The legal black hole of derogation: the Government’s proposals to derogate from the ECHR (Part 1)

In October 2016, in a joint announcement with the Prime Minister, the then Secretary of State for Defence Sir Michael Fallon MP announced this Government’s intention to derogate from the European Convention on Human Rights (the Convention) in future military overseas operations. Sir Michael Fallon resigned the following year, succeeded by Gavin Williamson MP. Nothing Mr Fallon’s successor has said has indicated that the Government’s position has changed. On the contrary, it has been reported that the present Secretary of State for Defence would support the extra-judicial killing of British Isis fighters abroad. Mr Williamson may be labouring under the misapprehension that derogation from the Convention would enable him to do this.

the option of derogation is likely to remain an attractive one to a Government that was never committed to the development of a culture of human rights

Understanding the Government’s position on derogation is fundamental to understanding the extent of its commitment towards its international human rights obligations. For years, it has been Conservative party policy to repeal the Human Rights Act. Then Brexit happened. The European Union (Withdrawal) Act 2018 now ensures the removal of the EU Charter of Fundamental Freedoms from UK law. As a consequence, plans to repeal and replace the HRA are enjoying a reprieve for now – it being perceived as too difficult to sell the need for a further assault on rights in the UK so soon after the Charter has been disposed of.[1]

The reprieve will be short-lived. The Conservative Party has pledged to review the situation after the UK has left the EU. As long as we remain within the Council of Europe however, the option of derogation is likely to remain an attractive one to a Government that was never committed to the development of a culture of human rights in the first place, preferring instead to pander to widespread public misunderstanding as to the true nature of the legal rights and responsibilities created by the Convention. In that context, the role of the Ministry of Defence (MoD) is absolutely crucial, providing an apparent steady stream of examples of human rights madness, dishonest claimants, shoddy lawyers and the unwelcome ‘judicialisation’ of war. Very few of these examples stand up to scrutiny, but they are compelling and have caught the imagination of many politicians as well as the general public.

This post will review the law of derogation, examine the Government’s stated reasons for the need to derogate from the Convention and explain why the Government’s arguments in support of it are unlikely to succeed. Due to its length, it will be published in two parts. The first part sets out the legal framework and the second part examines the basis for the UK Government’s case that derogation is required.

Article 15 of the European Convention on Human Rights

Article 15 of the European Convention on Human Rights sets out when a state may derogate from the Convention. Entitled “Derogation in time of emergency”, the Article 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 obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (1) and 7 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 therefor. It shall so 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.

As can be seen, the circumstances when derogation is permitted under the Convention are tightly circumscribed. Derogation should be temporary, limited and supervised. Certain Convention rights do not allow of any derogation: Article 15 § 2 prohibits any derogation in respect of the right to life (A2) save for as permitted in the Convention, as a lawful act of war; torture (A3); the prohibition of slavery and servitude (4); and the rule of “no punishment without law” (A7); similarly, there can be no derogation from Article 1 of Protocol No. 6 (abolishing the death penalty in peacetime) to the Convention, Article 1 of Protocol No. 13 (abolishing the death penalty in all circumstances) to the Convention and Article 4 (the right not to be tried or punished twice) of Protocol No. 7 to the Convention.

The UK Government’s present position

It is instructive to set the Government’s stated reasons for intending to derogate from the Convention against the wording of Article 15.

The Secretary of State explained that “where appropriate” and “in the precise circumstances of the operation in question, before embarking on significant future military operations”, the Government intended to derogate from the Convention.  He acknowledged that “any derogation would need to be justified and could only be made from certain articles”. In the event of derogation, he reassured the Chair of the Joint Committee on Human Rights (JCHR), the Armed Forces would “continue to operate to the highest standards and be subject to the rule of law, remaining at all times subject to UK Service Law” as well as international humanitarian law.

The Government proposes to take this step because of what it describes as “concerns about the impact of recent judicial developments particularly in the European Court of Human Rights”.

The Secretary of State went on to list a number of concerns, which included that:

1. The framers of the Convention had not intended that it should apply to overseas armed conflicts governed by international humanitarian law;
2. There was a concern about recent “discovery and assertion by the courts, and in particular the European Court of Human Rights, of a jurisdictional reach both extraterritoriality and into overseas armed conflicts governed by international humanitarian law”;
3. Some of that case law has caused the gravest concern in terms of its potential impact “on fighting effectiveness, the proper conduct of military operations and the sheer litigation and procedural burden”. There was a particular concern about the power to detain insurgents;
4. There is serious uncertainty about how international humanitarian law and the Convention interact in armed conflicts. The Government believes that international humanitarian law “represents the bespoke and internationally agreed set of principles governing armed conflicts.”
5. There has been a flood of litigation arising from the wars in Iraq and Afghanistan, which has involved “thousands of claims being made and having to be defended and dealt with involved claims for money and claims in public law seeking investigations or declarations.”
6. The Iraq Historic Allegations Team (IHAT) has had to consider thousands of claims and “is operating on the scale of a police force in its own right and has to be funded accordingly”. Costly public enquiries “including Al-Sweady” have cost millions of pounds “both in litigation and then in the public enquiry itself, only to conclude that the allegations were based on lies.”

It is notable that there is no reference to the Baha Mousa inquiry nor to the fact that, as of January 2016, the Government had chosen to settle 326 cases to the value of around £20 million.

This long list of reasons essentially amounts to the following proposition: the litigation that has been brought following the wars in Iraq and Afghanistan has established that the jurisdictional reach of the Convention is not limited territorially, and governs the conduct of (and the Government’s obligations towards its) soldier overseas whenever UK forces have occupied an area or where its forces have physical power and control over individuals during the course of their operations. This has resulted in investigations having to be established, findings of some violations being made and compensation being ordered.

It is not immediately apparent how such reasons would fit within the limited scope of Article 15.

What has the European Court said about Article 15?

On the meaning of “war or other public emergency threatening the life of the nation”

Lawless v Ireland was an application arising from the detention without trial of the applicant following his arrest in Ireland on suspicion of terrorist offences and in connection with his membership of the IRA. The European Court of Human Rights (the Court) concluded that the natural and customary meaning of the words “other public emergency threatening the life of the nation” was sufficiently clear: it is “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (§28). The Government in that case was justified in declaring that there was a public emergency threatening the life of the nation. Derogation was a step it was entitled to take.

This is consistent with a line of cases arising from the Northern Ireland conflict in which the Court has repeatedly found that the political and military situation giving rise to the decision to derogate amounted to a public emergency threatening the life of the nation. (See Lawless v Ireland (no. 3) (Application No 332/57), 1 July 1961; Ireland v. the United Kingdom, 18 January 1978 (judgment); Brannigan and McBride v. the United Kingdom, 26 May 1993).

Compare that with the case of Denmark, Norway, Sweden and the Netherlands v. Greece (“The Greek Case”) 5 November 1969 (report of the European Commission of Human Rights) where the Commission found that the conditions for the application of Article 15 had not been met. It observed that the public emergency threatening the life of the nation invoked by Greece did not in fact exist. It found that the legislative measures and administrative practices of the Greek government (a military junta) had breached a number of Convention provisions and that those measures and practices had not been justified on the basis of Article 15.

But by and large, a significant margin of appreciation has been afforded to governments and a good deal of deference shown to a state party’s discretion to decide what amounts to a public emergency threatening the life of the nation. In Aksoy v Turkey (18 December 1996, Application no. 21987/93, §68) the Court stated that the national authorities were better placed than the Court to decide both on the presence of an emergency and on the nature and scope of the derogations necessary to deal with it. Nonetheless, the Court has been careful to make clear that States do not enjoy an unlimited discretion. It was for the Court to rule whether governments had gone beyond the “extent strictly required by the exigencies” of the crisis.

Understanding the Government’s position on derogation is fundamental to understanding the extent of its commitment towards its international human rights obligations

In A & Ors v UK (19 February 2009, Application No 3455/05), a UK case that followed the attacks of 11 September 2001 and which arose from the indefinite detention without charge of foreign nationals in the UK who could not be deported, the Court accepted that there had been a public emergency threatening the life of the nation. The Secretary of State had provided evidence to show the existence of a threat of serious terrorist attacks planned against the UK. Closed evidence material had been relied upon before the Special Immigration Appeals Commission. All the national judges except one had concluded the threat to have been credible. Although no al-Qaeda attack had actually taken place in the UK at the time when the derogation notice had been given, the Court concluded that the national authorities could not be criticised for having feared such an attack to be imminent. A state could not be expected to wait for disaster to strike before taking measures to deal with it. The national authorities enjoyed a wide margin of appreciation in assessing the threat. Weight had to be attached to the judgment of the executive, Parliament and the views of the national courts, which were better placed to assess the evidence relating to the existence of an emergency. (On whether the measures then taken were strictly necessary, the position was different, see below).

On the meaning of “to the extent strictly required by the exigencies of the situation”

In the Northern Ireland line of cases, the Court has repeatedly found that the measures taken following derogation were strictly confined to the exigencies of the situation and were within the margin of appreciation.

But in A and Ors v. UK, the House of Lords had previously ruled that although there was an emergency threatening the life of the nation, the detention scheme did not rationally address the threat. The domestic court 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 under challenge discriminated unjustifiably against foreign nationals. It therefore made a declaration of incompatibility and quashed the derogation order. But the impugned measure (Part 4 of the Anti-Terrorism, Crime and Security Act 2001) remained in force until it was repealed. The case was appealed to the European Court of Human Rights.

The Court found that the decision by Government and Parliament to adopt an immigration measure to address what had essentially been a security challenge 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. The Court found that there had been a violation of Article 5 because the derogating measures had been disproportionate in that they had discriminated unjustifiably between nationals and non-nationals.

The cases of Alpay v. Turkey and Altan v. Turkey (20 March 2018) concerned complaints by two journalists who had been arrested and detained following the attempted military coup of 15 July 2016. The Turkish Government argued that there had been a public emergency threatening the life of the nation on account of the risks caused by the attempted military coup and that the measures taken by the national authorities in response to the emergency had been strictly required by the exigencies of the situation.

The Court noted that the domestic Turkish Constitutional Court had already expressed concerns about the applicability of Article 15, holding that the guarantees of the right to liberty and security would be meaningless if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence. The European Court found that the deprivations of liberty had been disproportionate to the strict exigencies of the situation. The Court also noted that the Government had not provided it with any evidence that could persuade it to depart from the conclusion reached by Turkey’s own Constitutional Court. There had been a violation.

On 24 November 2015, France filed a formal notice of derogation with the Council of Europe, following the Paris attacks of earlier that month. The derogation notice has been criticised in some quarters for being imprecise and liable to lead to a dilution of rights protection in areas outside of addressing terrorism. In the event that litigation progresses to the European Court, it seems reasonable to expect the Court to find that there had been a public emergency threatening the life of the nation, given the extent and ferocity of the attacks. But it will be interesting to see if all of the measures taken as a consequence will be found to have been “strictly required”, particularly given criticisms that the measures have been used to target, among other people, climate change activists.

In the second part of this post, I shall go on to review some of the cases brought against the MoD/UK arising from the wars in Iraq and Afghanistan which are now being used to justify the Government’s position that derogation will be required in the future. I will discuss how likely it is that those arguments will succeed.

Notes:

[1] “We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.” Conservative Party manifesto 2017.