A Dialogue on Discrimination and Equality: The UK Supreme Court and Article 14 ECHR

This chapter examines how UK courts – especially the Supreme Court and earlier the House of Lords – have interpreted and applied Article 14 of the European Convention on Human Rights (ECHR), the non-discrimination provision. UK courts have developed an extensive case law on Article 14. They have considered questions about the rights of same sex partners to succeed to housing rights and the right of unmarried partners to receive pensions; they have also considered discrimination in relation to sentencing and detention regimes; and they have decided discrimination cases in the context of high policy on national security and social and economic matters. This extensive case law has facilitated a healthy dialogue with the European Court of Human Rights (ECtHR) in Strasbourg as to the scope and application of the right to non-discrimination.
The chapter focuses on two themes. First, there is the dialogue between the UK courts and the ECtHR. UK judges have sometimes commented on the complexity of the non-discrimination case law and have made ‘heavy weather’ of some aspects. Despite this, the dialogue has been productive, in that it has produced much more detailed understanding of several aspects of the non-discrimination right. Second, there is the debate about different notions of formal and substantive equality. Article 14 might be inapt to address serious structural disadvantage. Colm O’Cinneide highlights the stark contrast between the proclamations of equality in UK law and the reality of endemic fatal inequality as manifest in the Grenfell fire. One response might be to develop Article 14 to promote more substantive models of equality.