Description of the legal term Derogation:
Derogation in British legal context refers to a partial suppression or relaxation of a law, rather than its complete abolition. It signifies a formal exemption from laws, rules or norms that are typically applicable, often enacted by legislative or executive authority. This term comes from the Latin “derogare,” meaning to diminish or repeal a part of a law. In practical terms, derogation allows for adjustments to legislation under specific circumstances or within particular domains, often to address situations that were not foreseen when the law was originally crafted, or to accommodate unique circumstances that warrant a temporary suspension of the standard application of the law.
In the UK’s constitutional framework, there are certain scenarios where derogation might be justifiable, such as during times of war or national emergency, where some rights may be suspended to protect the nation’s security. The European Convention on Human Rights (ECHR), to which the UK was a signatory prior to Brexit, allows for derogation from certain rights during times of war or other public emergencies threatening the life of the nation. When doing so, a country is obliged to officially notify the other signatories of the Convention about the measures taken and the reasons behind them.
British law also allows for derogation in various regulatory contexts, for instance, in compliance with EU laws, or, post-Brexit, where national interest demands certain adjustments to existing laws formerly influenced by EU standards. This can be instituted by parliamentary legislation that is explicit about the specific articles from which the UK will derogate, ensuring that there is a legal basis for the exemption.
A vital aspect of derogation is that it is not an overarching sidestepping of the law, but rather a selective and limited withdrawal from particular legal obligations. It must be proportionate and only applied as far as necessary to achieve its aim. Moreover, derogation cannot be applied to fundamental rights that are non-derogable, such as the right to life or freedom from torture and slavery.
Legal context in which the term Derogation may be used:
One example of derogation occurred during the UK’s implementation of certain antiterrorism measures that conflicted with obligations under the ECHR. In response to the threat of terrorism, the UK Government introduced the Prevention of Terrorism Act 2005, which included provisions for control orders that effectively placed individuals under house arrest. This was seen as incompatible with Article 5 of the ECHR – the right to liberty and security. However, the UK had derogated from this right, declaring a public emergency threatening the life of the nation, and thus seeking to justify these measures.
Another instance where derogation played a significant role was within the context of the Working Time Regulations 1998, which implemented the European Working Time Directive in the UK. These regulations include rules on the maximum weekly working time, rest breaks and annual leave for workers. However, there is a provision within these regulations that allows individual workers to opt-out of the 48-hour maximum working week, effectively derogating from the standard rule. Workers who sign an opt-out agreement can work more than 48 hours a week. This practice of opting out has been a topic of debate, focusing on the balance between employment flexibility and worker protection.
Understanding the term “derogation” is crucial within British law, as it highlights a mechanism through which the strict application of legal norms can be flexibly adapted to serve the public interest or address extraordinary circumstances without undermining the integrity of the legal system as a whole. It represents a nuanced legal tool that, when used judiciously, balances the need for law’s stability with the practicalities of an ever-changing society.
