The recent judgment of Swift v Secretary of State for Justice [2012] EWHC 2000 (QB) raises some interesting questions regarding the operation of article 14 of the European Convention on Human Rights (“ECHR”).

The case concerned a claim for tortious damages under s1(3)(b) Fatal Accidents Act 1976. As the claimant, the deceased’s unmarried partner, had not fulfilled the statutory requirement of two years’ cohabitation, she was unable to make a claim. She argued, inter alia, that this violated her right to non-discrimination under article 14 ECHR, compared with a partner who had cohabited for the requisite two years.

Under article 14, enjoyment of ECHR rights must 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.” One issue to be resolved was whether length of cohabitation constituted “other status.” As Eady J noted at [43], the list in article 14 was not intended to be exhaustive. This gives rise to the issue of exactly what constitutes a relevant characteristic.

At first glance, a clear limit appears to have been set on the types of characteristics that do count. At [45], Eady J, building upon the decision of R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, noted the need to “guard against delineating a status or personal characteristic simply by reference to the differential treatment.” It thus appears that the types of characteristic which constitute “other status” are those inherent in the individual, rather than being more circumstantial in nature. In the present case, the claimant simply hadn’t fulfilled the statutory criteria. This, as compared to a claimant who had, was therefore not a “personal” characteristic.

However, this distinction is not so clear-cut. Eady J admitted at [46] that the test was not “completely water-tight.” This leaves room for manoeuvre, which seems correct given the open nature of the list in art 14. However, the corollary is that it is no clearer what kinds of characteristics do count. The judgment fails to specify how widely or narrowly the relevant characteristic must be defined in the first instance. The fact that the claimant hadn’t cohabited for the required two years, when compared with an individual who had, was held not to amount to a personal characteristic so as to constitute “other status” for the purposes of art 14. But if the fact of cohabitation were considered in general, compared to an individual who was married, it may well fulfil the test. An individual’s choice to cohabit rather than marry may be deemed as much a personal characteristic as his or her religious beliefs, the latter undoubtedly being considered inherent in the individual.

This aspect of the case was dealt with briefly, due to the finding that in any case the distinction was objectively justified. Nevertheless, it highlights the need for more guidance as to which characteristics can or cannot be added to the list in art 14.

Claire Overman is a BCL Candidate at the University of Oxford.