In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916 an issue arose whether a provision in the Fatal Accidents Act (“the FAA”) was compatible with Article 14 of the ECHR (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life), and therefore whether the bereavement damages regime under the FAA falls within the ambit of Article 8, so as to engage Article 14. In order to bring herself within Article 14, Ms Smith did not have to show that the State had infringed her rights under Article 8. She did need to show that her complaint fell within the “ambit” of Article 8.
As regards the ambit test, even where the State is under no obligation to provide a particular measure in order to comply with its obligations under Article 8, if it does provide a particular measure which does fall within the ambit of Article 8, it must provide the measure without discrimination in compliance with Article 14. The positive measure is described as a “modality” of the right conferred by the substantive provision of the ECHR.
The Court of Appeal said that even though the expressions “ambit” and “scope” are frequently used as synonymous in many of the Strasbourg and domestic authorities, references to “scope” as an alternative to “ambit” are problematic and best avoided in the context of the ambit test for Article 14 purposes. Reference to the “scope” of a an ECHR right, like reference to “the core” of “a right”, is more appropriate when considering the engagement and infringement of one of the ECHR provisions conferring substantive rights but is apt to mislead in the context of a breach of Article 14 when read in conjunction with such a provision. A common thread running through the various descriptions of the ambit test, for the purposes of Article 14, is that the connection or link between the facts and the provisions of the ECHR conferring substantive rights must be more than merely tenuous.
In a case where the claim is that there has been an infringement of Article 14, in conjunction with Article 8, the claim is capable of falling within Article 14 even though there has been no infringement of Article 8. If the State has brought into existence a positive measure which, even though not required by Article 8, is a modality of the exercise of the rights guaranteed by Article 8, the State will be in breach of Article 14 if the measure has more than a tenuous connection with the core values protected by Article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question. The authorities have emphasised the width and flexibility of the ambit test.