Ambit or Scope? Article 8 ECHR and Employment Discrimination: The Privy Council make “heavy weather” of the Question: Royal Cayman Islands Police Association v Commissioner of the Royal Cayman Islands Police Service [2021] UKPC 21

Readers of this journal will be aware that the Protocol No.12 of the European Convention on Human Rights (ECHR) provides a free-standing right against discrimination, something yet to be ratified by the UK. British claimants have to rely on art.14 ECHR, which provides merely that the rights and freedoms in the Convention must be “secured” without discrimination. This means that claims of discrimination must, first of all, fall within one of the free-standing, or substantive rights. Readers will also be aware that there is no need to prove a violation of the substantive right in order to engage art.14, only that the case falls within its “ambit”. Otherwise, of course, art.14 would be redundant. However, to engage a free-standing right for the purpose of proving a violation of that right, the claim must be within its “scope”, a somewhat narrower notion. It is this distinction, between the ambit and the scope, that was central to the Privy Council Opinion in Royal Cayman Islands Police Association v Commissioner of the Royal Cayman Islands Police Service. This note concludes that despite guidance from the European Court of Human Rights (ECtHR) Grand Chamber, confusion over the distinction persists within the English judiciary.