Conclusions and Recommendations
1. We
understand that an informed response [to our previous recommendations]
requires coordination across Government and input from several
departments. However, a delay of over one year in replying to
recommendations is unacceptable. The Government should provide
us with a substantive response [to our last Report on these issues]
as soon as possible and certainly before the end of the current
parliamentary session. (Paragraph 9)
2. 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. (Paragraph
14)
3. We
recommend, again, that the Ministry of Justice should adopt a
coordinating role in relation to the Government's response to
adverse human rights judgments, including judgments of the European
Court of Human Rights. This would be a positive step towards compliance
with the recent Recommendation of the Committee of Ministers [on
effective domestic mechanisms for the implementation of judgments].
(Paragraph 18)
4. We
reiterate our previous recommendations that Government should
keep us informed in a timely way of all adverse human rights judgments
and their proposals for any legislative or other solutions. (Paragraph
20)
5. We
look forward to assessing the Government's reaction to the work
of the Parliamentary Assembly of the Council of Europe and its
scrutiny of the execution of judgments of the European Court of
Human Rights by the United Kingdom. We encourage the Government
to engage positively with the new Rapporteur and intend to scrutinise
the UK Parliamentary Delegation response to his introductory memorandum.
(Paragraph 23)
6. We
are encouraged that the statistics prepared by the Committee of
Ministers appear to show that the United Kingdom takes a relatively
positive approach to its Convention obligation to implement the
judgments of the European Court of Human Rights. (Paragraph 26)
7. Delays
of upwards of five years in resolving the most significant breaches
of the European Convention are unacceptable unless extremely convincing
justification for the delay can be provided. We call on the Government
to publish its response to the Annual Report of the Committee
of Ministers on the Supervision of the Execution of Judgments
of the European Court of Human Rights. In that reply, we recommend
that the Government explain the reasons for any delay in relation
to the introduction of general measures in each of the cases which
have been subject to the supervision of the Committee of Ministers
for longer than five years. (Paragraph 28)
8. We
do not share the Government's confidence that the minor changes
to existing policy [on access to artificial insemination for prisoners]
agreed so far will be adequate to eliminate the risk of a further
finding of a breach of the right to respect for private and family
life of prisoners and their partners by the ECtHR. We have not
yet received a reply to our questions [on Dickson v UK]
and we look forward to receiving the Minister's response to our
request for further information. (Paragraph 43)
9. Although
the right to freedom of association confers on Trade unions the
broad general power to control membership, the judgment of the
ECtHR in ASLEF is qualified by an exception to that rule
based on the need to balance the right of the individual member
to be treated fairly and not to suffer exceptional hardship as
a result of exclusion. We welcome the Government's decision to
include in the Employment Bill additional safeguards to reflect
the individual right to freedom of association and to protect
individuals from abuse of a dominant position by a particular
Trade Union. The positive and consultative approach of the Department
of Trade and industry, and its successor, the Department for Business
Enterprise and Regulatory Reform, to providing a speedy and effective
response to the judgment in ASLEF is a commendable example
for other Government departments to follow. (Paragraph 45)
10. We
were disappointed to learn of […] developments [concerning
prisoners voting rights] from the Council of Europe's own website,
despite the Minister's reassurance that we would be kept informed
of further work on this issue. We expect Government to keep us
informed of developments in situations where we are actively engaged
in correspondence about an issue. (Paragraph 50)
11. We
are disappointed to report to both Houses that we have not yet
received an answer to [our recent] questions [relating to prisoners
voting rights]. (Paragraph 53)
12. The
European Court of Human Rights has given clear guidance that individuals'
fundamental human rights, including the right to vote, are not
contingent on their continuing to be 'good citizens'. Interferences
with those rights can only be justified in accordance with the
law. When considering whether to limit an individual's right to
vote, proportionally requires a clear and close link to the specific
conduct of the individual concerned. The Grand Chamber implies
that this link should include some connection to the stability
of the electoral system, the rule of law or the democratic settlement
within a state. General breaches of any vague concept of civic
duty are, in our view, unlikely to meet the standard of justification
envisaged by the ECtHR. (Paragraph 58)
13. The
Government's change of approach and failure to set a concrete
timetable for its response raises serious questions about its
reluctance to deal with this issue [prisoner voting rights]. In
our previous reports, we have drawn attention to a number of cases
where significant delay in implementation has tarnished the otherwise
good record of the United Kingdom in responding to the judgments
of the European Court of Human Rights. For the most part these
cases have been legally straightforward, but politically difficult.
This case appears destined to join a list of long standing breaches
of individual rights that the current Government, and its predecessors,
have been unable or unwilling to address effectively within a
reasonable time frame. The Government should rethink its approach.
(Paragraph 62)
14. We
call on the Government to publish the responses to its earlier
consultation and to publish proposals for reform, including a
clear timetable, without further delay. A legislative solution
can and should be introduced during the next parliamentary session.
If the Government fails to meet this timetable, there is a significant
risk that the next general election will take place in a way that
fails to comply with the Convention and at least part of the prison
population will be unlawfully disenfranchised. (Paragraph 63)
15. We
continue to regret the delay in providing Article 2 complaint
investigations in [respect of a number of] cases [relating to
Northern Ireland]. We recommend that the Government publish a
full and up to date explanation of its approach to each case,
including the reasons for continuing delay. (Paragraph 66)
16. We
and our predecessor Committee have stressed the importance of
effective, independent inquest proceedings and other inquiries
for the purposes of Article 2 ECHR, and will continue to do so.
Most recently, we have raised concerns that the Government's proposals
to increase the potential for closed inquests to provide a public
inquiry of the scope and nature required by the Convention.[147]
However, in the context of our work monitoring the UK Government's
response to adverse judgments of the ECtHR, we will observe the
conclusions of the Committee of Ministers, who retain responsibility
for enforcement of the Convention. We will not comment, in this
context, on issues which have been closed and discharged from
scrutiny. (Paragraph 67)
17. The
Committee of Ministers is awaiting further information from the
United Kingdom on the operation of both the Police Ombudsman and
the Historical Enquiries Team, We call on the Government to address
the concerns raised about independence and effective disclosure
[in evidence gathered by the House of Commons Northern Ireland
Affairs Select Committee] in its correspondence with the Committee
of Ministers. We recommend that the Government send us the latest
information sent to the Committee of Ministers on each of these
cases. (Paragraph 68)
18. We
look forward to the Government's response to the recent report
of the Commons Northern Ireland Affairs Committee on the cost
of policing the past in Northern Ireland. The Government should
provide the Committee of Ministers with a copy of the Committee's
report and its response. We urge the Ministry of Justice and the
Northern Ireland Office to explain how the various pressures identified
by that inquiry may impact on the functions and operational capabilities
of the Police Ombudsman and the Historical Enquiries team. The
Government should also explain how this may affect information
which the Government has previously provided to the Committee
of Ministers in relation to these cases. (Paragraph 70)
19. The
Government sought to extend the application of the Mobile Homes
Act 1983 to residents of local authority Gypsy and Traveller sites,
following a recommendation which our predecessor Committee made
over four years ago. We welcomed these provisions but expressed
our disappointment at the significant and unnecessary delay in
resolving this issue. [148]
(Paragraph 71)
20. We
recommend that the CPS case notes should capture important information
such as [whether defendants have been wrongly acquitted using
the reasonable chastisement defence] to facilitate future research
[on the application in practice and Section 58 of the Children's
Act 2004]. (Paragraph 77)
21. We
recommend that the Government explain clearly how it considers
that the ECtHR would approach a case brought by a child who has
been punished in accordance with Section 58 Children Act 2004,
applied in accordance with the appropriate Charging Guidance.
(Paragraph 79)
22. Clear
concerns about the operation of Section 58 Children Act 2004 arise
from the Government's recent review and the research of the CPS,
particularly, from the suggestion that the defence of reasonable
punishment has been raised in cases of child cruelty, or other
cases where it should not be available. We believe that it is
necessary for the Government to demonstrate that Section 58, in
the way that it operates is compatible with our obligations, and
therefore, we call on the Government to explain its view that
these reviews show that the law operates in a way which provides
an effective deterrent against any new breaches of the right to
be free from inhuman and degrading treatment or punishment. A
summary of the information provided by the Government to the Committee
of Ministers on this case has recently been published by the Committee
of Ministers Secretariat.[149]
We are disappointed that the Government did not provide us directly
with a copy of their submissions. We wish to receive copies of
these submissions and any subsequent information notes, including
on the position in Northern Ireland and Scotland. (Paragraph 80)
23. In
our previous reports, we praised the Ministry of Justice database
on declarations of incompatability.[150]
This database records every declaration of incompatability made;
whether an appeal is pending; whether a declaration has been overturned
on appeal and, if the Government proposes to take steps to meet
an incompatability, what progress has been made. This database,
if regularly updated, can significantly increase the transparency
of the Government's response to these important judgments. It
is disappointing that this database does not appear to have been
updated for a significant period of time: nor is it easily accessible
on the new, redesigned, Ministry of Justice website. We recommend
that the Ministry of Justice take steps to make it easier to find
the database on their website. We recommend that the Ministry
of Justice take steps to make it easier to find the database on
their website, and that the database should be reviewed and updated
on at least a quarterly basis. (Paragraph 82)
24. [The
findings of the Grand Chamber in Burden v UK] should encourage
the Government to adopt a consistent approach to declarations
of incompatability. We again recommend that the Government take
steps to adopt an open, transparent policy. It should make clear
that it aims to respond to all declarations within a set timetable
and should provide clear guidance to individual departments on
the need for a prompt and effective response to every declaration
of incompatability. (Paragraph 84)
25. We
are not persuaded that the provisions in the Housing and Regeneration
Act 2008 intended to respond to the declarations of incompatability
in the cases of Morris and Gabaj entirely remove
the risk that our domestic courts, or the ECtHR, will find a further
violation of the right to enjoy respect for private and family
life without unjustified discrimination. We recommend that the
Government provide a fuller explanation of its view that these
provisions are necessary and proportionate and therefore, compatible
with the Convention. (Paragraph 95)
26. We
accept the Government analysis that the UK Border and Immigration
Agency is not required to change the law in response to the declaration
of incompatability made in [relation to its Certificate of Approval
Scheme for marriages by immigrants]. There is no domestic legal
obligation on the Government to take action. However, we are disappointed
by the Government's short-sighted approach. Although in keeping
with the careful constitutional settlement in the HRA 1998, failure
to provide a remedy may engage the United Kingdom's international
obligations. The UK has primary responsibility under the ECtHR
to give effect to Convention rights.[151]
The continued application of a provision of domestic legislation
that the UK courts have decided is incompatible with the Convention
is inconsistent with out commitments to give full effect to the
protection of the Convention to all people in the UK. It leads
not only to the continued likelihood that people in the UK may
be treated in a way which breaches their fundamental rights but
also that they will only be able to secure a remedy in Strasbourg.
We repeat our previous calls to Government to provide coherent
guidance to Government Departments on responding to declarations
of incompatability. This guidance should cover not only the obligations
of the HRA 1998 but also the responsibilities of the UK under
its international obligations. (Paragraph 101)
27. We
note the Government's reference to its interim guidance on Certificates
of Approval, which was designed to reduce the impact of the Certificate
of Approval scheme, pending the decision of the House of Lords.
However, we consider that it has no real implications for the
ongoing discrimination identified by the Court of Appeal, which
continues to mean those who wish to marry in a Church of England
service are treated more favourably than others.(Paragraph 103)
28. The
Government has not explained how any proposals to create a separate
scheme for the Church of England would be justifiable and compatible
with Article 14 ECHR. In the light of the outcome of the Government's
appeal to the House of Lords, and the continued operation of the
Certificate of Approval Scheme, we expect the Government's proposals
for the removal of the discriminatory exemption for Church of
England marriages, together with a full explanation of their compatability
with the Convention, to be published without delay. We call on
the Government to send us its proposals as soon as they are available.
(Paragraph 106)
29. The
declaration of incompatability made in the joined cases of
Clift and Hindawi involved a relatively straightforward
legal problem with a comparatively simple solution. We welcome
the Government's decision to introduce a similarly simple and
speedy remedy in the Criminal Justice and Immigration Act. We
have previously cautioned against using a large Government Bill
to provide a remedy for a relatively simple issue. However, in
this case, the Government's proposed interim administrative arrangements
ensured that the incompatible provisions of the Criminal Justice
Act 1991 had no substantive effects and the timing of the Criminal
Justice and immigration Bill was opportune. (Paragraph 107)
30. We
welcome the efforts of the Government to reach settlement in cases
relating to gender discrimination and widow's benefits. We encourage
the Government actively to pursue friendly settlement in any outstanding
clone cases where applicants are open to negotiation. (Paragraph
118)
31. We
recommend that the Government's approach to clone cases should
be more proactive. Government policy on settlement appears to
be based upon the existence of an admissible application to Strasbourg.
This places the onus on the individual who has been affected by
a breach which has already been identified by the ECtHR to come
forward and to invest time and money in the preparation of a claim.
As legal proceedings develop and costs accumulate, settlement
negotiations may become more difficult. (Paragraph 119)
32. We
consider that in any similar cases in future, the Government should
encourage the European Court of Human Rights to identify a batch
of cases to treat as lead cases, or as pilot judgments (a development
which we consider below). Where a systemic problem or a breach
which may lead to a significant number of well founded applications
by individuals is identified, the Government is already obliged
to consider what steps are necessary to remove the breach, prevent
future breaches and compensate those affected by the breach.[152]
This obligation should be approached imaginatively and include
consideration of whether more innovative steps can be taken at
a domestic level in order to provide a speedy remedy for those
affected by the breach, if possible, in a way which avoids unnecessary
public expenditure. These steps could include, for example, the
creation of a well-publicised Government sponsored compensation
scheme, avoiding the need for individual applicants or Government
departments to incur significant legal expenses. While, after
exhausting these domestic remedies, an individual must be free
to take a claim to Strasbourg, these steps could help reach equitable
solutions without adding unnecessarily to the list of cases pending
against the UK. (Paragraph 120)
33. We
do not wish to pre-empt the decision of the ECtHR in this or any
other case. We recommend that, in cases such as these, the Government
should consider urging the Court during the course of a lead case
to treat it as a pilot judgment. In any event, the Court should
be encouraged to give clear guidance on a suitable remedy in any
case involving a significant substantive breach involving clone
cases. We would hope that in any such case, procedural provision
would be made to ensure that those individuals involved in close
cases are given adequate opportunity to influence the approach
of the Court. (Paragraph 124)
147 Thirtieth Report of Session 2007-08, Counter-terrorism
Policy and Human Rights (Thirteenth Report): Counter-terrorism
Bill, HL paper 172/HC 1077, Chapter 4 Back
148
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 2.29-2.33 Back
149
CM/DH (2008) 34 Revised Memorandum prepared by the Department
for the Execution of Judgments of the European Court of Human
Rights, 28 August 2008, published 18 September 2008 Back
150
Second Monitoring Report, paragraph 27 Back
151
Article 1 ECHR requires individual Contracting Parties to secure
Convention rights for every person within their jurisdiction and
Article 13 ECHR gives those individuals a right to an effective
remedy for the breach of their Convention rights. The UK is bound
in international law to comply with these obligations which may
be enforced by the Council of Europe Committee of Ministers. Back
152
Article 46 ECHR. We discuss the obligation on Contracting Parties
to give effect to judgments of the Court in Chapter 1, above. Back
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