[2025] EWHC 2751 (Admin)

The Portal claimants relied upon indirect or Thlimmenos discrimination based upon Article 14 of the ECHR (Thlimmenos v Greece [2001] 31 EHRR 15). Thlimmenos concerned a violation of Article 14 of the ECHR in conjunction with Article 9. At [44], the court stated that “the [Article 14] right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

Article 14 provides:

“Article 14

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”

In this case, we are concerned with “other status”.

We take the proper approach from Lord Reed’s judgment in SC at [37]:

“(1)

The court has established in its case law that only differences in treatment based on an identifiable characteristic, or 'status', are capable of amounting to discrimination within the meaning of article 14"

(2)

Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.

(3)

Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

(4)

The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.”

It is clear that an “other status” cannot be solely defined by the difference (or lack of difference) in the treatment complained of (SC, [68]-[71]). If a claimant can establish that they have been subject to discrimination, the burden shifts to the state to establish justification, which in the case of Thlimmenos discrimination requires justification of the lack of differential treatment (ALR, [128]-[129]). Where the discrimination is on so-called “suspect grounds”, the margin of appreciation enjoyed by the state will be considerably reduced. No “suspect grounds” are engaged in this case, in which the Portal Trust’s argument is that an exception should have been made for leases of multiple properties, as a proxy for leases to a tenant for business purposes.

In SC the Supreme Court pointed out at [162] that:

“It is also important to bear in mind that almost any legislation is capable of challenge under article 14. Judges Pejchal and Wojtyczek observed in their partly dissenting opinion in JD [2020] HLR 5, para. 11:

'Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.'

In practice, challenges to legislation on the ground of discrimination have become increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign. The favoured ground of challenge is usually article 14, because it is so easy to establish differential treatment of some category of persons, especially if the concept of indirect discrimination is given a wide scope. Since the principle of proportionality confers on the courts a very broad discretionary power, such cases present a risk of undue interference by the courts in the sphere of political choices. That risk can only be avoided if the courts apply the principle in a manner which respects the boundaries between legality and the political process. As Judges Pejchal and Wojtyczek commented, at para 10:

'Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.'"

In ALR the Divisional Court, having reviewed the authorities on Article 14, stated at [135] that “when considering whether Thlimmenos or indirect discrimination on a ‘suspect’ ground is justified, the margin of discretion which should be accorded to Parliament, though somewhat narrower than under A1P1 taken on its own, is nonetheless relatively broad.” In the present case, when no “suspect ground” is in issue, it is broader still.