---

Human Rights Judgments: Joint Committee on Human Rights Report

rose to move that this House takes note of the Report of the Joint Committee on Human Rights, Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008 (31st Report, HL Paper 173). The noble Lord said: I am a member of the committee, as are the noble Lords, Lord Dubs and Lord Bowness, who I am delighted to say will be contributing to the debate. The report was published on 7 October, although many of its recommendations were made much earlier. We welcome the fact that the noble Lord, Lord Bach, will reply to the debate, and we hope that he will be able to be more positive in his response than ministerial colleagues in his department have been hitherto. We are greatly indebted to our highly skilled and overworked staff, parliamentary clerks, legal advisers and other staff for their outstanding support. Without their skill, judgment and dedication, the committee could not publish well informed and timely reports, often at short notice. The subject matter of the report is not theoretical, esoteric or arcane. It concerns the practical and effective protection of the fundamental human rights and freedoms of everyone within this jurisdiction by Parliament, the Executive and the judiciary. The UK, like every other state party to the convention, is bound by Article 1 to secure the convention rights to everyone within its jurisdiction. The UK is bound by Article 13 to provide effective British remedies for breaches of the convention rights. The UK, like every other state party, is also bound by Article 46 to abide by judgments of the European Court of Human Rights in cases where the UK is a party. Where the Strasbourg court gives judgments against other countries on issues of general importance and relevance to all state parties, which in legal Latin is erga omnes, it is also essential for third-party states to give effect to them, even though they are not parties to the particular case. That is why, for example, Cyprus and Ireland promptly gave legislative effect to the Strasbourg court’s judgment in the prisoners’ voting rights case against the UK. The convention system is based on the three linked pillars of human rights, the rule of law and democracy. It requires a working partnership between European and national institutions and adherence to the governing principle of subsidiarity, which means that European supervision comes into play only where national systems are unable to provide effective protection and redress. The convention institutions—the court, the parliamentary assembly and the Committee of Ministers—depend on the legislative, executive and judicial authorities in each of the 47 member states of the Council of Europe to give prompt and full effect to the Strasbourg court’s judgments, in the interests of the citizens of Europe and of the European rule of law. The British judiciary has responded well to the pressing need to give domestic legal effect to convention rights. It did its best even before the Human Rights Act required it to interpret and apply domestic law compatibly with the convention rights. The case law under the Human Rights Act is highly influential and persuasive in the Strasbourg court. The problem of implementation arises not with our courts but with the political branches of government. At the European level, the Strasbourg court is overwhelmed with more and more cases. According to the court’s annual report for 2007, in 2007 the number of pending cases increased by about 15 per cent in a single year, from 90,000 to 103,000. While the Russian Federation refuses, alone among the 47 contracting states, to ratify Protocol 14 to the convention, the court is seriously hampered in its efforts to tackle the problem. The Committee of Ministers supervises the execution of the judgments of the Strasbourg court to ensure that appropriate and necessary individual and general measures are put in place. Great stress is placed on the monitoring system by the exponential increase in the number of application lodged with the European Court. At the end of last year, some 6,248 cases were pending before the Committee of Ministers in its supervisory capacity. Last June, a colloquy was organised in Stockholm entitled, ““Towards stronger implementation of the European Convention on Human Rights at national level””. The noble Earl, Lord Onslow, attended, representing the Joint Committee on Human Rights. The chair of the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights, Mr Schorm, noted that very few parliamentary mechanisms exist with a specific mandate to verify compliance with ECHR requirements, but he singled out the work done by the JCHR as, "““a rare example of the existence of a special parliamentary body with a specific mandate to verify and monitor the compatibility of national law and practice with the JCHR””." As the report notes in paragraph 6, we have made a number of recommendations designed to improve the UK’s domestic mechanisms for the implementation of judgments finding breaches of human rights. We called on the Ministry of Justice to adopt a central, co-ordinating role in government to ensure the effective and efficient implementation of adverse human rights judgments. We recommended that the Ministry of Justice create a database on the implementation of outstanding ECHR judgments against the UK that is similar to its database on domestic declarations of incompatibility. We recommended that information notes provided to the Committee of Ministers should routinely be copied to us. The Government, we believe, should adopt a much clearer policy on systematically responding to declarations of incompatibility made by our domestic courts, including adopting a timetable for responding to those judgments. They should make greater use of remedial orders and ensure that any proposed legislative solution makes the necessary provision for a remedy for those applicants already adversely affected by the incompatible provisions. We urged the ministry to produce clear guidance on declarations of incompatibility and remedial orders, and to monitor the impact of incompatible statutory provisions. We recommended that the ministry should provide the committee with copies of Strasbourg court judgments against the UK within a month and a declaration of incompatibility within 14 days, and inform us of the results of any appeal or hearing by the Grand Chamber. Once a judgment has become final, we asked the ministry to write to us explaining any measures that the Government consider necessary to comply with the judgment, and whether the Government intend to use the remedial process. And we made other recommendations about timetabling. In August 2007, the Minister for Human Rights, Michael Wills MP, provided the committee with the Government’s response to our recommendations on the issues considered in our previous monitoring report. We have published that response with this report and consider it in chapters 4 and 5. In the letter, the Minister explained that the Government would respond separately to our broader recommendations about the way in which the Government implement judgments once he had considered the matter further. We point out in paragraph 8 that, over 12 months since the publication of our last report, we have received no further substantive response to our systemic recommendations. We criticise this delay, which then stood at five months, in our annual report. We understand that an informed response requires co-ordination across government and input from several departments, but a delay of more than one year in replying to these recommendations is unacceptable. We have requested the Government to provide us with a substantive response as soon as possible and certainly before the end of the current parliamentary Session. We hope that the Minister will provide that response today. We welcome the co-operation of government officials, but we are disappointed by the Government's further failure to respond to our request for a memorandum on their progress over the past 12 months in dealing with adverse judgments. In paragraph 14, we call on the Minister with responsibility for human rights and the Foreign and Commonwealth Secretary to provide us with that report, following the model adopted in the Netherlands. Again, we hope that the Minister will be positive in his reply today. We are encouraged—see paragraph 26—that the statistics prepared by the Committee of Ministers show that the UK takes a relatively positive approach to its convention obligation to implement the Strasbourg court's judgments. However, we note in paragraph 28 that delays of five years in resolving the most significant breaches of the convention are unacceptable unless extremely convincing justification for the delay can be provided. We call on the Government to publish their response to the annual report of the Committee of Ministers, and ask them to explain the reasons for any delay in relation to the introduction of general measures in each of the cases that have been the subject of supervision by the Committee of Ministers for longer than five years. Once more, we hope that the Minister will respond positively today. The report highlights other issues of particular concern. I shall briefly refer to some of them and no doubt other noble Lords will wish to say more. First, prisoners' voting rights are dealt with in paragraphs 47 to 63. In October 2005, in the case of Hirst v UK, the Grand Chamber of the European Court of Human Rights held that the blanket ban on voting by prisoners in the UK is incompatible with the right to participate in free and fair elections as guaranteed by Article 3 of Protocol 1 to the convention. Apart from a consultation in 2006-07, the responses to which the Government have refused to publish, the Government have failed to take steps to comply with this judgment. In contrast, Ireland and Cyprus, who were not party to the case, have implemented the judgment. In this country, we have a large prison population living in hugely overcrowded conditions. As the court said in the Hirst judgment, prisoners generally continue to enjoy all the fundamental rights and freedoms guaranteed under the convention, except for the right to liberty—see paragraph 57 of our report. Individuals' fundamental human rights, including the right to vote, are not contingent on their continuing to be good citizens. The Hirst judgment does not require that all prisoners be allowed to vote, but does say that a blanket ban is not proportionate. The Government have now had over three years to consider where the balance lies. This failure to respond is deplorable. The judgment must be implemented before the next election. Is that the Government's intention; if not, why not? We deal with other delays in implementation in paragraphs 64 to 80. In the series of cases involving the use of force by security services in Northern Ireland, the Government have yet to comply with their obligation to provide an investigation into these deaths that complies with the requirements of Article 2. Will the Minister provide an indication of the timetable for compliance with the court's judgments in these cases? There is also the issue of declarations of incompatibility as an effective remedy. Both this and the previous report by our committee discussed the view of the Strasbourg court that the inconsistency of the Government in responding to declarations of incompatibility means that they are not an effective remedy for the purposes of the convention—see paragraph 83. The Government's failure to ensure that there is a consistent and speedy legislative response to declarations of incompatibility risks undermining the object and purpose of the Human Rights Act; namely, to provide an effective remedy at the domestic level. A clear example of this problem arises—see paragraph 96—in relation to the declarations of incompatibility made in respect of the Government's certificate of approval scheme for marriages involving a person subject to immigration control. The provisions are incompatible with the right to marry without discrimination, in so far as they provide an exemption for marriages that take place within the Church of England. The Government accept that the discriminatory exemption must be removed and say that they will remedy the incompatibility as soon as practicable. Can the Minister say when that is likely to happen? Fifteen years ago—on 23 November 1993—I suggested in my maiden speech that a human rights scrutiny committee might be established in this House. The Joint Committee on Human Rights was set up eight years later in January 2001 as a committee of both Houses, and is all the better for that. It has grown from strength to strength as a public watchdog, and through its legal advisers has become the legal adviser to Parliament in this area. Quoting the words of a poet, and in regard to the painting of Moses and the 10 commandments in this Room, the convention is, "““a moon for mutable lampless men””," and women. The Government’s response to the report will be a real measure of the extent of their commitment to democracy, human rights and the rule of law. I look forward to the contributions to this debate. I beg to move. Moved, That this House takes note of the Report of the Joint Committee on Human Rights, Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008 (31st Report, HL Paper 173).—(Lord Lester of Herne Hill.)