Government report highlights vexed issue of implementation of European human rights judgments in domestic law
By Adam Wagner
A European decision on prisoner voting rights has languished for years, unimplemented in the UK. Photograph: Peter Macdiarmid/Getty Images
A new government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, such as on prisoner voting rights, have languished for years unimplemented and it remains to be seen whether the coalition government will do any more to fulfil its legal obligations to the thousands affected.
The report is a response to the Joint Committee on Human Rights' March 2010 report, Enhancing Parliament's Role in Relation to Human Rights Judgments, and sets out the government's position on the implementation of human rights judgments from the domestic and European courts.
The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the court. However, the UK has a high proportion of leading cases outstanding for more than five years.
The position of the European court in our own legal system remains controversial. Although the Strasbourg-based court is often the final stage of appeal for controversial human rights cases, senior UK judges have recently said that they do not consider European judgments to overrule the highest appeal rulings of our domestic courts.
This is more a reflection of the success of the Human Rights Act in bringing human rights home – the act means that people do not need to go to Europe to bring human rights claims any more – rather than any particular disrespect for the European court. It does, however, generate problems for those who have taken cases to Europe and won, and are now waiting for the UK government to implement the decision.
One such example is John Hirst, who five years ago caused the European court to rule that the UK's blanket refusal to let prisoners vote is a breach of their human rights. He is still waiting for action, and it is now for the government rather than the courts to implement the ruling. As he says in his blog, "Any attempt to stray from the judgment is a legal minefield. Neither the Labour administration nor the coalition has said what the difficulties are. It is time they elaborated or do as they are told."
Critical decisions not yet acted on
The report responds directly to a number of critical judgments by the European court in recent years, including those relating to controversial issues such as DNA retention, summary possession of people's homes (see this Nearly Legal post), control orders, the special advocate system, interception of communications, sham marriages and prisoner voting rights.
It begins by stating the obvious, that since the joint committee reported there has been a change of government. The new government remains "committed" to the European Convention on Human Rights, but "wants to look afresh at how human rights are protected in the United Kingdom" through the creation of a commission on human rights. This we already knew.
The change in government has given the new one a chance for a fresh start on implementation of Strasbourg judgments, and many of the issues are at least being reviewed. The joint committee said they find it "unfortunate" that the UK's generally good record on implementation is "undermined to a considerable extent by the very lengthy delays in implementation in those cases where the political will to make the necessary changes is lacking". The "inexcusable" delay in some cases "undermines the claim that the government respects the court's authority".
The government's response is that while there are "some particularly sensitive and difficult areas in which progress towards implementation has not been as rapid as in other cases", nevertheless "this is a necessary consequence of the complexity of the issues raised in such cases". However, this is somewhat meaningless given that most issues before the European court tend to be complex and difficult; otherwise they would never have made it through the tortuous appeal system in the first place, a process which can take years.
Most of the issues are now being dealt with, albeit slowly. On the retention of DNA samples, the coalition government has already pledged to go further than the previous government and adopt the so-called Scottish model, by which DNA will only be retained in respect of unconvicted persons in the case of adults charged with violent or sexual offences and even then, for three years only. The report reiterates this pledge, and adds that the government "intends to bring the retention of historic samples and profiles into line with the judgment of the court as soon as possible".
On the controversial control order system, which allows the police to stringently restrict the liberty of suspected terrorists, the joint committee has already been highly critical and has called for the scheme to be discontinued. The courts have also been critical of both the control order system and the special advocates scheme, where evidence is kept secret from suspected terrorists in court. In the report, the government merely reiterates its pledge to "review control orders urgently" as part of a wider review of counter-terrorism legislation.
Prisoner voting rights represent one of the longest standing unimplemented decisions of the European court, and the joint committee has repeatedly said that the delay is unacceptable, and reiterated in its last report that continued delay would cause "not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation". Lord Pannick suggested shortly before the election that prisoners may be entitled to around £750 compensation if denied the vote.
The previous government conducted a consultation on the issue late in 2009 but the results were not published. The new government has indicated that it may finally bring in reform, but in its report vaguely states that the "issues raised are important and ministers will be giving them full consideration".
Systemic issues
The report goes on to address systemic issues of how the government responds to adverse human rights judgments both from Europe and also from the domestic courts, which have the power to make "declarations of incompatibility".
One of the problems which has been highlighted is that generally it has been the responsibility of a particular government department to implement an adverse judgment. So, it would be the Home Office's responsibility to implement a judgment in relation to control orders. There has not, however, been a central coordinator for this process. The report says that this has now changed, with the Ministry of Justice taking on more responsibility for the domestic co-ordination.
A "specifically designed form" for government departments to complete regarding the implementation of an adverse judgment has also been introduced. That this new form is referred to as the "most significant change" in the implementation system may not fill campaigners with hope.
The Human Rights Act has been highly successful in allowing UK citizens to bring human rights claims in the domestic courts. This has meant that European Court of Human Rights decisions have largely been relegated to the background, and judges are increasingly choosing to ignore them if a UK Supreme Court decision points in a different direction.
This is a generally positive development, as the Strasbourg court is not the UK's highest court of appeal, and it is right that the UK courts, which are better attuned to sensitive domestic social issues, are making human rights decisions for themselves.
However, and this is a big however, the government is legally obliged to implement judgments of the European Court of Human Rights, and the European court has recently acquired stronger powers of sanction for states which fail to do so. If the courts are choosing to ignore some adverse European decisions, the impetus falls on the government to step up and do what it is legally obliged to do anyway, even if by doing so it risks making decisions, such as on prisoner voting, which are unpopular with the public.
As the situation stands now, thousands of people affected by European decisions have been left without a proper remedy for breaches of their human rights. The new government will make more progress on certain issues, such as DNA sampling, as they accord with pre-election promises. But as to politically unpopular groups, such as prisoners and suspected terrorists, it may ultimately take a warning shot from the Council of Europe to inspire the new government to action.
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