This post is the fifth in my look at the Independent Review of the Human Rights Act 1998.
The review was commissioned by the Secretary of State for Justice (then Robert Buckland QC MP) on 7 December 2020 and was conducted by a panel of 8 including the Chair - former Lord Justice of Appeal, Sir Peter Gross. Their report - finally revealed by the Secretary of State for Justice (now Dominic Raab MP) on 14 December 2021 - extends to 580 pages.
Independent Review of Human Rights Act 1998 - report - (580 pages pdf)
This post looks at Chapter 6 (Designated derogation orders made under section 14 of the Human Rights Act 1998) and Chapter 8 (Extra-territorial and Temporal Scope).
* Chapter 6 - Designated derogation orders under section 14 HRA *
The European Convention on Human Rights (coe.int) (the Convention) provides for both RESERVATIONS and DEROGATIONS.
Reservations (Convention Article 57) - may be made by a State when either signing the convention or at the time of ratification. They are not considered further here.
Derogations (Convention Article 15) - the convention permits States to derogate from the convention "in time of war or other public emergency threatening the life of the nation." There can be no derogation from Article 2 (except in respect of deaths resulting from lawful acts of war), or from Article 3, 4 (paragraph 1) and 7. [Article 2 Right to Life, Article 3 Prohibition of torture or inhuman or degrading treatment or punishment, Article 4(1) No one shall be held in slavery or servitude, Article 7 No punihsment without law).
Chapter 6 para 10 of the Panel's report states - A condition that threatens the life of the nation refers to 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’ - Lawless v Ireland [1961] ECHR 2 -
and continues - "Any measures that the State intends to take must be no more than strictly necessary to meet the emergency. Whether or not the derogation is justified is primarily the responsibility of the Convention state to determine, subject to the ECtHR’s supervisory jurisdiction by reference to the margin of appreciation. Derogations must also not place the Convention state in breach of any obligations it may also have under other international treaties."
See the ECtHR factsheet - Derogation
Derogation from the convention operates on the international plane and is an act of the State and is therefore a matter for the government and Parliament. However, the HRA section 14 permits the Secretary of State to make designated derogation orders. Section 16 deals with the time period for which designated derogations have effect. To date, only one designated derogation order has been made - The Human Rights Act 1998 (Designated Derogation) Order 2001.
Ordinarily, courts in the UK do not have jurisdiction to determine whether an Article 15 derogation is lawful or nor - (see Report Ch 6 para 18).
The UK has entered into two derogations - neither of which are currently in effect.
The first concerned the Prevention of Terrorism (Temporary Provisions) Act 1984 section 12. The issue was detention of individuals by the Police in Northern Ireland for greater than 4 days. The ECtHR found a breach of Article 5 - Brogan v UK [1988] ECHR 2. In 1989 the UK entered a derogation which was upheld by the ECtHR in Brannigan and McBride v UK [1993] ECHR 21. This derogation was withdrawn in 2001 following the enactment of the Terrorism Act 2000. [The TA2000 repealed the 1984 Act].
The second derogation concerned the power to detain individuals for an indefinite period for national security reasons under Part IV of the Anti-Terrorism, Crime and Security Act 2001. The 2001 Act was introduced in the wake of the terrorist attacks on the United States that took place on 11 September 2001. It remained in place until March 2005. The derogation was, again, from article 5 of the Convention. It applied to the power in the 2001 Act to arrest and detain foreign nationals, who were to be deported from the UK where their deportation was not for the time being possible. The derogation was held to be invalid by the ECtHR in A v UK [2009] ECHR 321.
Litigation -
The Report contains a detailed discussion of the litigation which arose in connection with the 2001 derogation. This post notes the key features of the litigation and provides electronic links to judgments.
The Anti-Terrorism, Crime and Security Act 2001 section 30 (as originally enacted) enabled legal challenge in the UK to the derogation. [Section 30 was repealed by the Prevention of Terrorism Act 2005).
In A v Secretary of State for the Home Department [2004] UKHL 56 (the Belmarsh case) concerned detention of foreign nationals under section 23 of the 2001 Act (as originally enacted). The House of Lords rejected argument that there was no public emergency affecting the life of the nation. That was a question for the government to determine. Their Lordships went on to allow the appeal on the basis of proportonality and discrimination. Section 23 was declared incompatible with the Convention Articles 5 and 14 and the designated derogation order was quashed.
As the Panel's report notes at Ch 6 para 29 - "... the House of Lord’s decision did not affect the status of the article 15 derogation itself. It remained in place until it was withdrawn by the Government. Thus, the upshot of Belmarsh was to produce the situation where, in domestic law, section 23 of the 2001 Act was incompatible with Convention rights as they continued to be given effect via the HRA, while in international law the Convention rights had been disapplied via the article 15 derogation. In its response to the House of Lords’ judgment, the Government accepted the Court’s decision and subsequently introduced legislation intended to meet the House of Lords’ conclusion that the 2001 Act did not satisfy the exigences of the situation test. It withdrew the article 15 derogation in March 2005."
The approach of the UK courts to designated derogations is summarised in the Report at Ch 6 para 39 -
● Article 15 derogations do not form part of domestic law.
● The UK Courts are able to assess their validity where there is specific legislation authorising them to do so, as was the case in Belmarsh, through section 30 of the 2001 Act, and possibly otherwise, depending on the views taken in Belmarsh. However, in so far as the UK Courts are entitled to assess the validity of an article 15 derogation, it is only for the purposes of assessing validity of a designated derogation order.
● Designated derogation orders are delegated legislation. They are therefore susceptible to judicial review.
● The remedy (currently) most likely to be used by the Courts in respect of a designated derogation order is a quashing order.
Various options for reform were considered by the Panel. Those rejected are noted and discussed at paras 42, 47, 53, 59, 62 and 63. The only reform recommended is to amend section 14 of the HRA to enable UK Courts to make suspended quashing orders where a challenge to a designated derogation order succeeds. Otherwise no change to section 14.
* Chapter 8 Extra-territorial and Temporal scope *
Extra-Territorial application - Article 1 of the Convention states - ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’
Given the UK's involvement in military matters abroad (principally Iraq and Afghanistan) it is not surprising that litigation arose regarding the territorial extent of the convention particularly to places where the UK exercised control over territory - (e.g. in 2003 the UK was an occupying power in Basrah, Iraq). It is nevertheless, as the Panel notes , "a troubling expansion of the Convention's application." On any view, it cannot be said that the matter is in a satisfactory state.
Temporal application is also problematic. This is the extent to which the Human Rights Act 1998 applies to acts of public authorities before and after it came into force. This issue was not the focus of a specific question within the Panel's Terms of Reference but the issue was repeatedly raised with the Panel and could not be sensibly ignored. Moreover, it overlaps to a degree with the issue of extra-territorial jurisdiction.
Acts of Parliament are not usually retrospective in effect but the HRA section 22 contains one exception. Section 22(4) states - Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."
Section 7(1) enables individuals to either bring proceedings under the HRA against a public authority or to rely on Convention rights in proceedings. Because of section 22, convention rights may be relied upon in legal proceedings even for acts arising before the HRA came into force but proceedings may not be brought in respect of pre-HRA acts.
Discussion in the Report
Independent Review of Human Rights Act 1998 - report
Extra-territorial application - The ECtHR decided in Bankovic v Belgium [2001] ECHR 890 that, with some limited exceptions, the legal space of the convention was confined to the territory of the convention state. Since Bankovic, the ECtHR expanded the territorial scope most notably in Al-Skeini v UK [2011] ECHR 1093. where it was held that the actions of the UK armed forces in Iraq fell within Article 1 of the Convention because the UK exercised authority or control of the territory in question.
A summary of the ECtHR position after Al-Skeini is at Ch 8 para 32 where it is noted that the convention's legal scope was NOT limited to the territory of convention States but could, in principle, apply anywhere in the world.
Further discussion is the position after Al-Skeini is at paras. 41 to 49. Developments here concern the Article 2 procedural duty. Article 2 of the Convention sets out the right to life. That is a substantive obligation placed on Convention states, which requires them to both refrain from unlawful killing and to take action to protect life. Article 2 has also been held by the ECtHR to include a procedural obligation. This requires Convention states to carry out an effective and prompt investigation where individuals have died as a result of actions of its agents.
The approach of UK courts to extra-territorial jurisdiction is examined at paras 54 to 61 with a summary at 61 - i.e. The HRA’s territorial and extra-territorial jurisdiction is to be determined by the ECtHR’s interpretation of the Convention’s territorial jurisdiction. This approach is to be taken in order to give effect to the HRA’s primary purpose of giving effect to Convention rights in domestic law..
The report notes - "The consequence of accepting that the ECtHR’s case law determines the scope of the HRA’s extra-territorial jurisdiction, however, marks a significant expansion of the HRA’s scope, contrasted from that applicable at the time it was enacted. Its expansion in this way has posed a number of significant problems for UK armed forces and for the police services."
Temporal jurisdiction - the report considers the ECtHR position on temporal jurisdiction at paras 33 to 40.
The principal development at the ECtHR has concerned Article 2 and what the ECtHR now recognises as a free-standing procedural obligation on States to conduct an effective and prompt investigation where individuals have died as a result of actions of State agents - e.g. the Police etc. The ECtHR position is set out in Janoweic v Russia [2013] ECHR 1003.
The approach of UK courts is discussed at paras 64 to 76. The current position is summarised at 76.
According to ReMcKerr [2004] UKHL 12, there is no duty to investigate deaths occurring before the HRA came into force. ReMc Kerr has not been overruled but must be read together with ReMcCaughey [2011] UKSC 20 which concerned a death before the HRA came into force but where the inquest was to be held afterwards. The Panel's report particularly notes the dissent of Lord Rodger - (para 69 of the report). Re McKerr must also be read in the light of R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 which concerned events in Malaysia in 1948.
Following the Panel's completion of their report, the UKSC handed down judgment in Francis McQuillan's application for Judicial Review [2021] UKSC 55.
Update 8 Jan 2022: See the discussion at https://ukhumanrightsblog.com/2022/01/07/one-date-to-rule-them-all-mcquillan-mcguigan-and-mckenna-2021-uksc-55/
Recommendation:
The report notes that there was a strong view against change but also notes various criticisms. Some suggested reforms are discussed and rejected at paras 93, 95, 97, 104 and 109. One suggested reform was seen as possible but was not recommended - para 111.
The report's actual recommendation is at para 116 -
"The current position of the HRA’s extra-territorial application is unsatisfactory, reflecting the troubling expansion of the Convention’s application.
The territorial scope of the Convention ought to be addressed by a national conversation advocated to IHRAR during the Armed Forces Roundtable, together with Governmental discussions in the Council of Europe, augmented by judicial dialogue between UK Courts and the ECtHR.
Equally, the temporal application of the HRA is now uncertain and unsatisfactory. Clarity is needed. The temporal scope of the Convention ought to be addressed at a political level by the UK and the other Convention states. Future domestic developments, both legislative and judicial, will be informed by the progress and outcome of the national conversation and the inter-Governmental dialogue."
Thus, no reform of the HRA itself was recommended but engagement with the Council of Europe is recommended. That is surely the better way for the government to approach this matter.
* Overall view of the report *
Overall, the report is a detailed analysis of the law involved in the questions put to the Panel by the government in the terms of reference (ToR) (The terms are set out in Annex III). The ToR were set by the government and reflect its concerns. Other matters could have been included such as what amounts to a public authority for the purposes of the HRA.
One consequence of the ToR is that the report places little emphasis on the importance generally of the HRA and the duty it places on public authorities to secure convention rights. What happens outside the courts is of huge importance. There is little doubt that many public authorities still have much work to do in this area.
There are good reasons to believe that the present government is eager to push back against many of the rights and freedoms enjoyed by the citizen and the government also appears keen to limit challenges in the courts. Cogent reasons for concern exist. Given that the report makes only limited recommendations to reform the HRA itself it may be that the report was not exactly what the government or, in particular, the Secretary of State for Justice wished to hear.
It is a credit to the Panel as a whole that they have shown independence and objectivity in the preparation of their report.
My next post will look at the government's proposals which are in a consultation published at the same time as the Panel Report.
Continued HERE .....
Christmas Eve 24 December 2021
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