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Call for a national demonstration against fees and marketisation in education

Education Not for Sale | 17.09.2008 14:39 | Education | Social Struggles | London

Student activists have launched this call for a national demonstration against top-up fees, for decent student grants and against marketisation in education. To add your or your organisation's name or for more information, email

Education – a right not a privilege

No to fees – A living grant for every student – Tax the rich to fund education

For a national demonstration at the start of 2009

This academic year could see the lifting of the £3,000 cap on tuition fees in higher education. Meanwhile, student debt and poverty are already spiralling, students face soaring costs of living and the market dominates our education system from school to college to university.

After years of underfunding for post-16 education, the Government brought in tuition fees and then top-up fees. Worsening the already existing inequalities in higher education, fees are greatly accelerating the development of a competitive market between universities, with a tier of well-funded and prestigious institutions and another of less prestigious, underfunded ones. Along with the absence of decent student grants, they rule out the possibility of seriously expanding access, force most students who do get to university into debt and push many into casualised, low-paid jobs. Lifting the cap will, of course, make all this worse. Meanwhile most further education students have always paid fees and never had grants.

Top-up fees will be in the headlines this year, but fees are not the only issue. Though Scottish, Welsh and Northern Irish university students studying in their own nation, and FE students under 19, do not have to pay fees, they do not receive a living grant and are also forced into poverty and debt.

International students are exploited to subsidise higher education institutions through higher and higher fees, while postgraduate study is limited to a small elite through a more and more restrictive funding system.

Women, black, LGBT and disabled students are affected and disadvantaged disproportionately by the growth in student poverty and debt.

As our education is commodified and most institutions are run more and more for profit, the wages, conditions and rights of our teachers and other education workers are also coming under attack.

We believe that NUS is allowing the Government to get away with these deeply unpopular policies. This year, despite the review of the cap on fees, NUS is not organising a national demonstration – not even one for its needlessly bureaucratic “alternative funding model”, let alone the abolition of fees and living grants that students need. Its planned “day of action” – scheduled for 5 November, the day after the US presidential election, hardly the best time to get attention – is a start, but inadequate.

That is why we, students’ union officers and student activists, are seeking to organise a national demonstration in the first three months of 2009, around the following demands:

- No raising of the cap on top-up fees;
- Halt and reverse the growth in international students’ fees;
- Abolish all fees in HE and FE – free education for all;
- A living grant for every student over 16 – at least £150 a week;
- Stop and reverse marketisation in our schools, colleges and universities – tax the rich and corporations to fund education.

We are seeking to organise this demonstration in alliance with trade union activists fighting back against wage freezes, job cuts and privatisation; with other anti-cuts and privatisation campaigns; with young people’s and children’s organisations; and with others who believe that education should be open to all as a human right, not a privilege open to a minority based on wealth.

We call on NUS and autonomous campaigns within NUS to support the demonstration.

* Please add your or your union or campaigning group’s name to this statement by emailing A list of signatories will appear at shortly.

Education Not for Sale
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2nd derogation to Human Rights Act 1998

18.09.2008 09:23

If one were to read through the HUman Rights Act, one would read that education is a HUman Rights as penned into domestic law in 1998 by Mr. Education, education, education himself - Tony Bliar.

If one were to go directly to the end of the document, one would find 2 separate derogations to this act. A derogation means that the queen has given her approval to pull out of this clause and to not abide by it - legally.

The second derogation to the Human Rights Act clearly states that should education prove to expensive, the government is not lawfully bound to provide it. ummmmmmmmm bollocks?

Read below legal bollocks if you can be bothered or simply google it for yourself. 2nd derogation of Human rights act.

Education is no longer our right. Were the black slaves of days gone by also denied an education to keep them in their place and force them to accept their station????

Response to the Joint Committee on Human Rights
Inquiry into UK Derogations from Convention Rights
May 2002
JUSTICE, 59 Carter Lane, London EC4V 5AQ
Tel: 020 7329 5100 Fax: 020 7329 5055 E-mail: Website:
Response to the Joint Committee on Human Rights Inquiry into UK
Derogations from Convention Rights
JUSTICE is an all-party law reform and human rights organisation. It seeks greater
fairness, effectiveness and the advancement of human rights within the legal system.
JUSTICE works through policy-oriented research; interventions in court proceedings;
education and training; briefings, lobbying and policy advice. It is the British section
of the International Commission of Jurists.
JUSTICE welcomes this inquiry both for its specific examination of the continued
justification of the 2001 derogation from Article 5 of the European Convention on
Human Rights (ECHR), and for its focus on the broader structural and procedural
questions surrounding the way in which the UK derogates from its human rights
obligations, both internationally, and as implemented in domestic law through the
Human Rights Act 1998 (HRA).
At the time of the Article 5 ECHR derogation in November 2001, JUSTICE took the
view that the need for derogation would be likely to survive challenge in the courts,
though it questioned the proportionality of the specific measures taken. To the extent
that the derogation could be justified then, this depended, in JUSTICE's view, on the
continuance of a viable terrorist threat, and on the limited and targeted application of
the emergency powers. Continued scrutiny of the derogation in the light of changing
circumstances is therefore of prime importance.
As the Joint Committee on Human Rights has identified, the November 2001 process
of derogation, and the passage of the Anti-Terrorism Crime and Security Bill, also
highlighted difficulties with parliamentary procedures. The delay in the publication of
the legislation (after the Home Affairs Committee had conducted its inquiry into what
were then uncertain proposals for emergency measures), the speed at which the
Anti-terrorism Crime and Security Bill had to be considered in Parliament, and the
passing of the designated derogation order prior to the consideration of the Bill,
hampered Parliament's capacity to scrutinise the emergency measures. The process
showed the need for standard procedures to ensure more effective democratic
accountability, within the inevitably tight timeframe of an emergency derogation.
Effective safeguards in the derogation process are essential to preserving the United
Kingdom's system of human rights protection. That protection is centred on the
Human Rights Act 1998, and extends to the range of the UK's international human
rights treaty obligations. Procedures for the scrutiny of derogations should be clear,
careful and reliable, to reflect the fact that the decision to derogate is a very serious
step. Effective procedures will ensure that human rights guarantees are not
undermined unnecessarily by derogation.
Derogations in International Law: Parliamentary scrutiny of decisions to
derogate from international human rights instruments
1.1 Current law and procedures leave a deficit in both judicial and parliamentary
accountability for derogations from human rights guarantees. Given the wide
margin of discretion which the European Court of Human Rights accords to
states on the question of whether an emergency justifying a derogation exists,1
there is a need for improved systems of scrutiny when the derogating measures
are first considered in parliament. Whether in the courts or in Parliament,
mechanisms need to be put in place for the thorough examination of a
derogation's justification. Currently, there are not sufficient safeguards to ensure
that derogations are subject to intense and detailed scrutiny either by Parliament,
or judicially.
1.2 It is important to establish clear parliamentary procedures for the scrutiny of the
decision to derogate from international human rights obligations, in particular in
relation to derogations from those obligations which are not incorporated in
domestic law. This process of derogating from the UK's international human
rights obligations needs to be visible, both to Parliament, and to civil society and
the general public, in the interests of transparency and the rule of law. In the
procedures for UK derogation from international instruments other than the
ECHR, transparency is strikingly absent in the current procedures: for example,
the derogation from Article 9 of the ICCPR in November 2001 was not the subject
of any particular notification to, or debate within Parliament or civil society.2
1 Lawless v UK (1961) 1 EHRR 15; Brannigan and McBride v UK (1993) 17 EHRR 539
2 Though the designated derogation order made under section 14 of the Human Rights Act
would provide the proclamation of a public emergency required by Article 4 ICCPR.
1.3 The fullest possible parliamentary review is also seen as a key safeguard that
assists in justifying a derogation in international law.3 Transparency and
accountability are supported by the principle of proclamation, established under
Article 4 of the ICCPR, and also seen as relevant to legitimate derogation under
Article 15 ECHR.4 In Brannigan and McBride v UK,5 in assessing the UK's
derogation from the right to liberty6 the Court of Human Rights considered
whether there had been an official proclamation of a State of Emergency, as part
of its investigation into whether the derogation from the Convention had been
consistent with the UK's obligations under international law, including the ICCPR.
The Court attached considerable weight to the fact that there had been
parliamentary debate on the derogation.7
1.4 In Lawless v Ireland,8 the degree of parliamentary scrutiny of the derogating
measures taken by the Irish government in response to terrorist activity, was also
important in the Court's finding that they were justified and strictly required. The
court noted9 that the legislation was subject to constant review by Parliament,
which could at any time annul the government proclamation bringing the Act into
3 The Paris Minimum Standards of Human Rights Norms in a State of Emergency (ILA, 1984,
Vol 79 [1985] AJIL 1072) state: "The constitution of every state shall define the procedure for
declaring a State of Emergency; whenever the executive authority is competent to declare a
state of emergency, such official declaration shall always be subject to confirmation by the
legislature, within the shortest possible time." (para.1(b))
4 Sperduti, dissenting opinion in Cyprus v Turkey (No.2) (1976) 4 EHRR 482:
"whether laws or ordinances or proclamations are involved, it is inherent in the very
nature of these acts that they should be promulgated by means of certain forms of
publicity. Furthermore, it does not seem compatible with the spirit of the European
Convention that it should envisage a right of derogation which would be exercised
without even the citizens of the state … being warned in what circumstances and
under what conditions they might be subjected to restrictions, constraints or sanctions
contrary to the rights and freedoms which the Convention normally assures them."
5 (1993) 17 EHRR 539
6 In relation to the Prevention of Terrorism (Temporary Provisions) Act 1984
7 It noted that the Secretary of State had made a statement to the House of Commons,
asserting that there was a state of emergency, explaining in detail the reasons for the
decision to derogate, and announcing the intention to notify derogations under both the ECHR
and ICCPR. (para.73)
8 (1961) 1 EHRR 15
9 para.37
Measures to enhance Parliamentary Scrutiny
1.5 JUSTICE would favour a requirement that a proposed derogation be approved by
both Houses of Parliament before it can be notified to the UN or Council of
Europe.10 In exceptional circumstances, where time does not permit this, a
negative procedure could apply whereby the derogation would lapse if not
approved by Parliament within a specified period of time. This procedure would
mirror that which operates under the Human Rights Act in relation to remedial
orders under Schedule 2 to the Human Rights Act.11
1.6 In JUSTICE's view, the Joint Committee on Human Rights should also have a
scrutiny role in the derogation process, again mirroring their role in relation to
remedial orders laid under the Human Rights Act. The Committee's role would
be to report on the need for a derogation, and to draw the attention of Parliament
to any particular issues of difficulty with it: a role which the Committee did in fact
fulfil in relation to the derogation of November 2001. One possibility would be to
amend the terms of reference of the Committee provide it with a specific reporting
role in relation to derogations. However, there is no reason why the Committee
could not, under its present terms of reference, establish standardised
procedures for reporting on any proposed notification of a derogation from the
UK's international human rights obligations, as well as any proposal for a
designated derogation order under section 14 of the Human Rights Act. To
facilitate this, it should be standard practice for government departments to notify
the Joint Committee in advance of a proposal to derogate from any international
human rights instrument.
2. The Derogation of November 2001 in Respect of the Anti-Terrorism
Crime and Security Act 2001
2.1 JUSTICE's views on the justification of the derogation from Article 5 of November
2001 were set out in our briefing on the Anti-Terrorism Crime and Security Bill, of
November 2001, and in the Joint Advice of David Anderson QC and Jemima
Stratford on the Bill. JUSTICE's position at the time of the derogation was that,
given the wide margin of discretion normally accorded by the Court of Human
10 A summary of a proposed sequence of parliamentary scrutiny of derogations is set out in
Appendix 1 to this paper.
11 Schedule 2, sections 2 and 4.
Rights to states in relation to the existence of a public emergency under Article
15, a court would be unlikely, in the circumstances, to dispute the government's
assertion that a public emergency existed. However, we considered that the
proportionality of the derogation was vulnerable to a successful court challenge.
2.2 For the purposes of this inquiry, JUSTICE has sought further advice from David
Anderson QC and Jemima Stratford on the continued justification of the
derogation. A copy of their note of advice is appended to this paper as Appendix
2.3 In JUSTICE's view, given the current international situation, it is likely that a court
would continue to accord the government a wide margin of discretion in relation
to its decision that a state of public emergency exists. The fact that the
derogation has been approved by Parliament would also strengthen the case for
its justificiation.
2.4 Nevertheless, Parliament's responsibility to scrutinise the continuing existence of
a public emergency remains. In this regard, the lapse of time since November
2001, in which the UK has not been subject to any terrorist attack, does weaken
the government's assertion of an emergency, and places a greater onus on the
government to provide information to Parliament to justify the continued
derogation from Article 5. As David Anderson QC and Jemima Stratford point out
in their advice (appended below):
"the longer the time that elapses without terrorist incident, the more difficult
the government's task will be in persuading a court that there is a public
emergency threatening the life of the nation."
2.5 In addition, the fact that no other member of the Council of Europe has found it
necessary to derogate from the ECHR in the wake of 11 September may
undermine the government's contention that derogation is a necessary measure.
Although the United Kingdom has played a leading role in the military campaign
in Afghanistan, it is not the only member of the Council of Europe to have done
so: Denmark and Germany, for example, have both provided troops and military
support in the region, yet neither have thought it necessary to derogate.
2.6 Even if the existence of a public emergency is accepted, it remains doubtful
whether the breadth of the derogation, as provided for in the Anti-terrorism Crime
and Security Act, is strictly required by the exigencies of the situation. From the
small number of arrests made under the Act, it appears that its provisions have
been applied in a relatively targeted way. However, in JUSTICE's view the
powers available under the Act are a cause for concern in a number of respects:
• The powers of detention under Part 4 are open to application against
suspects with no links to the activities of Al Qaida or the events of 11
September or any current emergency situation.
• The provision for the detention of those with "links with" a terrorist
organisation is overly broad. Although this provision was considerably
improved during its passage through Parliament by the insertion of a
qualification that the person must support or assist an international terrorist
organisation, it remains excessively wide and uncertain in its scope.
• Although the periods for continuing review of detention were shortened,
during the passage of the Bill through Parliament, from six months to three
months, it is still the case that review need only take place "as soon as
practicable" after each three month period. Furthermore, the initial review of
detention need only take place "as soon as practicable" after six months.
Given the draconian nature of the detention without trial provisions in Part 4,
this is an unduly long period of detention without review.
• The powers of detention without trial under Part 4 are not expressly confined
to cases where a prosecution has been judged impossible, or where it is not
possible to return the detained individual to a safe third country.12
2.7 JUSTICE welcomes the insertion, during the passage of the Bill through
Parliament, of a requirement of "reasonableness" for the certification of an
individual as an international terrorist. However, the change in the powers of
SIAC to review this decision may negate this. In the first draft of the Bill, SIAC
could cancel the certificate if it ‘does not agree’ with the Home Secretary’s belief
or suspicion. Under the terms of the Act, SIAC must cancel the certificate if it
"considers there are no reasonable grounds for a belief or suspicion of the kind
referred to in section 21(1) (a) or (b)." (section 25(2)) This appears to put a higher
12 See Fifth Report of the Parliamentary Joint Committee on Human Rights, para.6.
burden of proof on the applicant to overturn the decision of the Home Secretary.13
David Anderson QC and Jemima Stratford state in their advice that:
"this is a significant retrograde step, imposing a test that is arguably narrower
than the standard applied (at least where fundamental rights are concerned)
in judicial review. This seems to us to make the procedure considerably more
vulnerable to attack."
2.8 JUSTICE is also concerned at the unavailability of judicial review of detention
under Part 4. The availability of an appeal to SIAC will provide safeguards for
detainees, and is likely to mean that recourse to judicial review would be rare.
However, it is particularly important, given the draconian nature of the powers
under Part 4, that recourse to the courts should be available to the greatest
extent possible.
2.9 Taking into account the potential application of these powers, JUSTICE remains
concerned that the powers in the Anti-Terrorism Crime and Security Act are not
sufficiently limited and focused to satisfy the test of strict necessity under Article
3. Derogations from Convention Rights and the Human Rights Act 1998
The nature of derogation under the Convention
3.1 JUSTICE would support the view that as a matter of international law, the act of
derogation is the measure itself, taken in breach of Convention rights, rather than
the notification to the Secretary General of the Council of Europe. This is implied
in the Court of Human Rights' caselaw:
• Although the Commission on Human Rights stressed the importance of
notification,14 it left open the question of whether a failure to inform the
Council of Europe of the fact that derogating measures have been taken and
13 A further cause of concern is section 27(9). This section states that following the
cancellation by SIAC of a certificate that a person is an international terrorist, the Secretary of
State may immediately issue another certificate, either on grounds of change of circumstance
"or otherwise". Although the government has stated that this clause is designed to deal with
the situation where a certificate is cancelled on a technicality, the clause does have the
potential to be applied more broadly.
of the reasons justifying the derogation, contrary to Article 15.3, may
invalidate the derogation.15
• It is clear from the jurisprudence of the Court that notification of the
derogation is not required prior to the derogating measures, or simultaneous
with them; it must be within a "reasonable time" thereafter. In Lawless v
Ireland,16 for example, a notification 12 days after the entry into force of the
derogating measures was sufficient.17
3.2 In relation to the ICCPR, General Comment No 29 of the UN Human Rights
Committee, on States of Emergency, also makes clear that notification of a
derogation under Article 4 ICCPR follows the taking of measures in breach of
Convention rights, which themselves constitute the derogation. It states:
"A State Party availing itself of the right of derogation must immediately
inform the other States parties, through the United Nations Secretary-
General, of the provisions it has derogated from and of the reasons for such
Making of the derogation order prior to the passage of legislation
3.3 As a matter of United Kingdom law, the making of a designated derogation order
under section 14 of the Human Rights Act, before the enaction of the detail of the
derogation, might be considered to be at odds with the principle of legal certainty.
Moreover, if as is permissible under section 14, a designated derogation order
were to be made before the derogating legislation has even been published, this
would certainly not allow Parliament to adequately assess the justification of the
3.4 In most circumstances, however, (and certainly in relation to the derogation of
November 2001) the derogation order would in any case not take practical effect
until the legislation providing for the derogation had passed into law, since prior to
this there would be no domestic legal basis for the action. In practical terms, this
14 Lawless v Ireland, op cit, Cyprus v Turkey (No 2) 4 EHRR 482
15 Cyprus v Turkey (No 2) op cit para.526.
16 op cit
17 para.47
18 para.17
means that it should normally not create difficulties for the government to pass
emergency legislation through Parliament before the introduction of a derogation
order, since in any event the derogation cannot take any real effect before there
is some domestic provision for the measures.
3.5 Whatever the legal status of a prospective derogation, the making of the
designation order before the passage of the derogating legislation is clearly
problematic for parliamentary scrutiny. As the Committee has noted, it means
that Parliament is unable fully to critique the derogation, since it cannot be certain
how it will be provided for in domestic law. This was the difficulty that arose in
relation to the November 2001 derogation and the Anti-Terrorism Crime and
Security Bill.
3.6 The sequence of the parliamentary procedure may have consequences for the
section 19 order to the derogating legislation. If passed prior to the making of a
designated derogation order, the legislation would have to be certified as
incompatible with Convention rights under section 19(1)(b) of the Human Rights
Act. This should not be problematic, since such statements are wholly
acceptable within the scheme of the Act. Arguably, legitimate derogation in a time
of public emergency is precisely the kind of circumstance in which a section 19
(1)(b) statement can appropriately be made, and the use of a negative
compatibility statement in these circumstances would be the best use of the
scheme of the Act. In addition, a section 19(1)(b) order would assist thorough
parliamentary scrutiny, as it would require a reasoned statement to be included in
the explanatory notes, explaining the extent to which provisions of the Bill were
incompatible with Convention rights, and thereby assist in ensuring the
proportionality and strict necessity of the derogation.
3.7 A section 19(1)(a) order could however be made if the designation order were
made before the derogating legislation were introduced in Parliament, but then
laid before Parliament only after the legislation has been debated, as permitted
by section 16.
3.8 A summary of a proposed sequence for parliamentary scrutiny of derogations is
set out in Appendix 1 to this paper. In JUSTICE's view, as a matter of good
practice, and in order to facilitate thorough parliamentary scrutiny, a designated
derogation order should not be made until the derogating legislation has been
approved by Parliament. Both the designated derogation order, and the draft
notification of the derogation to the international body concerned should be laid
before Parliament after the passage of the derogating legislation.
3.9 This would of course mean that Parliament's consideration of the designation
order will be largely a formality, since it would be unlikely to reject the designation
order if it had already passed the derogating legislation. But this is not
necessarily problematic; what is important is that Parliament will have given
attention and scrutiny to the detail of the derogating measure itself, without
having prejudged its necessity and proportionality.
3.10 This procedure would however work best if the issue of a potential derogation
were also raised before Parliament at an early stage, so as to allow the
government to present evidence of a an emergency, and facilitate debate on the
issue. JUSTICE would therefore support the suggestion that when the
government initially proposes to derogate from its obligations under the European
Convention or other international human rights treaties, it should notify
Parliament promptly, before introducing legislation, to provide an opportunity for
general debate on the issue of a derogation.
Review of Derogations
Review within five years
3.11 The early review of derogations provides an important safeguard to ensure
that they remain exceptional measures which do not become part of the normal
legal order through the passage of time. In Brannigan, the Court of Human Rights
interpreted Article 15(3) as implying an obligation to keep the need for emergency
measures under permanent review, an obligation implicit in the proportionality of
any measure of derogation.19 The existence of continual parliamentary review
was also a factor in justifying the proportionality of the derogation in Lawless (see
3.12 Whilst JUSTICE does not see the need to alter the five yearly period of review
of derogations under section 16(1)(b) HRA, it is worth noting that by international
19 para.54
standards, the period is a long one. The International Commission of Jurists'
Report, States of Emergency: Their Impact on Human Rights,20 recommended
that review of derogation should take place at least every six months. JUSTICE
would support that the implementation of this recommendation, through building
in supplementary review within the statutory five year period.
3.13 In this regard, the provisions of the Anti-Terrorism Crime and Security Act21
providing for review of the Act, and in particular of the provisions derogating from
Article 5, before the expiry of the five year period, is welcome. Section 29 of the
Act provides for independent review of the detention provisions in Part 4,22 and
for those provisions to lapse after 15 months, subject to renewal by Ministerial
order laid before Parliament.23 In addition, sections 122-123 provide for a review
process for the entire Act within two years of its coming into force, by a
Committee of the Privy Council, whose report must be laid before Parliament.
3.14 JUSTICE regards such independent reviews, and regular parliamentary
debate, to be an essential safeguard to ensure derogations are limited and
targeted. However, in our view the period of 15 months for review of derogating
provisions is unduly long for such exceptional measures. Six months would be a
more appropriate period, following which derogating legislation should be subject
to a sunset clause, to be renewed by Ministerial order approved by both Houses
of Parliament.
3.15 In addition, the terms of any independent inquires into derogating legislation
should expressly include the designated derogation order, and the question of
whether a derogation continues to be necessary.
3.16 In JUSTICE's view, the Joint Committee on Human Rights should also have
a role in regularly reviewing the necessity for all derogations at six monthly
intervals, or similar periods to co-ordinate with other review processes. The
Committee should consider reporting on such reviews.
20 1983
21 sections 28-29; 122-123
22 section 28
23 section 29
Five-yearly review
3.17 The five-yearly review of derogations under section 16 of the Human Rights
Act should involve thorough scrutiny of the derogating provisions and the
continuing existence of a public emergency justifying derogation. The review will
need to be fully informed with evidence as to the operation of the derogating
legislation in practice, something which is facilitated, of course, by independent
review within the five year period, such as that under the Anti-terrorism Crime
and Security Act. The Joint Committee on Human Rights should also be involved
in the five-yearly review process.
Appendix 1: Outline of Parliamentary Scrutiny System for Derogations
1. Government informs Parliament, and the Joint Committee on Human Rights,
of its proposal to derogate from the ECHR/HRA and/or other international
human rights instrument. Initial debate in both Houses of Parliament on the
need and justification for derogation.
2. Publication of derogating legislation together with reasoned section 19(1)(b)
statement, explaining the extent to which the legislation is in breach of
Convention rights, which rights it will be necessary to derogate from, and the
extent of the derogation.
3. Passage of Bill through Parliament; report of Joint Committee on Human
Rights on the derogation/s and the Bill's provisions.
4. Designated Derogation order made by Secretary of State
5. Designated Derogation order laid before Parliament; Draft notification of
derogation to Council of Europe / UN laid before Parliament
6. Notification of derogation sent to Council of Europe / UN
7. Derogating legislation comes into force
8. Derogating legislation to be reviewed within six months by JCHR, and
following this at six monthly intervals
9. Derogating legislation subject to Ministerial renewal order passed by both
Houses of Parliament within six months; and following this at six monthly
10. Five-yearly review of derogation
Appendix 2: Advice of David Anderson QC and Jemima Stratford
1. We are asked in the light of the call for evidence by the Joint Committee
on Human Rights to comment on whether the conditions for derogating
from Article 5 of the ECHR were met when the HRA 1998 (Designated
Derogation) Order 2001 were made, and whether they are met today.
2. The first of those questions was addressed in our Joint Opinion of 16
November 2001. This note is intended simply as an update to the views
there expressed.
3. We expressed the view in November (Joint Opinion, paras 6-11) that a
court would be likely to give the Government the benefit of the doubt, but
that this could change within years, months or even weeks.
4. In particular, the condition would no longer be satisfied if:
(a) al Qaida was effectively disabled, e.g. by capture of its leaders and
seizure of its funds; or
(b) the passage of time showed its threats of further action to be empty
5. The question of whether this condition is satisfied will, as we understand
it, be considered by SIAC in the near future. Its answer will depend on
the evidence that HMG places before it to support its contention that the
condition is satisfied.
6. It is not useful to speculate in the absence of such evidence. However:
(a) The fact that six months has passed since our Opinion, without any
al Qaida terrorist atrocity in Europe or America, might appear to
strengthen any argument under 4(b) above (though it might be
responded that the use of the derogation might have played its part
in preventing atrocities that might otherwise have happened). The
longer the time that elapses without terrorist incident, the more
difficult the Government’s task will be in persuading a court that
there is still a public emergency threatening the life of the nation.
(b) It is also striking that none of the other Council of Europe Member
States has, as we understand it, introduced a similar derogation.
(c) On the other hand, intelligence agencies are reported to have
pointed to a certain future al Qaida attack on the US; a newlyreleased
video (claimed to have been made only 8 weeks ago,
though this is disputed) shows bin Laden identifying Britain as a
target for al-Qaida terrorist attacks; and the UK has continued to
take a high profile both politically and via its leading role in the
fighting in Afghanistan. See, for example, the reports at pp. 1 and
15 of The Times, 20 May 2002.
(d) Any court is also likely to place considerable weight on the fact that
Parliament was persuaded that the condition was satisfied.
Judgments of that kind are appropriately made by elected
representatives of the people and call for very great deference on
the parts of the courts: cf. the approach of the CA (on different
facts) in R (Farrakhan) v S/S Home Dept., 30 April 2002, paras 71-
Strictly required by the exigencies of the situation?
7. We drew attention in November to three matters.
Are powers of detention necessary at all?
8. We still think it likely that a court which accepted the “public emergency”
argument would also accept the need to detain in the small category of
cases in which it would not be feasible for a person to be either
prosecuted or deported. That is not of course to say that the exercise of
such a power would be considered necessary on the facts of any
particular case.
Scope of new powers
9. We criticised:
(a) The inclusion of those with (undefined) “links” not to international
terrorist groups but to persons who are members of such groups.
This seemed unacceptably wide.
(b) The definition of international terrorist, which we said was too
(c) The failure to confine the “international terrorists” caught by the Bill
to those with an al-Qaida connection; and
(d) The inclusion of those who pose a direct threat only to a foreign
state or states.
10. As to (a), the “links” requirement has been significantly narrowed. The
“link” must now be with an international terrorist group, and is defined
(s21(4)) in terms of supporting or assisting such a group. That is a
considerable improvement, though the word “support” is still undesirably
vague and the requirement would be easier to justify if it referred to
active support.
11. As to (b), (c) and (d), we have no reason to change our views.
Adequacy of review
12. We thought in November that the principle of the SIAC appeal and
review mechanism would survive scrutiny, but criticised:
(a) The ouster clause, rendering unreviewable either in SIAC or in any
court the S/S’s conclusion that a person cannot be removed from
the UK for Article 3 reasons or for practical considerations; and
(b) The interval of 6 months between the determination of an appeal
and the initiation of the review procedure, which we thought should
at least be halved.
13. Central to our opinion on the acceptability in principle of the SIAC appeal
mechanism was the fact that, under the old clause 25(2), SIAC was
given what we described as “the power to second-guess the Secretary of
State: .. SIAC must cancel the certificate if it does not agree with his
belief or suspicion.” However section 25(2)(a) of the Act substitutes a
far less intrusive standard of review, providing for cancellation of the
certificate if:
“[SIAC] considers that there are no reasonable grounds for a belief or suspicion
of the kind referred to in section 21(1)(a) or (b)”.
This is a significant retrograde step, imposing a test that is arguably
narrower than the standard applied (at least where fundamental rights
are concerned) in judicial review. This seems to us to make the
procedure considerably more vulnerable to attack.
14. On a more positive note, the ouster clause in the old clause 29(3), to
which we objected in our Joint Opinion, has gone. This is a welcome
15. The six-month provision has not been changed (see s26(2)(a)). Our
criticism therefore remains, though we welcome the reduction in the
period of review of a s 21 certificate from 6 months in the Bill to 3 months
in the Act.
20 May 2002

Human Rights in the UK
An Introduction to the Human Rights Act 1998
2nd Edition
David Hoffman, John Rowe Q.C.
Jun 2006, Paperback, 448 pages
ISBN13: 9781405823937
ISBN10: 1405823933

Description Contents Features

This highly acclaimed textbook provides law students with a thorough introduction to the Human Rights Act 1998 and the mass of case law which has followed it. Providing thought-provoking discussion on topical issues, the book paves the way for students wishing to pursue more in-depth analytical study in this contemporary, and sometimes controversial, area of the law. The second edition reflects the fast-paced nature of change in this area of law, and has been updated to include all the leading cases decided in the last few years.



Foreword by the Rt Hon. Lord Saville of Newdigate

Foreword to the First Edition (2003) by the Rt Hon. Lord Williams of Mostyn Q.C.


Table of Cases

Table of International Treaties

Table of Statutes

Table of Statutory Instruments

1 Introduction
Acknowledgements · Abbreviations · Glossary of legal terms

2 The idea of human rights
The nature of human rights · Rights unlimited? · Striking a balance · The individual and the state · The rule of law

3 The history of human rights and the Convention
International protection of human rights · The background to the Convention: the Second World War and the United Nations · The background to the Convention: the Council of Europe · The Convention and the United Kingdom· A Convention chronology

4 Constitutional considerations
Introduction to the United Kingdomlegal system · Parliament · The executive · The courts · Judicial review · The Act and Parliamentary sovereignty · Devolution · The European Convention in English law · The machinery of the European Convention · The margin of appreciation · Deference to the legislature

5 The scheme of the Human Rights Act 1998
Importing the decisions of the European Court · The Act and other legislation · Techniques of interpretation · Compatibility and Parliamentary sovereignty · Subordinate legislation · The unlawfulness of infringing Convention rights · Definition of public authorities · The court as a public authority: horizontal effect · Parliament as a public authority

6 Remedies under the Human Rights Act
Who can complain: ‘victims’ · What can the court do? · Damages · Proving the claim · Bringing the claim: procedure · Injunctions · Time limits and limitation · Where does the Act apply: jurisdiction

7 Introduction to the Convention rights
What rights are protected by the Act? · Omission of Articles 1 and 13 from the Act · The protocols · Derogations and reservations · Limitations on rights: qualified rights · ‘In accordance with the law’ · ‘Necessary in a democratic society’ · Proportionality · Which rights are qualified? · Non-discrimination · General provisions: Articles 16–18

8 The right to life
Article 2 and the Thirteenth Protocol
The right to life · The duty to protect life · The right to die? · The unborn child · The protection of life at work · The quality of life · Prisoners · Adequate investigation into loss of life · The use of force · The death penalty

9 Freedom from torture
Article 3
The importance of Article 3 · The scope of the article · Violence and the threat of it · Sentencing of criminals · Corporal punishment · Treatment of prisoners · Ill-treatment of children · Medical treatment · Deportation of immigrants · Treatment of immigrants · Sexual discrimination and harassment · Pursuing a claim under Article 3 · Evidence obtained by torture

10 Freedom from slavery
Article 4
The relevance of Article 4 today · What is slavery? · Forced or compulsory labour · Permissible labour

11 Personal Liberty
Article 5
Personal liberty · The law on arrest · The scheme of Article 5 · The quality of the law · The meaning of ‘arbitrary’ · Types of permissible detention · Detention after conviction · Breach of a court order · Reasonable suspicion of an offence · Detention of minors for education · Persons of unsound mind · Arrest for deportation · Prompt reasons for arrest · Prompt appearance before a court · Speedy review of detention · Compensation for wrongful detention · Derogation from Article 5

12 The right to a fair trial
Article 6
The importance of a fair trial · Civil and criminal cases · Is Article 6 unqualified? · A fair hearing · Within a reasonable time · An independent court · An interest in the case · Bias · Presumption of innocence · Adverse inferences · Agents provocateurs · Evidence obtained by unlawful or covert means · The minimum content of a fair trial · Civil proceedings: the scope of Article 6 · Civil proceedings: access to justice · Civil proceedings: the effect of the Convention

13 Retrospective legislation
Article 7
The principle behind Article 7 · Retrospective law and our constitution · Clarity in the law · What is a penalty? · Changes in sentencing · Conduct which is always criminal

14 The right to privacy
Article 8
The aims of Article 8 · Respect · A right to privacy? breach of confidence · Private life · Personality · Sexual orientation · Appearance · Searches of the person · Private life and discipline · The ‘private life’ of prisoners · Family life · Public authorities’ decisions about the family · Ancestors of the family · Immigrants · Traditional family lifestyles and travellers · Home · Quality of home life · Correspondence · Intrusion byo property · ‘Possessions’ and ‘property’ · Analysis of the article · The general approach · Peaceful enjoyment · Deprivation of property · Compensation · Control of use · Taxation · Confiscation of proceeds of crime · Forfeiture of goods – customs and the ports · Business and livelihood

20 Free elections
Article 3 of the First Protocol
The importance of democracy · The state’s obligation · The scope of Article 3 · Voting systems · The franchise · The legislature · The position of candidates · Party political broadcasts

21 The problem of terrorism
Terrorism and the rule of law · What is terrorism? · Dealing with the threat · The Terrorism Act 2000 · The Anti-Terrorism, Crime and Security Act 2001 · The right to life · Freedom from torture · Arrest without warrant · Port and border controls · Detention of suspected terrorists · The presumption of innocence · Unknown evidence · Precision in the law · Disclosure of information · Personal Searches · Freedom of association

22 Conclusion

Appendix 1 The Human Rights Act 1998

Appendix 2 The European Convention for the Protection of Human Rights and Fundamental Freedoms

Appendix 3 Members of the Council of Europe and Convention ratifications

Appendix 4 The Universal Declaration of Human Rights

Further reading

Charity Sweet
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avoidance of unreasonable public expenditure... education?

18.09.2008 09:53

Schedule 3
Derogation and Reservation
Part 2 - Reservation
At the time of signing the present (First) Protocol, I declare that, in view of certain provisions of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.

Dated 20 March 1952

Made by the United Kingdom Permanent Representative to the Council of Europe.

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