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    The Legal Challenge

Charles and Rebecca outside Kensington and Chelsea Register Office.

In December 2014, following a refusal from their local registry office to register their notice of intention to form a civil partnership, London-based couple Charles Keidan and Rebecca Steinfeld decided to challenge the current law that prevents this by launching a bid for judicial review at the High Court. Over 3 years later, and their case is headed for the Supreme Court, the highest Court in the UK.

The couple’s solicitor, Louise Whitfield, from leading public law firm Deighton Pierce Glynn, has commented:

“This is a very significant achievement for my clients as the Supreme Court only gives permission for a very small number of cases each year – those that are the most important for the Court to consider.  It is another significant step in the journey to achieve equal civil partnerships for all, and the Court’s decision to grant permission recognises the great public importance of this issue.”

We are expecting that the appeal will be heard in the first half of 2018. In the meantime, scroll down to learn more about the background and progress to date on the case below.

Why are Charles and Rebecca taking the case?

We asked Charles and Rebecca to explain this in their own words:

“We are taking this case because the UK Government is barring us, and many thousands of opposite-sex couples like us, from the choice of forming a civil partnership, and we want this to change.

Personally, we wish to form a civil partnership because that captures the essence of our relationship and values. Civil partnerships are a modern social institution conferring almost identical legal rights and responsibilities as marriage, but without its historical baggage, gendered provisions and social expectations. We don’t think there is any justification for stopping us or other opposite-sex couples from forming civil partnerships.

Yet the Civil Partnership Act 2004 states: “Two people are not eligible to register as civil partners of each other if … they are not of the same sex.” In other words, civil partnerships are only available to same sex-couples. Thus, when we sought to give “notice of intention” to enter into a civil partnership in September 2014, we were refused by the Registrars at Chelsea Old Town Hall. As a result, we launched a legal case, petition and fund in December 2014 to challenge this direct discrimination in law so that we and other opposite-sex couples can have the choice between civil partnership and marriage.

We also believe that opening civil partnerships to opposite-sex couples would complete the circle of full relationship equality that began with the hard-won victory for same-sex marriage.  We campaigned for equal marriage and believe that the significance and symbolism of opening marriage to same-sex couples cannot be overstated. Legalising same-sex marriage was the recognition that everyone is of equal worth and has the right to equal treatment under the law.”

What is the legal basis of the case?

Charles and Rebecca’s legal claim is that Section 1 of the Civil Partnership Act 2004, which restricts civil partnerships to same-sex couples, is incompatible with Article 14 (read with Article 8) of the European Convention on Human Rights, which states that everyone should be treated equally by law, regardless of sex or sexual orientation.

These Convention rights are currently incorporated into UK law by the Human Rights Act 1998.

Article 8 “Right to respect for private and family life” provides that “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 “Prohibition of discrimination” provides that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Charles and Rebecca are being represented by an outstanding legal team that includes solicitor Louise Whitfield, a leading practitioner in the field of public and human rights law, and partner at Deighton Pierce Glynn, and the UK’s top equalities barrister, Karon Monaghan QC at Matrix Chambers. Louise helped Caroline Criado-Perez successfully challenge the Bank of England to include a woman on UK bank notes while Karon wrote the acclaimed book ‘Monaghan on Equality Law,’ and was awarded Liberty’s Human Rights Lawyer of the Year Award in 2010.

What has happened in the case so far?

The timeline of the case so far is as follows:

  • October 2014: Charles and Rebecca were refused by the Registrars at Chelsea Old Town Hall when they sought to give “notice of intention” to form a civil partnership.
  • December 2014: Charles and Rebecca launched a legal challenge against the UK government – in the form of a Judicial Review – at the High Court.
  • February 2015: A High Court judge, Mrs Justice Elisabeth Laing DBE, granted permission for Charles and Rebecca’s legal claim to proceed. The Judge also granted Charles and Rebecca a partial Protective Costs Order recognising that it is in the public interest that the case be heard.
  • January 2106: Rebecca and Charles’ case is hear in the High Court and the judge rules that the continuation of a ban on civil partnerships for opposite sex couples is legal.
  • November 2016: Rebecca and Charles’ case heard in the Court of Appeal.
  • February 2017: Result announced from the Court of Appeal stating that the current ban could not continue indefinitely but, in a 2:1 split ruling, gave the government limited time to decide on the future status of civil partnerships. Buoyed by the support of the lead judge Lady Justice Arden, Rebecca and Charles lodge their appeal.
  • August 2018: Permission to take the case to the Supreme Court is granted.
What are the possible outcomes?

Charles and Rebecca are seeking a declaration that the Civil Partnership Act (CPA) is not compatible with Articles 8 and 14 of the European Convention on Human Rights.

In response to a declaration of incompatibility between the CPA and European Convention, the expectation would be that the Government would extend civil partnerships to all, regardless of sex or sexual orientation. This would enable both same-sex and opposite-sex couples to form civil partnerships, which in turn could have significant implications for the thousands of long-term, opposite-sex, cohabiting couples in the UK. Such a judicial ruling and Government response would help make the UK a fairer, more equal society by ensuring that nobody is discriminated against on the basis of their sex or sex orientation.

How likely is it that the case will be successful?

Charles and Rebecca’s legal team believe they have a strong case. There is plainly a difference in treatment between same-sex and opposite-sex couples’ access to civil partnerships, on the grounds of their sex or sexual orientation. The BBC’s Legal Correspondent, Clive Coleman, has described the case as the result of an inevitable “collision course” between the discriminatory provisions of the CPA and the equality provisions of the European Convention. The CPA’s discrimination requires justification if it is not to violate Article 14, read with Article 8, of the Convention. But, as the Legal Expert and Professor of Human Rights Law, Kings College London, Robert Wintemute, explains, “The European Convention on Human Rights requires the Government to show ‘particularly convincing and weighty’ reasons why it is necessary to exclude opposite-sex couples from civil partnership, now that same-sex couples may marry. This is a heavy burden of proof, which the Government will find very hard to meet.”

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Charles and Rebecca are hopeful that the judge appointed to rule on the case will acknowledge the discrimination of the CPA, declare its incompatibility with the European Convention, and thereby strongly encourage the Government to open civil partnerships to all, regardless of sex or sexual orientation. But, as with the struggle for same-sex marriage, significant legal, public and political pressure may be needed to change the law.

If you would like to contribute to this effort, please visit our Get Involved page.

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Top Image: Royal Courts of Justice and city limits dragon by Ruth Hartnup on Flickr

Registry office image: Robert Taylor