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; http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrpn070842.cfm
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,. http://assembly.coe.int/ASP/APFeaturesManager/defaultArtSiteView.asp?ID=783
(Last accessed 10 July 2008). Back