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

Letter to the Chair from Rt Hon Michael Wills MP, Minister of State, Ministry of Justice, dated 30 September 2009

THE GOVERNMENT'S RESPONSE TO HUMAN RIGHTS JUDGMENTS

Thank you for your letter of 21 July to Jack Straw regarding the Government's response to the Human Rights judgements you highlight. In your letter, you made a number of specific requests for information, which I shall address in the same order raised.

THE GOVERNMENT'S WORK ON HUMAN RIGHTS JUDGMENTS SINCE JUNE 2008

The Government takes seriously its obligation to respond fully and in good time to judgments of the European Court of Human Rights. As you know, we have a strong record in doing so, having had many judgments discharged from scrutiny by the Committee of Ministers of the Council of Europe over the last two years. The Government likewise remains committed to responding effectively and rapidly to declarations of incompatibility once they are no longer subject to appeal.

In both of these areas, MoJ officials work with their colleagues across Whitehall to provide advice and encourage progress and in partnership with their colleagues in the Foreign and Commonwealth Office in respect of Strasbourg judgments.

Although this light-touch co-ordination role is effective, we continue to consider if there are ways in which MoJ officials can better support other departments in implementing judgments that fall within their policy remit. At this time, we are considering whether and how to develop further and formalise the guidance that is given to departments.

The Government has been pleased this year to welcome to the United Kingdom a delegation from Georgia who, at the instigation of the Council of Europe, came to study as a model of good practice the procedures the Government has in place for the conduct of European Court of Human Rights litigation and for the implementation of Strasbourg judgments. Similarly, in relation to the implementation of the judgments in the Northern Ireland cases (of which more below), a delegation from Russia is scheduled to visit the Historic Enquiries Team (HET) in Northern Ireland in late October. The purpose of this visit will be to present the HET methodology and processes in more detail, focussing particularly on issues around the disclosure of information and family liaison, so as to demonstrate how to get the most out of the evidence still available in historic cases despite the passing of time.

Recommendation CM/Rec (2008) 2 on efficient domestic capacity for rapid execution of the judgments of the European Court of Human Rights

This recommendation was adopted by the Committee of Ministers of the Council of Europe in February 2008. It suggests that States consider appointing a co-ordinator of their national response to European Court of Human Rights judgments.

The Joint Committee recommended in its last Report[23] that the Ministry of Justice should adopt such a role. For the reasons given in the Government's response[24] to that Report, we are not persuaded that there would be any significant benefit in instituting a stronger co-ordination mechanism than that which currently exists.

Judgments considered in the Committee's last Report

The information below updates the position in respect of cases mentioned in the Joint Committee's last Report and the Government's response thereto. I shall cover only those cases about which the Joint Committee has not specifically requested further information from the Government department responsible for the implementation of the judgment. In these cases, I understand that responses have been, or will shortly, be sent and which I therefore do not propose to repeat here. In line with this approach, there will also be a separate letter responding to the Joint Committee's request for information regarding Hirst v UK shortly.

Two cases[25] also remain subject to continuing judicial proceedings. In these two cases there is therefore no final judgment which, if adverse, would fall to be implemented.

Trade union membership (ASLEF v UK)[26]

The Joint Committee recognised in its last Report the Government's effective implementation of this judgment.[27]

At its meeting of 2-5 June 2009, the Committee of Ministers decided that the Government had taken the appropriate action needed to implement this judgment effectively, and accordingly agreed to close its scrutiny of the case. The Committee will do so by way of a final resolution in due course.

Corporal punishment of children (A v UK)[28]

In the judicial review challenging the revised law on corporal punishment of children in Northern Ireland, the Northern Ireland Court of Appeal dismissed the appeal of the Northern Ireland Commissioner for Children and Young Persons without considering the substance of the case on the ground that she was not a "victim"[29] of the act about which she complains.

The Northern Ireland High Court had earlier considered in detail and rejected the Commissioner's arguments that Northern Ireland legislation is incompatible with the Convention. The Court of Appeal cast no doubt on this judgment of the High Court. The Commissioner has indicated that she does not intend to appeal further.

The Crown Prosecution Service monitoring has identified one case since the law was changed in which the defence of "reasonable punishment" was raised. The charge in that case was of child cruelty, the defendant having beaten his children with a riding crop. The judge directed the jury that under section 58 of the Children Act 2004 "reasonable punishment" is not a defence to the charge of child cruelty. Both prosecution and defence lawyers were aware of this legal position and agreed the accuracy of the judge's direction prior to its being given to the jury. The defendant was convicted. This case shows clearly that the new law is working in practice.

The Government has for some time taken the view that the UK is now fully compliant with the European Court of Human Rights judgment in this case. If the case of A came to court now, the defence of 'reasonable punishment' would not be available. In September 2008 the Committee of Ministers noted with satisfaction the changes in the legislative framework made following the judgment and the wide range of accompanying awareness-raising measures.

At its meeting on 2-5 June 2009 the Committee decided that the Government had taken the appropriate action needed to implement the judgment in the case of A v UK effectively and accordingly agreed to close its scrutiny of the case. It instructed the Secretariat to draft a final resolution formally closing the case. The UK Government fully supported the decision in the light of the conclusions of the Committee's debate in September 2008 and developments since then, including the Government's continuing work to promote positive parenting. This includes the publication of a booklet, intended for parents, explaining the law on smacking and actively discouraging the practice. The booklet, Being a Parent in the Real World, has now been published and is being widely distributed.

The Committee adopted a final resolution closing its scrutiny of the case at its 15-16 September 2009 meeting.

Investigations into the use of lethal force (McKerr, Jordan, Finucane, Kelly, Shanaghan and McShane v UK)[30]

The Government has put together a detailed package of measures to implement these judgments, the detail of which is set out in the last Government response in this area.

As further noted in that response, the Committee of Ministers has previously made clear in its public assessments that the United Kingdom has met many of the requirements of the judgments. At its meeting of 17-19 March 2009, the Committee adopted an interim resolution, of which I enclose a copy, closing a number of measures relating to this group of cases.

The general measure on defects in police investigations has now been closed, recognising that the Historical Enquiries Team (HET) is appropriately structured and has the capacity to finalise its work. The general measure on violation of Article 34, found in the McShane case, has also been formally closed.

Only one general measure remains outstanding, which relates to the Police Ombudsman's five-year review of her powers. This review has now been published, and the Government's consultation thereon closed on 5 March 2009. The Government is now considering the responses to that consultation.

The March 2009 interim resolution also closed individual measures in two of the six cases. In McShane, the HET has reported on its investigation, and the inquest and related judicial review proceedings have concluded. The Director of Public Prosecutions for Northern Ireland is considering whether any further criminal proceedings should be brought in light of the facts revealed by the inquest. Any proceedings as a result of his review would take the usual course through the criminal prosecution process.

In Finucane, the Government has taken appropriate steps to remedy the violations found by the Court relating to lack of public scrutiny and the access of the family to the investigation. The Government continues to discuss with the family the possibility of holding a statutory inquiry into Mr Finucane's death. These discussions are however separate from the implementation of the judgment, which is now complete.

The four remaining cases are subject either to inquest proceedings, or review by the HET or the Police Ombudsman. The results of the Finucane and McShane cases demonstrate that the Government is committed to carrying out effective investigations as far as possible in accordance with the UK's obligations under Article 46 of the ECHR, and to ensuring rapid progress of investigations as far as that is within the Government's power.

Access to social housing (Morris v Westminster City Council[31])[32]

Schedule 15 to the Housing and Regeneration Act 2008, which resolves this incompatibility, came into force on 2 March 2009. The effect of this provision is set out in the last Government response.

The declarations of incompatibility made in this case and in the related case of Gabaj have therefore been resolved.

Security of tenure for Gypsies and Travellers (Connors v UK)[33]

Section 318 of the Housing and Regeneration Act 2008 will remove the exclusion for local authority Gypsy and Traveller sites from the Mobile Homes Act 1983. This will improve security of tenure for Gypsies and Travellers on local authority sites, and complete the implementation of this judgment. The Order bringing this provision into force in England is expected to be laid before Parliament in the autumn.

Request for report on all adverse human rights judgments

The Joint Committee recommended in its last Report[34] that the Government should publish an annual report on adverse judgments, as is the practice in the Netherlands.

In the previous Government response, it was noted that:

— it is already the practice of the Government to draw declarations of incompatibility to the Joint Committee's attention, and to update the Committee on any later appeals;

— the Ministry of Justice also encourages lead departments to update the Joint Committee regularly on their plans for responding to declarations of incompatibility;

— the Ministry of Justice maintains a list of all declarations of incompatibility and their resolution, of which each regular update is sent to the Joint Committee's legal advisers; and

— action plans for the implementation of Strasbourg judgments are now mandatory, of which copies are provided to the Joint Committee in respect of United Kingdom cases whenever possible.

For these reasons, the previous response concluded that:

This remains the Government's view. It should, in addition, be noted that the FCO regularly informs the Committee of any adverse Strasbourg judgments that are handed down.

I hope that this information is useful to the Committee in its inquiry, and I look forward to the conclusions you draw in your report.

30 September 2009