Thursday, 23 January 2014

Civil partnership consultation launched in England and Wales

The UK Government have launched a consultation on civil partnership in England and Wales. Its purpose is to establish the future of civil partnership (currently only available to same-sex couples) now marriage is available to same-sex couples and specifically whether, if retained, civil partnership should be made available to opposite-sex couples. 

The consultation document contains a consideration of the compatibility of maintaining civil partnership only for same-sex couples with the European Convention on Human Rights:

The Government is satisfied that its decision to retain civil partnership for same sex couples only is compatible with the Convention. Even if an opposite sex couple were able to show that the difference in treatment compared to a same sex couple is within the ambit of Article 8, because the ability to form a civil partnership concerns family life, and to show that the treatment is based on a personal characteristic or status, such as sexual orientation, it is the Government’s view that it is within a State’s margin of appreciation to recognise different forms of relationship for same sex and opposite sex couples. 

This is an interesting invocation of the margin of appreciation because the Government provide no references to Strasbourg case law to support their claim. 

Whilst it is easy to find examples in the Court's recent case law to support the Government's argument, it is also easy to find examples that challenge this understanding of the margin of appreciation. For example, in Kozak v Poland, the Court stated:

when the distinction in question operates in this intimate and vulnerable sphere of an individual's private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant's sexual orientation, this would amount to discrimination under the Convention.

If the Court accepted that excluding opposite-sex partners from civil partnership created a distinction that operated in an intimate and vulnerable sphere of private life, and that the reason for treating opposite-sex couples differently was based solely on sexual orientation, then, according to Kozak, the distinction in question would amount to a violation of Article 14 taken in conjunction with Article 8 of the Convention. 

No doubt, over the coming weeks, the question of the Convention (and the margin of appreciation) will be much debated. 

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