27 - Gender Equality and Article 14 ECHR

Summary

Lady Hale’s role in shaping discrimination law has been unparalleled. Indeed, her foundational contributions to all aspects of discrimination law are too many to cover in depth in this chapter (see further Chapter 30, this volume). The chapter focuses instead on her contribution to article 14 of the European Convention on Human Rights (ECHR) jurisprudence, which has presented specific challenges. This is particularly striking over the last decade, when the burgeoning of article 14 claims has taken the courts into the heartland of government decision-making on a range of contentious issues, including spending. A key driver of this expansion has been the elasticity of the ‘gateway’ right which triggers the use of article 14, as well as the open-ended nature of the grounds on which a complaint of discrimination may be made under article 14. This all takes place in the context of the use of the judicial review procedure rather than traditional tribunal claims for discrimination under the Equality Act (EA) 2010 and its predecessors. The result has been that most of the weight of decision-making under article 14 has fallen on the justification defence. This chapter will analyse Lady Hale’s contribution to making sense of the new challenges represented by such claims. She stands out for her willingness to articulate and engage with the values behind the legal provisions, and her readiness to see the real human issues at stake, bringing in the context and the perspective that come from reaching to the reality of people’s lives.