The priority of human rights law over discrimination law

Although the law of discrimination may have its origins in concerns about human rights, as a part of legal doctrine, the essential features of discrimination law function in an entirely different way from human rights law, both because of its emphasis on group disadvantage and in its direct horizontal effect against many kinds of duty-bearers. As a higher law, however, human rights law, whether to be found in national constitutions or international conventions, is likely to have several impacts on the interpretation of discrimination law. One impact is the guidance of human rights law on the meaning of protected characteristics in discrimination law. A second impact is that human rights law can expand the protection afforded to the disadvantaged groups by discrimination law in order to ensure adequate protection of their interests. A third impact of human rights law on discrimination law is that it requires that discrimination, whether direct or indirect, should always be justifiable if the discrimination was a proportionate response to an interference with a Convention right. In general the UK courts have understood and applied these three controls of human rights law over discrimination law, with the possible exception of the Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers.