Recommendation 29

The UK cannot lawfully make a derogation unless the Article 15 ECHR conditions for derogation are met. Clause 12 appears to do nothing except require the Minister to consider whether it would be appropriate to make a derogation where those conditions are met, and where such a derogation was necessary to ensure that the UK remained in compliance with its international obligations. It is therefore highly questionable as to whether this provision adds much to what the Minister would or indeed should do in any event, but it does arguably increase the risk of judicial review proceedings and requests for information under the Freedom of Information Act, inquiring whether the Minister has made such a determination and on what grounds.