ECHR Article 14

May 7th, 2019

In R (TP) v SoS for DWP (2019) EWHC 1116 (Admin) Swift J said:-

44. … Justification for the purposes of any claim under the Human Rights Act is structured by the now well-known four step test.

  1. Whether there is a legitimate aim for the difference in treatment contained in the measure, sufficiently important to justify the limitation of a Convention right.
  2. Whether the measure is rationally connected to the legitimate aim.
  3. Whether a less intrusive measure could have been used.
  4. Whether, bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, a fair balance has been struck between the rights of the individual and interests of the community. …

45. On an Article 14 claim the court decides for itself whether the distinction drawn is Article 14 compliant. What must be justified is the difference in treatment. Yet when applying the approach in the four-stage test, and in particular when applying the third and fourth stages, a court must afford a measure of latitude to the primary decision maker. The extent of that latitude will be appropriate to context. In this case, I must have well in mind that the choice made by the Secretary of State was a choice on a matter of social and economic policy, and was a choice about the allocation of public resources. The decisions on such matters are primarily for the Executive. The degree of respect to be afforded by the court to decisions of this nature is substantial, and the question for the court is whether or not the decision is “manifestly without reasonable foundation”.”

46. When considering the standard for justification it is also relevant to have in mind that the present case is an “other status” situation. The burden of justification in such a case can be, and is likely to be, less onerous than in a case where the differential treatment is, say, on grounds of sex or race.”

56. … Any system of rules, as opposed to a system in which discretion is exercised case-by-case, will throw up hard cases. The common justifications for bright line rules include that they tend towards overall fairness, in particular in the context of areas such as the distribution of state benefits, because they promote legal certainty, which is preferable to the inconsistency which can arise if each case is weighed on its own merits: … This is an iteration of the age-old debate over fairness as consistency versus fairness as individuation. In reality, fairness requires something of both – up to a point.

57. When assessing whether or not a bright line rule is justifiable, notwithstanding that it will create hard cases, a court must be careful to afford appropriate latitude to the decision-maker. Just because the court may be able to devise a different bright line rule which if applied to the facts before it would have avoided those facts falling into the box marked “hard cases”, that may not determine that the rule chosen by the decision-maker is unjustified. The court-devised rule will also produce its own class of hard cases.

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