Joint Committee on Human Rights Thirty-First Report

4  Issues monitored by the Committee

Recent judgments against the United Kingdom

29.  The ECtHR figures for January 2007 to December 2007 record 1,363 cases pending against the United Kingdom. During the same period, 403 applications were declared inadmissible or struck off the Court's list. There were adverse judgments, finding at least one violation of the Convention, in 19 cases. The largest proportion of these cases involved violations of the right to enjoy respect for Convention rights without discrimination (Article 14 ECHR). The second largest concerned the lack of an effective investigation in cases engaging the right to life (Article 2 ECHR).[40]

30.  Over the course of the past year, we have considered issues arising from a number of judgments of the ECtHR between February 2007 and February 2008. In June 2008, we wrote to the Lord Chancellor and the Secretary of State for Foreign Affairs indicating that we intended to examine six groups of cases in further detail.[41] In each of these cases, our initial consideration indicated that some change in law, policy or practice might be needed to avoid the risk of further breaches of the Convention in future. We published a press notice which highlighted each of these issues. We consider a number of these issues in detail below.

31.  We exchanged correspondence with the Government on two further issues; reasons for decisions on bail and compatibility with the right to liberty, and monitoring of employee communications.[42] We publish this correspondence for completeness. We do not consider that further general measures are necessary in relation to either of these issues. [43]


32.  The issue of access to artificial insemination where one of the parties seeking such access is a serving prisoner was raised by the case of Dickson v UK. [44] The applicants in this case were Mr and Mrs Dickson, a prisoner and his wife, who sought access to artificial insemination. Without access to this treatment, the applicants would be unable to conceive a child. The applicants applied to the Secretary of State for permission for Mrs Dickson to receive treatment by artificial insemination. They were refused permission and applied for judicial review of the decision. This application was unanimously rejected by the Court of Appeal in September 2004. The Applicants then applied to the ECtHR. They argued that the policy of the Secretary of State on access to artificial insemination was incompatible with their right to respect for their private and family life, as protected by Article 8 ECHR. The policy of the Secretary of State was to refuse permission unless there were exceptional circumstances. The Chamber rejected their claim, noting that there was no blanket ban in place and that the member state had a broad margin of appreciation in this area. It concluded that the Secretary of State had given consideration to the detailed facts in this case and was responding to the legitimate need to maintain public confidence in the penal system and to protect the welfare of any child conceived. In the circumstances, it considered that there had been no breach of the applicants' rights to respect for their private lives.

33.  The Grand Chamber of the ECtHR reversed this decision. It concluded that the policy applied by the Secretary of State placed an inordinately high "exceptionality" burden on the applicants and, in the absence of any careful weighing up of the competing interests in the case, either by the Secretary of State or by Parliament, it was in breach of their right to respect for their private and family life (Article 8 ECHR). The Chamber noted:

[A] person retains his or her Convention rights on imprisonment so that any restriction on those rights much be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment…or from an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion.[45]

34.  The Government proposed three justifications for the policy: (a) that losing the opportunity to reproduce was an inevitable and necessary consequence of imprisonment; (b) that public confidence in the prison system would be undermined if the punitive and deterrent elements of a sentence would be undermined by allowing prisoners guilty of serious offences to conceive; and (c) that the absence of a parent for a long time could have a negative impact on a child conceived and on society as a whole.

35.  The Grand Chamber rejected the first of these justifications outright. The inability to reproduce may be a consequence of imprisonment, but it is not an inevitable consequence. It considered the second justification and reiterated that there is no place in the Convention system for forfeiture of rights solely based on what might offend public opinion. As to the third justification, the Grand Chamber accepted that the welfare of any child conceived would be a legitimate consideration. However, consideration of the welfare of any child should not "go so far" as to prevent parents "who so wish" from attempting to conceive, especially where one parent is at liberty and able to provide care until such time as the other parent would be released from prison.[46]

36.  So, the Grand Chamber considered that the "exceptionality" requirements of this policy was in breach of the Convention as it set the bar for the applicants so high that the Secretary of State could never effectively consider the proportionality of any decision to refuse access to artificial insemination. This approach was in breach of the applicants' right to respect for their private lives. In addition, the Grand Chamber was critical of the majority of the public interest arguments proposed by the Government in this case.

37.  We wrote to the Minister on 9 January 2008, drawing attention to the judgment. We asked the Minister to explain what policy changes the Government was considering in the light of the judgment. We also asked whether, given the significance attached by the Grand Chamber to the assessment by Parliament of the fairness of the policy, the Government was proposing to resolve the judgment through the introduction of amendments to the Criminal Justice and Immigration Bill.[47] The Minister explained that the Government intended to consider new policy proposals in March 2008, around four months after the Grand Chamber judgment.[48] He did not consider that any legislative changes were necessary, but told us that the Government would take into account any changes made to the broader law on assisted fertility services in the Human Fertilisation and Embryology Bill.

38.  In late May 2008, we again wrote to the Minister, to ask for further information about the Government's review of this policy, including whether any consultation had taken place and whether the outcome of that consultation would be published.[49] The Minister responded on 9 June 2008.[50] He explained that no consultation had taken place, but that he and the Secretary of State had concluded that "only minor amendments were required to bring the former policy into line with the judgment". The Minister enclosed details of the new policy approach. The discretion to authorise access to artificial insemination for prisoners will remain with the Secretary of State. Permission will not be limited to exceptional circumstances, but the Secretary of State will be free to take into account any factors or considerations which he considers relevant. The policy states that each case will be considered on its merits and no single factor will be weighed more heavily than another. We were provided with a non-exhaustive list, which included:

  • The welfare of the child;
  • The wishes, consent and medical fitness of both parties;
  • The reasonableness of any delay, taking into account the prisoner's release date and his ability to assume parental responsibilities;
  • Information about the offending history of the prisoner, including any risk of harm and "other factors which suggest it would not be in the public interest" to permit him to access artificial insemination facilities;
  • "Whether the prisoner and his partner are in a well established and stable relationship which is likely to continue after the prisoner's release"; and
  • Whether the provision of artificial insemination facilities are the only means by which conception is likely to occur.

39.  This list of considerations follows existing policy. The only significant change in policy appears to be the removal of the express statement that permission for artificial insemination will only be granted in "exceptional circumstances". A number of the considerations listed appear to be based directly on public interest arguments which the Grand Chamber considered would be illegitimate or unjustifiable if applied too broadly.

40.  It is clear that the Government must change its policy in response to this case. Any new policy will need to strike a fair balance between a legitimate public interest and the private interest of individual applicants, and will need to avoid placing an unreasonable burden of exceptionality on the applicants. We are concerned that the considerations identified are so broad that they allow the Secretary of State to give significant weight to considerations which the Grand Chamber counselled against. It will be essential that the policy is applied in a way which is consistent with the Convention scheme identified by the Grand Chamber. In each case where access is refused, the Secretary of State must identify a clear, legitimate public interest which the Secretary of State considers justifies the refusal of an individual request. In our view, after the guidance of the Grand Chamber, a refusal which is based solely on a broad public interest in maintaining confidence in the penal system is likely to be in breach of the Convention. Similarly, we are concerned that a refusal which is based solely on the length of an individual prisoners' sentence, the type of offence committed or the strength of his or her relationship with the other parent would lead to a risk of a further breach of Article 8 ECHR.

41.  We have asked the Minister for further information on the steps that have been taken to publicise this proposed new policy approach, and on how it, and the previous policy, have been applied. We have also raised several questions about Convention compatibility and the application of this new policy approach in practice.

42.  We have also asked the Secretary of State to explain why he is the most appropriate person to take these decisions. In other cases involving access to fertility treatment and the assessment of a child's welfare, decisions about access are taken by a licensed provider of fertility services, subject to the oversight of the Human Fertilisation and Embryology Authority.[51] Although this issue was not raised before the Grand Chamber, the Grand Chamber noted that this policy had never been considered by Parliament. At present, a new Human Fertilisation and Embryology Bill is being considered in the UK. We asked the Minister whether this Bill might be an opportunity to consider this issue in a wider statutory context, to aid transparency and to provide an opportunity for debate. As explained above, the Minister told us that the Government did not consider a legislative response to this judgment was necessary.

43.  We do not share the Government's confidence that the minor changes to existing policy agreed so far will be adequate to eliminate the risk of a further finding of a breach of the right to respect for private and family life of prisoners and their partners by the ECtHR. We have not yet received a reply to our questions and we look forward to receiving the Minister's response to our request for further information.


44.  In the ASLEF case, the European Court of Human Rights upheld ASLEF's complaint that UK law was in breach of the right to freedom of association in Article 11 ECHR, because it had prevented the union from expelling a member for his membership of the British National Party, even though the objectives of that organisation were inimical to those of the union.[52] After Government consultation on the reforms necessary to resolve this breach of the Convention, the Employment Bill (currently before Parliament) included a provision to remove entirely this limitation on the power of Trade Unions to control their membership. In our Report on the Bill, we expressed concern that this approach went too far in that it might allow a trade union to abuse a dominant position, to the detriment of individual applicants or members. We proposed an amendment to the Bill to reflect an important caveat in the Court's judgment, designed to protect individual Trade Union members or applicants for membership. One of our members, Lord Lester of Herne Hill QC, proposed an amendment with an alternative formulation, designed to achieve broadly the same result.[53]

45.  The Government brought forward its own amendments, designed to incorporate similar safeguards to those we had advocated at Third Reading of the Employment Bill in the House of Lords.[54] These provisions provide marginally narrower protection for individual rights than the amendment that we proposed. However, they incorporate valuable additional safeguards to allow a balance to be struck between the legitimate interests of trade unions in controlling their membership and the right of individuals where they have been excluded without a fair hearing or in circumstances that would result in exceptional hardship. Although the right to freedom of association confers on Trade Unions the broad general power to control membership, the judgment of the ECtHR in ASLEF is qualified by an exception to that rule based on the need to balance the right of the individual member to be treated fairly and not to suffer exceptional hardship as a result of exclusion. We welcome the Government's decision to include in the Employment Bill additional safeguards to reflect the individual right to freedom of association and to protect individuals from abuse of a dominant position by a particular Trade Union. The positive and consultative approach of the Department of Trade and Industry, and its successor, the Department for Business, Enterprise and Regulatory Reform, to providing a speedy and effective response to the judgment in ASLEF is a commendable example for other Government departments to follow.

Issues previously monitored

46.  In this section, we follow up progress made in dealing with the issues raised by judgments considered in our last Report. We do not propose to set out the facts in each of these cases at any length; this section should be read together with our previous Report.


47.  Since our last Report, we have exchanged correspondence with the Ministry of Justice on the need to implement measures in response to the decision of the Grand Chamber of the ECtHR 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, Protocol 1 ECHR.[55] In our last Report, we noted that the Government intended to consider the issue of prisoners' voting rights in a two-stage consultation which was expected to be completed in January 2008. A legislative solution was due to follow, after May 2008. In our last Report we expressed the view that the delay in this case was already disproportionate and recommended that the Government bring forward a solution as soon as possible.[56]

48.  In August 2007, the Minister for Human Rights told us that the Government was considering the responses to the first stage of consultation prior to deciding how to take this issue forward. The Government does not intend to use a remedial order in this case as it argues that Parliament must have an opportunity for a full debate on the issue.[57] In September 2007, we wrote to ask the Minister for an updated timetable for the implementation of this judgment, and to confirm whether the Government intended to publish the responses to its first stage consultation.[58] We also asked the Government to take into account the need to reform the law on prisoner voting when planning the timetable for the next election.[59]

49.  In October 2007, Bridget Prentice MP, the Minister responsible for electoral administration, told us that she could not provide an updated timetable, but explained that the Government would write to us with a clearer timetable "once the analysis of responses has been completed". She explained that the Government would not publish the responses to the first stage consultation, although a summary would be included in the next stage consultation document. She that she would be happy to make the individual responses available to the Committee once the next consultation paper had been finalised.[60]

50.  In March 2008, it became clear that since October, the Government had submitted a Revised Action Plan to the Committee of Ministers which indicated that it was undecided whether a second consultation, or a legislative solution, were necessary. The Government proposed no changes to its previous timetable, with a legislative solution still due in May 2008. We were disappointed to learn of these developments from the Council of Europe's own website, despite the Minister's reassurance that we would be kept informed of further work on this issue. We expect Government to keep us informed of developments in situations where we are actively engaged in correspondence about an issue.

51.  We were surprised to read that the Government was not convinced about the need for legislative reform. The Grand Chamber judgment is clear. Section 3 of the Representation of the People Act is in breach of the Convention and legislative reform is therefore necessary. This view is supported by the declaration of incompatibility subsequently made by the Court of Session.

52.  In March 2008, we wrote to the Minister asking for:

  • a copy of any updated information sent to the Committee of Ministers;
  • an explanation of whether the Government intended to produce a further, second stage consultation and for any relevant timetable (if the Government was not proceeding with the remainder of its consultation, we asked for an explanation);
  • an explanation of the Government's view that the incompatibility identified by the Grand Chamber in Hirst v UK could be removed without legislative reform; and
  • an up to date timetable for draft legislation and an explanation of whether the Government intended these reforms to be in place in time for the next general election.[61]

53.   We are disappointed to report to both Houses that we have not yet received an answer to these questions. In April 2008, Ms Prentice explained:

As you will no doubt be aware the Governance of Britain Green Paper has placed a strong emphasis on the rights and responsibilities that attach to citizenship. The Government is currently considering whether this opportunity for a wide-ranging debate should also include voting rights for prisoners. Once we have made a decision on next steps, we will provide the Committee of Ministers with a revised implementation plan in time for its meeting in June 08.

The implementation of Hirst is a sensitive and complex issue and we need to look very carefully at what the right approach should be and how it should be implemented.[62]

54.  The Minister assured us that she would write to us in due course to provide fuller answers to our earlier questions.[63] Shortly before the Committee of Ministers meeting on 5 -6 June 2008, we contacted the Ministry of Justice to ask when a further response would be forthcoming. We then received a copy of the information provided to the Committee of Ministers dated 14 March 2008.[64] This information makes clear that the Government now intends to include the issue of prisoners' voting rights in the discussion of the Governance of Britain and the rights and responsibilities attached to citizenship. The Government is not proposing a new timetable for a legislative solution and we note with concern that there are no proposals for electoral reform in the Government's draft legislative programme for 2008-09.

55.   As part of the Governance of Britain programme, the Government expects shortly to produce a Green Paper on a Bill of Rights and Responsibilities for Britain. We have conducted an inquiry on a British Bill of Rights, investigating amongst other things, whether the language of responsibilities should necessarily be adopted in a constitutional Bill of Rights. Several of our witnesses raised concerns about whether the addition of the concept of responsibilities might be a device for Government to limit the fundamental human rights of those individuals deemed to be "undeserving". The Minister for Human Rights has explained the Government's view:

Rights are not contingent on discharge of responsibilities. […], but there are consequences for people not fulfilling their responsibilities […]. The fact that some of those consequences may actually mean that one of your rights is temporarily forfeited, if it is not the same thing, the punishment is in the law. The basic human rights say the same and so they should.[65]

56.  We reiterate our recent conclusion in our Report, A Bill of Rights for the UK?:

Human rights are rights which people enjoy by virtue of being human: they cannot be made contingent on the prior fulfillment of responsibilites,

57.  In that Report, we stressed that the ECHR and other human rights instruments already provide for certain rights to be limited when justified by legitimate, competing interests.[66]

The Grand Chamber has given clear guidance in this case about the balance that must be struck when removing the franchise from individual prisoners. It is worth setting out at length:

Prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention […] Any restrictions on these other rights require to be justified although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment […]

There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based on what might offend public opinion.

This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol 1, which enshrines the individuals capacity to influence the composition of the law-making power , does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct has threatened to undermine the rule of law or democratic foundations. […]

The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.

58.  The European Court of Human Rights has given clear guidance that individuals' fundamental human rights, including the right to vote, are not contingent on their continuing to be 'good citizens'. Interferences with those rights can only be justified in accordance with the law. When considering whether to limit an individual's right to vote, proportionality requires a clear and close link to the specific conduct of the individual concerned. The Grand Chamber implies that this link should include some connection to the stability of the electoral system, the rule of law or the democratic settlement within a state. General breaches of any vague concept of civic duty are, in our view, unlikely to meet the standard of justification envisaged by the ECtHR.

59.  The Government's first consultation on the issue of prisoners' voting rights was launched almost a year after the Government had announced it and over two years after the judgment of the Grand Chamber. This consultation made it clear that the Government considered that the right to vote should not be extended to all prisoners and that, in its view, the franchise was strongly connected to the concept of 'good' citizenship. The Government has refused to publish the responses to this consultation and now proposes further debate, without a timetable for action.

60.  In July 2007, the Government's Governance of Britain Green Paper heralded the launch of a wide range of initiatives to reinvigorate the UKs constitutional arrangements.[67] These have included: a consultation on voting at weekends;[68] a wider review of voting systems;[69] a high level review on the notion of citizenship[70] and a national review of citizen engagement. None of the papers in the Governance of Britain series published so far has mentioned the issue of prisoners' voting rights.

61.  We note that in the three years which have passed since the decision of the Grand Chamber in Hirst, a number of European States have taken steps to address the issue of prisoners' voting rights. In 2006, Ireland passed legislation to enable all prisoners to vote by post in the constituency where they would ordinarily live if they were not in prison.[71] In the same year, Cyprus, which also previously had a blanket ban on voting for prisoners, passed legislation to provide for full enfranchisement of its prison population.[72]

62.  Against this background, the Government's change of approach and failure to set a concrete timetable for its response raises serious questions about its reluctance to deal with this issue. In our previous reports, we have drawn attention to a number of cases where significant delay in implementation has tarnished the otherwise good record of the United Kingdom in responding to the judgments of the European Court of Human Rights. For the most part, these cases have been legally straightforward, but politically difficult. This case appears destined to join a list of long standing breaches of individual rights that the current Government, and its predecessors, have been unable or unwilling to address effectively within a reasonable time frame. The Government should rethink its approach.

63.  We call on the Government to publish the responses to its earlier consultation and to publish proposals for reform, including a clear timetable, without further delay. A legislative solution can and should be introduced during the next parliamentary session. If the Government fails to meet this timetable, there is a significant risk that the next general election will take place in a way that fails to comply with the Convention and at least part of the prison population will be unlawfully disenfranchised.

Delays in implementation

64.  We have noted, above, that there are a number of cases against the United Kingdom which have been outstanding for longer than five years. In this section, we continue our practice of reviewing progress in relation to issues where delays in implementation have been particularly unsatisfactory.


65.  In our last Report, we considered the outstanding delay in the resolution of a number of well-known cases involving the use of force by security forces in Northern Ireland. We remain concerned that the adequacy of individual measures remain in question in each of these cases.[73] We note that there have recently been further reports of delay in the press and criticisms have been made by the coroner in respect of delay by the Police Service of Northern Ireland (PSNI) in the Jordan inquest[74] Although we do not comment on the adequacy of individual measures, we note that the potential for a public inquiry under the Inquiries Act 2005 to meet the requirements for an independent inquiry in cases engaging the right to life is currently under consideration by the Secretariat and the Committee of Ministers, particularly in the case of Finucane.[75] Our predecessor Committee raised concerns about the independence of inquiries under that Act, including in respect of their independence from the executive and the ability of family members to participate in the inquiry.[76] We reiterate those concerns.

66.  A number of NGOs continue to campaign for effective, independent inquiries to take place on these cases and for effective investigations into similar cases in Northern Ireland and beyond. Both Amnesty International and British Irish Rights Watch have strongly criticised the Government's approach in relation to each of these cases, and draw particular attention to the case of Finucane.[77] British Irish Rights Watch argue that our Government's approach to Article 2 ECHR inquiries is particularly hampered by two factors: (a) an entrenched culture of Government secrecy and (b) the narrow approach of the domestic courts to cases which took place before the introduction of the Human Rights Act. We have expressed our own concerns on each of these issues.[78] We continue to regret the delay in providing Article 2 compliant investigations in respect of each of these cases. We recommend that the Government publish a full and up to date explanation of its approach to each case, including the reasons for continuing delay.

67.  The Committee of Ministers has ended its scrutiny of a number of issues relating to the adequacy of the Government's response to these cases. These include issues in relation to the scope of inquest proceedings, the involvement of family members in inquests and the availability of legal aid. Most recently, the Committee of Ministers has ended its examination of delay in respect of inquests in Northern Ireland. We commented on this issue in our last report, regretting that delays in Northern Ireland appeared exceptional in contrast to inquests in England and Wales. We and our predecessor Committee have stressed the importance of effective, independent inquest proceedings and other inquiries for the purposes of Article 2 ECHR, and will continue to do so. Most recently, we have raised concerns that the Government's proposals to increase the potential for closed inquests in the current Counter-Terrorism Bill will undermine the ability of inquests to provide a public inquiry of the scope and nature required by the Convention.[79] However, in the context of our work monitoring the UK Government's response to adverse judgments of the ECtHR, we will observe the conclusions of the Committee of Ministers, who retain responsibility for enforcement of the Convention. We will not comment, in this context, on issues which have been closed and discharged from scrutiny.

68.  The Committee of Ministers continues to scrutinise the effectiveness of the investigation of historical cases, including through the work of the Police Ombudsman and the Historical Enquiries Team. These concerns arise from conclusions of the court on the lack of independence of the police investigators dealing with the incidents in these cases and defects in the original police investigations. The Committee of Ministers intend to monitor the effectiveness of inquiries by both bodies. British Irish Rights Watch has raised concerns about the independence of these bodies and difficulties involving in securing disclosure.[80] The Committee of Ministers is awaiting further information from the United Kingdom on the operation of both the Police Ombudsman and the Historical Enquiries Team. We call on the Government to address the concerns raised about independence and effective disclosure in its correspondence with the Committee of Ministers. We recommend that the Government send us the latest information sent to the Committee of Ministers on each of these cases.

69.  The House of Commons Northern Ireland Affairs Select Committee recently concluded an inquiry into the cost of policing the past in Northern Ireland. It noted that there are numerous pressures on policing, the Police Ombudsman and the Historical Enquiries Team. For example, a significant number of families choose not to cooperate with the Historical Enquiries Team, and in some cases there is little forensic evidence available. The Committee also raised the question of the adequacy of the resources of the Historical Enquiries Team and the impact of the workload associated with the different historic investigations on present day police work. Although some witnesses raised questions about independence, the Committee noted that none of the evidence that it had gathered suggested any actual bias on the part of the members of the Historical Enquiries Team. Despite the observations of the Commons Northern Ireland Affairs Committee, the Government will be aware that the assessment of independence for the purposes of providing an Article 2 compliant investigation includes an assessment of whether the structural arrangements for an investigation undermine the perceived independence of an investigating body.[81]

70.  We look forward to the Government's response to the recent report of the Commons Northern Ireland Affairs Committee on the cost of policing the past in Northern Ireland. The Government should provide the Committee of Ministers with a copy of that Committee's report and its response. We urge the Ministry of Justice and the Northern Ireland Office to explain how the various pressures identified by that inquiry may impact on the functions and operational capabilities of the Police Ombudsman and the Historical Enquiries Team. The Government should also explain how this may affect information which the Government has previously provided to the Committee of Ministers in relation to these cases.


71.  The Housing and Regeneration Bill contained the Government's proposals for a final response to the ECtHR decision that the UK's failure to offer security of tenure to residents of local authority Gypsy and Traveller sites was in breach of the right to respect for home and private life (Article 8 ECHR). We have followed this case for a significant period of time[82] and we considered the Government's proposal in our report on the Bill. The Government sought to extend the application of the Mobile Homes Act 1983 to residents of local authority Gypsy and Traveller sites, following a recommendation which our predecessor Committee made over four years ago. We welcomed these provisions but expressed our disappointment at the significant and unnecessary delay in resolving this issue.[83]


72.  In our last two reports, we have commented on the case of A v UK, one of the longest standing judgments against the United Kingdom subject to the supervision of the Committee of Ministers. In this case, the European Court of Human Rights held that the defence of reasonable chastisement, which provided certain adults with a defence against actual bodily harm (ABH) of a child, was in breach of the right of children to be free from inhuman or degrading treatment and punishment (as guaranteed by Article 3 ECHR).[84] It is the Government's view that this breach has been remedied. The law has been changed to limit the defence of reasonable punishment in cases involving allegations of common assault, a lesser charge than ABH. The Government's view is that this defence, together with Charging Guidance issued by the CPS on the distinction between common assault and ABH is adequate to provide an effective deterrent against future breaches of the rights of children under Article 3 ECHR. Our predecessor Committee concluded that after the introduction of this, more limited, defence in Section 58 Children Act 2004, there would be "no present incompatibility" with Article 3 ECHR. However, in that Report, our predecessor Committee also concluded that the compromise in Section 58 was likely to be incompatible with the requirements of the UN Convention on the Rights of the Child as interpreted by the Committee on the Rights of the Child.[85] Against this background, it observed that "there is a risk that in a future case the ECtHR will find that the continued availability of the reasonable chastisement defence to the offence of common assault is in breach of a child's right to dignity and personal integrity under Article 3, their right to physical integrity under Article 8 and/or their right not to be discriminated against compared to adults in relation to their enjoyment of those rights on the grounds of their age."[86]

73.  In our last Report we repeated our conclusion that, although, in principle Section 58 Children Act 2004 may provide a remedy for the breach identified in A v UK, it was important to consider how the provisions were operating in practice.[87]

Since our last Report:

  • The Government has published the outcome of its review of Section 58 of the Children Act 2004 and the outcome of the research project proposed by the Crown Prosecution Service (CPS) on the operation of that Act (the CPS Research Project).[88]
  • The Secretariat of the Committee of Ministers has restated its view that Section 58 of the Children Act 2004 conforms, in principle, with the requirements of the Convention and its case law. However: "given the vulnerability of the victims, doubts exist as to whether the change in legislation is sufficient on its own to ensure effective deterrence".[89]
  • The Secretariat continues to have doubts about the effectiveness of the law in both Northern Ireland and Scotland. In Northern Ireland, it considers that the question of effective deterrence remains an issue, as in England and Wales. They have requested further information on the application of the law in Scotland, on "justifiable assault". In Scotland, an assault may be justifiable if it meets a number of criteria, including the duration and frequency of the punishment, its purpose, the child's age and its effect. Punishment may never be justified where it involves a blow to the head, shaking or the use of an implement.[90]
  • The Committee of Ministers last considered this case on 18 September 2008. The Secretariat advised the Committee that "the outcome of the Government's review of section 58 suggests that the legal position on physical punishment remains difficult to understand for parents and those working with children and parents….a clear understanding of the limits of the defence of physical punishment is required to ensure effective deterrence." In their conclusions, they advised that their current assessment of the compatibility of Section 58 with the ECHR "is strictly within the limit of the European Court's present judgment". They advised that although they could not speculate as to the approach of the ECtHR to a similar case heard today:

[S]tates have an obligation to take general measures to prevent further similar violations. In this context it should be underlined that the European Court has repeatedly stressed that the Convention is a living instrument and that in interpreting its provisions, the European Court must have regard to the changing conditions within a respondent State and within Contracting States generally and respond to any evolving convergence as to the standards to be achieved. In this respect the ratification of the UN Convention on the Rights of the Child by all member states of the Council of Europe (including the United Kingdom), which requires states to protect children from all forms of physical or mental violence (Art 19)…might suggest an evolving convergence"[91]

This advice is consistent with the conclusions of our predecessor Committee.

  • The Committee of Minsters' Deputies decided to note "with satisfaction the changes in the legislative framework made following this judgment and the wide range of accompanying awareness-raising measures".[92] However, further consideration of this case by the Committee of Ministers has been delayed until 2009 in order to await the outcome of a decision of the Court of Appeal in a judicial review brought by the Childrens' Commissioner for Northern Ireland against the operation of the defence of reasonable punishment in Northern Ireland.[93]

Section 58 Review

74.  During the passage of the Children Act 2004, the Government committed to a review of the operation of Section 58. This review involved a public consultation and surveys of parents, children and young people. The findings of this review included:

Whilst many parents say they will not smack, a majority of parents say that smacking should not be banned outright. Many organisations however support legislation to ban smacking.

There appears to be a lack of awareness across different audiences about the scope and application of the law.

75.  Contributions to the review were mixed:

  • The majority of parents who responded considered that the law should allow parents to smack their children. Older parents were more likely to use physical punishment and support retaining the defence against prosecution.
  • Most children thought that "smacking was out of place in modern childhood". Children feared the emotional distress and humiliation associated with physical punishment more than physical discomfort and pain.
  • A number of organisations argued in favour of a complete removal of this defence. These included a number of Local Safeguarding Children Boards, who told the review that giving positive parenting messages was difficult because "in response to the advice, parents would often cite the law allowing them to smack".

76.  The Government has decided to retain the law in its current form "in the absence of evidence it is not working satisfactorily."[94]

CPS Research Project

77.  We note that the scope of this research project was limited to establishing "if the reasonable chastisement defence was being put forward by defendants after the enactment of section 58 Children Act 2004 and whether the Charging Standard was being correctly applied in those cases". Our predecessor Committee considered the efficacy of these Charging Standards essential to its conclusion that the reasonable punishment defence could effectively remove the Convention breach identified by the Court in A v UK.[95] The conclusions of the CPS research include:

  • The samples reviewed were not sufficient in number to be statistically significant. The cases reviewed give an indication rather than a representative picture of how the criminal justice system has approached the defence since the enactment of Section 58;
  • Despite this small sample, the Report concludes "there is evidence to suggest that there have been cases where defendants charged with common assault have been acquitted or the case was discontinued, after running the reasonable chastisement defence. Of those cases, the file review suggests that it was possible that some defendants could have been charged differently. Additionally, there is evidence to suggest that the reasonable chastisement defence may have been put forward in cases where it is not legally available". Unfortunately the information provided in CPS case notes did not show whether in these latter cases, defendants were acquitted as a result of wrongly raising this defence. We recommend that the CPS case notes should capture important information such as this to facilitate future research.

A ban on corporal punishment?

78.  Both the NSPCC and the Children's Commissioners for England have told us that, in their view, Section 58 Children Act 2004 is inadequate to protect children from violence which breaches their rights under Article 3 ECHR and that these provisions (and the law in Northern Ireland and Scotland) fail to meet the obligations of the United Kingdom to implement the judgment in A v UK.[96] They consider that a ban on physical punishment of children is the only means to protect children effectively against breaches of Article 3 ECHR. Both NSPCC and each of the Children's Commissioners for England, Wales, Northern Ireland and Scotland have made similar submissions to the Committee of Ministers and they have helpfully provided us with copies of their submissions and the legal advice that they have obtained from counsel.[97] They told us:

The current uncertainties in the law across the UK mean that it is unclear to parents when physical punishment would constitute inhuman or degrading treatment or punishment and thus, the law is inadequate to protect children from potential violations of their rights under Article 3 (The Children's Commissioner for England).[98]

The Section 58 Review conducted by the Government was inadequate as the Government's conclusions are based principally on the views of parents, whose traditional attitudes towards children mean they oppose giving children equal protection to adults against assault (NSPCC).[99]

It is unthinkable that the European Court would find a State's legislation in compliance with Article 3 if it allowed adults to justify as "reasonable" common assault on women, elderly people or adults with learning disabilities. Yet, children, as the Court has recognised, are particularly vulnerable people who face additional difficulties in seeking remedies for breaches of their rights (NSPCC).[100]

79.  In this report, we confine ourselves to consideration of the effective implementation of A v UK, including whether the current law in the UK provides an effective deterrence against future similar violations of Article 3 ECHR. We recommend that the Government explain clearly how it considers that the ECtHR would approach a case brought by a child who has been punished in accordance with Section 58 Children Act 2004, applied in accordance with the appropriate Charging Guidance. Charging Guidance is not binding on individual prosecutors, but it has so far been central to the Government's assessment that Section 58 provides adequate protection to children against inhuman and degrading punishment or treatment. The CPS review suggests that the Charging Guidance has not been applied consistently in all cases. We are concerned that we have seen no clear explanation of the Government's view on how these provisions comply with the Convention, as the ECtHR would interpret it today. Nor has the Government explained how it considers that the ECtHR would approach a case where the specific Charging Guidance on children was not applied. For example, if a domestic Court were to allow a parent successfully to raise the defence of reasonable punishment in a case where a child has incurred scrapes, grazes, minor bruises or a black eye, does the Government accept that this would lead to a significant risk of incompatibility with Article 3 ECHR?[101]

80.  Clear concerns about the operation of Section 58 Children Act 2004 arise from the Government's recent review and the research of the CPS, particularly, from the suggestion that the defence of reasonable punishment has been raised in cases of child cruelty, or other cases where it should not be available. We believe that it is necessary for the Government to demonstrate that Section 58, in the way that it operates is compatible with our obligations, and therefore, we call on the Government to explain its view that these reviews show that the law operates in a way which provides an effective deterrent against any new breaches of the right to be free from inhuman and degrading treatment or punishment. A summary of the information provided by the Government to the Committee of Ministers on this case has recently been published by the Committee of Ministers Secretariat.[102] We are disappointed that the Government did not provide us directly with a copy of their submissions. We wish to receive copies of these submissions and any subsequent information notes, including on the position in Northern Ireland and Scotland.

40   These figures are available from the Registry of the Court; (Last accessed 14 July 2008). We consider these issues in more detail, in Chapters 5 and 4, respectively.  Back

41   Written Ev 2 Back

42   Respectively, issues in the cases of Gault v United Kingdom App No 1271/05/05, Judgment dated 20 November 2007 and Copland v United Kingdom, App No 2617/00, Judgment dated 3 April 2007. Back

43   Written Ev 3, 4, 5 and 6. Back

44   Dickson v United Kingdom, App. No. 44362/04, Judgment 4 December 2007. Back

45   Judgment, paragraph 68. Back

46   Ibid, paragraphs 73 - 76. Back

47   Written Ev 7. Back

48   Written Ev 8. Back

49   Written Ev 9. Back

50   Written Ev 10. Back

51   Written Ev 11. Back

52   ASLEF v UK, App. No. 11002/05, Judgment 27 February 2007. Back

53   Seventeenth Report of Session 2007-08, Legislative Scrutiny: 1) Employment Bill, 2) Housing and Regeneration Bill, 3) Other Bills, HL Paper 95/HC 501, paragraphs 1.1 - 1.31. Copies of our correspondence with the Government are published as appendices to that Report.  Back

54   HL Deb, 2 June 2008, Cols 13 - 29. Back

55   Hirst v United Kingdom, App. No. 74025/01, Judgement 6 October 2005 (Grand Chamber). Back

56   Second Monitoring Report, paragraphs 67 - 79. Back

57   Written Ev 1. Back

58   Written Ev 1. Back

59   Written Ev 12. Back

60   Written Ev 13. Back

61   Written Ev 14. Back

62   Written Ev 15. Back

63   Written Ev 15. Back

64   Written Ev 16. At around the same time, a copy of this information was placed in the libraries of both Houses in response to a written question asked by Robert Neill MP, HC Deb, 26 June 2008, Col 477W (This deposited paper indicates that it was submitted on 11 April 2008). See also HL Deb, 6 May 2008, WA 59, WA 60. The Secretary of State for Justice has reiterated the Government's intention to consider the issue of prisoners' voting rights as part of the Governance of Britain process, HC Deb 10 Sep 2008, Col 1981W - 11982W and Uncorrected Transcript of Evidence to the House of Commons Justice Select Committee, 7 October 2008, QQ49 - 53, HC 1076-i. Back

65   Q487, HC 150 - vi; Evidence to the JCHR, 21 May 2008.  Back

66   Twenty-ninth Report of Session 2007-08, A Bill of Rights for the UK, HL Paper 165-I/HC 150-I, Chapter 8. See paragraphs 264 - 274. Back

67   Cm 7170, July 2007. Back

68   Consultation Paper CP/13/08, June 2008. Back

69   Cm 7304, January 2008. Back

70   Goldsmith Review, Citizenship: Our Common Bond, March 2008. Back

71   Electoral Amendment Act 2006 ( (Last accessed 15 July 2008). Back

72   Section 2, Civil Registry (Amendment) Act 2006 (Law 13(I)/2006) (In force February 2006).  Back

73   Second Monitoring Report, paragraphs 95-96. McKerr v UK App No 28883/95, Judgment 4 May 2001, Jordan v UK App No 24746/94, Judgment 4 May 2001, Finucane v UK App No 29178/95, Judgment 1 July 2003, Shanaghan v UK App No 37715/97, Judgment 4 May 2001, Kelly v UK App No 30054/96, 4 May 2001, and McShane v UK App No 43290/98, Judgment 28 May 2002. Progress in these cases, and operational delays in respect of inquests in Northern Ireland have recently been considered by the House of Commons Northern Ireland Affairs Committee, Third Report of Session 2007-08. Policing and Criminal Justice in Northern Ireland: the Cost of Policing the Past, HC 333 (7 July 2008),Chapter 4, Annex. Back

74   The Irish News, 21 May 2008, "Coroner criticises police over delays in IRA man's inquest". See also Written Ev 16, Submission of British Irish Rights Watch, paragraph 9. Back

75   Summary of Cases against the United Kingdom, Committee of Ministers, CM-EXEC, (Last accessed 14 July 2008). Back

76   Fourth Report of Session 2004-05, Scrutiny: First Progress Report, HL Paper 26/HC 224, paragraphs 2.12 - 2.29; Eighth Report of Session 2004-05, Scrutiny: Fourth Progress Report, HL Paper 60/HC 388, paragraphs 3.02 - 3.19. Back

77   Written Ev 17, paragraphs 12 - 14. See also letter from Irene Khan, Secretary General, Amnesty International to Shaun Woodward MP, Secretary of State for Northern Ireland, dated 4 June 2008 (unpublished). Any unpublished papers are available for inspection in the Parliamentary Archives. Back

78   For example, we have recently published our concerns about the Government's proposals to increase the possibility for closed inquests Twentieth Report of Session 2007-08, Counter Terrorism Policy and Human Rights (Tenth Report): Counter Terrorism Bill, HL 108/HC Paper 554, paragraphs 115-120. In our last two reports on the implementation of Strasbourg judgments, we have clearly expressed our own view that the non-retrospective application of the Human Rights Act undermines the ability of the UK courts to participate in ensuring an effective remedy for breaches of the Convention which took place prior to 2000. We have encouraged the Government to focus on these earlier cases. Second Monitoring Report, paragraphs 144 - 148. Back

79   Thirtieth Report of Session 2007-08, Counter-terrorism Policy and Human Rights (Thirteenth Report): Counter-terrorism Bill, HL Paper 172/HC 1077, Chapter 4. Back

80   Written Ev 17. See also Written Ev 18. Back

81   See for example, Mc Shane v UK, paragraph 120, Finucane v UK, paragraphs 74-76. Back

82   Connors v UK, (2005) 40 EHRR 9; See also Second Monitoring Report, paragraphs 100 - 103. Back

83   Seventeenth Report of Session 2007-08, Legislative Scrutiny: 1) Employment Bill, 2) Housing and Regeneration Bill, 3) Other Bills, HL Paper 95/HC 501, paragraphs 2.29 - 2.33. Back

84   A v UK, App. No. 25599/94, Judgment 23 September 1998. Back

85   Nineteenth Report of Session 2003-04, Children Bill, HL Paper 161/HC 537, paragraph 143. See also Twelfth Report of Session 2003-04, Scrutiny of Bills: Fifth Progress Report, HL Paper 93/HC 603, paragraphs 1.1-1.35. Back

86   Nineteenth Report of Session 2003-04, Children Bill, HL Paper 161/HC 537, paragraph 143. Back

87   Second Monitoring Report, paragraphs 98 -99 Back

88   Respectively (1) Cm 7232, Review of Section 58 of the Children Act 2004, Department for Children, Schools and Families, October 2007 ; and (2) Reasonable Chastisement - Research Report Case sampling exercise examining the useage of the reasonable chastisement defence, Crown Prosecution Service, July 2007; (Last accessed 16 July 2008). Back

89   Summary of Cases against the United Kingdom, Committee of Ministers, CM-EXEC, (Last accessed 14 July 2008). Back

90   Summary of Cases against the United Kingdom, Committee of Ministers, CM-EXEC, (Last accessed 14 July 2008). Back

91   CM/Inf/DH (2008) 34. Available on the Committee of Ministers website, (Last accessed 7 October 2008). Back

92   CM/Del/Dec (2008) 1035, 22 September 2008. Available on the Committee of Ministers website (Last accessed 7 October 2008). Back

93   CM/Del/Dec (2008) 1035, 22 September 2008. Available on the Committee of Ministers website (Last accessed 7 October 2008). Back

94   Review of Section 58, paragraph 5. Back

95   Nineteenth Report of Session 2003-04, paras 136-137. Back

96   Written Ev 19 and 20. Back

97   In the interests of brevity, these documents are not published with this Report. Copies are available on request from the Parliamentary Archives. The Government have provided a response to these submissions to the Committee of Ministers, but we have not yet been provided with a copy of this information.  Back

98   Written Ev 20. Back

99   Written Ev 19. Back

100   Written Ev 19. Back

101   The injuries in A v UK included bruising to the backs of the applicant's legs, inflicted with a garden cane on more than one occasion. Back

102   CM/Inf/DH(2008)34 Revised Memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights, 28 August 2008, published 18 September 2008. Back

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