Derogation from Human Rights Briefing Paper
Dominic Grieve QC
1. INTRODUCTION
I have been asked to provide a briefing to members of the Northern Ireland Assembly Committee considering the enactment of a possible Bill of Rights for Northern Ireland, on the operation of the derogation provisions in the European Convention on Human Rights (ECHR) and on the provisions to take account of this in the Human Rights Act 1998 (HRA). I have set out in this paper, firstly a summary of the current state of the law and of the issues that have arisen with it, before going on to look at how this may have a bearing on what an NI Bill of Rights might contain. In looking at the possible impact on an NI Bill of Rights, I have considered briefly the past proposal of the Northern Ireland Human Rights Commission in 2008. But as this envisaged a significantly different approach to human rights to the current position, I have not gone into a detailed analysis of this proposal which the UK government has rejected.
2. THE CONVENTION
The European Convention on Human Rights brought into force by international treaty in 1952, makes provision for the protection of a list of defined rights. These are: The Right to Life-Article 2; Prohibition of Torture-Article 3; Prohibition of Slavery and Forced Labour-Article 4; Right to Liberty and Security-Article 5; Right to a Fair Trial-Article 6; No Punishment without Law-Article 7; Right to Respect for Private and Family Life-Article 8; Freedom of Thought, Conscience and Religion-Article 9; Freedom of Expression-Article 10; Freedom of Assembly and Association-Article 11; Right to Marry and Found a Family-Article 12; the right to an Effective Remedy for breaches-Article 13 and Prohibition of Discrimination in the exercise of Convention rights-Article 14.
3. In addition fifteen Protocols have been opened for signature to the Convention some of which the United Kingdom has signed and ratified. These include Protocol 1(1) on the right to the peaceful enjoyment of possessions; Protocol 1(2) on the right not to be denied an education and for parents to have theirs children educated in accordance with their religious and other views; Protocol 1(3), the Right to Elections by secret ballot at regular intervals; Protocol 6, restricting the death penalty to times of war or imminent war and Protocol 13, which effectively supersedes 6 in the UK, providing for the complete abolition of the death penalty. The UK has not signed or ratified Protocols 7-relating to crime and family matters and 12 which provides a free standing right against discrimination, as it sees it as too widely drafted with the possibility of unintended consequences.
4. Few of the Articles and Protocols are absolute. Most provide exceptions and require a balancing exercise between competing rights quite irrespective of any right of derogation. Thus Article 2 on the Right to Life makes express provision for a death as a result of protecting against unlawful violence, effecting an arrest or quelling a riot or insurrection as long as the force used is no more than absolutely necessary.
5. Other Articles and Protocols to which the UK is adherent are procedural in character.
6. DEROGATION
Article 15 of the Convention allows the state parties to the Convention the possibility of derogating, in a limited and temporary manner from their obligation to secure certain of the Convention’s rights and freedoms. But this right is subject to both supervision and challenge on the ground the right is being exercised in breach of its terms.
The Article states:
“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….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 (right to life), except in respect of death resulting from lawful acts of war, or from Articles 3 (torture), 4 para 1 (slavery) and 7 (no punishment without law) shall be made under this provision.”
(No derogation also now applies to Protocol 13 on the total abolition of the death penalty, where it has been signed and ratified as was made clear in the case of Al-Saadoon and Mufdhi v the UK 2010 in which the court held that two Iraqi nationals accused of the murder of two British soldiers and transferred by the British authorities in Iraq into Iraqi custody for trial where they faced a possible death penalty had had their Article 2 rights violated, as Protocol 13 applied in all circumstances and could not be derogated from and ranked as a fundamental right.)
“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 also inform the Secretary General…when such measures have ceased to operate and the provisions of the Convention are being fully executed.”
7. Derogation has been used by a substantial number of states. Most recently in March and April 2020, in the context of the Covid 19 health crisis, Latvia, Romania, Armenia, Moldova, Estonia, North Macedonia, Serbia and San Marino have all derogated. Prior to this, eight other states have used it in other contexts relating to national security. These are Albania, Armenia, France , Georgia, Greece, Ireland, Ukraine, Turkey and the UK. Four of those states, namely Greece, Ireland Turkey and the UK have been challenged on the validity of their actions in the European Court of Human Rights (ECtHR) or had the validity examined by the Commission of Human Rights that previously also provided scrutiny. Some other cases before the Court, not directly concerning derogation, have also provided clarification as to its scope and operation.
8. In Denmark and others v Greece in 1969, the European Commission of Human Rights found that Greece’s derogation under Article 15 for suspending constitutional rights following the military coup, did not meet the criteria for its use and was not justified. In Aksoy v Turkey December 1996, the ECtHR held that notwithstanding that Turkey was entitled to derogate on the basis of a public emergency threatening the life of the nation, in respect of the activities of the PKK in South East Turkey, this did not justify a regime of detention for up to 14 days without judicial supervision as it was not strictly required. It was also necessary for derogations to be specific as to the type of measures that would be taken-a point already established as far back as 1958 in the first case brought on derogation in Greece v UK, concerning a derogation during the state of emergency in Cyprus.
9. THE UK AND IRELAND AND DEROGATION
Derogation has been resorted to by both the UK and Ireland in the context of the threat of terrorism on the island of Ireland. This has given rise to legal challenges and to decisions as to the correct application of Article 15.
In Lawless v Ireland (no.3) 1961 ECtHR, the threat posed by the IRA was held to justify detention without trial in Ireland. In Ireland v UK 1978 ECtHR, the threat posed by terrorism was held to justify the detention without trial that operated from 1971 to 1975, even if findings of breaches of Article 3 by the UK for inhuman treatment during detention and interrogation were also made. In Brannigan and McBride v UK 1993 EctHR, the UK derogation allowing detention for up to seven days without judicial scrutiny, done to protect the judiciary from involvement in a role that would expose them to the risk of violence was upheld as reasonable in view of the nature of the emergency. In contrast the absence of a similar derogation in 1984 in Brogan and Others v the UK 1988, had led to a finding of breach of Article 5 (3).
10. In 1998, the UK parliament enacted the Human Rights Act, something that had been promised in the Belfast/Good Friday Agreement. The Act provides for domestic remedies for breach of the ECHR by public authorities. But incorporating the Act into domestic law did not involve the incorporation of Article 15, as derogation can only be to the ECHR itself. But a mechanism was provided in Section 14 of the HRA for the Secretary of State to make an order incorporating any derogation made or planned to be made into the Act, so that it should have the like affect domestically to any derogation notified to the Commission. Section 16 of the Act further provides that any such domestic derogation can only last a maximum of five years and then is automatically repealed unless extended again by a fresh order and further requires repeal if the derogation from the ECHR itself has been withdrawn.
11. In practise the arrival of the HRA has had a significant impact on the functioning of derogation, as it has opened the ability of the UK domestic courts to look at the matter first and make decisions that might be potentially different, as to the validity of a derogation, from what the European Court itself might do.
12. Following 9/11 the UK Government enacted the Anti-Terrorism, Crime and Security Act. Part 4 provided a power to detain foreign nationals without trial certified as “suspected international terrorists” who could not “for the time being” be removed from the UK. As the Government considered that it was likely that this measure was inconsistent with Article 5(1) Right to Liberty and Security, it issued a notice of derogation under Article 15. This was first challenged domestically. In A v Sec of State for the Home Department [2004] UKHL 56 the House of Lords upheld the existence of an emergency threatening the life of the nation to justify the measure, but issued a declaration of incompatibility with the HRA because the detention scheme discriminated unjustifiably against foreign nationals and quashed the derogation order made under Section 14 HRA. When the case got to the ECtHR in A and Others v the UK 2009, it upheld the view of the House of Lords and found a violation of Article 5(1) on the same basis and awarded some small sums by way of damages. The offending section of the Act had been repealed in 2005, following the 2004 House of Lords decision.
13. CURRENT ISSUES
The UK has currently no derogations from the ECHR in force. Presently the most controversial matter concerning its application is its potential impact on the operation of military forces abroad. This has led to related suggestions that the UK might derogate in future for such operations and to a Government announcement in October 2016 that “Before embarking on any significant military operation the Government will derogate when this is appropriate in the precise circumstances of the operation in question”. Most recently the Government has published the Overseas Operations (Service Personnel and Veterans) Bill, which if enacted would almost certainly require derogation before overseas operations take place, as it proposes to introduce a discriminatory regime for civil and criminal liability arising out of combat conditions, which is hard to reconcile with Article 14. It also raises significant issues as to whether or not such a derogation would be successful to allow the legislation to work as intended.
14. The origins of this issue lie with a series of cases which established that the ECHR and the HRA will apply in certain circumstances outside of the territory of the UK and its dependencies. In 2007 the House of Lords held in Al-Skeini [2007] UKHL26 that the Human Rights Act could apply to the actions of British forces abroad where this occurred on a British Army base, but not more generally in Southern Iraq as the UK in practice did not exercise control there. It also relied on an earlier decision of the European Court in Bankovic in 1989 on this point, a case where the ECtHR had rejected that the Convention could apply to military operations by Belgium as part of an international force, in the air, over former Yugoslavia leading to alleged civilian deaths . But when the case went to the ECtHR in Al-Skeini v UK July 2011, the European Court went further and held that the UK Government had a duty to conduct an effective investigation into the deaths of all civilians killed by British soldiers, in Southern Iraq because the UK had assumed responsibility for the maintenance of security there and was therefore exercising “control and authority” over Iraqi civilians. This led in due course to the need to set up the IHAT team to look into these deaths.
15. Further, in Al-Jedda v Sec of State for Defence [2007] UKHL 58, the House of Lords had held in 2007 that the indefinite detention without charge of a dual British/Iraqi national in a Basra facility was lawful because the UK had been authorised to act by UN Security Council Resolution 1546 on which the UK was entitled to rely and which took precedence over any ECHR obligation. When the case went to the Grand Chamber however in Al-Jedda v UK 2011 ECtHR, it held that the Security Council Resolution did not displace the Government’s obligations to protect the right to liberty under Article 5 of the ECHR and where no derogation under Article 15 had taken place, such a system of detention was a breach of Convention rights.
16. Since then the case law has developed further in a manner that emphasises that the Convention and the HRA can apply to UK actions abroad in varied forms. In Smith v MOD the House of Lords held that claims under Article 2 (the Right to Life) brought by relatives of some British soldiers killed in Iraq, on the grounds of inadequate equipment and training, should not be struck out and could proceed to trial, as Article 2 applied and they were entitled to argue Article 2 rights had been breached. It also declined to rule that the principle of “combat immunity” from negligence claims was absolute in a number of cases that relied on claims of negligence alone. It allowed for the possibility of the claims being considered on factual merits that took account of the legal principles involved.
17. It is important to emphasise that as a result of this judgment there has to date been no successful claim in court either under Article 2 or for negligence brought for these cases or similar ones. But the argument against the decision, set out in the dissenting judgment of Lord Mance, is that the ruling opens the gates to litigation and will affect the ability to conduct combat operations in an undesirable manner through its chilling effect on decision making.
18. More recently there are signs of further thinking taking place. In Hassan v UK 2014, the ECtHR held that the nine day detention of a combatant during the initial stages of the Second Iraq War was compatible with Article 5, as it considered, in a shift of stance from Al-Jedda, that Article 5 was designed for peacetime conditions and had to be read in parallel with other international obligations under International Humanitarian Law and the Geneva Conventions which expressly and impliedly provide for detaining enemy combatants during armed conflict. A derogation from Article 5, was not therefore required to carry out detention in this case. The House of Lords relied on this in Serdar Mohammed v Sec of State for Defence [2017] UKSC 2, in holding that it was possible for the UK to detain combatants captured in Afghanistan for longer than the 96 hours provided for in the ISAF regulations and Afghan law, if this was needed for imperative reasons of security, even if the Court also held that the review mechanisms in force did not comply with ECHR article 5(4). It based this on the existence of an implied authority under the UNSC resolutions that “all necessary means” includes the use of detention.
19. Until a further consideration of the matter emerges from the European Court, it is not possible to be definitive as to whether the approach of the UK Supreme Court in Serdar Mohammed will be accepted and followed by the ECtHR. But the line of authorities I have have set out, suggests that the Government’s intention to solve the issue by derogation for military operations abroad may not succeed and may be in practice unnecessary. So far as detention is concerned, there appears to be a possible reconciliation of the UK position with that of the European Court that does not require derogation at all, as the ECtHR appears to have moved towards accepting that a while the ECHR may apply to certain military operations abroad, a separate set of standards will have to be applied to them. So far as the claims that are made under Article 2 are concerned, these are not open to derogation in any event and the taking of life has to be fitted into the framework of Article 2 itself, which allows for such action in a number of circumstances including armed conflict. What remains the outstanding issue of controversy is likely to be the requirement to carry out investigations into deaths at the hands of the armed forces, in circumstances where the ECHR applies as the UK is “exercising control”as it was held to do in Southern Iraq and the civil litigation that may also result. This is what the Overseas Operations Bill seems intended to address, but which for the reasons I have set out may not work as intended. At its most basic, it is far from clear that any derogation for an overseas deployment for peacekeeping would necessarily meet the threshold that it was “an emergency threatening the life of the nation.”
20. DEROGATION IN THE CONTEXT OF A NORTHERN IRELAND BILL OF RIGHTS
The Belfast/Good Friday Agreement in Strand 3 made provision for the NIHRC to:
“…consult and …..advise on the scope for defining, in Westminster legislation for rights supplementary to those in the ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. these additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem and-taken together to constitute a Bill of Rights for Northern Ireland.”
This was then reflected in Section 69(7) of the Northern Ireland Act 19988 (NIA) which requires the Secretary of State to request the Northern Ireland Human Rights Commission (NIHRC) to provide advice on this. The NIHRC duly did this in 2008 under the leadership of Professor. Monica McWilliams as Chief Commissioner, in a substantial report. But the proposals set out and which included socio-economic rights, children’s rights and environmental rights amongst others was rejected in 2009 by the NIO on the basis that most of the rights sought were not specific to Northern Ireland. It is certainly noteworthy that the form of Bill envisaged was of a kind that was not “additional”to the ECHR. It entirely replaced the HRA and would have operated in a manner significantly different from it, even for the rights incorporated from the ECHR, rather than just for the additional rights. It recommended a list of non derogable rights that go beyond those in the ECHR (see in particular pages 141-147 of the report ). It provided a mechanism for derogation far narrower in scope than the HRA’s and which draws on very different Rights documents such as the South African Constitution, the Canadian Charter of rights and Freedoms and the International Covenant on Economic Social and Cultural Rights. For example, no derogation could be made unless the Parliament of the UK had first resolved that a state of emergency should be declared. No derogation could last more than three months. All powers in relation to derogation had to remain at a Westminster level.
21. Over eleven years on there has been little sign of progress being made to find a Bill that commends itself to the UK Government or indeed which enjoys some degree of consensus or cross-community support in Northern Ireland. I am aware however that this issue is now live again both with the revival of the Assembly and with a renewal of interest in academic circles. I note that in 2018 Ulster University, Queen’s University Belfast and the Transitional Justice Institute and published a report “Where next for a Bill of Rights for Northern Ireland” which includes a draft Bill based on the NIHRC Report, and is the work of Dr Anne Smith and Professor Colin Harvey. This shows what an NIHRC based Bill might look like and includes the relevant clauses on derogation.
22. In the absence of any other text, it is difficult to analyse the extent to which a NI Bill of Rights could raise issues on derogation other than the very significant ones in the NIHRC proposals. But a version which kept the current HRA in being could look different. It plainly could not contain anything contrary to the UK’s obligations under the ECHR, as it has to build on them. If any of the rights contained in it were to be ones that might give rise to difficulties in maintaining them in a national emergency, then I would expect it to contain similar provisions to the HRA to suspend them by statutory instrument, as done in Sections 14 and 16 of the HRA. There could also be a provision for the Supreme Court to make a Declaration of Incompatibility in the event that any subsequent primary legislation by the Westminster Parliament repealed rights conferred by it. If derogation under an NI Bill of Rights was to be done as in the HRA by Statutory Instrument, the courts could have power to quash such derogations as they would be able to do for any legislation of the Northern Ireland Assembly that violated the HRA. An issue might arise that the rights conferred by the NI Bill of Rights could have in some grey areas a carry over into the ECHR which could make the reasonableness of derogation domestically the subject of an HRA claim as well and thus ultimately take the matter to the ECtHR, but I don’t see this as particularly likely or that a UK court would wish to support such an expansive approach.
23. At present the NI Executive and the Assembly are bound by the provisions of the HRA and cannot, as bodies with devolved powers, act contrary to it. An obvious issue however will be whether the same provisions should apply to an NI Bill of Rights or whether the UK Government and Westminster Parliament wishes to give powers to the NI Executive or Assembly the power to derogate itself in certain circumstances-although as I have mentioned that is contrary to the ideas of the NIHRC proposal. But this issue is clearly a live one, as at present the NI Executive is exercising emergency powers over Covid-19 both under the Westminster, Coronavirus Act 2020 and the Stormont originating, Public Health Act (Northern Ireland) 1967. But there has been up to now no suggestion of any need for derogation for any measures that have been taken by the UK Government, either through the HRA or under the ECHR, as the UK would argue that the measures are all lawful, necessary and proportionate and can be fitted within the exceptions provided for in the text of the Convention. But this is different from what has been happening in some other states which are signatories to the Convention. This might be a subject for the Committee to look at further.
24. More fundamentally is the issue of whether the Northern Ireland Assembly itself might wish to explore preparing a Northern Ireland Bill of Rights itself. This is clearly not what was envisaged in the Belfast/ Good Friday Agreement or in the NIA. But that in itself would not make it ultra vires the powers of the Assembly to do so, although a bill might be ultra vires if it touched on reserved matters and if not enacted by the Westminster Parliament it would be repealable by the Assembly. If the Assembly were to pursue this route, then it may wish to consider the example of the legislation passed in Wales on children’s rights which illustrates that devolved legislatures can legislate on human rights subjects as long as it is not inconsistent with the HRA and within competence. See the Rights of Children and Young persons (Wales) Measure 2011. A similar proposal is currently being developed in Scotland which would incorporate the United Nations Convention on the Rights of the Child. The issue of any need for derogation could be considered at the same time.
25. I trust that this paper can provide a background to the consideration of issues of derogation in both the ECHR, HRA and possible future legislation. I would be happy to amplify on any points or to appear before the Committee to discuss these issues further if this were thought to be helpful.
