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
WHOLE LIFE TARIFFS
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.
"NO WIN, NO FEE AGREEMENTS"
IN PRIVACY AND DEFAMATION CASES
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
http://www.bbc.co.uk/news/uk-northern-ireland-31082500 (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
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=
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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