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.