18.4.9 Derogation

Under s. 14 the Secretary of State can make a ‘designated derogation’

order which excludes from the Act any part of the Convention from

which the UK has derogated (s. 1 (2)). The order can be made in

advance of a proposed derogation (s. 14 (6)) and must be laid before

Parliament (s. 20). If not withdrawn earlier, a designated derogation

lapses after five years (s. 16). In 2001, following the attack on the World

Trade Center in New York, the UK derogated from Art. 5 in order

to detain foreign terrorist suspects without trial (see Anti-Terrorism,

Crime and Security Act (2001)) and in 1988 derogated in respect of the

length of detention of terrorist suspects in Northern Ireland.

18.5 Restrictions on Protected Rights: Reasoning Methods

Any workable code of fundamental rights must be expressed in general

language and with sufficient exceptions to permit governments to act

in the public interest or to resolve conflicts with other rights. It is

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Human Rights and Civil Liberties

tempting to seek an overarching principle that would combine the

human right with the competing interest under some overall concept

of the common good (see McHarg, 1999). However, the whole point of

human rights is that they are not only an instrument of the community

good but are entitlements of the individual and, as such, are valued for

their own sake irrespective of any contribution they make to some

greater good. Moreover, as we saw above, fundamental rights disputes

raise incommensurable values so that the imposition of a general prin-

ciple threatens to suppress other goods.

The main concepts which I shall discuss in the following sections

structure decision making to a certain extent. They do not avoid the

need to make a subjective political judgement but at least make it clear

that in human rights cases the state has a particular burden to justify

its intrusion. In other cases it is presumed that state action is lawful

unless the citizen can show otherwise.

The interpretative obligation in s. 3 (above) arises only where the

statute in question would otherwise violate the Convention. A Con-

vention issue can therefore be structured in four stages as follows.

(i) Does the matter concern a protected right at all? This is entirely

for the court taking into account the jurisprudence of the Euro-

pean Court.

(ii) Does the justification for infringing the right strike a ‘fair balance’

between the right and another relevant concern? This involves the

doctrines of ‘proportionality’. The primary decision maker here

may not be the court which will sometimes exercise a review

function by allowing the legislature or the executive a ‘margin of

discretion’ (below). If the Convention is violated because of an act

or a decision which is not required by statute the claimant will be

entitled to a remedy at this stage.

(iii) If the Convention is violated because of the terms of a statute, is it

possible to interpret the statute as Convention compliant? (above).

If so the claimant will be entitled to a remedy.

(iv) It it is not so possible the court may make a declaration of incom-

patibility this being the only remedy.

18.5.1 Overrides

Some Articles of the Convention, notably Art. 8 to 11, give more

specific guidance. The rights concerned can be limited in accordance

with such law are ‘necessary in a democratic society’ for specified

purposes. The purposes vary with the particular article but in all cases

446 General Principles of Constitutional and Administrative Law

include public safety, public order, the prevention and detection of

serious crime, the protection of health and morals and the protection

of the rights of others. The overrides have been strictly interpreted and

the onus is on the state to establish them (Sunday Times v. United

Kingdom (1979)). Nevertheless the choice between the right and the

override may still be incapable of rational justification. For example,

in A-G v. Guardian Newspapers Ltd (1987) both majority and dissent-

ing law lords thought that the European Convention supported their

views. Lord Templeman thought that the restrictions on freedom of

speech involved in banning Spycatcher (the memoirs of a British

security agent) were ‘necessary in a democratic society in the interests of

national security’ whereas Lord Bridge preferred freedom of expression.

Before applying an override there are certain threshold requirements.

First the restrictions must be ‘prescribed by law’ or ‘in accordance with

the law’, terms which apparently mean the same (Malone v. UK (1984)).

This is akin to Dicey’s version of the rule of law. Indeed the ‘rule of law’

is referred to in the Convention’s preamble. The restrictions must be

clear (for example, the vague terms used in UK public order legisla-

tion may be vulnerable), must not involve wide discretion and must be

made in accordance with a regular and accessible law-making process

(see Sunday Times v. UK (1979); Klass v. Federal Republic of Germany

(1978)). Taking into consideration the circumstances of the domestic

law, the applicant must be able reasonably to foresee that the conduct

in question would be unlawful and there must be adequate safeguards

including independent and accessible courts (see Open Door and Dublin

Well Woman v. Ireland (1992); Kruslin v. France (1990); Benthem v.

Netherlands (1985); Leander v. Sweden (1987); Airey v. Ireland (1979);

Brogan v. UK (1989)). Secondly the restrictions must be ‘necessary in a

democratic society’. The concept of ‘necessary in a democratic society’

is loose. It means only that there must be a ‘pressing social need’ which

is more than merely ‘useful’, ‘reasonable’ or ‘desirable’ (see Handyside

v. UK (1976); Fayed v. UK (1994)).

18.5.2 Fair balance and proportionality

In Sporrong v. Sweden (1982, 5 EHRR 35, 52) it was said that ‘the

Court must determine whether a fair balance was struck between the

demands of the general interests of the community and the require-

ment of the protection of the individual’s fundamental rights . . . the

search for the balance is inherent in the whole Convention.’ ‘Balance’ is

of course an unfortunate metaphor in that the problem at the heart of

human rights is that there is no objective measure against which the

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competing interests can be ‘weighed’. All that is meant by fair balance

seems to be the lame proposition that rights must be accommodated

with other rights and with public welfare concerns. As Laws LJ said in

Gough v. Chief Constable of Derbyshire Constabulary [2001] 4 All ER

289, 320), ‘it is inherent in the nature of the right itself that that the

individual who claims its benefit may have to give way to the super-

vening weight of other claims . . . the right’s practical utility rests upon

the fact that there can be no tranquility within the state without a

plethora of unruly individual freedoms.’ Thus Laws LJ acknowledged

the inevitability of disagreement and the need to protect rival views of

the good (see also Lord Steyn in Brown v. Stott [2001] 2 All ER 97 at

118). In R. v. Secretary of State ex parte Samaroo (2001), Dyson LJ

listed factors that are taken into account in the ‘balancing’ exercise.

They include the following:

. Is the right absolute or subject to overrides? ‘Absolute’ rights have a

higher status but, by implication, even these might sometimes be

compromised.

. The extent to which economic, social or political factors are in-

volved which would require the court to defer to the government on

democratic grounds.

. The extent to which the court has special expertise, for example in

relation to criminal matters.

. Whether the right claimed is of special importance requiring a high

level of protection. This applies to torture, freedom of expression,

a fair trial, and also probably personal liberty, but less to the more

nebulous rights to home and family life. (See also Brown v Stott

(2001): self-incrimination justified to meet the serious social evil of

drunken driving, Lord Steyn in R. v. Lambert (2001), Laws LJ in

Gough v. Chief Constable of Derbyshire Constabulary [2001] 4 All

ER 289, 321.)

Proportionality (above 16.5) is the way in which the fair balance

is struck. Proportionality, it will be recalled, means that ‘the right in

question is not to be interfered with save on substantial and objective

grounds of public interest and that the state, if it decides that the right

must be interfered with, has to choose a means judged to constitute the

least interference consistent with the policy aim in view’ (per Laws LJ

in Gough v. Chief Constable of Derbyshire Constabulary [2001] 4 All

ER 289 at 321). This operates both at the macro-level of the general

restriction and the micro-level of the particular case. In Gough it was

held that the serious threat of football hooliganism justified drastic

448 General Principles of Constitutional and Administrative Law

restrictions on freedom of movement. But in McVeigh v. UK (1981)

the European Court held that anti-terrorist restrictions did not justify

a refusal to let the claimants contact their wives. In R. v. Oakes (1986)

26 DLR (4th), 200), Dickson CJ seems to have gone further. He said

(at 227–228) ‘there must be a proportionality between the effects of the

measures . . . and the objective which has been identified as of sufficient

importance’ (ibid.). This would require a cost benefit analysis of the

competing interests, a matter that does not seem appropriate to a court.

Proportionality also requires that the restrictions must not be dis-

criminatory in the sense that like cases must be treated alike (Marckx

v. Belgium (1979)).

The English courts seem to be approaching proportionality in a

way that gives a substantial ‘margin of discretion’ to the executive.

In R. (Saadi) v. Secretary of State for the Home Department (2001),

the Court of Appeal held that it was lawful to detain asylum seekers

for up to 10 days to enable inquiries to be made into their claims

so that they would be decided more quickly. Even though detention

for administrative purposes was not justified under any specific over-

ride, the extent of the problem of processing applications for asylum

justified this measure. The Court recognised that this went further than

the European Court might have done. In Samaroo (above) the Court of

Appeal held that the Secretary of State had struck the correct balance

between respect for family life and the prevention of crime and dis-

order. He deported the claimant, who had lived with his wife and chil-

dren in Britain since 1988, on his release on parole after the claimant

had served six years of a 13-year sentence for drug dealing. There was

no evidence that the claimant would re-offend. The Court held that the

Secretary of State did not have to show that law and order would

actually be undermined if the applicant were not deported, only that

the justification be ‘convincingly established’. In Daly (2001) where

the decision was held to be disproportionate, it was also irrational in

the traditional Wednesbury sense (16.5.1 above). However, Lord Steyn

emphasised, at 27, that the intensity of scrutiny is deeper than the

Wednesbury approach and is based on proportionality.

Proportionality cannot therefore avoid subjective choice since few

public interests are monolithic. Proportionality requires that a pro-

tected right be interfered with to the smallest extent ‘necessary’ to meet

a competing ‘pressing social need’ or another important right. However

what is ‘necessary’? Even pressing social needs might be met to a greater

or lesser extent. The question is how much of the right or the pub-

lic interest should give way and this cannot be answered rationally. For

example in R.J.R.-MacDonald v. Canada (A-G) (1995) the Canadian

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Human Rights and Civil Liberties

Supreme Court was divided over the extent to which tobacco advert-

ising should be restricted in order to meet the public interest in health

(see also the cases in 16.5.1 above). Why should anything less than

a total ban be proportionate? Moreover, where the competition is

between two individual protected rights for example privacy and free-

dom of expression, the proportionality test cannot easily be applied

since the burden will depend on whoever happens to be the claimant.

Here the court may be forced to prioritise one right over the other

which again is a subjective political choice. This will be discussed in

Chapter 20.

18.5.3 Margin of appreciation/discretion

Proportionality therefore requires the exercise of subjective political

judgment. The concept of the margin of appreciation, sometimes called

the discretionary area of judgement, reflects this. It was developed by

the European Court of Human Rights in order to accommodate

national differences in political, religious or moral values or practices.

When it applies the margin of appreciation the ECHR will not substi-

tute its views for those of the state but asks itself only whether the

national authorities were reasonably entitled to think that the inter-

ference complained of was justifiable, see Handyside v. UK (1976);

Open Door and Dublin Well Woman v. Ireland (1992), Buckley v. UK

(1996)). This is another important aspect of incommensurability (see

Chapter 2). Different communities may have different but justifiable

blends of values and attitudes and if an international tribunal inter-

vened it might forfeit respect.

It is arguable therefore that the doctrine of margin of appreciation

as such should play no part in domestic cases. However, by whatever

name, the courts are leaving a discretionary area of judgement to

ministers. In R. v. DPP ex parte Kebilene [1999] 4 All ER 801, 843.

Lord Steyn, quoting Lester et al. (1999), spoke of: (an) ‘area of judge-

ment within which the judiciary will defer, on democratic grounds, to

the considered opinion of the elected body or person whose act or

decision is said to be incompatible with the Convention . . . It will

be easier for such an area of judgement to be recognised when the Con-

vention itself requires a balance to be struck, much less so when the

right is stated in terms that are unqualified. It will be easier for it to be

recognised where the issue involves questions of social and economic

policy, much less so where the rights are of high constitutional impor-

tance or are of a kind where the courts are especially well placed to

450 General Principles of Constitutional and Administrative Law

assess the need for protection’ (see also Gough v. Chief Constable of

Derbyshire Constabulary [2001] 4 All ER 289 [72] [78]).

In R. (Mahmood ) v. Secretary of State for the Home Department

(2001) Lord Phillips MR emphasised that even where human rights

are at stake the role of the court is supervisory or secondary. The court

would only intervene when the decision fell outside the range of

responses open to a reasonable decision maker. ‘The court will bear in

mind that, just as individual states enjoy a margin of appreciation

which permits them to respond, within the law, in a manner that is not

uniform, so there will often be an area of discretion permitted to the

executive of a country before a response can be demonstrated to

infringe the Convention . . . The court will ask the question, applying

an objective test, whether the decision maker could reasonably have

concluded that that the interference was necessary to achieve one or

more of the legitimate aims recognised by the Convention.’

The margin of distinction will be strongest in relation to the ques-

tion of the importance of the public interest that is being asserted, but

might also apply to the question of whether the interference is neces-

sary. In Gough (above) it was said (para. 78) that the margin of

discretion is greater, perhaps akin to the Wednesbury test, when the

decision maker is the primary legislator. In Donoghue v. PHARCA

(2001) the Court of Appeal refused to condemn s. 21 (4) of the Housing

Act 1988 which gave social landlords an automatic right to posses-

sion of a dwelling house in certain circumstances. Lord Woolf LCJ

remarked, (para. 69) that ‘the economic and other implications of any

policy in this area are extremely complex and far reaching. This is an

area where in our judgement the courts must treat the decisions of

Parliament as to what is in the public interest with particular defer-

ence.’ At the other end of the spectrum, where the right interfered with

is very important, and the issues are closely related to the court‘s own

expertise, for example the right to a fair trial, the court might do the

balancing exercise itself (see Laws LJ in Mahmood (above), Lord Steyn

in R. v. A [2001] 3 All ER 1, 15 and Lord Bingham in R. v. Secretary of

State ex parte Daly (2001), above 16.5).

The concept of the margin of appreciation both internationally

and domestically has the problem of being both negative and vague.

It offers a court a reason not to intervene but fails to specify when

intervention is appropriate. As we saw in Chapter 16, the Wednesbury

threshold of rationality is probably too high for human rights cases.

Another approach might be to seek a lowest common denominator of

consensus standards. However, this is unlikely to giver clear guidance

in individual cases, since one reason why they reach the court at all is

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Human Rights and Civil Liberties

the absence of consensus, few government decisions being entirely out

of line with widely held beliefs. In practice the courts are likely to

prefer a procedural approach limited to ensuring that the decision

maker has applied the proportionality test.

However, the government must provide a justification supported by

evidence of its assertion as to the importance of its goals and of the need

to override the right in issue. The court may go beyond traditional

interpretative materials and look at for example parliamentary debates,

government papers and evidence from civil servants. In Wilson v. First

County Trust (2001) for example the government was unable to show a

clear reason why the there should be an absolute ban on the enforce-

ment of a credit agreement. In Matthews v. Ministry of Defence (2002)

the government was unable to explain why there was a pressing social

need to deny a legal remedy to a soldier injured on duty (see also R. (Asif

Javed) v. Secretary of State for the Home Department (2001) and

Farratham v. Secretary of State for the Home Department (2001)).

18.5.4 Terrorism and the margin of discretion

There is a wide margin of discretion in relation to national security

and anti-terrorism measures (R. v. DPP ex parte Kebilene (1999)).

Terrorism is different from ordinary crime in its consequences, in its

uncertainty and complexity, its international dimension and in the

difficulty of obtaining a conviction. Terrorism therefore puts the rule

of law under particular strain. Brogan v. UK (1989) illustrates the kind

of balance that the European court strikes. Suspects were detained

under the anti-terrorism legislation in force in Northern Ireland, ques-

tioned and released after four and a half days without being brought

before a court. It was held firstly that ‘administrative’ detention for the

purpose of questioning was unlawful under Art. 5 of the Convention

and that there must be an intention to bring the suspect promptly

before a court in connection with a specific offence. The offence could,

however, be widely defined, in this case ‘acts of terrorism’. On the other

hand the questions of intention and of outcome are distinct and it did

not matter that the suspect was not in fact brought before a court.

However, the accused had not been brought ‘promptly’ before a court

because the language of Art. 5 gives little flexibility in this respect. This

reasoning shows firstly that the question of independent judicial super-

vision is of high importance and secondly that, while there is some

flexibility in meeting the needs of government, the language of the

Convention is strictly applied in cases where there is a high risk of abuse

(see also Murray v. UK (1994)).

452 General Principles of Constitutional and Administrative Law

The Terrorism Act 2000 adopts a wide definition of terrorism which

might be considered disproportionate. This is as follows. ‘the use or

threat, for the purpose of advancing a political, religious or ideological

cause, of action which: (a) involves serious violence against any person

or property; (b) endangers the life of any person; or (c) creates a

serious risk to the health or safety of the public or a section of the

public’ (s. 1). This might include for example computer hackers, civil

liberties campaigners and those protesting against repressive overseas

regimes. The Act gives wide power to the Secretary of State to pro-

scribe terrorist organisations (s. 3), extends ‘stop and search’ powers

and powers of arrest and detention for questioning before being taken

before a court (up to seven days) and gives power to seize cash where

there are reasonable grounds to suspect that it is connected with

terrorism (Anti-Terrorism, Crime and Security Act 2001 Part 1). It is

an offence to incite terrorism anywhere (ss. 59–61) and to help to

organise a meeting which will be addressed by someone who professes

to belong to a proscribed organisation (s. 12). This might also be dis-

proportionate. There are safeguards such as the introduction of video

recordings of police interviews in holding centres (s. 100) and the