Human Rights Judgments - Human Rights Joint Committee Contents

3  Insufficient progress towards implementation

The three areas of concern

3.1 There are three broad categories of case in which insufficient progress is being made towards implementation of judgments of the European Court of Human Rights:

·  The group of historic cases from Northern Ireland concerning the inadequacy of the investigation of the use of lethal force by State agents (the so-called "McKerr Group", which comprises six cases: McKerr, Jordan, McShane, Shanaghan, Kelly and Finucane).

·  The non-implementation in Northern Ireland of certain judgments which have been implemented in the rest of the UK.

·  The failure to amend the law in response to the Court's finding of a violation in relation to the UK's ban on prisoner voting (Hirst and Greens and MT).

Inadequate investigations into deaths in Northern Ireland

3.2 The McKerr group of cases concern the adequacy of investigations into deaths in the 1980s and 1990s in Northern Ireland, either in security force operations, or in circumstances giving rise to suspicions of collusion with the security forces. The Court in these cases found a number of violations of the procedural obligation under article 2 ECHR (the right to life) to conduct an effective investigation into such deaths, including lack of independence of investigating police officers; lack of public scrutiny and information to victims' families on reasons for decisions not to prosecute; defects in the police investigations; limitations on the role and scope of the inquest procedure; absence of legal aid for the representation of the victims' families; and delays in inquest proceedings.

3.3 The Government has adopted a number of general measures to give effect to these judgments, including reforms to the inquest procedure in Northern Ireland and the establishment of bodies to carry out investigations, including the Police Ombudsman of Northern Ireland and the Historical Enquiries Team ("HET"). The Committee of Ministers closed its supervision of a number of implementation issues as a result of these measures, but a number of outstanding issues remain, including ongoing concerns about defects in the investigations, such as the lack of independence of police investigators. The failure to implement the judgments in full is now giving rise to new cases about investigative delay which are also reaching the European Court of Human Rights, resulting in new findings of violations against the UK.[23]

3.4 The effective investigation of cases which are the legacy of "the Troubles" in Northern Ireland has proved a particularly intractable problem in practice because it is so intimately bound up with the much larger question of dealing with the past in a post-conflict society. The processes established to provide the effective investigations which Article 2 ECHR requires, through the institutions of the Police Ombudsman and the HET, have been beset with difficulties and have also been the subject of critical independent reviews which have called into question their compliance with the requirements of Article 2. Investigations through these processes have been subject to extensive delays, as have the so-called "legacy inquests".

3.5 The Stormont House Agreement, concluded in December 2014, contains a number of provisions about dealing with the past in Northern Ireland which are of potential relevance to the resolution of these outstanding judgments. There is agreement that any approach to dealing with the past must comply with certain principles, including upholding the rule of law, facilitating the pursuit of justice and information recovery, and human rights compliance.[24] Most significantly, there is agreement on a single comprehensive mechanism, the "Historical Investigations Unit", to take forward outstanding cases from the HET process and the legacy work of the Police Ombudsman.[25] There is also agreement that "the Executive will take appropriate steps to improve the way the legacy inquest function is conducted to comply with ECHR Article 2 requirements." The UK Government also makes clear in the Agreement that "it will make full disclosure to the HIU,[26] and the HIU is to aim to complete its work within five years.[27]

3.6 We welcome the relevant provisions in the Stormont House Agreement as a potentially significant breakthrough in relation to these long-delayed cases of non-implementation. However, the issues are complex and their resolution will depend on the detailed implementation of the very general indications contained in the Stormont House Agreement. The Agreement does not specify a timeframe within which the new Historical Investigations Unit is to be established. The Chief Constable of Northern Ireland has said that he expects it to be two years before the new Unit is ready to start work.[28]

3.7 We are particularly concerned by the prospect that it may be two years before the new Historical Investigations Unit starts its work, especially as in the meantime the work of the Historical Enquiries Team is going to be carried on by the smaller Legacy Investigations Branch of the PSNI. As well as having fewer resources at its disposal than its predecessor, the Legacy Investigations Branch cannot itself satisfy the requirements of Article 2 ECHR because of its lack of independence from the police service. We recommend that the legislation establishing the Historical Investigations Unit be treated as an urgent priority by the new Government and every effort made to ensure that the new Unit is up and running well before the two years anticipated by the Chief Constable. We also recommend that the arbitrary limit of 5 years for the life of the HIU is not necessarily consistent with Art 2 ECHR as investigation of the hundreds of outstanding cases may well take longer than the 5 years allocated.

3.8 We also recommend that the parties to the Agreement publish a more detailed plan for implementation of the relevant provisions of the Agreement, with clear target dates for the different elements, more specifics about how the delays in legacy inquests will be overcome, and more detail about precisely how the additional £150million over five years will be allocated, including whether any additional resources will be made available to coroners in Northern Ireland, and what proportion of those monies will be allocated to the HIU.

Lack of implementation in devolved jurisdictions, especially Northern Ireland

3.9 It has become increasingly clear during the course of this Parliament that one of the reasons for insufficient progress being made towards the implementation of certain judgments against the UK has been delays in implementation in one of the devolved jurisdictions. While one such case concerned Wales,[29] the problem has mainly arisen in relation to Northern Ireland.

3.10 We are aware of three cases in particular in which full implementation of a judgment against the UK has been delayed because the judgment has been implemented in the rest of the UK but not in Northern Ireland: Marper concerning the retention of DNA; MM concerning the indefinite retention and disclosure of police caution data; and MH concerning the ability of a person lacking legal capacity to challenge the legality of their detention under mental health legislation.

3.11 The most serious delay concerns the implementation of the 2008 judgment in Marper concerning the retention of DNA profiles and cellular samples. The legislative response to this judgment in England and Wales was primarily contained in the Protection of Freedoms Act 2012, which was brought into force on 31 October 2013 and broadly adopted the model already provided for in legislation of the Scottish Parliament. We scrutinised the relevant provisions of the Bill carefully against the judgment of the European Court of Human Rights in Marper in our legislative scrutiny Report on the Protection of Freedoms Bill.[30] Although we had some concerns on points of detail, we welcomed the provisions in the Bill as creating a less intrusive and more proportionate legal regime for the retention of biometric material than the provisions of the Crime and Security Act 2010, the previous Government's response to the Marper judgment of which our predecessor Committee in the last Parliament was very critical.[31] We accepted that legislation was not required in Scotland, where the legal framework for the retention of biometric material already contained sufficient safeguards to make it compatible with the right to respect for private life in the ECHR.

3.12 The judgment has still not been implemented, however, in Northern Ireland, more than six years after it was handed down by the Court.[32] The reasons for this are set out in detail in the Government's most recent updated action plan submitted to the Committee of Ministers in January 2015.[33] It is a lengthy and complex story of delay by and poor co-ordination between the UK Government and the devolved Government following the devolution of policing and justice in 2010. Further amendments to devolved legislation are still required, and are contained in a Bill which is currently before the Northern Ireland Assembly. It is now expected that the relevant provisions will be ready for commencement on 31 October 2015.

3.13 We welcome the fact that arrangements for the implementation of the Marper judgment in Northern Ireland are in train and should finally be in place by November this year. However, it will by then be almost seven years from the date of the judgment by the European Court of Human Rights in Marper, which has resulted in people in Northern Ireland being deprived of the benefit of the judgment for very much longer than those living in the rest of the UK. In our view a delay of nearly seven years in the full implementation of a European Court of Human Rights judgment across the whole of the UK is unacceptable.

3.14 During our recent visit to Northern Ireland we heard from a number of different sources that the delay in this case was symptomatic of a more general impasse in relation to human rights as a result of political deadlock within the governing institutions. It has not been possible for us to ascertain exactly where culpability lies for such unacceptable delay, but we recommend that the UK Government and the Northern Ireland Executive consider what lessons are to be learned from the delay, with a view to avoiding it being repeated in the future. While the delays in implementation in the other two cases of MM and MH are much less serious, they suggest that there is a systemic problem with implementation in Northern Ireland that urgently needs addressing.

Failure to amend the law concerning prisoner voting

3.15 As the Government's report on human rights judgments makes clear, the vast majority of applications against the UK which were pending before the European Court of Human Rights at the end of last year concerned prisoner voting: as of 17 November 2014, of the 1,171 applications against the UK which had been deemed to raise arguable complaints, and therefore allocated to a judicial formation, 1,025 of them were prisoner voting cases.

3.16 In Hirst v UK, the Grand Chamber held that the UK's statutory ban on all convicted prisoners voting was disproportionate and therefore in breach of the right to vote in Article 3 Protocol 1. In the subsequent case of Greens and M.T. v UK, the Court further indicated that some legislative amendment would be required in order to render the UK's electoral law compatible with the requirements of the Convention. The Government failed in its attempt to persuade the Grand Chamber of the European Court of Human Rights to reverse its 2005 decision in Hirst v UK. In Scoppola v Italy, in which the UK intervened, the Grand Chamber upheld its decision in Hirst.

3.17 In the wake of that decision, the European Court of Human Rights "unfroze" the other applications pending against the UK concerning prisoner voting. More than 1,000 such applications were declared inadmissible or struck out by the Court. That left 1,025 outstanding applications by prisoners against the UK complaining variously that they were automatically prevented from voting in a number of elections; to the European Parliament in 2009, to Parliament in 2010, and to the Scottish Parliament, the Welsh Assembly and the Northern Irish Assembly in 2011.

3.18 The Court has now decided all of those outstanding cases.[34] It found a violation of the right to vote in all 1,025 cases: "given that the impugned legislation remains unamended, the Court cannot but conclude that, as in Hirst (no. 2) and Greens and M.T. and for the same reasons, there has been a violation of Article 3 of Protocol No. 1."[35] However, the Court declined to award either damages or costs to the applicants, concluding that the finding of a violation constitutes sufficient just satisfaction for them, and that the legal costs claimed could not be regarded as reasonably and necessarily incurred, since the lodging of an application in repeat violation cases was straightforward and did not require legal assistance.[36]

3.19 The Joint Committee on the Draft Prisoner Voting Bill, which scrutinised the Government's draft bill setting out three legislative options, concluded that the UK is under a binding legal obligation under Article 46 of the European Convention on Human Rights to legislate to remove the current statutory prohibition on prisoner voting and replace it with a more tailored restriction. After considering detailed evidence about the possible justifications for a variety of restrictions on prisoners' right to vote, the Committee recommended that legislation be brought forward, before the General Election, to enfranchise those prisoners sentenced to imprisonment of 12 months or less and others in the final 6 months of their sentence prior to release. The Government has not formally responded to the Joint Committee's Report. In its report on human rights judgments the Government says it is considering the Report "but will not be able to legislate for prisoner voting in this Parliament."

3.20 We note the view expressed by Lady Hale in the recent Supreme Court case concerning prisoner voting, that since "by definition, parliamentarians do not represent the disenfranchised, the usual respect which the courts accord to a recent and carefully considered balancing of individual rights and community interests […] may not be appropriate."[37] In our view, however, it is highly likely that, if Parliament were to legislate to give effect to the recommendation of the Joint Committee on the Draft Prisoner Voting Bill, the Committee of Ministers would accept that the UK had done enough to implement the outstanding judgments against the UK, and the Court in any future challenge would also uphold the new law as being a proportionate interference with prisoners' right to vote. The Grand Chamber in the case of Scoppola reiterated the very wide "margin of appreciation" that national parliaments enjoy when deciding how to regulate prisoner voting, and in the light of recent Strasbourg case-law on the margin of appreciation, which is paying closer attention to the reasoned consideration of national parliaments, in our view the scrutiny and deliberation of the issues by the Joint Committee on the Draft Prisoner Voting Bill, along with the parliamentary debates on the new law informed by the Joint Committee's Report, would weigh heavily with the Court when deciding whether or not the new law is within the UK's margin of appreciation.

3.21 The General Election in May this year will inevitably give rise to more applications against the UK which will eventually succeed in Strasbourg. Although the Court in Firth and McHugh v UK did not award damages, it cannot be assumed that this will continue to be the Court's stance in future cases if the UK continues to keep in place the law that was found to be disproportionate in 2005. It is now too late in the life of this Parliament for the Government to make the necessary legislative changes, whether by way of primary legislation or remedial order, to give effect to the Joint Committee's recommendation, even if it had the will to do so. However, the matter will continue to be pressing in the new Parliament: the elections to the devolved legislatures in 2016 will also give rise to another batch of applications to which the UK will have no defence in Strasbourg.

3.22 Judgments of the European Court of Human Rights are not merely advisory. States are under a binding legal obligation to implement them, an obligation voluntarily assumed by the UK when it agreed to Article 46(1) of the European Convention on Human Rights. Compliance with the judgments of the Court concerning prisoner voting is therefore a matter of compliance with the rule of law. The UK enjoys a hard-earned international reputation as a State which values and exemplifies a commitment to the rule of law. That reputation underpins much of its power and influence over the behaviour of other States. As the Minister of State at the Foreign Office, Baroness Anelay of St. Johns, recently said in a written answer to a Parliamentary Question:

    "The UK plays an active role in the Committee of Ministers, and has regularly used this forum to press Russia to comply with Court rulings, in line with its international human rights obligations."[38]

3.23 Russia is currently the source of the highest number of applications to the Court and has one of the worst records for implementing judgments of the Court. The UK Government's continuing failure to amend the law in response to the Hirst judgment undermines its credibility when invoking the rule of law to pressurise Russia—and other countries in a similar position—to comply with its international human rights obligations.

3.24 Insofar as the Government has given any reasons for its failure to date to provide a substantive response to the Report of the Joint Committee on the Draft Prisoner Voting Bill, it has suggested that "this is not a straightforward issue" and that the Joint Committee's Report recommends new options for implementation which require careful consideration. In fact, implementation of the Joint Committee's recommendations would be very straightforward, requiring only a one-clause Bill amending s. 3 of the Representation of the People Act 1983 by replacing its current disenfranchisement of serving prisoners with the following modified disqualification:

    (1) A prisoner serving a custodial sentence for a term of more than 12 months is disqualified from voting at a parliamentary or local government election.

    (2) The disqualification in sub-section (1) shall cease to apply 6 months before the prisoner's scheduled date of release.

3.25 Such a legislative amendment would also remove the incompatibility that currently exists in relation to the franchise for elections to the European Parliament and the devolved legislatures in the UK, because the laws defining entitlement to vote in those elections incorporate the disqualification in s. 3 of the 1983 Act.[39]

3.26 We recommend that the next Government introduce legislation (whether primary legislation or remedial order) at the earliest opportunity in the new Parliament to give effect to the recommendation of the Joint Committee on the Draft Prisoner Voting Bill, in order to prevent further waves of repetitive applications, to avert the risk of the UK eventually becoming liable for damages in such cases but, above all, to demonstrate the UK's continuing commitment to the principle of the rule of law. We recommend that the legislation be included in the first Queen's Speech of the new Parliament and the Bill or remedial order itself introduced before the Committee of Ministers resumes its consideration of the UK's implementation of the outstanding judgments on prisoner voting in September 2015.

Other outstanding issues


3.27 We considered the UK's response to the judgment of the European Court of Human Rights in Vinter v UK that a prisoner who is sentenced to a "whole life tariff" must have an opportunity to have that tariff reviewed, in order to ascertain whether it continues to be justified, in our scrutiny report on the Criminal Justice and Courts Bill.[40]

3.28 We concluded that an amendment of the current law is necessary in order to comply fully with the judgment, and we recommended an amendment to the Criminal Justice and Courts Bill which would have largely reinstated the position which used to obtain in UK law, whereby a prisoner serving a whole life tariff is entitled after 25 years to ask for a review of the continued justification for that tariff. Our recommended amendment was debated in the House of Lords and attracted widespread cross-party support, including from a number of senior lawyers and retired judges. The Government, however, maintained that the law is clear following the judgment of the Court of Appeal in the case of McLoughlin, and that no further general measures are necessary to give effect to the judgment in Vinter.

3.29 In Hutchinson v UK the European Court of Human Rights has now agreed with the Government's view.[41] The Court considered that the Court of Appeal in McLoughlin had now specifically addressed the doubts expressed by the Strasbourg Court about the clarity of domestic law in Vinter, and set out an unequivocal statement of the legal position, and in those circumstances the Court held that it must accept the national court's interpretation of domestic law. It ruled that there was no violation of Article 3 ECHR because the power to release under s. 30 of the 2003 Act, exercised in the manner set out in the Court of Appeal's judgment, is sufficient to comply with the requirements of Article 3.

3.30 We note, however, that the Government has not yet amended either the Prison Service Instruction or the Lifer Manual to reflect the effect of the judgment in McLoughlin. We recommend that the Government bring forward at the earliest opportunity the amendments to those two documents which are necessary in order to make clear to a person who is the subject of a whole life order that they can apply to the Secretary of State for discretionary release under s. 30 of the 2003 Act. The revisions should make clear that an application can be made on the ground that "exceptional circumstances" had arisen subsequent to the imposition of the sentence, and that, when considering such an application, the Secretary of State must consider all the relevant circumstances and decide whether release is justified on compassionate grounds.


3.31 We considered the Government's response to the Court's judgment in MGN v UK in our legislative scrutiny Report on the Legal Aid, Sentencing and Punishment of Offenders Bill in 2012. The Court found a breach of Mirror Group Newspapers' right to freedom of expression in Article 10 ECHR as a result of the costs rules which had led to Naomi Campbell recovering more than £1 million in costs in proceedings in which she recovered just £3,500 in damages from the newspaper. The Government responded by legislating to change the rules on conditional fee agreements, so that the losing party is no longer liable to pay the winning party's success fee or "after the event" insurance premium.

3.32 In our scrutiny Report on the Bill we were concerned that the Government's response to the MGN judgment went too far, and that by removing the recoverability of success fees and insurance premiums altogether this could have a negative impact on effective access to justice in defamation and privacy cases for people who would not otherwise be able to afford to bring such proceedings. In his Report on the Press, Lord Justice Leveson shared these concerns and recommended that the reforms to no win no fee agreements not be brought into force in privacy and defamation actions until a regime of costs protection was in place. The Government consulted on such a costs protection regime in November 2013 but has still not decided how to proceed. The MGN judgment has therefore still not been implemented.

3.33 We welcome the Government's acceptance of Lord Justice Leveson's recommendation that the changes to conditional fee agreements not be brought into force for privacy and defamation cases until other protections are in place to ensure effective access to justice for people of modest means. In the meantime, however, the Strasbourg judgment remains unimplemented, which may be prolonging the chilling effect on freedom of expression. We recommend that the new Government treat this particular aspect of the Leveson recommendations as an early legislative priority.

23   See e.g. Hemsworth and McCaughey v UK (judgment of 16 October 2013), in which the European Court found that excessive delays in the investigation of deaths in Northern Ireland constituted a breach of the UK's obligation under Article 2 ECHR to ensure the effectiveness of investigations into suspicious deaths. Back

24   Stormont House Agreement, para. 21. Back

25   Ibid para. 30. Back

26   Ibid para. 37. Back

27   Ibid para. 40. Back

28 (1 February 2015). Back

29   Buckland v UK, in which the issue was eventually resolved. Back

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

31   Twelfth Report of Session 2009-10, Legislative Scrutiny: Crime and Security Bill, etc. HL Paper 67/HC 402, paras. 1.8-1.10. Back

32   The judgment became final on 4 December 2008. Back

33 2668885&SecMode=1&DocId=2223956&Usage=2  Back

34   Firth and others v UK (Application no. 47784/09 and nine others), judgment final on 15 December 2014; McHugh and others v UK (Application no. 51987/08 and 1,014 others), judgment 10 February 2015. Back

35   Firth, para. 15; McHugh, para. 11. Back

36   Firth, paras 18 and 21-22; McHugh, para. 17. Back

37   Chester and McGeoch, [2013] UKSC 63, para. [90] (Lady Hale, with whom Lord Hope and Lord Kerr agreed). Back

38   HL Deb 6 Feb 2015 HL4580 (written answer to a question from Lord Hylton). Back

39   European Parliamentary Elections Act 2002, s. 8; Scotland Act 1998, s. 11(1); Government of Wales Act 2006, s. 12; Northern Ireland Act 1998. Back

40   Fourteenth Report of Session 2013-14, Legislative Scrutiny: Criminal Justice and Courts Bill, HL Paper 189/HC 1293, paras 1.16-1.30. Back

41   Hutchinson v UK (Application no. 57592/08) (judgment of 3 February 2015).The judgment is a Chamber judgment and therefore does not become final until the possibility of referral to the Grand Chamber has been resolved: see ECHR Article 44(2). Back

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