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.
[
] 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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