UK Lagging Behind States Offering a Legal Right to Consular Assistance
By Chris Esdaile, REDRESS’ Senior Legal Advisor
Follow Chris on Twitter @ChrisEsdaile
States around the world adopt a range of approaches towards the provision of consular assistance to their nationals in domestic legal frameworks. New REDRESS research shows that nearly half of the 28 States studied offer a strong and enforceable legal right to consular assistance.
This stands in stark contrast to the position in the UK, where consular assistance (the provision of assistance by consular officials or diplomatic authorities to nationals in difficulty overseas) is provided at the discretion of the UK Government. This is despite the vital role of consular assistance in protecting British nationals detained overseas from serious human rights violations.
REDRESS has long argued that moving consular assistance onto a legislative footing would ensure more robust safeguards and greater certainty for British nationals at risk of human rights abuses abroad and solidify the State’s responsibility to secure the rights and wellbeing of its most vulnerable citizens.
Our new research briefing offers policymakers an overview of models of consular assistance which already exist in a range of different States.
The briefing outlines four different models for the provision of consular assistance at a domestic level:
- Model 1: A policy-based model where consular assistance is provided through the exercise of executive powers and/or the royal prerogative, offering the State a wide discretion over what is provided and how it is delivered. This is the model currently in operation in the UK, as well as in Australia, Canada, Cyprus, Ireland, and the Netherlands.
- Model 2: A model where the operation of consular authorities is outlined in legislation, but the legislation does not establish a legal right to consular assistance. Examples of this approach are found in Portugal, France and Germany.
- Model 3: A model in which the State’s constitution asserts an obligation on the State to protect and/or assist its nationals abroad, but where the commitment can range between a legal obligation and political aspiration. Examples of this approach are found in Bulgaria, Estonia and Croatia.
- Model 4: A model where domestic law and regulations codify a duty or obligation on the State to provide consular assistance, often including the scope of such assistance, and identifying who is eligible for such support. Examples of this approach are found in Austria, Belgium, Romania, and Mexico.
The above models flow from a weak to a strong legal basis, with some States embedding overlapping approaches. The strongest model, Model 4, offers (both to State nationals affected and to State officials) more certainty on the scope of consular assistance as a positive measure to ensure the protection of the rights of the national abroad (including their fundamental human rights); and affords the national an avenue to either ensure compliance with a right to consular assistance or obtain redress through the judicial system where there had been a failure to do so.
The briefing considers 28 States worldwide, of which nearly half adopt the strongest legal basis (Model 4) for a right to consular assistance for their nationals.
The research briefing was co-authored by Dr Conall Mallory, Senior Lecturer in Law at the School of Law, Queen’s University Belfast, as part of REDRESS’s ongoing work towards introducing a legal right to consular assistance for British nationals detained abroad.
This briefing complements REDRESS’ Principles for a legal right to consular assistance, published in January 2024, designed to help shape a legal right to consular assistance in the United Kingdom.
REDRESS argues that a legal right to consular assistance in cases of human rights violations would benefit British nationals by giving their rights primacy over foreign policy and trade considerations, solidifying the UK’s prevention obligations under human rights treaties (such as the UN Convention against Torture), providing greater certainty, transparency and consistency to British nationals and their families regarding the level of support that they and their families can expect, and clearer routes to accountability when things do go wrong.
Photo by Free Jaggi Now. The family of Jagtar Singh Johal, a British national arbitrary detained and tortured in India, is among a number of families who have raised concerns about the lack of effective consular assistance.