|Criminal Justice And Immigration Bill - continued
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Premises closure orders
867. Part 1A closure notices engage subjects' Article 8 rights to respect for private and family life and their Article 1 Protocol 1 rights of property. However, the Government considers that any interference caused by the police or local authority imposing a Part 1A closure notice would be reasonably limited: the effect would merely be to restrict the use of the premises to residents and owners rather than to deny access to all persons, and the maximum duration of the restrictions (before a magistrates' court would have the opportunity for scrutiny) would be 48 hours. Any interference is considered justified since it would be prescribed by law and be proportionate in pursuit of legitimate aims. In the case of Article 8 the aims are the prevention of disorder (or crime) and the protection of the rights and freedoms of others, and in the context of Article 1 Protocol 1 the aim is upholding the public interest with respect to possessions that are not being peacefully enjoyed.
868. Safeguards include that: the police and local authority, as public bodies, are bound to act compatibly with the Convention; both have experience dealing with disorder and housing related problems; both bodies must consult one another before issuing notices; and non-statutory guidance will help ensure notices are only served as a matter of last resort. To the extent that the issue of Part 1A closure notices engages Article 6 because civil rights are affected, even though the police or local authority's decision may not satisfy Article 6 safeguards per se, the availability of review and appeal to a court with such safeguards makes the process permissible under the Convention (Bryan v United Kingdom).
869. Similar Article 8 and Article 1 Protocol 1 arguments apply in respect of court imposed Part 1A closure orders. Although Part 1A closure orders prevent anyone (including residents and owners) from accessing the premises for up to 3 months at a time, the court, another body bound to act compatibly with the Convention, is equipped with the Article 6 safeguard so that it will only reach its decision after a fair hearing of the issues. Also, the court can only make a Part 1A closure order to the extent that it is satisfied it is necessary to prevent the occurrence of the significant and persistent disorder or persistent serious nuisance to members of the public. Furthermore, a Part 1A closure order will not affect property rights in the premises, such that tenants or owner occupiers would still be able to return to the premises after the order ceases to have effect. These provisions are also without prejudice to the local authorities' existing duties to guard against homelessness by providing accommodation where appropriate.
870. The provisions that extend the availability of ISOs (so as to cover ASBOs under sections 1B and 1C of the Crime and Disorder Act 1998, and to allow applications to be made in proceedings subsequent to those in which the original ASBO was made) are considered to be compatible with the convention rights. Article 6 is satisfied as the ISO is made by a court, and any requirements under the order which impinge on the subject's Article 8 rights to respect for a private and family life are justified in the interests of preventing disorder or crime or protecting the rights of others. ISOs may only be imposed if it would be desirable in the interests of preventing anti-social behaviour to do so.
871. Clauses 104 to 107 and Schedule 18 create a new criminal offence which will be committed where a person causes, without reasonable excuse and whilst on NHS premises (HSS premises in Northern Ireland), a nuisance or disturbance to an NHS staff member on the premises in connection with his or her work and refuses to leave the premises when asked to do so by a police constable or NHS staff member. A person will not commit the offence if he or she is on the premises for the purpose of obtaining medical advice, care or treatment for himself or herself or is otherwise there in accordance with medical advice. The penalty on conviction will be a fine not exceeding level 3 on the standard scale.
872. A power to remove a person reasonably suspected of committing or having committed the offence from the NHS premises concerned is also created and conferred on police constables and any NHS staff member who has been authorised by an NHS trust, Primary Care Trust or NHS foundation trust to exercise the power of removal ("the authorised officer"). An authorised officer may also authorise other NHS staff members to remove a person the authorised officer reasonably suspects has committed or is committing the offence. The power of removal will not be exercisable by an authorised officer if that authorised officer has reason to believe that the person to be removed may require medical treatment, care or advice or that removal would endanger that person's physical or mental health.
873. The Secretary of State is given the power to issue guidance about the exercise of the powers of removal and it is intended that such guidance will set out detailed guidelines as to the procedures and training that could be put in place by NHS trusts, Primary Care Trusts and NHS foundation trusts to ensure that there are safeguards in place to prevent inappropriate use of the powers. Both the authorised officers and the NHS bodies will be under a duty to have regard to this guidance.
874. The offence and the related powers of removal are aimed at tackling low level nuisance behaviour which causes difficulties for staff in NHS hospitals and can, therefore, have a negative impact on the delivery of healthcare.
875. Articles 2, 3, 6, 8, 9, 10, 11 and 14 of the Convention are considered to have potential application to these provisions.
876. Articles 2 or 3 could be engaged if the powers of removal were exercised so as to remove someone who was in need of medical treatment from NHS premises and this removal prevented the person from receiving medical treatment leading to death (Article 2) or to suffering which fell within the terms of Article 3. The Government does not consider that the provisions are incompatible with Articles 2 and 3 because a variety of safeguards against such a situation arising are built into the provisions as detailed below.
877. A person will not commit the offence (and thus the power of removal will not be available) if he or she is on NHS premises for the purpose of obtaining medical advice, care or treatment or is otherwise there in accordance with medical advice. Even if a person had not entered onto hospital premises with the purpose of seeking medical advice or obtaining treatment, an authorised officer will not be able to authorise his removal if he or she has reason to believe that the person may need medical treatment or advice or removal would endanger his or her physical or mental health. In addition, the guidance which NHS bodies and the authorised officer will be under a duty to have regard to will provide guidelines on the matters to be taken into account when deciding whether there is reason to believe that a person may need medical treatment or advice or that removal may endanger a person's physical or mental health, and when a medical practitioner would be expected to be consulted in cases of doubt, to ensure that this safeguard is robust. Other safeguards relating to the training of authorised officers and procedures to be in place with regard to the exercise of the power of removal will also be outlined in the guidance.
878. The Government does not consider that there is any question of the provisions being incompatible with Article 6 as any person suspected of having committed the offence will be presumed innocent until proved guilty according to law and will only be guilty of the offence if found guilty by a court in accordance with the standard criminal justice processes. The Government does not consider that any argument that could be made that a police constable or authorised officer who exercises the power of removal is "determining a person's civil rights or obligations" and that there should be some form of prompt, independent, fair and public hearing before a person is removed would be entertained by a court and so does not consider that the fact there is no hearing before a person is removed is a breach of Article 6.
879. If the power of removal is exercised to remove persons who are visiting relatives in hospital, it is possible that this could be regarded as an interference with family life (both as an interference with the visitor's rights and the rights of the person being visited) and Article 8 could be engaged. However, the Government considers that any interference with the Article 8 rights resulting from the exercise of the power of removal would be in accordance with law and would be in pursuit of a legitimate aim. In particular, removing a person causing a nuisance to NHS staff would enable those staff to undertake their duties more efficiently and would therefore benefit the health of patients in that NHS facility (falling within the category of "protection of health"), would protect the NHS staff themselves from being subject to interferences with their own rights and freedoms and may prevent a nuisance situation from deteriorating further into a situation of violence (falling within "the prevention of disorder and crime"). In addition, the Government considers that any interference would be "necessary in a democratic society" (i.e. proportionate to the legitimate aim pursued) as a person who has a reasonable excuse for causing a nuisance or disturbance will not commit the offence (and be subject to the power of removal) and so if, for example, a visitor had received distressing news about a relative's health this would be regarded as a reasonable excuse for nuisance behaviour and that person would not commit the offence. The Government therefore considers that these provisions are compatible with Article 8 of the Convention.
880. The Government considers that it is possible the exercise of the powers of removal could engage Articles 9, 10 and 11 if used to remove persons who had come to protest or preach on a hospital site (and in so doing had committed the offence) on any number of subject matters such as abortion, genetic testing or research techniques used by the hospital. The rights conferred by these Articles are all qualified rights, however, and so an interference with these rights is justified if it is prescribed by law, is for a legitimate aim and is necessary in a democratic society (i.e. is proportionate).
881. These provisions of the Bill will be in accordance with law, pursue a number of legitimate aims, including the protection of health, the prevention of crime and the protection of the rights and freedoms of others and are, in the Government's view, proportionate. The offence will only be committed if a nuisance or disturbance is caused to NHS staff on NHS premises and if the protestors refuse to leave when asked. If it is then deemed appropriate for the protestors to be removed, they will only be removed from the NHS premises and will be able to continue their protest at another location. The Government's view is that any interference with their rights in relation to the protest will be proportionate to the need for NHS staff to be able to deliver healthcare in an environment where they are not inhibited and distracted from doing so, to the detriment of other patients, as a result of nuisance behaviour. The Government therefore considers that these provisions are compatible with Articles 9, 10 and 11 of the Convention.
882. The Government has considered whether, if any of the other Articles were engaged, Article 14 which provides that the Convention rights and freedoms should be secured without discrimination, would also be engaged by these provisions of the Bill. The Government does not consider that these provisions would apply to any particular group (whether on grounds of race, religion, nationality, language or otherwise) in a discriminatory way as only persons who cause a nuisance or disturbance to NHS staff on NHS premises without reasonable excuse, who are not on the premises for the purpose of obtaining medical care, treatment or advice or otherwise in accordance with medical advice, and who refuse to leave when asked to do so, will be affected. Guidance will be provided on what might constitute a reasonable excuse for nuisance behaviour, for example, the receipt of distressing news or a communication problem due to language barriers.
883. Respondents to the public consultation about the need for this offence did suggest that persons with mental health problems, learning disabilities, autistic spectrum disorders, dementia and other medical conditions which affect behaviour (which could be considered "other status" for the purposes of Article 14) could be affected by these provisions in a discriminatory way. However, the Government considers the fact that a person will not commit an offence if he or she is on the premises to obtain medical treatment, care or advice or otherwise in accordance with medical advice, and will not be removed if the authorised officer has reason to believe that the person may need medical care, treatment or advice or to remove him or her would endanger his physical or mental health, as well as safeguards relating to the training of authorised officers and procedures to be followed in exercising the powers (including when medical practitioners would be expected to be consulted before the power of removal is used), should ensure that the powers are not used in a way which discriminates against such persons. The Government does not therefore consider that Article 14 of the Convention is engaged.
Misconduct and efficiency procedures
884. Part 1 of Schedule 19 amends the Police Act 1996 to introduce changes in the police misconduct and performance procedures. Paragraph 11(2) and (3) amends the composition of police appeals tribunals. Part 2 of that Schedule makes equivalent amendments to the Ministry of Defence Police Act 1987 for the purposes of police appeals tribunals for members of the Ministry of Defence Police and Part 3 makes equivalent amendments to the Railways and Transport Safety Act 2003 for the purposes of the British Transport Police. The Government are of the view that Article 6(1) does not apply to proceedings at a PAT.
885. A PAT is a bespoke system for hearing appeals by police officers against dismissal and other serious police disciplinary sanctions arising out of procedures for dealing with misconduct or unsatisfactory performance or attendance. The Government is extending this system to apply to special constables as well as members of a police force.
886. The ECtHR has long held that disputes relating to the recruitment, careers and termination of service of civil servants were as a general rule outside the scope of Article 6(1). This exclusion did not however apply to claims for purely pecuniary rights arising in law, as these do concern a 'civil right'. The 1999 ECHR case of Pellegrin v France (Application no. 28541/95) became the leading case and ruled that the only disputes excluded from the scope of Article 6(1) were those which were raised by public servants who exercise public power and duties designed to safeguard the interests of the State. It was held that the State has a legitimate interest in requiring of these public servants a special bond of trust and loyalty; and the police and armed forces were cited as a prime example of such servants.
887. The recent case of Eskelinen and others v Finland (Application no. 63235/00) has revisited the principle in Pellegrin and ruled that the fact that a person is in a sector which participates in the exercise of power conferred by public law is no longer in itself decisive. It must now be demonstrated that the person did not have a right of access to a court and that the exclusion of rights under Article 6 is justified. This justification must be on the basis that the subject matter of the dispute relates to the exercise of State power or that it called into question the special bond of trust and loyalty. Therefore ordinary labour disputes concerning allowances for example, will not be excluded from Article 6(1).
888. The Government considers that disputes concerning the termination of service of police officers arising out of procedures for dealing with police misconduct and unsatisfactory performance or attendance remain excluded from the scope of Article 6(1). Applying the new tests under Eskelinen, police officers are excluded from access to the normal courts in relation to claims arising from dismissal (and other sanctions); and the justification for this is that such disputes fall squarely within those that call into question the special bond of trust and loyalty between public servant and State. Police officers are, by virtue of their office, in a special position of public trust. The State expects and requires police officers to exercise their powers and duties in accordance with high standards of integrity, competence and professionalism. Any issues of misconduct or unsatisfactory performance or attendance by police officers directly undermine the special relationship that exists between police officers and the State.
889. Notwithstanding that Article 6(1) does not apply, the Government is satisfied that the composition of the PAT proposed in paragraph 11 of Schedule 19 to the Bill is appropriate to guarantee a fair hearing for police officers. For senior officers, the PAT will be chaired by a lawyer appointed under an independent procedure overseen by the Ministry of Justice and the other members will be Her Majesty's Chief Inspector of Constabulary and the permanent secretary to the Home Office (or persons nominated by them). For non-senior officers, the PAT will again be chaired by an independent lawyer and the other members will comprise a senior officer, a member of the police authority for the force of which the officer concerned is a member and a retired staff association member. These persons will be appointed by the relevant police authority. Although in the case of non-senior officers the persons on the PAT might include an officer or a retired officer from the same force as the officer concerned, we consider that it is necessary for PATs to be composed of persons with relevant policing experience. Assessing matters such as police misconduct can only properly be done by persons with such experience, and the PAT has a balanced membership, including a member from both the staff side and a serving officer, as well as a member of the police authority, which is structurally independent of the police force. Further, the chair of the PAT is entirely independent.
890. In short, the Government considers that Article 6(1) of the ECHR does not apply to disputes concerning the dismissal of police officers under the misconduct or performance procedures, but are satisfied that the appeals process guarantees such officers a fair hearing.
891. The provisions in Part 11 will enable the Government to deny leave to enter or remain to non-British citizens who are liable to deportation but who cannot be removed from the UK because of Convention rights and who are:
892. A person will not be designated if to do so would breach the United Kingdom's obligations under the Refugee Convention or their rights under the Community treaties.
893. The provisions will allow reporting and residency conditions to be imposed on designated persons. Designated persons will be denied the right to work and access to mainstream benefits. Where it appears to the Secretary of State that such persons are destitute or are likely to become destitute they may be supported by the Border and Immigration Agency.
894. The rights which are most relevant are Article 1 Protocol 1 ECHR (protection of property) and Article 14 ECHR (prohibition of discrimination) in the application of Article 1 Protocol 1.
895. These provisions may fall within the ambit of Article 1 Protocol 1 for the reasons set out below. Not all persons in the UK who are not British citizens 2 will be designated. Therefore, it is accepted that certain categories of non-British citizens will be treated differently to those non-British citizens who are designated. However, the Government does not think this difference in treatment is discriminatory.
2 Within the meaning of section 2 of the 1971 Immigration Act.
896. The leading case in this area is Carson v Secretary of State for Work and Pensions  UKHL 37. The test is essentially: (1) Do the facts fall within the ambit of one or more of the Convention rights?; (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?; (3) Was the difference in treatment on one or more proscribed grounds?; (4) Were those others in an analogous situation?; (5) Was the difference in treatment objectively justifiable and proportionate? 3
3 Carson v Secretary of State for Work and Pensions  UKHL 37.
897. It is well established that a state may control the entry into and expulsion of aliens from its territory. This is achieved in the United Kingdom through a statutory scheme of immigration control which is contained in the Immigration Acts. The statutory scheme sets out who requires leave to enter or remain in the United Kingdom. The Court of Appeal clearly noted, in the judgment of S & Others  EWCA Civ 1157, that the Secretary of State was entitled to introduce a new category or status within the statutory scheme of immigration control that could be applied to persons who, through their own conduct, were not entitled to leave to enter or remain.
898. Designated persons are persons who, because of their conduct, the Secretary of State is concerned to remove from the United Kingdom. However, where that person cannot be removed compatibly with the State's obligations in the Human Rights Act 1998, they will be designated. This is in recognition of the fact that whilst there is a legal barrier to removal designated persons are not in the same position as other non-British citizens, such as refugees or persons exercising rights in Community treaties. They do not have rights to residency in the United Kingdom or rights to access mainstream benefits flowing from a recognised status (e.g. refugee status). Unlike these other non-British citizens in the UK, were it not for the legal barrier to removal, designated persons would be removed from the United Kingdom.
899. The Government does not consider that it is discriminatory to create a mechanism that allows for designated persons to be treated differently within the statutory scheme of immigration control. As noted above and as recognised by the Court of Appeal, it is the State's right to control entry into and expulsion of aliens from its territory.
900. It is the practical effects flowing from designation in respect of Article 1 Protocol 1 which, in the Government's opinion, result in differential treatment which is not discriminatory. In the first instance, the Government does not consider that designated persons are in a comparable situation to any other category of non-British citizen in the UK for the reasons set out above (i.e. designated persons do not have residency rights or any other recognised status in international law). 4
4 Carson, para 14. Also endorsed by the ECtHR in the immigration context, see Moustaquim v Belgium  13 EHRR 802.
901. In any event the Government thinks that the differential treatment flowing from these provisions is justified and proportionate on the grounds of maintaining effective immigration control. These provisions apply only in respect of serious criminality and exclusion from the Refugee Convention. They will not be applied where to do so would breach the United Kingdom's obligations under the Refugee Convention or a person's rights under Community treaties.
902. Clauses 119 and 120 provide for a support scheme which will apply to designated persons. It is based upon Part VI of the Immigration and Asylum Act 1999 and so, in general, does not raise any new issues. There is one small potential difference of application between Part VI and these provisions which may raise issues under Article 1 of the First Protocol to the ECHR. A person designated under these provisions may, unlike asylum seekers and their dependants arriving in the UK and being treated under Part VI, have accumulated property rights prior to being designated; for example by holding a secure tenancy. A person granted leave without conditions may have been provided with social housing and acquired a secure tenancy with rent being paid either through employment or housing benefit. A designated person is no longer entitled to work and is ineligible for housing benefit and the resulting loss of income may mean that the person is unable to pay their rent and hence loses their secure tenancy.
903. Assuming there is an interference with the above right, it is the Government's view that the interference is in the public interest. It is in the public interest that the Secretary of State decides the basis on which resources, such as housing, are allocated in respect of persons who are subject to immigration control. Part 11 allows for the provision of accommodation to designated persons and their dependants. Furthermore, any interference is in the public interest for the reasons set out above in respect of Article 14.
|© Parliamentary copyright 2007
|Prepared: 8 November 2007