New bid to end ban on straight civil partnerships

After failure in Europe, legal case launched in High Court in London

By Peter Tatchell

European Court rules Equal Love case inadmissible
Huffington Post UK – London – 16 March 2015

The Equal Love campaign has formally ceased its 2011 application to the European Court of Human Rights (ECtHR), which sought to secure equality in UK civil marriage and civil partnership law.

This follows the decision of the European Court that the application is “inadmissible” and subsequent fruitless attempts by campaigners to challenge the ruling.

This is the end of the road for our application. We can take it no further. Sincere thanks to the eight couples involved and to all our supporters who stood with us for four years.

The Equal Love campaign will now concentrate on opposing the ban on same-sex marriage in Northern Ireland and supporting a new legal challenge to the ban on opposite-sex civil partnerships, which is being pursued by a London heterosexual couple, Rebecca Steinfeld and Charles Keidan.

The Equal Love case was filed with the European Court of Human Rights on 2 February 2011 by four lesbian and gay couples and four heterosexual couples, who respectively sought to overturn the then twin British bans on same-sex civil marriages and opposite-sex civil partnerships.

It was known as Ferguson & Others v United Kingdom – Application 8254/11.

While the applicants feared their case against the UK’s prohibition on same-sex marriage would be set aside in light of the legalisation of same-sex marriage in England and Wales in 2013, they did not expect their application to end discrimination against straight couples in civil partnership law to be dismissed summarily, without even being considered by the full court and without the courtesy of a proper explanation. The ruling was made by a single judge, Päivi Hirvelä of Finland. There is no right of appeal.

The letter stating that the application was inadmissible, signed by Clare Ovey of the ECtHR, claimed the application did not fulfil the admissibility criterion, Articles 34 and 35 of the European Convention on Human Rights (ECHR). This is disputed by the applicants, who contend that their case met the requirements set out in both these articles.

Our legal advisor, Professor Robert Wintemute of King’s College London, asked for details of how the application failed to meet the admissibility requirements. The ECtHR declined to provide them. This is contrary to Article 45(1) of the ECHR, which states:

“Reasons shall be given for judgements as well as for decisions declaring applications admissible or inadmissible.”

Ms Ovey wrote curtly to the Equal Love campaign:

“The decision is final. It is not subject to an appeal either to the Grand Chamber or to any other body. The registry is unable to provide you with any details of the Single Judge’s decision.”

Subsequent correspondence by the Equal Love campaign requesting reasons, in accordance with Article 45 (1), went unanswered by the Court. It is inexcusable rudeness from a court that normally prides itself on transparency and accountability.

We expected a Chamber of seven judges to rule on the application, given the important equality issues it raised. They would have provided detailed reasons for their decision. Alas….

I am a huge fan of the ECHR and the ECtHR. Thanks to the Convention and the court, three major homophobic discriminations in UK law have been overturned: the unequal age of gay consent, the ban on lesbian, gay and bisexual personnel in the military and the outlawing of homosexuality in Northern Ireland.

This ruling is so disappointing and so out of character. It leaves the court diminished and tarnished.

As well as ignoring the UK’s legal ban on opposite-sex civil partnerships, the ECtHR dismissal ignored the on-going ban on same-sex marriage in Northern Ireland and homophobic discrimination in pension inheritance for the surviving partner of a same-sex marriage under the 2013 legislation in England and Wales.

Moreover, since 29 March 2014, same-sex couples in England and Wales can choose between two forms of relationship recognition: civil partnership and civil marriage; whereas opposite-sex couples have only one option: marriage. This anomaly, which amounts to discrimination in law, was ignored by the ECtHR when it decided to rule against considering the Equal Love case.

The ECtHR also ignored its own case precedent, Vallianatos & Others v. Greece (7 November 2013), which upheld the principle of parity in civil partnership law.

The implication of the European Court’s judgement in the Vallianatos case is that in countries such as the UK where marriage is open to both gay and straight couples, it is not permissible to discriminate on the grounds of sexual orientation by excluding heterosexual couples from alternatives to marriage such as civil partnerships. The ECtHR appears to have not taken this judgement into consideration when dismissing the Equal Love case.

The European Court’s ruling that the Equal Love application was not admissible will have no effect on the new case bought by Charles Keidan and Rebecca Steinfeld because it was not a full court judgment and therefore not a legal precedent.

I am supporting the bid by Rebecca and Charles to overturn the ban on opposite-sex civil partnerships, which they launched at the High Court in London on 23 December 2014.

They argue that their case is an simple matter of equality , based on the principle that in a democracy we should all be equal before the law.

Their claim argues that both the Civil Partnership Act 2004, and the government’s decision not to extend civil partnerships to opposite-sex couples in June 2014, are incompatible with the Human Rights Act 1998 and the Equality Act 2010.

An online petition has so far attracted over 3,000 signatures calling for opposite-sex couples, like same-sex couples, to have an equal choice between civil partnerships and marriage.

If they do not get redress from the UK courts, Charles and Rebecca plan to take their case to the ECtHR.

Last month, a High Court judge, Mrs Justice Elisabeth Laing DBE, granted permission to Rebecca and Charles to proceed with their legal case against the government’s continued barring of civil partnerships to opposite-sex couples. The judge has also granted the couple a Protective Costs Order (PCO) to limit their liability for the government’s legal costs in the event that their case is unsuccessful. The judge’s granting of permission and PCO make clear that the case is of public importance and is in the wider public interest.

Charles and Rebecca could face costs of up to £70,000, an onerous sum for a young couple. They’ve set up Legal Fund Appeal and are urging people to donate.

Rebecca Steinfeld noted:

“The granting of permission by a High Court judge is a significant milestone in our effort to open civil partnerships to all, regardless of sex or sexual orientation. The judge’s order recognizes the public importance of addressing the issue of direct discrimination against opposite-sex couples seeking civil partnerships. There is now no doubt that there is public interest in ending this inequality. We again urge the Minister for Equalities, Nicky Morgan MP, to avoid the need for costly legal action by introducing a simple amendment that removes the clause barring civil partnerships to opposite-sex couples from the Civil Partnership Act 2004. For us, as for thousands of other opposite-sex couples, entering into a civil partnership would be a serious, lifelong commitment that will give us the legal rights and responsibilities that we need to protect ourselves and our families while formalising our relationship within a modern social institution.”