At the end of August 2018, the UK Supreme Court ruled In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48 that the current rules for the payment of Widowed Parent’s Allowance (WPA) violated Article 8 of the European Convention on Human Rights read in conjunction with Article 14. WPA is a contributory-based social benefit offered under s39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to widowed parents with dependent children whose spouse or civil partner has died. The Court ruled that the requirement of a formal marriage or civil partnership as a precondition for receiving WPA discriminated against couples who although had children together, never formalised their relationship.
The Court was however cautious to say that not every type of social benefit requiring a formal union is necessarily incompatible with the Convention. It was held that WPA could not be dependent on the prior existence of marriage or civil partnership because it was designed to benefit children who have lost one of their parents rather than to make any form of compensation to the surviving parent him or herself. Accordingly, to condition the payment of WPA on the existence of a formal union between parents is to effectively discriminate between the so called legitimate and illegitimate children – a policy which was declared unlawful by the European Court of Human Rights in the case of Marckx v Belgium (App. no.: 6833/74), back in 1979. It is on this basis that the Lady Hale, writing for the majority, attempted to distinguish the case of Shackell v United Kingdom (App. No.: 45851/99) where the European Court of Human Rights had held inadmissible complaints that the lack of a formal marriage should not deprive the surviving widow of an analogous benefit (paras. 25-28). The attempt was nevertheless not entirely convincing and Lord Mance in his Concurring Opinion (with which Lady Hale agreed) further elaborated on this point ultimately considering the reasoning in Shackell to be simply unsatisfactory (para. 49).
This approach of the majority however prompted Lorde Hodge to claim, in his Dissenting Opinion, that the majority was departing from a settled line of case law of the European Court of Human Rights which had recently been confirmed in the case of Burden v United Kingdom (App. no.: 13378/05). Moreover, Lord Hodge pointed out that although the WPA could be construed as designed to ultimately benefit children, it was nevertheless payable directly to the surviving spouse and depended heavily on his or her circumstances so that “if she remarries or enters into a civil partnership, so long as she cohabits with a partner of either gender, or if she dies, the WPA ceases to be payable” and “the sums payable to the Survivor are not related to the children’s needs or increased by reference to the number of children for whom she is responsible.” (paras. 76-78). At the end of the day, the UK Supreme Court under the presidency of Lady Hale again took an active approach to the protection guaranteed by the European Convention on Human Rights.
On 27 June 2018, the UK Supreme Court ruled unanimously, in the case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary), that the unavailability of civil partnerships to heterosexual couples was incompatible with Article 14 of the European Convention on Human Rights read in conjunction with Article 8. The Civil Partnership Act 2004 was introduced by the Labour Government to offer some form of formalised unions to homosexual couples at the time when British society was not ready for ‘gay marriage.’ Since it was designed to introduce formal relationships akin to marriage, the Act expressly applied to same-sex couples only as heterosexual couples could enter into actual marriage instead. This rationale was justified so long as same-sex couples could not marry. But this changed with the introduction of the Marriage (Same Sex Couples) Act 2013. Since then, homosexual couples have been able to choose between civil partnership and actual marriage while heterosexual couples could only marry. This has been challenged as a form of direct discrimination based on sexual orientation contrary to Article 14 of the Convention as applied by virtue of Article 8. Now the UK Supreme Court held that the need to “wait and evaluate” before enacting any reform, an argument the Government put forward to justify the discrimination, does not, in this case, constitute a legitimate aim under the Convention as this is not an instance of a discrimination with a long tradition which is only gradually becoming unacceptable but rather a novel issue whose discriminatory nature was apparent as soon as it was introduced (paras. 42-43). At the end, the Court did not hesitate to issue a declaration of incompatibility explaining that absent any legitimate aim, deference to a parliamentary process is not justified (paras. 54-57). The ruling goes a step further than the hitherto jurisprudence of the European Court of Human Rights which held in 2013, in the case of Vallianatos v Greece (App. Nos.: 29381/09 and 32684/09), that the availability of civil partnerships to heterosexual couples only violated Article 14 of the Convention read in conjunction with Article 8 because homosexual couples were not in a ‘comparable situation’ as they could neither marry nor enter into civil unions while heterosexual couples could do both (paras. 78-79). The same, however, could not be said about the situation of heterosexual couples in the United Kingdom. Moreover, the European Court of Human Rights ruled, in April 2018, in the case of Ratzenbock and Seydl v Austria (App. No.: 28475/12), that the unavailability of civil partnerships to heterosexual couples did not violate the Convention given that they could enter into marriage while same-sex couples could not. The Court was of the opinion that “the institutions of marriage and the registered partnership are essentially complementary in Austrian law.” (para. 40) – the same state of affairs one could observed in the UK between 2004 and 2013 but not since then. Accordingly, the judgment of the UK Supreme Court appears to have been built on the existing jurisprudence of the European Court of Human Rights while shrinking any deference to the legislature within the presumed margin of appreciation. Now it is only a matter of time before Parliament amended the Civil Partnership Act to remedy the injustice.