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Coronavirus and the ECHR: Should the UK Trigger Article 15?

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About The Author

Elijah Granet (Regular Writer)

Elijah is a GDL student at City, University of London, originally from California.  Before law, he most recently completed an MPhil in Politics & International Relations at Clare College, Cambridge.  His main areas of legal interest include commercial, private international law, administrative, and European  law.   Outside the law, he also fences, occasionally appears on game shows, and thinks of third items in lists.  Elijah blogs at ezgranet.com
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“These are the times that try men’s souls.”

Thomas Paine

The ongoing crisis caused by the novel coronavirus (SARS-Cov-2), and the disease it causes (COVID-19) is unlike any in living memory.  It has already radically changed everyday life in the UK, and may do far worse if handled improperly.

In the face of this crisis, the government will need to take unusual steps and exercise new powers for which there is no analogue in post-war British history.  In England, it is already an offence to leave one's home without reasonable excuse. Now, the government has warned that even more draconian measures may still be needed to preserve public health. This piece will argue that this is the wrong approach.  Instead, before the exercise of new emergency powers, the government ought to formally derogate from  its obligations under the European Convention on Human Rights (ECHR). 

This is likely to be a controversial suggestion.  However such derogation is not merely necessary to safeguard our society, but paradoxically the only way to protect the infrastructure of human rights in the UK both during and after this crisis.

The Purpose of Article 15

The ECHR is grounded in the understanding that the free and democratic ordering of a State is a delicate balancing act, in which interference with certain fundamental rights can be necessary and proportionate. The purpose of the Convention is to provide a framework for this balancing act.

As a result, the Convention does not prevent contracting States from derogating from the protection of  fundamental rights in times of crisis, but rather, requires them to do so only in accordance with a legal framework aimed at restricting such derogation to that which is necessary and proportionate to the threat to the State and its people.  This framework is set out in Art 15 ECHR:

Article 15 of the Convention—Derogation in time of emergency

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 [the] 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 [the right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [the prohibition of torture and degrading treatment] , 4 (§ 1) [the prohibition of slavery] and 7 [no punishment without law] 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.”

In the aftermath of the Second World War, the drafters of the ECHR, including the UK’s own Sir David Maxwell Fyfe,  were conscious of the paradox of emergency powers.  In the effort to defeat Nazism, the unoccupied Allied democracies had instituted comprehensive censorship regimes, detention without trial, restricted the movement of citizens, and severely limited economic freedoms.  It was thus painfully obvious that in the face of an existential threat, the long-term existence of the free and democratic order required the temporary abrogation of fundamental rights.  However, Art 15 ECHR serves to keep such abrogation within the overriding objective of the protection of fundamental rights.  Such balancing acts are the core of Strasbourg jurisprudence.

What measures can be taken in time of derogation?

As noted above, certain rights are protected against derogation, with the most important being Art 2 (the right to life) and Art 3 (the right against torture or degrading treatment).  While all other obligations not explicitly protected by Art 15 ECHR (or by other binding international commitments) may lawfully be derogated from,  such derogation is limited to that which is strictly required to confront the emergency.  The ECtHR has made it clear that any derogations ‘must not serve as a pretext for limiting freedom of political debate, which is at the very core of the concept of a democratic society’ (Mehmet Hasan Altan v Turkey (2018) App № 13237/17, para 210). Once again, all derogations must be for the ultimate purpose of preserving the free and democratic order which guarantees the protection of fundamental rights.

In the UK, clear authority on derogation was given in A & Ors v Home Secretary [2004] UKHL 56.  Although Lord Bingham felt that the UK was entitled to declare a national emergency, he held that s23 Anti-terrorism, Crime and Security Act 2001, which allowed executive detention of suspected foreign national terrorists (but not of British citizens)  in derogation from Art 5 ECHR (right to liberty), was a disproportionate and discriminatory measure which could not be justified.  As such, a quashing order and a declaration of incompatibility were issued; the government responded by repealing the offending sections of the Act.  His Lordship’s leading judgment emphasised  (at para 68) that unless the government could show that the entirety of the derogation was strictly required by the exigencies of the emergency, it was not permitted to breach fundamental rights.

Defining a ‘public emergency threatening the life of the nation’

Although the European Court of Human Rights (ECtHR or the Strasbourg Court) has never found it necessary to define ‘war’, it has provided extensive case law on the other types of emergency which qualify for derogation.  In the early case Lawless v Ireland (№ 3) (1961) Series A № 3, the Chamber decided  (at para 28) that Art 15 ECHR refers to: 

‘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.’ 

There is no time limit on such an emergency; the ECtHR held in 2001 that the UK was  entitled to maintain derogations from the Convention dating back to 1988 with respect to Northern Ireland (Marshall v United Kingdom (2001) App 41571/98, para 18). The key point is that the crisis should be so severe that ‘the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly in­adequate.’ (The Greek Case (1969) 12 YB 1 (Commission Report), para 153(4))

The judgment of the existence of such a crisis is largely a matter for domestic authorities, rather than the ECtHR (Ireland v UK (1978) 2 EHRR 25, para  207).  This is sensible enough, given that the Strasbourg court is literally, evidentially, and temporally distant from the realities of a national crisis.  In A & Ors v Home Secretary [2004] UKHL 56, Lord Bingham’s leading judgment (at paras 26–9), while sceptical of complete deference to national authorities on the question of the existence of an emergency, acknowledged that the decision over declaring an emergency was more a political than a legal one.  Thus, His Lordship felt that the Government were entitled to declare an emergency threatening the life of the nation in the aftermath of the 11 September attacks (but quashed the government’s derogations on different grounds, as noted above).

However, when considering the discretion to declare an emergency,  attention should be paid to the powerful partial dissent of Lord Hoffmann in A & Ors v Home Secretary.  His Lordship acknowledged (at para 89) that ‘the necessity of draconian powers in moments of national crisis is recognised in our constitutional history’, but, informed by his experience of oppressive government in apartheid-era South Africa, forcefully argued that it was not open to government to arbitrarily designate an emergency.  In doing so, Lord Hoffmann echoed Lord Atkin’s renowned dissent to Regulation 18B in Liversidge v Anderson [1942] AC 206 (HL).  Although terrorism posed a threat to the lives of British citizens, it did not pose a threat to the ‘life of the nation’. 

Instead, Lord Hoffmann submitted (at para 91 of A & Ors) that a threat to the nation was properly understood as a menace to  the ‘unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity’.  While Hitler and the Spanish Armada had posed such a threat in the past, al-Qaeda’s wanton violence lacked the strength of force to threaten the powerful and resilient bonds of society that sustained British nationhood.  Although none of the other members of the Appellate Committee endorsed Lord Hoffmann’s more expansive definition (meaning it has no precedential value), it remains both persuasive and useful as an analytical tool. 

Is the novel coronavirus a threat to 'the life of the nation'? 

Even without adopting the expansive definition of Lord Hoffmann (‘the unbroken history of living’), it seems plain that the novel coronavirus is a major threat to the institutional and social fabric of the nation.  Beyond the deaths of hundreds of thousands of citizens, the virus could potentially overrun the health service, severely damage the economy, and prevent the smooth operation of the rule of law and our political institutions.  This is plainly an emergency threatening the life of the nation.  Indeed, the social life of the nation has already proved incompatible with the novel coronavirus, with social distancing measures disrupting public life to a far greater extent than terrorism ever has.[REC_AD] 

Is derogation strictly necessary?

As noted above, derogation may only be used to the extent strictly required to deal with the threat to the life of the nation.  Therefore, the question ‘Should we derogate?’ is identical to the question ‘Is derogation strictly necessary?’   The answer is  likely to be ‘yes’, most particularly with respect to Arts 5, 8 and 10 ECHR (the rights to liberty, private and family life, and expression).  At the moment, individual actions, from stockpiling to unnecessary travel and social activities, pose a disproportionate threat to health and public safety.  Meanwhile, six Contracting States to the ECHR — Armenia, Estonia, Georgia, Latvia, Moldova and Romania have already invoked Art 15 — and a seventh, Bulgaria, has signalled its intention to do so.

Following the Commission’s Report in The Greek Case, the normal measures for guaranteeing health and public safety are simply inadequate.  In order to maintain quarantines, it will be necessary to grant health authorities the power to order the immediate detention of individuals and groups, and for such detention to be enforced by the coercive power of the state.  In order to monitor the spread of the virus, the government must have the power to order intrusive testing, to monitor cell phone and digital records (as is being done in South Korea and Israel), and to prohibit the ordinary social interactions, particularly with elderly relatives, which are used to maintain family life.  This will likely infringe on the ordinary right to respect for private and family life. In order to prevent of false news, rumours, and malicious panic, there may need to be limits on certain aspects of free expression.  In order to combat stockpiling, the government may have to limit the right to property under the First Protocol of the Human Rights Act 1998.

The ordinary operation of a fully free and democratic society is proving incompatible with the existential threat created by mass transmission, though in some cases formal derogation and state measures may not actually be necessary.  For example, the freedom to manifest discontent by protest action is currently (without any state intervention) curtailed by the rightful unwillingness of potential demonstrators to

If such measures do prove to be necessary, then the government must take them.  As Lord Hoffmann noted in A & Ors v Home Secretary, the necessity of draconian emergency powers has long co-existed with the common law’s jealous guarding of liberties, and is an integral part of the ECHR’s matrix of rights.  If the defence of the social order undergirding fundamental rights requires the temporary deviation from those rights, there is little legal argument against doing so. 

The real controversy is not legal, but instead returns to trust in the government.  The UK’s record on emergency powers is hardly comforting.  Lord Hoffmann correctly wrote (at para 89) in A & Ors v Home Secretary that previous invocations of emergency measures, such as the suspension of habeas corpus in the World Wars ‘in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised.’  The UK’s derogations in Northern Ireland were and are extremely controversial, giving rise to many allegations of abuse and mistreatment.  The attempt to derogate during the so-called War on Terror was, as noted above, found to be incompatible and disproportionate.  Evidence from history shows that many governments have misused emergency powers or seized them as a pretext to abolish civil liberties (The Greek Case is a fine example).

The tension at the heart of much of rights jurisprudence, particularly in more stable and peaceful countries, is that the state is simultaneously the greatest threat to fundamental rights and their ultimate guarantor.  However, there is no other organisation aside from Her Majesty’s Government which has the power to enforce the strict measures needed to defeat this pandemic.  Even if some sort of cross-party National Government were formed, there is widespread distrust of the leadership of virtually every political party in Parliament by some part of the population.  If derogation becomes necessary, it cannot be held back by even well-founded concerns about the present government, because there is no alternative.

The Human Rights Act 1998

It is also important to emphasise that derogation under Art 15 ECHR is subject to strict supervision by the courts, both domestically and in Strasbourg.  In this way, the Human Rights Act 1998 (HRA) revolutionised the regime of emergency powers.  This is in stark contrast to the experience of the Second World War, where, so long as Parliament passed the relevant legislation, Cicero’s maxim of  inter arma enim silent leges (‘in times of war, the law falls silent’)  held.  This meant that there were no guidelines for how the state might abrogate fundamental rights when its very existence is threatened, and led to absurdities like Regulation 18B, which enabled the entirely arbitrary detention, often without any evidence, of suspected ‘fifth columnists’. 

Lord Denning, in his memoir  The Family Story, illustrates with characteristic brevity the risks of  emergency powers.  Referring to a suspected German sympathiser, His Lordship wrote:

‘Although there was no case against him, no proof at all, I detained him under “18B”.  The Bishop of Ripon protested.  I took no notice.  This power was discretionary.  It could not be questioned in the courts.’ 

The HRA prevents this state of affairs from arising.  As Lord Hoffmann put it (at para 90) in A & Ors v Home Secretary:

‘Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions.’

Derogation from the ECHR with the Court’s supervision is, rather than an arbitrary suspension of human rights,  a means of protection against the severe (if well-meaning) restrictions of past crises. This crucial point is made evident by the passage of emergency legislation through the Commons without a vote or extensive opposition scrutiny.  The new Coronavirus Act, along with the regulations in each of the four countries of the UK, gives discretionary powers with few restrictions to central government and devolved administrations. Without the ECHR and the Human Rights Act, there could be no judicial scrutiny of these powers, either by the ECtHR or the UK’s own Supreme Court.

Conclusion

The choice in this crisis is not between upholding rights and passing emergency powers, but rather between international legal limits and arbitrary domestic procedures.  If the government invokes Art 15 ECHR, it will be required to give timely and detailed formal notification under the procedures laid out in Art 15(3); in contrast to the blank cheque of the emergency legislation, the Art 15(3) mechanism requires specification of the exact measures and justification of their necessity.  This will commence enhanced scrutiny by both the domestic and international courts, and give a framework grounded in international rights norms which guides emergency measures.  Once again, as (rightfully) scary as the notion of derogating from fundamental rights sounds, the invocation of Art 15 ECHR is a vital safeguard against capricious or unnecessary restrictions on liberty. 

Meanwhile, it is readily apparent that this crisis is entirely real, rather than (as in The Greek Case) concocted, and that for all their many political flaws, the Cabinet are not an aspiring junta.  Although Lord Denning’s observation in the case of  R v Secretary of State for Home Affairs, Ex p Hosenball [1977] 1 WLR 766 (CA), 783 — ‘In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England’ —is, as a general principle, rather naïve, it holds true in this particular crisis.  As noted above, the emergency derogations under Art 15 ECHR must be exercised with regard to the ultimate goal of maintaining a pluralist and open society.  The drafters of the ECHR were familiar with the rise of Nazism; Art 15 ECHR is designed to prevent a repetition of the Enabling Act, which opened the door for the Nazi takeover of the Weimar Republic during a period of crisis. 

There is another reason to prefer the combination of domestic measures and Art 15 ECHR to domestic measures alone.  In the heat of a crisis, to paraphrase Lord Denning, legal theory may be subverted by practical politics.  The government will take emergency measures which violate fundamental rights, probably with opposition support, if they are deemed to be necessary.  If the government does not validly derogate under Art 15 ECHR, and instead chooses to employ parliamentary sovereignty to enable incompatible actions, human rights law may come to be seen as a dead letter impeding essential emergency measures.

This would perfectly suit those members of the Conservative Party who have long called for the repeal of the Human Rights Act, and its replacement by a ‘British Bill of Rights’.  If the government is allowed to disregard the Art 15 ECHR procedure until it becomes too late to use it, the normative legitimacy of popular support for the ECHR and international rights conventions more generally may be fatally undermined.  This danger is particular to the UK, which is unique among ECHR contracting states in lacking entrenched protection for rights in a domestic constitution (pace Lord Steyn’s opinion in R (Jackson)  v Attorney General [2005] UKHL 56). 

Thus, the fundamental question now is not if the government will derogate from some of its rights obligations, but how it does so.  The ideal solution would be for there to be no crisis, but, sadly, we live in a society whose very continued existence is threatened.  The government has the power to protect public safety, social institutions, and hundreds of thousands of lives from catastrophe.  Derogation according to the safeguards of Art 15 ECHR will ensure that such necessary action is conducted within an international legal framework, rather than left completely to domestic discretion.

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Tagged: Human Rights, Public Law

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