Convention rights—derogations, reservations and the margin of appreciation
Produced in partnership with Alexander Campbell of Field Court Chambers
Convention rights—derogations, reservations and the margin of appreciation

The following Public Law guidance note Produced in partnership with Alexander Campbell of Field Court Chambers provides comprehensive and up to date legal information covering:

  • Convention rights—derogations, reservations and the margin of appreciation
  • Derogations from the Convention rights
  • Reservations to the Convention rights
  • Margin of appreciation
  • Limits on restrictions of Convention rights

Neither the Human Rights Act 1998 (HRA 1998) nor the European Convention on Human Rights (ECHR) contain express defences for public authorities to raise in response to a claim that they have violated a Convention right. Nevertheless there are a number of general ways in which public authorities may be held not to have violated an Article of the ECHR. These are set out in the text of the ECHR and in domestic law under HRA 1998.

This Practice Note looks at the following:

  1. derogations from the Convention rights

  2. reservations to Convention rights

  3. matters falling within a state’s margin of appreciation

In the case of qualified rights (rather than absolute rights), a public authority is held not to be in breach of the ECHR if its conduct falls within the qualifying circumstances ie the interference with the Convention right is justified. For background reading, see Practice Note: Convention rights—structure of qualified rights.

Derogations from the Convention rights

What is a derogation?

Article 15 of the ECHR provides for member states to derogate from having to respect the Convention rights. The circumstances in which a contracting state is allowed to do so are strictly circumscribed. Contracting states are restricted in the circumstances in which they can derogate from the ECHR in terms of:

  1. the circumstances justifying the derogation, and

  2. the extent of