Defences for public authorities
Produced in partnership with Alexander Campbell of Field Court Chambers
Defences for public authorities

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:

  • Defences for public authorities
  • Derogations from the Convention rights
  • Reservations to the Convention rights
  • Margin of appreciation
  • Limits on restrictions of the Convention rights

Neither the Human Rights Act 1998 (HRA 1998) nor the European Convention on Human Rights (as set out in HRA 1998, Sch 1) contains express defences for public authorities to raise in a claim that they have violated a Convention right. Nevertheless there are a number of general ways in which public authorities can be held not to have violated an article of the Convention; these are set out in the text of the Convention and in domestic law in HRA 1998. The ones which will be covered by this note include:

  1. derogations from the Convention

  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 Convention if its conduct falls within the qualifying circumstances ie the interference with the Convention right is justified.

Derogations from the Convention rights

What is a derogation?

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

  1. the circumstances justifying the derogation, and

  2. the extent of the derogation