Analysis

I went to watch the civil partnerships case at the High Court and even the judge didn’t understand it

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And the court was freezing

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I went to watch a human rights case at the Royal Courts of Justice yesterday, and it’s not as glam as you might think.

The case I went to watch was brought to court by Rebecca Steinfeld and Charles Keidan, both of who are academics from London. The pair don’t believe in marriage and want to get a civil partnership instead, but can’t because they are straight.

The gist of their claim is that sections 1 and 3 of the Civil Partnership Act 2004 are incompatible with Article 14 (prohibition of discrimination), tagged to Article 8 (right to private and family life), of the European Convention on Human Rights. This is because these sections make clear that only same sex couples are able to get civil partnerships, not opposite sex couples like Steinfeld and Keidan.

Deighton Pierce Glynn’s Louise Whitfield — the solicitor for the pair — said about the case:

This is a clear case of discrimination where the government has failed to justify its position on excluding opposite-sex couples from all the rights and legal protections that civil partnerships bring.

The human rights challenge has prompted widespread media attention, and there’s a good chance it will reach the higher courts, so I wanted to get in on the action and see it for myself.

First of all, the High Court is a beautiful building, but freezing cold and very difficult to navigate. Once I found my way to court 19, I saw the claimants were sat to the left of me. They seemed to be in good spirits, smiling and laughing along with their barrister — Karon Monaghan QC of Matrix Chambers.

But when the hearing started, it became clear very quickly that this is a very tricky case. An analysis of the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013 — alongside the jurisprudence of the UK and Strasbourg courts — is required, and there were a few bumps in the road when even the judge seemed confused.

Jumping straight in, Mrs Justice Andrews DBE began grilling the defence barrister — Daniel Squires, also at Matrix Chambers — from the offset, shutting him down and interrupting on more than one occasion.

He argued full-throttle that there has been no infringement of the claimants’ Article 8 rights.

There must be, Squires said, an infringement of the right’s “core values”. These values are — according to Lord Bingham — “love, trust, confidence, mutual dependence and unconstrained social intercourse”, the essence of family life, and “personal and sexual autonomy”, the essence of private life.

There is a means of straight couples achieving a social status which recognises these values — and that’s by getting married. Just because you don’t like the institution doesn’t mean the state has infringed your rights.

What the pair are really arguing, he said, is that Protocol 12 Article 1 (a general prohibition on discrimination) has been breached — but the UK has not ratified this right and it cannot be relied upon in a domestic court.

And that, according to Squires, should really be the end of the matter. When he piped up to discuss the couple’s moral objections to marriage, the judge swiped him down very quickly — there is, she said, no reason for the court to debate whether Steinfeld and Keidan’s views are right or wrong.

After a short heated exchange between counsels and a momentary confusion over paragraph numbering, the defence went on to relay the ‘and even if I’m wrong about that, here’s another reason why the claim should fail’ part of his argument.

Under international human rights law, a defence case can be saved if the government can show that the infringement has a “legitimate aim”.

And here was the moment where not even the judge knew what was going on.

While I succumbed to the cold and fiddled around with my coat, Andrews and Monaghan had it out about the basics of the claim.

The Civil Partnership Act 2004, the judge said, applied only to same sex couples when it was enacted — but this was justified because same sex marriage wasn’t yet a thing. A decade on, same sex couples now have two routes to the social recognition of their relationship, because of the 2013 legislation.

While the court is now squabbling over sections 1 and 3 of the older Act, nothing in it has actually changed. It’s as if the Act has somehow become discriminatory overnight. What exactly are we trying to find a “legitimate aim” for, the bewildered judge asked: the 2004 statute when it was enacted, or the 2004 statute post-2013?

After some ums and ahs from the floor and the bench, counsel for the claimants said that the test is whether the discrimination in the law as it is today is justified. She rounded off by saying that this whole case could have been avoided had the Civil Partnership Act 2004 been amended when gay marriage was legalised.

The judge didn’t seem totally happy with this answer, admitting very honestly that she’d had some difficulty getting her head around it conceptually. She then pointed out that all the Strasbourg cases Monaghan had relied upon only deal with laws that are discriminatory from the get-go, not this new breed of post-enactment discrimination.

I guess it’s comforting to know that human rights law is so difficult that even judges can’t get their heads around it sometimes.


47 Comments

Anonymous

Aw Katie

(19)(2)

Not Amused

With all due respect … you are talking about one of the cleverest judges in the country … so I know which side I’m on.

(32)(8)

Anonymous

How do “sides” come into this?

(14)(3)

Anonymous

I’d love some chips, and some onion rings if we are having sides.

(16)(0)

Anonymous

“It’s comforting to know that human rights is so difficult that even judges can’t get their heads around it sometimes”?!?!?!?!?!? Katie, just stop. It’s not comforting it’s terrifying. And a good journalist might have made that conclusion. But it was helpful to have your thoughts on the temperature at the ‘big old building’ you correctly identified as the rcj….

(21)(7)

Anonymous

I….I think that was sarcasm.

(3)(2)

Anonymous

I wish it was sarcasm but history tells us that sarcasm is beyond KK’s journalistic talents (‘talents’ here is to be read sarcastically).

(4)(5)

Anonymous

Going to throw this out there: either the judge should be taken off the bench (unlikely) or the author has misunderstood the workings of the HRA/ECHR.

(20)(1)

Woops

The later. Andrews is a phenomenally intelligent judge, and is excellent on the bench. King has not understood the crux of the legal arguments, it would seem. I can imagine the only confusion is on the substantive point of what either advocate by “legitimate aim”, which is this journalism is anything to go by, is down to both Counsel not putting forward their arguments in an effective manner (which is doubtful)….so I am going to opt for the broader brush of incompetent journalism.

(8)(3)

Lethargic Bystander

What’s the take home message here? “Really bad heating at the RCJ” or “That hooman rights stuff is well difficult, innit”?

You could have made something of this subject matter, Katie. Shame.

(15)(3)

Anonymous

Refreshing piece. Nice to see court reporting conventions challenged.

(13)(12)

Anonymous

If calling the RCJ “the High Court”, getting bored and accusing the judge of failing to understand the case I would prefer to stick to a traditional style of reporting.

(16)(2)

Simon Myerson

I liked this piece – not always the case with KK. Andrews is very clever for sure, but, judicially speaking, the job is to pose the questions, not have the answers. It is the benefit of testing scrutiny that new questions emerge and need to be grappled with. That’s not terrifying at all – it’s comforting. And reflecting that by some decent reporting is helpful. More of the same please.

(14)(6)

BPTC 4 Lyfe

I like this piece as well. The judge hit on a point which needs clarification, whether post-enactment discrimination is a thing. And it’s not a facetious point that judges don’t always get their heads around human rights law (or any law for that matter, at least not at first). Otherwise there would be no need for a system of appeal etc…

(10)(2)

Kuzka's Mother

I sent this article to 3 colleagues so far and we are all laughing at you.

(12)(14)

Anonymous

You’re a bad person.

(0)(3)

Anonymous

Seriously, how do you sleep at night?

(0)(2)

Josh P

Frankly, this piece read like a ‘what I did on the weekend’ assignment- largely dull and without authoritative insight.

I don’t think, judging by the way this article is cobbled together, you have the first idea as to how to read an appeal as sophisticated as this. I think it’s safe to say that you’ve got the wrong end of the stick.

There again, I’m no ‘journalist’… I’m sure you’re much better versed in the intricacies of writing prose as enthralling as these!

(9)(7)

Anonymous

It isn’t an appeal.

(6)(0)

Hmmmm

I’ve forwarded this piece to one of the parties as I doubt they will read any similar report of day 2 of their JR anywhere else.

(11)(0)

Anonymous

“Even the judge didn’t understand it.”

I can’t believe you came away with this conclusion. The judge was obviously reasoning out loud to try to reach the most logical assessment of the law by reference to Counsel’s arguments. That’s what judges do. When a judge says eg, “I struggled with this analysis” or “I’m not sure I quite understand where you’re going with this…” the upshot of that is not “LOL! Silly judge doesn’t understand!”

Plus it’s really not that complex…

(29)(2)

The Bar Necessities

Really? I would have thought the question “to be discriminatory for the purposes of Art 14, does legislation have to be discriminatory at the time it is enacted or can it become discriminatory later due to the practical effect of new legislation?” is quite complex…

(7)(2)

Ink

The compatibility of legislation with the Convention rights falls to be assessed when the issue arises for determination, not as at the date when the legislation was enacted or came into force: Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568, 587, para 62

(7)(0)

The Bar Necessities

Fascinating, thank you for the citation. No surprised that the issue has already received an answer from the House of Lords, although slightly surprising that if this were a complete answer it was not cited.

(1)(0)

Anonymous

Bar Necessities – you’ve obviously never engaged with tax law. I didn’t say the answer was obvious, just that the issue isn’t complex to understand. There’s a difference between not knowing the answer (judge) and not understanding the issue (Katie’s assessment of the judge).

(4)(0)

The Bar Necessities

Nope, I’ve never done any tax law. (And I have to admit, I can’t say I’m terribly sad about that!)

I would agree with you—not knowing the answer is usually capable of being remedied with a library and time. Not understanding the issue is a bigger problem.

(2)(0)

Anonymous

A nice piece of unpretentious court reporting

(7)(7)

Anonymous

This reminds me of the terrible restaurant review Katie did a few months back.

(5)(7)

The Bar Necessities

This is a test case. It is not going to be simple. There isn’t an answer to the question posed in this case, and both arguments could, in theory, be right. It is one of a few cases where the court is applying existing legal principles to a new scenario. The judge’s job is to test the two arguments and—perhaps more importantly—work out whether there are any untested assumptions in either of the parties’ submissions.

Which, if I may say so, Andrews J seems to be doing rather well.

(7)(0)

Anonymous

It hasn’t “become discriminatory overnight” – it was discriminatory at the outset. Straight people were never allowed to enter into a civil partnership.

The fact that there was, prior to the passing of the Marriage (Same Sex Couples) Act 2013, a separate act of discrimination going on against gay people is irrelevant. That discrimination has now been put to an end and so should this be. Either make civil partnerships available to all or get rid of them altogether.

(8)(2)

Casual Observer

Katie, very nice effort. I would perhaps not have reached the same conclusion about the judge not understanding – but I think it’s also quite clear that you were saying that half in jest.

For what it’s worth, your quality of writing has improved greatly! I think if you had maybe analysed the case in a bit more depth / etc it would have been very good 🙂

Best of luck

(5)(2)

Casual Observer

Will you be home for dinner tonight?

(4)(1)

Anonymous

What a waste of money! Just get married fcs!

(2)(1)

Can u speeka da inglish

F*ck, this f*cks me off:

I saw the claimants were sat to the left of me

I believe that what you are searching for is:

I saw the claimants were sitting to the left of me

or even

The claimants sat to the left of me

And then there’s:

…but this was justified because same sex marriage wasn’t yet a thing

How about:

…but this was justified because same sex marriage wasn’t yet an institution.

or

…but this was justified because same sex marriage did not yet exist.

What you have written reads like some kind of poor quality translation from the usage instructions of a product made in China.

(11)(13)

Not Amused

To be fair the Prime Minister used sat instead of sitting yesterday.

(0)(0)

Can u speeka da inglish

I noticed, and some time ago he said “Too many twits might make a twat” (it sounds more like “twits” than “tweets” to me) – which was one of the few things he ever got right. ie the mob getting it wrong just makes it worse, rather than it becoming correct.

It’s the kind of thing you’d expect Cameron to say, to get down with the people, like “I get it”!?

(0)(1)

Anonymous

“…wasn’t yet a thing” is perfectly good demotic English. It’s also clear and concise.

You’ve tried too hard.

(2)(1)

Mrs Justice Andrews

Claimants to the left of me…

Defendants to the right…

Here I am stuck in the middle with yoo-ou!

(8)(0)

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