Constitutional Reform And Governance Bill - continued          House of Commons

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Part 3 - The House of Lords

444.     It may be argued that the provision under which members of the House of Lords are removed on meeting a condition in Part 1 of Schedule 3 (the conditions which cover serious criminal offences and bankruptcy restrictions orders) engages Article 6 ECHR (right to fair trial). The first question is whether membership of the House of Lords constitutes a “civil right or obligation” for the purposes of that Article. The weight of Strasbourg case law points towards the conclusion that it does not. In the admissibility decision of X v United Kingdom (Application No 8208/78), an applicant complained that in dismissing his peerage claim to the Barony of Eure, the Home Office had not given him a fair hearing. The Commission decided that the claim was inadmissible on the basis that the right to participate in the work of the Lords “falls into the sphere of ‘public law’ rights outside the scope of Article 6”. In addition, the case of Matthews v Ministry of Defence [2003] UKHL 4 is authority for the argument that the substantive content of any rights associated with membership would be extinguished by these new statutory provisions. Article 6(1) is not engaged as it is concerned with procedural guarantees and not the substantive content of national law.

445.     Case law supports the notion that membership of a legislative body is not a possession for the purposes of Article 1 of Protocol 1 (protection of property), including the authority of X v United Kingdom mentioned above. In addition, there is authority that a nobiliary title is not, of itself, a possession within the meaning of Article 1 of Protocol 1. In particular, there is the case of De la Cierva Osorio De Moscoso v Spain (Application Nos 41127/98, 41503/98 and 51717/98). There is however an argument that there may be financial loss associated with being removed from the House, for example, no longer being able to claim expenses and allowances available to peers. Even assuming there was a deprivation of a possession for the purposes of Article 1 of Protocol 1, such a deprivation could be justified on the basis that it is in the public interest and subject to conditions provided by law.

446.     It may be argued that Article 14 is engaged on the basis that the provisions do not apply to Lords Spiritual. Even if another Convention right was engaged, it is difficult to identify a prohibited ground in this case, although a life peer subjected to the disqualification or expulsion provisions may seek to argue that there is discrimination on the grounds of religion. The justification for this difference in treatment is that the Lords Spiritual are members ex officio. Any reputational damage caused by a Lord Spiritual falling into one of the categories where a life peer would be removed would be primarily to the Church and not the House of Lords. In addition, the Church has in place a range of measures to deal with disciplinary issues among the archbishops and bishops.

447.     It may be argued that the operation of the expulsion and suspension provisions in clause 28 engage Article 6 on the basis that, as far as those provisions affect membership of the House, they result in the determination of a civil right. However, the Government considers that for the reasons above concerning the other removal provisions, the contrary view is the better one.

448.     Even assuming that expulsion or suspension is regarded as the determination of a civil right or obligation and Article 6 is engaged there are good arguments that the proposals would be compatible with that Convention right. In particular, members of the House of Lords whose conduct is impugned are accorded procedural safeguards. Members subject to these proceedings are judged against a Code of Conduct which has been in place since 2002, and was designed with ECHR compliance in mind. Investigations are conducted by a Sub-Committee of the Committee for Privileges - a cross-party committee of five members appointed by the Committee for Privileges - and are carried out in accordance with procedures in paragraph 19 of the Code of Conduct, which provides that “Members of the House have the right to safeguards as rigorous as those applied in the courts and professional disciplinary bodies”. To this end, impugned members have a right of appeal to the Committee of Privileges, a body which includes four Lords of Appeal.

Part 4 - Public Order

449.     Part 4 contains provisions which repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (“SOCPA”).

450.     The repeal of sections 132 to 136 means that the statutory regime governing public assemblies in the vicinity of Parliament will be the same as that which applies in the rest of the country, being that which applied in the vicinity of Parliament prior to SOCPA. Under section 14 of the Public Order Act 1986 no advance notice or authorisation is required for public assemblies, only limited conditions may be imposed by the police and the restrictions only apply in respect of assemblies of 2 or more people.

451.     The regime under section 14 has already been deemed compatible with the ECHR most recently in the case of R (on the application of Louise Brehony) v Chief Constable of Greater Manchester [2005] EWHC 640 (Admin). Conditions may be imposed on such an assembly only where they are reasonably believed to be necessary to prevent serious public disorder, serious damage to property, serious disruption to the life of the community or unjust intimidation. Insofar as the conditions may only pertain to the place of the demonstration, its maximum duration and the maximum number of persons who may constitute it, they are proportionate in respect of legitimate aims. These conditions may only be imposed by the police who are themselves bound to act compatibly with the ECHR as a public authority under the Human Rights Act.

452.     Schedule 4 inserts three provisions into Part 2 of the Public Order Act 1986 with application in the area around Parliament.

453.     New section 14ZA of the 1986 Act permits the police to impose such directions in relation to public processions and public assemblies that are reasonably believed to be necessary to maintain access to and from the Palace of Westminster in accordance with requirements specified by the Secretary of State by order. Directions relating to public assemblies may only include conditions as to the place of the demonstration, its maximum duration and the maximum number of persons who may constitute it. The range of directions that can be imposed relating to public processions are not limited in that way. All directions are limited to those that, in the officer’s reasonable opinion, are necessary to meet the specified requirements of maintaining access to and from the Palace of Westminster. Section 14ZA(4) sets out requirements that may be included in the Secretary of State’s order, but this is not an exhaustive list.

454.     Both Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the ECHR are potentially engaged by this clause. However the requirements under SOCPA to obtain prior authorisation (section 134) for any demonstration in the vicinity of Parliament, and the corresponding criminal offences (section 132) were not found to be incompatible with the ECHR in Blum, Shaer, Evans, Rai v DPP, CPS and the Secretary of State for the Home Department [2006] EWHC 3209 (Admin). The directions that can be made under section 14ZA are much more limited than those permissible under the SOCPA regime. This clause allows directions to be given for only one reason - the maintenance of access to and from the Palace of Westminster. The Government considers that this is a legitimate aim, namely the proper and secure functioning of Parliament. Since directions are limited in scope and in geographical effect (section 14ZB), the Government’s view is that they are a proportionate interference with individual rights. These conditions may only be imposed by the police who are themselves bound to act compatibly with the ECHR as a public authority under the Human Rights Act.

455.     New section 14ZB provides that the area around Parliament is to be specified by the Secretary of State by order. The section states that no point in the area may be more than 250 metres in a straight line from Parliament Square. This section reflects similar provisions in section 138 of SOCPA, however this clause provides for a much smaller area (section 138 specified a one kilometre line). This section has the effect of strictly limiting the geographical area in which conditions may be imposed under sections 14ZA and therefore is one of the tools helping to ensure that any restriction of rights under Articles 10 and 11 is proportionate.

456.     New section 14ZC provides that the Secretary of State can make a similar order to that under section 14ZB in relation to another building, outside the Palace of Westminster, should one or both Houses be relocated for the purposes of conducting its meetings or those of its committees. This may happen should the Palace of Westminster undergo large-scale refurbishment works. This provision mirrors the geographical limitations of 250 metres from the relevant building. It is considered that this section raises the same ECHR issues as sections 14ZA and 14ZB and for the same reasons, the Government believes that it is proportionate.

457.     The Government therefore considers that these provisions are compatible with the ECHR.

458.     The repeal of section 137 of SOCPA removes those restrictions on the operation of loudspeakers within the designated area around Parliament. The use of loudspeakers will continue to be governed by section 62 of the Control of Pollution Act 1974 (“the 1974 Act”) and section 8 of the Noise and Statutory Nuisance Act 1993 (“the 1993 Act”). The clause also makes consequential amendment to the 1993 Act.

459.     By removing the provisions of SOCPA which regulate demonstrations and the use of loudspeakers in the vicinity of Parliament these matters will be regulated in a less restrictive way. Both Articles 10 and 11 of the ECHR are engaged by this clause, notwithstanding that the intention of the clause is to bring about more proportionate regimes. However, any interference with these qualified rights would be justified and proportionate under Articles 10(2) and 11(2) in order to prevent these rights being abused and the rights of others suffering in consequence.

460.     Regarding the loudspeaker regime, section 62 of the 1974 Act imposes a restriction on the use of loudspeakers in streets at night and in the early hours of the morning. Such restriction is limited in its duration and targeted at the prevention of disorder and the protection of the rights of others. As such it pursues a legitimate aim and is a proportionate means of achieving it. Furthermore, under section 8 of the 1993 Act the local authority, another public authority bound to act compatibly with the ECHR, is able to consent to the use of loudspeakers (with conditions where appropriate) in its area in a way which would otherwise contravene the 1974 Act.

461.     The Government considers that the effects of the repeals and the new clauses result in an ECHR compatible legal framework for managing protests in the vicinity of Parliament.

Part 5 - Human rights claims against devolved administrations

462.     Article 6 and Article 1 of Protocol 1 of the Convention may be engaged by these clauses, which insert a one year time limit into the Northern Ireland Act 1998 (clause 33) and the Government of Wales Act 2006 (clause 34). The new time limit will apply to proceedings brought under those Acts in relation to executive acts of the Northern Ireland Ministers and Departments and the Welsh Ministers where a claim is brought on the ground that they have acted incompatibly with the Convention rights. The time limit mirrors that under section 7(5) of the Human Rights Act 1998, which applies to proceedings brought under that Act where it is alleged that a public authority has acted incompatibly with the Convention rights under section 6(1) of that Act. The intention is therefore to ensure that the same time limit will apply in relation to executive acts of the relevant devolved Ministers and Departments (though it will not apply to claims under the devolution Acts relating to the making, confirmation or approval of subordinate legislation), whether the proceedings are brought under the relevant devolution Act or the Human Rights Act 1998.

463.     The time limits in clauses 33 and 34 provide that proceedings must be brought within one year of the date on which the act complained of took place, which is subject to such longer period as a court or tribunal considers equitable having regard to all the circumstances. This is further subject to any stricter time limit which governs the proceedings in question. In very many cases, proceedings are brought by way of judicial review and therefore as at present will continue in England, Wales and Northern Ireland to be subject to the rule that judicial review proceedings must generally be brought within 3 months. The time limit will apply to any proceedings brought after the clauses are commenced, whenever the act complained of took place. It will therefore operate on a partially retrospective basis, in that it will affect accrued rights and affect the legal consequences of events which occurred before commencement.

464.     In so far as the time limits engage the ECHR, the questions are whether the time limit pursues a legitimate aim, and complies with the principles of proportionality and legal certainty. There must also be a reasonable relationship between the means employed and the aim sought to be achieved. The legitimate aims in inserting this time limit into the devolution settlements are to prevent stale claims, promote legal certainty and to provide for a consistent time limit for proceedings in relation to executive acts whether brought under the Human Rights Act or the devolution settlements. In accordance with cases such as Stubbings v UK ((1997) 23 EHRR 213), the Government considers that the introduction of a one year time limit for Convention-based claims, consistent with that which already exists in the Human Rights Act 1998, is a proportionate measure. In so far as the time limit will apply to post-commencement proceedings but may affect pre-commencement actions, the Government considers that the power of courts and tribunals to extend the one year period for such longer period as is equitable in all the circumstances will operate to cure any residual unfairness to a litigant whose claim might otherwise be barred. The Government therefore considers that these clauses are proportionate measures and compatible with the Convention rights.

Part 6 - Courts and tribunals

465.     Paragraph 5 of Schedule 5 may raise issues under Article 8 of the ECHR. The paragraph amends section 96 of the Constitutional Reform Act 2005 (“CRA”). Section 96 of the CRA at present makes it a matter for the Judicial Appointments Commission (“the JAC”) to perform health checks on successful candidates for appointment, if the Lord Chancellor requires, and to report the results to the Lord Chancellor. The amendments enable the Lord Chancellor to request a person who has been selected for appointment to provide information about his or her physical or mental condition. The Lord Chancellor may also request a candidate to undergo a medical assessment and for a report of that assessment to be made available to the Lord Chancellor.

466.     The Lord Chancellor may decide not to proceed with an appointment if that person fails to supply information concerning their physical or mental condition or fails to undergo a medical assessment when requested to do so. The Lord Chancellor may also reject a candidate on the basis of a report supplied following a medical assessment. Before the Lord Chancellor decides not to proceed with an appointment on these grounds he must consult the Lord Chief Justice (or Scottish or Northern Ireland equivalent as appropriate - as a result of the consequential amendment to section 97(1)(e)).

467.     These changes are designed to permit a simplification of the current procedures for medical checks, and to reflect the split in roles between the JAC (responsible for the selection of a candidate) and the Lord Chancellor (responsible for appointment or recommendation of appointment).

468.     The exercise of these powers by the Lord Chancellor will engage Article 8(1). The power to request information regarding the physical and medical condition of a candidate or that a candidate undergo a medical assessment may interfere with Article 8 rights. However, the Government considers that any interference can be justified under Article 8(2). It is considered that the measures are in accordance with the law. The provisions are clear in that medical checks will only take place after selection and specify what options the Lord Chancellor may take once he is in receipt of the information regarding the physical and mental condition of a candidate. In addition, the measures regarding medical checks are proportionate and in pursuit of a legitimate aim. The legitimate aim is to ensure that the candidate is physically and mentally able to perform the functions of the office for which he is selected. A candidate’s ability to do so has a bearing on the protection of rights and freedoms of others, public safety, protection of disorder and crime and the economic well being of the country. The requests for information from a candidate regarding their physical and mental condition will be less of a burden for candidates than the requirement for a health check with a medical professional which usually takes place at present. The intention behind the amendments is that detailed medical assessments with a health professional will only take place if information supplied by the candidate reveals a cause for concern warranting further enquiry.

469.     The Government considers that paragraph 5 of Schedule 5 is compatible with Article 8.

470.     Disclosure of confidential information under paragraph 8 of Schedule 5 is likely to engage Article 8. Paragraph 8 amends section 139 of the CRA. That section concerns confidential information relating to judicial appointments and discipline and sets out a limited number of circumstances in which such information can be disclosed. The amendment to section 139 would make clear that confidential information may be disclosed to the police for the purpose of preventing crime. Article 8 is likely to be engaged by such a provision because the information to be disclosed is likely to be personal information, provided in circumstances where the person who obtains the information has a duty of confidentiality. However, any interference with Article 8 is likely to be in pursuit of a legitimate aim, namely the prevention of crime and disorder. The exercise of the power to disclose will be subject to the safeguards of the operation of the Human Rights Act 1998 and the Data Protection Act 1998. The power to disclose is also limited to circumstances where a crime might be prevented, or for a criminal investigation or criminal proceedings or a decision whether to start such an investigation or proceedings. The Government therefore considers that any interference arising from the disclosure of such information will be proportionate.

Part 7 - National audit

471.     Clause 37(7) states that the person appointed as the Comptroller and Auditor General (“C&AG”) holds the office for a fixed term of ten years. Under the current arrangements, the C&AG is appointed for an unlimited term. At the time of commencement of this Bill, a new C&AG will have been appointed under the current provisions. The practical impact of this clause will be to change the C&AG’s term of office from an unlimited term to a fixed ten-year term. Paragraph 5(2) of Schedule 8 provides as a transitional arrangement that the officeholder in post will serve a total of ten years from the date of appointment under the current provisions.

472.     The change in the term of appointment of a serving C&AG may engage Article 1 of Protocol 1. If so, it is considered that any interference can be justified as being in the public interest of ensuring that the role of the office holder charged with the independent scrutiny of public accounts does not become too closely associated with the personality of a single person. Moreover, the balance between the interests of the state and the individual will be fairly struck because the affected C&AG will have known before appointment that the term of office was being changed to a fixed ten year term. The new C&AG has already given his agreement to the ten year term of his appointment.

473.     Clause 41 relates to the resignation or removal of the C&AG. Clause 41(2) provides that Her Majesty may remove the C&AG from office on an Address of each House of Parliament. In the event of this provision being used, it would be up to Parliament to devise a procedure that ensures that the removal of the C&AG from office is carried out fairly, and complies with Article 6 standards. This type of dismissal procedure can be found in other primary legislation, both old and new, including, for example, paragraph 2 of Schedule 8 to the Government of Wales Act 2006, in respect of the removal from office of the Auditor General for Wales. The power would need to be exercised in a manner which is human rights compliant, for which Parliament would need to design a procedure which offers appropriate safeguards. This has parallels with other areas in which Parliament could be said to determine civil rights, such as private bill and hybrid bill procedures. Establishing the details of a fair procedure is properly a matter for Parliament.

474.     Clause 42 sets out provisions that control or restrict the future employment of a former C&AG. Consideration has been given to whether this provision engages Article 1 of Protocol 1. The Government not consider that an employment restriction would engage Article 1 of Protocol 1. Article 1 of Protocol 1 has been applied restrictively, and the future employment prospects of a former C&AG are not considered likely to fall within the category of protected property rights (R (Countryside Alliance) v Her Majesty's Attorney General [2007] UKHL 52). In respect of whether Article 8 is engaged, the European Court of Human Rights has held that there is no right to work in a particular profession (see the Countryside Alliance case cited above) and therefore the prospects of a claim under this head are not considered to be strong. It is arguable that the restrictions might have a sufficient impact on a former C&AG’s ability to establish, develop and maintain relationships, particularly with public sector workers, such that it would fall within the ambit of Article 8 (see R (Wright) v Secretary of State for Health [2009] UKHL 3). The limited extent and duration of the ban, however, and its automatic application (which is therefore without stigma) would significantly moderate any impact.

475.     With regard to Article 14, even if a claimant were able to persuade a court that the ban did fall within the ambit of either of Article 1 of Protocol 1 or Article 8 then it would still be necessary to establish that there was a difference of treatment contrary to a prohibited ground. Although it may be argued that the ban is likely to impact on younger applicants because their employment opportunities would be restricted for a longer period than would those of older applicants, it would still be necessary to establish that age is a prohibited ground within Article 14. In any event, the Government considers that a restriction lasting two years could be objectively justified, due to the importance of preserving the visible independence of the C&AG by limiting the scope for conflicts of interest between a former C&AG’s work as C&AG and any future employment.

476.     While the requirement of clause 42(2) has no fixed duration, it is similarly considered to be objectively justifiable and proportionate. The obligation is merely to consult the specified person. That person will be able to provide advice on the propriety of taking up the contemplated office, but will not be able to insist that it is acted on.

477.     Paragraph 10(1) of Part 2 to Schedule 6 states that Her Majesty may terminate the appointment of the chair of the National Audit Office on an Address of each House of Parliament. As with the power to terminate the C&AG’s appointment (see clause 41(2)), in the event of this provision being used, it would be for Parliament to devise a procedure that ensures that the removal of the chair from office is carried out fairly, and complies with Article 6 standards. The procedure would need to offer appropriate safeguards. Establishing the details of that fair procedure is properly a matter for Parliament.

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