Enhancing Parliament's role in relation to human rights judgments - Human Rights Joint Committee Contents


2  Judgments of the European Court of Human Rights

The UK's Record on the Implementation of Strasbourg Judgments

27. As we noted in chapter 1, the UK has a generally good record on the implementation of Strasbourg judgments. In our last monitoring report in 2008, however, we expressed disappointment about the number of "leading cases"[21] against the UK awaiting resolution by the Committee of Ministers. We noted that the United Kingdom was in the top ten States for delay in respect of that type of case. We concluded:

    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.[22]

28. In its response to our report, the Government said:

    The statistic that the Joint Committee has selected about the proportion of leading cases waiting for resolution is somewhat misleading. While it is statistically accurate to say that, of 15 United Kingdom cases identified by the Committee of Ministers as leading cases, eight have been subject to supervision for more than five years, it should be noted that, in the Government's understanding, six of these cases are the Northern Ireland cases [a series of six cases dealing with the investigation of allegations of state involvement in killings in Northern Ireland], that have presented particular issues and challenges. The statistic selected by the Joint Committee does not therefore disclose a particular systemic problem on the part of the United Kingdom.[23]

29. In April 2009, the Committee of Ministers published its second annual report on the execution of judgments, covering 2008.[24] We note that the figures provided in respect of the United Kingdom reinforce our earlier observation that the Government has a generally positive record of implementing judgments of the European Court of Human Rights. As the Minister pointed out to us in his letters of 21 May 2009[25] and 30 September 2009,[26] the UK has recently had a significant number of cases discharged from scrutiny by the Committee of Ministers.

30. However, the picture painted in the 2008 statistics is not entirely positive. The UK remains in the top ten countries in respect of the time taken to implement leading cases.[27] In September 2009, the Council of Europe Parliamentary Assembly Rapporteur on the Implementation of Judgments, Christos Pourgourides, expressed his "serious concern" that 36 of the 47 Council of Europe Member States were failing fully to implement judgments of the ECtHR within a reasonable time. Considering judgments which had not been fully implemented within five years or which revealed major structural problems,[28] the rapporteur included the United Kingdom within his list of countries about which he was particularly concerned, listing 13 judgments against the UK.[29] He also singled out the UK along with 10 other countries for special attention, in the light of the Government's approach to certain judgments which had taken a long time to implement (such those relating to as corporal punishment of children and the investigation of the use of lethal force by State agents in Northern Ireland).[30]

31. These differences of emphasis show the difficulty in interpreting the statistics which are available. The bare statistics about the implementation of judgments can be bewildering to the uninitiated. In the past, we have asked the Minister to give oral evidence at least once a year on the implementation of judgments and new judgments of the ECtHR and we have written to him in advance indicating what we would like to cover in questioning. As part of this process in future, it would be helpful if the Government could review the annual statistics provided by both the Court and the Committee of Ministers relating to the United Kingdom and provide an overview of any developments it considers relevant or significant. We consider that such an annual review of the statistical information by the Government would help inform parliamentarians of the work of the United Kingdom to meet its obligations under the Convention and would also enhance our understanding of the Government's position.

32. In the meantime, we welcome the progress which has recently been made by the UK in having a number of cases discharged from scrutiny by the Committee of Ministers. We accept that the UK has a generally good record in fulfilling its obligation to respond fully and in good time to judgments of the European Court of Human Rights. However, there continues to be a small number of cases in respect of which there has been a long and inexcusable delay in implementation by the UK. Although the number of such cases is relatively small compared to the total number of judgments which the UK must implement, and compared to other member states, their significance is disproportionate because of the serious length of the delays in some cases and the importance of the issues at stake.

33. In short, we find it unfortunate that the UK's generally good record on implementation is undermined to a considerable extent by the very lengthy delays in implementation in those cases where the political will to make the necessary changes is lacking. In our view, whatever the challenges thrown up by a judgment of the European Court of Human Rights, a delay of five years or more in implementing such a judgment can never be acceptable. However good the record in the majority of cases, inexcusable delay in some cases undermines the claim that the Government respects the Court's authority and takes seriously its obligation to respond fully and in good time to its judgments. It is also damaging to the UK's ability to take a lead in improving the current backlog at the Court by encouraging other States with far worse records to take their obligations under the Convention more seriously. The UK, with its strong institutional arrangements for supervising the implementation of judgments, is in a good position to lead the way out of the current crisis facing the Court, but leaders must lead by example.

Recent judgments against the United Kingdom

34. During 2009, the European Court of Human Rights delivered 18 judgments in cases brought against the UK, in 14 of which it found at least one violation of the ECHR.[31] The majority of these cases involved the prohibition on discrimination in Article 14 ECHR (seven cases); three cases involved the right to liberty (Article 5); two cases involved the length of proceedings (Article 6); two cases involved the right to respect for private life (Article 8); and one case involved the right to freedom of expression (Article 10).[32]

35. We think it is important for Parliament to be properly informed about the extent to which cases against the UK contribute to the backlog of cases before the Court compared to other member states. The bulk of the almost 120,000 cases pending before the Court at the end of 2009 come from 10 States (Russia, Turkey, Ukraine, Romania, Italy, Poland, Georgia, Moldova, Serbia, and Slovenia). The number of cases pending against the UK, by comparison, was 1,690. The Court publishes statistics on the number of allocated applications by population. The figures for applications from the UK during 2006-2009, show that the number of applications from the UK by population is relatively low and fairly consistent.[33]

36. For the purposes of this report we have considered all judgments against the UK which became final between May 2008 and December 2009. In July 2009, we wrote to the Secretary of State for Justice and Lord Chancellor, the Rt Hon Jack Straw MP, indicating that we intended to examine a number of cases.[34] In each of these cases, our initial consideration indicated that some change in law, policy or practice might be needed to avoid the risk of further breaches of the Convention in future. We published a press notice which highlighted each of these issues in which we sought submissions from civil society. We consider a number of these issues in detail below.

SECRET EVIDENCE AND THE DETENTION OF FOREIGN TERRORISM SUSPECTS (A V UK)

37. In A v UK,[35] the Grand Chamber unanimously held that there had been a violation of the right in Article 5(4) ECHR to have the lawfulness of detention decided by a court in the cases of four of those who were detained under Part IV of the Anti-Terrorism, Crime and Security Act 2001. The Court held that the evidence on which the state relied to support the principal allegations made against the four individuals was largely to be found in the closed material and was therefore not disclosed to the individuals or their lawyers. It said that special advocates could not perform their function, of safeguarding the detainee's interests during closed hearings, in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. There was a violation of the right to a judicial determination of the legality of detention because the four detainees were not in a position effectively to challenge the allegations against them.[36]

38. The Government's view is that no further general measures are necessary to implement this judgment, because the legal regime found by the European Court of Human Rights to have violated the ECHR (Part IV of the Anti-Terrorism Crime and Security Act 2001 ("the ATCSA 2001")) has already been repealed.[37] We do not accept the Government's argument that no further general measures are required. Part IV ATCSA 2001 was replaced by the control order regime in ss. 1-9 of the Prevention of Terrorism Act 2005 and that regime also involves secret evidence and special advocates, modelled closely on the regime which was the source of the violation in A v UK. Therefore, although A v UK concerned the 2001 Act not the 2005 Act, it is clear to us that the generality of its reasoning about the potential unfairness caused by secret evidence requires measures also to be taken in relation to control orders in order to prevent future violations.

39. In the subsequent case of AF, the House of Lords held that the finding of a violation of Article 5(4) ECHR in A v UK was determinative of the similar issue which had arisen in the control order context, namely whether an individual subject to a control order was entitled to know at the very least the gist of the case against him. The reasoning in A v UK has therefore been applied to the control order context, at least in relation to the sorts of stringent control orders that were in issue in AF. As we explained in our recent report on control orders,[38] however, it is not yet clear whether the reasoning in A v UK will be applied to so-called "light touch control orders" which contain less onerous conditions on the controlee. The Government in the meantime is refusing to bring forward any changes to the legislative framework or rules which, in our view, would be the most reliable way to guard against the risk of future violations. We repeat our recommendation, made in previous reports, that in order to give full effect to the decision of the Court in A v UK, the control orders legislation be amended to require the disclosure to the controlled person of the essence of the case against him.

40. We also draw attention in this context to our consideration of the growing use of secret evidence and special advocates in our report on Counter-Terrorism Policy and Human Rights: Bringing Human Rights Back In.[39] In that report we pointed out that there are now 21 contexts in which secret evidence and special advocates are or may be used, for at least some of which the decision of the Strasbourg Court in A v UK will have direct implications. We urge the Government not to take a narrow approach to the implementation of the judgment in A v UK and repeat our recommendation in our report on counter-terrorism, that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates in all contexts, in light of the judgments in A v UK and AF, to ascertain whether their use is compatible with the minimum requirements of the right to a fair hearing, and report to Parliament on the outcome of that review.

RETENTION OF DNA PROFILES AND CELLULAR SAMPLES (S & MARPER V UK)

41. In S and Marper v UK, the ECtHR concluded that the retention of fingerprint and DNA samples following discontinuation of proceedings or acquittal violated Article 8 ECHR (the right to respect for private life). In a strongly worded unanimous judgment of the Grand Chamber, the Court held that:

    The blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.[40]

42. Shortly after the judgment, and subsequently, we corresponded with the Home Secretary and others on the Government's approach to implementing the judgment. We published our correspondence in November 2009 before the issue was debated in Parliament during the parliamentary stages of the Policing and Crime Bill.[41] We have continued to monitor closely the Government's approach to this significant decision. We considered the Government's proposals in detail in our recent legislative scrutiny report on the Crime and Security Bill.[42]

43. The Government consulted on proposed changes to the retention of DNA and fingerprints.[43] It initially proposed to use secondary legislation under the then Policing and Crime Bill to implement the judgment, a position which we criticised during our scrutiny of the Bill.[44] The Government subsequently withdrew these clauses in the House of Lords. During the debate, Lord Brett stated:

    Although we remain committed to implementing the judgment of the European Court of Human Rights at the earliest opportunity, we accept the concerns raised by the Committee and other stakeholders and we accept the strength of feeling in your Lordships' House. Given that strength of feeling, we feel it is important to move forward with consensus, if possible. We therefore accept the view that this issue is more appropriately dealt with in primary legislation and have decided to invite Parliament to remove Clauses 96 to 98. As soon as parliamentary time allows, we will bring forward appropriate measures which will place the detail of the retention periods in primary legislation, allowing full debate and scrutiny of the issue in both Houses.[45]

44. The Home Secretary subsequently announced that the Government proposed to continue to hold the DNA profiles of all those convicted of crimes indefinitely and to retain the DNA profiles of those arrested but not charged for six years (except for children, where the retention period will generally be three years).[46] The Crime and Security Bill (clauses 14 to 20), introduced in the House of Commons on 19 November 2009, contains the relevant provisions. It substitutes a new section 64 and subsequent sections into the Police and Criminal Evidence Act 1984. Section 64 currently allows for samples to be retained indefinitely even after they have fulfilled their original retention purpose. The new clauses propose to impose a time limit for destroying samples once they have been loaded onto the national DNA database and have served the investigative purpose for which they were taken. They set out different retention periods depending on the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted and, if so, whether it is a first conviction.

45. The Home Secretary recently confirmed to us that the Government has not issued guidance to the police on how to deal with DNA samples which have been collected since the Strasbourg decision and before the enactment of any new legislation.[47] However, during the summer, the Association of Chief Police Officers wrote to all Chief Constables stating:

    … the current retention policy on fingerprints and DNA remains unchanged. Individuals who consider that they fall within the ruling in the S & Marper case should await the full response to the ruling by Government prior to seeking advice and/or action from the Police Service in order to address their personal issue on the matter.

    ACPO strongly advise that decisions to remove records should not be based on proposed changes. It is therefore vitally important that any applications for removals of records should be considered against current legislation and the Retention Guidelines Exceptional Case Procedure.[48]

46. On 24 November 2009, the Human Genetics Commission, the Government's independent advisers on developments in human genetics, produced a report concluding:

a)  There is insufficient evidence at present to be able to say what benefits are derived from holding DNA profiles from different people.

b)  There needs to be very careful consideration of the equality impact of the database and any proposed changes to it - there are concerns about the potential for discrimination against certain groups in society, particularly young black men.

c)  There needs to be a clear and independent appeals procedure for people who have not been convicted and who want their DNA removed.

d)  All police officers should have their own DNA collected as a condition of employment

e)  The UK needs to make progress in working with the rest of Europe on exchanging DNA information and standardising procedures.[49]

47. When the Human Rights Minister gave evidence to us in December, we asked him about S and Marper. We received a letter from the Human Rights Minister on 22 January 2010, confirming that the Government considered that its proposals in the Crime and Security Bill were adequate to remove the breach identified by the Grand Chamber and providing a further explanation of the Government's approach.[50]

48. We have received a number of submissions from civil society expressing concern at the Government's approach to implementing S and Marper. Their concerns focus on the Government's decision initially to implement the decision by way of secondary legislation, the position of people who have not been convicted, children and young people, the approach to those convicted of minor offences and the over-representation of people from BME backgrounds.[51] We consider these concerns in our recent report on the Crime and Security Bill.

49. At its meeting December 2009, the Committee of Ministers considered the steps that the UK has taken to date to implement the ECtHR's judgment. It welcomed the steps taken by the UK to delete information on the DNA database relating to children under the age of 10 years; and that the Government proposed that all samples should be retained for a maximum of six months from the date on which they were obtained and that time limits for the retention of fingerprints and DNA profiles would be introduced, with special provisions for minors. However, it also noted:

    […] that a number of important questions remain as to how the revised proposals take into account certain factors held by the European Court to be of relevance for assessing the proportionality of the interference with private life here at issue, most importantly the gravity of the offence with which the individual was originally suspected, and the interests deriving from the presumption of innocence (see paragraphs 118 - 123 of the judgment), and requested, accordingly, that the Secretariat rapidly clarify such questions bilaterally with the United Kingdom authorities.

    And:

    […] that further information was also necessary as regards the institution of an independent review of the justification for retention in individual cases.[52]

50. It decided to consider the case again at its meeting in March 2010. On 8 March 2010, the decisions taken at this meeting were published. The Committee of Ministers welcomed the Government's efforts in relation to its bilateral consultations on the implementation of this case, but noted that despite the progress of these consultations had "not so far permitted arrival at a common understanding" as to how far the guidance of the ECtHR was reflected in the Government's current proposals. The Committee of Ministers specifically noted that disputes had arisen over the value of the research produced by the Government and the extent to which the Government's proposals met the guidance of the Grand Chamber on the need for independent review. Their decision particularly noted our report on the Crime and Security Bill and the advice of the Information Commissioner in his submission to the Public Bill Committee. The Committee has stressed the need for the Government to resolve the outstanding issues identified between the Government's proposals and the guidance of the ECtHR. They consider that particular urgency is required given the passage of the Crime and Security Bill through Parliament. They ask for the Government to convey any new developments and information to the Committee rapidly in an appropriate form, also ensuring that that information is accessible to national decision makers. They will consider this case again in June 2010, after the general election.[53]

51. When we considered the Government's proposals in our recent report on the Crime and Security Bill,[54] we concluded, in short, that the Government's approach was disproportionate and likely to lead to further breaches of Article 8 ECHR. We refer readers to our conclusions and recommendations in that report.

52. The Government's response to this case has been inadequate both in terms of the approach it has adopted to implementation and in relation to the substance of the proposals in the Crime and Security Bill. While we welcome the Government's decision to act with haste, we are concerned that in this case, the Government's priority has not been to remove the incompatibility identified by the European Court of Human Rights, but to ensure the continued operation of the National DNA Database with as few changes as possible to the its original policy. We have encouraged the Government on a number of occasions to make greater use of the remedial order process. The HRA 1998 specifically envisaged that the Government might wish to use secondary legislation to provide a speedy response to adverse human rights judgments. In our view, the Government's original proposal in this case - that Parliament give a 'blank cheque' in secondary legislation for future reform of the taking and retention of DNA - was inappropriate. We welcome the Government acceptance that an effective Parliamentary debate on the substance of its proposals is necessary.

53. There are a number of positive aspects to the Government's proposals in the Crime and Security Bill, including the proposal to destroy all DNA samples within 6 months or as soon as a profile has been obtained. However, in our view, the proposal to continue to retain the DNA profiles of innocent people and children for up to 6 years irrespective of the seriousness of the offence concerned and without any provision for independent oversight, is disproportionate and arbitrary and likely to lead to further breaches of the ECHR.

54. It is disappointing that - except in relation to the DNA samples and profiles of children under 10 years old - little thought appears to have been given to transitional measures. We are concerned by the direction from ACPO to individual chief constables to continue their prior practice in respect of retention and destruction of samples, regardless of the decision of the Grand Chamber. It appears to have informed individual officers that, despite widespread publicity surrounding the decision, retention of DNA samples and profiles taken from innocent people should continue albeit that such retention might be in breach of the individual's rights to respect for private life. Given that retention is essentially a matter of discretion under the current legal framework, rather than a statutory obligation, we question whether the ACPO guidance to chief constables is compatible not only with Article 8 ECHR but also with the UK's obligation to abide by the judgment in S & Marper under Article 46 of the Convention.

55. We also remain concerned that the Government has not yet published any clear timetable for dealing with legacy samples. After the decision in S & Marper, it is clear that some individuals' DNA is currently retained in breach of the ECHR, as part of the National DNA Database. Without review, this continued retention is likely to lead to further litigation with associated costs to individuals and to the taxpayer.

56. In our report on the Crime and Security Bill, we noted that the Minister had openly admitted during the Commons Public Bill Committee that the Government intended to "push the boundaries" of the judgment in S & Marper. The Minister explained the Government's approach:

    We have pushed the envelope as far as we can, but we believe that we can secure the support of the Committee of Ministers and comply with our obligations under human rights legislation.[55]

57. In our report, we criticised this approach:

    We consider that it is unacceptable that the Government appears to have taken a very narrow approach to the judgment by purposely "pushing the boundaries" of the Court's decision in order to maintain the main thrust of its original policy on the retention of DNA.[56]

    While the Government waits for a new case where the Court can consider whether it has "pushed" the boundaries in the Marper judgment or whether it has broken them, further violations of individual rights will accrue and further litigation will follow with additional cost to the taxpayer.[57]

58. We do not share the Minister's confidence that he will be able to persuade his Ministerial colleagues on the Committee of Ministers that the United Kingdom has effectively removed the breach identified by the Court in S & Marper. The responsibility under Article 46 of the Convention includes the responsibility to remove the risk of future, repeat violations. In our view, the Government's decision to purposely "push the envelope" in this case creates the risk of further violations of the Convention and fails to satisfy its obligations under Article 46. In any event, even if the Government is able to persuade its colleagues on the Committee of Ministers to accept its approach, we consider that there is a significant risk that the proposals in the Crime and Security Bill would lead to further litigation both at home and at the European Court of Human Rights and a significant risk of further violations of the right to respect for private life by the United Kingdom.

SUMMARY POSSESSION OF PEOPLE'S HOMES (MCCANN V UK)

59. On 13 May 2008, the ECtHR gave judgment in McCann v United Kingdom, holding that the lack of procedural safeguards in summary possession proceedings violated the right to respect for the home (Article 8 ECHR). The Court stated:

    The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.[58]

60. Shortly after the decision, the Housing and Regeneration Bill was considered by the House of Lords. Baroness Hamwee tabled an amendment which sought to remedy the incompatibility identified in the McCann judgment. Baroness Andrews, for the Government, opposed the amendment on three grounds. First, domestic courts were already required to take ECtHR jurisprudence into account under Section 2(1) of the HRA. Secondly, the Strasbourg Court accepted that the proportionality defence would only be successful in exceptional cases and, according to the Government, the proposed amendment would complicate and delay the vast majority of cases. Thirdly, judgment was pending from the House of Lords in the related case of Doherty.[59] The amendment was withdrawn.

61. On 30 July 2008, the House of Lords gave judgment in another case concerning a local authority's right to summary possession of a site which had been the home of a Gypsy family for 17 years, Doherty v Birmingham City Council.[60] The Secretary of State intervened in the case arguing, in the light of the ECtHR's decision in McCann, that the House of Lords should follow the approach of the minority of the House of Lords in Kay v London Borough of Lambeth[61]: that is, that in exceptional cases, the occupier could be permitted to argue that his individual personal circumstances made the application of the right to summary possession disproportionate in the particular circumstances of his case, and therefore in breach of Article 8 ECHR.[62] The House of Lords in Doherty, however, disagreed with the Secretary of State's argument. It held that the decision of the European Court of Human Rights in McCann required a slight modification of the approach taken by the majority of the House of Lords in Kay, which would allow the court hearing the application for summary possession to consider whether the local authority's decision to seek summary possession was reasonable (as opposed to proportionate), having regard to the length of time that the family had lived on the site.

62. The ECtHR will shortly consider its position again in the application of Kay v United Kingdom.[63] In this case, the applicants will raise very similar arguments to those in McCann and effectively seek to overturn the earlier judgment of the House of Lords that a summary process for possession was compatible with Article 8 ECHR.

63. In the light of the ECtHR judgment in McCann and its consideration by Parliament, we wrote to the Rt Hon John Healey MP, Minister for Housing, to ask for his response to a number of questions.[64] The Minister provided a helpfully full response.[65]

64. We first asked what steps the Government intended to take to give effect to the ECtHR's judgment in McCann. The Minister informed us that the Government's view was that the case should now be closed by the Committee of Ministers. Alternatively, the Government had suggested if it were preferable to await the ECtHR's decision in Kay v United Kingdom, it would take no further steps until judgment was given. The Committee of Ministers subsequently decided to await further information from the Government on any other measures taken or envisaged, pending the outcome of Kay. In its latest communication to the Committee of Ministers, the Government reiterated that it would take no further steps regarding implementation until judgment was given in Kay v United Kingdom.

65. We also asked whether the Government proposed to use primary legislation to give effect to the ECtHR's judgment and why the Government had chosen not to use the remedial order process. In response, the Minister stated that the Government did not consider that legislation was required to give effect to the judgment, as the House of Lords in the subsequent case of Doherty had taken McCann into account, by recognising that the court in summary possession proceedings could consider whether it was reasonable to seek possession of land having regard to how long it had been someone's home, and a Convention-compatible approach was now being taken by the courts in further cases under the common law. However, he stated that if the ECtHR found against the Government in Kay, it would consider how best to implement the decision, including by primary legislation or remedial order.

66. We also asked the Government for the evidence on which it based its conclusion that legislative amendment in the light of McCann would complicate and delay the vast majority of cases.[66] The Minister told us:

    To allow a merits review to take place in all cases would undermine that system and amount to giving protection to security of tenure to all occupiers of a property of a public authority landlord. It seems inevitable that, if arguments were to be heard on Article 8 as a matter of course, the majority of cases would take longer to be heard. Part of the rationale for the existing system, is that by creating a clear right to repossess properties in certain circumstances, housing authorities can efficiently and cost-effectively carry out their functions in allocating housing to those most in need. The House of Lords in Kay and Doherty were of that view and, for that reason sought to impose parameters and guidelines, to achieve a measure of legal certainty and to prevent Article 8 arguments being raised in every possession case.

67. Finally, we asked whether, given the House of Lords' decision in Doherty, the Government remained of the view that the domestic courts could take the decision in McCann into account. The Minister replied that the Government was satisfied that Doherty fully took into account the decision in McCann, but that if a lower court considered domestic case-law to be inconsistent with the ECtHR, it could say so and give leave to appeal to a higher court to determine the matter.

68. We are concerned about the Government's approach to the decision of the Court in this case. The decision in McCann is the latest in a series of decisions from the European Court of Human Rights which have considered the compatibility of summary processes for possession with the right to respect for home, private and family life guaranteed by Article 8 ECHR.[67] Despite these earlier decisions, the domestic courts, and in particular the House of Lords, have continued to disagree with the interpretation of Article 8 of the Convention adopted by the ECtHR.[68] The Government now rely on a later interpretation adopted by the domestic courts to argue that there is no need for reform of the law, despite the clear decision of the ECtHR in McCann.

69. We query the value of this repeat litigation on what we consider to be a relatively straightforward legal point. The European Court of Human Rights has recommended that before a person is evicted from a property, they must have the opportunity to be able to raise any arguable Article 8 ECHR claim before an independent and impartial tribunal. The Government (and domestic courts) consider that allowing an Article 8 defence to be raised in all possession cases would be administratively difficult for public authority landlords and would increase the time and costs involved in securing possession in every case. We question this assumption, since the decision in McCann only requires that there be an opportunity to have a hearing on the Article 8 issue in those cases where it is arguable that to grant possession would be a disproportionate interference with a person's right to respect for their home. This will be far from every case.

70. Furthermore, without action by the Government, domestic courts remain bound by the decisions of the House of Lords in McCann and Doherty, that express consideration of the proportionality of any interference with the right to respect for home in Article 8 ECHR is not required.[69] We think it is predictable that this position will not find favour with the European Court of Human Rights. We consider that the Minister should be required to explain why the costs of resisting further litigation in the case of Kay v United Kingdom on this repeat issue are justified. He should also explain why in the Government's view unmeritorious Article 8 ECHR defences to possession claims could not be adequately dealt with in the way that courts usually deal robustly with unmeritorious Convention claims, at the outset of the proceedings, and with the help of careful guidance to public authorities and to lower courts on the requirements of Article 8 ECHR in possession cases.

71. We are concerned that the issue of respect for people's homes in summary possession cases remains unresolved, despite numerous decisions of the House of Lords and the European Court of Human Rights. We welcome the Government's acknowledgment that should the European Court of Human Rights decide again, in the pending case of Kay v United Kingdom, that domestic law is incompatible with Article 8 ECHR, it will have to revisit the question of whether a remedial order or legislation is necessary to remove the breach identified by the Court. Unless the European Court of Human Rights departs entirely from its reasoning in the case of McCann, we consider that the Government will inevitably need to revisit the breach identified in that case. We question whether it would not have been more cost effective to reform the summary possession process rather than to pursue further domestic and European litigation. It would be prudent for the Government in the meantime to consider how the process might be reformed to give effect to the decision in McCann in the event that the decision in Kay goes against it, in order to avoid any further delay following the forthcoming decision in Kay v UK.

INTERCEPTION OF COMMUNICATIONS (LIBERTY V UK)

72. In Liberty and others v United Kingdom the ECtHR found that the interception of the applicants' communications under the Interception of Communications Act 1985 (ICA) (repealed by the Regulation of Investigatory Powers Act 2000 (RIPA)) breached the right to respect for private life and correspondence (Article 8 ECHR).[70] It held:

    The Court does not consider that the domestic law at the relevant time indicated with sufficient clarity so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court's caselaw, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicant's rights under Article 8 was not, therefore, "in accordance with the law".[71]

73. We wrote to the Home Secretary on 11 June 2009 to ask him to respond to four questions relating to the UK's implementation of the judgment in Liberty. Firstly, we asked what steps, if any, the Government intends to take to give effect to the Court's decision. More specifically, we asked whether the Government is satisfied that the legal deficiencies identified by the ECtHR have been rectified by repeal of the ICA and enactment of RIPA and its Code of Practice. We also asked, in particular, whether the Government was satisfied that publicly accessible information on the current procedure for "selecting for examination, sharing, storing and destroying intercepted material" is available and where it can be located. Finally, we requested information on the extent to which work by the Government following on from its consultation on RIPA, aims to implement the ECtHR's judgment in this case.[72]

74. The Home Secretary replied on 14 July 2009.[73] He noted that the ICA had been repealed, that the main purpose of RIPA was "to ensure that the various investigatory powers encompassed within the Act are used in accordance with human rights" and that the Government is satisfied that RIPA has cured the deficiencies identified by the Court in Liberty and others. He stated that the Government proposed to make a small number of minor changes to the Interception Code of Practice.

75. The Committee of Ministers considered this case on 17 March 2009 and 15 September 2009. The UK Government has provided information to the Committee of Ministers which mirrors the information provided to us by the Home Secretary. The Committee of Ministers notes that whether interception of communications under RIPA is in accordance with the Convention is currently before the ECtHR in the case of Kennedy v United Kingdom[74] and that the Committee awaits information on any other measures taken or planned by the UK, pending the outcome of Kennedy.

76. In Liberty's evidence to us regarding this judgment, it states:

    RIPA, enacted soon after the HRA, was intended to introduce a more human-rights friendly framework for targeted surveillance. Although it was a step forward, the Act attempted to remain faithful to those that had passed before it and the result is a Byzantine piece of legislation that is as confusing as it is insidious.[75]

77. Liberty said that their key concerns regarding RIPA included the lack of judicial oversight (particularly for the more intrusive forms of surveillance), the circumstances in which RIPA powers can be granted, and the fact that over 800 public bodies have access to targeted surveillance powers.[76]

78. The regime which has been set up under RIPA closely mirrors the ICA regime which was the subject of the Court's criticism in Liberty. The Court made clear that greater transparency and accountability for warrants which are issued and executed is necessary in order to comply with the Convention and that the current review by the Interception of Communications Commissioner is no substitute for a proper framework in primary legislation of checks and balances.[77] The Court's judgment refers to its earlier decision in Weber v Germany[78] which concerned the compatibility of the German G10 Act 2001 with Article 8 ECHR and determined that the supervisory measures in Germany met the requirements of Article 8. These include a six monthly report to Parliament on the implementation of the Act by the Federal Minister; an independent G10 Commission which the Minister must notify, and whose consent must be obtained, before commencing any planned surveillance operations, and which must inform the target of any monitoring once doing so would no longer jeopardise the operation; and provisions governing the use of search terms by the authorities.[79] In the UK, such a rigorous system for reporting and monitoring does not currently exist. For example, the Interception of Communications Commissioner reports to the Prime Minister, not to Parliament, and no system for individual notification exists.

79. We note the similarities between certain features of the statutory regime which was in force at the time of the judgment in Liberty v UK (IoCA) and the statutory regime which is now in force (RIPA). We therefore consider this to be a case in which full implementation of the judgment of the Court requires the Government to consider general measures which go beyond the repeal of the statutory regime that was in force at the time. We note that compatibility of the RIPA regime will be the subject of a further judgment of the European Court of Human Rights in the forthcoming case of Kennedy. In the meantime we urge the Government to give serious consideration to ways in which it could amend the system for supervising the interception of communications to provide greater safeguards for individual rights. It should consider, for example, the powers and reporting of the Interception of Communications Commissioner and the information which the Minister routinely provides to Parliament on surveillance and monitoring; the notification of targets of monitoring and surveillance operations in the future, once those operations have ceased and their products will not be harmed by disclosure; and defining the phrase "national security" in RIPA, so as to provide greater specificity for those seeking and granting warrants as to what threats would and would not be considered sufficient to permit surveillance.

PRISONERS' CORRESPONDENCE WITH MEDICAL PRACTITIONERS (SZULUK V UK)

80. In Szuluk v UK, the applicant complained that the monitoring of a prisoner's medical correspondence with his doctor was a breach of the Article 8 ECHR right to respect for correspondence. The ECtHR held:

    In light of the severity of the applicant's medical condition, the Court considers that uninhibited correspondence with a medical specialist in the context of a prisoner suffering from a life-threatening condition should be afforded no less protection than the correspondence between a prisoner and an MP.[80]

81. It concluded that "the monitoring of the applicant's medical correspondence, limited as it was to the prison medical officer, did not strike a fair balance with his right to respect for his correspondence in the circumstances".[81] Since the events which gave rise to Mr Szuluk's complaint, the relevant law has changed (Prison Service Order 4411 is relevant) and the NHS now provides medical care to prisoners.

82. On 13 October 2009, we wrote to the Secretary of State for Justice, the Rt Hon Jack Straw MP, to ask what steps the Government proposed to take to implement the decision in Szuluk. We also asked whether the Government proposed to revise PSO 4411, Chapter 5, to make clear that correspondence between a prisoner and a medical professional should be subject to confidential handling arrangements, similar to those applicable to legal advisors, Members of Parliament and the then Healthcare Commission, and if so how. Finally, we sought the Government's response on whether it considered that any amendments to the Prison Rules, Prison Service Instructions or other Prison Service Orders are necessary to ensure compliance with Article 8 ECHR in relation to correspondence between a prisoner and his or her medical advisor.[82]

83. The Secretary of State replied on 8 November 2009.[83] He informed us that amendments would be made to Prison Rule 35A, Young Offender Institution Rule 11 and Prison Service Orders 4411 (Prisoner Communications) and 3050 (Continuity of Healthcare for Prisoners) to make provision for correspondence between prisoners and a treating medical practitioner (in cases where there is a diagnosed life threatening illness) to be subject to confidential handling arrangements. Guidance in PSO 4411 and 3050 would support these changes but, according to the Justice Secretary, no other changes to Prison Service Orders needed to be made to give effect to the judgment.

84. In the Government's submission to the Committee of Ministers of September 2009, it points out that the judgment has been publicised in The Times and other legal databases and disseminated to the Prison Service. It suggested that no further general measures were necessary and that the case should be closed.

85. We note that a statutory instrument was laid before Parliament on 25 November 2009 and came into force on 1 January 2010 amending Rule 20 of the Prison Rules 1999 and Rule 27 of the Young Offender Institution Rules 2000 to provide that a prisoner may correspond confidentially with a registered medical practitioner who has treated the prisoner for a life threatening condition, unless the Prison Governor has "reasonable cause" to believe that the contents of the correspondence do not relate to the treatment of that condition.[84]

86. We welcome the Government's swift approach to respond to this judgment. We suggest that our successor Committee might consider the wider issue of prisoners' correspondence with medical practitioners.

CARE PROCEEDINGS (RK AND AK V UK)

87. In RK and AK v United Kingdom, the applicants argued that they did not have an effective remedy for their complaints following the unnecessary removal of their child from their care, after child protection issues arose concerning injuries to their child. Their child was subsequently discovered to have brittle bone disease and was returned to them. The events occurred before the coming into force of the Human Rights Act 1998 and the applicants were therefore unable to bring a claim for a breach of the right to respect for family life (Article 8 ECHR). The ECtHR held that there had been a violation of Article 13 (the right to an effective remedy) as:

    The applicants should have had available to them a means of claiming that the local authority's handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage. Such redress was not available at the relevant time.[85]

88. We wrote to the Rt Hon Dawn Primarolo MP, the Minister of State for Children, Young People and Families asking for her response to a number of questions.[86] Firstly, we asked how many current cases the Government is aware of which involve allegations of negligence and/or breaches of the Convention which predate the coming into force of the Human Rights Act, and asked for a breakdown of those cases by level of court. In reply, the Minister told us there is no centralised database of all domestic litigation in which the Government is involved, but that the Department for Children Schools and Families is not aware of any domestic cases raising this issue. She acknowledged that there were a small number of applications raising a similar point before the ECtHR.

89. Secondly, we asked whether the Government was taking steps to settle claims where there was a high probability that the ECtHR would find the UK Government to be in breach of the right to an effective remedy. We suggested that settlements in such cases would avoid the cost and inconvenience to both parties of pursuing a case to Strasbourg. The Minister replied as follows:

    The action taken by the Government in each piece of litigation in which it is involved is based on the individual circumstances of the case together with legal advice. While in principle the Government is usually prepared to consider settlement in cases of this type it is not appropriate for it to comment on the solutions currently being pursued in individual cases.[87]

90. Thirdly, we requested details of the steps that the Government has taken to ensure that the implications of the judgment for local authorities and child protection agencies are widely known. The Minister replied that the ECtHR did not find a breach of the right to respect for family life (Article 8 ECHR). Although acknowledging the Court's decision that there had been a breach of the right to an effective remedy (Article 13 ECHR), the Minister told us that the Human Rights Act now provides for a means of redress in cases like this, which satisfied the UK's obligations under Article 13. She suggested that no further general measures were required.

91. Finally, we asked the Minister whether the Government had advised local authorities and their lawyers not to seek to strike out similar claims to those made in RK and AK and if not, why not. She replied "it is not clear what the JCHR consider would constitute 'similar cases'", noting that every case has to be considered on its own merits. She stated:

    The UK Government rarely seeks to strike out domestic cases unless they appear to be fundamentally flawed, and to have no merit. Nor would it seek to advise a local authority on whether to seek a strike out. Local authorities must form their own views in the circumstances of each case in question.[88]

92. As the Minister rightly states, the enactment of the Human Rights Act makes cases like RK and AK less likely to need to go to the Strasbourg Court in the future, as applicants should be able to seek a remedy for their grievance in the UK. However, it appears that there are still some historic cases in the system which involve events which occurred before the coming into force of the Human Rights Act. Whilst we accept that the enactment of the Human Rights Act provides redress for cases where the events occurred after the Act came into force (2 October 2000), which is likely to be compatible with Article 13, no such mechanism exists for pre October 2000 cases. In such cases, the UK will, almost inevitably, be found to be in breach of the requirement to ensure an effective remedy under Article 13, irrespective of whether or not the Court finds a violation of a substantive Article of the Convention. In our view, where a finding of a violation is inevitable, the UK should actively pursue settlement negotiations, in order to relieve the Strasbourg Court of the burden of dealing with repetitive cases and to save both the applicant and the Government, the cost and inconvenience of pursuing the litigation in Strasbourg.

LENGTH OF CRIMINAL CONFISCATION PROCEEDINGS (BULLEN AND SONEJI V UK)

93. The case of Bullen and Soneji v UK concerned complaints by two applicants that the length of criminal proceedings against them, including confiscation proceedings, had contravened the reasonable time requirements of Article 6(1) ECHR. The Court found a breach of Article 6(1) holding:

    In light of the importance of what was at stake for the applicants in this case and without discounting the complexity of the legal issue in question, the Court finds the periods of delay attributable to the State, when taken cumulatively, to be unreasonably long and in breach of the reasonable time requirement as provided by Article 6 of the Convention.[89]

94. We wrote to the Home Secretary, the Rt Hon Alan Johnson MP, on 8 July 2009, seeking his response to two questions. Firstly, we asked what steps, if any, the Government intended to take to give effect to the ECtHR's decision. Secondly, we asked whether the Government proposed to revise guidance and training to relevant authorities such as prosecutors and the courts to ensure that future proceedings meet the reasonable time requirement in Article 6(1).[90]

95. The Home Secretary replied that the Crown Prosecution Service and the Revenue and Customs Prosecution Office have disseminated the judgment to prosecutors and have issued guidance reminding prosecutors of "the need to make progress in confiscation proceedings, to comply with court directions on timing and to have regard to the reasonable time requirement in Article 6 of the ECHR". He also noted that the National Policing Improvement Agency has issued guidance to Accredited Financial Investigators in the police service and other agencies reminding them of the need to be ready to proceed with confiscation hearings as soon as possible. The Home Secretary also told us that the Government and the judiciary were discussing the most appropriate way to implement the judgment, which included issuing a practice direction or circulars to court staff.[91]

96. The first and only discussion of this case by the Committee of Ministers was on 15 September 2009. In addition to the above information, the Committee of Ministers noted that the case had been publicised in The Times and other journals.

97. The breach of the Convention found in the case of Bullen and Soneji appears to have resulted from a failure of practice rather than law. It is therefore right that the Government should seek to ensure that all those responsible for prosecuting or adjudicating upon criminal trials and confiscation proceedings are aware of their duties under Article 6 ECHR to ensure a fair trial within a reasonable time. We are satisfied that the UK is on the right track in respect of its implementation of this judgment, provided that it acts on the commitments for further action that it has made to the Committee of Ministers. We also recommend that the Ministry of Justice, Her Majesty's Courts Service and the relevant prosecuting authorities closely monitor practice in this area to ensure that similar delays do not occur in the future.

Delays in implementation

98. In this section, we follow up progress made in dealing with the issues raised by the judgments considered in our last Report. We do not propose to set out the facts in each of these cases at any length; this section should be read together with our previous Report.

PRISONERS' VOTING RIGHTS (HIRST V UK)

99. We have reported on the issue of prisoners voting rights on numerous occasions over the course of this Parliament. In October 2005, the Grand Chamber ruled that the current ban on prisoners' voting in the UK is disproportionate and incompatible with the Convention right to participate in free and fair elections (guaranteed by Article 3 of Protocol 1 ECHR).[92] The Grand Chamber were particularly concerned that the relevant statutory provision - Section 3, Representation of the People Act 1983 - has never been subject to a full parliamentary debate. The statutory ban on prisoner voting has subsequently been declared incompatible with Convention rights under Section 4 of the Human Rights Act 1998 by the Court of Session in Scotland.[93]

100. We last reported on this case in our report on the Political Parties and Elections Bill, where we revisited our two previous reports on human rights judgments, regretting the delay in the Government's response to this judgment.[94] We concluded:

    It is unacceptable that the Government continues to delay on this issue. The judgment of the Grand Chamber was clear that the blanket ban on prisoners voting in our current electoral law is incompatible with the right to participate in free elections.[95]

101. Since our last report, the High Court has considered a further challenge by a prisoner to the blanket ban on prisoner voting.[96] Three further applications are pending before the European Court of Human Rights.[97]

102. The Government published its second stage consultation on the issue of prisoners' voting on 8 April 2009. The Government wrote to the Committee of Ministers in April 2009, summarising the Government's position and introducing the second stage of consultation.[98]

103. The Government's consultation puts forward four options, each based on the duration of sentence being served by a prisoner. This would mean all prisoners crossing a specific custodial threshold would automatically be deprived of the right to vote. Only four respondents to the first stage consultation argued in favour of a system of enfranchisement based on duration of sentence.

104. In their evidence, Liberty told us they had concerns about the Government's approach to its second stage consultation:

    It has now been more than four years since the ECtHR ruled that UK law was unlawful yet no changes have yet been made. The first consultation paper rejected outright before receiving any responses the enfranchisement of all prisoners. It only proposed more minor reforms, saying explicitly that full enfranchisement was not an option. This position has been maintained in the second stage consultation which merely proposes allowing prisoners sentenced to between one and four years to continue to hold the right to vote. Liberty believes that all prisoners should retain the right to vote and the Government's failure to implement the ECtHR's decision reflects a lack of political will manifested in a serious of delaying tactics, including a flawed and protracted consultation exercise.[99]

105. We wrote to the Minister to ask for further information on the Government's view that the proposals in the second stage consultation were proportionate.[100] We referred to the guidance of the Grand Chamber:

    [The standard of tolerance required by the Convention] does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol 1, which enshrines the individual's capacity to influence the composition of the lawmaking power, does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct has threatened to undermine the rule of law or democratic foundations […] The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.

106. The Minister referred us back to the second consultation paper and reiterated:

    Therefore: "The Government has reached the preliminary conclusion that to meet the terms of the judgment a limited enfranchisement of convicted prisoners in custody must take place, with eligibility determined on the basis of sentence length."

    Regarding the decision not to enfranchise prisoners sentenced to four years and over, the consultation paper states (pages 25-26) "In line with its view that the more serious the offence that has been committed, the less right an individual should have to retain the right to vote when sentenced to a period of imprisonment, the Government does not intend to permit the enfranchisement of prisoners who are sentenced to 4 years' imprisonment or more in any circumstances. The Government believes that this is compatible with the ECtHR ruling in Hirst (No 2)."[101]

107. We are concerned that, despite the time taken to publish the second consultation, the Government's proposals appear to take a very limited approach to the judgment in Hirst. As we noted earlier in this report, this type of approach can lead to further unnecessary litigation with the associated burden on the European Court of Human Rights and the taxpayer. We accept that the Grand Chamber left a broad discretion to the United Kingdom to determine how to remove the blanket ban. However, the Court stressed that withdrawal of the franchise is a very serious step and gave guidance on the types of offences which might rationally be connected with such a step. We are not persuaded that automatic disenfranchisement based upon a set period of custodial sentence can provide the "discernible link between the conduct and circumstances of the individual" and necessity for the removal of the right to vote required by the Grand Chamber. In our view, this approach will lead to a significant risk of further litigation.

108. Despite our concerns about the narrow nature of the Government's approach, our overriding disappointment is at the lack of progress in this case. We regret that the Government has not yet published the outcome of its second consultation, which closed almost 6 months ago, in September 2009. This appears to show a lack of commitment on the part of the Government to proposing a solution for Parliament to consider.

109. In December 2009, the Council of Europe's Committee of Ministers issued an interim resolution in respect of the delay in this case. The interim resolution is a significant and serious step and is couched in unambiguous terms. The Committee of Ministers "expresses serious concern that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election…will be performed in a way that fails to comply with the Convention".[102]

110. On 15 December 2009, the Minister for Human Rights responded to a written question by Mark Oaten MP, "noting" the interim resolution and again confirming that the Government was considering the outcome of its second consultation on this issue.[103] On the same day, Lord Bach gave a similar response to an oral question by Lord Ramsbottom. He explained that the Government would "respond when we are ready to respond" and that it was the Government's view that the legality of the election would not be affected by the ongoing incompatibility with the ECHR caused by the blanket ban on prisoner voting.[104]

111. We wrote to the Human Rights Minister in December 2009 to ask for further information in the light of these developments.[105] Despite the conclusion of the second consultation, the Government told us that it would be some time before it introduces any legislative solution to address the breach identified by the Grand Chamber.[106] We asked the Government whether reform could be achieved by amendment to the Constitutional Reform and Governance Bill, which is currently before Parliament. The Minister for Human Rights told us it would be inappropriate to turn this Bill into a "Christmas tree".[107] Similarly, the Government has rejected using the Remedial Order process to ensure that reform is considered before the general election:

    We do not think that this is an appropriate issue for a remedial order; it is an appropriate issue for both Houses to decide whether and how this particular ruling of the European Court of Human Rights should be brought into force.[108]

112. In February 2010, the Prison Reform Trust and UNLOCK launched a campaign to encourage the Government to remove the blanket ban before the general election. Launching their campaign, they said:

    The blanket ban remains in place despite the European Court of Human Rights ruling it unlawful in March 2004. In April 2009 the Government acknowledged for the first time that some sentenced prisoners will eventually be allowed to vote but, without urgent action, the general election in 2010 will not be compliant with the European Convention on Human Rights.

    The Government must now put aside delaying tactics, respect and obey the judgment of the court and overturn the outdated ban on prisoners voting. People in custody should be able to exercise their democratic rights and responsibilities in the forthcoming election.[109]

113. The only possible way to introduce a solution before the next election would be as emergency legislation, fast-tracked through the Parliamentary process or through use of the Urgent Remedial Order process provided for in the HRA 1998. Given the lack of opportunity for debate or amendment, neither of these options would provide the degree of opportunity for parliamentary debate which the Court considered desirable and upon which the Government insists.

114. In March 2010, the Committee of Ministers confirmed its interim resolution. It reiterated its serious concern that:

    A failure to implement the Court's judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court.

115. The Committee "strongly urged" the UK Government to rapidly adopt measures "of even an interim nature", in order to ensure the incompatibility is removed before the general election. The Committee decided to review progress at its next meeting in June, which is likely to take place after the election.[110]

116. It is now almost 5 years since the judgment of the Grand Chamber in Hirst v UK. The Government consultation was finally completed in September 2009. Since then, despite the imminent general election, the Government has not brought forward proposals for consideration by Parliament. We reiterate our view, often repeated, that the delay in this case has been unacceptable.

117. The delay in implementing the judgment inevitably leads to the Strasbourg Court being burdened by repetitive applications. Since the decision in Hirst another three applications challenging the blanket ban on prisoners voting have been lodged against the UK in Strasbourg. Another two cases challenging similar bans in Russia and the Czech Republic are pending.[111] We understand that the Government intends to defend the cases against the UK, with the associated costs to the taxpayer. If the Government continues to neglect its duty under Article 46 ECHR to remove the blanket ban on prisoners voting, further cases will arise. We consider that the longer the ban remains in place the greater the incentive will be for existing prisoners - and in particular, if the ban remains in place at the general election, those prisoners denied the right to vote in the election - to bring further applications to the European Court of Human Rights challenging the blanket ban. The Court in Hirst made clear that it was making no judgment on the decision to remove the right to vote in respect of Mr Hirst, but only that the blanket ban was disproportionate. It did not award Mr Hirst any "just satisfaction" or compensation. The Convention is a living instrument and the Court's position on prisoner voting rights will continue to evolve. Where a breach of the Convention is identified, individuals are entitled to an effective remedy by Article 13 ECHR. So long as the Government continues to delay removal of the blanket ban on prisoner voting, it risks not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation.

118. In our 2006 report on this case, we regretted the fact that further delay could lead to the general election taking place in a way which would mean that some prisoners were "unlawfully disenfranchised".[112] This conclusion referred to the regrettable circumstance that appears to have come to pass, that a United Kingdom general election would proceed despite the knowledge that it would take place in a way which breached the European Convention on Human Rights. The Government, in its recent correspondence with us and the Committee of Ministers has been keen to emphasise that the ongoing breach of the Convention cannot affect the legality of the forthcoming election. In his recent letter, the Human Rights Minister said:

    Whilst the Government is bound under Article 46 of the ECHR to implement decisions of the European Court of Human Rights, such decisions do not have the effect of striking down the national law to which they relate. The UK is a dualist legal system in which international law obligations must be translated into domestic law via Parliament. Therefore, whilst the Government accepts that the Court in Hirst v UK (No 2) found that section 3 of the Representation of the People Act 1983 is not compliant with its international law obligations under the Convention, the domestic law continues in force. Similarly, this decision does not have any impact on the continuing validity of our current body of domestic election law.[113]

119. The Government's analysis is legally accurate. The continuing breach of international law identified in Hirst will not affect the legality of the forthcoming election for the purposes of domestic law. However, without reform the election will happen in a way which will inevitably breach the Convention rights of at least part of the prison population. This is in breach of the Government's international obligation to secure for everyone within its jurisdiction the full enjoyment of those rights. We consider that the Government's determination to draw clear distinctions between domestic legality and the ongoing breach of Convention rights shows a disappointing disregard for our international law obligations.

SECURITY OF TENURE FOR GYPSIES AND TRAVELLERS (CONNORS V UK)

120. In our last report, we welcomed the remedy proposed by the Government in Section 318, Housing and Regeneration Act 2008, designed to remove the incompatibility identified in the case of Connors v UK by extending the application of the Mobile Homes Act 1984 to Gypsy and Traveller sites, so introducing security of tenure for Gypsies and Travellers.[114] The remedy eventually adopted by the Government was essentially the same as that recommended by our predecessor Committee more than four years previously and therefore while we welcomed the necessary amendment of the mobile homes legislation to remove the incompatibility we expressed our disappointment at the significant and unnecessary delay in doing so.

121. It has now been brought to our attention that Section 318 of the Housing and Regeneration Act 2008 has not yet been brought into force and the Government has decided not to lay the necessary statutory instrument to bring it into force before the general election, because there is insufficient parliamentary time and other statutory instruments are regarded as more of a priority.

122. In the light of our consecutive reports regretting the significant delay in implementing the Connors decision, we are concerned to hear that the delay continues in bringing that remedy into effect. In our Third Monitoring Report we described the delay in implementing the judgment in Connors as unacceptable and recommended that the Government reconsider using a remedial order to provide a remedy. The Government responded in August 2007 that it agreed that the issues raised by the Connors judgment "should be resolved at the earliest opportunity" and it was the Government's intention to implement the judgment in the forthcoming Housing and Regeneration Bill.[115] The Housing and Regeneration Act 2008 received Royal Assent on 22 July 2008. In his letter to us dated 30 September 2009 the Human Rights Minister informed us that s. 318 of the Act will "complete the implementation of this judgment" and that "the order bringing this provision into force in England is expected to be laid before Parliament in the autumn."[116]

123. In view of this apparent yet further delay in remedying the incompatibility in this case, we have written to the Minister to ask whether the Government intends to introduce the statutory instrument necessary to bring Section 318 into force before the end of this Parliament; if not, why not; and to ask for a full explanation of why a statutory instrument which would bring into force a piece of legislation which prevents future breaches of the Convention is not regarded as a priority claim on parliamentary time by the Government.[117]

Interim measures (Rule 39 Cases)

Iraqi civilians under threat of the death penalty (Al-Saadoon & Mufdhi v UK)

124. On 13 January 2009 we wrote to the Secretary of State for Defence to raise our concerns that two Iraqi civilians had been transferred to the custody of the Iraqi High Tribunal, despite a decision of the European Court of Human Rights indicating that "the applicants should not be removed or transferred from the custody of the United Kingdom until further notice" and a finding by the UK courts that there was a substantial risk that the men would face the death penalty.[118] The detailed facts and chronology of this case, were at that time unclear, but had received a significant degree of attention in the UK press.[119] In short:

  • The applicants were two Iraqi civilians accused of the murder of two members of the UK armed forces.
  • They were held by the UK armed forces in Basra until sometime during the afternoon of 31 December 2008, when they were transferred to the custody of the Iraqi High Tribunal.[120] Those forces formed part of the multinational forces in Iraq pursuant to UN Security Council Resolutions. Their UN mandate expired at midnight on 31 December 2008.
  • The applicants argued that their return to the Iraqi High Tribunal for trial, which has the power to impose the death penalty, will lead to a breach of their rights under the European Convention on Human Rights (ECHR), including the right to life (Article 2) and the right to be free from torture, inhuman and degrading treatment or punishment (Article 3) as well as other Convention rights.
  • Their case was heard and dismissed by the Court of Appeal on 30 December 2008, which refused to extend an injunction preventing the UK from ordering the transfer of the applicants to Iraqi custody.
  • On the same day, the European Court of Human Rights took an interim measures decision, which indicated to the United Kingdom that the applicants should not be removed from the custody of the United Kingdom until further notice.[121]
  • Despite the decision of the European Court of Human Rights, the applicants were delivered to the Iraqi High Tribunal on the afternoon of 31 December 2008.
  • The High Court granted a further emergency injunction on the afternoon of 31 December 2008 to prevent the transfer of the applicants to Iraqi custody, in line with the decision of the European Court of Human Rights. This order was later rescinded as the applicants had already been transferred.
  • The Government wrote to the European Court of Human Rights on 31 December 2008, to explain its decision. It said that, in the light of the decision of the Court of Appeal, and its analysis of the application of the European Convention of Human Rights and the broader requirements of international law, it was the view of the United Kingdom Government that it had "no lawful option other than transfer to the Iraqi authorities".[122] In addition, it explained that:

    The European Court of Human Rights at Strasbourg has asked the UK to retain custody in Iraq of Mr Al Saadoon and Mr Mufdhi when we have no legal power to do so. Compliance with Strasbourg requests would normally be a matter of course but these are exceptional circumstances.[123]

125. We asked the Secretary of State for Justice and the Minister for Human Rights for more information on this case, during our annual evidence session on 20 January 2009. The Secretary of State maintained the Government's position that the Iraqi men were not legally in UK custody and that the UK would be in breach of international law if they had failed to transfer them to the Iraqi court. When asked about the conflicting obligation to comply with Rule 39 decisions, the Minister for Human Rights said that the Government had responded to legal advice that failure to hand over both men would have led to a breach of international law.[124]

126. The Rt Hon Bob Ainsworth MP, Minister for State for Armed Forces, responded to our request for further information on 26 January 2009, enclosing a full copy of the Government's correspondence with the ECtHR.[125] The Minister provided us with a fuller chronology that clarified that the decision of the ECtHR was received on the afternoon of 30 December 2009 and that the men were transferred at quarter past one the following afternoon, less than 24 hours later. Later that day, after the prisoners were transferred, the Government informed the ECtHR and the applicants' solicitors. The Secretary of State told us that he understood our concern about the Government decision to transfer, despite the interim measures request, and reiterated that the Government "take very seriously our responsibilities in relation to such measures". He explained that, in this case, the Government considered that transfer was the "only lawful option". He added:

    It is the Government's policy to comply with Rule 39 measures indicated by the court as a matter of course where it is able to do so. However, in the wholly exceptional circumstances of this case, and in particular given that continued detention of the applicants would have been unlawful...The Government therefore took the view that, exceptionally, it could not comply with the measure indicated by the Court; and that this action should not be regarded as a breach of Article 34 of the convention in this case.[126]

127. The Minister confirmed that the Government accepted that, ultimately, the jurisdiction of the ECHR is a matter for the ECtHR to determine.[127] Failure to comply with interim measures may breach the right of an individual to petition the European Court of Human Rights for a decision on the application of the European Convention on Human Rights. Liberty also intervened in this case. They told us that they had:

    grave concerns about the Government's failure to comply with the ECtHR's interim measure, notwithstanding its stated reasons for doing so. Interim measures are binding on contracting states and failure to comply with them dangerously undermines the whole system of protection of Convention rights.[128]

128. The ECtHR declared this decision admissible on 30 June 2009. A number of parties were granted leave to intervene, including the Equality and Human Rights Commission. The Government continued to argue that the applicants were not within the jurisdiction of the United Kingdom for the purposes of Article 1 of the ECHR, and so, the Convention did not apply. The Court held that the applicants remained within the United Kingdom's jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008. It concluded: "given the total and exclusive de facto, and subsequently de jure control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom's jurisdiction". The Court reserved the question of whether the United Kingdom was bound by international law to hand over the applicants to the Iraqi authorities, and whether any such obligation could override the requirements of the Convention, until the hearing on the merits of the case. The Court also reserved the question of whether the decision not to comply with the Rule 39 request was in breach of Article 34 and the right of individual petition.[129]

129. Although there was not a final judgment in this case, because of the seriousness of what was at stake for the individuals concerned we exceptionally decided to write to the Government to raise our concern over its decision not to comply with the Rule 39 request of the court, that the Iraqi applicants be retained by the UK, in order to allow their case to be considered by the European Court of Human Rights. We welcome the Government's acceptance that the decision of the European Court of Human Rights on the scope and jurisdiction of the ECHR is final, and question why the analysis of the Court of Appeal on this question was allowed to form the basis for the decision to ignore the Rule 39 request from Strasbourg. We remain concerned about the Government's conduct in this case.

130. We are concerned that despite the extremely grave issues at stake in this case, we had to write to the Secretary of State for Defence in order to secure a more detailed chronology and account of and the decisions taken by the Government. A full response took over two weeks. We recommend that in any case where the Government considers refusing a Rule 39 request, information about that request and the Government's decision should be provided to us routinely and without delay.

131. The ECtHR handed down its judgment on the merits in this case on 2 March 2010, shortly before we agreed this report. In a Chamber judgment, the ECtHR decided that there had been a violation of the right to be free from inhuman and degrading treatment (Article 3), the right to access an effective remedy (Article 13) and the right of individual petition (Article 34). The UK judge, Sir Nicolas Bratza, entered a partly dissenting judgment and would not have found a violation of either Article 13 or Article 34.[130]

132. The Court examined the facts of this case in the round and concluded that the UK had not taken adequate steps to remove the risk that the Iraqis would be subjected to the death penalty. The Court rejected the Government's argument that it was obliged by international law, and the terms of agreement between the Iraqi Government and the UK governing the presence of UK Armed Forces in Iraq:

    It is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the convention. The principle carries all the more force in the present case given the absolute and fundamental nature of the right not to be subjected to the death penalty.[131]

133. The ECtHR considered the analogy drawn by the Government and domestic courts between the circumstances in this case and earlier domestic decisions involving individuals at diplomatic embassies. The court stressed that earlier Convention case-law appeared to reach the opposite conclusion and that the facts in this case were very different: "the applicants did not choose to seek refuge with the authorities of the United Kingdom; instead the respondent State's armed forces, having entered Iraq, took active steps to bring the applicants within the United Kingdom's jurisdiction, by arresting them and holding them in British-run detention facilities. In the absence of an assurance by the Iraqi authorities that the death penalty would not be applied, transfer was in violation of the prohibition on inhuman and degrading treatment.[132] The ECtHR concluded that this treatment was ongoing and, unusually, gave an indication that the effective implementation of this judgment would require the UK to now seek reassurances from the Iraqi government that the death penalty would not apply.[133] This was particularly important given that the applicants' cases were currently being reinvestigated with a view to a retrial.

134. In respect of their decisions on the right to an effective remedy and the right to individual petition, the ECtHR focused on the UK decision not to comply with Rule 39. It held that:

    The Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication. They have not informed the Court, for example, of any attempt to explain the situation to the Iraqi authorities and to reach a temporary solution which would have safeguarded the applicants' rights until the Court had completed its examination.[134]

135. The judgment in this case is not yet final. We have not had the opportunity to consider the Government's views on its findings and we have no information on whether the Government intends to request that the case is considered by the Grand Chamber. We reiterate our view that the issues raised in this case are serious ones. We note that a number of additional applications against the UK about the scope of the jurisdiction of the ECHR and its application to the activities of UK forces in Iraq are due to be heard by the ECtHR during 2010. We particularly draw the Government's attention to the ECtHR guidance in this case that a violation of the rights of the applicants to be free from inhuman and degrading treatment is ongoing, and that the Government remains under an obligation to seek diplomatic reassurances from the Iraqi Government that the death penalty will not be applied in this case. We recommend that the Government provide a full response to the conclusions of the ECtHR in this case, including whether a request for a hearing by the Grand Chamber is planned. We recommend that our successor Committee consider any Government response and keep this case under close scrutiny in the next Parliament.


21   A "leading case" is a case which reveals a new systemic problem in a state which therefore requires the adoption of new general measures. It is to be distinguished from "repetitive cases" which raise a systemic problem which has already been raised before the Committee of Ministers. Back

22   Third Monitoring Report, para 28. Back

23   Cm 7524, Responding to Human Rights Judgments, Ministry of Justice, January 2009 ("The Government Response 2009") Back

24   Council of Europe Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights: 2nd Annual Report 2008, April 2009. Back

25   Ev 5 Back

26   Ev 18 Back

27   Council of Europe Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights: 2nd Annual Report 2008, April 2009, Appendix 1, Statistical Data. Back

28   Committee on Legal Affairs and Human Rights, Implementation of Judgments of the European Court of Human Rights: Progress Report, AS/JUR(2009)36, 31 August 2009, declassified 11 September 2009 ("Progress Report"). Back

29   Committee on Legal Affairs and Human Rights, Implementation of Judgments of the European Court of Human Rights: Addendum to the Progress Report, AS/JUR(2009)36 Addendum, 31 August 2009 ("Addendum"). Back

30   Progress Report, above n.27, Appendix. Back

31   Annual Report of European Court of Human Rights (2009), January 2010. This compares with 36 judgments of the Court in 2008, in 27 of which it found a violation by the UK. Back

32   Ibid , XIII Statistical Information. Back

33   In 2008, the rate was 0.20 and in 2009, 0.18. This compares favourably for example, with France ( 0.48 in 2008 and 0.25 in 2009) and the Netherlands (0.23 in 2008 and 0.30 in 2009). Compare the rates for the main applicant States, Russia (0.71 in 2008 and 0.97 in 2009) and Ukraine (1.03 in both 2008 and 2009).  Back

34   Ev 17 Back

35   A and others v UK, Application No. 3455/05 [GC], 19 February 2009, at paras 193-224. Back

36   Ibid, at paras 218-220. Back

37   Letter from the Home Secretary dated 1 October 2009, see Ev 14; letter from David Hanson 13 January 2010, published in Ninth Report of Session 2009-10, Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010, HL 64/HC 395 ("Report on 2010 Control Orders Renewal"), at 49-53 (where the letter is incorrectly dated 7 January 2010). Back

38   Ninth Report of Session 2009-10, Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 , HL 64/HC 395. Back

39   Sixteenth Report of 2009-2010, Counter-terrorism Policy and Human Rights: Bringing Human Rights Back In, HL Paper 86/HC 455. Back

40   App No 30562/04, Judgment, 4 December 2008, para 125. Back

41   Twenty-Seventh Report of Session 2008-09, Retention, Use and Destruction of Biometric Data: Correspondence with the Government, HL 182, HC 1113. Back

42   Twelfth Report of Session 2009-10, Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill, HL 67/HC 402, paras 1.5 - 1.74. Back

43   Keeping the Right People on the DNA Database: Science and Public Protection, May 2009. Back

44   Tenth Report of Session 2008-09, Legislative Scrutiny: Policing and Crime Bill, HL 68/ HC 395, paras 1.111-1.119. Back

45   HL Deb, 20 October 2009, Col. 668. Back

46   WMS, 11 November 2009. Back

47   Twenty-Seventh Report of Session 2008-09, Retention, Use and Destruction of Biometric Data: Correspondence with the Government, HL 182/ HC 1113, Letter from Home Secretary to Chair, November 2009. Back

48   Twenty-Seventh Report of Session 2008-09, Retention, Use and Destruction of Biometric Data: Correspondence with the Government, HL Paper 182, HC 1113, Letter from Ian Readhead, Director of Information, ACPO, to Chief Constables, dated 28 July 2009. Back

49   Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database, 24 November 2009. Back

50   Ev 54-56 Back

51   See for example, Ev 43 - 45 (Liberty), Ev 29 (NICCY), Ev 33 (BIRW); Ev 39 (ILPA) Back

52   CM/Del/Dec (2010) 1071, 7 December 2009. 1072nd Meeting (DH), 1 - 3 December 2009, Section 4.2. Back

53   CM/Del/Dec (2010) 1078, 8 March 2010. 1078th Meeting (DH), 2-4 March 2010, Section 4.2. Back

54   Twelfth Report of Session 2009-10, Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill, HL 67/HC 402, paras 1.5-1.74. Back

55   PBC Deb, 4 Feb 2010, Col 243. Back

56   Crime and Security Bill Report, above n.52, para 1.10. Back

57   Ibid, para 1.72. Back

58   McCann v United Kingdom (2008) 47 EHRR 913, App. No. 19009/04, 13 May 2008, para. 50. Back

59   HL Deb, 9 July 2008, cols 808-810. Back

60   [2008] UKHL 57, [2009] AC 367. Back

61   [2006] UKHL 10. Back

62   The House of Lords also unanimously held that where there was inconsistency between rulings of the domestic courts and the ECtHR, the domestic courts should follow the binding precedent of higher domestic courts. Back

63   App. No. 37341/06. Back

64   Ev 6 Back

65   Ev 7-10 Back

66   This was the argument deployed by the Government during the debates on the Housing and Regeneration Bill. See HL Deb, 9 July 2008, Cols 808-810 (Baroness Andrews). Back

67   Beginning with Connors v United Kingdom (2005) 40 EHRR 9 Back

68   See for example, Doherty v Birmingham City Council (2008) UKHL 57, (2009) 1 AC 367; Kay v Lambeth LBC (2006) UKHL 10, (2006) 2 AC 465. See also Harrow LBC v Qazi (2003) UKHL 43, (2004) 1 AC 983. Back

69   Doherty v Birmingham City Council (2008) UKHL 57, (2009) 1 AC 367; Kay v Lambeth LBC (2006) UKHL 10, (2006) 2 AC 465 Back

70   Liberty and others v United Kingdom App. No. 58243/00, 1 July 2008. Back

71   Ibid., para. 69. Back

72   Ev 10 Back

73   Ev 11-12 Back

74   App. No. 26839/05. Back

75   Ev 46 Back

76   Ev 46 Back

77   Liberty and others v United Kingdom App. No. 58243/00, 1 July 2008, para. 67. Back

78   App. No. 54934/00, decision dated 29 June 2006. Back

79   S. 3(2) G10 Act prohibits the use of catchwords that allow for the interception of specific communications. This means that strategic monitoring cannot be used to identify specific individuals. Instead, individualised authorisations are required. Back

80   Szuluk v United Kingdom, App. No. 36936/05, 2 June 2009, para. 53. Back

81   Ibid, para. 54. Back

82   Ev 29-30  Back

83   Ev 30-31 Back

84   The Prison and Young Offender Institution (Amendment) Rules 2009 (2009/3082). Back

85   RK and AK v United Kingdom App. No. 38000(1)/05, 20 September 2008. Back

86   Ev 15-16 Back

87   Ev 16 Back

88   Ev 17 Back

89   Bullen and Soneji v United Kingdom App. No. 3383/096, 8 January 2009, para. 71. Back

90   Ev 12 Back

91   Ev 12-13. Back

92   Hirst v United Kingdom, App No 74025/01, 6 October 2005 (Grand Chamber). Back

93   William Smith v Electoral Registration Officer [2007] CSIH XA 33/04 (24 January 2007). Back

94   Fourth Report of Session 2008-09, Legislative Scrutiny: Political Parties and Elections Bill, HL 23/HC 204. Back

95   Ibid, para 1.19. Back

96   R (Chester) v (1) Secretary of State for Justice (2) Wakefield Metropolitan Prison [2009] EWHC 2923 (Admin). In this decision, the Court noted the existing declaration of incompatibility and reiterated that it was for Parliament to make any necessary changes to the law. Back

97   These include Toner v United Kingdom, App. No. 8195/08 (communicated to the UK on 27 August 2009); Greens v United Kingdom, App No 60041/08 (communicated to the UK on 27 August 2009); and App No 60054/08. See also Ev 27. Back

98   Ministry of Justice, Information Note to Committee of Ministers, 8 April 2009. Back

99   Ev 47 Back

100   Ev 23-27 Back

101   Ev 24 Back

102   Interim Resolution CM/ResDH(2009)160, Execution of the judgment of the European Court of Human Rights
Hirst against the United Kingdom No. 2,
(Application No. 74025/01, Grand Chamber judgment of 06/10/2005) , Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers' Deputies. 
Back

103   HC Deb, 15 Dec 2009, Col 1043 W Back

104   HC Deb, 15 Dec 2009, Col 1393 - 1394. This repeats a view expressed in the Minister's letter dated 8 October 2009, see Ev 23-27. Back

105   Ev 27-28 Back

106   Ev 28 Back

107   Ev 28 Back

108   HL Deb, 15 Jul 2009, Col 1212 (Lord Bach). Back

109   PRT and UNLOCK, Barred from Voting, February 2010. Back

110   CM/Del/Dec (2010) 1078, 8 March 2010. 1078th Meeting (DH), 2-4 March 2010, Section 4.2. Back

111   See Gladkov v Russia, App. No. 15162/05 and Anchugov v Russia, App. No. 11157/04. See also JV v Czech Republic, App. No. 17613/07. Back

112   Third Monitoring Report, para 63. Back

113   Ev 28 Back

114   Third Monitoring Report, para. 71. We considered the Government's proposal in detail in our legislative scrutiny report on the Housing and Regeneration Bill: Seventeenth Report of Session 2007-08, Legislative Scrutiny: 1) Employment Bill, 2) Housing and Regeneration Bill, 3) Other Bills, HL 95/HC 501, paras 2.29-2.33. Back

115   Third Monitoring Report, Ev 62. Back

116   Ev 20-21 Back

117   Ev 57 Back

118   Ev 1 Back

119   See Al-Saadoon & Mufdhi v Secretary of State for Defence [2008] EWHC 3098 (Admin); Transcript; Court of Appeal Hearing, 29-30 December 2008. Back

120   The applicants were each taken into the custody of UK Armed Forces in April and November 2003, respectively. On 27 December 2007, after a criminal investigation, the Iraqi High Tribunal requested that the applicants be transferred to their custody. Back

121   Pursuant to Rule 39 of the Rules of Court of the European Court of Human Rights.  Back

122   Letter dated 31 December 2008 from Derek Walton, Agent of the Government of the United Kingdom to Mr T L Early, Section Registrar, European Court of Human Rights. Back

123   Independent, Pair accused of murder handed over to Iraqi authorities, 31 December 2008. See also Ev 3-4. Back

124   Second Report of Session 2008-09, Work of the Committee in 2008-09, HL 20/HC 185, Ev 14-16. Back

125   Ev 2-3 Back

126   Ev 3 Back

127   Ibid. Back

128   Ev 46. See also Ev 33 (British Irish Rights Watch). Back

129   Al-Saadoon & Mufdhi v United Kingdom, App. No. 61498/08, Decision, 30 June 2009. Back

130   App No 61498/08, 2 March 2010 Back

131   Ibid, para 138. Back

132   Ibid, paras 134 - 143. Back

133   Ibid, para 171. Back

134   Ibid, para 163 Back


 
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