Derogation

Article 15 ECHR, reproduced in a Joint Committee on Human Rights report on the legal framework for derogation, permits a state to 'take measures derogating from its obligation under [the] Convention to the extent strictly required by the exigences of the situation, provided that such measures are not inconsistent with its other obligations under international law' - but only 'in time of war or other public emergency threatening the life of the nation'. Certain rights can never be derogated from, including the right to life (other than in respect of lawful acts of war), freedom from torture, freedom from slavery, and the prohibition on retrospective criminal penalties. Under the Human Rights Act 1998, section 14 defines a 'designated derogation' as one 'designated for the purposes of this Act in an order made by the Secretary of State', and Schedule 3 to the Act is used to record any derogation that has been designated. Making a derogation effective in UK domestic law therefore requires both an international-law derogation notified to the Council of Europe and a domestic designated derogation order.

Parliamentary scrutiny of a derogation order is limited but not absent: such orders are made under the affirmative procedure, and the Joint Committee report notes that a derogation order 'will lapse' unless 'a decision to derogate is confirmed by both Houses of Parliament within 40 days'. The UK's practical experience with derogation under the HRA has been a cautionary one. Schedule 3 to the Human Rights Act, in the section headed 'United Kingdom's derogation from Article 5(1)', originally recorded a derogation which was later repealed; legislation.gov.uk records that this entry was 'repealed (8.4.2005) by The Human Rights Act 1998 (Amendment) Order 2005'. The Joint Committee report describes this as 'the controversial (and ultimately unlawful) derogation to detain foreign terrorist suspects for unlimited periods of time when they could not be deported' - the only derogation entered while the HRA has been in force, and one that was successfully challenged in the domestic courts before being withdrawn.