Is the UK listening to the European Court of Human Rights?

12 September 2012 by

The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011–12. By signing up to the European Convention on Human Rights, the UK has committed to “abide by” judgments of the court. This commitment is monitored by the Council of Europe’s Committee of Ministers.

The report presents a snapshot of the current state of play in relation to the European Court of Human Rights, makes for very interesting reading (trust me!). Here are some tidbits:

  • There were 28 judgments involving the UK from 1 August 2011 to 31 July 2012, nine of which the UK lost (UK loses 3 out of 4 cases, anyone?). See the handy table at pages 12-13.
  • The UK currently has 24 cases before the Committee of Ministers, which means that  they have not been implemented.
  • The UK paid out €454,457  [this originally and wrongly said £] in damages for human rights violations (known as ‘just satisfaction’) in 2011, compared to €371,160 in 2010 (p.58). Fear of this figure ending up in the Daily Mail may be the reason that it is on the last page.
  • On implementation of those tricky prisoner voting rulings, the UK Government has until 22 November 2012 to bring forward legislative proposals to end the current blanket ban. With just over two months to go, the MoJ is keeping tight-lipped: “The Government is considering its response to these judgments. “
  • On Abu Qatada, as we already know, the Home Secretary has in her statement to Parliament of 17 April 2012referred to diplomatic assurances received from the Jordanian authorities that the applicant would receive a fair trial“, and that the Government would “undertake his deportation in full compliance with the law and with the ruling of the European Court.” We shall see if the deportation attempt succeeds, or whether it will end up back in front of the court.
  • On the retention of DNA and other biometric evidence (S & Marper v UK): “once the Protection of Freedoms Act had come into force in England and Wales, the police would begin removing the profiles of un-convicted people from the National DNA Database. It is anticipated that the same approach would be adopted in Northern Ireland following the necessary legislative changes.”
  • As to Al Jedda v UK (jurisdiction of the Human Rights Act extended to Iraq), see p.27. There a large group of damages claims relating to the Iraq war which are currently being settled, it would seem. And here is a mildly interesting statement which we may hear more of in the future: “[the judgment] has no implications for its current operations elsewhere including detention operations in Afghanistan where the legal basis for UK operations is materially different from that which pertained in Iraq” (this statement is repeated in relation to Al-Skeini)
  • And regarding Al-Skeini v UK, another case about the territorial jurisdiction of the Human Rights Act, those interested in the current state of play at the Iraq Historic Allegations Team, which was set up to investigate historic allegations against British Forces in Iraq in 2003-2009, will want to read p.29. In short, IHA as of March this year is also investigating Article 2 ECHR breaches (i.e. deaths) in addition to Article 3 (torture/inhuman & degrading treatment) which was the original remit. And, following  this Court of Appeal judgment, the investigations team has been reconstituted to involve the Royal Navy Police as opposed to the Royal Military Police, the latter having been criticised by the Court of Appeal as potentially not independent enough.
  • There were no declarations of incompatibility made by UK courts between August 2011 to July 2012 (27 have been made since October 200 when the Human Rights Act came into force – they are handily listed from page 41). Judicial deference [probably not – see the comments below]?

On the final analysis, as the report points out the UK is a comparatively good (perhaps even very good) citizen when it comes to implementation of judgments. Contrary to the rhetoric, the UK does tend to do as it is told by the court, as it has promised to by signing up to the ECHR in the first place.

Of course, the prisoner votes case threatens to derail this status if the Government continues its current path of non-imlementation beyond the 22 November 2012 deadline. My suspicion is that despite the Prime Minister’s strong words some kind of compromise will be reached. We shall see. The report contains a lot more detail on the cases mentioned above and many others. Your friendly neighbourhood human rights blog will continue to keep you posted.

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  1. The Report, in my view, amounts to another example of the dodgy dossier.

    There is no provision within either European or intnational law for delay in implementation on the grounds advanced by the MoJ:

    “The Government would wish to note that, although five years is a timeframe in which implementation could confidently expect to be completed in most cases, there will always be exceptional circumstances that render this impossible and the process may therefore legitimately take longer in a small number of cases. The Government will explain any such delays on individual cases to the Joint Committee as required”.

    The Republic of Ireland fully complied with Hirst No2 within a year of the judgment. The UK and US allowed all prisoners to vote in Iraq after my case was decided on the ground that it aids democracy. Latvia which joined the UK against Hirst No2 has since allowed all prisoners to vote. Austria has already changed the law following Frodl v Austria.

    Perhaps there is a smartarsed lawyer out there who can find any provision supporting the UK and shed clarification on precisely what those exceptional circumstances are?

  2. Super Cyan says:

    ‘The UK paid out £454,457 in damages for human rights violations (known as ‘just satisfaction’) in 2011, compared to £371,160 in 2010 (p.58). Fear of this figure ending up in the Daily Mail may be the reason that it is on the last page.’

    Wouldn’t this amount acutally be less if we’re working in pounds here because the report states the currency is in Euros, so the amount would be less based on the Pound to Euro rate?

    Just a quick google search would mean that the UK actually only paid ~£363,729.20 in 2011 and ~£291240.88 in 2010.

    If I’ve made a mistake, forgive me. :)

    1. Adam Wagner says:

      You are right – so sorry about that, thanks for the comment.

      1. Super Cyan says:

        No worries my good man. :)

  3. unlimitednow says:

    The UK is not a respector of Human RIghts. The Adversarial system, in which the hapless are convicted by laws brought in to purge long established indiviulal rights, causes serious injustice.

  4. I don’t think a low number of declarations of incompatibility necessarily reflects judicial deference.

    Remember, once a court has determined that application of a provision breaches human rights, it has to decide either (a) that the provisions can be read compatibly with human rights under section 3 – the result being that the claimant wins; or (b) that it can’t be read compatibly, in which case a declaration may be made – but the incompatible legislation is applied, meaning the claimant loses.

    I’m not sure there’s any way of telling, but a low number of declarations may reflect a bolder judicial approach to interpretation under section 3.

    It’d be interesting to compare your current list of declarations with the list Lord Steyn set out in his judgment in Ghaidan v Godin-Mendoza back in (was it?) 2004. He then thought the courts had grown far too ready to make declarations rather than use s3, and the judgment clearly rejected that approach, Lord Steyn saying a declaration should be a last resort. I wonder if comparison of the lists tends to confirm a post-Ghaidan change of approach.

  5. David Mead says:

    It’s a concern, but not surprising, that the report details s.4 decs but there is nothing on when and where and why s.3 has been used. The “so far as possible” duty flies under the radar of transparency, and thus accountability, while simultaneously having the potential to transform what a statute says, and not simply for the contesting litigants, in contrast to the booby prize of s.4. My blog on all this should appear on the UKCLG site this Friday

  6. goggzilla says:

    Marper ruling, well, after my victory (striking out) which was made final in March 2012 we still have no deletion of innocent (2 million odd) DNA samples.

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