1 Along with freedom of expression: Whitty, N, Murphy, T and Livingstone, S Civil Liberties Law: The Human Rights Act Era (Bath: Butterworths, 2001) p 377.Google Scholar

2 Dworkin, R Sovereign Virtue (Cambridge: Harvard University Press, 2000).Google Scholar

3 It should be noted that the Council of Europe has sponsored a Protocol 12 to amend the non-discrimination principle to apply to ‘any right set forth by law’, and not only to ‘Convention rights’. This paper concentrates on Art 14 jurisprudence. For discussions of Protocol 12, see Khaliq, U ‘Protocol 12 to the Echr – a step forward or a step too far?’ (2001) Public Law 457 Google Scholar;

4 On the idea of equality review with ‘bite’, see Gunther, G ‘The Supreme Court, 1971 Term, Foreword: in Search of Evolving Doctrine on a Changing Court: a Model for a New Equal Protection’ (1973) 86 Harvard Law Review 1.CrossRefGoogle Scholar

5 McColgan, A Women and the Human Rights Act’ (2000) 51(3) Northern Ireland Legal Quarterly 417 Google Scholar at 433.

6 This is sometimes done even in cases where the equality aspect of the case seems important. See, for instance, the cases on sexual orientation or the rights of persons who have had gender reassignment surgery: Lustig-Prean v United Kingdom (1999) 29 EHRR 548, Goodwin v United Kingdom (2002) 35 EHRR 18. The recent Grand Chamber decision in S and Marper v United Kingdom (Application Nos 30562/04 and 30566/04) is based on Art 8 and does not discuss Art 14, even though this was a major point of discussion in the House of Lords: R (S) and R (Marper) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 1 WLR 2196.

7 Article 26 is discussed in Moon, G Complying with its International Human Rights Obligations: the United Kingdom and Art 26 of the International Covenant on Civil and Political Rights’ (2003) 3 European Human Rights Law Review 283.Google Scholar

8 Lord Lester of Herne Hill ‘Equality and Uk Law: past, Present and Future’ (2001) Public Law 77 Google Scholar at 78.

9 Whitty et.al, above n 1, p 404.

10 Bamforth et.al note that critics of formal equality object to its symmetrical approach, its focus on individual acts rather than structures and its refusal to engage with the public/private divide. See Bamforth, N, Malik, M and O'Cinneide, C Discrimination Law: Theory and Context, Text and Materials (Socio-legal) (London: Sweet and Maxwell, 2008) p 205 Google Scholar. Fredman identifies four distinctive aims of substantive equality: to ‘break the cycle of disadvantage’, promote equal dignity, ‘entail positive affirmation and celebration of identity within community’, and promote participation: at 167. For Arnardottir, substantive equality is concerned with equal outcomes and not just equal treatment, is concerned with groups, and aims for a contextual understanding of inequality: O Arnardottir Equality and Non-Discrimination Under the European Convention on Human Rights (The Hague: Kluwer, 2002) p 31.

11 Lawrence, C The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism’ (1986) 39 Stanford Law Review 317.Google Scholar

12 Littleton cites Marilyn Frye's metaphor of a birdcage as exemplifying systematic oppression: it is impossible to see how any single wire keeps a bird trapped; you can only appreciate the cage by stepping back and seeing how all the wires work together: Littleton, C Reconstructing Sexual Equality’ (1987) 75 California Law Review 1279 CrossRefGoogle Scholar at 1315, citing Frye, M The Politics of Reality (New York: Crossing Press, 1983) pp 4–5.Google Scholar

13 Freeman, AD Legitimising Racial Discrimination through Anti-Discrimination Law’ (1978) 62 Minnesota Law Review 1049 Google Scholar, Freeman, AD ‘Anti-Discrimination Law: A Critical Review’ in Kairys, D (ed) The Politics of Law (New York: Basic Books, 1998).Google Scholar

14 Anguelova v Bulgaria (2002) 38 EHRR 31 at para O-13. For an indictment of the ECtHR's record on racism, see Dembour, M-B Who Believes in Human Rights? Reflections on the European Convention (Cambridge: Cambridge University Press, 2006) pp 133–137.CrossRefGoogle Scholar

15 Harvey, C and Livingstone, S Protecting the Marginalised: the role of the Echr’ (2001) 51(3) Northern Ireland Legal Quarterly 445 Google Scholar at 464.

16 Grant, E and Small, J Disadvantage and Discrimination: the Emerging Jurisprudence of the South African Constitutional Court’ (2000) 51 Northern Ireland Legal Quarterly 174 Google Scholar, , ; . See vol 23, issue 2 of the South African Journal of Human Rights for a symposium on substantive equality.

17 Arnardottir argued for a substantive equality interpretation of Art 14 in Equality and Non-Discrimination Under the European Convention on Human Rights (The Hague: Kluwer, 2002).Google Scholar

18 Ibid, pp 141–154.

19 Gaygusuz v Austria (1996) 23 EHRR 364.

20 Thlimmenos v Greece (2001) 31 EHRR 411.

21 For a time, UK courts adopted a sharply defined analysis under Art 14, as set out in Michalak v Wandsworth London Borough [2002] EWCA Civ 271, [2003] 1 WLR 617. The House of Lords has expressed doubt about the value of the formulation of the Michalak questions: R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 2 AC 173 at [2] per Lord Nicholls of Birkenhead, at [28]–[33] per Lord Hoffmann, at [64] per Lord Walker of Gestingthorpe, at [97] per Lord Carswell.

22 Most famously in the Botta case, where the right of access to a beach was treated as too tenuous a link with the Convention rights: Botta v Italy (1998) 26 EHRR 241. See also Vilho Eskelinen v Finland (Application No 63235/00) (2007) 45 EHRR 43.

23 Secretary of State for Work and Pensions v M [2006] UKHL 11, [2006] 2 AC 91 at [4]–[5] per Lord Bingham of Cornhill, at [87]–[90] per Lord Walker.

24 Whitty et.al, above n 1, p 404.

25 Most of these are cases of racial discrimination: East African Asians v United Kingdom (1981) 3 EHRR 76, Cyprus v Turkey (2001) 35 EHRR 30, Moldovan v Romania (No 2) (2007) 44 EHRR 16. Article 3 has also been successfully invoked in a disability discrimination context. A British court ordered that a wheelchair user be detained for contempt of court, without making any effort to see if there were facilities for wheelchair users. The ECtHR found a violation of Art 3: Price v United Kingdom (2002) 34 EHRR 53.

26 This is especially so with cases that involve discrimination against gay men and lesbians, and persons who have had gender reassignment surgery: Lustig-Prean v United Kingdom (1999) 29 EHRR 548, Goodwin v United Kingdom (2002) 35 EHRR 18. Wintemute believes the ‘ambit’ requirement can be attenuated by treating any discrimination based on ‘religion, political opinion, sexual orientation or gender identity’ as falling within the ambit of Arts 8–11: Wintemute, R ‘“within the Ambit”: How Big Is the “Gap” in Art 14 European Convention on Human Rights’ (2004) 4 European Human Rights Law Review 366 Google Scholar at 371.

27 Belgian Linguistic Case (1979–80) 1 EHRR 252 at 283.

28 Gaygusuz v Austria (1996) 23 EHRR 364.

29 Stec v United Kingdom (2005) 41 EHRR SE18 at para 47–55.

30 Stec v United Kingdom (Application Nos 65731/01 and 65900/01) (2006) 43 EHRR 47.

31 See concurring opinion of Judge Borrego Borrego.

32 Luczak v Poland (Application No 77782/01) 27 November 2007.

33 In the UK, domestic courts seem to have hesitated over whether to embrace the Stec reasoning. The House of Lords has now authoritatively settled the issue, and insisted that the Stec principle should be respected by domestic courts under the Human Rights Act 1998. See R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 at [29]–[32].

34 Sidabras v Lithuania (Applications Nos 55480/00 and 59330/00) (2006) 42 EHRR 6 at para 47.

35 Ibid.

36 Ibid, para 57.

37 This was confirmed in Rainys and Gasparavicius v Lithuania (Applications Nos 70665/01 and 74345/01) 7 April 2005.

38 Silih v Slovenia (Application No 71463/01) 28 June 2007.

39 Secretary of State for Work and Pensions v M [2006] UKHL 11, [2006] 2 AC 91 per Lord Nicholls at [83].

40 McColgan, A Discrimination Law: Text, Cases and Materials (Oxford: Hart, 2005) p 19.Google Scholar

41 See Fredman, S Introduction to Discrimination Law (Oxford: Oxford University Press, 2002) pp 8–10.Google Scholar

42 Carson's Application for Judicial Review [2005] NIQB 80 at [22].

43 See the discussion in Arnardottir, above n 17, pp 182–184.

44 See AL Serbia (FC) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 4 All ER 1127 at [22]–[25]. Also emphasising that Art 14 ECHR is about justification, see Fredman, S Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008) p 187.CrossRefGoogle Scholar

45 Burden and Burden v United Kingdom (2007) 44 EHRR 51 at para 58. The Grand Chamber adopted the same approach as in the Chamber decision in Burden in the much publicised case of Evans v United Kingdom (Application No 6339/05) (2008) 46 EHRR 34. The case concerned a separated couple who had previously made plans to have a genetically related child, but where the male partner had withdrawn his consent to the use of his sperm. The female partner argued that this violated a number of Convention rights; a subsidiary argument was that she was being treated differently from a woman who could conceive without the benefit of IVF. At para 95 the Grand Chamber notes that it does not need to decide whether the applicant was in an analogous position to a woman who could conceive without IVF, as in any event any distinction could be justified as the justification test was already satisfied under Art 8.

46 Burden an Burden (2008) 47 EHRR 38, paras 61–66.

47 Ismailova v Russia (Application No 37614/02) 6 November 2008 at paras 57–61.

48 Carson v United Kingdom (Application No 42184/05) (unreported) 4 November 2008 at paras 78–79.

49 Ibid, para 80.

50 Baczkowski v Poland (Application No 1543/06) (2009) 48 EHRR 19.

51 Ibid, para 98.

52 Ibid, paras 99–101.

53 In the French cases involving single persons who were denied the authorisation to adopt children, the ECtHR was prepared to draw the conclusion that the decisions were based on sexual orientation even though this was not explicit in the reasoning of the national authorities: Frette v France (2004) 38 EHRR 21, EB v France (Application No 43546/02) (2008) 47 EHRR 21.

54 Celniku v Greece (Application No 21449/04) 5 July 2007 at paras 79–81; Cobzaru v Romania (Application No 48254/99) (2008) 47 EHRR 10 at para 93.

55 Cobzaru v Romania, ibid, para 95.

56 Karagiannopoulos v Greece (Application No 27850/03) 21 June 2007 at para 77. A member of the Roma community had been shot in the head during a police operation. A police officer only tangentially involved in the operation made a comment in court later about the majority of gypsies being criminals. The ECtHR held this did not point to any discriminatory motivation in the original operation. It did however find a substantive violation of Art 2.

57 Thlimmenos v Greece (2001) 31 EHRR 411; Zarb Adami v Malta (2007) 44 EHRR 49.

58 Belgian Linguistic Case, above n 27, s 10; Jordan v United Kingdom (Application No 24746/94) (2003) 37 EHRR 2 at para 154; Kelly and Others v United Kingdom (Application No 30054/96) 4 May 2001 at para 148.

59 Ahmad v United Kingdom (1981) 4 EHRR 127; Stedman v United Kingdom (1997) 23 EHRR CD 168; DH v Czech Republic (Application No 57325/00) (2006) 43 EHRR 41, but now reversed by the Grand Chamber.

60 Angelova and Iliev v Bulgaria (Application No 55523/00) (2008) 47 EHRR 7 at para [115].

61 Hoogendijk v Netherlands (Application No 58641/00) (2005) 40 EHRR SE22. The Netherlands modified the rules on the payment of the disability benefit partly to remove discriminatory aspects of the system, but also for financial reasons. Interestingly, the court accepted that both motives were legitimate, though it is not clear from the discussion on Art 14 that ‘seeking to keep the costs of the... scheme within acceptable limits’ by itself would have been a sufficient purpose.

62 Zarb Adami v Malta (2007) 44 EHRR 49.

63 DH v Czech Republic, above n 59, paras 175–176.

64 Ibid, paras 193–195.

65 Ibid, paras 71–72.

66 Sampanis v Greece (Application No 32526/05) 5 June 2008, Orsus and Others v Croatia (Application No 15766/03) 17 July 2008.

67 On suggestions for a ‘sliding scale’ approach to equal protection in the US, see San Antonio Independent School District v Rodriguez (1973) 411 US 1 (per Justice Thurgood Marshall), City of Cleburne v Cleburne Living Center (1985) 473 US 432 (per Justice Stevens).

68 The ECtHR has considered a case during 2007 on language policy, concerning the Ukrainisation of Russian names in official Ukrainian documents. The ECtHR ultimately found the policy did not violate Art 14, largely because the policy preserved a role for individual choice as to how an individual's names should appear. See Bulgakov v Ukraine (Application No 59894/00) 11 September 2007 at para 58.

69 Salguero da Silva Mouta v Portugal (2001) 31 EHRR 1055.

70 During 2007, the ECtHR considered a complaint alleging discrimination based on health (HIV status). It rejected the complaint on the grounds there was no evidence of discrimination, but did not query that ‘health’ could be a ‘status’ for the purpose of Art 14: VAM v Serbia (Application No 39177/05) 13 March 2007.

71 Re P [2008] UKHL 38, [2008] 3 WLR 76.

72 It would seem almost any distinction can come within the Art 14 concept of ‘other status’: Paulik v Slovakia (Application No 10699/05) (2008) 46 EHRR 10 which concerned distinction made between different types of fathers (those fathers whose paternity was based on a rebuttable presumption and fathers whose paternity could not be rebutted). See also, on distinctions between different types of litigants: Stubbings v United Kingdom (1996) 23 EHRR 213 and Mizzi v Malta (unreported) 12 January 2006. A distinction based on being former members of the security services was held to be a distinction under Art 14 in Rainys and Gasparavicius v Lithuania (Applications Nos 70665/01 and 74345/01) 7 April 2005. Finally, a distinction between farmers holding farms of different sizes triggered a successful Art 14 inquiry in one French case: Chassagnou v France (2000) 29 EHRR 615. For an example of this wide approach within the UK, see Application for Judicial Review Landlords Association for Northern Ireland [2005] NIQB 22, [2006] NI 16.

73 Beian v Romania (Application No 30658/05) 6 December 2007. See also the similar cases of Zainescu v Romania (Application No 26832/08) 23 September 2007, Tara Lunga v Romania (Application No 26831/03) 8 July 2008, Tehleanu v Romania (Application No 1578/03) 16 September 2008.

74 Beian v Romania, ibid, paras 39–40.

75 Ibid, paras 62, 64.

76 Grande Oriente d'Italia di Palazzo Giustiniani v Italy (Application No 26740/02) 31 May 2007 at para 56.

77 To underline this point, the ECtHR considered an allegation that Belgian authorities engaged in a policy of selected and arbitrary prosecution for violations of planning regulations in Hamer v Belgium (Application No 21861/03) 27 November 2007. The ECtHR concluded there was no difference of treatment [67], but did not suggest that this sort of distinction did not fall under the heading of ‘other status’.

78 Wagner v Luxembourg (Application No 76240/01) 28 June 2007.

79 R (S) v Chief Constable of Yorkshire Police [2004] UKHL 39 at [48]–[49].

80 See for instance R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484.

81 R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614, [2007] HRLR 35.

82 AL Serbia (FC) v Secretary of State for the Home Department [2008] UKHL 42.

83 Lord Walker at [5]. All the Law Lords agree with this short speech.

84 Lord Walker at [5], Lord Neuberger at [56].

85 Carson v UK, above n 48.

86 Religionsgemeinschaft der Zeugen Jehovas v Austria (Application No 40825/98) (2009) 48 EHRR 17 at para 87.

87 Sutherland v United Kingdom (1997) 24 EHRR CD 22.

88 Frette v France (2004) 38 EHRR 21 at paras 32–33.

89 Ibid, para 41.

90 Ibid, paras 42–43.

91 Lustig-Prean v UK, above n 6, paras 88–98.

92 EB v France, above n 53.

93 Ibid, para 89.

94 Ibid, para 91.

95 Ibid, para 96.

96 See ibid, paras 72–98.

97 Several of the dissenting opinions disagreed with the majority's characterisation of the national decision as one based on sexual orientation, or argued that if this affected one of the reasons for the national decision, then the national authority had other reasons that were not so tainted. See the dissents by Costa (joined by three other judges), Loucaides and Mularoni.

98 Burden and Burden v UK, above n 45, paras 60–61. On referral to the Grand Chamber, the ECtHR held that the sisters were not in an analogous situation to married couples or civil partners: Burden and Burden v United Kingdom (2008) 47 EHRR 38.

99 Carson v UK, above n 48.

100 Ibid, para 81. This margin of appreciation does not mean that taxation policy will never be found to violate Art 14: see Darby v Sweden (1991) 13 EHRR 774.

101 Twizell v United Kingdom (Application No 25379/02) (2008) 47 EHRR 49 at para 24.

102 Re P, above n 71, at [20] per Lord Hoffmann. The case concerned a discriminatory provision in Northern Irish law allowing married couples to adopt a child but not allowing unmarried couples to do so.

103 Ibid, at [31]–[38] per Lord Hoffmann.

104 This is seen in s 15 of the Canadian Charter of Rights and Freedoms. Section 15(1) contains a comprehensive prohibition of discrimination, but such discrimination may be justified under s 1 of the Charter. Section 15(2) of the Charter makes it clear that the prohibition on discrimination in s 15(1) ‘does not preclude any law... that has as its object or effect the amelioration of conditions of disadvantaged individuals or groups...’.

105 Fredman, above n 10, at 166–169.

106 Belgian Linguistic Case, above n 27, s 10.

107 Ibid, para 66.

108 Runkee and White v United Kingdom (Application No 42949/98) 5 October 2007 at para 40. The failure to provide a lump sum payment to widowers however was found to violate Art 14, and indeed the UK did not contest this: para 45. The UK has now changed the law to remove the discrimination.

109 Angelova v Bulgaria, above n 60, Cobzaru v Romania, above n 54; Koutropoulos v Greece (Application No 15250/02) 13 December 2005. Dembour has suggested that it would be preferable to reverse the burden of proof in such cases: Dembour, above n 14, pp 136–137.

110 Secic v Croatia (Application No. 40116/02) 23 BHRC 24.

111 Angelova v Bulgaria, above n 60, para 117.

112 Petropoulou-Tsakiris v Greece (Application No 44803/04) 6 December 2007 at paras 63–66.

113 97 members of the Gldani Congregation of Jehovah's Witnesses v Georgia (Application No 71156/01) (2008) 46 EHRR 30.

114 Stec v UK, above n 30, paras 51–64.

115 DH v Czech Republic (Application No 57325/00) (2007) 47 EHRR 3 at para 175.

116 Section 75 of the Northern Ireland Act 1998 is the clearest example of this. The Northern Irish courts have been reluctant to allow this statutory equality duty to be enforced by judicial review: Neill's Application for Judicial Review [2006] NICA 5. For a consideration of some of the perceived weaknesses in this type of pro-equality measure, see Fredman, above n 44, ch 7. For a survey of the UK statutory equality duties, see Bamforth et.al, above n 10, pp 428–439; McColgan, A et.al Discrimination Law Handbook (London: LAG, 2007)Google Scholar ch 21.

117 Sampanis v Greece, above n 66, paras 72, 94–96.