Issues arising out of the protection from discrimination (3)
• Discrimination as degrading treatment
• Protocol No 12
Degrading treatment
As we saw in the East African Asians v. UK case (Decision 6 March 1978) certain institutional discrimination is capable of reaching the threshold of degrading treatment under Article 3. In that case, the Court underlined that special importance should be attached to discrimination based on race, and that to “publicly single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity”.
Protocol 12
As I mentioned at the outset of this presentation, Protocol 12 came into force on 1st April 2005 for the 11 states that have ratified it (34 have signed it).
Protocol 12 was developed primarily in response to an increasing recognition that access to equality and to protection from discrimination was piecemeal and, at times, ineffective. Inequality is recognised as a serious problem of modern society – and the need for the prohibition on discrimination to be effective at every level is real and urgent.
The greatest limitation on article 14 was of course its dependence on a sufficient link being established with a substantive right protected by the Convention. Discrimination outside the scope of the Convention, regardless of how blatant or reprehensible, was therefore unprotected by article 14 (Botta v Italy (24 February 1998)).
The greatest difference that Protocol 12 will introduce is that it removes this dependence on other Convention rights. It will therefore be a free-standing provision that will apply to:
All rights within national law;
All acts and omissions of public authorities carrying out their legal obligations, including when using their discretionary powers such as grant making; and
Any other act, or failure to act, by a public authority.
In this crucial way, therefore, it will strengthen the Convention by protecting individuals from discrimination with regard to all of their legal rights, and not only those protected by the Convention.
Issues arising out of the protection from discrimination (4)
• Protocol 12:
• Scope of the Protocol/ positive obligations
It can also be hoped that protocol 12 will present an opportunity for the Court to develop its case-law in this area and grapple with the real issues of equality and unequal treatment. Previously, where it has found a breach of a substantive right under the Convention, it has often declined to determine whether there has also been a breach of article 14. In Dudgeon v UK (22 October 1981), a case concerning the continued criminalisation of homosexuality in N Ireland, the Court having identified a breach of Article 8, did not consider it necessary to then consider the article 14 arguments.
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However, it is anticipated that it will take at least 4 years before the Court begins to adjudicate on the effect of Protocol 12, and until then the jurisprudence developed under article 14 will continue to be instructive, not least because, as the Explanatory Report to Protocol 12 makes clear, the basic concept of discrimination in article 1 of the new Protocol is meant to be interpreted in the same way as under article 14.
[There has been some concern from States regarding the potential scope of the new Protocol, in particular in relation to positive obligations. The key issue is the extent to which the State’s duty to ‘secure’ the principle of non-discrimination must extend to relations between private individuals. The Explanatory Report states that the article ‘does not intend to impose a general positive obligation on States to prevent or remedy all instances of discrimination in relations between private persons….any positive obligation in the area of relations between private persons would concern, at the most, relations in the public sphere normally regulated by law for which the State has a certain responsibility’ (eg arbitrary denial of access to work, access to restaurants or other services available to the public, or to services that private persons may make available to the public such as medical care or utilities such as water or electricity). ‘Purely private matters would not be affected. Regulation of such matters would also be likely to interfere with the right to respect for private and family life…’.]
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