How the Human Rights Act has Functioned as a Vehicle for Protecting Equality and Non-discrimination Rights – and the Rights of Vulnerable Groups More Generally
Introduction – the Historic Impact of the ECHR
The European Convention on Human Rights (ECHR) has had a considerable impact on UK law over the years, especially when it comes to the rights of vulnerable minorities and equality issues more generally.
European Court of Human Rights (ECtHR) judgments such as Dudgeon v UK,[1] Smith and Grady v UK,[2] Goodwin v UK[3] and Abdulaziz v UK[4] have generated significant legal changes – such as the repeal of the ban on gay and lesbian people serving in the armed forces (Smith and Grady), recognition of the right of trans persons to have their gender identity recognised (Goodwin), or the ending of overt sex discrimination in the application of immigration control measures (Abdulaziz).
When they were handed down, these judgments inevitably attracted controversy. The ECtHR was accused of crossing the line into politics and/or undermining the prerogatives of nation states. However, over time, these judgments have come to be acknowledged as important steps on the road to greater equality – and absorbed into a wider, comforting narrative of how the UK has progressively extended full equality to an assortment of formerly marginalised groups.
Furthermore, the legal principles developed in this ECtHR case-law have gradually become infused into various aspects of UK domestic law. For decades now, in part because of the link between ECHR and EU jurisprudence, courts have taken these principles into account in interpreting relevant legislation. This is particularly true of the Equality Act 2010: English courts have placed significant reliance on ECtHR jurisprudence in determining complex discrimination law cases such as Lee v Ashers Bakery.[5] The ECtHR case-law has also influenced the development of common law standards related to equality and non-discrimination. These standards remain radically underdeveloped.[6] However, insofar as they have any meaningful content, they have been interpreted by the courts as paralleling the key elements of ECtHR equality jurisprudence.[7]
The Impact of the HRA
And then, of course, there is the Human Rights Act (HRA) 1998. When the HRA originally became law, it was widely anticipated that it would have relatively little impact on equality rights – especially given the comparatively well-developed state of UK anti-discrimination legislation. However, in actuality, the HRA’s equality dimension has influenced the development of UK law in a wide variety of fields, from national security to the protection of disability rights.
Some of the HRA judgments impacting on equality rights (broadly defined) are well known. The ‘Belmarsh’ judgment, A v Secretary of State for the Home Department,[8] saw the House of Lords conclude that the detention without trial of certain categories of non-nationals constituted a breach of the non-discrimination requirements of Article 14 ECHR. In the landmark gay rights judgment of Ghaidan v Godin-Mendoza,[9] the House of Lords interpreted landlord and tenancy legislation by reference to section 3 HRA and Articles 8 and 14 ECHR so as to allow a same-sex life partner to inherit a statutory tenancy as a spouse of the deceased tenant.[10] In the case of In re P,[11] the exclusion of unmarried parents from being considered for adoption in Northern Ireland was held to breach Article 8 ECHR, with the relevant legislation re-interpreted accordingly in line with section 3 HRA. Similarly, in the McLaughlin case,[12] the Supreme Court issued a declaration of incompatibility in respect of the exclusion of unmarried partners from entitlement to widows' allowance.[13] In the case of Mathieson,[14] the Supreme Court concluded that the suspension of a disabled child’s living allowance for the duration of an extended stay in hospital breached Article 14 ECHR, as the difference in treatment between the boy and other vulnerable children in need was not objectively justifiable.
All of these cases addressed significant issues of discrimination, fairness and structural inequality. In general, they demonstrate how the HRA has made the UK legal system better able to provide a remedy to claimants subject to arbitrary or unfair treatment by the state. It is also striking how many of these cases involved challenges to highly rigid or outmoded primary or secondary legislation - much of which had not been subject to any meaningful form of parliamentary scrutiny, or political debate. The same is true for recent judicial determinations finding delegated legislation schemes to be in breach of Article 14 ECHR – including the Supreme Court decision in R (Tigere) v Secretary of State for Business, Innovation and Skills[15] that concluded that the exclusion of students with temporary leave to remain status from the student loan scheme was unjustified.
The impact of the HRA on equality issues is not just restricted to these high-profile apex court decisions. Lower court judgments have also engaged with very important issues of discrimination, social exclusion and structural inequality. These cases have often involved persons with disabilities, carers and other vulnerable and marginalised groups within society. Indeed, they represent some of the most significant and valuable HRA jurisprudence, in terms of its direct impact on individual lives – even if they are often ignored in debates about the Act.
For example, in the important judgment in Hurley v Secretary of State for Work and Pensions,[16] a failure to exempt carers from effect of the 'bedroom tax' held to breach Article 14 ECHR, with the relevant legislative framework being interpreted by reference to section 3 HRA to provide the claimants with a remedy.[17] (This decision is particularly significant for how it recognises carers to be a vulnerable group, and applies stricter scrutiny to measures having a negative impact upon them.) In the East Sussex case,[18] the High Court provided local authorities with detailed guidance as to what forms of physical handling of severely disabled persons would be compatible with Articles 3 and 8 HRA. In C and C v Governing Body of a School,[19] the Upper Tribunal concluded that the automatic exclusion of autistic children from school based on their physical behaviour would constitute unlawful discrimination contrary to Article 14 ECHR.
Taking these judgments together with the way in which ECHR rights are regularly invoked in a variety of other cases involving vulnerable groups,[20] it is clear that the HRA is providing a legal vocabulary for courts and tribunals to address issues of social exclusion, and a mechanism for historically marginalised groups to challenge discriminatory treatment. In other words, the Act has come to play a key role in ensuing justice for minority groups and others facing structural disadvantage – and HRA precedents are now integral to many areas of law impacting upon equality and discrimination issues.
Conclusion
Given all this, there are good reasons to be concerned by any attempt to tinker with the internal mechanisms of the HRA.
The Independent Human Rights Act Review has issued a call for evidence in relation to certain proposals for reforming the Act.[21] Some of those proposals risk undermining the status of existing HRA precedent, and diluting the effectiveness of the Act.
For example, the Review is looking for views on whether the section 2 HRA requirement to ‘take into account’ Strasbourg jurisprudence should be diluted or eliminated. This could call into question the status of existing HRA precedent in many areas, which gives particular (but not necessarily determinative) weight to ECtHR judgments. Might important precedents such as Hurley be open to challenge and revision if section 2 HRA is amended, and if so what costs might this generate in terms of legal uncertainty?
Similar concerns arise in respect of proposals seeking to tilt the balance in the HRA system of remedies away from section 3 interpretation towards section 4 declarations of incompatibility. To what extent would this limit the ability of courts to give concrete remedies to claimants in cases like Hurley and C&C? Would it dilute the precedential value of this and similar cases? Would it encourage a turn towards the much vaguer and inchoate common law equality jurisprudence, to the detriment of legal clarity?
More generally, is it justified to dilute the impact of the HRA, given its effective track record over the last two decades in providing remedies to vulnerable and disadvantaged groups?
Furthermore, are the critics of the HRA correct to claim that it has resulted in excessive judicial interference in political issues, when the bulk of the HRA equality jurisprudence has concerned issues that have usually not been the subject of any sustained political debate – but which often have a very negative impact on social groups lacking political capital, such as persons with disabilities?
Careful thinking is needed in this regard.
[1] (1981) 4 EHRR 149.
[2] (1999) 29 EHRR 493.
[3] (1996) 22 EHRR 123.
[4] Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471.
[5] [2018] UKSC 49.
[6] ‘See C. O’Cinneide, ‘Equality: A Core Common Law Principle – Or “Mere Rationality”’, in M. Elliott and K. Hughes (eds.), Common Law Constitutional Rights (Hart, 2020), 167–192.
[7] See the comments of Ouseley J in R (Gurung) v Secretary of State for Defence [2008] EWHC 1496 (Admin), [54], [60].
[8] [2004] UKHL 56.
[9] [2004] UKHL 30
[10] See also Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467.
[11] [2008] UKHL 38
[12] In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 4.
[13] See similarly R (Hooper) v. Secretary of State for Work and Pensions [2005] UKHL 29.
[14] Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47
[15] [2015] UKSC 57.
[16] [2015] EWHC 3382.
[17]See also Burnip v Birmingham City Council [2012] EWCA Civ 629 (15 May 2012)
[18] R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin).
[19] [2018] UKUT 269 (AAC).
[20] The extensive HRA jurisprudence on prisoners’ rights and immigration issues could also be cited here, as could the jurisprudence on abortion access in Northern Ireland.
[21] See https://www.gov.uk/guidance/independent-human-rights-act-review.
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