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Further to the Written Answer by the Baroness Ashton of Upholland on 25 October (WA 173), whether they will publish their reasons for not having implemented the judgments of the European Court of Human Rights given against the United Kingdom during the period between 1998 and 2005, identifying each case and the reasons for non-implementation in that case. [HL1970]
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): Further to my reply of 25 October, in which I listed the judgments against the United Kingdom being supervised at that time by the Committee of Ministers of the Council of Europe pursuant to Article 46(2) ECHR (as listed by the Council of Europe Secretariat), I am pleased to provide to the noble Lord detailed information on each judgment still under supervision, as follows:
The Government have submitted information to the Committee of Ministers explaining how the Access to Justice Act 1999 provides a discretion to provide legal aid in defamation proceedings; and how existing provisions in the law are sufficient to enable the courts, in assessing general damages for defamation, to ensure account is taken of the defendant's means and the proportionality of the award. The information provided is under review. The Government will provide further information relating to the situation in Scotland.
The Government have submitted information to the Committee of Ministers regarding implementation of the judgment. The court's judgment referred to a lack of provision in law, in the particular circumstances of the application, for the judicial determination of the civil liability in damages, if any, of the police. Since the application, the Human Rights Act 1998 has entered into force. A person in the situation of the applicant could bring a claim against the police under Section 7 of the Act in respect of allegations of a breach of Article 2 of the convention. Such proceedings would provide a forum in which a claim for compensation for non-pecuniary damages in respect of any civil liability of the police could be assessed. Information on that remedy will be communicated to the Committee of Ministers for assessment.
The Government have paid the sum awarded as just satisfaction and have submitted the acknowledgement of receipt from the applicant's solicitors to the Committee of Ministers in the Lloyd case. In the Beet case, the Government have paid the sum awarded as just satisfaction and are awaiting an acknowledgement of receipt from the applicant's solicitors, which will be submitted to the Committee of Ministers. All necessary general measures have been taken in the context of earlier cases. Information on the publication and dissemination of the judgment has, however, been requested and will be communicated to the committee.
The Government have submitted information to the Committee of Ministers on measures that have been introduced to improve the enforcement of confiscation orders since the judgment in October 1998, including: formation of the Concerted Inter-Agency Criminal Finance Action Group in June 2002; establishment of
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the Joint Asset Recovery Database in April 2004; incentivisation through distributing a proportion of criminal assets recovered to the police since April 2004; publication of the National Best Practice Guide to Confiscation Order Enforcement in August 2003; establishment of an enforcement task force; and establishment of an independent Revenue and Customs Prosecutions Office in April 2005.
Judgment became final on 21 September 2005. The Government have now paid the just satisfaction awarded by the court. The domestic courts have already given guidance as to how effect should be given to legislation to avoid breaches in future. The Government will be submitting further information in due course.
The Government are considering what general measures, both in terms of possible legislation and practice, are needed to implement this recent judgment on the voting rights of prisoners. Proposals will be brought forward in due course.
The Government have submitted information to the Committee of Ministers concerning payment of the sums awarded by the court. The Government have also submitted information to the committee concerning the Department of Health's proposed review of the consent reference guidance and will follow up further requests in this respect.
A (Application no. 25599/94)
Since the judgment the Human Rights Act 1998 has entered into force. Domestic case law makes it clear that the "reasonable chastisement" defence now has to be implemented in the light of ECHR standards.
Section 58 of the Children Act 2004 has now also entered into force, which abolishes the defence in England and Wales in relation to all charges apart from common (minor) assault. The Committee of Ministers has now accepted that the law in England and Wales appears to be compliant with the convention; however, the issue of ensuring effective deterrence is still under review. Similar provisions are to be put in place in Northern Ireland at the earliest legislative opportunity. The law in Scotland, which was changed by the Criminal Justice (Scotland) Act 2003, remains under review by the Committee.
The Prison Discipline Manual has been revised to reflect changes introduced with respect to segregation policy in prisons. The procedures by which prisoners can make a complaint have also been amended in Prison Standing Orders. Information has been passed to the Committee of Ministers.
Five sections of the general measures required to comply with the judgments have now been closed by the Committee of Ministers. Further information is being provided, including on changes to the coroners system, and it is hoped that a number of further sections can be closed shortly.
Legislative changes have been made through Part 12, Chapter 7 of the Criminal Justice Act 2003, and Schedules 21 and 22 to that Act, on the powers of the parole board to rule on the release of all mandatory life sentence prisoners. The Secretary of State is no longer free to depart from the decision of the parole board. The Government have submitted information to the Committee of Ministers on these provisions, the new parole board rules (under which all life-sentence prisoners will be entitled to insist on an oral hearing), and information on the applicants' personal situations.
The Government have provided information to the Committee of Ministers on a further investigation conducted by the Prison Service that remedied the defects in the original inquiry. The Government have
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also submitted information on a series of measures designed to prevent similar deaths in future as well as on administrative measures concerning investigation of deaths in custody and a report identifying weaknesses in the current coroner system that is expected to lead to legislation in England and Wales in due course. This information is under review by the Committee of Ministers.
Under the Employment Relations Act 2004, Part 3 workers now have a right not to have an offer made to them for the sole or main purpose of inducing them to renounce union membership or activities. Contacts are underway with the Council of Europe Secretariat concerning these measures and in particular on the position of trades unions.
The discontinuation of the "technical lifer policy" was announced in a Written Commons Statement on 24 January 2005, with effect from 2 April 2005. Provisions in the Mental Health Act 1983 which govern the release of prisoners and which may apply to persons to whom technical lifer status had been granted prior to 2 April 2005 have been amended by Sections 294 and 295 of the Criminal Justice Act 2003. Information on these provisions, as well as on the status of Mental Health Review Tribunals and on the applicant's personal situation,has been passed to the Committee of Ministers. Further information will be provided in due course in response to a recent request from the secretariat.
Information has been passed to the Committee of Ministers on the creation in 2000 of an independent internal regulatory body in the Army, the OSC (A), to monitor the progress of cases subject to the court martial system. Further information has also been provided on the availability of legal aid and legal systems in such proceedings.
Legislative changes have been made under the Mental Health (Public Safety and Appeals) Scotland Act 1999, which make clear that in proceedings regarding review of detention of a mentally handicapped person, the burden of proof is now on the authorities. Information has also been passed to the Committee of Ministers on plans to increase the number of judges in the Court of Session. The issue of preventing delays in proceedings remains under discussion.
Information has been passed to the Committee of Ministers on disclosure law brought about through the Criminal Procedure and Investigations Act 1996 and the Criminal Justice Act 2003. Further information has been requested by the secretariat on the applicant's personal situation.
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Grieves, GW & Le Petit (Application nos. 57067/00, 34155/96 & 35574/97)
The appointment of serving naval personnel as judge advocates has now ceased. Under the Naval Discipline Act 1957 (Remedial) Order 2004, responsibility for appointing judge advocates has been transferred to the Judge Advocate of the Fleet, a civilian. The briefing notes for ordinary members of naval courts martial have been amended. Information on these measures has been passed to the Committee of Ministers, and is to be updated.
Information has been passed to the Committee of Ministers on recent developments in disclosure law from the enactment of the Criminal Procedure and Investigations Act 1996, including on situations where special counsel may be appointed (decision of the House of Lords of 5 February 2004 in R v H & C), and on the applicants' personal situation.
The Government have submitted information to the Committee of Ministers on a variety of special procedures to be made available to vulnerable juvenile defendants at the discretion of the court where necessary to allow the defendant to participate effectively in proceedings in accordance with Article 6 of the convention. These are: advisory opening statements by the bench; an appropriate adult/supporter for the defendant; "stocktakes" by the court of the defendant's understanding; giving of evidence by live CCTV link; reporting restrictions on present youth court lines; and intermediaries to help with evidence-giving. Work is progressing on a practice direction to introduce the majority of these procedures; the Government intend to legislate to give effect to the remainder.
The Government have submitted information to the Committee of Ministers about a consultation process begun in March 2005 that sought views on the approach to be taken to implement this judgment in England and Wales. It commits the Government to introducing additional procedural safeguards for incapacitated patients of unsound mind who are not subject to mental health legislation but whose treatment nonetheless involves a deprivation of liberty. The Government intend to publish policy proposals in light of this consultation with a view to introducing the necessary legislation for England and Wales at the earliest opportunity.
The Government have submitted information to the Committee of Ministers on implementation through a change in domestic law effected by the case of R (on the application of IH) v Secretary of State for the Home
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Department and Secretary of State for Health (2002) EWCA Civ. 646. The Government have also submitted information to the Committee on the draft Mental Health Bill published in September 2004 which will be included in their legislative programme for 200506 and will, if enacted, replace the arrangements under which this applicant was detained.
The one remaining point is that statutory amendments made to the Police and Criminal Evidence (Northern Ireland) Order 1989 will be commenced on completion of the current review of police and criminal evidence legislation and codes of practice in Northern Ireland. This review is expected to be completed in summer 2006. Administrative guidance issued to the Chief Constable of Northern Ireland and by the Attorney-General to prosecutors will continue to apply until the review has been completed, and will ensure that practice is consistent and already complies with the convention across the UK.
Certain measures have already been taken, including the publication of the Crown Prosecution Casework Bulletin No. 6 of 2000 (which gives guidance to prosecutors), and a consultation document published in 2003 (which recommends that courts issuing binding-over orders specify that the individual concerned is bound to do or refrain from doing specific activities, and that the details of the conduct be included in an order served on all relevant parties).
An extra-statutory scheme for the provision of legal aid in Guernsey has been put into place and has operated successfully for a considerable period. Those who wish to seek legal aid can do so, and those who are eligible receive appropriate assistance. Procedures are ongoing for the enactment of a statutory scheme for civil legal aid as envisaged under this friendly settlement. It is hoped that this can be put in place in due course. In the mean time, the extra-statutory procedures ensure that the Government's obligations under the ECHR are already being met.
The Government have submitted information to the Committee of Ministers on the draft Mental Health Bill published in September 2004 which will be included in their legislative programme for 200506 and will, if enacted, replace the arrangements for "nearest relatives" which were at issue in this case.
The legislation in question (the Childcare Act 1980) has been replaced by the Children Act 1989. Information has also been passed to the Committee of Ministers concerning the effect of the Human Rights Act 1998 in providing domestic remedies. The Council
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of Europe Secretariat is currently considering whether that information demonstrates that an effective domestic remedy now exists in cases involving a breach of Article 3.
The Government have submitted information to the Committee of Ministers on measures to implement the judgment through implementation of the Disability Discrimination Act 1995 and the issuing of guidance to ensure that prisoners with disabilities are placed in cells with appropriate facilities. The guidance will be communicated to the committee when available.
Following the judgment, changes were made to the structure and proceedings of the Gaming Board to ensure that similar complaints would not arise. The Gambling Act 2005 will repeal the Gaming Act 1968 and replace the Gaming Board by a new Gambling Commission and Gambling Appeal Tribunal. The commission came into being on 1 October 2005; it is expected that the Gambling Appeal Tribunal will be established by 1 January 2007.
As appears from the court's judgment, UK law has already implemented the convention requirements. The Government have submitted information to the Committee of Ministers advising that the Lord Chancellor will issue a practice direction to ensure that (a) the terms of binding-over orders are more specific; (b) adequate notice is given in order to allow proper time for preparation and making representations; and (c) the legal representative is heard as required by Article 6 of the convention.
The Government have paid the sum awarded by the court and have submitted information to the Committee of Ministers concerning the dissemination of the judgment to the competent authorities as well as details of reporting of the judgment.
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The judgments on the cases of I v the United Kingdom, Goodwin v the United Kingdom, Ezeh v the United Kingdom, and Peck v the United Kingdom, which I listed in my previous Answer, are now awaiting the drafting of a final resolution, and their discussion by the committee has now been closed.
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