7. Opinion 1/2002 of Mr Alvaro GilRobles,
Commissioner for Human Rights,|
Council of Europe
Opinion of the Commissioner for Human Rights on certain
aspects of the United Kingdom 2001 derogation from Article 5 par.
1 of the European Convention on Human Rights
1. By letter of 9th April 2002, the Joint Committee
on Human Rights requested the Commissioner for Human Rights of
the Council of Europe (the Commissioner) to submit an opinion
concerning a number of issues raised by the United Kingdom's derogation
from article 5 (1) of the European Convention for Human Rights
(the Convention) in respect of certain provisions of the AntiTerrorism,
Crime and Security Act 2001. The call for evidence concerned,
in particular, the adequacy of the parliamentary scrutiny of the
measures taken by the United Kingdom Government to this effect.
2. The Commissioner submits this opinion in
accordance with Articles 3(e), 5 (1) and 8 (1) of Resolution (99)
50 of the Committee of Ministers on the Commissioner for Human
Rights. Article 3(e) instructs the Commissioner to "identify
possible shortcomings in the law and practice of member States
concerning the compliance with human rights as embodied in the
instruments of the Council of Europe". Article 5(1) states
that "the Commissioner may act on any information relevant
to the Commissioner's functions", including "information
addressed to the Commissioner by governments, national parliaments,
national ombudsmen or similar institutions in the field of human
rights, individuals and organisations." In accordance with
Article 8(1) "the Commissioner may issue recommendations,
opinions and reports."
II. Derogations under Article 15 of the ECHR
3. Article 15 of the Convention allows States
to derogate from a number of its articles "in times of war
or other public emergency threatening the life of the nation"
provided that the measures taken do not exceed those "strictly
required by the exigencies of the situation". States seeking
to derogate must inform the SecretaryGeneral of the Council
of Europe of the measures taken and the reasons therefor.
4. The European Court of Human Rights (the Court)
is competent to decide on the validity of derogations. It has,
however, granted states a large margin of appreciation in assessing
both the existence of a public emergency and the strict necessity
of the measures subsequently taken. National authorities are,
"by reason of their direct and continuous contact with the
pressing needs of the moment, [¼]
in principle in a better position than the international judge
to decide both on the presence of such an emergency and on the
nature and scope of the measures necessary to prevent it"
5. The Convention does not expressly require
an effective domestic scrutiny of derogations under Article 15,
and the Court has not yet had occasion to pronounce on the matter.
The requirement is, however, easily discerned.
6. The Court has repeatedly emphasised the close
relationship between democracy and the rights guaranteed by the
Convention, stating, for instance, that "democracy appears
to be the only political model contemplated by the Convention
and, accordingly, the only one compatible with it".
7. The separation of powers, whereby the Government's
legislative proposals are subject to the approval of Parliament
and, on enactment, review by the courts, is a constitutive element
of democratic governance.
8. Effective domestic scrutiny must, accordingly,
be of particular importance in respect of measures purporting
to derogate from the Convention: parliamentary scrutiny and judicial
review represent essential guarantees against the possibility
of an arbitrary assessment by the executive and the subsequent
implementation of disproportionate measures.
9. It is, furthermore, precisely because the
Convention presupposes domestic controls in the form of a preventive
parliamentary scrutiny and posterior judicial review that national
authorities enjoy a large margin of appreciation in respect of
derogations. This is, indeed, the essence of the principle of
the subsidiarity of the protection of Convention rights.
10. This opinion is not concerned with the judicial
review of derogations.
11. The parliamentary scrutiny of derogations is
consistent with the Constitutional norms of several European countries
regarding the use of emergency powers. Declarations of different
types of emergencies typically require simple or qualified parliamentary
majorities, or are subject, along with the related measures, to
subsequent parliamentary confirmation.
12. The formal requirement of the parliamentary
approval of derogations is not on its own sufficient, however,
to guarantee an independent assessment of the existence of an
emergency and the necessity of the measures taken to deal with
it. It is clear that the effectiveness of the parliamentary scrutiny
of derogations depends in large measure on the access of at least
some of its members to the information on which the decision to
derogate is based.
III. The adequacy of the UK procedure with
respect to derogations
13. The rights guaranteed by the Convention were
incorporated into United Kingdom domestic law by the Human Rights
Act 1998. Section 3 of the Act provides that, in so far as it
is possible to do so, primary legislation must be read and given
effect in a way which is compatible with Convention rights. Under
Section 4, the court, in this case the Court of Appeal or House
of Lords, may make a declaration of incompatibility of a provision
of primary or secondary legislation with a right guaranteed by
the ECHR. In respect of new legislation, Section 19 requires that
the Minister in charge of a Bill make a statement before parliament
(a "statement of compatibility") to the effect that
the Bill's provisions are compatible with the Convention rights.
14. The Human Rights Act outlines in sections
14 and 16 the procedure for derogating from Convention rights
for the purposes of domestic law. The Secretary of State responsible
designates the derogation through a statutory instrument in the
form of an Order in Council, which must subsequently be included
in Schedule 3 of the Act. The order designating the derogation
comes into effect immediately, but expires after a period of 40
days unless both Houses pass a resolution approving it. A designation
order may be made in anticipation of a proposed derogation.
15. The Home Secretary first announced proposals
to combat the "the threat from international terrorism"
on 15th October 2001. On 11th November 2001 the Human Rights Act
1998 (Designated Derogation) Order 2001 was made by the Home Secretary.
It came into effect two days later. The Designated Derogation
Order was debated in Parliament on 19th November and approved
on 21st November 2001. The first draft of the Antiterrorism,
Crime and Security Bill 2001 was laid before Parliament on 12th
November 2001 and received Royal Assent on 13th December 2001.
The Secretary General of the Council of Europe was informed of
the United Kingdom's derogation by Note verbale on 18th
16. It is clear from the related chronology that
the United Kingdom Parliament enjoyed, in principle, two separate
occasions on which to scrutinise the derogation in question; firstly,
on approving the Derogation Order and, secondly, when passing
the derogating provisions of the Antiterrorism, Crime and
17. It is to be noted that the derogation was
designated for the purposes of domestic law in anticipation, not
merely, as is provided for by Section 14(6) of the Human Rights
Act, of the United Kingdom's derogation from its obligations under
the Convention, but prior also to the enactment of the legislation
necessitating the derogation, in this case, even, before the proposed
Bill had been laid before Parliament. Two related problems would
appear to arise in respect of this chronology.
18. It is not clear, firstly, that this sequence
is consistent with the legal nature of derogations. A derogation
is made in respect of certain measures that would otherwise infringe
rights guaranteed by the Convention and is constituted by its
formal announcement (under the Convention, through notification
of the Secretary General of the Council of Europe) in relation
to those measures. Indeed the Court has shown some flexibility
with regards to the timing of notifications, accepting delays
of up to two weeks following the adoption of the measures in question,
suggesting that the derogation comes into force not on notification
but on promulgation. This is unsurprising since it is only the
measures themselves that can define the scope of the derogation.
Indeed, the notification or, for the purposes of domestic law,
the designation of a derogation will, on its own, be of no legal
consequence. The effect of the procedure adopted in respect of
the United Kingdom derogation was, therefore, oddly, to invert
the formal requirement; instead of the order sanctioning the measures,
the measures confirmed the order.
19. There is, secondly, a risk that this sequence
will undermine the effectiveness of the parliamentary scrutiny
of the derogation. A designated derogation comes into effect immediately,
and, therefore, unless the measures themselves have been examined
beforehand, prior to any scrutiny whatsoever. The United Kingdom
parliament must, however, subsequently approve the order. Parliament's
ability to scrutinise the necessity of the derogation at this
stage, might appear, in this case, to have been limited by the
fact that the derogating measures had not yet been finalised.
Indeed, the first draft of the proposed Bill was laid before Parliament
only the day after the designated derogation was made, the House
of Commons, having, furthermore, only one week to consider the
Bill before being asked to approve the order. It is true that
the designated derogation has no effect until the enactment of
the attendant measures. However, the practise of designating a
derogation prior to the debating of the derogating measures risks
not only eliminating an effective scrutiny of the order itself,
but also potentially reducing the urgency of a detailed scrutiny
of the subsequent measures. This will especially be the case where
the derogation order enables the Secretary of State to make a
declaration of compatibility in respect of the Bill he wishes
to put forward. In effect, two small parliamentary hurdles are
substituted for one large one.
20. The Commissioner is of the opinion, therefore,
that it would be both more coherent and provide a greater guarantee
of effective parliamentary scrutiny if, as a general rule, derogations
were designated for the purposes of domestic lawand the
Secretary General notifiedonly after the measures requiring
them have been promulgated.
21. In the instant case, the Commons' debates
of 19th November suggest that its members were well acquainted
with the proposed provisions of the Anti terrorism, Crime
and Security Bill, reasonably precise indications of which were,
in any case, already available since 15th October. Nor do the
debates during the subsequent passage of the Bill reveal an absence
of concern over the real necessity of taking the significant step
of derogating from Convention rights. What the latter debates
do reveal, however, is that several members of Parliament felt
insufficiently informed as to the extent of the threat and unable
to assess, therefore, whether it constituted a public emergency
and whether the relevant provisions of the Bill were strictly
22. An effective parliamentary scrutiny presupposes
an informed and independent assessment. The information relevant
to proposed derogations is likely, however, to be of a sensitive
and perhaps publicly undisclosable nature. Whilst it might, under
such circumstances, be acceptable to restrict Parliamentary access
to such information, the failure to disclose any information at
all, where it is maintained that such information exists, is manifestly
incompatible with the requirement of the democratic control of
executive authority which is of particular importance in respect
of measures limiting rights guaranteed by the Convention.
23. One mechanism amongst many might be to make
the information warranting the derogation available to a specially
constituted ad hoc Committee. The Committee, made up, perhaps,
of selected representatives from a limited number of concerned
Parliamentary Committees, could, in turn, report their assessments
to both Houses. One might have included, for example, in respect
of the derogation in question, the Home Affairs Committee, the
Joint Committee on Human Rights and the Joint Committee on Statutory
Instruments. It is to be noted in this respect that special parliamentary
commissions competent to examine classified information exist
in several Council of Europe member States for the control of
IV. The review and renewal of derogations
24. The need for effective parliamentary scrutiny
applies equally to the periodic review and possible renewal of
derogations. The Human Rights Act 1998 provides, in section 16
1(b), that designated derogations shall lapse 5 years after the
initial order is made and, in section 16 (2), that the Secretary
of State may extend the order for a further period of 5 years
at any time prior to the initial order's expiry. In respect of
renewals, the derogation order comes into force, unlike the original
order, only on its approval (within 40 days) by Parliament. The
Human Rights Act makes no mention of review.
25. In the absence of any review procedure, the
Commissioner is of the opinion that the 5 year period provided
for by the Human Rights Act 1998 is excessive. It must be recalled
that derogations are valid only for so long as the public emergency
obtains and that much can change in 5 years. In the opinion of
the Commissioner derogations ought to be subject to renewal conditional
on the approval of Parliament no later than 12 months after coming
26. The provisions of the Human Rights Act 1998
are improved upon in respect of the derogating sections of the
Antiterrorism, Crime and Security Act 2001, which, under
section 29 (1) of the Act, expire 15 months after the coming in
to force of the Act. The Secretary of State may, under section
29 (2), revive the sections for subsequent periods not exceeding
1 year each, subject to the approval of Parliament (Section 29
3(b)). The Secretary of State shall, under section 28 (1) "appoint
a person to review the operation" of the derogating measures
within 14 months of the Act's coming into force and within 11
months of each of renewal.
27. The review procedure is unclear. Question
marks remain over the independence of the reviewer, his or her
access to the necessary information and the subsequent availability
of his or her conclusions. The requirement that the Secretary
of State put the report before Parliament as soon as is practicably
possible presents some difficulty. It is hard to foresee a practical
obstruction that would justify delaying its immediate disclosure.
There is no guarantee, furthermore, that the disclosure of the
report would coincide with the request that Parliament approve
an extension order.
28. It would perhaps be preferable, therefore,
to merge the review and renewal procedures, such that the timeframes
were identical for both and the review was conducted by, or in
tandem with, a selected number of Committee members who might
advise both houses on its approval of the new derogation Order.
V. Considerations on the justification of
the United Kingdom 2001 derogation
29. Sections 21-23 of the Antiterrorism,
Crime and Security Act 2001 provide for the potentially indefinite
detention of foreign nationals the Home Secretary suspects of
involvement in international terrorism and whom he is unable to
deport owing to a wellfounded fear of persecution in the
country of origin and the inability to secure a third country
30. In his report on his visit to Spain and the
Basque Country, the Commissioner recognised the threat of terrorism
as " ¼
[affecting] not only the fundamental rights of individuals but
also the free exercise of certain civil and political rights which
are the basis and foundation of every democracy". States
have, as a result, an essential obligation to protect both their
institutions and their citizens against terrorist actions. It
is important, however, that the threat of terrorism is combated
with due respect for the rule of law and without prejudice to
the European human rights acquis, which constitutes the cornerstone
on which our democratic societies are based.
31. The Court has recognised terrorism as a "threat
to the organised life of the community of which the State is composed"
capable of constituting grounds for derogating and has, as indicated
above, given States a large measure of discretion in their assessment
regarding the existence of a public emergency and the necessity
of the measures taken to deal with it.
32. In the instant case, the Commissioner has
not had access to any additional classified information on which
the decision to derogate might have been based and is consequently
unable to express a firm opinion on the existence of a public
emergency within the meaning of Article 15 of the Convention.
The Commissioner would, however, like to raise the following considerations.
33. Whilst acknowledging the obligation of governments
to protect their citizens against the threat of terrorism, the
Commissioner is of the opinion that general appeals to an increased
risk of terrorist activity post September 11th 2001 cannot, on
their own, be sufficient to justify derogating from the Convention.
Several European states long faced with recurring terrorist activity
have not considered it necessary to derogate from Convention rights.
Nor have any found it necessary to do so under the present circumstances.
Detailed information pointing to a real and imminent danger to
public safety in the United Kingdom will, therefore, have to be
34. Even 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.
35. In interpreting the strict necessity requirement,
the Court has so far declined to examine the relative effectiveness
of competing measures, preferring instead to allow such an assessment
to fall within the margin of appreciation enjoyed by national
authorities. This does not exclude the possibility, however, that
demonstrable availability of more or equally effective nonderogating
alternatives will not cast doubt on the necessity of the derogating
measures. This might especially be the case where so important
right as the right to liberty and security is at stake. It is,
at any rate, not clear that the indefinite detention of certain
persons suspected of involvement with international terrorism
would be more effective than the monitoring of their activity
in accordance with standard surveillance procedures.
36. The proportionality of the derogating measures
is further brought into question by the definition of international
terrorist organisations provided by section 21(3) of the Act.
The section would appear to permit the indefinite detention of
an individual suspected of having links with an international
terrorist organisation irrespective of its presenting a direct
threat to public security in the United Kingdom and perhaps, therefore,
of no relation to the emergency originally requiring the legislation
under which his Convention rights may be prejudiced.
37. Another anomaly arises in so far as an individual
detained on suspicion of links with international terrorist organisations
must be released and deported to a safe receiving country should
one become available. If the suspicion is well founded, and the
terrorist organisation a genuine threat to UK security, such individuals
will remain, subject to possible controls by the receiving state,
at liberty to plan and pursue, albeit at some distance from the
United Kingdom, activity potentially prejudicial to its public
38. It would appear, therefore, that the derogating
measures of the AntiTerrorism, Crime and Security Act allow
both for the detention of those presenting no direct threat to
the United Kingdom and for the release of those of whom it is
alleged that they do. Such a paradoxical conclusion is hard to
reconcile with the strict exigencies of the situation.
39. Whilst detention under the derogating powers
of the AntiTerrorism, Crime and Security Act requires that
the individual be an undeportable foreigner, it is triggered,
ultimately, only on the suspicion of involvement with an international
terrorist organisation. Though the reasonableness of the Home
Secretary's suspicion is justiciable, it remains the case that
the detention is effected without any formal accusation and subject
only to a review in which important procedural guarantees are
absent. The indefinite detention under such circumstances represents
a severe limitation to the enjoyment of the right to liberty and
security and gravely prejudices both the presumption of innocence
and the right to a fair trial in the determination of ones rights
and obligations or of any criminal charge brought against one.
It should be recalled that an illfounded deprivation of
liberty is difficult, indeed impossible, to repair adequately.
40. In so far as these measures are applicable
only to nondeportable foreigners, they might appear, moreover,
to be ushering in a twotrack justice, whereby different
human rights standards apply to foreigners and nationals.
41. Whilst Article 15 of the Convention does
not prohibit derogations tending to this effect or preclude restrictions
of the rights outlined above, it is clear that such measures can
be justified only under the most limited of circumstances.
Strasbourg, 8th July 2002