Joint Committee on Human Rights Thirty-First Report

2  Developments during 2007-08

Our last Report

4.  The Convention system is founded on the principle of subsidiarity: it is for Contracting States in the first instance to decide how best to give effect to Convention rights in their domestic legal system and to choose how to give effect to decisions of the ECtHR, subject to supervision by the Committee of Ministers of the Council of Europe. In our last Report, we explained:

(1)  putting an end to the breach identified by the Court (the obligation of cessation);

(2)  preventing any further violations in the future (the obligation of non-repetition);

(3)  repairing the damage caused to the individual (the obligation of reparation);

(4)  paying to an individual applicant any award of just satisfaction made by the ECtHR (the obligation to make just satisfaction).

5.  In our Report, we also outlined our methodology:

  • We only report to Parliament in relation to issues arising out of court judgments which have become "final", that is judgments where there is no further appeal to a higher court;
  • Our scrutiny focuses on two questions: (1) what changes in law, policy or practice are required to bring the breach to an end and to stop it happening again? and (2) is the overall system of remedies adequate to ensure that the individual receives reparation for the wrong?[4]
  • We engage the Government throughout the year in correspondence on a number of different issues where either the ECtHR or our domestic courts have found any law, policy or practices to be in breach of human rights. We continue to publish this correspondence on our website and have invited members of the public and civil society to submit evidence to the Committee on the Government's performance.[5]

6.  We also made a number of recommendations designed to improve the UK's domestic mechanisms for the implementation of judgments finding breaches of human rights:

  • We called on the Ministry of Justice to adopt a central coordinating role in Government to ensure the effective and efficient implementation of adverse human rights judgments.[6]
  • We recommended that the Ministry of Justice create a database on the implementation of outstanding ECtHR judgments against the UK, similar to its database on domestic declarations of incompatibility .[7]
  • Information notes provided to the Committee of Ministers should routinely be copied to us. [8]
  • The Government should adopt a much clearer policy on systematically responding to declarations of incompatibility made by our domestic courts, including implementing the recommendations made by us and our predecessors, on the timetable for responding to these judgments.[9]
  • It should also make greater use of remedial orders and should ensure that any legislative solution proposed by Government makes the necessary provision for a remedy for those applicants already adversely affected by the incompatible provisions.[10]
  • We urged the Ministry of Justice to produce clear guidance on declarations of incompatibility and remedial orders and expressed our willingness to scrutinise draft guidance.[11]
  • Where a legislative provision is declared incompatible with the Convention, the Government should closely monitor the application of that provision and its potential impact on individuals affected by its continuation in force. We recommended that these monitoring arrangements should include the collection of relevant statistics on the impact of incompatible statutory provisions.[12]
  • We recommended that the Ministry of Justice should provide us with copies of any ECtHR judgment against the UK within one month and any declaration of incompatibility within 14 days. They should inform us of the results of any appeal or hearing by the Grand Chamber of the ECtHR within one month of the decision of the final appeal court or the Grand Chamber.
  • Once a judgment has become final, the Ministry of Justice should write to us to explain any measures the Government considers necessary to comply with the judgment and whether the Government intends to use the remedial order process.
  • We recommended that the Government should aim to make a detailed decision on how to respond to a judgment of the ECtHR within three months and a declaration of incompatibility within six months.
  • In complex cases, we recognise that the Government might need more time to consult with relevant stakeholders or to formulate an effective solution. However, an explanation for any delay should be provided within the timetables proposed.[13]

The Government response

7.  In August 2007, Michael Wills MP, the Minister for Human Rights provided us with the Government response to our conclusions and recommendations on the issues considered in our last Report.[14] We publish this response with this Report and we consider it in more detail in Chapters 4 and 5, below. In that letter, the Minister also explained that the Government would respond separately to our "broader recommendations about the way in which the Government implements judgments" once he had considered the matter further.[15]

8.  Over 12 months since the publication of our last report, we have received no further substantive response from the Government to our systemic recommendations. In our Annual Report on our work, we criticised this delay, which then stood at five months.[16] In response to that Report, the Minister explained that formulating the Government's reply to those recommendations was not straightforward:

[A]s my officials have explained in some detail to the Committee secretariat, the Committee in that report made some exceptionally wide-ranging suggestions as to the organisation of Government business. I would very much like to respond substantively to the Committee's recommendations, rather than simply noting the Committee's views and I would hope the Committee would welcome this desire to respond more substantively than is sometimes the case. However, it is taking quite some time to investigate the possibilities in this area, and the extent to which the Committee's recommendations would be possible and effective. In particular, in relation to the judgments of the European Court of Human Rights, we are bound to respect the timescales and requirements of the Committee of Ministers, which supervises the implementation of such judgments. While we will obviously consider your suggestions, our obligations in this respect must be our primary consideration.

Therefore, while I could send to the Committee for the sake of form a further response covering these remaining recommendations, doing so without substantively engaging with the Committee's opinions would satisfy neither me nor, I suspect, you.[17]

9.   We understand that an informed response requires coordination across Government and input from several departments. However, a delay of over one year in replying to these recommendations is unacceptable. The Government should provide us with a substantive response as soon as possible and certainly before the end of the current parliamentary session.

Our evolving approach to human rights judgments

10.  Over the past 12 months, we have sought to enhance our scrutiny of the Government's responses to human rights judgments and to ensure that it is more accessible to parliamentarians. For example, we have recommended a number of amendments to Government Bills to remedy breaches of individual rights identified by the courts.[18] We consider these amendments to the Housing and Regeneration Bill and the Employment Bill in detail, below, in Chapters 4 and 5.

11.  We have written to Government Departments in relation to a number of judgments and declarations of incompatibility and encouraged them to respond within the framework set out in our previous Report.

12.  We have also asked the Ministry of Justice and the Foreign and Commonwealth Office to submit to us a general report on their work in this area over the past 12 months.[19] We hoped to encourage the Government to make a more proactive contribution to our work and to increase the transparency of the Government's response to court judgments finding breaches of human rights.

13.  This change in our practice was inspired by work in the Netherlands, where the parliamentary Justice Committee receives a report from the Government Agent to the ECtHR on an annual basis. This report covers cases against the Netherlands over the past 12 months and their implications for domestic law. It also covers cases against other Contracting Parties that may have implications for domestic law, practice and policy. It is presented by Government to both houses of the Netherlands Parliament and subsequently examined by the Justice Committee, including through oral evidence.[20]

14.  We welcome the cooperation of the officials of the Ministry of Justice and the Foreign and Commonwealth Office. They have often been willing to pursue inquiries from our staff on an informal basis. However, we are disappointed by the Government's failure to respond to our request for a memorandum on the Government's progress over the past 12 months in dealing with adverse judgments. We call on the Minister for Human Rights and the Secretary of State for Foreign Affairs to provide us with an annual report on adverse judgments, following the model adopted in the Netherlands.

2   The rules of precedent mean that the lower courts in England and Wales are bound by earlier decisions of the higher courts on the same issues. Under these rules, judgments of the House of Lords have greatest weight. In the Second Monitoring Report, we explained that the House of Lords have confirmed that even where there is a directly conflicting judgment of the ECtHR on a question of human rights law, courts in England and Wales must generally apply the binding conclusions of the earlier House of Lords decision. See Second Monitoring Report, paragraphs 9 - 13. Back

3   Second Monitoring Report, paragraphs 4 - 13. Back

4   For further information on our methodology, see Second Monitoring Report, paras 16 - 19. Back

5   JCHR Press Notice (2007-08) No. 42;  Back

6   Second Monitoring Report, paragraphs 26 - 28. Back

7   Ibid, paragraph 27. Back

8   Ibid, paragraph 29. Back

9   Full details of this timetable can be found in the Second Monitoring Report, paras 155 - 163.  Back

10   Ibid, paragraphs 118 - 119. The Human Rights Act 1998 makes provision for new legislative measures, Remedial Orders, which allow the Government to bring forward secondary legislation in order to provide a remedy for any breach of Convention rights identified by either a Declaration of Incompatibility or a decision of the ECtHR (Section 10, Schedule 2). For further information on remedial orders, see Seventh Report of 2001-02, The Making of Remedial Orders, HL 53/HC 473. Back

11   Ibid, paragraph 121. Back

12   Ibid paragraph 129. Back

13   Ibid, paragraphs 156 - 161. Back

14   Written Ev 1. A number of letters and memoranda are appended as evidence to this report. We refer to each of these documents as 'Written Ev'. Back

15   Ibid. Back

16   Sixth Report of Session 2007-08, The Work of the Committee in 2007 and the State of Human Rights in the UK, HL Paper 38/HC 270, paragraphs 65 - 66. Back

17   Eighteenth Report of Session 2007-08, Government Response to the Committee's Sixth Report of Session 2007-08: The Work of the Committee in 2007 and the State of Human Rights in the UK, HL Paper 103/HC 526, Appendix, paragraph 19. Back

18   See for example, Seventeenth Report of Session 2007-08, Legislative Scrutiny: 1) Employment Bill; 2) Housing and Regeneration Bill; 3) Other Bills, HL Paper 95/HC 501, paragraphs 2.34 - 2.37.; Declaration of incompatibility made in the case of Morris v Westminster City Council [2005] EWCA Civ 1184.  Back

19   Written Ev 2. Back

20  A similar practice operates in Switzerland. For further information on scrutiny of the implementation of judgments of the ECtHR, see Ms Bemelmans-Videc, Rapporteur of PACE Legal Affairs and Human Rights Committee, The Effectiveness of the Convention at a Domestic Level: the Parliamentary Dimension, Stockholm Colloquy, 9-10 June 2008,. (Last accessed 10 July 2008). Back

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Prepared 31 October 2008