Article 14
Article 14 | Anti-discrimination
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Article 14 of the European Convention on Human Rights provides:
The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any 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.
This right is parasitic; it is of no use to someone wishing to complain of discrimination who cannot establish that another free-standing Convention right is engaged. As with the other Convention rights it is only actionable against the State and public authorities as defined by the Human Rights Act 1998.
So, Article 14 must be pleaded in relation to some other substantive right in the Convention. It is not necessary to establish an actual violation of another Article; if the claim comes within the ambit of another protected right then it is possible for the applicant to succeed on discrimination alone, even if the primary violation has not been established, or the Member State’s action has been found to come within one of the permissible exceptions to that right (Belgian Linguistic Case (1967) 1 EHRR 252).
A good example of this is to be found in the sex discrimination case, (1) Abdulaziz (2) Cabales (3) Balkandali v United Kingdom (1985) 7 EHRR 471 ). The European Court of Human Rights stated here that:
Although the application of Article 14 does not necessarily presuppose a breach [of the substantive provisions of the Convention and its Protocols] – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the rights and freedoms.
Equally, even if the right does not itself arise directly out of one of the Convention provisions – the right to have a system of appeal courts, for example, is not implicit in the fair trial provisions of Article 6 – once a signatory State has put such an appellate system into place, it cannot operate it in a discriminatory fashion since Article 14 prohibits discrimination in access to courts throughout the whole judicial system.
In cases where the Court finds a violation of a substantive right, it is still theoretically possible to obtain a ruling that Article 14 has been infringed as well. In Marckx v Belgium (1979) 2 EHRR 330, the Court concluded that the unfavourable treatment of illegitimate children under Belgian inheritance laws violated their right to a family life under Article 8, and breached the requirement under Article 14 that Convention rights should be secured without discrimination. On the other hand, in (1) Lustig-Prean (2) Beckett v United Kingdom : (1) Smith (2) Grady v United Kingdom (1999) 29 EHRR 449 the Court held that the investigations into and subsequent dismissal of several members of the armed forces on grounds of their sexual orientation amounted to a breach of their right to a private life under Article 8. The applicants contended that they had also been discriminated against in the enjoyment of their Convention rights, but the Court held that this contention did not give rise to any issue separate to that already considered under Article 8.
In most cases, however, the Court will content itself with a finding that a substantive right has been breached. In another case involving Article 8, the applicant challenged laws criminalising homosexual behaviour in Northern Ireland (Dudgeon v United Kingdom (1981) 4 EHRR 149). The Court, having found a violation of Article 8, left it at that, without going on to consider the applicant’s claim that the imposition of these laws in Northern Ireland and not in the rest of the United Kingdom was a breach of Article 14.
According to Karen Reid in The Practitioner’s Guide to The European Convention on Human Rights (Sweet and Maxwell, 2015), there has been a recent emphasis on the condemnation of racism and ethnic hatred with corresponding positive obligations on the state to maintain the confidence of minorities in the ability of the authorities to protect them from racist violence, and to investigate properly incidents of racial hatred (Menson v United Kingdom, App No 47916/99) ECHR 2003). Indirect discrimination may disclose a violation of Article 14; in other words where a neutral measure has a disproportionate effect on a group it is not necessary to show that there is any discriminatory intent; the burden shifts on to the Government to show that the difference in impact of the legislation or the or measure was the result of objective factors unrelated to ethnic origin: DH v Czech Republic, where statistics showed that Roma children were being grouped into special schools (13 November 2007). Although this could have been done with the best possible intention of providing educational support, the Court criticised the way that in practice these became ways of excluding the Roma children from mainstream schooling, without effective procedural safeguards. The fact that the parents themselves had consented to the placements was not a defence. The Court stated that no waiver of the right not to be subjected to racial discrimination could be accepted.
The list of grounds on which a person must not be discriminated against is not exhaustive under Article 14. The provision refers to “any ground” and concludes with a reference to “other status” and has been applied, interestingly, to different treatment on the basis of a genetic disease: GN v Italy, 1 December 2009. In another example the Court found it unjustified to refuse a residence permit to the Uzbek husband and father of Russian citizens on the ground that he had HIV (Kiyutin v Russia, 10 March 2011). The Court comes particularly hard down on cases of discrimination on the basis of sex, observing frequently that advancement of equality of the sexes is a major goal of the Council of Europe and its contracting states. The same can be said of the importance of combatting racism.
In domestic terms, the Equality Act 2010 is designed to express most of the principles explicit or implicit in Article 14 in statutory terms. For public authorities at least there is a duty to consider equality in all decision making processes: see s.149 of the Act , containing the public sector equality duty).
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