The right ambit – Lady Hale and the limitations of Article 8 ECHR

ABSTRACT

This article considers the way the interpretation of the ‘ambit’ of the right to respect for private and family life under Article 8 ECHR has developed in the English courts over time and explores Lady Hale’s influence on this development. English courts started by taking an unduly narrow interpretation of ‘ambit’. The majority in Secretary of State for Work and Pensions v M even sought to make a connection between the intensity of the infringement of the right and its ‘ambit’. Lady Hale dissented and correctly identified ‘ambit’ and justification as separate issues, and that the intensity of a potential infringement only is a question for the latter. In Re McLaughlin she later stated that the English courts wrongly had relied on domestically developed concepts rather than the Strasbourg jurisprudence, thus setting the courts on the right path. The article concludes that nevertheless the final steps to arriving at the correct interpretation still need to be taken: the express recognition that the intensity of the infringement cannot define the ‘ambit’ of the right concerned, but rather is a question that needs to be considered separately when determining whether the infringement can be justified.

KEYWORDS:

• ECHR
• family life
• Lady Hale
• interpretation
• Article 8 ECHR
• Article 14 ECHR
• ambit

Acknowledgments

I would like to thank Dr Claire Fenton-Glynn, Prof. Stephen Gilmore and Mr John Eekelaar for their insightful comments and support.

Disclosure statement

No potential conflict of interest was reported by the author(s).