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On the basis of this legal advice, the government is not planning to defy the ECHR

18 February 2011

1:24 PM

18 February 2011

1:24 PM

As I wrote this morning, the Times has obtained a copy of a government legal
memo (written before last week’s prisoners’ debate in parliament) examining non-compliance with the ECHR’s infamous judgment. The newspaper argues that the government plans to
defy the Court; and there are plenty rumours swirling around Westminster to that effect, which is hardly surprising given that the Times chanced upon this document.

But it’s mostly hot air. The government lawyers actually advised against non-compliance on four separate grounds and revealed that British officials are working towards compliance. First,
here are the recommendations of the advice:

1).    The Strasbourg judgements on Hirst and Greens and MT are binding on the UK and no action that could be taken now – even withdrawal from the ECHR
– will remove the legal obligation to implement them.

2).   The sanctions at a European level for failure or refusal to implement the judgments (and non-compliance with any subsequent order by the Strasbourg court to pay
compensation in the 3,500 clone cases) are primarily political: criticism by the Committee of Ministers in Strasbourg. In theory the UK could be suspended or expelled from the Council of Europe
(CoE) and EU, but this is highly unlikely. The timing of any criticism, compensation decisions and suspension/expulsion depends on the UK’s stance. Outright refusal to implement is likely
to result in a much quicker reaction (eg. Court rulings on compensation in a matter of months).

3).    Failure to implement the judgements is also being challenged in the domestic courts. 585 domestic cases are pending and could lead to declarations of
incompatibility and, in relation to Northern Ireland or European elections, order for compensation.

4).    In addition, as we have previously discussed, the UK would lose international credibility on human rights. In CoE, our ability to press other states to
implement human rights judgements (eg. Russia on Chechnya) would be completely undermined. So would our broader international dialogues on human rights with countries like China.


The ECHR’s recourse may be political; but Britain’s obligations under international law are clear, as is the threat of compensation claims. Parliament, of course, may throw out a
compliance bill. But the lawyers urge the government to convince parliament to comply, warning that defiance could inspire the court (and domestic courts) ‘to re-open the (2,500) clone cases and
potentially award compensation…Figures of around £1,000 per case have been awarded in similar cases in the past, but the court could choose to go higher… In a worst case scenario, 70 to
80,000 prisoners at any given time could claim compensation, leading to compensation liability of an estimated £143million. The best chance we have to avoid payments is to demonstrate a
genuine attempt, on the part of the UK, to comply with the judgement.’ 

Later, the document reveals that British officials are doing precisely that:

‘The UK’s position in the Strasbourg and UK litigation (under the previous and current administrations and with collective agreement) has been that the government accepts that the
current law is incompatible and intends to remedy it. The issue has been about when and to what extent to extend the franchise.

The same message has been given to the Committee of Ministers of the Council of Europe – responsible for the supervision of execution of judgments of the Strasbourg court.’

UPDATE: Earlier today, the High Court blocked compensation cases pertaining to the 2010 election. This is good news for the government, which wants to deliver the minimum in
compliance with the ECHR. However, this latest ruling does not curtail the compensation question, which will now be referred to the Strasbourg court. Compensation claims there have been put on
hold, while the court waits for the British government to respond to its original judgement in Hirst and Green.


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