Positive discrimination is not a breach of human rights, says Strasbourg
The European Court of Human Rights has recently issued a decision that supports the position of the UK Courts that ‘positive discrimination’ is not unlawful and not a breach of human rights.
This follows on from a UK Supreme Court case in 2020, where it was decided that a policy of the Agudas Israel Housing Association only to allocate properties to members of the orthodox Jewish community was not a breach of an applicant’s human rights or the Equality Act 2010, despite it being directly discriminatory.
The claim was brought by a mother (‘Z’) with four children who had been waiting to be allocated a social housing property large enough for her family for many years. She had the highest priority of anyone on the register for the type of property she needed.
AIHA is a small charity housing association that is specifically aimed at meeting the housing needs of members of the orthodox Jewish community.
Z claimed that the policy of AIHA was directly discriminatory against her on the basis of religion. AIHA had properties that would have been suitable for Z and Z could not be allocated those properties because she was not a member of the orthodox Jewish community.
The reason given in the UK courts for dismissing the claims was essentially that the Equality Act 2010 permits direct discrimination and protects charities aimed at a particular cause, providing the disadvantage is proportionate to the aim being pursued.
In the Z case, it was relevant that AIHA’s properties were only around 1% of the overall housing stock, and that the majority of applicants needing large properties in Hackney were from the orthodox Jewish community, who experience prejudice in the private rented sector and increased anti-Semitic hate crime and so need to live close to each other for security. In that context, the rule was a proportionate one despite the disadvantage caused to Z.
Z then took her case to the European Court of Human Rights in Strasbourg in May this year. She argued that the rule was discriminatory and so breached her human rights. The court disagreed for largely the same reasons as the Supreme Court. Given the factors outlined above, the court was not satisfied that AIHA’s rule was disproportionate enough to breach Z’s human rights.
This puts beyond doubt that positive discrimination will not be a breach of the Equality Act or international human rights law, so long as it is proportionate to the aim it pursues.