Evolution of Article 14 & Non-Discrimination in ECHR, Study notes of Human Rights

Download Evolution of Article 14 & Non-Discrimination in ECHR and more Study notes Human Rights in PDF only on Docsity! Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 1 Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR Rory O’Connell Abstract Article 14 ECHR has often been derided as a Cinderella provision, but during the last few years, this has started to change. This article examines how Article 14 has developed, and may live up to its potential as a powerful non-discrimination principle. The case law developments in relation to the “ambit” requirement in Article 14, the development of indirect discrimination case law, and the approval of positive action, all point to a more substantive conception of equality, which offers protection to disadvantaged and vulnerable groups. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 2 Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR Rory O’Connell 1 Introduction The right to equality is often seen as a fundamental right, perhaps the fundamental right. Equality is “the stuff of legend”, 2 even the “sovereign virtue.” 3 There is a sense of power and history behind the words of the 14 th Amendment to the US Constitution, guaranteeing that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The more comprehensive language of Section 15 of the Canadian Charter equally leaves no doubt that equality is an important and demanding right. The language of the non- discrimination clause in the European Convention on Human Rights (ECHR) appears more modest than these formulations. Article 14 of the European Convention on Human Rights reads: “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.” The Article thus imposes a duty on the State and public authorities, acting within the scope of convention rights, not to discriminate on the listed grounds or “other status”, unless the discrimination can be justified. 4 Article 14 is sometimes regarded as a Cinderella provision; the European Court of Human Rights (ECtHR) not developing it to have significant “bite”. 5 As a leading equality law scholar said in 2001, the ECHR approach to equality is “less than satisfactory”. 6 This second class status is manifest in a number of ways. The 1 Senior Lecturer, Human Rights Centre, School of Law, Queen’s University of Belfast; email: r.oconnell@qub.ac.uk. I would like to thank Professor Brice Dickson, Fiona O’Connell and the reviewers for Legal Studies for their comments on this paper. I am very grateful to the students on the Equality and Law module in QUB’s LLM in Human Rights who discussed these ideas and cases with me during the 2007 and 2008 classes. The responsibility for any errors or inadequacies is mine alone. 2 Along with freedom of expression: Noel Whitty, Therese Murphy and Stephen Livingstone, Civil Liberties Law: The Human Rights Act Era (Bath: Butterworths, 2001), 377. 3 Ronald Dworkin, Sovereign Virtue (Cambridge: Harvard University Press, 2000). 4 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 article concentrates on Article 14 jurisprudence. For discussions of Protocol 12, see Urfan Khaliq, "Protocol 12 to the ECHR-a step forward or a step too far?" (2001) Public Law 457; Nicholas Grief, "Non-Discrimination under the European Convention on Human Rights: a critique of the United Kingdom Government's Refusal to Sign and Ratify Protocol 12" (2002) European Law Review HR Supp HR1 5 On the idea of equality review with “bite”, see G. Gunther, "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. 6 A. McColgan, "Women and the Human Rights Act" (2000) 51 (3) Northern Ireland Legal Quarterly 417, 433. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 5 for guidance on what a substantive equality model might look like. 17 Yet in the past ten years, there are signs that Article 14 is starting to play a more significant role, 18 and this is a development that has accelerated in the last three or four years. During the previous ten years, it became apparent that the Strasbourg court would expect “very weighty reasons” to be produced to justify discrimination on grounds of sex, race, nationality, religion and probably on grounds of birth outside of marriage or sexual orientation. 19 In 1996, the Court held that the refusal to pay an unemployment benefit, where that benefit was based on contributions, fell within the ambit of the right to property (Gaygasuz v. Austria). 20 Furthermore, in 2000, the Court of Human Rights indicated that the Convention had the potential to tackle problems of indirect discrimination. 21 The following sections examine the developments in the jurisprudence of the Strasbourg court over the last four years. The paper examines different aspects of the Article 14 jurisprudence, specifically the requirement that an Article 14 claim has to be within the scope of a Convention right; the understanding of “other status”, the topic of what constitutes discrimination under Article 14, the question of justification and finally the issue of positive action. 22 The paper stresses the shifts from a formal to a more substantive model of discrimination law, while also noting there are some points where a formal model is still influential. “Within the Scope of Convention Rights” The non-discrimination clause is restricted to the enjoyment of Convention rights. This is often called the “ambit” requirement: Article 14 can only be invoked if a situation is within the ambit of a Convention right. This is sometimes derided as a parasitic requirement. The ambit requirement, though often attenuated in the 17 Evadne Grant and Joan Small, "Disadvantage and Discrimination: the emerging jurisprudence of the South African Constitutional Court" (2000) 51 Northern Ireland Legal Quarterly 174, G. Moon, "From Equal Treatment to Appropriate Treatment: What Lessons can Canadian Equality Law on Dignity and on Reasonable Accommodation teach the United Kingdom?" (2006) (6) E.H.R.L.R. 695-721, G. Moon and R. Allen, "Dignity Discourse in Discrimination Law: A Better Route to Equality?" (2006) (6) E.H.R.L.R. 610-649; R. O'Connell, "The Role of Dignity in Equality Law: Lessons from Canada and South Africa" (2008) (2) International Journal of Constitutional Law 267-286. See Volume 23, issue 2 of the South African Journal of Human Rights for a symposium on substantive equality. 18 Arnardottir argued for a substantive equality interpretation of Article 14 in Equality and Non- Discrimination Under the European Convention on Human Rights (The Hague: Kluwer, 2002). 19 Arnardottir, Equality and Non-Discrimination Under the European Convention on Human Rights, 141-154. 20 Gaygusuz v. Austria (1996) 23 EHRR 364. 21 Thlimmenos v. Greece (2001) 31 EHRR 411. 22 For a time, UK courts adopted a sharply defined analysis under Article 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, [28-33] per Lord Hoffmann, [64] per Lord Walker, [97] per Lord Carswell. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 6 ECtHR jurisprudence can still trip up equality claims, 23 and at least some Law Lords have indicated that they take the ambit requirement seriously. 24 The restriction of the non-discrimination principle to Convention rights is not an issue which divides formal and substantive theories of equality. The principle that likes should be treated alike is not one which should be limited in this manner. It is also difficult to see why an advocate of substantive equality would like to see it so limited. It would however be a particularly serious issue, from a substantive equality viewpoint, if a non-discrimination principle did not apply to areas of social life where discrimination and disadvantage were likely to be problems. At Strasbourg, the ECtHR has addressed the problem of the ambit in a number of ways. 25 Most strikingly, in some cases it avoids the ambit discussion altogether by treating some discriminatory acts as, in and of themselves, amounting to inhuman or degrading treatment under Article 3, 26 or as violations of the right to respect for private and family life under Article 8. 27 It has been willing to give a wide interpretation of the ambit. Most importantly the ECtHR stresses that Article 14 is an “autonomous” provision, it can be violated even where the substantive article relied upon to invoke Article 14 has not been violated. 28 Beyond recognising a degree of autonomy, the ECtHR has been willing to accept that many situations fall within the “ambit” of a right, thus allowing Article 14 to bite even though the substantive article may not have been violated. This is important as the ECHR includes a list of rights which is a much shorter list than that found in the Universal Declaration of Human Rights. The text does not include many social and economic rights, apart from education (Article 2 of Protocol 1), property (Article 1 of Protocol 1), and rights to join a union (Article 11 ECHR). Yet, problems of discrimination are often experienced in relation to social and economic matters, such as denial of employment opportunities, differential treatment in relation to housing, or uneven enjoyment of the right to health. The ECtHR has gradually extended the ambit requirement to fields which 23 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. 24 Secretary of State for Work and Pensions v M. [2006] UKHL 11, [2006] 2 AC 91 at [4-5] per Lord Bingham, [87-90] per Lord Walker. 25 Noel Whitty, Therese Murphy and Stephen Livingstone, Civil Liberties Law: The Human Rights Act Era (Bath: Butterworths, 2001), 404. 26 Most of these are cases of racial discrimination: East African Asians v. United Kingdom (1973) 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 Court of Human Rights found a violation of Article 3: Price v. United Kingdom [2002] 34 EHRR 53. 27 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 Articles 8-11: Wintemute, R. ""Within the Ambit": How Big Is the "Gap" in Article 14 European Convention on Human Rights" (2004) (4) European Human Rights Law Review 366, 371. 28 Belgian Linguistic case (1968) 1 EHRR 252, 283. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 7 do not, at first glance, fall under the scope of a Convention right. These include social security, and to a lesser extent, the right to work. As noted above, the ECtHR said in the 1996 case of Gaygasuz that decisions not to pay a particular welfare payment will fall within the ambit of the right to property if the welfare payment is based on contributions, rather than merely being funded by general taxation. 29 In Stec v UK, an admissibility decision in 2005, the ECtHR extended the ambit of property rights to cover any social welfare payment, even non-contributory ones, thus demanding that they respect the non-discrimination principle. 30 The admissibility decision in Stec was not disapproved of by the later decision of the Grand Chamber on the merits. 31 In that Grand Chamber decision, one concurring judge noted that the admissibility decision extended the “ambit” very far, and effectively amounted to the ECtHR bringing about the implementation of Protocol 12 to the ECHR in respect of social security benefits, even for those states that had not ratified Protocol 12. 32 This extension of the ambit of property rights to social security matters, thus insisting on the non-discrimination principle, seems to be confirmed in Luczak v. Poland, where the ECtHR assumes that the property right is sufficiently engaged and concentrates on Article 14. 33 In that case, the Polish authorities refused to allow a non-national to join a social security system for farmers. The system was mostly (95%) financed by the public purse rather than contributions. As the applicant had not made any contributions to this scheme, it might have been thought the property right was not engaged, on a pre-Stec approach. 34 Within the European Convention context, decisions to discriminate in respect of the right to work may fall foul of the non-discrimination principle. For example, a decision to prohibit persons from employment in the private sector, because of their past activities as members of Communist security services has been found to be within the ambit of Article 8, and to lead to violations of Article 14 in connection with Article 8 (Sidabras v Lithuania). 35 In reaching this conclusion, the European Court of Human Rights relied on other international material, including Article 1 European Social Charter (ESC), the opinion of the ESC expert committee, and International Labour Organisation texts. 36 A ban on employment affects the ability to earn a living and has a knock-on effect on the enjoyment of a private life. It is therefore possible to plead the non-discrimination right, which the European Court of Human Rights found was violated in Sidabras. Here, the legislation had come into force nearly a decade after the end of communism, it included vague definitions of the jobs affected, and applied to the private sector 29 Gaygusuz v. Austria (1996) 23 EHRR 364. 30 Stec v. United Kingdom [(2005) 41 EHRR SE18, at [47-55]. 31 Stec v. United Kingdom (App. nos. 65731/01 and 65900/01), [2006] 43 EHRR 47. 32 See concurring opinion of Judge Borrego Borrego. 33 Luczak v. Poland Application no. 77782/01. 34 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, [29-32]. 35 Sidabras v Lithuania (2004) Applications nos. 55480/00 and 59330/00, at [47]. 36 Ibid. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 10 though it has not been supplanted by the justification test. It therefore continues to be an issue which could trouble the development of a substantive equality jurisprudence under Article 14. Covert discrimination: Prejudiced motivation of official decisions regulating rights The traditional focus of the ECtHR has been on formal distinctions between persons in analogous positions. This is satisfactory for dealing with straightforward cases of direct, explicit distinctions. In some instances, this approach may not always recognise some situations as being discrimination. This is so when dealing with facially neutral measures (i.e. measures that make no explicit distinctions) that have a disparate impact on members of different groups. This is the problem of indirect discrimination addressed in the next section. Such a formal approach may also be inadequate when dealing with measures that have been taken due to prejudiced motivation, but which do not make formal distinctions. During 2007, the ECtHR indicated that Article 14 may be able to deal with such cases, and in particular, that it may be possible to derive inferences about the existence of prejudiced motives from the statements of elected officials. In one case during 2007, the ECtHR criticised an elected official for making prejudiced comments about “homosexual propaganda”. In Baczkowski v. Poland, a civil society organisation wished to conduct a demonstration to promote a number of equality issues. 51 They were denied permission for their demonstration though other organisations and demonstrations were permitted. The reasons cited for the denial were the failure to provide a “traffic organisation plan”, and to avoid clashes with other demonstrations. The ECtHR found a violation of Article 11 ECHR as the denial of permission did not satisfy the “prescribed by law” requirement in Article 11.2. Prior to the official denial of permission by civil servants, the Mayor had indicated he opposed “propaganda of homosexuality”. The ECtHR, while recognising the right to free expression, also noted that elected officials had to be careful in what they said, as their comments might be interpreted as being instructions for officials. 52 By analogy with the principle that “justice must not only be done, but be seen to be done”, the Mayor’s statement, at a time when officials were considering the request for the demonstration, was sufficient to conclude the denial of permission was a violation of Article 14. 53 This case is perhaps exceptional, though not unique. 54 Generally, the ECtHR requires strong evidence before it will conclude that actions of public officials are motivated by prejudice. In some cases it has even spoken of the need to prove (eg racial) prejudice “beyond reasonable doubt”, though qualifying this by saying proof appropriate to a criminal case was not required. Such proof beyond reasonable doubt may arise from a collection of clues which give rise to a clear 51 Baczkowski v. Poland, Application no. 1543/06. 52 Ibid. [98]. 53 Ibid. [99-101]. 54 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, E.B. v France application no. 43546/02. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 11 inference, or presumptions that are not rebutted. 55 However, the ECtHR will not presume, from the existence of a general social problem of discrimination against a minority, that any ill treatment of a member of that minority is motivated by prejudice. The applicant must refer to specific aspects of his or her case. 56 Even if there is a specific example of a racist comment by a public official, the ECtHR will not necessarily conclude this demonstrates that treatment of a victim has been motivated by a discriminatory purpose. 57 Indirect discrimination Despite some cases dealing with indirect discrimination, 58 and some dicta favourable to the notion of indirect discrimination, 59 the bulk of the case law of the Strasbourg Court deals only with direct discrimination, and the ECtHR is reluctant to accept indirect discrimination cases. 60 This is partly for the reason just discussed, that the ECtHR does not want to draw inferences from statistical patterns of disadvantage. Nevertheless, ever since the Thlimmennos case in 2000, the ECtHR has moved to deal with problems of indirect discrimination. In some of the cases on the Article 14 duty to investigate (see later), the ECtHR seems to base the positive obligation to investigate on an indirect discrimination argument: that there is a factual difference that calls for a different treatment (i.e. an investigation into prejudice). 61 In a 2005 admissibility decision, the court actually found that the facially neutral decision to withdraw certain disability benefits had a differential impact as between men and women and that this was prima facie discrimination under Article 14, but it was held to be justified. 62 Also, in the somewhat exceptional case of Zarb Adami v Malta, the Court of Human Rights was willing to find that there was a situation of discrimination in fact and practice, even though not on the face of the law. Maltese law governing juries allowed for men and women to serve, but administrative practices meant that in practice far more 55 Celniku v. Greece, Application no. 21449/04 at [79-81]; Cobzaru v. Romania, application no. 48254/99 at [93]. 56 Cobzaru v. Romania, application no. 48254/99 at [95]. 57 Karagiannopoulos v. Greece, Application no. 27850/03 at [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 Article 2. 58 Thlimmenos v. Greece (2001) 31 EHRR 411; Zarb Adami v. Malta (2007) 44 EHRR 49. 59 Belgian Linguistic case v. Belgium (1967) 1 EHRR 252, section 10; Jordan v. United Kingdom Application no. 24746/94, (2003) 37 EHRR 2, [154]; Kelly and others v. United Kingdom (Application no. 30054/96) at [148]. 60 Ahmad v. United Kingdom (1981) 4 EHRR 127; Stedman v. United Kingdom (1997) 23 EHRR CD 168; D.H. v. Czech Republic Application no. 57325/00, but now reversed by the Grand Chamber. 61 Angelova and Iliev v Bulgaria Application no. 55523/00, at [115]. 62 Hoogendijk v Netherlands Application number 58641/00. 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 Article 14 that “seeking to keep the costs of the … scheme within acceptable limits” by itself would have been a sufficient purpose. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 12 men than women served on juries, and the Court found that this situation was one of unjustified sex discriminatory. 63 The Thlimmennos and Zarb Adami cases thus point the way to a greater willingness to tackle the problem of indirect discrimination. In what is perhaps the most important Article 14 case of 2007, the European Court of Human Rights extended its Article 14 jurisprudence significantly in a case involving indirect racial discrimination. The DH case involved the education system in the Czech Republic. The Czech Republic had a network of special schools for children with mental “deficiencies”. The majority of children in these special schools were of Roma origin. The applicants claimed their education suffered and they were subject to segregation; they invoked Article 14 in conjunction with the right to education in Article 2 of Protocol 1 to the European Convention. The Grand Chamber ruled that Article 14 may require efforts to correct factual inequality, even if this required differential treatment, and the Grand Chamber strongly condemned racial discrimination. 64 The Grand Chamber held that it was not necessary to prove any intention to discriminate and that once a discriminatory effect was shown, the burden then switched to the State to justify it under the Court’s proportionality test. 65 In this case, the State failed to justify the policies with this discriminatory effect (though noting they had made efforts to address the inequalities 66 ). The DH case is a major breakthrough for a more substantive model of equality in Strasbourg. It recognises that Article 14 covers problems of indirect discrimination, rules that it is not necessary to demonstrate a prejudiced motivation and it provides that where the applicant can demonstrate a discriminatory situation, the burden switches to the State to provide a justification for it. The DH case has been discussed and confirmed in more recent cases involving the apparent exclusion of Roma children from mainstream education. 67 On the listed grounds or “other status” Formal and substantive models of equality tend to differ on what sorts of distinctions deserve scrutiny. A formal model will be concerned with any kind of distinction, as it protects a principle that any distinction or legislative classification should be rationally justifiable. A substantive model of equality will be more concerned with those distinctions that have a particular tendency to reinforce patterns of disadvantage and discrimination, such as race, or sex or religion. These are only starting points of course. A formal model of equality might well be modified to allow for more rigorous scrutiny of certain types of distinction, along a “sliding scale”. 68 A substantive model of equality needs to be 63 Zarb Adami v. Malta (2007) 44 EHRR 49. 64 D.H. v Czech Republic Application no. 57325/00, at [175-176]. 65 At [193-5]. 66 At [71-72]. 67 Sampanis v Greece application no. 32526/05, Orsus and others v Croatia, application no. 15766/03. 68 On suggestions for a “sliding scale” approach to equal protection in the US, see San Antonio Independent School District v. Rodriguez (1973) 411 U.S. 1 (per Justice Thurgood Marshall), City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432 (per Justice Stevens). Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 15 important comments on when a distinction will be considered to be based on a personal characteristic. Lord Walker explains that the idea of a personal characteristic is like a set of “concentric circles”. The inner core includes those innate characteristics that are most intimately linked to one’s personality, and which are difficult to change. Second, come those personal decisions that are “almost innate” and which concern the exercise of classic liberal rights of freedom expression, association and religion. The third circle includes certain grounds that are more in the nature of what people do, or what is done to them. This last includes questions of military status, domicile, residence and homelessness. 84 Significantly, the intensity of the review will be affected by the distance between the characteristic in question and the core characteristics. 85 Having agreed in RJM, that Article 14 applied to the distinction in question, the Law Lords ultimately ruled that the distinction was justified. Whilst the RJM case suggests the UK courts are moving towards the broader conception of status found in Strasbourg, the Strasbourg court seems recently to have moved some way towards the British focus on “personal characteristics”. In the Carson decision, the Strasbourg court accepts that a distinction has to be based on a personal characteristic. It endorses a wide conception however of personal characteristic, including choice of residence as a “status” under Article 14. Crucially however the Court endorses the position that this is not a status that calls for very strong justification, and in fact accords the UK a wide margin of appreciation. 86 Justification Any distinction found prima facie to violate Article 14 can nevertheless be justified under the proportionality test of the ECtHR, that is to say it can be justified if it is for a legitimate purpose and if the distinction is proportionate: “…a difference of treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” 87 In applying the justification test, the ECtHR operates with a version of the American “suspect classifications” doctrine. Certain types of classifications (e.g. those based on sex, race, nationality, birth status, religion, sexual orientation) are treated as being suspect and calling for an extremely persuasive justification from the State for using them. The ECtHR has also referred to the concept of the margin of appreciation (MOA). This allows a greater degree of discretion to a state in circumstances where the international court feels it is ill-placed to second guess the national judgment (e.g. national security, public morality, planning decisions, and areas where there is no common European standard). 84 Lord Walker at [5]. All the Law Lords agree with this short speech. 85 Lord Walker at [5], Lord Neuberger at [56]. 86 Carson v United Kingdom Application no. 42184/05, (2008/11/04) 87 Religionsgemeinschaft der Zeugen Jehovas v Austria application no. 40825/98, (2008) [87]. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 16 The doctrine of the margin of appreciation has frequently stymied efforts to promote equality in relation to sexual orientation. The margin of appreciation has been invoked in relation to differential age limits for sexual activity as between gay men and heterosexual couples. While this was done in cases in the 1980s, the margin of appreciation had evolved by the end of the century, and such discrimination was held to no longer be compatible with the Convention. 88 The appearance of the margin of appreciation in a 2002 case was more startling. In Frette v France, the applicant had sought to adopt a child as a single person, and was refused due to reasons of his lifestyle, which in reality meant due to his sexual orientation. The ECtHR held that such a case fell within the ambit of Article 8, and examined the Article 14 argument. 89 At this point, the margin of appreciation was invoked: the court found there was no general policy across Europe on the question of whether, if single persons could adopt children, this possibility extended to a single gay man. 90 Given this position, the fact that the best interests of the child had to be considered, and the divided views of the scientific community on adoption by gay persons, the Court found the distinction to be justified. 91 This is certainly not an example of an exacting proportionality inquiry. The reference to scientific evidence seems to be based on the respondent Government’s assertion: no scientific reports are actually cited. In an earlier case, involving the exclusion of gay men and lesbians from the UK armed forces, the ECtHR had been critical of the failure to produce satisfactory scientific evidence of any necessity for the policy. Indeed, in that case, a report was produced by the government and the Court examined it closely to see if it was convincing, concluding that it was not. 92 In 2008, the Court revisited this issue as a Grand Chamber in the case of E.B. v France. 93 This concerned a woman who sought an authorisation as a single person to adopt. The domestic authorities refused this, making reference to the absence of a paternal figure in the applicant’s household, and the attitude of her female partner. The ECtHR concluded that this amounted to a refusal on the grounds of her sexual orientation. 94 Then, in a striking contrast to Frette the Court reiterates that only “particularly weighty and convincing reasons” could justify a distinction on grounds of sexual orientation. 95 The Government’s arguments did not provide such a reason, and the discrimination on grounds of sexual orientation was “not acceptable”. 96 Significantly, the Grand Chamber’s discussion of these issues does not even mention the term “margin of appreciation”. 97 There were a large number of dissenting opinions (the Grand Chamber split 10-7 on a finding of a violation), but most of these do not challenge the central holding of the 88 Sutherland v. United Kingdom (1997) 24 EHRR CD 22. 89 Frette v. France (2004) 38 EHRR 21, [32-3]. 90 [41]. 91 [42-3]. 92 Lustig-Prean v. United Kingdom [1999] 29 EHRR 548, [88-98]. 93 E.B. v France application no. 43546/02. 94 [89]. 95 [91]. 96 [96]. 97 See [72-98]. Definitive version of this article available at wileyonlinelibrary.com. Citation: Rory O'Connell, 'Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR' (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211-229 17 Grand Chamber, that a denial of a possibility to adopt based on the sexual orientation of the applicant is a violation of the Convention. 98 The E.B. case implicitly disapproves of the invocation of the margin of appreciation doctrine in Frette. This does not mean that the margin of appreciation doctrine has no application. Where a subject matter calls for a difficult balancing of interests, and where the distinction is not based on a “suspect” ground, then the Court of Human Rights continues to speak of a margin of appreciation, and continues to apply a more relaxed standard of justification in these areas. Taxation policy is another area where a margin of appreciation is employed, as indicated in the case of Burden and Burden v. UK. The ECtHR accepted that the UK could promote marriage and also long term same sex relationships, even if this meant drawing a distinction between spouses and civil partners on the one hand and other people living in “long-term settled relationship[s]”. Such a distinction was deemed well within the margin of appreciation. 99 Similarly, in the Carson case, the ECtHR accepted that a margin of appreciation was appropriate in cases involving the social security system, specifically pensions. 100 The Court went so far as to speak of the “very wide margin of appreciation which it enjoys in matters of macro-economic policy”. 101 The Court has recognised that the margin of appreciation can cover the sorts of fine judgements that states have to make when creating features like cut-off dates for entitlements to benefits. 102 Nevertheless, the fact that a case involves social policy does not mean that the courts should abandon their duty to examine policy choices. The House of Lords has recently indicated that the State must make choices as between rational schemes. Where the State’s choice is not rational then the national courts may say so 103 - and they may say so even if they believe the Strasbourg Court would not disturb the State’s judgement because of the margin of appreciation appropriately accorded by an international court to national authorities. 104 Positive action: Affirmative Action and Positive Obligations The issues raised by affirmative action or positive action are often critical in testing the differences between a formal and a substantive theory of equality. 98 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. 99 Burden and Burden v. United Kingdom (2007) 44 EHRR 51, at [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. 100 Carson v United Kingdom Application no. 42184/05. 101 Carson, [81]. This margin of appreciation does not mean that taxation policy will never be found to violate Article 14: see Darby v. Sweden (1991) 13 EHRR 774. 102 Twizell v. United Kingdom, (Application no. 25379/02), [24]. 103 In re P. [2008] UKHL 38, [2008] 3 WLR 76 [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. 104 In re P. [31-38] per Lord Hoffmann.