Public Law Case Update – September 2018

Our case update offers a straightforward overview of six recent important cases in public law and regulation.

In this edition, our experts examine the following cases:

Tolerating unequal treatment while considering how best to eliminate it does not justify the discrimination - R (on the application of Steinfeld and Keidan) v Secretary of State for International Development; When human rights are a matter for Parliament, not the courts - R (Conway) v Secretary of State for Justice; The ongoing difficulties of challenging an expert regulator's judgment - R (Peak Gen and Others) v Ofgem; Evidence-based policy making as a legal requirement - R (Law Centres Network) v The Lord Chancellor; Relying on a claim of unfairness post-Gallaher - R (Page) v Darlington Borough Council; Entitlements as possessions, and the unlawfulness of entrenching historic discrimination - JT v First-tier Tribunal. Tolerating unequal treatment while considering how best to eliminate it does not justify the discrimination

R (on the application of Steinfeld and Keidan) v Secretary of State for International Development

In 2004, Parliament enacted the Civil Partnership Act (the CPA) which enables same-sex couples to obtain legal recognition of their relationship (at the time marriage was reserved for different-sex couples only) through a civil partnership. The CPA specifically prohibits two people that are not of the same sex from being eligible to enter into a civil partnership. Later, in 2013, Parliament enacted the Marriage (Same Sex Couples) Act which made marriage lawful for same-sex couples.

The appellants, a different-sex couple, wish to enter into a legally recognised relationship but (a) claim to have a conscientious objection to marriage, and (b) cannot enter into a civil partnership by virtue of the restriction in the CPA. The ensuing position, they argued, created inequality of treatment by giving same-sex couples a choice on whether to enter a civil partnership or to marry, but denying this choice to different-sex couples. It was therefore incompatible with Article 14 of the European Convention on Human Rights (ECHR) in respect of the rights provided under Article 8 of the ECHR.

Although initially arguing to the contrary, the government had, by the time the case reached the Supreme Court, conceded that Article 8 rights were engaged. It had also accepted that there was inequality of treatment but sought to defend its position by claiming that the unequal treatment was justified because it had a margin of discretion in determining when to make legislative changes and it was still investigating and evaluating the nature of the change that should be made (i.e. whether to preserve and extend civil partnerships or to abolish them). It argued that taking the time to carry out this exercise was a legitimate aim as changes to the law in such a sensitive area of social policy needed proper inquiry and consideration.

This argument had been accepted by the Court of Appeal but the Supreme Court rejected it. The Supreme Court found that any margin of discretion the government may have was very narrow, that it had made a conscious decision not to change the position when it introduced the 2013 Act, and that tolerating discrimination while deciding what to do about it could never amount to a legitimate reason or aim justifying the discrimination.

The government can resolve the discrimination by either extending civil partnerships to different-sex couples or bringing an end to them for same-sex couples. Either position would be lawful, and it remains to be seen what the government will do. It is clear, however, that adopting a 'wait and evaluate' approach in cases where discrimination exists but options to rectify it are being assessed cannot amount to a justification for the discrimination being allowed to continue.

When human rights are a matter for Parliament, not the courts

R (Conway) v Secretary of State for Justice

Mr Conway suffers from a form of motor neurone disease. At the time of the hearing, the prognosis was that he had six months or less to live. In the face of this he wished to have the option of ending his own life, with medical assistance, at a time of his choosing. However, that assistance was prevented by section 2(1)...