Joint Committee on Human Rights Thirty-First Report

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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