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Is Derogation Warranted?

Human Rights Watch acknowledges that where a public emergency threatening the life of the nation is shown to exist, governments may lawfully derogate from some human rights protections, provided that the measures taken are strictly required by the situation. In this case, however, it is far from clear that the threat to the United Kingdom since September 11, 2001, has met the high threshold for a public emergency required under article 15 of the ECHR. The government did not base its decision to derogate on the existence of a specific threat. In a statement to parliament on October 15, 2001, the Home Secretary said that “[t]here is no immediate intelligence pointing to a specific threat to the United Kingdom.”²⁰ Nor has the government convincingly demonstrated why ordinary criminal law measures and existing counter-terrorism legislation—described by the Joint Human Rights Committee as the most “rigorous” in Europe—are insufficient.²¹ Unless both conditions are satisfied, derogation is not simply inappropriate, but is also contrary to the U.K.’s obligations under human rights law.

The existence of a public emergency that threatens the life of the nation is a precondition for derogation under the ECHR and ICPPR.²² The U.K. government has repeatedly asserted that a public emergency within the meaning of both treaties exists in the U.K.²³ While the government plainly has access to classified intelligence, several factors point toward the conclusion that no such emergency has existed at any time in the UK since September 2001.

First, the threshold for the existence of a public emergency is a high one. According to the European Court of Human Rights, which has generally shown itself willing to grant wide discretion (or in legal terms, a “margin of appreciation”) to states in combating terrorism, a public emergency under article 15 is “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed.”²⁴ Second, as the Joint Committee on Human Rights has observed: “No other State party to the [European] Convention or the International Covenant has made such a derogation in the wake of 11 September 2001.”²⁵ The ICCPR has 151 states parties and the ECHR 45 states parties.²⁶

Derogation also requires that even where a public emergency exists, any measures taken in breach of suspended human rights obligations must be strictly required by the situation. In particular, the state must establish why it believes that ordinary judicial intervention is not an effective tool for addressing the situation.²⁷ The U.K. has extensive experience in dealing with terrorism through the courts and has wide-ranging anti-terrorism criminal law provisions, including the Terrorism Act 2000, which allows the police to arrest a person suspected of terrorist activities without a warrant, and permits detention without charge for up to 7 days (compared to a maximum of four days in ordinary criminal cases).²⁸ 

The U.N. Human Rights Committee has expressed “concern” about the measures contained in the act, which it stressed in December 2001 “may have far reaching effects on rights guaranteed in the Covenant [the ICCPR].”²⁹ The U.N. Committee on the Elimination of Racial Discrimination has expressed “deep concern” about indefinite detentions under the act, and recommended in December 2003 that the U.K. government “balance [national security] concerns with the protection of human rights and its international legal obligations.” In December 2001, Council of Europe Human Rights Commissioner Alvaro Gil-Robles went further, arguing that “[e]ven assuming the existence of a public emergency, it is questionable whether the measures enacted by the United Kingdom are strictly required by the exigencies of the situation.”³⁰

The derogation from the ECHR has been the subject of legal challenge in the U.K. In July 2002, the SIAC considered a challenge to the derogation as a preliminary issue to appeals by nine detainees against their certification as “suspected international terrorists.” SIAC determined that the derogation from article 5(1) was unlawful on the ground that it breached the non-discrimination provision under article 14 of the ECHR, from which the U.K. government had not derogated.³¹ Since the derogation was unlawful, the SIAC held that the detention provisions breached ECHR articles 5 and 14. In the words of the judgment: “[a] person who is irremovable cannot be detained or kept in detention simply because he lacks British nationality.”³²

The SIAC did accept that there was a public emergency within the meaning of article 15 of the ECHR.³³ The court based its decision on classified intelligence material and publicly available evidence. In October 2002, the Court of Appeal heard a cross appeal by both the government and the detainees against the SIAC decisions. The appeal was limited to reviewing potential errors of law. The Court of Appeal reversed SIAC’s finding on discrimination (discussed below), accepting the government’s arguments that foreign nationals had no right to remain in the U.K., thereby making differential treatment permissible. It also rejected the detainees’ appeal against the SIAC’s conclusion that a public emergency did exist. The detainees appealed to the House of Lords, which will hear the case in a specially-convened nine judge panel in October 2004.³⁴

The Joint Human Rights Committee has expressed doubts about the necessity of derogation from the right to liberty under the ECHR, albeit without having had access to classified intelligence material. In its first report on the ATCSA, published in November 2001 during the passage of the legislation, the committee stated that there were insufficient safeguards “to ensure that the measures in the Bill could be said to be strictly required by the exigencies of the situation” and concluded: “we are not persuaded that the circumstances of the present emergency or the exigencies of the current situation meet the tests set out in Article 15 of the ECHR.”³⁵ Its February 2004 report states: “we continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation.”³⁶

The Newton Committee has also considered whether the derogation is warranted, and its conclusions should be given particular weight. The members of the committee are all privy counsellors, a title given to ministers and other senior parliamentarians with security clearances enabling them to review classified intelligence material. The committee had access to such information for the purposes of its review. While the act was being debated in the House of Lords, Lord Rooker, then a minister in the Home Office, explained to the Lords that “[t]he committee will complete a review of the operation of the Act with full access to all the information including that from the security services and so forth.”³⁷ The Newton Committee report states that “we have taken evidence from the police, the security and intelligence agencies and other counter-terrorist officials.”³⁸

The Newton Committee “strongly recommends” that “Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should … not require a derogation from the European Convention on Human Rights.”³⁹ The committee would not, and indeed could not, have made such a recommendation had it believed that the derogation was warranted.