5 Other matters arising
Other matters: Ministerial approaches
to remedial orders
55. The Home Secretary and the Prime Minister have
both publicly expressed their disagreement with the Supreme Court's
judgment in this case.[75]
The Home Secretary indicated that the Government would take the
"minimum possible approach" to this ruling.[76]
There is a clear risk in taking this minimal approach to addressing
violations of human rights standards: it creates a risk of unnecessary
further violations and costly litigation. This risk was expressly
recognised by our predecessor JCHR in its previous report on the
implementation of human rights judgments, and its accompanying
guidance to departments. The then Committee said:
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 evidence, for
example, in the Government's response to the decision of the Court
concerning the retention of DNA samples [...] 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.[77]
56. While
we acknowledge the political interest in Government's seeking
to maintain their policy objectives when responding to adverse
human rights judgments, we share our predecessor's concerns that
the first objective of any remedial order or legislation designed
for this purpose should be to remove the relevant violation. While
States have discretion in how they respond to individual judgments,
bringing forward proposals which clearly do not meet the concerns
of the relevant court involves asking Parliament to acquiesce
in an approach which will encourage repetitive litigation and
could lead to future violations of individual rights. Remedial
orders are designed to be used when the Government intends to
remove a violation and provide a fast-track parliamentary procedure
for remedying breaches of the Convention quickly. We consider
that it is our role to advise both Houses about both the substance
of any measures proposes and to highlight any unusual and inappropriate
use of this power. Introducing measures which create a significant
risk of further litigation using this special parliamentary procedure
appears to us to undermine the purpose for which it was intended.
Other matters: consistency across
the UK?
57. It is clear at present that there are
likely to be three distinct approaches in Scotland, Northern Ireland
and England and Wales to the scope of any review. It is only in
England and Wales that it is proposed that review should not incorporate
an element of judicial consideration by an independent and impartial
tribunal. The Northern Ireland Executive has indicated that they
have had advice that a review by the police, accompanied by judicial
review, would be inadequate to remove the violation identified
in Thompson. In the Committee's correspondence with the
Minister, it asked for further information on coordination with
the devolved Governments on the response to the judgment in this
case. The Minister addresses the issue of the possibility for
cross-border displacement of offenders across the different parts
of the UK and the need for mutual recognition of reviews in her
response. While
it is clearly open to each of the constituent parts of the UK
to adopt a different approach to the Supreme Court's judgment,
we are concerned that if the Government proceeds with its minimalist
response to the violation identified that further litigation in
England and Wales is inevitable. In principle however, we note
that different approaches, each of which removed the violation,
could be entirely appropriate for each of the administrations
responding to adverse human rights judgments. Care must however
be taken, when this discordant approach arises to ensure that
the ECHR is respected across the UK and that mechanisms are in
place to ensure that geography does not lead to significant disparities
in the protection offered to individuals' rights.
58. There are a number of matters arising from the
approach in the draft Order which differ from the approach in
Scotland. For example, if an offender in Scotland is subject to
a Sexual Offences Prevention Order, and his notification requirements
are no longer justified, the SOPO will fall away without the need
for a separate application to be made to the magistrates' court
which made the SOPO. This perhaps is logical, since the threshold
of risk required for a SOPO is greater than that required to justify
the imposition of notification requirements. The Government proposes
that in England and Wales, before any review can be conducted,
any SOPO must be discharged. This will require an ex-offender
to make two separate applications, with associated costs, one
to the court to discharge the SOPO and a subsequent application
to the Chief Officer to remove the requirement to notify. This
may be a necessary distinction as a result of the lack of judicial
involvement in the review process envisaged in the Remedial Order.
The Committee asked for information on the likely costs of this
approach and minimal information was provided. We
draw the proposed relationship between Sexual Offences Prevention
Orders and the review mechanism proposed by the Government to
the attention of both Houses. Members may wish to ask the Government
to provide fuller information on how this relationship will work
in practice, clarify the distinct assessment of risk which will
be applied by the Court discharging the SOPO and the Chief Officer
considering review of notification requirements, and to explain
any likely associated costs of requiring a second, separate risk
assessment exercise.
Other matters: costs, convenience
and remedial orders
59. The impact assessment makes a number of references
to the relative cost savings and administrative convenience associated
with a system of police-led review. For example:
It is envisaged that the preferred policy outlined
here will enable costs to be kept to a minimum.[78]
60. In this case, it is clear that cost saving is
not the sole motivator for the Government's choice of approach.[79]
However, wider issues arise in connection with the relevance of
administrative convenience or costs savings in connection with
the making of remedial orders. These factors may be relevant
to the Committee's assessment of an Order when multiple options
are available which each remove the violation identified by the
Court. Unfortunately,
in cases such as this, where the proposal made by the Government
does not meet the violation identified, it is clear that costs
and administrative convenience cannot outweigh the risks associated
with further future litigation costs and continued violations
of the ECHR.
75 HC Deb, 16 Feb 2011, Cols 955,959 Back
76
HC Deb, 16 Feb 2011, Col 959 Back
77
Fifteenth Report of 2009-10 Enhancing parliament's role on
human rights judgments, HL 88, HC 455, paras 168-170. Back
78
Impact Assessment, p 16 Back
79
Impact Assessment, pps 9-11 Back
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