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

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


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)


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)


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)


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)


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)


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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