Chapter 4 - Derogations, Reservations and other Protocols

4.1  Article 15 of the Convention permits a State to derogate from certain Articles of the Convention in time of war or other public emergency threatening the life of the nation. The United Kingdom has one derogation in place, in respect of Article 5(3) of the Convention.

4.2  The derogation arose from a case in 1988 in which the European Court of Human Rights held that the detention of the applicants in the case before it under the Prevention of Terrorism (Temporary Provisions) Act 1984 for more than four days constituted a breach of Article 5(3) of the Convention, because they had not been brought promptly before a judicial authority. The Government of the day entered a derogation following the judgment in order to preserve the Secretary of State's power under the Act to extend the period of detention of persons suspected of terrorism connected with the affairs of Northern Ireland for a total of up to seven days. The validity of the derogation was subsequently upheld by the European Court of Human Rights in another case in 1993.

4.3  We are considering what change might be made to the arrangements under the prevention of terrorism legislation. Substituting judicial for executive authority for extensions, which would mean that the derogation could be withdrawn, would require primary legislation. In the meantime, however, the derogation remains necessary. The Bill sets out the text of the derogation, and Article 5(3) will have effect in domestic law for the time being subject to its terms.

4.4  Given our commitment to promoting human rights, however, we would not want the derogation to remain in place indefinitely without good reasons. Accordingly its effect in domestic law will be time-limited. If not withdrawn earlier, it will expire five years after the Bill comes into force unless both Houses of Parliament agree that it should be renewed, and similarly thereafter. The Bill contains similar provision in respect of any new derogation which may be entered in future.

Reservations

4.5  Article 64 of the Convention allows a state to enter a reservation when a law in force is not in conformity with a Convention provision. The United Kingdom is a party to the First Protocol to the Convention, but has a reservation in place in respect of Article 2 of the Protocol. Article 2 sets out two principles. The first states that no person shall be denied the right to education. The second is that, in exercising any functions in relation to education and teaching, the State shall respect the right of parents to ensure that such education and teaching is in conformity with their own religious and philosophical convictions. The reservation makes it clear that the United Kingdom accepts this second principle only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.

4.6  The reservation reflects the fundamental principle originally enacted in the Education Act 1944, and now contained in section 9 of the Education Act 1996, "that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure". There is similar provision in Scottish legislation. The reservation does not affect the right to education in Article 2. Nor does it deny parents the right to have account taken of their religious or philosophical convictions. Its purpose is to recognise that in the provision of State-funded education a balance must be struck in some cases between the convictions of parents and what is educationally sound and affordable.

4.7  Having carefully considered this, the Government has concluded that the reservation should be kept in place. Its text is included in the Bill, and Article 2 of the First Protocol will have effect in domestic law subject to its terms.

4.8  Whilst derogations are permitted under the Convention only in times of war or other public emergency, and so are clearly temporary, there is no such limitation in respect of reservations. We do not therefore propose to make the effect of the reservation in domestic law subject to periodic renewal by Parliament, but the Bill requires the Secretary of State (the Secretary of State for Education and Employment) to review the reservation every five years and to lay a report before Parliament.

Other Protocols

4.9  Protocols 4, 6 and 7 guarantee a number of rights additional to those in the original Convention itself and its First Protocol. These further rights have been added largely to reflect the wider range of rights subsequently included under the International Covenant on Civil and Political Rights. There is no obligation upon States who are party to the original Convention to accept these additional Protocols, but the Government has taken the opportunity to review the position of the United Kingdom on Protocols 4, 6 and 7.

4.10  Protocol 4 contains a prohibition on the deprivation of liberty on grounds of inability to fulfil contractual obligations; a right to liberty of movement; a right to non- expulsion from the home State; a right of entry to the State of which a person is a national; and a prohibition on the collective expulsion of aliens. These provisions largely reflect similar (but not identical) rights provided under the International Covenant on Civil and Political Rights. Protocol 4 was signed by the United Kingdom in 1963 but not subsequently ratified because of concerns about what is the exact extent of the obligation regarding a right of entry.

4.11  These are important rights, and we would like to see them given formal recognition in our law. But we also believe that existing laws in relation to different categories of British nationals must be maintained. It will be possible to ratify Protocol 4 only if the potential conflicts with our domestic laws can be resolved. This remains under consideration but we do not propose to ratify Protocol 4 at present.

4.12  Protocol 6 requires the complete abolition of the death penalty other than in time of war or imminent threat of war. It does not permit any derogation or reservation. The Protocol largely parallels the Second Optional Protocol to the International Covenant on Civil and Political Rights, which the United Kingdom has not accepted.

4.13  The death penalty was abolished as a sentence for murder in 1965 following a free vote in the House of Commons. It remains as a penalty for treason, piracy with violence, and certain armed forces offences. No execution for these offences has taken place since 1946, when the war- time Nazi propagandist William Joyce (known as Lord Haw-Haw) was hanged at Wandsworth prison. The last recorded execution for piracy was in 1830. Thus there might appear to be little difficulty in our ratifying Protocol 6. This would, however, make it impossible for a United Kingdom Parliament to re-introduce the death penalty for murder, short of denouncing the European Convention. The view taken so far is that the issue is not one of basic constitutional principle but is a matter of judgement and conscience to be decided by Members of Parliament as they see fit. For these reasons, we do not propose to ratify Protocol 6 at present.

4.14  Protocol 7 contains a prohibition on the expulsion of aliens without a decision in accordance with the law or opportunities for review; a right to a review of conviction or sentence after criminal conviction; a right to compensation following a miscarriage of justice; a prohibition on double jeopardy in criminal cases; and a right to equality between spouses. These rights reflect similar rights protected under the International Covenant on Civil and Political Rights.

4.15  In general, the provisions of Protocol 7 reflect principles already inherent in our law. In view of concerns in some of these areas in recent years, the Government believes that it would be particularly helpful to give these important principles the same legal status as other rights in the Convention by ratifying and incorporating Protocol 7. There is, however, a difficulty with this because a few provisions of our domestic law, for example in relation to the property rights of spouses, could not be interpreted in a way which is compatible with Protocol 7. The Government intends to legislate to remove these inconsistencies, when a suitable opportunity occurs, and then to sign and ratify the Protocol.

4.16  The Secretary of State will be able to amend the Human Rights Act by Order so as to insert into it the rights contained in any Protocols to the Convention which the United Kingdom ratifies in future. The Order will be subject to approval by both Houses of Parliament. The Bill also enables any reservation to a Protocol to be added, but as with the existing reservation it will have to be reviewed every five years if not withdrawn earlier.