Human Rights Judgments - Human Rights Joint Committee Contents

1  Introduction


1.1 At the beginning of this Parliament, we decided to continue the practice established by our predecessor Committees of scrutinising the Government's responses to court judgments concerning human rights, made both by the UK courts and the European Court of Human Rights. Like our predecessor Committees, we believe that Parliament often has an important role to play following a court judgment which finds a law, policy or practice in breach of human rights. That role includes considering whether a change in the law is necessary in light of the judgment and, if so, what that change should be, and then scrutinising the adequacy and timeliness of the Government's response to the judgment. Such parliamentary scrutiny facilitates democratic input into legal changes following court judgments and so helps to counter the perception that the legal protection of human rights tends to marginalise the role of democratic institutions.

1.2 We adopted the Guidance for Departments published by our predecessor Committee at the end of the last Parliament[1] as the basis for our ongoing scrutiny of the Government's responses to court judgments, and we also actively sought to encourage more input from civil society into our work on human rights judgments. We issued a call for evidence early in the Parliament, asking for submissions in relation to any judgments in which UK courts or the European Court of Human Rights had found a breach of human rights, and identifying a number of specific issues raised by some of those judgments on which we were particularly keen to receive submissions.[2]

1.3 Over the course of this Parliament, our methodology in scrutinising the Government's response to human rights judgments has continued to evolve. In the 2005-2010 Parliament, our predecessor Committee reported periodically on human rights judgments, publishing four Reports altogether on the subject over the life of the Parliament.[3] In the current Parliament, we have not published dedicated periodic Reports but rather have sought to integrate our work on human rights judgments into other aspects of our work. The purposes of this Report, which is our only Report on Human Rights Judgments in the current Parliament, are to inform Parliament about our activities in relation to human rights judgments over the course of the Parliament; to identify what we consider to be the most serious issues on which inadequate progress is being made towards implementation and to make some specific recommendations in relation to particular judgments; and to make some more general recommendations about how to increase still further Parliament's involvement following court judgments concerning human rights.

1.4 This change in our approach to our work on human rights judgments has been greatly assisted by the Government's publication of annual reports to us setting out the Government's position on the implementation of adverse human rights judgments from the European Court of Human Rights and the domestic courts, in advance of our evidence sessions with the Lord Chancellor and Secretary of State for Justice. We welcome the provision of these regular reports on human rights judgments and commend the Government for its positive response to the recommendation of our predecessor Committee. In chapter 6 below we consider whether there is scope to make the Government's report on human rights judgments even more useful to Parliament.

Our work on human rights judgments in the 2010-15 Parliament

1.5 We were grateful to receive a number of submissions in response to our call for evidence on human rights judgments in 2010, and we used those submissions to help us decide which issues to prioritise in our scrutiny of the Government's responses.

1.6 We scrutinised the Government's response to certain judgments in a number of our legislative scrutiny Reports. In our Report on the Protection of Freedoms Bill, for example, we scrutinised the Government's response in England and Wales to the Court's judgment on the legal framework for the retention of biometric data in Marper v UK.[4] We continued to press the Government to accept the full implications, in a variety of contexts, of the judgment of the European Court of Human Rights in A v UK that the right to a fair hearing in Article 6(1) of the Convention requires that a person whose Convention rights are affected by various counter-terrorism measures must be given sufficient information about the allegations against them to enable them to give effective instructions to their special advocate.[5]

1.7 We also scrutinised and reported on three remedial orders introduced by the Government to give effect to court judgments which found particular provisions of UK law to be incompatible with the Convention. The first remedial order concerned the abolition of the "Certificate of Approval" scheme whereby people subject to immigration control were required to obtain the Home Secretary's permission to marry, other than in a Church of England religious ceremony, which the House of Lords had declared incompatible with the right to marry without discrimination on grounds of religion.[6]

1.8 The second remedial order concerned the exceptional counter-terrorism power to stop and search without reasonable suspicion, after the European Court in Gillan and Quinton v UK had found the legal framework for such stop and searches to be incompatible with the right to respect for private life, because the powers were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.[7]

1.9 The third remedial order concerned the lack of opportunity for independent review of the requirement to be on the sex offenders' register indefinitely, which the UK courts found to be a disproportionate interference with the right to respect for private life.[8]

1.10 In relation to each of these remedial orders we made detailed recommendations as to how the Government's proposed response to the relevant judgment could be improved, and although the Government did not accept all of our recommendations it did engage constructively with our scrutiny of the remedial orders and made a number of significant changes in the light of our Reports.

1.11 During this Parliament, as part of our work on human rights judgments, we also took oral evidence for the first time from judges, including the President of the Supreme Court and the Lord Chief Justice, and the President and Registrar of the European Court of Human Rights.[9] In addition, we took oral evidence from the Government ministers responsible for human rights and asked them questions about the Government's response to certain judgments.[10]

1.12 We visited the Court in Strasbourg, where we had meetings with Judges from the Court, officials from the Court Registry and the Department for the Execution of Judgments in the Committee of Ministers, and members of our sister committee in the Parliamentary Assembly of the Council of Europe, the Committee for Legal Affairs and Human Rights.

1.13 In July 2013 we published another call for evidence, inviting submissions on the Government's latest report on human rights judgments, on any cases in which a breach of human rights had been found, and on a number of specific issues which we identified.[11] We are again grateful to all those who responded to our call for evidence.[12] We considered all of the submissions, even though we do not report here on all of the issues raised, but focus on those where there remain outstanding issues and measures of implementation are still required.

1   Guidance for Departments on Responding to Court Judgments on Human Rights, Annex to Fifteenth Report of Session 2009-10, Enhancing Parliament's role in relation to human rights judgments, HL Paper 85/HC 455. Back

2   JCHR to review Government's response to judgments identifying breaches of human rights in the UK (10 September 2010)  Back

3   Thirteenth Report of Session 2005-06, Implementation of Strasbourg Judgments: First Progress Report, HL Paper 133/HC 954; Sixteenth Report of Session 2006-07, Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights, HL Paper 128/HC 728; Thirty-First Report of Session 2007-08, Monitoring the Government's Response to Human Rights Judgments: Annual Report 2008, HL Paper 173/HC 1078; and Fifteenth Report of Session 2009-10, Enhancing Parliament's role in relation to human rights judgments, HL Paper 85/HC 455. Back

4   Legislative Scrutiny: Protection of Freedoms Bill, Eighteenth Report of Session 2010-12, HL Paper 195/HC 1490, paras 6-87. Back

5   See e.g. Fourth Report of Session 2010-12, Legislative Scrutiny: Terrorist Asset-Freezing etc. Bill (Second Report), HL Paper 53/HC 598, paras 1.15-1.24; TPIMs reports; Justice and Security Green Paper and Justice and Security Bill Reports. Back

6   Fifth Report of Session 2010-12, Proposal for the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Remedial) Order 2010, HL Paper 54/HC 599; Ninth Report of Session 2010-12, Draft Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Remedial) Order 2010-second Report, HL Paper 111/HC 859. Back

7   Fourteenth Report of Session 2010-12, Terrorism Act 2000 (Remedial) Order 2011: Stop and Search without Reasonable Suspicion, HL Paper 155/HC 1141; Seventeenth Report of Session 2010-12,Terrorism Act 2000 (Remedial) Order 2011: Stop and Search without Reasonable Suspicion (Second Report), HL Paper 192/HC 1483. Back

8   Nineteenth Report of Session 2010-12, Proposal for the Sexual Offences Act 2003 (Remedial) Order 2011, HL Paper 200/HC 1549; First Report of Session 2012-13, Draft Sexual Offences Act 2003 (Remedial) Order 2011, HL Paper 8/HC 166. Back

9 ;;.  Back

10   See e.g.; Back

11   Human Rights Judgments-Call for Evidence (17 July 2013)  Back

12   We received evidence from the AIRE Centre and Kalayaan; Bail for Immigration Detainees; the British Humanist Association; ECPAT UK; the Equality and Human Rights Commission; Dr. Matthew Gibson; the Immigration Law Practitioners' Association; the Law Society; the Law Society of Scotland; Liberty; the Mental Health in Immigration Detention Action Group; the Ministry of Justice; the National Secular Society; the Prison Reform Trust; and Zaiwalla & Co.  Back

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Prepared 11 March 2015