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

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.