This post has been contributed by Charlotte Crilly, Teaching Fellow for Undergraduate Laws.
In June 2018, the UK Supreme Court made a somewhat rare declaration of incompatibility under the Human Rights Act 1998, finding that the Civil Partnerships Act 2004 is incompatible with the European Convention on Human Rights. In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development  UKSC 32, the Court said that the fact that different-sex couples could not enter into civil partnerships breached their rights under Article 14 (non-discrimination) when read with Article 8 (respect for private life).
The Civil Partnerships Act 2004 was introduced to allow same-sex couples to enter into a legally binding civil partnership, which gave them some, but not all, of the rights that different-sex partners could obtain through marriage. At that time, same-sex partners were not able to marry under English law. This changed with the Marriage (Same Sex Couples) Act 2013 which provided for marriage to be available to couples of the same sex. This left the legal position as follows: couples of the same sex had the option of entering into either a civil partnership or a marriage, whereas couples of a different sex to each other only had the option to marry. So the legal position is clearly different. The question before the courts was whether this was discriminatory and contrary to the rights in the ECHR. The case was brought by a different-sex couple, Rebecca Steinfeld and Charles Keidan, who didn’t want to marry because they considered that marriage had negative connotations for the role of women. Instead they wanted to be able to enter into a civil partnership.
The government accepted that the law as it currently stands is indeed discriminatory, but argued that they should be allowed more time to consider how to deal with and eliminate the discrimination. Lord Kerr, giving the judgment of the Supreme Court, found that the fact that the government wanted to have more time was not a sufficient ‘legitimate aim’ which would justify infringement of a right. Even if this had been a legitimate aim, a fair balance had not been struck between the interests of the applicants and those of the wider community. There had therefore been a breach of the applicants’ human rights.
The Supreme Court was clear that the court should not be reluctant in this case to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. It had been argued that the court should refrain from doing so, as it was for parliament, not the courts, to change the law in this area of sensitive social policy. While Lord Kerr acknowledged that the courts do not have to make a declaration where they find an incompatibility, and that there may be circumstances where it is not appropriate to do so, in this case there was no need for reticence. This is in contrast to R (Nicklinson) v Ministry of Justice  AC 657, where reticence in making a declaration was appropriate. In the Nicklinson case, parliament was actually in the course of debating the law on assisted suicide, so it would have been inappropriate for the court to preempt that debate. In the final analysis, a declaration of incompatibility does not require parliament or the government to take any action to change the law (although as law students will know, it does put political pressure on the government).
The court’s willingness to make a declaration of incompatibility in Steinfeld can perhaps be contrasted with its unwillingness to do so in another recent Supreme Court case, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review  UKSC 27. In that case the Northern Ireland Human Rights Commission had challenged the compatibility of the very strict abortion law in Northern Ireland with the ECHR. A very divided Supreme Court held by a majority that a legal technicality meant they could not make a declaration of incompatibility. Nonetheless, some Supreme Court Justices did make it clear in their judgments that they considered the abortion law to be incompatible with human rights, and strongly urged the legislature to change the law. This is an interesting case as it shows the courts attempting to persuade the legislature to amend the law because of its incompatibility with human rights, without actually issuing a declaration of incompatibility under section 4.
Given these two recent very interesting Supreme Court cases, where does that leave the courts’ approach to declarations of incompatibility? Will they be willing to make more declarations, or to remain somewhat cautious? Future cases will tell us more, so watch this space!
You can read the Supreme Court’s judgment, a press summary and watch the hearing and the judgment in R (on the application of Steinfeld and Keidan) v Secretary of State for International Development  UKSC 32 on the Supreme Court’s website (at https://www.supremecourt.uk/cases/uksc-2017-0060.html). There is also plenty of news coverage of the case, for example on the BBC News website (at https://www.bbc.co.uk/news/uk-44627990).
The Supreme Court judgment, a press summary and videos of the hearing and the judgment in In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review  UKSC 27 are also available on the Supreme Court’s website (at https://www.supremecourt.uk/cases/uksc-2017-0131.html). BBC News has reported on this the case as well (at https://www.bbc.co.uk/news/uk-northern-ireland-44395150).