Blackstone's Guide to the Equality Act 2010 (Blackstone's Guides) by John Wadham & Anthony Robinson & David Ruebain & Susie Uppal

Author:John Wadham & Anthony Robinson & David Ruebain & Susie Uppal [Wadham, John]
Language: eng
Format: epub, mobi
Tags: Second Edition
Publisher: Oxford University Press
Published: 2012-05-16T21:00:00+00:00

4. Article 14: the Right to Non-discrimination

(a) The Developing Importance of Article 14

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The right to equality and non-discrimination is a fundamental human right recognized in many international human rights treaties123 and equality of treatment has been recognized as ‘one of the building blocks of democracy’.124 Article 14 seeks to ensure that all persons are able to enjoy the rights under the ECHR without discrimination. As a result, Article 14 is a key provision of the ECHR and, given its links with domestic discrimination law, it is vital to appreciate how it interacts with discrimination law.

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It should be recognized that the importance of Article 14 has evolved and enhanced over time. For a considerable period the case law in the ECtHR on Article 14 was undeveloped and provided a narrow interpretation of certain concepts of discrimination, such as indirect discrimination. One of the reasons for this was that in the past the ECtHR took the approach that if it found a breach of a substantive right, it was unnecessary to go on to consider whether there had been a breach of Article 14. In Airey v Ireland the court found that where a violation of a substantive provision is found, further examination of Article 14 is ‘not generally required’ unless ‘a clear inequality of treatment in the enjoyment of the rights in question is a fundamental aspect of the case’.125 In Dudgeon v UK the ECtHR went further, stating that examining Article 14 once a violation of a substantive provision had been found served ‘no useful purpose’.126 As a result, although the Court found a breach of Article 8 in respect of private life, it found it unnecessary to consider whether there was discrimination on grounds of sexual orientation. This approach has been criticized by a number of judges and commentators.127

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More recently the ECtHR has taken a more expansive and progressive approach to the consideration of Article 14 claims generally and to its interpretation of concepts of discrimination.128 In the landmark decision DH v Czech Republic, the Grand Chamber substantially broadened the interpretation of indirect discrimination before the ECtHR and relied on the EU Equality Directives in analysing discrimination concepts. This constitutes a movement towards further harmonization of discrimination concepts between the EU and the ECHR.129

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