5Duty to consider derogating from the ECHR: Clause 12
126.Clause 12 of the Bill inserts a new section 14A into the Human Rights Act, which provides that the Secretary of State “must keep under consideration” whether, in relation to any overseas operations that the Secretary of State considers are or would be significant, it would be appropriate for the UK to make a derogation under Article 15 ECHR.
The legal framework for derogating under Article 15 ECHR
127.Article 15 ECHR provides:
“1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligation under [the] Convention to the extent strictly required by the exigences of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2 [the right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [torture], 4(1) [slavery] and 7 [retrospective criminal penalties] shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”
128.Derogation from certain Convention rights is therefore possible, but only if the situation meets the threshold required by Article 15 ECHR: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligation under [the] Convention to the extent strictly required by the exigences of the situation, provided that such measures are not inconsistent with its other obligations under international law.” Therefore, the obligation to consider derogating does not in any way change the existing situation or obligations of the UK is these circumstances.
129.It is also important to note that the ECHR will only apply extraterritorially where the UK has “effective control”. Moreover, when applied in the context of overseas military operations, the ECHR needs to be read in light of the requirements of international humanitarian law, so it is a modified version of the ECHR which would apply on the battlefield (in the limited situations where the UK could be said to have “effective control”), and in a British detention facility. Where the UK is exercising “effective control”, the ECHR protects not only civilian victims, but UK service personnel. Recent case law has demonstrated that soldiers/families of soldiers have been able to rely on their rights under the Convention in the context of military operations overseas. Any derogation would also serve to limit their rights.
130.The UK cannot lawfully make a derogation unless the Article 15 ECHR conditions for derogation are met. Clause 12 appears to do nothing except require the Minister to consider whether it would be appropriate to make a derogation where those conditions are met, and where such a derogation was necessary to ensure that the UK remained in compliance with its international obligations. It is therefore highly questionable as to whether this provision adds much to what the Minister would or indeed should do in any event, but it does arguably increase the risk of judicial review proceedings and requests for information under the Freedom of Information Act, inquiring whether the Minister has made such a determination and on what grounds.
131.In her Foreword to the 2019 consultation, the then Defence Secretary stated “we intend to derogate from the European Convention on Human Rights before we embark on significant future military operations, where this is appropriate in the precise circumstances of the operation in question. Any derogation would need to be justified and could only be made from certain Articles of the Convention. In the event of such a derogation, our Armed Forces will continue to operate to the highlight standards and be subject to the rule of law”.126
132.The UK has an international legal obligation to comply with the provisions and protections contained in the ECHR Articles, subject to any valid derogation made. To be valid, such a derogation must meet the criteria in Article 15 and must be notified to the Secretary General. The validity of any derogation may be tested before the ECtHR, which has developed its caselaw on Article 15.127
Meaning of “war” and “significant operations overseas”
133.To date, derogations have only been made in respect of domestic measures taken in response to a “public emergency threatening the life of the nation”. Contrary to what the Minister told the Committee in evidence, no State has previously derogated from the ECHR in respect of an overseas military operation.
134.It is therefore unclear how the ECtHR would interpret “war” for the purposes of Article 15 ECHR and in particular whether it would cover traditional wars, such as international armed conflict, or also other operations such as non-international armed conflicts, peacekeeping operations, special operations overseas or counter-terrorism operations overseas.
135.It is equally unclear whether the meaning of “significant overseas operation” in clause 12 is intended to be read as meaning the same thing as the meaning of “war” in Article 15 ECHR. It would be unhelpful if the interpretations diverged as it would be unlawful to derogate in respect of a “significant overseas operation” that did not fall within the criteria of Article 15 ECHR. It is unhelpful that there is no suitable cross-reference between the two.
136.We understand from our evidence session with the MoD Ministers and officials that they intend clause 12 to cover international and non-international armed conflicts, but that it probably would not cover other, non-battlefield operations such as peacekeeping operations, special operations or counter-terrorism operations. There is a real risk that the meaning of “war” in Article 15 ECHR may not align with the meaning given to “significant operations overseas” in clause 12 of the Bill. The MoD should avoid any difference in meaning so that this clause is aligned with the meaning in Article 15 ECHR, by amending this clause to make that clear. It should be made clear on the face of the Bill that this would only apply to UK involvement as a belligerent in an international armed conflict or a non-international armed conflict and that it would not apply in respect of peacekeeping operations, counter-terrorism operations or special operations.
What rights might be derogated from in respect of an overseas operation?
137.We understand that the clause merely intends to cover derogations within the possible limits of derogation under Article 15 ECHR. For example, that it only permits a derogation “to the extent strictly required by the exigences of the situation” (which is the legal test under Article 15 ECHR) and does not permit a derogation in respect of certain rights.
138.Importantly no derogation is possible from Article 2 ECHR (right to life) other than in respect to lawful acts of war, Article 3 ECHR (freedom from torture and inhuman or degrading treatment and punishment), Article 4 ECHR (freedom from slavery) and Article 7 ECHR (no punishment without law). Therefore, many core, inalienable human rights cannot be derogated from in any event even in war.
139.The MoD Ministers and officials informed us that one area where a derogation may be necessary would potentially relate to detention and the right to liberty under Article 5 ECHR.128 Our witnesses agreed—as Reverend Nicholas Mercer told us:
As Elizabeth [Wilmshurst] said, you cannot derogate from Articles 2 and 3 anyway, and thank goodness we cannot. When it comes to Article 5, in terms of practical effect, one of my tasks was to resolve the issue of prisoner status within the prisoner of war camps. We had captured so many Iraqis in civilian clothing that we had to resolve whether they were combatants. That is an exceptionally difficult task, not least because the Iraqi military configuration meant that many of them came from the north of Iraq and we were carrying out tribunals in the south. We fell foul of the Human Rights Act when it came to the length of time they were held in detention pending resolution.129
140.It is important to note though that the detention of combatants (or indeed non-combatants) will still be governed by International Humanitarian Law relating to the treatment of detainees, the civilian population and those hors de combat. Therefore, any such derogations would only be possible where they were strictly necessary due to the exigencies of the situation and would not result in detainees being deprived of these rights. Moreover, it is worth noting that the ECHR has held that in the context of international armed conflict, the standards of Article 5 ECHR must be read in light of international humanitarian law.130 This suggests that there will not me many cases where a derogation will be necessary and therefore where the criteria of Article 15 ECHR for derogation will be met.
141.In respect of the majority of ECHR rights potentially engaged in a conflict situation, no derogation of Convention rights is possible. It is, however, possible, where required by the strict exigencies of the situation, to derogate from certain requirements of Article 5 in relation to detention and Article 8 (right to respect for private and family life). Any such derogations would only be possible where they are necessary due to the strict exigencies of the situation, and adequate safeguards should be in place. Importantly other international human rights and international humanitarian law would still apply to protect detainees, civilians and those hors de combat.
142.The Government may wish to consider restricting this provision so as only to apply to those Articles which could be relevant—namely Article 5 and 8 ECHR.
Parliamentary scrutiny of any derogation
143.In order to derogate from the Convention rights, as applied in the UK by the HRA, not only would the Government need to notify the Secretary General of the Council of Europe in writing, but the Government would also need to make a designated derogation Order under the HRA.
144.Section 1(2) HRA provides that Convention rights have effect “subject to any designated derogation”. Therefore, for UK law purposes, a derogation would only have the effect of limiting the application of Convention rights where a designated derogation is in place. These are made through designated derogation Orders, the mechanism for which is set out in sections 14 and 16 HRA. Given the clear wording of section 1(2) HRA, without such an order, the Convention right would still apply (irrespective of any derogation made at the international level).
145.The HRA provides for designated derogation Orders to be made under the affirmative procedure—i.e. to be made, subject to parliamentary approval within 40 days. But that does not necessarily translate into Parliament being informed, consulted or allowed to debate derogations in good time. For example, in 2001 the lack of a statement to Parliament on the derogation and the public emergency situation in relation to the controversial (and ultimately unlawful) derogation to detain foreign terrorist suspects for unlimited periods of time when they could not be deported led to Points of Order critical of the Home Secretary in the Commons Chamber.131
146.As the Joint Committee on Human Rights previously said in its 2007–2008 Report on the Counter-Terrorism Bill:
“The opportunity for both parliamentary and judicial scrutiny of […] derogations from Convention rights is both limited and uncertain.
As far as parliamentary scrutiny is concerned, the HRA itself provides for some but it is of limited scope. There is no obligation on the Government to consult Parliament before it decides to derogate from a Convention right. A derogation order, making the derogation effective in domestic law, is made by order-in-Council and can be made without being laid first in draft, but once made it must be laid before parliament and it will cease to have effect after 40 days unless approved by a resolution of each House. Parliament’s ability to scrutinise a derogation is therefore fairly limited.”132
147.That Report goes on to conclude that there is a strong case for greater clarity as to the parliamentary procedure to be followed in advance of a derogation, seeking legislative backing for certain types of derogation:
“[…] There is in our view, a positive human rights argument for legislation which would provide in advance a detailed framework for the exercise of the power to derogate […] Such legislation would be positively beneficial in human rights terms by enshrining clearly into law the requirements which must be met in order for such a derogation to be valid, and ensuring that the necessary safeguards against disproportionate exercise of the derogating power are already in place in advance of the power being used.
It could also ensure that there is an opportunity for both houses to satisfy themselves that the conditions for derogating are met and that the extent of the derogation is no greater than is required by the exigencies of the situation, as well as a proper opportunity for judicial scrutiny.”133
148.Given recent, well-known, concerns about the lack of timely, adequate information to and consultation of Parliament by the Government, we have little confidence that the Government will consult Parliament in good time without a clear undertaking by the Government.
149.The principal challenges to effective parliamentary scrutiny of derogations seem to be:
a)There is no provision for parliamentary scrutiny of derogations in advance of a derogation being made.134
b)There is no requirement at present for the Government to provide the Committee with a detailed Memorandum explaining how the Article 15 criteria are met in the case of any specific derogation.
150.Ben Wallace, Secretary of State for Defence, stated in his letter to the Chair, “The Human Rights Act 1998 provides that, unless a decision to derogate is confirmed by both Houses of Parliament within 40 days, a derogation order will lapse. We anticipate that the Joint Committee on Human Rights would play an important role in situations where the government considers that the case for derogation is made out. Nothing in the Bill changes what happens in such situations. Rather, the Bill seeks to bind future governments to give effect to the 2016 announcement by requiring them to consider whether the criteria for derogation are met in relation to future overseas operations.”135
151.Improved transparency in information provided to Parliament and in parliamentary involvement in the derogation process (other than as fait accompli) would hopefully improve transparency, decision-making and compliance with the law.
152.We call on Government to make an undertaking to consult with the Committee in advance of any proposed derogation under the ECHR. They should provide Parliament with sufficient time to consider any proposed derogation in advance of the UK derogating from its international obligations. We also expect to receive from the Secretary of Defence, a detailed Memorandum explaining how the Article 15 ECHR criteria are met in the case of any proposed or actual derogation.
126 Ministry of Defence, Legal Protections for Armed Forces Personnel and Veterans serving in operations outside the United Kingdom, 2019
127 Domestic courts may also review the legality of a derogation. See, for example, A v Secretary of State for the Home Department [2005] UKHL 71.
130 See Hassan v UK, App. No. 29750/09, 16 September 2014
131 HC Deb, 12 November 2001, cols 572–3
132 Joint Committee on Human Rights, Thirteenth Report of Session 2007–08, Counter-Terrorism Policy and Human Rights (Thirteenth Report): Counter-Terrorism Bill, HL Paper 172 / HC 1077, paras 95 and 96.
133 Joint Committee on Human Rights, Thirteenth Report of Session 2007–08, Counter-Terrorism Policy and Human Rights (Thirteenth Report): Counter-Terrorism Bill, HL Paper 172 / HC 1077, paras 99 and 100.
134 Indeed a predecessor Committee has considered that even a designated derogation Order would follow the notification of a derogation at international level – therefore parliament would be the last to be informed of any intended derogation. See paragraph 106 of Joint Committee on Human Rights, Thirteenth Report of Session 2007–08, Counter-Terrorism Policy and Human Rights (Thirteenth Report): Counter-Terrorism Bill, HL Paper 172 / HC 1077. In contrast, in 2016 correspondence between the Chair and the then Defence Secretary, Michael Fallon said that “Everything will be done to facilitate early parliamentary scrutiny if and when we do derogate”. See Q22
135 Letter from Rt Hon Ben Wallace MP, Secretary of State for Defence , regarding the Overseas Operations (Service Personnel and Veterans) Bill, dated 15 June 2020
Published: 29 October 2020