“This is our fourth report of the Parliament dealing with adverse judgments by the European Court of Human Rights and declarations of incompatibility issued by the domestic courts under the Human Rights Act. As way of background we note that the European Court is in crisis, struggling to deal with 120,000 cases and with new applications having increased seven-fold over the last decade. These problems stem in large part from failures of national implementation of Court judgments: in 2008, 70% of the Court’s judgments concerned cases which dealt with issues which had already been determined by the Court in earlier decisions.

Better mechanisms for implementing Court judgments must involve Parliament, particularly given the central role played by Parliament under the Human Rights Act. Although the UK’s record on implementing Court judgments is generally good, it is undermined by lengthy delays in a small number of cases where the political will to make the necessary changes is lacking. This damages the UK’s ability to take a lead on improving the current backlog at the Court.

We make a number of recommendations to the UK’s system for monitoring and responding to Court judgments, focused in particular on guidance to Government departments on our work in this area which we have drawn up and published for the first time. We recommend that the Government should seek to prevent future violations of the Convention where they are predictable, rather than the current approach of “minimal compliance” with specific judgments. As part of this new approach, we call on the Government to give systematic consideration to whether Court judgments against other countries have implications for UK law, policy or practice and to keep Parliament informed of any such implications.

Our conclusions in relation to some of the main issues we considered are summarised below.

Retention of DNA profiles and samples (S & Marper)

We reported at length on the Government’s response to this judgment in our recent report on the Crime and Security Bill. In short, we consider the response to be inadequate both in terms of the approach to implementation and the substance of the proposals. “Pushing the envelope” of the Court judgment, to maintain as much of the previous policy on DNA retention as possible, is likely to risk further violations of the Convention.

Summary possession of people’s homes (McCann)

This case concerns procedural safeguards in summary possession proceedings and is complicated by the fact that the European Court and the House of Lords reached different views on the issue. If, as is likely, the Court comes to the same conclusion in the forthcoming case of Kay as it did in McCann then legislative change will be necessary. We question whether it would not have been more cost effective to reform the summary possession process immediately after the McCann judgment rather than to let further litigation on this point run its course.

4 Enhancing Parliament’s Role in relation to Human Rights Judgments

Interception of communications (Liberty)

The court found that the interception of the applicants’ communications under the Interception of Communicated Act 1985 breached Article 8 of the Convention. The Act was subsequently replaced by the Regulation of Investigatory Powers Act 2000. We note similarities between features of the 1985 and 2000 Acts and that the human rights compliance of the 2000 Act will soon be tested in the case of Kennedy. We urge the Government to give serious consideration to ways in which it could amend the system for supervising the interception of communications to provide greater safeguards for individual rights.

Prisoners’ voting rights (Hirst) We continue to draw attention to the unacceptable delay in resolving this case.

Security of tenure for Gypsies and Travellers (Connors) We draw attention to the delay in bringing into force section 318 of the Housing and

Regeneration Act 2008, which would remedy this incompatibility.

Interim measures, Rule 39 (Al-Saadoon & Mufdhi)

This case concerns the decision of the Government to return two Iraqi applicants, detained by UK Armed Forces to the custody of the Iraqi authorities, despite the likelihood that they might face a risk of the imposition of the death penalty. Despite a request of the European Court that the individuals not be returned, under Rule 39 of the Court’s rules of procedure, pending a decision in their case, the UK surrendered the applicants to the Iraqi authorities. We call on the Government to provide us with certain information in any case where it considers refusing to meet a Rule 39 request for interim measures. The European Court of Human Rights has recently reached a decision on the merits of this case, finding the UK in violation of the right to be free from inhuman and degrading treatment (Article 3 ECHR), the right to an effective remedy (Article 13 ECHR) and the right of individual petition (Article 34 ECHR). We call on the Government to provide a response to the Court’s finding and recommend that our successor Committee keep this case under close scrutiny.

Suitability of care workers to work with vulnerable adults (Wright)

This declaration of incompatibility concerned the Care Standards Act 2000 which has now been replaced by the Safeguarding Vulnerable Groups Act 2006. We continue to express concern that aspects of the 2006 Act, dealing with the procedure by which care workers employed to look after vulnerable adults are placed on a list of people considered unsuitable for such work, may be incompatible with the Human Rights Act. We draw attention to concerns raised by the Chair of the Administrative Justice and Tribunals Council about the scope of the right of appeal provided in the 2006 Act and its compatibility with the right to a fair hearing and the right to respect for private life. We publish our correspondence with the Chair and call on the Government to publish a full response.

Religious discrimination in sham marriages regime (Baiai) We draw attention to continuing delay in resolving this incompatibility.”

The full report is available here.

The Commission state that “[t]he guidance will help public authorities to be clear on what they are expected to do to comply with the law and provide their trans service users with the goods, facilities and services to which they are entitled.”

More information can be found on the Equalities and Human Rights Commission website.

All public authorities are bound by law to conduct equality impact assessments and examine the implication of how their policies will affect, in relation to disability, ethnicity and gender, in advance of any change. A policy had been implemented by NOMS, named the Service Legal Agreement, whereby foreign male prisoners were transferred without due consideration of the effect such moves would have on disabled or ethnic minority prisoners, contrary to s.71 of the race Relations Act 1976 and to section 49A of the Disability Discrimination Act 2005.

This is the first Judicial Review sought by the Equality and Human Rights Commission to reach the courts.

To read the judgment, please click here.

To read the Commission’s commentary on the judgment, please click here.

Full report can be found here

European Human Rights Law Review E.H.R.L.R. (2010) No.1 Pages 26-46

Examines the utilisation of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as experienced by individuals, non-government organisations and the disposal of communications by the CEDAW Committee. Provides an overview of the Optional Protocol, with reference to areas such as the monitoring of commitments and the inquiry procedure. Comments on the limited use made of the right of communication thus far. Considers issues raised in the communication procedure, summarising the provisions. Discusses the quality of decision-making. Asks whether the Optional Protocol has added any value to the advancement of human rights.