Friday 7 October 2016

Human rights news

Proposed derogations from European Convention on Human Rights:

Journalonline has reported that proposals to  derogate from the European Convention on Human Rights in relation to the actions of British troops involved in foreign conflicts, were announced at the Conservative Party Conference.  "Defence Secretary Michael Fallon said that in future conflicts, subject to a vote of both Houses of Parliament, the UK would "derogate" from article 2 (right to life) and article 5 (right to liberty) of the Convention.  Troops will remain subject to other articles of the Convention, including the prohibition on torture. The changes will not apply retrospectively.  The Government claims the derogations will prevent "vexatious" claims being brought against the armed forces by foreign civilians."

The European Convention on Human Rights Article 1 requires States to secure for everyone within their jurisdiction the rights and freedoms defined in the Convention.  The phrase "within their jurisdiction" has been interpreted as going beyond the geographical boundaries of the State so that it extends to places where the State has effective control. (For deeper discussion on this see Al-Sadoon and others v Secretary of State for Defence [2016] EWCA Civ 811).

Derogation is permitted by Article 15 - 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 this Convention to the extent strictly required by the exigences of the situation, provided that such measures are not inconsistent with its other obligations under international law.  No derogation from Article 2 (Right to Life) is permitted (except in respect of deaths resulting from lawful acts of war).  Derogation is not permitted from Article 3 (Prohibition of Torture),  Article 4(1) (Slavery or servitude) and Article 7 (No punishment without law).

The UK has derogated from the Convention (Article 5) in the past - Parliament Joint Committee on Human Rights 17th report.   In the immediate aftermath of 9/11, the UK derogated from the right to liberty in Article 5 ECHR when it enacted Part IV of the Anti-Terrorism, Crime and Security Act 2001, authorising the indefinite detention of foreign national terrorism suspects. It was alone among the Council of Europe Member States in doing so.  The Government asserted the existence of "a public emergency threatening the life of the nation".

The UK withdrew its derogation from Article 5 in 2005, following the decision of the House of Lords in the Belmarsh case that it was incompatible with the Convention. The House of Lords, by a majority, upheld the Government's argument that there was a public emergency threatening the life of the nation, largely on the basis that the court was not in a position to challenge that assertion, but held that the other condition of a lawful derogation, that the measure in question must be "strictly required by the exigencies of the situation", was not satisfied. The European Court of Human Rights, when it considered the Convention compatibility of the 2001 legislation, similarly deferred to the Government's assertion that there existed at the time of the derogation a public emergency threatening the life of the nation.

"Emergency and escape: Explaining derogations from Human Rights Treaties" is an interesting article on the subject of derogations generally.

Ahmed Jabbar Kareem Ali:

Rightsinfo has drawn attention to the case of Ahmed Ali

Led by former High Court judge Sir George Newman, a report by the Iraq Fatalities Investigation found that Ahmed Jabbar Kareem Ali drowned after being forced to enter a canal, shortly after British forces took control of the city in April 2003.

See also Justice Gap - Not so vexatious: The case of Ahmed Jabbar Kareem Ali

British Institute of Human Rights Report to the UN:

The BIHR has published this report on the UK government's human rights record.

British Bill of Rights:

The Secretary of State for Justice (Elizabeth Truss) has confirmed that the government still intends to implement a British Bill of Rights - The Guardian 22nd August 2016.

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