Discrimination, the HRA and the Pensions Act, Part II

After reading my earlier blog on this topic, Joanne Welch asked me:

“May I please request clarification on ‘birth’ – eg age or place or birth? ‘Other status’ – eg women of a particular age group?”

I suggest that anyone who is interested in the meaning of the different expressions in ECHR Article 14 should consult the Handbook on European Non-Discrimination Law which was published by the Council of Europe five years ago. This Handbook will of course not take into account any developments in the last five years, but it is a very good starting place.

Here are relevant extracts from the Handbook on the two questions I have been asked:

“4.10. Social origin, birth and property

It is possible to view these three grounds as interconnected as they relate to a status imputed to an individual by virtue of an inherited social, economic or biological feature.  As such they may also be interrelated with race and ethnicity.   Aside from the ground of ‘birth’, few, if any, cases have been brought before the European Court of Human Rights (ECtHR) relating to these grounds.

Example: in the case of Mazurek v. France, an individual who had been born out of wedlock complained that national law prevented him (as an ‘adulterine’ child) from inheriting more than one quarter of his mother’s estate.  The ECtHR found that this difference in treatment, based solely on the fact of being born out of wedlock, could only be justified by particularly ‘weighty reasons’.

While preserving the traditional family was a legitimate aim it could not be achieved by penalising the child who has no control over the circumstances of their birth.”

… The grounds of social origin, birth and property also feature under Article 2(2) of the International Covenant on Economic, Social and Cultural Rights, 1966. The Committee on Economic, Social and Cultural Rights, responsible for monitoring and interpreting the treaty has expanded on their meaning in its General Comment 20.

According to the Committee, ‘social origin’, ‘birth’ and ‘property’ status are interconnected.

Social origin ‘refers to a person’s inherited social status’. It may relate to the position that they have acquired through birth into a particular social class or community (such as those based on ethnicity, religion, or ideology), or from one’s social situation such as poverty and homelessness.   Additionally, the ground of birth may refer to one’s status as born out of wedlock, or being adopted. The ground of property may relate to one’s status in relation to land (such as being a tenant, owner, or illegal occupant), or in relation to other property.”

“4.12. ‘Other status’

… The ECtHR has developed several grounds under the ‘other status’ category, many of which coincide with those developed under EU law, such as sexual orientation, age, and disability.

In addition to disability, age, and sexual orientation, the ECtHR has also recognised that the following characteristics are protected grounds under ‘other status’: fatherhood; marital status; membership of an organisation; military rank; parenthood of a child born out of wedlock; place of residence.

Example: the case of Petrov v. Bulgaria concerned the practice in a prison of allowing inmates with spouses to telephone them twice a month. The applicant had lived with his partner for a period of four years and had a child with her before his incarceration.  The ECtHR found that, although marriage has a special status, for the purposes of rules concerning communication via telephone, the applicant, who had established a family with a stable partner, was in a comparable situation to married couples.  The ECtHR stated that

‘[w]hile the Contracting States may be allowed a certain margin of appreciation to treat differently married and unmarried couples in the fields of, for instance, taxation, social security or social policy… it is not readily apparent why married and unmarried partners who have an established family life are to be given disparate treatment as regards the possibility to maintain contact by telephone while one of them is in custody.’

The ECtHR accordingly found the discrimination unjustified.”

In a case called Faith Stewart v Secretary of State for Work and Pensions, one of the last judgments I delivered in the Court of Appeal (just before I reached the age of 75 which marks the end of the time when a retired judge can come back and sit in court, if requested), we had to decide whether a convicted prisoner had suffered unlawful discrimination under Article 14 when she was denied the right to a grant from the Social Fund when her little son died while she was in custody.  It was accepted that as a prisoner she had “other status” for the purposes of Article 14, and the case shows the process by which a dispute of this kind is resolved by a court.

I believe it may also be helpful to reproduce the Introduction to the concepts of “direct discrimination” and “indirect discrimination” from Chapter 2 of the Handbook:

“2.1. Introduction

The aim of non-discrimination law is to allow all individuals an equal and fair prospect to access opportunities available in a society. We make choices on a daily basis over issues such as with whom we socialise, where we shop and where we work.  We prefer certain things and certain people over others.  While expressing our subjective preferences is commonplace and normal, at times we may exercise functions that place us in a position of authority or allow us to take decisions that may have a direct impact on others’ lives.  We may be civil servants, shopkeepers, employers, landlords or doctors who decide over how public powers are used, or how private goods and services are offered.  In these non-personal contexts, non-discrimination law intervenes in the choices we make in two ways:

Firstly, it stipulates that those individuals who are in similar situations should receive similar treatment and not be treated less favourably simply because of a particular ‘protected’ characteristic that they possess.   This is known as ‘direct’ discrimination.   Direct discrimination, if framed under the ECHR, is subject to a general objective justification defence; however, under EU law defences against direct discrimination are somewhat limited.

Secondly, non-discrimination law stipulates that those individuals who are in different situations should receive different treatment to the extent that this is needed to allow them to enjoy particular opportunities on the same basis as others. Thus, those same ‘protected grounds’ should be taken into account when carrying out particular practices or creating particular rules.  This is known as ‘indirect’ discrimination.  All forms of indirect discrimination are subject to a defence based on objective justification irrespective of whether the claim is based on the ECHR or EU law.”

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