Equality and Human Rights Commission Research report 83 The UK and the European Court of Human Rights Alice Donald, Jane Gordon and Philip Leach Human Rights and Social Justice Research Institute London Metropolitan University The UK and the European Court of Human Rights Alice Donald, Jane Gordon and Philip Leach Human Rights and Social Justice Research Institute London Metropolitan University © Equality and Human Rights Commission 2012 First published Spring 2012 ISBN 978 1 84206 434 4 Equality and Human Rights Commission Research Report Series The Equality and Human Rights Commission Research Report Series publishes research carried out for the Commission by commissioned researchers. The views expressed in this report are those of the authors and do not necessarily represent the views of the Commission. The Commission is publishing the report as a contribution to discussion and debate. Please contact the Research Team for further information about other Commission research reports, or visit our website: Research Team Equality and Human Rights Commission Arndale House The Arndale Centre Manchester M4 3AQ Email: [email protected] Telephone: 0161 829 8500 Website: www.equalityhumanrights.com You can download a copy of this report as a PDF from our website: http://www.equalityhumanrights.com/ If you require this publication in an alternative format, please contact the Communications Team to discuss your needs at: [email protected] Contents Page Tables i Acknowledgments ii Abbreviations iii Executive summary v 1. Introduction 1 1.1 Aims of the report 1 1.2 Context of the report 1 1.3 Methodology 3 1.4 Scope of the report 4 1.5 Guide to the report 5 2. Origins and machinery of the European human rights system 6 2.1 Introduction 6 2.2 The European Convention on Human Rights 6 2.3 The Council of Europe 11 2.4 How the Convention system works 12 2.5 Conclusion 20 3. The protection of human rights in the UK 21 3.1 Introduction 21 3.2 Giving effect to Convention rights in the UK 21 3.3 Debate about human rights protection in the UK 25 3.4 The context of devolution 27 3.5 Conclusion 28 4. Statistical overview of UK cases in Strasbourg 30 4.1 Introduction 30 4.2 Overview of UK cases over time 30 4.3 Overview of UK cases in comparison with other states 36 4.4 The nature of violations in Strasbourg cases 38 4.5 Conclusion 42 5. The impact of European Court of Human Rights judgments on the UK 44 5.1 Introduction 44 5.2 Identifying the impact of legal cases 44 5.3 Protection of life and investigations into deaths 45 5.4 Anti-terrorism and the prohibition of torture and inhuman or degrading treatment or punishment 52 5.5 Anti-terrorism and other human rights violations 58 5.6 Protection from violence and coercion 61 Page 5.7 The protection of individual liberties 66 5.8 Freedom of expression of the media 75 5.9 Immigration 80 5.10 Impact of cases brought under the Human Rights Act 83 5.11 Conclusion 85 6. The evolution of the Convention and Strasbourg case law 87 6.1 Introduction 87 6.2 Principles of interpretation of the Convention 87 6.3 Criticisms of the Strasbourg Court 91 6.4 Responses to the criticisms 98 6.5 Case studies on developing interpretation of the law 102 6.6 The limits to an evolutive approach 106 6.7 The clarity and consistency of Strasbourg judgments 107 6.8 The value of a dynamic approach: protection of the vulnerable 110 6.9 Conclusion 113 7. The relationship between the UK courts and Strasbourg 115 7.1 Introduction 115 7.2 The approach of the UK Courts to Strasbourg case law 116 7.3 Cases where Strasbourg has deferred to national authorities 120 7.4 Cases where Strasbourg has adopted the reasoning of the UK courts 123 7.5 Cases where Strasbourg and the UK courts have disagreed 125 7.6 Cases where the UK courts have consciously leapt ahead of Strasbourg 134 7.7 Judicial dialogue between Strasbourg and the UK 138 7.8 Conclusion 140 8. The implementation of Strasbourg judgments in the UK 143 8.1 Introduction 143 8.2 The United Kingdom’s record 143 8.3 The consequences of the non-implementation of Strasbourg judgments by the UK 145 8.4 Parliament and the implementation of Strasbourg judgments 148 8.5 Conclusion 152 9. The value for the UK of the European human rights framework 154 9.1 Introduction 154 9.2 The relationship between the domestic and regional human rights systems 154 9.3 The status of Convention rights in UK law 156 9.4 The supervisory role of the European Court of Human Rights 159 Page 9.5 Challenges to the legitimacy of the European Court of Human Rights 162 9.6 The value of the European human rights system 164 9.7 The value of a supranational court 167 9.8 The position of the UK within the European human rights system 171 9.9 Conclusion 177 10. Conclusions 180 10.1 The UK and the European system of human rights protection 180 10.2 Debate about human rights protection in the UK 183 10.3 Debate about the European system of human rights protection 184 Appendices Appendix 1 Interviewees 188 Appendix 2 Questionnaire 189 Appendix 3 Sections of the Human Rights Act 1998 192 References 196 List of cases 208 Tables Page 4.1 Applications to the ECtHR against the UK, 1999-2010 31 4.2 Judgments of the ECtHR in UK cases, 1999-2010 32 4.3 Applications and judgments relating to the UK, 1966-2010 33 4.4 Applications and judgments relating to the UK, 2011 34 4.5 Cases relating to the UK and selected comparator countries, 1998-2010 37 4.6 Violations in ECtHR judgments against the UK by Article, 1966-2010 41 i Acknowledgments We would like to thank all those who gave interviews and were so generous with their time and insights. Our thanks also go to Aruna Dudhia for administrative support and Shanta Bhavnani, Tarik Elhadidi and Wessen Jazrawi for research assistance. We acknowledge with gratitude the detailed work completed for this research project by Professor Francesca Klug, Helen Wildbore and Matthew Hunt of the Human Rights Futures Project at the London School of Economics. Thanks are also due to Jessica Gavron and Francesca Klug for helpful comments on a draft of this report. We are especially grateful to David Perfect of the Equality and Human Rights Commission, whose patience and professionalism helped guide the report to completion within a short timescale. Thanks also to John Wadham and Mary Cunneen at the EHRC. Alice Donald Philip Leach Human Rights and Social Justice Research Institute London Metropolitan University Jane Gordon Visiting Fellow London School of Economics ii Abbreviations ATCSA Anti-terrorism, Crime and Security Act 2001 DPA Data Protection Act 1998 ECHR European Convention on Human Rights ECtHR European Court of Human Rights EHRC Equality and Human Rights Commission EU European Union GC Grand Chamber HET Historical Enquiries Team HRA Human Rights Act 1998 ICCPR International Covenant on Civil and Political Rights IPCC Independent Police Complaints Commission IVF In-vitro fertilisation JCHR Joint Committee on Human Rights LGBT Lesbian, gay, bisexual or transgender NCCL National Council for Civil Liberties NIHRC Northern Ireland Human Rights Commission RIPA Regulation of Investigatory Powers Act 2000 SAS Special Air Service SHRC Scottish Human Rights Commission SIAC Special Immigration Appeals Commission TPIM Terrorism Prevention and Investigation Measure UCL University College London UNCAT United Nations Convention against Torture iii iv EXECUTIVE SUMMARY Executive summary Aims of the research In November 2011, the Equality and Human Rights Commission contracted the Human Rights and Social Justice Research Institute at London Metropolitan University and Jane Gordon, human rights lawyer and Visiting Fellow at the London School of Economics, to examine the relationship between the UK and the European Court of Human Rights (ECtHR) in Strasbourg. The aim was to provide better information to key decision-makers about the impact of the ECtHR and its judgments on the UK. The principal objectives were to: • analyse ECtHR cases in relation to the UK to assess the circumstances in which the Court has made judgments, including both judgments which were contrary to those made by domestic courts and judgments where the Court agreed with the domestic court/UK Government position (or where applications against the UK have been found inadmissible); • assess how ECtHR judgments relating to the UK have been received and responded to by key decision-makers in the UK; and • evaluate the implementation of ECtHR judgments and the impact that they have had on domestic legislation and policy, as well as on domestic courts. Methodology The research comprised: • a literature review and review of a selection of ECtHR judgments; and • 17 interviews with (i) individuals in the UK, including parliamentarians; judicial figures; (former) heads of the human rights commissions in Scotland and Northern Ireland; and (ii) key figures within the Strasbourg system. Origins and machinery of the European human rights system The European Convention on Human Rights (ECHR) is an international treaty drawn up within the Council of Europe, which was established in Strasbourg in 1949 in the course of the first post-war attempt to unify Europe. The United Kingdom was among the first states to ratify the ECHR and played a pivotal role in its creation. The UK accepted the right of individuals to take a case to Strasbourg and the jurisdiction of v THE UK AND THE EUROPEAN COURT OF HUMAN RIGHTS the ECtHR in 1966.