The Enjoyment of Rights and Freedoms: A New Conception of the ‘Ambit’ under Article 14 ECHR

Date01 September 2006
Publication Date01 September 2006
AuthorAaron Baker
The Enjoyment of Rights and Freedoms: A New
Conception of the ‘Ambit’u nder Article 14 ECHR
Aaron Baker
Article 14 of the European Conventionon Human Rights, as applied by the UK judiciaryu nder
the Human Rights Act1998,i s in danger of becoming as‘parasitic’as it is ofte n described. Judges
have inappropriately narrowed the scope of the‘ambit’ of other Convention articles, and thus
limited the number of claims to which Article14 can apply,by de¢ning it according to co nsidera-
tions more properly weighed in a justi¢cation analysis incorporating proportionality.The emer-
ging approachdeparts from Strasbourg jurisprudence, and fails to givefull e¡ect to the language
and intent of Article14.This trend need not continue.This article begins the process of fashioning
a new conception of the ambit of Convention articles: one that could change the fortunes of
Article 14 cases in the UK, but that £ows naturally from the precedents of the European Court
of Human Rights, and gives e¡ectto the spirit of the HRA.
Article14 of theEuropean Convention on Human Rights(ECHR), whichguar-
antees the enjoyment of othe r Convention rights and freedoms w ithout discrimi-
nation, is often u nhelpfully described as being ‘parasitic’
or as having ‘no
independent existence.
Courts andcommentatorscould describe therelationship
between Articl e 14 a nd the other Convention rights w ith less loaded la nguage,
like ‘the primary function of Article 14, essentially, is in protecting the [non-dis-
criminatory] di stribution of th e other human rights protected by the E CHR.
The fashionable resort to more trenchant epithets suggests an impulse to scold
Article 14 for its super£uity, as if to remind a poor relation of its dependence on
its betters.While a need no doubt exists for courts a nd the legal communi ty to
remember that Article 14 provides no freestanding protection of discrimination,
and to distinguish it from, for example, Protocol 12,
or the Equal Protection
Clause of the 14
Amendment to the United States Constitution, overemphasis-
ing the contingent nature of Article 14 obscures its autonomous signi¢cance and
contributes toan overly restrictive understandingof its scope and application.It is
unfortunate that Article14 cannot cover all discrimination by the state, especially
because the gaps in its coverage are said to include the distribution of signi¢cant
Durham University School of Law. I would like to thank the Durham Human Rights Centre for
nurturing this article, and the anonymous referees of the Modern Law Review for their invaluable
1Whaley vLordAdvocate [200 4]S C 78 at [93].
2ChassagnouvFra nce (1999) 29 EHRR 615 at [18].
3 C. McCrudden, ‘Equality and Non-Discrimination’ in D. Feldman (ed), English Public Law
(Oxford:OUP, 2004) para 11.86.
4 The Council of Europe has voted to add to the ECHR Protocol 12, which prohibits state discri-
minationwithout limitation to the enjoymentof other Co nventionrights and freedoms. It has not
as yet been rati¢ed by a su⁄cient number of signatory states to come into force; the UK, for
instance, has not rati¢ed it.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(200 6) 69(5) MLR 714^737
social goods like employment
and, bizarrely, some aspects of education.
ever, it does nothing for the cause of equality to bemoan the shortcomings of
Article14, and commiserate withjudges who feelcompelled to give unnecessarily
short shrift to its protections.
This article argues for a thoroughly reworked conception of the scope of Arti-
cle 14 ^ speci¢cally under the Human Rights Act 1998 (HRA) in the United
Kingdom, but alo ng lines that can and should be adopted i n other signatory states
and by the European Court of Human Rights (ECtHR) in Strasbourg. By
scope’I refer to the heavilycriticised circumscription of Article14 withinthe area
of ‘enjoyment of the rights and freedoms s et forth in [the] Convention’.The Stras-
bourg Court employs the term‘ambit’ to refer to this area of Article 14’s applica-
tion: a shorthand forthe idea that a subjectof government regulation mightfail to
attract the direct protection of, say, Article 8 (the right to respect for private and
family life), but that it could nevertheless involve the‘enjoyment’ of the right‘set
forth’ in Article 8, andthus engage Article14.The facts of acase must come within
the ambit of another Convention right before Article 14 can apply at all. Many
domesticjudges appear to interpret the ambiti n light of their perception of Arti-
cle 14 as ‘parasitic,’ and hence conclude that Article 14 exists purely to‘inform’ and
expandon’the meaning of other rights.
This leads themto conceive of the ambit
as a slightly extended version of the protective scope of the other more ‘substan-
tive’ articles.
I contend that to understand the ambit courts must come to terms with what
Article 14 protects, not with what other Convention articles protect. A case alle-
ging discr imination in the e njoyment of the r ight to privacy set forth in Ar ticle 8
cannot be resolved through an understanding of what Article 8 guarantees by
wayof protection from state action alleged to invade privacy. A court must con-
struct an understanding of what it means to su¡er discrimination in the enjoyment of
the right to privacy, which must draw from an appreciation of the di¡erence
between enjoying the right to privacy, as protected by Article 14, and being
entitled to the speci¢c protections, as against the state, provided for in Article 8.
I seek in this article to begin the process of constructing that understanding.
The ¢rst section below introduces the problem of the ambit, outlining and
illustrating four conceptions of the ambit, the fourth of which is my own pro-
posed new conception. The second section lays down a foundation of principles
to guide the application of Article14. The next three sections employ these prin-
ciples to critically evaluate the ¢rst three conceptions, explaining how and why
they fail to give e¡ect to the apparent aims of Article 14 and demonstrating their
inconsistency with the weight of Strasbourg precedent. The article concludes by
explaining and defending a proposed fourth conception of the ambit that is true
to the aims of Article 14 and the HRA, and consistent with both Strasbourg
learning and a UKconception of the rights set out in the Convention.
5 S. Livingstone,‘Article 14 and the Prevention of Discrimination in the European Convention on
Human Rights’(1997) 1EHRLR 25, 26;cf Sidabras and DziautasvLithuania [2004] ECHR 395.
6See,eg,R(Douglas)vNorthTyneside MBC [2004] HRLR14 at [56].
7See,eg,Clarke vSecyState forEnvironment,Transport, and the Regions[2001]EWHC Admin 800 at [5].
Aaron Baker
rThe Modern LawReview Limited 2006
(200 6) 69(5) ML R 714^737

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