A Domestic Court’s Attempt to Derogate from the ECHR on behalf of the United Kingdom: the implications of Covid-19 on judicial decision-making in the United Kingdom

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It is perhaps trite to note that for many countries throughout the world Covid-19 represents an unprecedented (as least in terms of modern peacetime history) public health emergency. It is inevitable that during this time some decisions will be made that are controversial, both ethically and legally. It will take careful reflection in the wake of the pandemic for the true implications of the response by governments to be properly appreciated. Courts are also not immune from making hasty decisions that are legally questionable (or plainly wrong in law). One such decision is the recent judgment of Justice Hayden sitting in the England and Wales Court of Protection in BP v Surrey County Council & Anor [2020] EWCOP 17 (25 March 2020). Of particular concern is what seems to be the judge’s attempt to derogate from Article 5 of the European Convention on Human Rights (‘ECHR’) pursuant to Article 15 on behalf of the United Kingdom.

The case involved an urgent application (in the context of broader proceedings concerning capacity) regarding an 83-year-old deaf man (referred to as ‘BP’) with Alzheimer’s disease, who was residing in a care home under a standard authorisation (see, Schedule AI of the Mental Capacity Act 2005). His daughter (who appeared as her father’s litigation friend) sought several declarations as part of an application to have her father released home to stay with her, at least for the duration of the pandemic. The application arose because of the Prime Minister’s statement on 23 March 2020 that people should remain at home where possible. The care home subsequently ceased all visitations in accordance with that statement and it was argued that keeping BP at the care home without any visitations was contrary to his best interests.

Of relevance for instant purposes was the declaration sought on BP’s behalf that ‘the total ban on visits is a disproportionate interference with BP’s rights under Articles 5 and 8 (read with Article 14) of the European Convention on Human Rights’. In resolving that issue the trial judge has, it seems, determined that Article 5 of the ECHR should be derogated from per Article 15, and the Council of Europe notified accordingly. The relevant aspects of the trial judge’s reasons are as follows:

[27]    It strikes me as redundant of any contrary argument that we are facing “a public emergency” which is “threatening the life of the nation”, to use the phraseology of Article 15. That is not a sentence that I or any other judge of my generation would ever have anticipated writing. The striking enormity of it has caused me to reflect, at considerable length, before committing it to print. Article 5 protects the fundamental human right both to liberty and, it must be emphasised, to security. It requires powerful reasons to justify any derogation. Those reasons must be confirmed on solid and compelling evidence before any court finds them to be established. The spread of this insidious viral pandemic particularly, though not uniquely, threatening to the elderly with underlying comorbidity, establishes a solid foundation upon which a derogation becomes not merely justified but essential. Ms Harvey referred me to the relevant case law concerning the procedure for derogation. In particular, my attention was drawn to Lawless v Ireland 332/57; Greek case 176/56. I am clear that on a proper construction of these authorities, it is not essential to signal in advance a notification of derogation to the Council of Europe. In any event it would simply not be practical to do so. I will send notification of my decision. It also requires to be stated, in the clearest of terms, that this derogation is to cover a limited period and has been necessary in consequence of an unprecedented pandemic public health crisis. In reaching the conclusion that I have, I bear in mind that fundamental rights and freedoms require to be protected as vigilantly in times of crisis as in less challenging circumstances.

The procedure for notifying the Council of Europe of a derogation is set out in Article 15(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.

As a recent Guide published by the European Court of Human Rights on Article 15 notes (at [33]):

The primary purpose of informing the Secretary General is that the derogation becomes public. A further purpose is that the Convention is a system of collective enforcement and it is through the Secretary General that the other Contracting States are informed of the derogation.

The concept that a trial judge could publicly bind the UK by virtue of sending his reasons in a private law case in which the government was not represented is nonsensical. This is all the more so when one considers that the UK includes the devolved jurisdictions of Northern Ireland and Scotland and the trial judge was sitting in the England and Wales Court of Protection.

As the aforementioned ECtHR Guide further states at [34]:

In the absence of an official and public notice of derogation, Article 15 does not apply to the measures taken by the respondent State (Cyprus v. Turkey, Commission report of 4 October 1983, §§ 66-68).

While Justice Hayden indicated that “notification” of his reasons would be sent to the Council of Europe (see above), it is highly unlikely that the trial judge’s reasons constitute an “official and public notice of derogation”. While the judgment is publicly available, it has not been made known to the wider public. Further, it is by no means clear that the judgment would be considered “official”, particularly taking into account the nature of the proceedings and the lack of government involvement (including by the devolved jurisdictions).

More presciently, the State is required to notify the Council of Europe of “the measures taken and the reasons” under the derogation. It is not clear from Justice Hayden’s reasons what those measures are. Such ambiguity prevents an effective assessment of whether the derogation is “strictly required by the exigencies of the situation” (as required by Art 15(1)). It is notable that the UK Parliament introduced the Coronavirus Act 2020 which contains expansive provisions enabling authorities to take significant action in curtailing the liberty of individuals (including, for instance, the power to remove individuals for testing and to disperse public gatherings), without itself derogating from the ECHR.

Beyond the above issues regarding the procedural aspects of notification, Article 15 is not included amongst the ECHR rights that have been incorporated into domestic law via the Human Rights Act 1998 (‘HRA’). On this basis, it would seem that the trial judge did not have the power to derogate. Indeed, pursuant to s 2 of the HRA, the articles of the ECHR that have been incorporated (which includes Articles 5 and 8), take effect subject to any “designated derogation”. That, in turn, is defined in s 14 as “any derogation by the United Kingdom from an Article of the Convention, or of any protocol to the Convention, which is designated for the purposes of this Act in an order made by the Secretary of State”. Plainly, the judgment of Justice Hayden, regardless of its notification to the Council of Europe, falls short of the procedure set out by the UK Parliament in the HRA for derogating and, in the absence of a “designated derogation”, the rights incorporated by the HRA continued to apply.

The decision by Justice Hayden to attempt to derogate from Article 5 of the ECHR is perhaps a reflection of the unprecedented state of affairs we find ourselves in. But as Hayden J himself observed, such times calls for “heightened vigilance to ensure that … fundamental rights are not eclipsed by the exigencies of the Coronavirus pandemic”. Despite that gallant exhortation, Justice Hayden’s judgement falls well short; his attempt to derogate from Article 5 of the ECHR is a striking manifestation of precisely that which he cautioned against.


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Dapo Akande says

April 9, 2020

Hi Stevie,

Many thanks for the post! This certainly seems like a very unusual case. At first sight it seems as if the position on domestic courts and derogations is clear cut but I just wonder.

Leaving aside the specifics of this case, I would be interested to hear you elaborate on why think it is nonsensical for a domestic judge to derogate from a human rights treaty. Lets leave aside questions of domestic law, what is the precise reason why, as a matter of international law, a domestic judge may not do this?

Is the suggestion that:
(i) a domestic judge may not find or declare that a state of emergency which threatens the life of the nation exists?
(ii) a domestic judge may not take measures which derogate from the state's obligations under the treaty? or
(iii) a domestic judge may not notify the measures to the relevant Secretary General?

With regard to the finding/declaration of a state of emergency, there is a difference between the ECHR and the ICCPR. The former only requires that the state of emergency exists whereas the latter requires that it be "officially proclaimed". With regard to the ECHR, there would be a question as to whether the state needs to do more than notify the Council of Europe that it has taken the view that a state of emergency exists. This gets to the 3rd question above. But if the domestic judge can send the notification does that suffice or does there need to be some more public proclamation? Even under the ICCPR, I am wondering whether there is a reason why a court judgment could not constitute an official proclamation. Leaving aside questions of domestic law, it would seem clear that either the executive or the legislature might find and declare a state of emergency, why not the judiciary?

With regard to the second question I would have thought that just as a matter of fact judges can take measures that are otherwise inconsistent with the state's obligations.

With regard to the third question, there is an issue of whether the notification is part of what releases the state from its obligation. So absent the notification, can the state rely on the derogation? Or is the notification that which makes it possible to rely on the derogation. Assuming, for now, that it is the notification that releases the state from the international obligation, the question that then arises is whether it is only the executive branch that can make that notification. More specifically, it may be argued that a notification of a derogation is an instruments made in connection with a treaty and which bind the state under that treaty AND that such instruments can only be made by an entity that has the power to enter into the treaty in the first place (so the Head of State, Head of Govt, Foreign Minister, or other person with full powers). However, I'm not sure that this has been the practice with regard to derogations.

Stevie Martin says

April 9, 2020

Hi Dapo,

Thank you for your comments/questions.

My observations were intrinsically linked to the specifics of this judgment and the domestic situation (in particular the UK's unique constitutional framework (the centrality of which is the supremacy of Parliament) and taking into account the nature of the proceedings). The concept that a UK court could alter the State's obligations under an international treaty is contrary to the UK's constitutional framework.

But, if a State's political and legal framework permitted its courts to alter the State's obligations under an international treaty or to bind the State’s executive and legislature, then it may well be arguable that the courts in that State could derogate. The validity of that derogation would, then, depend on whether the other parties to the Treaty recognised an alteration to its contents by a domestic court. The following observation of the ECtHR in Lawless v Ireland may be relevant (I note that the CoP judge also referred to Lawless):

[22] It follows from these provisions [Art 15] that, without being released from all its undertakings assumed in the Convention, the Government of any High Contracting Party has the right, in case of war or public emergency threatening the life of the nation, to take measures derogating from its obligations under the Convention other than those named in Article 15 (2), provided that such measures are strictly limited to what is required by the exigencies of the situation and also that they do not conflict with other obligations under international law.

If taking measures derogating from the ECHR is a right (noting here that the ECtHR stated that it was the right of the Government of a HCP), then the question must be whether a particular court in a particular Member State is permitted to exercise that right on behalf of the State.

But that does not address the broader issue of whether the Secretary General/Council of Europe would accept a court purporting to exercise that right. The reasoning of the Commission in the Greek Case, in particular its observations that a derogation affects the rights of other High Contracting parties to refer to the ECtHR any alleged breach by another HCP of the provisions of the Convention (now Art 33), affects the rights of individuals to bring applications before the ECtHR (now Art 34) and impedes the ability of the ECtHR to hear such applications (since measures/action that would otherwise violate the ECHR does not because of the derogation), may be pertinent. If it is accepted by the Council that a domestic court can impede the rights of other Member States, can curtail the rights of individuals to bring complaints under Art 34 and can restrict the ECtHR’s ability to fulfil its function, then it may be that a domestic court could derogate.

Dapo Akande says

April 9, 2020

Thanks for the reply Stevie! Your reply prompted two further thoughts.

The first is the relationship between legality of the action of the domestic court (or other state organ) under domestic constitutional law and the validity under international law of what that organ has done. I'm not sure what the answer is here but under the law of treaties (and with regard to entering into a treaty) illegality under domestic law does not mean that the act would automatically be invalid under domestic law. I'm not saying this would be the case here. This is a different scenario that might prompt a different approach but it is worth thinking about the question.

Second, I am doubtful as to whether the legality of a derogation would depend on the reaction of other states parties. Nothing in the text of the derogations provisions of human rights treaties suggest this. Other states and individuals can still take cases to the ECtHR or other courts/bodies. It is just that the test for judging the legality of the action of the state that has derogated would be different. As the right to derogate is explicitly provided for, it is not clear why other treaty parties should be able to block its exercise, as long as the conditions stipulated for in the treaty are observed.

Stevie Martin says

April 10, 2020

Hi Dapo,

I see that Natasha has written a post on the consequences of not notifying the CoE/SG. It seems that the ECtHR has never clearly outlined whether failure to notify would negate the derogation.

It seems to me to be important to distill the purpose of the Art 15(3) "duty" to notify in order to ascertain whether a failure to notify will preclude reliance by the State on the derogation. The following from a Guide published by the ECtHR in 2019 on derogations states:

33. The primary purpose of informing the Secretary General is that the derogation becomes public.
A further purpose is that the Convention is a system of collective enforcement and it is through the
Secretary General that the other Contracting States are informed of the derogation: by Resolution
56 (16) of the Committee of Ministers, any information transmitted to the Secretary General in
pursuance of Article 15 § 3 must be communicated by him as soon as possible to the other
Contracting States (Greece v. the United Kingdom, Commission report, § 158).

I note that the reference is to the section of the Greek Case that I referred to in my earlier reply regarding the rights of other member states and the role of the ECtHR. Arguably, a failure to comply with the duty to notify will undermine the collective enforcement powers of the CoE. But does that mean that a failure to notify will negate the derogation? Given that a core (if not, the core) purpose of the ECHR is to protect the ECHR rights of individuals within the jurisdiction of its Members States, it is arguable that those collective enforcement powers are an essential safeguard for individuals who are subject to measures derogating from the ECHR. States could bring proceedings against another State for a failure to comply with Art 15 but only if they are made aware of the exercise of the right by the State and the specifics of the measures that have been taken. The lack of such a safeguard may support the conclusion that the derogation was unlawful. The risk of arbitrariness and the lack of review by the CoE if a State does not notify the Secretary General of its derogation may also support a conclusion that a failure to notify nullifies the derogation.

A toolkit published by the SG on "Respecting democracy, rule of law and human rights
in the framework of the COVID-19 sanitary crisis" on 7 April 2020 states:

"A derogation is also subject to formal requirements: the Secretary General of the Council of Europe,
being the depository of the Convention, must be fully informed of the measures taken, of the reasons
therefore, and of the moment these measures have ceased to operate."

While the reference to "formal requirements" and that the State "must" does suggest that a notification is required, it does not definitely settle whether a failure to comply with those requirements will nullify the derogation.

This is obviously an area ripe for further research and it has certainly prompted me to explore the issue more deeply!

Happy Easter.

Niall C says

April 14, 2020

Just to say thank you for this excellent spot and the interesting analysis. It is impressive for a single judicial paragraph to pack in quite so many fundamental misunderstandings of both domestic and international law. If this were not the Court of Protection, it would have been interesting to see the submissions of Counsel on which it appears to be based.

Niall C says

April 14, 2020

Further to my previous comment, it is interesting to read Counsel's (somewhat cryptic) reflections on the issue: https://www.no5.com/media/news/liberty-equality-the-court-of-protection-and-the-coronavirus-bp-v-surrey-county-council-rp-2020-ewcop-20/

Alison Harvey says

April 18, 2020

Counsel in the case. We appealed on the Article 15 ppoint and, rather than grant permission to appeal, Hayden J will issue a supplementary judgment on the point soon possibly next week. Shall tweet it (@aliromah)