The UK champions equality, legislates to stamp out discrimination and has a judicial system that upholds those values. Occasionally, it may be harder to identify discrimination, but once seen or heard we get a nagging feeling that something is wrong. A Great British Nag, you might call it. Similarly, it is difficult to ignore the outcome from court battles which, although given by senior and experienced judges, gives you that very same nag. One such judgment passed my desk this week and one that I wanted to share.
Marriage is both an institution and a concept that everyone understands; one we enter as individuals, but recognise as a society. Lawyers may consider it substantially the same as a civil partnership except in name. However, a name or label is important and through pressure groups and awareness campaigns, parliament was persuaded that having something which was the 'same but different' for same-sex couple was no longer good enough.
Enter stage left the Marriage (Same Sex Couples) Act 2013.
Whilst undoubtedly an impressive piece of legislation and an example of successful political manoeuvring by LGBTI pressure groups, the full impact of marriage equality was not as thoroughly thought through from the other side of the coin. This was brought into focus recently when an opposite-sex couple, Ms Steinfeld and Mr Keidan, sought to enter a Civil partnership (CP) but were rejected because the Civil Partnership Act 2004 prohibits opposite-sex couples entering a CP.
Despite two consultations and a debate by parliament, neither have persuaded the Government to extend CPs to opposite sex couples. Instead, according to a recent case in the Court of Appeal, the Government has a "wait and see" policy to assess the possible uptake of CPs by same-sex couples before they consider introducing it to opposite-sex couples. Are you getting that nagging feeling yet?
Some facts to consider: The Office of National Statistics believed there to be over 3 million opposite sex cohabiting couples in the UK in 2016. This is the fastest growing group over the last 20 years, as couples move to live together in a possible precursor to marriage (Families and Households in the UK: 2016).
Ms Steinfeld and Mr Keidan led a legal challenge against the bar on CPs for opposite sex couples because they had deep rooted and genuine ideological objections to an institution they considered patriarchal. They believe that CPs better reflect their relationship and how others should perceive their relationship, including any future children who should be brought up to understand the equality in their parents' relationship. So long as they remain unmarried cohabitees they are not afforded economic protections such as inheritance or taxation. Whether you like the concept of marriage or not, equality should surely allow both same-sex and opposite-sex couples the same choices. You can have a civil ceremony of marriage already without requiring the religious element and be registered by a civil registrar, but it is still marriage; why not simply allow a CP?
In their legal challenge they relied on a breach of Article 14 (the prohibition of discrimination) and Article 8 (a right to respect for private and family life) of the ECHR. In 2016, The High Court disagreed and so the couple appealed. Three Court of Appeal judges gave detailed analysis of the case and had different reasons for their conclusion but each were very critical of the Government's position and apparent justification for the discrimination.
Is it perhaps instead a matter of money? The introduction of the legislation and engaging the civil service, the government argues, is a real cost and could be reversed later if CPs are removed but surely cost cannot alone be the key reason to wait for the removal of discrimination - as Lady Justice Arden observes, were this the case then discriminatory legislation would rarely be removed. While the public purse is obviously a factor, it should not be determinative and nor should it be used to support ongoing discrimination faced by opposite-sex couples who are entitled to hold beliefs against marriage.
Any form of discrimination requires strong justification to be permitted, especially when based on sexual orientation. Lord Nicholls once said that discrimination is a truly insidious practice and, left unchecked, it can breed resentment and bring the law into disrepute. Although unanimously finding the discriminatory practice, a majority decision the Court of Appeal agreed the Government had a legitimate and justified aim in seeking time to undertake a proper assessment and form a policy.
Children are growing up in a tolerant country with greater equality, rights and protection than ever before, but is the law doing enough to keep pace with our modern society and modern families? The UK is the only ECHR state to give same-sex couples two options for legal recognition of their relationship, but opposite-sex couples only one. While cases like this just continue to nag me, I take some solace from the Court of Appeal making it clear that time is ticking for the Government to eliminate the discrimination.
Andrew Spearman is Director of A City Law Firm