Conclusions and recommendations
Why are court judgments any of Parliament's business?
1. Parliamentary
involvement is also an essential aspect of strengthening national
mechanisms for ensuring compliance with the Convention and the
Court's interpretation of the Convention and therefore for reducing
the flood of applications to the Court. (Paragraph 17)
The UK's record on the implementation of Strasbourg
judgments
2. 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. (Paragraph 31)
3. 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. (Paragraph
33)
Secret evidence and detention of foreign terrorism
suspects (A v UK)
4. 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.
(Paragraph 38)
5. 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.
(Paragraph 39)
6. 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. (Paragraph 40)
Retention of DNA profiles and cellular samples
(S & Marper v UK)
7. 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. (Paragraph 52)
8. 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.
(Paragraph 53)
9. 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. (Paragraph 55)
10. 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. (Paragraph 58)
Summary possession of people's homes (McCann
v UK)
11. 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. (Paragraph 71)
Interception of communications (Liberty
v UK)
12. 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. (Paragraph
79)
Prisoners' correspondence with medical practitioners
(Szuluk v UK)
13. 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.
(Paragraph 86)
Care proceedings (RK and AK v UK)
14. 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.
(Paragraph 92)
Length of criminal confiscation proceedings (Bullen
and Soneji v UK)
15. 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. (Paragraph
97)
Prisoners' voting rights (Hirst v UK)
16. 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. (Paragraph
107)
17. 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. (Paragraph 108)
18. 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. (Paragraph 116)
19. 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. (Paragraph
117)
20. 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. (Paragraph 119)
Security of tenure for Gypsies and Travellers
(Connors v UK)
21. In
view of [...] 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 [Housing and Regeneration Act 2008] 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. (Paragraph 123)
Interim measures (Rule 39 cases)
22. 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. (Paragraph 129)
23. 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. (Paragraph 130)
24. 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. (Paragraph 135)
Declarations of Incompatibility
25. Through
officials at the Ministry of Justice, we have been provided with
an updated version of this database, which adopts a different
narrative format, which in our view is difficult to follow and
less accessible. We are disappointed that the database is no longer
available on the Ministry of Justice website. We recommend that
the Ministry of Justice takes steps to resolve this problem to
enable widespread public access to its database on declarations
of incompatibility in order to enhance transparency in the implementation
process. We also repeat our recommendation that the database should
be reviewed and updated on at least a quarterly basis. (Paragraph
138)
Suitability of care workers to work with vulnerable
adults (Wright v Secretary of State for Health)
26. We
reiterate these concerns and encourage the Government to clarify
the issue. (Paragraph 141)
27. We
have not had an opportunity to enter into correspondence with
the Government on the scope of concerns raised by the Chairman
of the Administrative Justice and Tribunals Council (AJTC) about
the right to a fair hearing in relation to barring decisions made
under the Safeguarding Vulnerable Groups Act 2006. We publish
the recent letter of the Chairman of the AJTC with this report.
We consider that the concerns which he has raised about the scope
of the right to appeal in respect of barring decisions are serious
ones. We recommend that the Government should respond directly
to the Chairman of the AJTC, including its analysis of the compatibility
of Section 4 of the Safeguarding Vulnerable Groups Act 2006 with
Articles 6 and 8 ECHR. We call on the Government to publish that
response as soon as possible. (Paragraph 143)
Religious discrimination in sham marriages regime
(Baiai v Secretary of State for the Home Department)
28. We
welcome the Government's decision to bring forward a Remedial
Order in this case. Unfortunately, as we have no information about
the substance of the Order or its likely timetable, we are unable
to consider the substance of the Government's approach. We are
concerned that it is now almost a year since we asked for further
information on this case. The relevant declaration of incompatibility
is over three years old and yet we still have no clear proposals
to scrutinise or any timetable for action. (Paragraph 151)
29. If
the Government intends to remove the entire Certificate of Approval
Scheme, this would be a relatively simple legislative change,
which could have been achieved during this parliamentary session
with relative ease. However, we regret that the Government has
moved so slowly towards the production of a draft Order that it
cannot be considered before the end of this Parliament. In the
meantime, this scheme continues to operate in a discriminatory
way, in breach of the right to marry without discrimination. In
the light of the earlier prolonged delay in this case, further
procrastination is unacceptable. We call on the Government to
publish its draft Order and its timetable for reform as soon as
possible. While delay may be inevitable, because of the forthcoming
election, any work done by the Government so far to meet this
incompatibility should be published in order to inform the next
Parliament, and to encourage prompt action to remove the ongoing
incompatibility in section 19 of the Asylum and Immigration (Treatment
of Claimants etc) Act 2004. (Paragraph 152)
30. In
our last report, we set out a number of factors to be considered
by Government in their response to accepted declarations of incompatibility
in cases which were still subject to appeal. One of those factors
was administrative cost. Our comments were limited to a very narrow
set of circumstances, and even in those small number of cases,
our view remains that any declaration of incompatibility should
be removed without unnecessary delay. We repeat that the Government's
response to cases finding incompatibilities with Convention rights
should be proactive, in order to ensure that future breaches are
avoided and that public funds are not wasted pursuing repetitive
cases. (Paragraph 154)
31. We
would be grateful if the Government would keep us informed of
progress in the case of O'Donoghue v United Kingdom and provide
us with the judgment in the case and any Government response in
due course. (Paragraph 155)
Systemic issues
THE GOVERNMENT SYSTEM FOR RESPONDING TO JUDGMENTS
32. 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.
(Paragraph 163)
GUIDANCE FOR DEPARTMENTS
33. 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. (Paragraph
166)
PROVISION OF INFORMATION TO PARLIAMENT
34. 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. (Paragraph 172)
ACTION PLANS
35. 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. (Paragraph 175)
INFORMATION ON SYSTEMIC ISSUES
36. 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:
- all judgments against the UK,
or declarations of incompatibility, since the last evidence session;
- all measures taken to implement such judgments;
- the progress made towards the implementation
of all other outstanding judgments;
- the UK's record on implementation according to
the latest available statistics from the Council of Europe;
- the progress made towards the implementation
of Committee of Ministers' recommendations on national implementation;
- the implications of Strasbourg judgments against
other States for the UK's legal system (see further below). (Paragraph
178.vi)
OTHER WAYS OF IMPROVING PARLIAMENTARY SCRUTINY
37. We
recommend that there should be an annual debate in Parliament
on the JCHR's report scrutinising the Government's memorandum.
(Paragraph 179)
38. 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.
(Paragraph 180)
39. 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. (Paragraph 181)
40. 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. (Paragraph 182)
Target timetables
41. 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. (Paragraph 184)
Recognising the interpretative authority of the
Strasbourg Court
42. 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.
(Paragraph 186)
43. 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. (Paragraph 191)
44. 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. (Paragraph
192)
45. 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. (Paragraph
193)
Great coordination with Council of Europe bodies
46. 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.
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