In the closing stages of the election campaign, Theresa May declared herself to be ready to change human rights laws if they get in the way of tackling terror suspects. This blog post takes a first look at what that might mean in practice, and identifies some challenges Mrs May may face.

The Prime Minister’s headline grabbing announcement came in the aftermath of the recent terrorist attacks in Manchester and London and in the context of assertions that police cuts under coalition and Conservative governments have undermined the UK’s fight against terrorism. Her declaration was at first interpreted in some quarters as a U-turn, incompatible with her party’s manifesto commitment that the UK will remain a signatory to the European Convention on Human Rights (ECHR) for the duration of the next Parliament. It has since been clarified, however, that Mrs May was referring to the UK derogating from (i.e. temporarily suspending or relaxing) certain obligations under the ECHR, rather than going so far as to abandon this important treaty.

It is far from clear that Theresa May will be in a position to follow through on her stated willingness to derogate from ECHR rights now there is a hung parliament, but, if she is able to form a government, how would she go about it?

It is important to note that the ECHR itself envisages that, in certain circumstances, states ordinarily fully committed to protecting convention rights will sometimes need unilaterally to derogate from particular obligations for a period of time. Article 15 of the ECHR sets out the legal conditions for doing so. In particular, there must be a “time of war or other public emergency threatening the life of the nation” and any derogation must only be “to the extent strictly required by the exigencies of the situation”. Assuming those conditions are met, the British government must follow the UK procedure for declaring a derogation, as set out in the Human Rights Act 1998. The first step is for the Secretary of State to make an order setting out the terms of the derogation. That order will, however, expire automatically after forty days unless a second step is completed: both Houses of Parliament must pass resolutions approving the order. Once approved, derogations can remain in effect for five years or even longer. The measures must, however, remain “strictly required” throughout their duration.

If Theresa May is able to form a minority government or coalition with partners supportive of the idea of derogating from particular ECHR rights, her government must clear both a political and a legal hurdle. The political hurdle may be challenging to overcome in circumstances where Mrs May no-longer commands a Conservative overall majority in the House of Commons. Nor do the Conservatives have a majority in the House of Lords, so they may face stiff opposition there as well.

Assuming the Parliamentary politics can be made to work, Theresa May must still contend with the legal hurdle. The propriety of particular derogating measures is open to legal challenge before the UK courts or the European Court of Human Rights in Strasbourg. For example, in the aftermath of 9/11, Prime Minister Tony Blair’s Labour government tried to derogate from Article 5 ECHR (the right to liberty and security) in circumstances where certain individuals who could not lawfully be removed from the UK, but were believed to represent a national security risk, were detained without due process. The matter went to court and the government’s derogation order was rejected by an 8-1 majority in A & others v Secretary of State for the Home Department. However, both the UK courts and Strasbourg recognise that derogation is in large measure a political act, so a generous margin of appreciation is often afforded to the derogating state, particularly on issues such as whether a “public emergency” exists. The government did not lose in A & others because of a finding that the conditions for derogation were not met but because the particular detention measures that were adopted discriminated against foreign nationals. Mrs May might also be encouraged by the approach of the Strasbourg court in A v UK, which indicated that a derogation may legitimately be made to protect the population against future risks where a major terrorist attack is believed to be imminent.

It is hard to predict the outcome of any similar future legal battle without knowing how the government would formulate and justify a specific future derogation. It is certainly possible to go too far as the Blair government discovered. It is also important to remember that, as Lord Hoffman wrote when faced with an unlawful derogation, much is at stake:

“…The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.”

These words are a reminder that derogation ought properly to be seen as a narrow and exceptional event, tailored and time-limited to the public emergency in question. It cannot become a perpetual and normal state of affairs. Furthermore, derogation may not be an option in some of the situations Mrs May appears to have in mind – for example the deportation of those believed to pose a threat to national security. It might be possible to derogate from the Article 8 right to private and family life in order to facilitate this. However, in the most widely reported deportation case where human rights ‘got in the way’, Abu Qatada’s deportation was held to be unlawful because he ran the risk of being tortured after being returned to Jordan (engaging his Article 3 rights). It is not possible to derogate from Article 3.

Derogation from the ECHR has been an option available to the British government in extremis for many years and it should remain on the table. In that respect Mrs May’s campaign rhetoric was uncontroversial. The table in question is, however, crowded with many effective tools, most of which sit more comfortably with the UK’s constitutional arrangements than derogation does. These ought to be carefully and dispassionately considered first – preferably at a safe distance from deeply tragic events and the heat of an election campaign.