“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.

Reports on the Privy Council decision in Rodriguez v Minister of Housing of Gibraltar on whether a housing policy, which prohibited an application for a joint tenancy between long-term same sex partners on the basis that they were not married and had no children, constituted unlawful discrimination contrary to the Constitution of Gibraltar s.14.

The Law Society of Scotland agrees with the Scottish Government that a time limit should be introduced for compensation claims under Human Rights Law in Scotland, to bring the position in line with that of claims against the UK Government.

Michael Clancy, Director of Law Reform, said: “The Society agrees with the general proposal that there should be consistency between the time bar period for claims for compensation under the Scotland Act and the Human Rights Act. The current position of claims against Scottish Ministers is anomalous to other public authorities in Scotland as well as the UK Government.

“The Society recognises that the Scottish Government in the vast majority of cases allows 12 weeks for consultation on significant changes to the law. It is unfortunate that the Scottish Government did not take the opportunity to consult widely and follow the usual process for changes to the law as the effect of the proposals will be to limit the capacity of individuals who may have had their human rights infringed by Scottish Ministers to make a claim for compensation.” [source: http://www.lawscot.org.uk]

For a more critical opinion, see Aidan O’Neill QC’s article for the Journal, ‘Playing politics with the constitution’.

On appeal to the Inner House the damages action was permitted to proceed to a proof on the averments, including the case as based on Article 2.   In a dissenting judgment, however, Lord Reed observed that that neither the nature of the respondents’ activities nor their functions entailed a responsibility to protect the deceased’s life and although the Strasbourg case law was in a state of development, none of the authorities cited established that art 2 was applicable to the reclaimers’ complaint, either so as to impose an obligation to take preventive operational measures to protect the deceased’s life or so as to impose an obligation to implement procedures set up to protect the right to life.   In these circumstances Lord Reed found it questionable whether the domestic court ought to proceed in a way which would appear to extend the scope of article 2 beyond the existing case law of the European court of Human Rights.[1]

However, the local authority’s appeal to the House of Lords was upheld and the family”s cross-appeal, that the Court excluded from probation their averments that the local authority had acted incompatibly with Article 2, was dismissed.

Lord Hope said this at para 25:

25 Senior counsel for the pursuer also said that it was unclear whether the threefold test was part of the law of Scotland, at least in cases where damages were claimed for personal injury …    The test is indeed broadly expressed. But I see no good reason why, as a general guide to what is required, it should not be regarded as part of Scots law. It is really no more than an expression of the idea that lies at the heart of every judgment about legal policy. If liability is to attach, it should be in situations where this is readily understandable because, looking at both sides of the argument, it is fair and reasonable that there should be liability. …. There is no principle of Scots law that contradicts it, and the fact that the law of liability for negligence has developed on common lines both north and south of the Border provides powerful support for the defenders’ argument that it should be applied in this case.”

Baroness Hale at para 78:

“78 This is but the latest in a long line of cases from Scotland which have played such an important part in shaping the law of negligence for the whole of the United Kingdom. The Human Rights Act 1998 is, of course, unquestionably the law for the whole of the United Kingdom and must be read and given effect in the same way both north and south of the border. I too venture to think that, had the Extra Division had the benefit of the decision of this House in Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC 225, then they would have been unanimous in excluding the human rights case from probation.

See too Lord Brown of Eaton-under-Heywood at para 80:

“There was some suggestion in argument that the test for liability was different (and more exacting) in England than in Scotland but that cannot be. That would be bizarre indeed, not least given that much of England’s negligence law was forged in Scottish appeals.”

2009 SLT 247, HL

Full House of Lords decision available here.

“35. … [T]here are good reasons why we should follow the interpretation adopted in Strasbourg. The best reason is the old rule of construction that when legislation is based upon an international treaty, the courts will try to construe the legislation in a way which does not put the United Kingdom in breach of its international obligations. If Strasbourg has decided that the international Convention confers a right, it would be unusual for a United Kingdom court to come to the conclusion that domestic Convention rights did not. Unless the Strasbourg court could be persuaded that it had been wrong (which has occasionally happened) the effect would be to result in a finding that the United Kingdom would be in breach of the Convention. Thus section 2(1) of the 1998 Act allows for the possibility of a dialogue between Strasbourg and the courts of the United Kingdom over the meaning of an article of the Convention but makes this likely to be a rare occurrence.

36. Other reasons for following Strasbourg are ordinary respect for the decision of a foreign court on the same point and the general desirability of a uniform interpretation of the Convention in all Member States. But none of these considerations can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all Member States, as it does when it says that the question is within the margin of appreciation.

37. In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.

38. It follows, my Lords, that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status.”

In granting decree the sheriff held that against the background of the rent arrears, the flooding of neighbours and the anti-social behaviour of the defender her children were in cumulo sufficient to establish grounds for recovery of possession of the property under Housing (Scotland) Act 1987 and consistently with Article 8(2) and given the degree of culpability of the defender for the behaviour resulting in her eviction that it had not been unreasonable in all the circumstances for the local authority to refuse to offer alternative accommodation.

Full report available at:

2001 Hous. L.R. 23