Derogation- Article 15

Front 1

What is derogation in time of emergency?

Back 1

The point at which a state can derogate from convention rights.

Front 2

When can a state derogate from a convention right?

Back 2

In time of war or other public emergency threatening the life of the nation, and high contracting party may take measures derogating from its obligations under the convention to the extent strictly required by the exigencies of the situation.

Front 3

Which articles cannot be derogated from?

Back 3

-Article 2 (except deaths resulting from lawful acts of war)
-Article 3
-Article 4
-Article 7

Front 4

What are the 5 steps that must be considered when determining whether derogation is possible?

Back 4

1) Is the provision derogable?
2) The existence of a war/public emergency threatening the life of the nation.
3) Is the interference with the right 'strictly required by the exigencies of the situation.'
4) Is it consistent with other obligations in international law/
5) Procedural requirements.

Front 5

What is the significance of Lawless v Ireland (No3)?

Back 5

'Other public emergency threatening the life of the nation' refers to an exceptional situation of crisis or emergency which affects the WHOLE POPULATION and constitute a threat to the ORGANISED LIFE OF THE COMMUNITY of which the state is composed.

-This case was found to fulfil the necessary elements. A member of the IRA was detained, which was in breach of article 5- right to liberty. Therefore derogation was required, and it was found to be a valid derogation.

Front 6

What is the significance of Ireland v UK series A?

Back 6

The ECtHR affords a relatively wide margin of appreciation to the state, when determining whether the life of the nation is threatened by a public emergency, and how far it is necessary to go to overcome the emergency- national authorities are in a better position to decide the presence of such an emergency.
-This margin of appreciation is accompanied by 'European supervision' to make sure that they do not go beyond 'the extent strictly required by the exigencies' of the crisis.

Front 7

Which cases display the 'strictly required by the exigencies of the situation' proportionality requirement?

Back 7

Brogan v UK and Brannigan & McBride.
-Both cases involved the extended detention of terrorist suspects, which breach article 5 (right to liberty) therefore derogation was required.
-It was found that there was an emergency, and trying to comply with article 5 would weaken the state's response to terrorism. Therefore the government's actions were a proportionate response. VALID DEROGATION.

Front 8

What are the 2 other requirements?

Back 8

That it is consistent with other international obligations, and that it complies with set procedural requirements.
-The procedural requirements are that under article 15 (3), the state must proclaim a 'state of emergency' and notify the Council of Europe.

Front 9

What happened in the Belmarsh case, and what was its significance?

Back 9

-Following large-scale terrorist attacks in the USA on 9/11, the UK government concluded that there was a public emergency threatening the life of the nation.
-The commission concluded that there was a public emergency, and therefore the government had been entitled to derogate from its obligations under the convention.

Was there a public emergency? Yes- a threat of attack is enough, as the government is responsible for the safety of the british people, it need not wait for disaster to strike before taking necessary steps to stop it.
-The judgement was pre-eminently one within the discretionary area of judgement reserved to the secretary of state.
However, Lord Hoffman dissented on the 'national emergency' point.

Were the measures 'strictly required?'- No, it was found that the measures were disproportionate, as they ignored UK nationals who could still present a threat, non-nationals could still go abroad, and it did not mention al-quaeda, so it was too broad.
THEREFORE, THE DEROGATION WAS INVALID.