text stringlengths 5 5.67k |
|---|
The WPA should not be equated with means-tested benefits which are directed to peoples needs and are not entitlements resulting from contributions. RPC |
It does not address hardship. RPC |
If the Survivor is in work, the WPA gives her additional income, albeit subject to taxation. RPC |
If she is in receipt of means-tested benefits, the payment of the WPA provides only limited extra income. RPC |
It will be set against her entitlement to such benefits, except for the disregard of 10 to which I referred in para 51 above. RPC |
The provision of the WPA should be seen in the wider context of the United Kingdom social security system which gives benefits, which, unlike the WPA, are directed at children. RPC |
Should the children be in need, there are benefits to support them. RPC |
Thus, if the survivor died, the person who took responsibility for the child would be entitled to child benefit, guardians allowance and, depending on his or her means, child tax credit. RPC |
The respondent also founds on the difficulty of administering the WPA if the officials charged with its administration had to investigate whether or not the deceased and the survivor had been cohabiting. RPC |
This, it was suggested, could also involve intrusive questioning of a survivor shortly after a bereavement. RPC |
By contrast marriage or civil partnership can readily be established by certificates from a public register. RPC |
Problems in the administration of the WPA may also arise if a parent, who has made the necessary contributions, dies leaving children in the care of more than one former partner. RPC |
Such difficulty in administration as there may be is a relevant consideration which can be placed in the balance when the court assesses proportionality. RPC |
But the respondent does not need to rely on this additional consideration as I am satisfied that without it the difference in treatment about which the appellant complains is proportionate and thus objectively justified. RPC |
Conclusion RPC |
Section 1(1) of the Civil Partnership Act (CPA) 2004 defines a civil partnership as a relationship between two people of the same sex (a) which is formed when they register as civil partners of each other - (i) in England or Wales Under section 2(1) of CPA two people are to be regarded as having registered as civil par... |
By section 3(1) of CPA, two people are not eligible to register as civil partners if they are not of the same sex. STA |
CPA was therefore explicitly and emphatically designed for same sex couples only. STA |
The obvious reason for this was that, at the time of the enactment of CPA, the government and Parliament did not consider it appropriate to extend the institution of marriage to same sex couples but recognised that access to responsibilities and rights akin to those which arise on marriage should be available to same s... |
All of that changed with the enactment of the Marriage (Same Sex Couples) Act 2013 (MSSCA). Ratio |
This made the marriage of same sex couples lawful from the date of coming into force of the legislation - 13 March 2014. Ratio |
From that date onwards, same sex couples who marry enjoy the same rights, benefits and entitlements as do married heterosexual couples. Ratio |
They also share the responsibilities that marriage brings. Ratio |
CPA was not repealed when MSSCA was enacted. Ratio |
Consequently, same sex couples have a choice. Ratio |
They can decide to have a civil partnership or to marry. Ratio |
That choice was not - and is not - available to heterosexual couples. Ratio |
Under the law as it currently stands, they can only gain access to the rights, responsibilities, benefits and entitlements that marriage brings by getting married. Ratio |
This circumstance, it is now agreed, brought about an inequality of treatment between same sex and heterosexual couples. Ratio |
It is also now accepted by the respondent that this manifest inequality of treatment engages article 14 - prohibition of discrimination - read in conjunction with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention or ECHR) - the right to respect fo... |
It is also accepted by the respondent Secretary of State that the inequality of treatment of heterosexual couples requires to be justified from the date of its inception, ie the coming into force of MSSCA. Ratio |
The principal issue in this appeal, therefore, is whether justification of that inequality includes consideration of the period of time during which, the government claims, it is necessary to investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence... |
The respondent claims that justification does include an evaluation of the time needed to decide how the inequality of treatment can best be removed. ARG |
The appellants argue that this relates solely to remedy, and is not relevant to the question of justification. ARG |
Alternatively, they submit that, on the facts of this case, it is not proportionate to continue to deny civil partnerships to them in order to achieve the aim proffered by the government viz affording time thoroughly to investigate whether to abolish civil partnerships altogether; to extend them to different sex couple... |
The appellants therefore seek a declaration that sections 1 and 3 of CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) infringe their rights under article 14 taken with article 8 of the Convention. Ratio |
They also seek a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA). Ratio |
Factual background FAC |
The appellants are a different sex couple who wish to enter into a legally recognised relationship. FAC |
They have a conscientious objection to marriage. FAC |
They want to have a civil partnership with one another. FAC |
They have been in a long-term relationship and have had two children together. FAC |
It is not disputed that their unwillingness to marry is based on genuine conviction. FAC |
Nor is it disputed that their wish to have their relationship legally recognised is other than entirely authentic. FAC |
When Parliament enacted MSSCA it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though, we were told, it was recognised at that time that this would bring about an inequality of treatment between same sex partners and those of different sexes and that thi... |
Rather, it was decided that further investigations were required. FAC |
Some investigations had been carried out in 2012 and further inquiries were made in 2014. FAC |
In the governments estimation the investigations did not indicate that significant numbers of different sex couples wished to enter civil partnerships. FAC |
It was judged, however, that the review and consultation which comprised the investigations in 2014 were inconclusive as to how to proceed. FAC |
The government therefore concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same sex marriages had taken root. FAC |
On 21 October 2015 Tim Loughton MP introduced a Private Members Bill which proposed extension of civil partnerships to different sex couples. FAC |
That Bill did not receive the requisite support and did not progress. FAC |
A second Bill met the same fate in 2016. FAC |
Mr Loughton introduced another Bill, entitled Civil Partnership, Marriages and Deaths Registration etc Bill in the 2017-2019 session. FAC |
The Bill received its First Reading on 19 July 2017 and its Second Reading on 2 February 2018. FAC |
It proposed that different sex couples should be permitted to enter civil partnerships. FAC |
The government felt unable to support that proposal but in advance of the Second Reading it agreed the terms of an amendment with Mr Loughton and a joint amendment was submitted to Parliamentary authorities immediately after the Second Reading. FAC |
The amendment is in these terms: (1) The Secretary of State must make arrangements for a report to be prepared - (a) assessing how the law ought to be changed to bring about equality between same sex couples and other couples in terms of their future ability or otherwise to form civil partnerships, and (b) aim. FAC |
setting out the Government's plans for achieving that (2) The arrangements must provide for public consultation. FAC |
(3) The Secretary of State must lay the report before Parliament. FAC |
In May 2018, the government published a command paper in which it recorded that the consultations in 2012 and 2014 had failed to produce a consensus as to how, or indeed if, the legal position as to civil partnerships should change. FAC |
Those consultations had posited three possibilities: that civil partnerships should be abolished; that they should be closed to new entrants; or that they should be extended to allow different sex couples to register a civil partnership. FAC |
The command paper stated that, because of the lack of consensus, the government decided not to make any changes to civil partnerships at the time. FAC |
This is significant. FAC |
The government knew that it was perpetrating unequal treatment by the introduction of MSSCA but it decided to take no action because of what it perceived to be equivocal results from its consultations. FAC |
In the 2018 command paper the government announced that it was looking at available data on the take-up of civil partnerships and marriage amongst same sex couples. FAC |
It suggested that if demand for civil partnerships was low, the government might consider abolishing or phasing them out. FAC |
If, on the other hand, there remained a significant demand for civil partnerships, this might indicate that the institution still has relevance. FAC |
It concluded, therefore, that it was proportionate to obtain more data in order to decide that there was a need to preserve civil partnerships. FAC |
It considered that by September 2019 it should have sufficient evidence to make a judgment about the demand for the institution. FAC |
Thereafter, consultation on the future implementation of proposals for civil partnerships would take place. FAC |
This would happen at the earliest in 2020. FAC |
No indication was given as to how long the consultation period would last nor as to the likely date of any legislation that might be considered necessary. FAC |
The proceedings FAC |
The appellants sought judicial review of the governments failure to extend civil partnerships to different sex couples, arguing that the introduction of MSSCA rendered the provisions of CPA which confined the availability of civil partnerships to same sex couples (sections 1 and 3) incompatible with article 8 of ECHR, ... |
That application was dismissed by Andrews J in a judgment delivered on 29 January 2016 ([2016] EWHC 128 (Admin)). RLC |
The respondent had argued that article 8 was not engaged and that argument was accepted by the judge. ARG |
At para 84 of her judgment she said that, The difference in treatment complained of does not infringe a personal interest close to the core of the right to family life, still less the right to private life protected by article 8.The judge held, however, that even if article 8 was engaged, there was sufficient objective... |
Before the Court of Appeal (Arden LJ, Beatson LJ and Briggs LJ - [2017] EWCA Civ 81; [2018] QB 519) the argument that the appellants case did not come within the ambit of article 8 was again advanced by the respondent. RLC |
It was unanimously rejected (and has not been renewed before this court). RLC |
By a majority (Beatson and Briggs LJJ), the Court of Appeal held that the interference with the appellants rights under article 8, read together with article 14 was, at least for the time being, justified. RLC |
At para 158, Beatson LJ said: In my view, at present, the Secretary of States position is objectively justified. RLC |
The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. RLC |
At the hearing the Secretary of States approach was described as a wait and see approach, although it would be more accurate to describe it as a wait and evaluate approach. RLC |
Whatever term is used to describe the approach, it would not have been available to the Secretary of State prior to the enactment and coming into force of the 2013 Act. RLC |
This is because it would not have been possible at that time to determine how many people would continue to enter into civil partnerships or want to do so because they share the appellants sincere objections to marriage. RLC |
The relevant start date for consideration is thus 13 March 2014 when the provisions extending marriage to same sex couples came into force. RLC |
At para 173, Briggs LJ said: I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Governments slow progress on this issue. RLC |
Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. RLC |
This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. RLC |
But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of... |
Although she found that the interference with the appellants article 8 and article 14 rights was not justified (because it was not proportionate), Arden LJ considered that it pursued a legitimate aim - para 105, where she said that the state had the option to eliminate the discrimination in any way it sees fit and ther... |
The question whether the legislation pursued a legitimate aim occupied centre field on the hearing of the appeal before this court. Ratio |
In particular, the argument focused on the question whether the legitimate aim required to be intrinsically connected to the unequal treatment or whether it was enough that the governments aim was to take the time necessary to decide which form of removal of the discrimination was most appropriate. Ratio |
The Convention rights Ratio |
Article 14 of ECHR provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any of a number of specified grounds (including sex, race or colour) and other status. Ratio |
It is accepted that sexual orientation qualifies as a ground on which discrimination under article 14 is forbidden - Salgueiro Da Silva Mouta v Portugal (1999) 31 EHRR 47 at para 28. Ratio |
Article 14 does not enshrine a freestanding right to freedom from discrimination - see Petrovic v Austria (1998) 33 EHRR 14. Ratio |
It prohibits discrimination in the enjoyment of the Convention rights. Ratio |
It is now well settled, therefore, that, to have recourse to article 14, the complained of discrimination must come within the ambit of another Convention right. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.