The Government’s Independent Review of the Human Rights Act Contents

8Derogating from the ECHR: Designated Derogation Orders and Remedies

Introduction

199.There are limits on a State’s ability to derogate from basic human rights protections. Article 15 ECHR sets clear limits as to when–and to what extent–a State may derogate from its ECHR obligations. Any attempt to derogate from the protections in the ECHR outside of those limits would be an unlawful violation of human rights. It is therefore very important that derogations are properly scrutinised and are only used lawfully.

200.Under the HRA the principal role is for the Government to make a derogation and a designated derogation order; for Parliament to consider and approve that designated derogation order; and for the Courts to hear any challenges as to the legality of any derogations from basic human rights protections.

201.If the Government attempts to derogate from the ECHR in a way that is not lawful, any executive acts such as deciding to derogate in those terms, making a designated derogation order, or acting pursuant to such an attempt to derogate, would be unlawful and can be challenged before the courts under the usual grounds of challenging the lawfulness of executive actions.

202.As is well established, the Government and other public authorities can only act within the limits of their powers. It is therefore crucial that there are checks and balances in place for situations where the Government acts unlawfully and especially where such unlawful acts lead to a violation of an individual’s human rights.

203.The terms of reference for IHRAR169 include the question “What remedies should be available to domestic courts when considering challenges to designated derogation orders made under section 14(1)?”

204.In order to consider whether there is a case for reviewing the remedies available to domestic courts when considering challenges to designated derogation Orders, it is first important to recall the legal framework (both national and international) for derogating from the ECHR, before considering recent case studies and the case for change.

The legal framework for derogating from the ECHR

Article 15 ECHR

Box 10: Article 15 ECHR

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.”

Source: European Convention on Human Rights

205.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. Derogation from certain Convention rights is possible, but only if and to the extent that the situation meets the threshold required by Article 15 ECHR. The validity of any derogation may be tested before the ECtHR, which has developed its caselaw on Article 15.170

Political Context

206.In the course of the debates on the Overseas Operations (Service Personnel and Veterans) Bill 2019–21, the Government has recently explored, and then withdrew, a proposal to require Ministers systematically to consider whether the criteria of Article 15 ECHR are met in order to derogate from certain ECHR rights during overseas military operations.171 As we said, in relation to that proposal:

“The UK cannot lawfully make a derogation unless the Article 15 ECHR conditions for derogation are met … It is therefore highly questionable as to whether this provision adds much to what the Minister would or indeed should do in any event … “172

207.As was made clear during the debates on that Bill, there are clear limits on a State’s ability to derogate from its obligation to protect the human rights of those within its control—and this is for good reason. In any event, the proposal was withdrawn, perhaps making this element of the IHRAR’s term of reference less pertinent.

HRA Framework for derogating from the ECHR

208.In order to derogate from the Convention rights, not only would the Government need to comply with the criteria for derogation, but it would also need to notify the Secretary General of the Council of Europe in writing, and, under the terms of the HRA, it would also need to make a designated derogation Order in order for the derogation to have effect in UK law.

209.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.

210.The HRA provides for designated derogation Orders to be made under the ‘made affirmative’ procedure—i.e. to be made by the Minister, but to cease to have effect unless approved by a resolution of both Houses of Parliament within 40 days.173 Whilst this procedure therefore purports to involve Parliament actively in the approval of a designated derogation Order, we have noted in the Committee’s previous work that the requirement for parliamentary approval does not necessarily translate into Parliament being informed, consulted or allowed to debate derogations in good time.174

The lack of adequate parliamentary scrutiny of designated derogation Orders

211.The opportunity for both parliamentary and judicial scrutiny of derogation from Convention rights is both limited and uncertain. As the Joint Committee on Human Rights noted in its 2007–2008 Report on the Counter-Terrorism Bill:

“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.”175

212.That Report went 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, to ensure that there is an opportunity for both houses to satisfy themselves that the conditions for derogating are met, that the extent of the derogation is no greater than is required by the exigencies of the situation, and that any necessary safeguards against any disproportionate exercise of the derogating power are in place in advance of the power being used.176

213.Despite further such requests by the JCHR in 2020, such a move to improve parliamentary scrutiny of designated derogation Orders has not been made. Moreover, there has only been one designated derogation Order made since the HRA entered into force and concerns were expressed then at the lack of adequate information and time for parliamentary scrutiny.177

UK derogations from the ECHR

214.The UK has only very rarely derogated from the ECHR. We are only aware of eight derogations.178 All of the UK’s derogations related to powers to detain suspected terrorists and required a derogation from the right to liberty (Article 5 ECHR). All but one of these related to the threat of terrorism in Northern Ireland and all but the latest of these derogations pre-date the HRA. The eight derogations are:

a)Six derogations from 1957, 1969, 1971, 1973, and 1975 concerning extra-judicial detention relating to the Troubles in Northern Ireland.179

b)A 1988 derogation relating to powers to detain suspected terrorists in relation to Northern Ireland.180

c)A 2001 derogation to detain non-nationals suspected of international terrorism but who couldn’t be deported. This is the only derogation made since the entry into force of the HRA and therefore the only derogation to have required a designated derogation Order. The derogation was considered by SIAC, the Court of Appeal, the House of Lords (as it then was) and the ECtHR in the case A and others v UK [2009] and was found to be unlawful.

The case of A v UK [2009]

215.This case concerned measures introduced to detain foreign nationals who were suspected of being international terrorists but who could not be deported due to a real risk of their being subjected to torture or inhuman or degrading treatment or punishment contrary to Article 3 ECHR on their return to their country of origin. The UK Government had made a derogation in respect of the right to liberty under Article 5 ECHR and a corresponding designated derogation Order. This is because the UK Government considered that the power to detain these individuals under the Anti-Terrorism Crime and Security Act 2001 (ATCSA) may be inconsistent with the right to liberty under Article 5(1) ECHR.

216.The UK courts judicially reviewed the derogation and the designated derogation Order:

a)The Special Immigration Appeals Commission (SIAC) was satisfied that the criteria under Article 15 ECHR were met–i.e. that there was a “public emergency threatening the life of the nation”. However, it held that the measures constituted unlawful discrimination as the measures were only taken against non-British nationals, whereas British nationals who posed a similar threat to the UK were not detained. SIAC consequently quashed the designated derogation Order and issued a section 4 HRA declaration of incompatibility in respect of section 23 ATCSA 2001.

b)The Court of Appeal agreed that there was a public emergency threatening the life of the nation, but found that the measures were objectively justified as ATCSA only applied to individuals that the Secretary of State wanted to deport but could not and so did not consider that the derogation was unlawful.

c)The House of Lords also agreed that there was a public emergency threatening the life of the nation, but that the detention scheme did not rationally address the threat to security and was therefore disproportionate. It found, in particular, that there was evidence that United Kingdom nationals were also involved in terrorist networks linked to al-Qaeda and that the detention scheme in question discriminated unjustifiably against foreign nationals. It therefore made a declaration of incompatibility under section 4 HRA and made a quashing order in respect of the designated derogation Order.181

d)The ECtHR accepted that there had been a public emergency threatening the life of the nation, noting that significant attention also had to be paid to the views of the national courts, which were better placed to assess the evidence relating to the existence of an emergency. On substance, it found in particular that the choice by the Government and Parliament of an immigration measure to address what had essentially been a security issue had resulted in a failure adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists.182 The threat came from both British nationals and foreign nationals and there was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national. The Court thus found that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention because the derogating measures had been disproportionate in that they had discriminated unjustifiably between nationals and non-nationals.

Arguments for a change

217.Notwithstanding the judicial review of the designated derogation Order at issue in A v UK, concerns have been expressed at the lack of clarity as to the judicial scrutiny opportunities for designated derogation Orders. As the Joint Committee on Human Rights previously said in its 2007–2008 Report on the Counter-Terrorism Bill:

“As for judicial scrutiny, the HRA itself does not make any express provision for judicial control of derogations. Article 15 ECHR, which is the source of the power to derogate from Convention rights and contains the preconditions which must be satisfied for a derogation to be lawful, is not one of the Articles of the ECHR expressly incorporated by the HRA.”183

218.Further, in evidence to IHRAR, Policy Exchange’s Judicial Power Project (JPP) suggested that Parliament could enact an ouster clause specifying that no court would have authority to question a designated derogation order. It acknowledged that this would be “highly controversial”, but they argued that it would be consistent with the role that Government plays in deciding on derogations from the ECHR.184 However, in a constitutional system that respects the rule of law, citizens should be protected from unlawful decisions of the Government that breach their human rights. This is done through the Courts hearing challenges to such unlawful decisions and providing appropriate and effective remedies where human rights have been violated by as a result of such unlawful actions.

Conclusion

219.It is only right that there should be clear substantive and procedural limits on a State’s ability to derogate from basic human rights protections. Article 15 ECHR sets clear limits as to when—and to what extent—a State may derogate from its ECHR obligations. It is crucial that there are adequate parliamentary and judicial controls on any decision to derogate from human rights safeguards.

220.The HRA sets out the roles for national actors in any derogation decision. Under the HRA the principal role for the Government is to make a derogation and a designated derogation order and to keep it under review; for Parliament to consider and approve that designated derogation order and to hold the Government to account; and for the Courts to hear any challenges as to the legality of any derogations from basic human rights protections.

221.It is important that both the parliamentary and judicial controls on the legality and necessity of derogations are retained. Moreover, as we have seen in our previous work, it is clear that parliamentary scrutiny of derogations should be improved. Given the absence of improved parliamentary scrutiny of derogations, judicial scrutiny is all the more crucial.

222.The UK has only rarely derogated from the ECHR. Since the entry into force of the HRA only one designated derogation Order has been made. There is a very limited evidence base on which to assess whether there is any need for improved or bespoke remedies for challenges to designated derogation Orders. As such, we think there is a limited need and a limited case for reviewing the current arrangements for remedies for challenges to designated derogation Orders.

223.Judicial scrutiny of UK derogations from the ECHR and designated derogation Orders is essential to ensure that human rights are not violated. Impeding the courts from delivering an effective remedy to a person whose human rights were violated would be deeply problematic.

224.The national courts are also best placed to assess the evidence relating to the existence of an emergency threatening the life of the nation–and this has been recognised by the ECtHR who will pay significant attention to the views of the national courts on such matters. The national courts can therefore play a key role in setting out the context of an emergency and the extent of the margin of appreciation to be accorded to the State.

225.The current arrangement whereby the domestic courts have powers to issue quashing orders in respect of a designated derogation Order, but only to make a declaration of incompatibility in respect of a provision of an Act of Parliament reflects the status quo for the powers of the courts in relation to statutory instruments as compared to Acts of Parliament. Moreover, it seems to us to strike the right balance in ensuring respect for Parliamentary sovereignty, whilst also ensuring that acts of the executive that unlawfully violate a person’s human rights are quashed.

169 Independent Human Rights Act Review: Terms of Reference. This question was also replicated in IHRAR’s own call for evidence.

170 See for example, the ECHR’s helpful guide on Article 15Derogation in time of emergency

171 HL Deb, 13 April, c 1234 [B Goldie]

172 Joint Committee on Human Rights, Ninth Report of Session 2019–21, Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill, HL Paper 155 / HC 665

173 Human Rights Act 1998, section 16(3)

174 See for example, Joint Committee on Human Rights, Ninth Report of Session 2019–21, Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill, HL Paper 155 / HC 665, and Thirtieth Report of Session 2007–08, Counter-Terrorism Policy and Human Rights (Thirteenth Report): Counter-Terrorism Bill, HL Paper 172 / HC 1077

175 Joint Committee on Human Rights, Thirtieth Report of Session 2007–08, Counter-Terrorism Policy and Human Rights (Thirteenth Report): Counter-Terrorism Bill, HL Paper 172 / HC 1077, para 96

176 Joint Committee on Human Rights, Thirtieth 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.

177 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. HC Deb, 12 November 2001, cols 572–573

178 This excludes historical derogations in relation to former British colonies, such as those in relation to Cyprus in 1955.

179 These derogations included (i) detention relating to initial arrest for interrogation; (ii) detention for further interrogation; and (iii) preventive detention. These were considered by the ECtHR in the case Ireland v United Kingdom [1978] and found to be comply with the conditions of Article 15 ECHR and to be within the UK’s margin of appreciation in the use of Article 15 ECHR.

180 The derogation arose from the ECtHR case Brogan and Others v UK in 1988 in which the ECtHR held that the detention of the applicants under the Prevention of Terrorism (Temporary Provisions) Act 1984 for more than four days was a breach of Article 5(3) ECHR, because they had not been brought promptly before a judicial authority. Consequently, the Government entered a derogation to extend the period of detention of persons suspected of Northern Ireland - related terrorism for up to seven days. That derogation was upheld by the ECtHR in Brannigan and McBride v UK [1993] where it was found to be within the UK’s margin of appreciation in the use of Article 15 ECHR. The derogation was further upheld in Marshall v UK [2001] where it was found to still be valid notwithstanding the somewhat improved security situation in Northern Ireland.

181 Part 4 of the impugned ATCSA remained in force, however, until it was repealed by Parliament in March 2005. As soon as the applicants still in detention were released, they were made subject to control orders under the Prevention of Terrorism Act 2005.

182 A. AND OTHERS v. THE UNITED KINGDOM

183 Joint Committee on Human Rights, Thirtieth Report of Session 2007–08, Counter-Terrorism Policy and Human Rights (Thirteenth Report): Counter-Terrorism Bill, HL Paper 172 / HC 1077, paras 97 and 98.

184 See paragraph 65 of that submission.




Published: 8 July 2021 Site information    Accessibility statement