Enhancing Parliament's role in relation to human rights judgments

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

Annex: Guidance for Departments on Responding to Court Judgments on Human Rights

1. The Government takes seriously its obligation to respond fully and in good time to judgments of the European Court of Human Rights. It is also committed to responding effectively and rapidly to declarations of incompatibility once they are no longer subject to appeal. The Government has agreed to keep the Joint Committee on Human Rights (JCHR) informed of its plans for the implementation of each judgment of the European Court of Human Rights finding a breach of human rights by the UK.[190] The Government has also agreed to keep the JCHR closely informed following a declaration of incompatibility by a UK court.

2. This Guidance is intended to assist Government departments by explaining the Committee's method of scrutinising the Government's response to human rights judgments and by setting out the Committee's expectations in relation to both the timing and content of the information provided by the Government. It seeks to draw together and rationalise previous recommendations made by the Committee, so that a comprehensive account of the Committee's expectations is available in one place.

WHEN DOES THE COMMITTEE'S SCRUTINY OF THE GOVERNMENT RESPONSE TO COURT JUDGMENTS BEGIN?

3. The Committee will begin to consider any compatibility issues raised by judgments of the European Court of Human Rights or declarations of incompatibility even before the judgment or declaration is final. The Committee's scrutiny of the Government's response will include consideration of the likelihood of success of any appeal against a declaration of incompatibility, or of any request for a reference to the Grand Chamber, or subsequent reference. Where the Committee considers that such an appeal, or reference to the Grand Chamber, has little prospect of success, it may make recommendations about the general measures necessary if there is an opportunity to remedy the incompatibility even before the judgment becomes final.[191] However, the Committee only reports in its implementation of judgments reports on the Government's response to judgments which have become final.

4. In the case of judgments of the European Court of Human Rights this is defined by Article 44 of the European Convention itself:

A judgment of the Grand Chamber is final.[192]

A judgment of a Chamber becomes final:[193]

when the parties declare that they will not request that the case be referred to the Grand Chamber; or
three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or
when the request to refer is rejected by the Grand Chamber.

5. In the case of declarations of incompatibility by UK courts, the declaration becomes final when the period for appealing against the judgment has expired and no appeal has been lodged.

WITH WHOM WILL THE COMMITTEE CORRESPOND?

6. The Committee regards the Human Rights Division in the Ministry of Justice as its central point of contact with the Government concerning the implementation of judgments of the European Court of Human Rights and Government responses to declarations of incompatibility.

7. The Committee may also correspond directly with the department or departments responsible for the particular area of law or policy affected by the court judgment.

TIMETABLE FOR IMPLEMENTATION

8. The Committee accepts 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.

9. However, the remedying of an incompatibility with the Convention should be swift as well as full. The Committee therefore expects the Government's remedial action following Court judgments to follow a target timetable, and will expect the Government to provide reasoned justifications for any departures from that timetable.

WHEN SHOULD THE COMMITTEE BE NOTIFIED OF COURT JUDGMENTS AND WHAT INFORMATION SHOULD BE PROVIDED?

10. The Ministry of Justice, working with the Foreign Office, 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.

11. In the case of declarations of incompatibility, it would be helpful to the Committee if the Ministry of Justice could at the same time provide a copy of the judgment of the court if it is not readily available, and the full text of the declaration in question if it is not set out in full in the judgment.

12. Where the judgment is a judgment of a Chamber of the European Court of Human Rights, the Government should indicate whether it is considering requesting that the case be referred to the Grand Chamber. Where the judgment is a judgment making a declaration of incompatibility, the Government should indicate whether it is considering appealing against the judgment.

13. Where the Government has decided not to request a referral of the case to the Grand Chamber, or to appeal against the making of the declaration of incompatibility, the Ministry of Justice or the relevant Minister should inform the Committee of the reasons for that decision.

14. The letter of notification should identify the lead department and identify the official to be treated as the official with lead responsibility for the matter in the department, along with their contact details.

WHEN SHOULD THE COMMITTEE BE INFORMED OF HOW THE GOVERNMENT PLANS TO RESPOND AND WHAT INFORMATION SHOULD BE PROVIDED?

15. The Committee normally expects the Government to have reached a detailed decision about how to implement a judgment of the European Court of Human Rights, or respond to a declaration of incompatibility, within four months of the date of the judgment. The Ministry of Justice, or the relevant department, should write to the Committee, setting out the Government's detailed plans for responding to the judgment, including the following:

Whether the Government considers that any general measures are required in order to remedy the incompatibility;
If the Government does not consider any remedial action necessary, its reasons for this view;
Whether the Government intends to use the remedial order process to remedy the incompatibility;
The measures the Government is intending to take to respond to the judgment; and
An indicative timetable for taking the necessary measures.

16. Where it is still not possible to state what measures will be taken, the letter should set out the steps to be taken to decide what the measures will be (e.g. a proposed consultation) with an indicative timetable for such steps.

17. The Government should keep the Committee updated about any changes or relevant developments in its plans.

18. In the case of judgments of the European Court of Human Rights, the Government should provide the Committee with a copy of its Action Plan provided to the Committee of Ministers at the same time as it is submitted to the Committee of Ministers. The Government should also provide the Committee with copies of all subsequent significant submissions to the Committee of Ministers, at the same time as they are sent to the Committee of Ministers.

19. Final decisions about how to remedy incompatibilities identified in Court judgments should normally be made no later than six months after the date of the final judgment.

20. If the Government is not able to meet the target timetable it should write to the Committee explaining the reasons why it is unable to meet the target. The Committee will scrutinise the reasons given by the Government for not being able to meet the target timetable in a particular case. If the Committee is not satisfied that there is a good reason for the delay in meeting the target timetable, it will report to both Houses that the delay in remedying the incompatibility is unjustifiable.

21. The Committee will continue to monitor progress towards the implementation of judgments on which it has previously reported.

WHEN SHOULD A REMEDIAL ORDER BE USED?

22. The relevant Minister may proceed by way of Remedial Order only if he or she considers that there are "compelling reasons" for doing so.[194] When deciding whether there are compelling reasons for proceeding by way of Remedial Order, the Minister should take into account the impact of the incompatibility on particular individuals and the need to remedy incompatibilities with Convention rights as speedily as possible. The Committee has urged the Government to make greater use of Remedial Orders in appropriate cases in order to remedy incompatibilities more swiftly.

WHEN SHOULD THE URGENT PROCEDURE BE USED?

23. If the Minister decides to proceed by way of Remedial Order, he or she may proceed by the urgent or the non-urgent procedure, taking into account:

The significance of the rights which are, or might be, affected by the incompatibility;
The seriousness of the consequences of identifiable individuals or groups from allowing the continuance of an incompatibility with any right;
The number of people affected;
The adequacy of compensation arrangements as a way of mitigating the effects of the incompatibility; and
Alternative ways of mitigating the effect of the incompatibility pending amendment to primary legislation.

24. The decisive factor in deciding whether to adopt the urgent or non-urgent procedure for a Remedial Order should be the current and foreseeable impact of the incompatibility it remedies on anyone who might be affected by it.[195]

WHAT GENERAL INFORMATION ABOUT SYSTEMS FOR IMPLEMENTATION DOES THE COMMITTEE EXPECT?

25. In addition to the information sought above in relation to the general measures necessary to remedy incompatibilities with the Convention, the Committee also expects to be provided with more general information about how the Government's systems for responding fully and swiftly to court judgments concerning human rights are working in practice.

26. Two months before the Minister with responsibility for human rights gives oral evidence to the Committee, it will ask the Government for a memorandum covering:

i) all judgments in leading cases against the UK, or declarations of incompatibility, since the last evidence session;

ii) a summary of the measures taken to implement such judgments, and any other outstanding judgments;

iii) the UK's record on implementation according to the latest available statistics from the Council of Europe;

iv) the progress made towards the implementation of Committee of Ministers' recommendations on national implementation; and

v) the implications of Strasbourg judgments against other States for the UK's legal system.

FULL IMPLEMENTATION

27. When deciding what remedial action is required the Committee expects the Government to demonstrate a commitment to full implementation rather than minimal compliance with court judgments. The Committee therefore expects the remedial action proposed by the Government not only to prevent a repeat of identical violations in the future but also to prevent future violations which are predictable as a result of the judgment in question.[196]

28. The Committee considers that the powers to make remedial orders in the Human Rights Act 1998[197] are wide enough to permit the use of Remedial Orders for this purpose.[198]

WHEN DOES THE COMMITTEE'S SCRUTINY OF THE GOVERNMENT'S RESPONSE TO COURT JUDGMENTS STOP?

29. The Committee's formal monitoring of the Government's response to judgments of the European Court of Human Rights will stop when the Committee of Ministers has made a decision to close its supervision of the case.

30. The Committee's formal monitoring of the Government's response to a declaration of incompatibility will stop when the Committee is satisfied that the incompatibility which is the subject of the declaration has been removed.

31. Where the remedying of the incompatibility requires legislation, the Committee will not regard the incompatibility as having been remedied until the legislation is in force.[199]

CORRESPONDENCE

32. The Committee may write to the Ministry of Justice or the relevant department shortly after the judgment, and before receiving the letter referred to above, if it considers that the need for remedial action is urgent in view of the impact on those affected, or if there are additional specific questions it wishes to ask arising out of the judgment. The Ministry of Justice will be copied in to any correspondence with the Department

FURTHER INFORMATION

33. The Committee may seek further information from the department at any point during its scrutiny of the Government's response. Information may be sought by informal contact at official level. However, anything which may be contentious will be dealt with in a letter from the Chair to the Minister which will be published with the Committee's report.

INVOLVEMENT OF CIVIL SOCIETY

34. The Committee actively seeks the involvement of civil society in its scrutiny of the Government's response to court judgments concerning human rights. It publishes all correspondence with the Government on its website shortly after it has been sent or received. It may from time to time publish a press notice identifying the issues which it is scrutinising and inviting submissions in relation to those issues.[200]

CO-ORDINATION WITH COUNCIL OF EUROPE BODIES

35. The Committee intends to achieve closer co-ordination of its work monitoring the implementation of Strasbourg judgments with the work of Council of Europe bodies on the same subject. The Committee's staff are in close contact with officials at the Department for the Execution of Judgments at the Secretariat of the Committee of Ministers and with officials in the secretariat to the Legal Affairs and Human Rights Committee of the Parliamentary Assembly of the Council of Europe.

WHEN WILL THE COMMITTEE REPORT?

36. The Committee aims to report annually.

THE COMMITTEE'S REPORT

37. The Committee will consider both the adequacy and expeditiousness of the Government's response to Court judgments since its last report on the subject and will report thereon to Parliament. The Committee may comment on the Government's justification for any delay in implementation and may itself recommend general measures to remedy the incompatibility if it is not satisfied that the Government's response is adequate.[201] The Committee's report will cover progress made in responding to judgments which are outstanding.

38. The Committee's report will also consider the adequacy of the Government's systems and procedures for responding to Court judgments on human rights and may make recommendations for improving those arrangements, in particular with a view to enhancing Parliament's role.

39. Correspondence with the Department concerned or the Ministry of Justice will normally be published with the Committee's Report.

GOVERNMENT RESPONSE

40. The Committee expects a response to its Report by the Government, in accordance with the normal convention for replying to select committee reports.[202]

ANNUAL DEBATE IN PARLIAMENT

41. The Committee will seek to ensure that there is an annual parliamentary debate on its Report on the Government's Response to Human Rights Judgments and the Government's Response to the Committee's report.

AMENDMENTS TO BILLS TO GIVE EFFECT TO THE COMMITTEE'S RECOMMENDATIONS

42. Where appropriate the Committee may, in its legislative scrutiny work, propose amendments to Bills to give effect to its recommendations in its work on human rights judgments, for example by amending the law to remove an incompatibility.[203]

FOLLOW UP

43. The Committee may follow up its work on implementation of judgments by inquiring into whether the measures adopted to remedy the incompatibility have in practice prevented more violations from arising.

REVIEW

44. The Committee will keep this guidance under review in light of its experience of monitoring the Government's responses to court judgments in practice.

190 The Government Response (2009), p. 6. Back

191 See e.g. Ninth Report of Session 2009-10, Legislative scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill, HL 67/HC 402, paras 1.82 - 1.97, recommending amendments to the stop and search provisions in the Crime and Security Bill to give effect to the Chamber judgment in Gillan and Quinton v UK where, in the Committee's view, the prospects of the Government succeeding before the Grand Chamber were remote. Back

192 Article 44(1) ECHR. Back

193 Article 44(2) ECHR. Back

194 Section 10(2) and (3)(b) Human Rights Act 1998. Back

195 Seventh Report of Session 2001-02, Making of Remedial Orders, HL Paper 58/HC 473 Back

196 See e.g. Sixteenth Report of Session 2005-06, Proposal for a Draft Marriage Act (1949) Remedial Order 2006, HL 154/HC 1022 paras 8-9. Back

197 Section 10(1)(b) and Schedule 2 HRA 1998. Back

198 Twenty Ninth Report of Session 2005-06, The Draft Marriage Act 1949 (Remedial) Order, paras 6 - 10. Back

199 See, for example, the concern expressed above, paras 115-118, about the failure to bring into force the amendment to the Mobile Homes Act which is necessary to remedy the incompatibility identified by the European Court of Human Rights in Connors v UK. Back

200 See e.g. JCHR Press Notice No. 58 of Session 2008-09, Call for Evidence: Implementation of Strasbourg Judgments and Declarations of incompatibility (30 July 2009) http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/declarations_of_incompatibility.cfm Back

201 See for example, the Committee's report on the implementation of the decision in S & Marper v UK, considered above in paras 38 - 55. Back