Proportional, Not Strict, Scrutiny: Against a U.S. Suspect Classifications Model under Article 14 ECHR in the U.K

Abstract

This article maintains that U.K. courts, in applying Article 14 of the European Convention on Human Rights (ECHR), should under no circumstances emulate the U.S. Equal Protection Clause (EPC) approach to justifying state discrimination, and that to do so would fly in the face of Strasbourg precedent and common sense. To support these contentions this article first analyzes some illustrative U.K. discrimination cases to evaluate to what extent and why the United Kingdom appears to lean in the direction of a "suspect classifications" approach to justification of discriminatory treatment. It then explains how U.S. courts handle justification under the EPC, offering a critical assessment of (1) the reasons for the evolution of that approach, and (2) its coherence and success. The article then analyzes, by comparison, the approach of the European Court of Human Rights to Article 14 justification, noting the inconsistency of the Strasbourg teaching with a U.S.-style methodology. The article concludes that the U.S. model arises from a completely different jurisprudential tradition and logic than the ECHR's proportionality model. The United Kingdom should thus reject the U.S. practice of applying discrete levels of scrutiny depending on the degree to which a classification is "suspect."