1 Introduction
Background
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) http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news/human-rights-judgments-call-for-evidence/
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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
http://www.parliament.uk/documents/joint-committees/human-rights/JCHR%2015%20November%20transcript.pdf
; http://www.parliament.uk/documents/joint-committees/human-rights/JCHR_Transcript_13_March_2012_UNCORRECTED.pdf;.
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10
See e.g. http://www.parliament.uk/documents/joint-committees/human-rights/Corrected_Oral_evidence_201211.pdf;
http://www.parliament.uk/documents/joint-committees/human-rights/HC915_13-12-18_TRANSCRIPT_Grayling_Davies.pdf Back
11
Human Rights Judgments-Call for Evidence (17 July 2013)
http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news/human-rights-judgments-call-for-evidence1/
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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.
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