DO WE NEED PROTOCOL12?
The principle of equality is a fundamental and essential human right. It is recognised as such
in all the main international human rights treaties. Over the past decade there has been
increasing recognition that access to equality and to protection from discrimination is
piecemeal and, at times, ineffective. To ensure improved access to equality within Europe,
changes have now been made to the European Convention on Human Rights (ECHR).
What is the European Convention on must now act compatibly with Convention
Human Rights? rights. To this extent, the HRA should be
considered to be a Bill of Rights for the
The European Convention on Human UK.
Rights (ECHR) is a Council of Europe
human rights treaty. Over forty countries What does the ECHR say about
are now members of the Council of discrimination?
Europe. People in countries whose
government has ratified the Convention Article 14 states:
can take a case to the European Court of
Human Rights and seek to establish that “The enjoyment of the rights and
their rights have been breached. freedoms set forth in this Convention
shall be secured without discrimination on
The Convention is principally designed to any ground such as sex, race, colour,
guarantee civil and political rights, such as language, religion, political or other
the right to life, the right to liberty, the right opinion, national or social origin,
to a fair trial and protection from slavery association with a national minority,
and torture. The Convention also includes property, birth or other status.”
a right to privacy, a right to freedom of
expression and right to freedom of religion. What are the limitations of this?
Most of the rights in the Convention are
designed to be qualified or limited in some Article 14 does assert a right to protection
way. For example, it can be lawful to from discrimination, but it is insufficient
interfere with certain rights in the interests because it only offers protection in relation
of the general community. However, any to the enjoyment of other rights in the
limitation to those rights has to be Convention. It does not provide a universal
proportionate. guarantee of equality. Therefore a
discrimination claim will only be
The Human Rights Act 1998 considered under Article 14, if any
difference of treatment falls within the
The Human Rights Act 1998 (HRA) made ambit of another Convention right. If it
the bulk of Convention rights part of UK does not, regardless of how bad the
law. Before then, to all intents and discrimination is, the claim will be
purposes, it was impossible to argue a dismissed. This means that for those
breach of the Convention before the courts areas outside the scope of the
in the UK. Now that the Convention is UK Convention, it will be impossible to rely
law, it is possible to argue that it has been upon the ECHR for protection from
breached before any appropriate court or discrimination.
tribunal. Additionally all public authorities
What is the definition of discrimination increase the importance of non-
for the purposes of the ECHR? discrimination rights within human rights
law. The European Court of Human Rights
Discrimination is a difference in treatment has supported the adoption of the new
that cannot be objectively and reasonably protocol saying that “certain forms of
justified. For there to be an objective discrimination cannot be brought within the
justification, the difference of treatment ambit of Article 14”
must have a very good reason and be
proportionate. What is happening to Protocol 12 in the
Council of Europe?
What is Protocol no 12?
Protocol 12 is now part of the ECHR, but it
Protocols are used to add to, or extend, is not yet in force. Ten Member States of
the rights protected by the Convention. the Council of Europe have to ratify it
The Council of Europe, conscious of the before it takes effect. At that stage it will
limits of Article 14, has agreed an be binding on those countries that have
additional Protocol (no. 12). This Protocol ratified it and people from those countries
strengthens the ECHR’s ability to protect may then take cases to the European
against discrimination. Court of Human Rights arguing a breach
of the Protocol.
Protocol 12 says:
What is the UK’s position?
“(1) The enjoyment of any right set
forth by law shall be secured without The UK Government has said that they
discrimination on any ground such as sex, “have no plans at present” to ratify it.
race, colour, language, religion, political or They have also said that in principle they
other opinion, national or social origin, are in favour of it but that the time is not
association with a national minority, yet right for it.
property, birth or other status.
What can organisations in the UK do?
(2) No one shall be discriminated
against by any public authority on any A free standing right to equality is an
ground such as those mentioned in important, necessary and effective tool in
paragraph 1.” the fight against unjustified discrimination.
The UK government should ratify it and
Protocol 12 is a free standing provision to then incorporate it within the Human
protect individuals from discrimination:- Rights Act. It offers an opportunity for the
government to honour it’s commitment to
• In enjoying any right within national prevent unjustified discrimination.
• By public authorities carrying out their The UK government should be urged to
legal obligations, including when using take this action.
discretionary powers such as grant
• Any other act, or failure to act, by a
public authority. Please feel free to copy and distribute this
leaflet. It is available on our website:
It would strengthen the ECHR by www.justice.org.uk
protecting individuals from discrimination
with regards to all of their legal rights, not JUSTICE, 59 Carter Lane, London
EC4V 5AQ. Tel 020 7329 5100.
just rights protected by the Convention. It
will provide a general guarantee of the
fundamental human right to equal JUSTICE Registered Charity No 1058580 A company
treatment without discrimination. It will limited by guarantee and registered in England No
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