Discrimination And Equality Notes

Discrimination and Equality

Article 14 ECHR:

‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on an ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

Keep in mind that there is a substantial quantity of equality law at the EU and domestic level, so Article 14 ECHR is placed in a heavily populated area.

• There are also differing models of equality in these contexts: (i) equality as a labour market regulation, and (ii) equality as a human right.

The Parasitic Nature of Article 14:

Also essential to remember the contingent/parasitic nature of the Article – it is not a general proscription against every kind of discrimination.

• Instead, application of the Article is restricted to discrimination only with respect to the rights and freedoms set out elsewhere in the Convention.

• As such, where a right falls outside the Convention, such as the right of access to civil service employment, a state has no obligation to avoid discrimination.

• In practice, this is a significant restriction, since a considerable amount of discrimination is concerned with the enjoyment of economic and social rights.

  • This is a distinctive feature of the Article – most national constitutes include a freestanding provision.

However, the ECtHR’s more expansive interpretation of Article 14 has prevented it becoming redundant.

• Rather than requiring a breach of another Convention rights, it is only necessary that it falls ‘within the ambit’ of another right (Belgian Linguistics).

• Thus, ‘the prohibition of discrimination enshrined in Article 14, extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide.’ (EB v France).

• Ghaidan:

  • ‘Everyone has the right to respect for their home. This does not mean that the state—or anyone else—has to supply everyone with a home. Nor does it mean that the state has to grant everyone a secure right to live in their home. But if it does grant that right to some, it must not withhold it from others in the same or an analogous situation. It must grant that right equally, unless the difference in treatment can be objectively justified.’

Though this interpretation has been of vital importance, it remains the case that the Article is notably limited.

• As Livingston points out, Article 14 ‘is unable to engage directly with inequalities in the provision of resources such as jobs, housing or most social benefits which are the main staple of concerns to discrimination lawyers in most Council of Europe states’.

  • Protocol 12 was introduced to deal with this (see later).

The contingent nature of the Article has meant that, if the Court finds a breach of the related Article, they will often not proceed to consider Article 14.

• This has somewhat hindered its development.

• For example, in Dudgeon v UK. Will not normally go on to consider Article 4 unless ‘a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case’.

‘Other Ground’:

In the UK and EU, an amendment is necessary for the addition of a new ground.

• However the ‘or other status’ clause illustrates the non-exhaustive nature of the Article, meaning that the Courts are able to include additional grounds.

• There may be some concerns of democratic legitimacy with this – a non-elected body unilaterally extending the scope of the obligation.

  • Often protecting minorities, so may be preferable to separate from a majority-dominated government.

  • It is also much quicker and efficient to be effected by the Courts, possible under the ‘living instrument’ mechanism of treaty interpretation.

Court has emphasised that Article 14 ‘is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristics by which persons or groups of persons are distinguishable from each other.’

• For example, equality between children born in and out of wedlock was recognised Inze, with disability and age also developing.

Normative Models of Equality:

Formal equality.

• This involves treating like cases alike.

• A main problem is that it is dependent on a standard to measure it against.

  • For example, in EB v France, only able to establish discrimination because French law permitted adoption by single parents.

• It also does not guarantee any minimum level of treatment, nor does it do anything to tackle underlying prejudices in society.

Consequentialist equality.

• This requires that the actual result must be the same, acknowledging that identical treatment can entrench inequality.

• However, this is incredibly burdensome and may neglect the group of people with preferred treatment (often the majority).

Equality of opportunity.

• Attempts to equalise the starting point.

• However, just because the starting point is the same, does not mean that existing prejudices will still hinder an individual from that same starting point.

  • Dworkin’s equality of resources adopts this as a starting point, with a redistribution model to prevent the unfair results.

    • Negates, but does not address, any underlying discrimination.

Dignity.

• This attaches value to individuals simply by virtue of their humanity, which logically connotes that they are all entitled to equal concern and respect.

  • Important that it offers a normative basis for equality, but it is very subjective.

The balance in the ECHR seems to be moving away from a merely formal conception (which neglects reverse discrimination) and a growing move towards consequentialist equality (which might neglect the majority).

• A balance between these is essential and very difficult, though I...

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