In this post, Alan Greene of Birmingham University addresses a perennial charge against the Human Rights Act, which is that it prevents the UK government from confronting terrorism or dealing with other emergencies.
The idea that human rights law somehow unduly constrains the UK government from confronting terrorism or other emergencies has not been borne out. Indeed, it is often the case that commentators critique human rights law for failing to constrain the UK’s extensive counter-terrorist apparatus.[1]
Derogations and the relation between UK courts and the European Court of Human Rights
Article 15 of the European Convention on Human Rights (ECHR) provides that states can derogate from the ECHR ‘in time of war or other public emergency threatening the life of the nation’ so far as these measures are ‘strictly required by the exigencies of the situation.’ Furthermore, no derogation is permissible from Article 2 (right to life), except in respect of deaths resulting from lawful acts of war, or from Articles 3 (torture and inhuman and degrading treatment or punishment), 4.1 (slavery) and 7 (retrospective criminal punishment).
Derogations under Article 15 are afforded a wide margin of appreciation by the European Court of Human Rights (ECtHR). This reflects the ECtHR’s position as a supranational court, viewing Contracting Parties as best placed to assess whether a public emergency threatening the life of the nation exists.[2] Consequently, while UK courts ‘must take into account’ ECtHR jurisprudence in accordance with section 2 of the Human Rights Act (HRA) 1998, the wide margin of appreciation on this question means that ECtHR case law would be of minimal assistance.
This is reflected in the case law on section 2 HRA itself. Early cases under the HRA suggested that ‘the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’;[3] and that UK courts should ‘follow any clear and constant jurisprudence of the European Court of Human Rights. However, these cases also acknowledged that courts could depart from such jurisprudence in ‘special circumstances’[4] with one such example being where a wide margin of appreciation exists.[5]
Helen Fenwick and Roger Masterman also note that what has been termed the ‘mirror principle’—the aforementioned approach to section 2 HRA where domestic courts closely follow the jurisprudence of the ECtHR—has been departed from under a number of occasions. Even where a narrow margin of appreciation exists, UK courts have demonstrated a willingness to not follow pre-existing ECtHR case law.[6] In some cases, UK courts have expressly disagreed with ECtHR jurisprudence. This was the case in R v Horncastle[7] where the UK Supreme Court refused to follow the prior ECtHR Chamber judgment in Al-Khawaja v UK[8]concerning the compatibility of a conviction based solely on hearsay evidence with the right to a fair trial under Article 6 ECHR. The Grand Chamber of the ECtHR subsequently agreed with the UK Supreme Court’s approach, thus demonstrating that dialogue and comity between the ECtHR and domestic courts is a two-way street.[9]
Finally, domestic courts have increasingly highlighted the role of the common law as a source of civil liberties in the UK, opening the path for a more synergistic relationship between the ECHR and the common law and the possibility for a ‘particularly British view of the fundamental rights of citizens in a democratic society’. There is therefore scope under section 2 HRA for UK courts to take a unique approach to the protection of human rights in times of emergency.
Derogations before UK Courts
Even if UK courts were to follow ECtHR jurisprudence closely in the context of Article 15, this would result in UK courts effectively mirroring the highly deferential approach of the ECtHR on Article 15. To date, the ECtHR has never found that a public emergency threatening the life of the nation did not exist in a state.[10] The ECtHR has, however, been more robust on the question as to whether the measures taken by a state in lieu of such a derogation have been proportionate to the exigences of the situation; nevertheless, significant deference is often present and the findings have not unduly restricted a state’s response to terrorism.[11]
Thus, in A v Secretary of State for the Home Department, the House of Lords, and later the ECtHR, found that the UK’s detention without trial of non-UK citizens under section 23 of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 was incompatible with Article 5 ECHR.[12] Here, the HRA was fundamental in ensuring the capacity of UK courts to hold the executive and legislature to account in the protection of human rights in the context of counter-terrorism.
It should be noted, however, that the judgment found that the measures enacted were not proportionate to the exigencies of the situation. Neither the Supreme Court nor the ECtHR found that a public emergency threatening the life of the nation did not exist. This implicit endorsement of the existence of a public emergency in the UK following 11 September 2001 was used by the then government to justify the introduction of control orders.[13] Moreover, the fact that many high-profile counter-terrorist attacks perpetrated in the UK since 11 September 2001 were carried out by British citizens and so would not have been detainable under section 23 ATCSA demonstrate the irrationality of this provision.[14]
The HRA therefore has not restricted the UK’s approach to confronting terrorism. Indeed, many have been critical of the UK court’s deferential approach to questions of national security.[15] Such criticism is, however, not unique to the UK and so cannot be attributed to the ECHR or the HRA.
The HRA and Derogations for UK Armed Forces Overseas
There is considerable debate over whether the UK could presumptively derogate from the Convention for the acts of its military forces overseas as proposed by the Overseas Operations (Service Personnel and Veterans) Bill. Any concerns regarding human rights unduly restricting the UK’s armed forces are overstated, however. Firstly, in the context of Article 5 and the right to liberty, the utility of a derogation in the context of an international armed conflict is questionable as the ECtHR already interprets Article 5 in harmony with international humanitarian law.[16]
Derogation would have minimal effect on the UK’s ability to detain prisoners of war or other detainees in such circumstances. Furthermore, many cases regarding the application of human rights law in an armed conflict centre on claims made by soldiers or the families of deceased soldiers.[17] Framing this debate therefore as the government seeing to ‘protect our Armed Forces’ is deeply misleading.
The Human Rights Act and the COVID-19 emergency
No derogation is currently in existence meaning that the ordinary parameters of UK human rights law have not prevented Parliament or the Government from enacting robust measures to confront the COVID-19 pandemic.
While case law to date on this issue is sparse, with there being considerable disagreement amongst academics on whether a derogation from Article 15 ECHR is necessary, it is clear that should the ECtHR find that states should have derogated from the ECHR, the pandemic would certainly have met the threshold for a public emergency threatening the life of the nation under Article 15 ECHR.[18]
Moreover, there are strong human rights arguments in favour of the state taking measures to protect the lives of its citizens and to ensure that conditions in state run institutions do not constitute inhuman and degrading treatment or punishment. Consequently, the HRA and ECHR can empower rather than restrict the state’s fight against COVID-19.[19]
Conclusion
Emergencies are often the precise conditions in which the most egregious human rights abuses occur. It is only right therefore that states are not given carte blanche to respond to a crisis in any way they see fit. However, as has been shown, the state has been granted considerable latitude by the judicial branches on the question of how best to balance questions of security and human rights. The claim therefore that the HRA or ECHR has unduly hampered the UK’s response to terrorism or emergencies is simply untenable.
For an overview of this see A Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018) Ch 4.
See O Gross and F Ní Aoláin, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ [2001] 3 HRQ 623.
Al-Khawaja and Tahery v United Kingdom [2011] ECHR 2127
The now defunct European Commission on Human Rights did make such a finding against the Greek Military Junta in 1969. This case never made it before the ECtHR as the anti-democratic Greek Government withdrew from the Convention before the case could be heard. See The Greek Case (1969) YB 1.
See A Greene ‘Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights’ (2011) 12(10) German Law Journal 1764
[2005] 2 WLR 87; A v UK app no 3455/05 (19 February 2009).
Prevention of Terrorism Act 2005.
E.g. the London bombings of 7 July 2005 and the Manchester arena bombing of 2017.
Greene (n 1); H Fenwick and G Phillipson, ‘Covert Derogations and Judicial Deference: Redefining Liberty and Due Process Rights in Counterterrorism Law and beyond’ (2011) 46 McGill LJ 863.
See A Greene, The UK Government’s Proposed ‘Presumption to Derogate’ from the ECHR: Submission to the Joint Committee on Human Rights (March 28, 2017). Available at SSRN: https://ssrn.com/abstract=2942210.
For competing perspectives see A Greene, ‘Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If Not Now, When’ [2020] EHRLR 263; K Dzehtsiarou, ‘Article 15 Derogations: Are they really necessary during the COVID-19 Pandemic?’ [2020] EHRLR 359
See A Greene, Emergency Powers in a Time of Pandemic (Bristol University Press, 2020).
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