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Article 14: Prohibition on Discrimination

The enjoyment of the rights and freedoms set forth in this convention 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.

Article 14 is not a free-standing protection against discrimination. What it does is provide a protection against discrimination in your enjoyment of the rights and freedoms set out in the European Convention on Human Rights.

For there to be a breach of Article 14, the area or issue in relation to which a person is discriminated against has to come within the scope of one of the other Convention articles. There does not, however, have to be a breach of that other article. What you will need to show is that you have been treated differently to someone in an analogous situation on the basis of your ‘status in respect of somethinig which falls within the scope of a Convention right. So, a gay man who was only entitled to succeed to his deceased partner’s flat on less favourable terms than a surviving heterosexual partner would have done was able to rely on Article 14 because he was discriminated against on the basis of his sexual orientation and, as the discrimination concerned his home, it was within the scope of Article 8 (Ghaidan v Godin-Mendoza 2004).

Article 14 covers discrimination on all the grounds set out in the article (sex, race, colour etc.). However, the list is open-ended. This is clear from the fact that the article refers to ‘other status’. Some other grounds for discrimination which are not expressly mentioned in Article 14 are now clearly accepted as coming within the scope of ‘other status’, for example discrimination on the basis of someone’s sexual orientation or age. What is not entirely clear is how far any further grounds for discrimination not listed in Article 14 have to be linked to a personal characteristic or whether it is just necessary for someone to show that they have been treated differently from someone who is in a relevantly similar situation. The House of Lords decided in R (S and Marper) v Chief Constable of Yorkshire (2004) that the difference in treatment must be based on a personal characteristic. This case concerned the retention by police of DNA samples from people who had been arrested. The argument that the retention of their DNA samples in contrast to people who had not been arrested meant that they were being treated differently in breach of Article 14 was rejected. The difference in treatment was not linked to any personal characteristic but rather a historical fact of whether a person had been arrested or not. This case is now pending before the ECHR.

Even where you can show that you have been discriminated against and that the area in which you have been discriminated against comes within the scope of another article it is still possible for the Government or public authority to argue that the discrimination is justified. They must show that there is an objective and justifiable reason for treating you differently and that the difference in treatment is proportionate to that reason i.e. no more than what is necessary. Where they can show this there will be no breach of Article 14.

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