1 Introduction
Crisis at the European Court of
Human Rights
1. The European Court of Human Rights (ECtHR) is
in crisis. It is a victim of its own success in establishing itself
as the authoritative human rights court for 800 million citizens
of 47 European countries. The number of cases currently pending
before it is almost 120,000. The number of new applications in
2009 was almost 57,000, compared to 8,400 in 1999. Despite considerable
improvements in the productivity of the Court, the gap between
the number of decisions and judgments it delivers and the number
of incoming applications remains large and continues to widen.
So, not only is the backlog enormous, it is steadily getting worse:
the Court simply cannot keep up with the influx of applications.
Unless something radical is done, and done soon, there is a real
risk that the Court will drown under the flood of applications,[1]
and its widely recognised achievements as a champion of the values
underpinning democracy and the rule of law in Europe will be undermined.
2. The crisis currently threatening to overwhelm
the Court makes it more urgent than ever that the Convention be
effectively implemented at national level, so that the Court is
not overloaded with cases which could be dealt with adequately
at national level, or with repetitive cases as a result of inadequate
implementation of Court judgments. The ECHR system is based on
the principle of subsidiarity. According to this principle, the
Convention system plays only a subsidiary role to the national
system for the protection of Convention rights: those rights are
to be protected first and foremost in the national legal system.
The principle of subsidiarity is reflected in Article 1 of the
Convention, by which States are under an obligation to secure
the Convention rights to everyone within their jurisdiction.
3. One of the signs of inadequate national implementation
is the shockingly high proportion of the cases before the Court
which are "repetitive applications", that is, which
concern issues on which the Court has already pronounced but where
the source of the incompatibility has not been removed in the
national legal system. In 2008, some 70% of the Court's judgments
concerned repetitive applications. Another sign is the large number
of cases which are pending before the Committee of Ministers concerning
the late or non-execution of judgments. At the end of 2009, the
number of cases pending before the Committee of Ministers was
about 8,600, compared to 2,300 at the end of 2000, and of these
some 80% concern repetitive cases.
4. The surest way of stemming the flood of applications
to the Court, including repetitive applications, is therefore
to enhance the authority and effectiveness of the ECHR in the
national legal system. This was the object of the package of reforms
which was agreed by the member states of the Council of Europe
in May 2004, to accompany Protocol 14 which made important changes
to the way the Court operates to enable it to deal with the massive
increase in the number of applications. As our predecessor Committee
pointed out in its report on Protocol 14,[2]
reforms to the Court and the Convention control system would not
alone ensure the long-term effectiveness of the Convention. If
the overload of the Court was to be overcome, it was also necessary
to take a comprehensive set of interdependent measures to prevent
Convention violations at national level, to improve remedies in
the national legal system for Convention violations and to enhance
and expedite implementation of the Court's judgments. To this
end, Protocol 14 was accompanied by a number of Committee of Ministers'
recommendations concerning, for example, the need for effective
mechanisms for systematic verification of the Convention compatibility
of draft laws, existing laws and administrative practice, and
the need to improve domestic remedies for arguable violations
of Convention rights.[3]
Our predecessor Committee indicated that the JCHR intended to
ensure that Parliament was properly involved in the implementation
of the various Committee of Ministers recommendations.
The Interlaken Declaration
5. In view of the deep concerns about the sustainability
of the Convention system, as the number of applications continues
to grow and to exceed the number of judgments and decisions, the
Swiss Government, during its Chairmanship of the Committee of
Ministers of the Council of Europe, recently organised a "High
Level Conference on the Future of the European Court of Human
Rights" at Interlaken. The conference was preceded by a number
of interesting public statements by key institutions and individuals
(such as the President of the Court, the Secretary General of
the Council of Europe, the European Commissioner for Human Rights,
and the Committee on Legal Affairs and Human Rights of the Parliamentary
Assembly),[4] setting out
the priorities facing the Court and the Convention system as a
whole. For all of these key actors, the future effectiveness of
the Court depends to a large degree on better national implementation
of the Convention.
6. The Interlaken conference took place on 18 and
19 February 2010 and culminated in a joint declaration by the
representatives of the 47 member states of the Council of Europe.[5]
The Interlaken Declaration reiterates the obligation of the member
states to ensure that the rights and freedoms in the Convention
are fully secured at the national level and calls for a strengthening
of the principle of subsidiarity, which implies a shared responsibility
between the States Parties to the Convention and the Court. The
Declaration also stresses the need to find solutions for dealing
with repetitive applications, and that full, effective and rapid
execution of the final judgments of the Court is indispensable.
7. The Conference adopted an Action Plan, spelling
out some of the actions that it calls on States to take. On implementation
of the Convention at the national level, the Conference calls
on states to commit themselves to taking a number of actions,
including:
8. "…b) fully executing the Court's judgments,
ensuring that the necessary measures are taken to prevent further
similar violations;
9. c) taking into account the Court's developing
case-law, also with a view to considering the conclusions to be
drawn from a judgment finding a violation of the Convention by
another State, where the same problem of principle exists within
their own legal system;
10. d) ensuring, if necessary by introducing new
legal remedies, ... that any person with an arguable claim that
their rights and freedoms as set forth in the Convention have
been violated has available to them an effective remedy before
a national authority providing adequate redress where appropriate."
Increasing Parliament's involvement
in national implementation of the Convention
11. The Interlaken Declaration explicitly recognises
that Parliaments, as well as governments and courts, have a fundamental
role to play in guaranteeing and protecting human rights at the
national level.[6] The
role of national Parliaments has increasingly been recognised
as crucial in achieving more effective national implementation
of the Convention. Traditionally, it was seen principally as the
responsibility of the judiciary to remedy human rights violations
at the national level. Today, however, it is increasingly seen
as the shared responsibility of all branches of the state (the
executive and parliament as well as the courts) to ensure effective
national implementation of the Convention, both by preventing
human rights violations and ensuring that remedies for them exist
at the national level.
12. National parliaments are therefore now encouraged
to take a much more proactive role in making the Convention effective
in the national legal system. As we noted above, a number of the
recommendations in the package of measures accompanying Protocol
14 were aimed at enhancing the role of national parliaments in
giving effect to the Convention. In addition to these 2004 recommendations
encouraging parliaments to ensure that legislation is compatible
with the Convention, there are now recommendations and exhortations
from Council of Europe bodies which envisage a similarly proactive
role for national parliaments in relation to the implementation
of judgments of the European Court of Human Rights. A 2006 Resolution
of the Parliamentary Assembly of the Council of Europe, for example,
"invites all national parliaments to introduce specific mechanisms
and procedures for effective parliamentary oversight of the implementation
of the Court's judgments on the basis of regular reports by the
responsible ministries."[7]
Why are court judgments any of
Parliament's business?
13. It may be tempting to think that how the Government
responds to Court judgments about human rights is a matter for
the executive and the courts rather than Parliament. Indeed, in
many jurisdictions with constitutional bills of rights, courts
are deemed to have a monopoly of interpretive wisdom and there
is little scope for parliamentary involvement in ensuring that
the executive complies with the supreme judicial will.
14. Under the UK's institutional arrangements for
protecting human rights, however, Parliament, as well as the courts,
has a central role to play in deciding how best to protect the
rights which all are agreed are fundamental. This means that in
our system, when a UK court decides that a law, policy or practice
is in breach of human rights, Parliament still has an important
role to play in scrutinising the adequacy of the Government's
response to the judgment including, in some cases, asking itself
whether a change in the law is necessary to protect human rights
and, if so, what that change in the law should be.
15. Where the judgment is a judgment of the European
Court of Human Rights, Parliament's role is a little more constrained
because such a judgment gives rise to a number of very specific
obligations of result on the UK, including the obligation to put
an end to the breach and to prevent further violations in the
future.[8] In practice,
however, judgments of the European Court of Human Rights leave
a considerable amount of discretion to the State concerned as
to precisely how it amends its law, policy or practice to meet
these obligations. The process of implementing a judgment of the
European Court of Human Rights is therefore an unavoidably political
process, constrained by the legal obligations (to stop the breach,
provide a remedy for the individual concerned and to prevent new
or similar breaches), but a political process nonetheless.
16. The increasing recognition that the implementation
of judgments of the European Court of Human Rights is a complex
legal and political process, involving all branches of the State
and many different actors,[9]
has in turn led to a growing recognition of the importance of
the role of national Parliaments in the process of implementation.
The Committee of Ministers of the Council of Europe, for example,
has recognised that the implementation of Strasbourg judgments
has "greatly benefited" from the increased involvement
of national parliaments, and has encouraged "parliamentary
oversight" of this process.[10]
The Parliamentary Assembly of the Council of Europe in particular
has recognised that the swift and full implementation of Court
judgments often requires the co-ordinated action of various national
authorities, and that this is most likely to be achieved if there
are robust mechanisms and procedures in place to ensure regular
and rigorous parliamentary supervision of the process at both
national and European levels.[11]
The need to reinforce parliamentary involvement in the implementation
of Strasbourg Court judgments is a major theme of the recent report
of the Rapporteur on the Implementation of Judgments of the European
Court of Human Rights.
17. We agree with the analysis of the Parliamentary
Assembly of the Council of Europe, and its Committee on Legal
Affairs and Human Rights, that parliamentary involvement in the
implementation of Court judgments on human rights has many advantages.
It not only raises awareness of human rights issues in Parliament,
but it increases the political transparency of the Government's
response to Court judgments. In so doing it helps both to ensure
a genuine democratic input into legal changes following Court
judgments and to address the perception that changes in law or
policy as a result of Court judgments lack democratic legitimacy.
It facilitates the co-ordination of the various actors, raises
the political visibility of the issues at stake and provides an
opportunity for public scrutiny of the justifications offered
by the Government for its proposed response to the judgment or
for its delay in bringing such a response forward. Parliamentary
involvement is also an essential aspect of strengthening national
mechanisms for ensuring compliance with the Convention and the
Court's interpretation of the Convention and therefore for reducing
the flood of applications to the Court.
National implementation of the
Convention in the UK
18. The UK can generally be proud of its record on
national implementation of the Convention. The Human Rights Act
makes legal remedies available in UK courts for breaches of Convention
rights. UK courts are required to take account of relevant Convention
case-law,[12] and regularly
do so. Our own legislative scrutiny work, independently scrutinising
Government legislation for compatibility with the Convention before
it is enacted, is recognised by the Council of Europe to be one
of the examples of best practice on this particular aspect of
national implementation throughout the Council of Europe.
19. The UK's record on implementing judgments of
the European Court of Human Rights is also generally a good one.
We consider in more detail in Chapter 2 below just how good the
record is compared to other States in the light of the available
statistics. As far as the UK's institutional arrangements are
concerned, the degree of parliamentary involvement in the implementation
of Strasbourg judgments, which has been largely achieved through
our work monitoring the Government's responses to court judgments
concerning human rights, is often held up by Council of Europe
bodies as an example to be followed by other States.[13]
We think it is important to acknowledge that in these important
respects the UK's existing institutional machinery for implementing
the Convention in its national legal system is advanced and, when
working well, is regarded as in some respects a model of best
practice for other member states.
20. There is, however, in our experience as an institution
at the centre of the constitutional relationships between Parliament,
the executive and the judiciary (including the European Court
of Human Rights), considerable scope for improving the UK's record
on national implementation of the Convention by improvements to
the way in which the institutional machinery works in practice.
If those improvements are made, in our view the UK can help to
provide the leadership which is required in Europe in order to
ensure the effective national implementation of the Convention
on which the long term effectiveness of the Convention system
depends. One of the most important aspects of national implementation
of the Convention is the Government's response to judgments of
the European Court of Human Rights. That particular aspect is
the focus of this Report.
The scope of our report
21. In this Report we provide Parliament with the
results of our ongoing work monitoring the Government's response
to court judgments concerning human rights since our last report
on this subject in August 2008. Since this will be our last report
on the implementation of judgments in the current Parliament,
we have also taken the opportunity in this report to take stock
of our work in this area and to ask to what extent we have succeeded
in our objectives of, first, increasing Parliament's involvement
following court judgments finding a breach of human rights and,
second, ensuring that the systems and procedures which are in
place are adequate both to facilitate parliamentary scrutiny and
to ensure the full and expeditious implementation of judgments.
In the light of our experience monitoring the implementation of
judgments, we therefore make a number of recommendations addressing
what we consider to be the main systemic obstacles to greater
parliamentary involvement and to the full and swift implementation
of court judgments.
22. We also take the opportunity in this report to
draw together from our various reports[14]
on this subject some guidance for departments as to how to respond
to human rights judgments in a way which will facilitate effective
parliamentary scrutiny of the adequacy and speed of that response.[15]
This guidance is our response to the invitation of the Parliamentary
Assembly of the Council of Europe to national parliaments to "introduce
specific mechanisms and procedures for effective parliamentary
oversight of the implementation of the Court's judgments on the
basis of regular reports by the responsible ministries".[16]
We hope that this guidance will assist departments when responding
to a court judgment finding a law, policy or practice to be incompatible
with the ECHR. We have not formally consulted the Government about
this guidance and it will be kept under review in light of the
Government's response and its operation in practice. We think
it is beneficial, however, to distil our expectations and recommendations
into formal guidance which we hope will in practice make for more
effective parliamentary oversight of the Government's response
to court judgments concerning human rights.
Our evolving methodology
23. Since our last report we have continued to seek
to enhance our scrutiny of the Government's responses to human
rights judgments and to make it more accessible both to parliamentarians
and to the public. For the first time, there has been a debate
in the House of Lords on our report on human rights judgments,
initiated by Lord Lester of Herne Hill, a former member of our
Committee.[17]
We have recommended a number of amendments to Government
Bills to remedy breaches of individual rights identified by the
courts.[18] We consider
these cases in Chapters 2 and 3 below. We have actively sought
submissions from civil society about the issues arising from our
scrutiny of the Government's response to Court judgments. We have
also asked the Human Rights Minister, the Rt Hon Michael Wills
MP, about various aspects of the Government's approach to implementing
human rights judgments during his two appearances before us since
our last report.[19]
24. 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 2007 monitoring report. We also wrote to the Ministry of Justice
in July 2009 to provide the Government with an opportunity to
submit written evidence on the Government's work both on the implementation
of specific judgments over the past year and on improving the
systems and procedures for implementing such judgments. We specifically
requested:
- Comments or information on
the Government's general work on adverse human rights judgments,
either from the ECtHR or the domestic courts, since June 2008;
- An outline of the steps taken by the Government
to meet the Recommendation of the Committee of Ministers on efficient
domestic capacity for rapid execution of judgments of the ECtHR
(CM (2008) 2), adopted in February 2008;
- Submissions on progress in respect of any of
the cases considered in our last Report, including any updated
information provided to the Committee of Ministers;
- A brief report on all adverse human rights judgments,
either from the ECtHR or in respect of declarations of incompatibility
made in our domestic courts, since June 2008, following the model
adopted in the Netherlands and in line with our previous recommendations.[20]
25. We consider the Government's response to these
requests in chapters 2 and 3 below.
26. We are grateful to officials in the Human Rights
Division of the Ministry of Justice, the Registry staff of the
European Court of Human Rights, the staff of the Department for
the Execution of Judgments at the Secretariat of the Committee
of Ministers and the staff of the secretariat to the Legal Affairs
and Human Rights Committee of the Parliamentary Assembly of the
Council of Europe, whose co-operation greatly assisted our work
in the preparation of this Report.
1 "Simply put, the Convention system in Strasbourg
is in danger of asphyxiation": Committee on Legal Affairs
and Human Rights of the Parliamentary Assembly of the Council
of Europe, The future of the Strasbourg Court and enforcement
of ECHR standards: reflections on the Interlaken process (Conclusions
of the Chairperson, Mrs Herta Daubler-Gmelin, of the hearing held
in Paris on 16 December 2009, AS/Jur (2010) 06, para. 9. Back
2
First Report of Session 2004-05, Protocol No. 14 to the European
Convention on Human Rights, HL 8/HC 106. Back
3
These recommendations are Rec (2004) 4 on the ECHR in university
education and professional training; Rec (2004) 5 on the verification
of the compatibility of draft laws, existing laws and administrative
practice with the standards laid down in the ECHR; Rec (2004)
6 on the improvement of domestic remedies. Back
4
Memorandum of the President of the European Court of Human
Rights to the States with a view to Preparing the Interlaken Conference
(3 July 2009); Contribution of the Secretary General of the Council
of Europe to the Preparation of the Interlaken Ministerial Conference,
SG/Inf(2009)20 (18 December 2009); "Prevention of human rights
violations is necessary through systematic implementation of existing
standards at national level", Memorandum of the Commissioner
for Human Rights in view of the High Level Conference on the future
of the European Court of Human Rights, CommDH(2009) 38rev
(7 December 2009); Committee on Legal Affairs and Human Rights
of the Parliamentary Assembly of the Council of Europe, The
future of the Strasbourg Court and enforcement of ECHR standards:
reflections on the Interlaken process, above n. 1. Back
5
Interlaken Declaration, 19 February 2010: http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/europa/euroc.Par.0133.File.tmp/final_en.pdf Back
6
Interlaken Declaration, above n. 5, PP6. Back
7
PACE Resolution 1516 (2006), Implementation of judgments of
the European Court of Human Rights, adopted by the Parliamentary
Assembly on 2 October 2006, at para 22.1. Back
8
See Sixteenth Report of Session 2006-07, Monitoring the Government's
response to Court Judgments finding breaches of Human Rights,
HL 128/HC 728, at paras 4-7 for a more detailed explanation
of the legal obligations which arise following a judgment of the
European Court of Human Rights. Back
9
"The execution of a Strasbourg judgment is often a complex
legal and political process, requiring cumulative and complementary
measures implemented by several state organs": Progress report
of the Rapporteur of the Committee on Legal Affairs and Human
Rights, Implementation of judgments of the European Court of
Human Rights, AS/Jur (2009) 36, para. 14 (Mr. Christos Pourgourides),
September 2009. Back
10
Ministers' Deputies, Implementation of judgments of the European
Court of Human Rights, Parliamentary Assembly Recommendation
1764 (2006), document CM/AS (2007) Rec 1764 final 30 March 2007,
Reply adopted by the Committee of Ministers on 28 March 2007 at
the 991st meeting of the Ministers' Deputies, para.
1. Back
11
See in particular Parliamentary Assembly Resolution 1516 (2006),
above n.7. Back
12
Section 2(1) Human Rights Act 1998. Back
13
See in particular Parliamentary Assembly Resolution 1516 (2006),
Implementation of judgments of the European Court of Human
Rights. Back
14
Our previous Reports are Thirteenth Report of Session 2005-05,
Implementation of Strasbourg Judgments: First Progress Report,
HL 133/HC 954 ("First Monitoring Report"); Sixteenth
Report of Session 2006-07, Monitoring the Government's Response
to Court Judgments Finding Breaches of Human Rights, HL 128/
HC 728 ("Second Monitoring Report"); Thirty-First Report
of Session 2007-08, Monitoring the Government's Response to
Human Rights Judgments: Annual Report 2008, HL 173/ HC 1078
("Third Monitoring Report"). Back
15
Annex, Guidance for Departments on Responding to Court Judgments
on Human Rights. Back
16
Resolution 1516 (2006), above n.7, para 22.1. Back
17
HL Deb, 24 Nov 2008, col GC123. Back
18
See for example, Tenth Report of Session 2008-09, Legislative
Scrutiny: Policing and Crime Bill, HL 68/HC 395, paras 1.106-1.110
(R (Wright) v Secretary of State for Health [2009] UKHL
3) and paras 1.111-1.119 (Marper v UK App. Nos. 30562/04
and 30566/04, 4 December 2008); Twelfth report of Session 2009-10,
Legislative Scrutiny: Crime and Security Bill, HL 65/HC
400, paras 1.06-1.74 - (Marper v UK). Back
19
20 January and 2 December 2009. See evidence published in Second
Report of Session 2009-10, Work of the Committee in 2008-09,
HL 20/HC 249. Back
20
Ev 17 - 18 Back
|
