EUROPEAN CONVENTION ON HUMAN RIGHTS
63. The Committee recognises the concerns about civil
liberties raised by these proposals and the need to balance them
with public protection. The Human Rights Act 1998 will come into
force on 2 October 2000. Any legislation implementing these proposals
will have to be presented to Parliament with a statement by the
Home Secretary about his view of its compatibility with the European
Convention of Human Rights. Ultimately its validity may be challenged
and will be judged in relation to that Convention.
64. The evidence we have received draws attention
to the few relevant ECHR cases. These indicate:
- the
state's positive obligation to protect citizens is recognised—but
would apply in these cases only when the authorities know or ought
to know of a real or immediate risk to the life of an identified
individual[58]
- it is legitimate for deprive "persons of
unsound mind" of their liberty[59]—the
Government considers that "severe personality disorder"
falls within the meaning of the term "unsound mind"[60]—but
they should be detained in a therapeutic rather than a punitive
environment[61]
- persons under detention have to be provided with
adequate medical treatment (including psychiatric care)[62]
- continued detention must be subject to regular
review by a court[63]
- detention must be based on objective medical
opinion to establish a true mental disorder of a kind or degree
which warrants compulsory confinement and which persists[64]
- there are no ECHR cases directly bearing on the
proposals to detain dangerous people with severe personality disorder
who are untreatable[65]
- "the principle of proportionality, a
governing principle in ECHR jurisprudence, requires that a fair
balance is struck between the protection of individual rights
and the interests of the community at large".[66]
65. We conclude that adequate safeguards are essential
to ensure that these proposals satisfy the requirements of the
Human Rights Act 1998 and the European Convention of Human Rights.
58 Osman
v UK [1999] 1FLR 198 cited
in Appendix 2, p50 (Justice) and Appendix 3, para 3.4 (Liberty). Back
59 ECHR
article 5 (1) (e). Back
60 Appendix
1. Back
61 Aertz
v Belgium [1998] EHRR 777,
Appendix 9, para 32 (Law Society). Back
62 ECHR
article 3, Winterwerp v The Netherlands [1979]2 EHRR 387,
cited in Appendix 9, para 31 (Law Society). Back
63 Appendix
3, para 4.5 (Liberty). Back
64 Appendix
3, para 41 (Liberty). Back
65 Appendix
3, para 3.3 (Liberty). Back
66 Appendix
3, para 4.3 (Liberty). Back
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