Shifting Emergencies from the Political to the Legal Sphere: Placing the United Kingdomms Derogations from the ECHR in Historical Context

Abstract

Before their involvement with the European Convention on Human Rights (ECHR) many of its signatory states had historically maintained formal constitutional requirements for the suspension of citizenship rights or civil liberties in times of emergency, such as France’s concept of d’etat de siege. Article 15 ECHR, authorising signatory states to derogate from various ECHR rights in time of war or other emergency threatening the life of the nation, and thereby insulating emergency powers from the standard level of European Court scrutiny, was therefore a familiar legal construct for these states. Under the United Kingdom’s (UK’s) uncodified constitution, however, the executive’s power to invoke martial law was uncertain in scope and application and had been superseded in practice by legislation addressing emergency situations since the early twentieth century. Such emergency powers had required direct parliamentary approval. Despite this apparent emphasis upon the political nature of an emergency, ill-fitting as it is with Article 15’s highly-legalised system for derogations, the UK has issued derogations more regularly than any other ECHR state. This article examines whether the Article 15 arrangements have actually conditioned particular emergency responses by UK governments, based not on security rationale, but on expediency. Many UK legislators implicitly accepted that as the legitimacy of proposed derogations is subject to judicial consideration, this reduced the need for concerted parliamentary oversight. By quietening Parliament in this way, derogations became a route to tackle an emergency with few up-front costs. Having minimised pre-legislative scrutiny, it could take years for a challenge to a derogation to receive authoritative consideration by Strasbourg, where a broad margin of appreciation operates. Only with the injection of parliamentary and legal process through the Human Rights Act 1998 has this oversight lacuna narrowed.