4 Systemic issues
Introduction
159. In previous reports we have reported on systemic
obstacles both to effective parliamentary scrutiny of the Government's
response to Court judgments concerning human rights and to effective
implementation of those judgments. In this chapter we return to
a number of those issues and make some recommendations about how
these systemic obstacles can be overcome.
The Government system for responding
to judgments
160. In its response to our last Report,[159]
the Government rejected our recommendation that the Ministry of
Justice should adopt a co-ordinating role in relation to the Government's
response to adverse judgments,[160]
arguing that it was not persuaded that there would be any significant
benefit in doing so, but that it was considering how the Ministry
of Justice "might work more effectively with other Government
departments"[161]
and how and whether to develop further and formalise the guidance
that is given to departments. In practice, however, it appears
that the department has effectively assumed such a co-ordinating
role.
161. In oral evidence Edward Adams said this about
the Ministry of Justice's co-ordinating role:
When an adverse judgment is issued against the
Government it does actually impact upon the Department and the
Minister responsible for that Department in that particular area;
and because these decisions are not purely administrative there
can be big political choices to be made, and those have to be
in the hands of the Minister responsible for that.[162]
162. Giving the example of the case of S and Marper
v UK, which involves the retention of DNA samples by the police
and which we consider in more detail below, Mr Adams stated:
It really is not actually for Ministry of Justice
Ministers to be deciding what the policy is about because that
is the fundamental responsibility of the Home Secretary. It is
our job to make sure that we keep the pressure on, to keep asking
them "What are you doing? How far have you got? What is the
next stage? Anything we can do to help?" And to keep supporting
them and also to an extent holding them to account to make sure
that they do respond in a timely way to adverse judgments both
in Strasbourg and in the domestic courts
. I would pitch
it just slightly below a co-ordinating role.[163]
163. We welcome the de facto assumption
by the Human Rights Division of the Ministry of Justice of the
role of co-ordinator, both of the national implementation of judgments
of the European Court of Human Rights and of the Government's
response to declarations of incompatibility. We look forward to
working closely with the Ministry of Justice to develop that co-ordination
role in future.
Guidance for Departments
164. In our second monitoring report we recommended
that the Government should update its guidance for Whitehall departments,
and stated that we looked forward to being consulted on a draft.[164]
In our last monitoring report, our overall conclusion was that
the Government should take a more consistent and transparent approach
across departments to the way in which it responds to declarations
of incompatibility and judgments from the ECtHR. The Government
indicated in its response that it is considering updating its
guidance as suggested but, as far as we are aware, this has not
happened.
165. Our experience this year whilst conducting our
scrutiny of Government responses to judgments has been very similar:
while some departments have been very forthcoming with information
and good at keeping us informed of relevant developments and progress,[165]
others have been less informative and required chasing for responses.[166]
The general picture remains one of considerable inconsistency
of practice across departments and full transparency about the
Government's thinking in response to court judgments remains the
exception rather than the norm.
166. We are not at all clear as to what guidance
exists for departments on how to respond to court judgments on
human rights, or, if it exists, how up to date it is. There is
certainly no publicly available guidance for departments on responding
to human rights judgments. We believe it to be useful, at the
end of this Parliament, to distil our current practice into some
guidance for departments, to assist those advising Government
departments and also our successor Committee. For the reasons
we have explained in chapter 1 above, we believe that the future
effectiveness of the ECHR system depends on more effective national
implementation of the Convention, in order to stem the flood of
applications to Strasbourg, and we therefore publish in the Annex
to this Report this guidance which we believe will help to underpin
Parliament's important role in monitoring the Government's response
to human rights judgments.
167. The guidance contained in the Annex to this
Report is based largely on current practice, but also on recommendations
previously made by us and our predecessor Committee, on Government
responses to those recommendations, and in some cases on recommendations
made in this Report.
Minimal compliance or full implementation?
168. One of the recurring criticisms we have made
in this and previous reports on the implementation of human rights
judgments has been that the Government generally adopts an approach
of "minimal compliance" with Court judgments. This is
currently evident, for example, in the Government's response to
the decision of the Court concerning the retention of DNA samples.[167]
As we saw above, the same can be said of the Government's response
to the decision about the unfairness caused by the use of special
advocates in the context of the legislation which authorised the
detention of foreign nationals suspected of terrorism. We have
made similar criticisms of the Government's approach following
Court judgments concerning control orders.[168]
The Government's approach of minimal compliance exacerbates the
problem of repetitive cases because it leads to future litigation
which can culminate in predictable findings of violation.
169. The Government does not always adopt an approach
of minimal compliance rather than full implementation. The Marriage
Act 1949 (Remedial Order) 2006, for example, went wider than removing
the incompatibility found by the European Court of Human Rights
in the particular case, and removed a restriction on the right
to marry which, though not in issue in the case itself, would
in the Government's view inevitably be found to be incompatible
with the right to marry as a result of the reasoning of the Court
in the particular case. We scrutinised the Government's reasoning
and agreed with it that the other restriction would be likely
to be found incompatible as a result of the Court's decision.[169]
The Government's welcome approach to full implementation in that
case required it also to take an expansive view of the power to
take remedial action under s. 10(1)(b) of the Human Rights Act
(if it appears to the Minister that, having regard to a finding
of the European Court of Human Rights, a provision of legislation
is incompatible with an obligation of the UK arising from the
Convention). We also agreed with this broad interpretation of
the scope of the power to take remedial action in s.10 HRA 1998.[170]
170. We recommend that, instead of the current approach
of minimal compliance, the Government make a commitment to full
implementation of Strasbourg judgments following an adverse Court
judgment: the Government should make sure that it takes the opportunity
to prevent future violations which are predictable.
Provision of information to Parliament
PROMPT NOTIFICATION OF PARLIAMENT
171. An example of a slightly more proactive co-ordinating
role for the Ministry of Justice, which in our view would lead
to greater consistency of practice and much earlier identification
of the remedial measures required, would be for the Ministry of
Justice to assume responsibility for notifying us promptly of
judgments of the European Court of Human Rights and of declarations
of incompatibility. According to the Ministry of Justice's understanding
of the present arrangements,[171]
we receive "a regular update" from the Foreign and Commonwealth
Office on new adverse decisions of the European Court of Human
Rights against the UK, and declarations of incompatibility are
drawn to our attention by the department with responsibility for
the subject matter of the declaration. We do receive a six monthly
update from the Foreign Office of judgments against the UK,[172]
but some judgments are often quite old by the time we receive
this, and the last update we received was nine months after the
previous one. There is no facility on the Court's website for
subscribing to alerts about judgments by country and we therefore
depend on the Government, which is after all a party to the litigation
in Strasbourg, to notify us when the Court hands down a judgment
in a case against the UK. In relation to declarations of incompatibility
by UK courts, in practice we find that notification of relevant
judgments is fairly haphazard and where it does occur it is not
within any particular time frame.
172. We recommend that the Ministry of Justice
should notify the Committee of any judgment of the European Court
of Human Rights in an application against the UK and of any declaration
of incompatibility made by a UK court under s. 4 of the Human
Rights Act 1998 as soon as reasonably practicable and in any event
within 14 days of the date of the judgment.
ACTION PLANS
173. As in previous years when conducting this monitoring
work we have had occasion to complain about the Government's failure
to keep us, and Parliament, fully informed about the steps being
taken towards implementation. We have had to chase the Government
for late replies to letters and remind it of previous undertakings
to keep Parliament informed.
174. The Government is now expected to submit an
Action Plan to the Committee of Ministers setting out the measures
it intends to take to implement a judgment, including an indicative
timetable.[173] In
its response to our last human rights judgment report, the Government
indicated that it intends to make these action plans available
to us in future.[174]
This intended practice has yet, however, to establish itself.
In relation to S and Marper, for example, the Home Secretary
indicated that she would be willing to send us the Government's
plans for implementation at the same time as it sent them to the
Committee of Ministers.[175]
In the event we had to chase for the Action Plan twice[176]
before finally receiving it some months after it had been submitted
to Strasbourg, and we also had to chase the Government to be sent
a copy of updating information sent to Strasbourg.[177]
In other cases, no Action Plan has been sent to us.
175. We welcome the Government's intention to
make available to us the Action Plan which it is required to submit
to the Committee of Ministers. We recommend that the Government
always send us, as a matter of course, a copy of the Action Plan,
at the same time as it sends it to the Committee of Ministers,
and that we be copied in to all subsequent significant communications
with the Committee of Ministers about the case.
INFORMATION ON SYSTEMIC ISSUES
176. The Interlaken Declaration calls on States to
ensure that they review their implementation of the Committee
of Ministers' various recommendations concerning national implementation.[178]
The Government has kept the Council of Europe informed about progress
in implementing those recommendations but that assessment has
not been made available to Parliament.
177. We have continued to hold regular oral
evidence sessions with the Human Rights Minister on the subject
of the Government's response to human rights judgments. This is
an opportunity for the Government to inform Parliament about how
the Government's systems for implementing and responding to Court
judgment are working in practice and for parliamentarians to ask
the Government questions about that subject.
178. Following our previous practice, described
in Chapter 1, we recommend that, prior to our annual evidence
session with the Minister responsible for human rights, the Government
provide the Committee with a written memorandum covering the following:
i) all judgments against the UK, or declarations
of incompatibility, since the last evidence session;
ii) all measures taken to implement such judgments;
iii) the progress made towards the implementation
of all other outstanding judgments;
iv) the UK's record on implementation according
to the latest available statistics from the Council of Europe;
v) the progress made towards the implementation
of Committee of Ministers' recommendations on national implementation;
vi) the implications of Strasbourg judgments
against other States for the UK's legal system (see further below).
OTHER WAYS OF IMPROVING PARLIAMENTARY
SCRUTINY
179. During the House of Lords debate on our earlier
report a number of members of the House of Lords who are not members
of our Committee participated in the debate and called for further
information from the Minister. We consider that it is important
that Parliament is given a wider opportunity to scrutinise the
Government's activities in respect of the implementation of the
European Convention on Human Rights and in particular the Government's
response to adverse human rights judgments. We recommend that
there should be an annual debate in Parliament on the JCHR's report
scrutinising the Government's memorandum.
180. In recent years the UK has increasingly intervened
in cases against other States. Some of these interventions have
been highly controversial, and involved the UK Government arguing
for an interpretation of the Convention with which we, and Parliament,
might disagree. For example, the UK Government intervened in a
torture case against Italy,[179]
arguing that the Grand Chamber should overturn its decision in
Chahal v UK, and in a case against Austria concerning the
rights of same-sex couples.[180]
At present there is no mechanism for ensuring the transparency
of the UK Government's position in such interventions, and there
is therefore no opportunity to hold the Government accountable
for the arguments it makes. We recommend that the Government
commit to informing us at the earliest opportunity whenever it
intervenes on behalf of the UK in a case against another State,
and to making available to Parliament the reasons for its intervention
and the substance of its argument.
181. In Chapter 2, above, we consider the case of
Al-Saadoon and recommend that the Government keep us informed
in any case where it considers refusing a Rule 39 request of the
Court. In our last report, we considered the significant number
of Rule 39 requests which arise in respect of the United Kingdom,
particularly in asylum cases.[181]
We recommend that the Government inform us on a quarterly basis
of the number of Rule 39 requests that have been made by the Court
and provide a detailed breakdown of the sorts of cases in which
those requests have been made.
182. We repeat our recommendation, first made
in 2005, that the Ministry of Justice should provide an accessible
database of information, perhaps on its website, listing recent
judgements, implementation measures taken or proposed, and cases
where implementation measures had yet to be decided on. This
database need be no more detailed than the database on declarations
of incompatibility already maintained by the department, which
greatly increases the transparency of the process of responding
to such judgments.
Target Timetables
183. In our previous recommendations about responding
to human rights judgments, we have sought to establish a clear
timetable for each of the steps in the process. The Government,
however, has been reluctant to agree to such a timetable. We understand
the reasons for its reluctance. We accept that a rigid, one-size-fits-all
timetable for implementation of European Court of Human Rights
judgments, or responding to declarations of incompatibility, is
neither realistic nor desirable. The identification of the appropriate
remedial measures is likely to involve a process, involving the
consultation of relevant stakeholders and, in the case of judgments
of the European Court of Human Rights, discussions between national
authorities and the Committee of Ministers.
184. However, the remedying of an incompatibility
with the Convention should be swift as well as full. We think
it is reasonable to expect the Government's remedial action following
Court judgments to follow a target timetable, and to expect the
Government to provide reasoned justifications for any departures
from that timetable. Good explanations for not keeping to the
target timetable will not lightly be dismissed. We believe that
the discipline of a target timetable is necessary in order to
facilitate effective parliamentary scrutiny of the Government's
response. Our guidance for departments therefore spells out a
target timetable, requiring notification of judgments within 14
days, detailed plans as to what the Government's response will
be within four months, and a final decision as to how the incompatibility
will be remedied within six months.
Recognising the interpretative
authority of the Strasbourg Court
EFFECT OF JUDGMENTS AGAINST THE
UK
185. The need for greater acceptance of the interpretative
authority of the European Court of Human Rights has been identified
as one of the keys to achieving better national implementation
of the Convention at national level.[182]
The record of the UK courts in this respect is generally
good: we welcome the approach taken by our courts to the requirement
in s. 2(1) of the Human Rights Act that they must take ECHR case-law
into account.[183]
The approach of the House of Lords in AF, for example,
giving effect to the judgment of the Strasbourg Court in A
v UK, exemplifies this acceptance of the interpretative authority
of the European Court of Human Rights.
186. We have criticised in previous reports, however,
the approach of the House of Lords that lower courts should not
depart from the interpretation of higher courts even where there
is clear Strasbourg authority to the contrary.[184]
We regret the House of Lords' maintenance of this approach,[185]
which we consider to be a serious limitation on the extent to
which UK courts recognize the interpretative authority of the
Strasbourg Court. In our view UK courts should reconsider the
approach in Price that lower courts must follow the interpretation
of higher courts even where that is clearly contrary to subsequent
Strasbourg authority.
EFFECT OF JUDGMENTS AGAINST OTHER
STATES
187. The Interlaken Declaration calls on states to
take into account, not only judgments of the Court against the
state itself, but also the Court's developing case-law in judgments
finding a violation of the Convention by other States. It urges
states to consider the conclusions to be drawn from such judgments
against other states where the same problem of principle exists
within their own legal system.
188. This reflects a growing concern that the binding
effect of the judgments of the European Court of Human Rights
interpreting the Convention is limited in practice by states taking
an essentially passive approach to compliance with the Convention,
waiting until the Court has found a violation before considering
whether its law, policy or practice requires changing in order
to make it compatible with the Convention. The President of the
European Court of Human Rights, for example, in his Memorandum
to the States with a view to preparing the Interlaken Conference,
says that "it is no longer acceptable that States fail to
draw the consequences as early as possible of a judgment finding
a violation by another State when the same problem exists in their
own legal system."[186]
189. As far as we are aware the Government does not
have in place any arrangements for systematically monitoring judgments
of the European Court of Human Rights against other States and
considering, as soon as practicable following the judgment, whether
they have any implications for UK law, policy or practice. In
the Netherlands, by comparison, the Government's annual report
to Parliament on human rights judgments has, since 2006, covered
not only judgments of the European Court of Human Rights against
the Netherlands, but any judgment which could have a direct or
indirect effect on the Dutch legal system.[187]
In Switzerland too, since the beginning of 2009 regular reports
by the Government to Parliament now cover all Strasbourg Court
judgments which may have a bearing on the Swiss legal system,
and not just those against Switzerland.
190. In our view, the Government should institute
a mechanism for systematically considering the implications for
the UK of Court judgments against other States and should provide
to Parliament the relevant information indicating exactly what
consideration it has given to such other judgments and their possible
implications for the UK. We note with interest that this is already
done by the Governments of the Netherlands and Switzerland, which
include the information in the annual reports to their parliaments.
We do not consider that this would be an unduly onerous task.
We know that the Government already monitors the cases coming
before the European Court of Human Rights with a view to intervening
in those which may have implications for UK law, and indeed increasingly
does so.
191. We recommend that the Human Rights Division
of the Ministry of Justice, working with the Foreign Office, make
the necessary arrangements to ensure that systematic consideration
is given to whether judgments of the European Court of Human Rights
finding a violation by another State have any implications for
UK law, policy or practice and that this consideration take place
as soon as reasonably practicable after the judgment.
192. We also recommend that the Minister for Human
Rights provide a detailed description of the arrangements which
are made for this purpose in his memorandum to be provided to
the Committee before he next gives oral evidence in relation to
human rights judgments. The Minister's memorandum should also
include a summary report of the outcome of this consideration
of the implications for the UK of Court judgments finding violations
by other States.
193. We suggest that our successor committee consider
developing this line of monitoring work by regularly asking the
Government what steps it is taking to give effect in UK law to
a judgment of the European Court of Human Rights against another
State but which clearly has implications for UK law, policy or
practice.
Greater co-ordination with Council
of Europe bodies
194. We aim to achieve closer co-ordination of our
work monitoring the implementation of Strasbourg judgments with
the work of Council of Europe bodies on the same subject. We believe
that such co-ordination will lead both to more information being
available to Parliament and to more effective implementation.
To this end, our staff are in close contact with officials in
the Registry of the European Court of Human Rights and in the
Department for Execution of Judgments in the Secretariat of the
Committee of Ministers. As an example of this greater co-ordination
in action, in the recent Decision of the Committee of Ministers
on S and Marper v UK, on 3 March 2010, the Committee of
Ministers noted the recent position taken by the JCHR (in its
legislative scrutiny report on the Crime and Security Bill) and
stressed the importance of the UK rapidly conveying the results
of its consultation to the Committee of Ministers in an appropriate
form, "accessible also for the national decision-making process."[188]
195. One of the recommendations of our sister Committee
in the Parliamentary Assembly of the Council of Europe is that
there should be a role for the national PACE delegation in the
national process for supervising implementation in the national
Parliament. Indeed, the Rapporteur on the Implementation of Judgments,
Mr. Pourgourides, regards it as "an implicit responsibility
upon the Assembly's national delegates to ensure that they contribute
to this process [the implementation of Strasbourg Court judgments]
in their capacity as national parliamentarians."[189]
196. In the past, some members of the JCHR have also
been members of the Parliamentary Assembly, but no member of the
JCHR has also been a member of the equivalent Committee of the
Parliamentary Assembly. In practice it may be hard for a member
to be an active member of both Committees, but we see considerable
merit in members of the national delegation of PACE being involved
in the work of both Parliament and the Assembly monitoring the
implementation of judgments, and in closer links at official level
between the two parliamentary committees which take the lead on
this work in both parliaments. In our view this would help to
provide more co-ordination between the efforts of these two parliamentary
bodies in relation to the implementation of judgments.
159 The Government Response (2009), January 2009. Back
160
Ibid, para. 18. Back
161
Ibid, pp. 31-32. Back
162
Second Report of 2009-2010, Work of the Committee in 2008-09,
HL 20/HC 185. Back
163
Second Report of 2009-2010, Work of the Committee in 2008-09,
HL 20/HC 185, Qq 69 & 70. Back
164
Second Monitoring Report, para. 163. Back
165
See e.g. the very full letter of explanation received from the
Department for Communities and Local Government in relation to
the McCann case, Ev 7-10. Back
166
See for example, the Government response to our letter dated 12
May 2009, requesting further information in relation to the Government
response to the declaration of incompatibility in the case of
Baiai. The Government response is dated 12 November 2009,
almost 6 months later. See Ev 4-5. Back
167
S and Marper v UK, above. See 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. Back
168
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
169
Twenty-ninth Report of Session 2005-06, Draft Marriage Act
(1949) Remedial Order 2006, HL 248/HC 1627, para. 8. Back
170
Ibid. at para. 9. Back
171
The Government Response (2009) pp. 35-36. Back
172
See for example, Written Evidence, below, pp78-80. Back
173
See CM/Inf/DH (2009) 29 Rev, 3 June 2009, Action Plans - Action
Reports, Definitions and Objectives, Memorandum prepared by the
Department for the Execution of Judgments of the European Court
of Human Rights. Back
174
The Government Response (2009), p. 36. Back
175
Letter from Home Secretary, 5 January 2009: Retention, use
and destruction of biometric material: correspondence with Government,
HL 182/HC 1113, p. 7. Back
176
Letters to Home Secretary, 21 May 2009 and 8 July 2009, ibid,
p. 10. Back
177
Letter to the Home Secretary, 29 October 2009, ibid, p.
17. Back
178
Interlaken Declaration, Action Plan, para. 4(f). Back
179
Saadi v Italy (GC) App. No. 37201/06, Judgment dated 28
February 2008. Back
180
Schalk and Kopf v Austria, App. No. 30141/04. Back
181
Third Monitoring Report, paras 111-112. Back
182
Interlaken Declaration, 19 February 2010 Back
183
See for example, AF v Secretary of State for the Home Department
[2009] UKHL 28 Back
184
See for example, Second Monitoring Report, at paras 10 - 13. See
Doherty v Birmingham City Council (2008) UKHL 57, (2009)
1 AC 367; Kay v Lambeth LBC (2006) UKHL 10, (2006) 2 AC
465. Back
185
Doherty v Birmingham City Council (2008) UKHL 57. See also
R v Horncastle and Others [2009] UKSC 14. In this last
decision, the Supreme Court refused to follow the jurisprudence
of the ECtHR in Al-Khawaja and Tahery v United Kingdom
(2009) 49 EHRR, where a Chamber of the ECtHR held that the admissibility
of certain evidence without the opportunity for challenge was
incompatible with the right to a fair hearing guaranteed by Article
6 ECHR. The Supreme Court argued that the ECtHR had failed to
appreciate fully the nature of domestic law on hearsay. The case
of Al-Khawaja is pending before the Grand Chamber. Back
186
Judge Costa, Memorandum of the President of the European Court
of Human Rights to the States with a view to preparing the Interlaken
Conference (3 July 2009). Back
187
Parliamentary Scrutiny of the standards of the European Convention
on Human Rights, PACE Committee on Legal Affairs and Human
Rights Background Document, AS/Jur/Inf (2009) 02 p. 2. The Dutch
Senate requested in 2006 that the scope of the Government's report
to Parliament be broadened to include an overview of implementation
issues raised by Strasbourg judgments generally. Back
188
CM/Del/Dec (2010) 1078, 8 March 2010. 1078th Meeting
(DH), 2 - 4 March 2010, Section 4.5. Back
189
Pourgourides Report, above, September 2009 at para. 16. Back
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