Derogation in the time of Coronavirus — Nicholas Clapham

15 April 2020 by

The flag of the Council of Europe

The Council of Europe has issued guidance to member states contemplating derogation from the European Convention of Human Rights during the coronavirus pandemic: Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A Toolkit for Member States (SG/Inf(2020)11).

Derogation under the Convention is governed by Article 15 which states:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

A “public emergency threatening the life of the nation” is defined as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (Lawless v Ireland (No 3) App no 332/57 (A/3), [1961] ECHR 2).

In the guidance the Council acknowledges that measures undertaken during the crisis

will inevitably encroach on rights and freedoms which are an integral and necessary part of a democratic society governed by the rule of law

While this does not mean that derogation is required in all cases, it is accepted that where exceptional measures are necessary, derogation may be justified. The guidance recognises that the measures required will vary depending upon the specific situation in a member state and reminds states of the large margin of appreciation that the ECHR usually affords to states in their assessments both of the existence of such an emergency and of the nature and scope of derogations necessary to confront it.

The crux of the guidance is to stress that even in an emergency situation, the rule of law must prevail. In this regard any emergency laws should comply with domestic constitutional and international law and standards. Crucially, throughout any derogation, legislatures must retain the power to control executive action. There should also be clear time limits on any exceptional measures and the guidance specifically endorses the use of sunset clauses as can be found in the UK’s Coronavirus Act 2020. In this context a useful examination of sunset clauses by Sean Molloy can be found here and on this blog Darragh Coffey has analysed the ramifications of the Act here and here.

For Hungary, where some of the most severe measures have been enacted without a time limit, Marija Pejcinovic Buric, Secretary-General of the Council, had previously written to its Prime Minister, Viktor Orban, to point out that:

An indefinite and uncontrolled state of emergency cannot guarantee that the basic principles of democracy will be observed and that the emergency measures restricting fundamental human rights are strictly proportionate to the threat which they are supposed to counter.

The significant restrictions to everyday social activities across many countries, including UK, such as freedom of movement, access to public spaces and places of worship, and public gatherings including wedding and funeral ceremonies, may lead to complaints under the rights to private life, freedom of conscience, freedom of expression and freedom of association. The guidance underlines that it is for the authorities to ensure that any such restriction, whether arising from a derogation or not, ‘is clearly established by law’. 

Rosalind English and others on this blog have pointed out the gaps between UK law (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 350)) and the supporting Government guidance published days some days after the legal restrictions came into effect. There is also a discussion of the status of the Coronavirus Regulations on this blog here.

So far nine member states have entered derogations (largely to Articles 8 and 11) as a result of the crisis. Hungary is not one of them and nor is the UK. A list of current derogations can be found here.

Nicholas Clapham is a Teaching Fellow in Law at the University of Surrey

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