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1. Article 14 is not a free-standing anti-discrimination right (unlike Protocol 12). In what situations does it apply?
Article 14 applies to state interferences or failures to act which occur in relation to the “ambit” of a Convention right (i.e. which is connected to the matter with which the Convention right is concerned). It is not necessary to show that there has been a breach of the right.
2. What is meant by ‘other status’ in respect of discrimination covered by Article 14?
This refers to the open-ended approach to the grounds of discriminatory activities found in Article 14. For the ECtHR there is no exclusive list of “statuses”; Article 14 remains open to new kinds of discrimination. “Status” is to be given a broad and inclusive meaning and is not confined to matters like those expressly listed (which might suggest the view that “status” refers to a personal characteristic, such as gender, which is a matter that cannot be changed). The case law suggests that social or legal position (e.g. as a long term prisoner in Clift v UK) can relate to status.
3. How did the House of Lords interpret and apply Article 15 in A v SSHD [2004] UKHL 56?
There were two main issues. First is whether there was a war or emergency facing the nation. This provision in Article 15 was interpreted by the UKHL (following the ECtHR) as requiring a high level of deference to be given to the state – though there is the famous dissent on this by Lord Hoffmann. Second was the question of the need of the restriction on rights in relation to the emergency and their compatibility with international law. Here the UKHL undertook a much closer scrutiny, considered Article 14, and applied a proportionality test with only limited deference.
4. Does Article 15 apply equally to all Convention rights?
No. In some instances it does not apply at all (i.e. Articles 2, 3, 4(1) and 7). This means that the existence of a national emergency does not justify the use of lethal force, torture, slavery or servitude or the retrospective application of criminal laws. Article 2 can, however, be derogated from so that the use of lethal force in the lawful pursuit of lawful war will not violate the Convention.
5. When dealing with restrictions on inflammatory speech by a radical group, why would a court use Article 17 rather than the qualifying provisions of substantive rights (such as Articles 8–11)?
Courts should try to use Article 8 – 11 because it enables judicial assessment of the claimant’s rights and any justification that may be relevant in terms of the state’s reasons for interference and the claimant’s claims to be acting consistently with the Convention. Article 17 may be used, therefore, in respect of extremist groups seeking to undermine the values inherent in the Convention (see, for example, Paksas v Lithuania).
6. What does Article 16 provide and should it be removed from the Convention?
Article 16 allows the state to have laws and administrative practices which impose restrictions on the political activities of foreigners. It seems inconsistent with the values of the Convention and with Article 1 which requires Convention rights to be protected for “everyone”. It has been narrowly interpreted by the ECtHR.