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

4  Systemic issues


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


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.


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.


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).


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


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.


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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