field of employment rights, the Act applies to employment and pension benefits e.g. a concessionary travel scheme and civil partners of an employee will be entitled to take advantage of these if existing provisions permit a heterosexual partner or spouse of an employee to claim these benefits.

In Bull and Another v Preddy and Another [2013] UKSC 73, UK Supreme Court Justice, Baroness Hale made the following remarks about civil partnerships:

“Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state.”

Since the Supreme Court judgement in Bull and Another v Preddy and Another [2013], the debate has moved on and the UK Parliament passed the Marriage (Same Sex Couples) Act 2013 (which applies to England and Wales) and, in Scotland, the Scottish Parliament passed the Marriage and Civil Partnerships (Scotland) Act 2014.

Both pieces of legislation now permit same sex couples to enter civil i.e. non-religious marriages. Some Christian denominations, for example, the Church of Scotland, the Quakers (or the Society of Friends) and the Scottish Episcopal Church permit their ministers of religion to officiate at same sex marriage ceremonies, but some denominations do not (for instance, the Roman Catholic Church and the Orthodox Churches) which continue to emphasise the traditional view that a marriage is between a man and a woman.

Northern Ireland is the only region in the United Kingdom which currently does not permit same sex couples to enter marriages – although civil partnership is permitted. Readers of a previous blog entry (The ‘Gay Cake’ row) will be aware of this situation.

Heterosexual couples and civil partnerships

Interestingly, however, heterosexual couples were not permitted to enter civil partnerships as a more, modern alternative to marriage. Traditional marriage between a man and woman has been criticised on a number of grounds:

  • It’s seen as very patriarchal i.e. historically it unduly favours the male partner
  • It has religious associations which are not in keeping with the fact that the UK is (in 2019) a much more secular society
  • Some heterosexual couples are increasingly attracted to a more equitable and modern form of legal commitment i.e. civil partnership.

Despite these criticisms of traditional marriage, neither the UK or Scottish Governments have shown a desire to extend civil partnerships to heterosexual couples. That is until very recently and a UK Supreme Court decision has now made reform of the institution of marriage and civil partnership essential on the basis of a human rights challenge.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016].

In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004)  discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights.

Held: by the English High Court that the claim should be dismissed. Mrs Justice Andrews stated in very strong terms that:

“The alleged interference by the state with their right to private life by denying them the right to enter a civil partnership is even more tenuous. There is no evidence that they are subjected to humiliation, derogatory treatment, or any other lack of respect for their private lives on grounds of their heterosexual orientation by reason of the withholding of the status of civil partners from them.”

The UK and Scottish Governments had shown absolutely no inclination to extend the civil partnerships legislation to heterosexual couples. If anything both Governments had prioritised the extension of marriage to same sex couples and Mrs Justice Andrews then went on to observe that:

In my judgment the question whether maintaining the discrimination complained of is justified must depend upon the specific context. Here, the decision is to wait and see how the extension of marriage to same-sex partners affects civil partnerships before determining what to do about them. At present there is no clear evidence as to how civil partnerships are likely to be affected by extending marriage to same-sex couples and no clear social consensus on what their future should be (as the outcome of the two consultations demonstrates). However the figures that have emerged since March 2014 indicate that there has been a sharp decline in the number of civil partnerships formed in England and Wales compared to 2013, with a corresponding increase in the number of marriages of same-sex couples. In a consultation by the Scottish Government on Review of Civil Partnership dated September 2015, the statistics relating to jurisdictions where both marriage and civil partnerships are available to same sex and opposite sex couples (the Netherlands, New Zealand, and Hawaii) indicate that the vast majority of couples prefer marriage – in New Zealand in 2014 only 0.3% of the couples opted for civil partnership. In Scotland itself, after civil marriage was introduced for same-sex partners, there were only 8 civil partnerships registered in the second quarter of 2015, a decline of 94% from the previous year.”

The English Court of Appeal

This was not the end of the matter: Steinfeld and Keidan were permitted to appeal to the English Court of Appeal against Mr Justice Andrews’ decision (Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81). The Court of Appeal strongly objected to and unanimously rejected the notion that the case did not involve a potential breach of Articles 8 of the European Convention (not to say a potential breach of Article 14: the prohibition against discrimination).

That said, however, Lord Beatson (in dismissing the couple’s claim) went on to state:

In my view, at present, the Secretary of State’s position is objectively justified. The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. At the hearing the Secretary of State’s approach was described as a ‘wait and see’ approach, although it would be more accurate to describe it as a ‘wait and evaluate’ approach. Whatever term is used to describe the approach, it would not have been available to the Secretary of State prior to the enactment and coming into force of the 2013 Act. This is because it would not have been possible at that time to determine how many people would continue to enter into civil partnerships or want to do so because they share the appellants’ sincere objections to marriage. The relevant start date for consideration is thus 13 March 2014 when the provisions extending marriage to same sex couples came into force.”

His colleague, Lord Justice Briggs stated:

I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Government’s slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of State’s current policy of ‘wait and evaluate’ as a disproportionate response.

The UK Supreme Court

As one might have expected, the UK Supreme Court was to have the final say in the matter.

On 27 June 2018, the Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:

“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”

Conclusion

There we have it: excluding heterosexual couples from the possibility of entering civil partnerships when same sex couples are now legally entitled to enter both marriage and civil partnership represents a breach of Article 8 and Article 14 of the European Convention on Human Rights. This constituted interference with heterosexuals’ right to a private and family life and discrimination on grounds of sexual orientation.

That said, we have to be careful and Lord Kerr very wisely drew attention to the consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights by referring to the Supreme Court’s previous decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

So what happens next?

In October 2018, Theresa May, the UK Prime Minister, announced that the Government would amend the Civil Partnership Act 2004 to permit heterosexual couples to enter into civil partnerships as a result of the Steinfield and Keidan decision:

Where does this leave Scotland?

It should, of course, be remembered that the Scottish Parliament (in terms of the Sewel Convention or Legislative Consent Motion) gave its permission to the UK Parliament to pass civil partnership legislation in 2004 for Scotland (the Civil Partnership Act 2004). Family law (including marriage and civil partnerships) is, of course, a devolved matter for the Scottish Parliament in terms of the Scotland Act 1998. The Scottish Parliament was criticised at the time for not legislating in this area of important social policy.

The rather awkward situation for the Scottish Parliament (and Government) is that the legislation which is currently in force in Scotland regulating civil partnerships is incompatible with human rights. As discussed, the UK Parliament can refuse to implement the Supreme Court’s judgement; the Scottish Parliament cannot.

If, post Steinfeld and Keidan, the Scottish Government continued to allow  civil partnership legislation to operate in its original form, there is a very real risk that the Scottish Ministers will be taken to court and challenged by heterosexual couples (using Steinfeld and Keidan [2018]) on human rights grounds.

The solution (for now)?

Letting the status quo prevail in Scotland is not an option because of the implications for human rights, so the Scottish Government announced a public consultation on civil partnerships in September 2018:

This consultation closed on 21 December 2018 and presented two options:

  • Abolishing the option of future civil partnerships for all; or
  • Permitting heterosexual couples to have the option of marriage or civil partnership.

A link to the Scottish Government’s consultation paper can be found below:

Will the solution follow the English/Welsh approach or will Scotland go down a different route?

We await with interest the Scottish Government’s conclusions on the matter. Watch this space.

Copyright Seán J Crossan, February 2019

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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