Examination of Witnesses (Questions 1
MONDAY 5 MARCH 2001
MR C CLARKE,
MRS V KEATING,
MS V GEORGE,
MR A CUNNINGHAM,
MR B LANE,
DR J TAN,
MR S HEWETT
1. Minister, good afternoon, and welcome to
the first public session of the Joint Committee on Human Rights.
I think it is probably right to say that the walls of Parliament
have in the past echoed occasionally to exaggeration and rhetoric,
but it is no exaggeration to say that this is an historic occasion
because it is the first public session of the Joint Committee
on Human Rights. We had our first meeting on 31 January. We are
a Committee, as the name implies, comprising six Members of the
House of Lords, six Members of the House of Commons, six from
the Government, six from the opposition, and we have a wide remit.
So far we have written to interested parties about the Human Rights
Act's impact on the Committee's work, to Cabinet Ministers about
compatibility issues and obviously one of those refers to section
19 on the Scrutiny of Bills, and it is the main reason for asking
you to come here today with your officials to discuss with us
the Criminal Justice and Police Bill. Before we start, and before
I ask you to introduce your team, I would like to say on behalf
of the Committee how grateful we are for the prompt and comprehensive
way in which the Home Office have responded on a very, very tight
timescale to the many questions we asked about this Bill. We would
like to say that we think that the briefing which has been sent
to us by the Home Office should serve as a model for the way in
which Government departments respond to enquiries from this Committee
and the serious nature with which they have dealt with our questions.
I want to give my thanks you to you and ask you to introduce your
(Mr Clarke) Chairman, firstly can I express
my thanks for those words. The credit for it is entirely due to
my team and the work that they have done in preparation for the
Bill generally. I know they will appreciate, as I do, what you
have just said. I have got at the table with me Valerie Keating,
who is the Bill Team leader and is co-ordinating all the work
we do for the Bill in the House, and Bernard Lane who deals particularly
with the alcohol parts of the Bill. Other members of my team I
will not introduce by name because, as the Committee will appreciate,
the Bill covers a range of different aspects of Home Office work
and, therefore, the different experts have been brought together
from those areas. Could I just say that for the Government's part
we very, very much note the historic nature of this meeting today.
We very much welcome the establishment of your Committee. We do
believe that your Committee will enable Parliament better to address
the Human Rights Act implications of legislation going through
the House in the future. We think that the way to proceed and
on which you have set out a series of questions is the right way
to proceed. I am not a lawyer and many of you are distinguished
lawyers, so in some cases I hope I will be excused if I simply
respond from the brief which I have on detailed legal matters,
but I will endeavour to be as clear as I can in answers to your
Chairman: Thank you very much. You have
already had indications of the parts of the Bill that we particularly
wish to raise with you and Members will obviously raise points
that occur to them as we try to go through the Bill in a sequential
fashion. First of all, Lord Lester.
Lord Lester of Herne Hill
2. Thank you very much. I would like to ask,
if I may, about the provisions prohibiting alcohol in designated
public places. In the Home Office memorandum you very helpfully
set out the policy reasons for introducing these measures in paragraphs
six and seven. Taking those as given and showing an important
general and pressing need, what I would like to ask about is really
the Human Rights standards against which one is measuring this.
I want to do it in a way that is, as far as possible, accessible
to the wider world, so I will try not to sound like a lawyer.
I am really seeking confirmation about this because it is not
clear from your memorandum and I want to see that it is common
ground. As I understand it the two main standards or criteria
that we should be concerned about, leaving aside the questions
of policy, are, first of all, legal certainty, reasonable legal
certainty, in other words is the way in which the public places
are defined sufficiently reasonably certain to satisfy that standard
and, secondly, the test of pressing social need, proportionality
and necessity, and let us just call that proportionality for the
sake of argument. If I can ask a general question first of all.
Looking at Human Rights Act areas like privacy and property, which
are the ones that have been identified here, Article 8 of the
Human Rights Convention and Article 1 of the First Protocol, is
it common ground that the Government and Parliament and the wider
world should be concerned about reasonable certainty, that is
to say the definition should be sufficiently precise, though not
too precise, to satisfy that, and proportionality and necessity?
(Mr Clarke) The short answer to your question is yes,
but I am not quite sure when you refer to "common ground",
common ground between whom and whom. I certainly believe that
both legal necessity, as you have indicated, and proportionality
are key elements of the legislation and those are among the reasons
why we are confident that the Bill as proposed passes the test
of according with the Human Rights Act. My general answer to the
question is yes, and I am happy to go into more detail as you
pursue further. When you say "common ground", I am not
3. I meant common ground between the Government
and, if you like, myself individually. I did not mean anything
more than that. Then in terms of the very wide definition of "public
place" in terms of legal certainty, I put it that way because
the memorandum does not refer as such either to proportionality
or to legal certainty. It is not a criticism but it is simply
why I put the question in the first place. Could I ask you, Minister,
whether you are satisfied that the wide definition of "public
place" does satisfy, first of all, legal certainty and then
pressing social need, proportionality?
(Mr Clarke) We do believe that the definition of "public
place" provided by clause 18(1) is proportionate to the purpose
of clauses 14 to 17, which is to reduce the incidence of disorder
and public nuisance arising from alcohol consumption in public
places. We think that the definition of "public place"
in clause 18(1) is sufficiently wide to allow the local authority
to designate, for this purpose, any place within its area which
is open to the public. This includes places such as streets and
parks but other places also to which members of the public may
have access, for example privately owned shopping centres, where
public drinking may give rise to public nuisance and disorder.
As the Home Secretary made clear in the memorandum to the Committee,
regulations under clause 15(4) will provide for the owners of
any private land to be designated to be consulted. But in our
view it would severely limit the usefulness of the power if it
were limited to places in "public ownership" for that
reason. The test in clause 15(2) tailors the definition of public
places by restricting the local authority's power in this context
to those that have experienced nuisance, annoyance or disorder
arising from public drinking. The local authority will have to
satisfy itself of the need for designation; it will not be lawful
to designate public places which have not experienced problems
associated with public drinking. I think it is worth saying, Chairman,
that 113 local authorities have adopted the model byelaw to control
public drinking, which these adoptive provisions will replace.
We believe that practice does establish the need for these powers
and also indicates that there has as yet so far been no significant
difficulty or problem about the exercise of those powers in places
where that byelaw has been adopted.
4. I am very grateful. Could I just ask one
short supplementary question on proportionality? I wonder why
it says in clause 15(2) "...has been associated with the
consumption of intoxicating liquor in that place" without
any time limit. On the face of it the fact that the local authority
identifies any public place in their area where there has been
nuisance, let us say, or disorder and the place has been associated
with the consumption of intoxicating liquor in that place at any
time, how does one square the "at any time in the past"?
So far as I read this it could have been ten years ago in one
sense. How is one going to make sure that is carefully tailored
to ensure pressing social need, proportionality?
(Mr Clarke) I accept that in principle it is imaginable
that a problem of that kind could arise if you do not specify
a time period here. When an ancient fair was held in medieval
times was there disorder or not? I do not accept that it is a
severe limitation upon the principle of proportionality. I have
to confess, it is not an issue I have thought about a great deal.
We did not debate this in Committee, there were no amendments
moved to that on limitation of time. The reason for that was we
wanted to give the local authorityWe set a whole series
of requirements about their need to consult widely on this rather
than to be arbitrary in what they do, including we made it clear
in Committee the requirement to talk to parish and town councils
in the area where we are talking about, so it is not just a local
authority but a much more local geographic entity as well. It
seemed to us that ability was sufficiently constrained in a proportional
way by the legislation which is here. I am speaking off the cuff
really but I cannot accept the specific identification of the
time period, whether five years, ten years, 20 years or whatever,
would significantly of itself increase or reduce the action of
a local authority as a liability to a charge of being disproportionate
in the way that it operated. I am prepared, and I do not know
how this Committee is going to work, Chairman, it is interesting
to see how it goes, to have a look at that and think about that
question but so far, thus far, we do not believe that even a relatively
extreme time factor in this would be a serious inhibition on the
proportional grounds that we are talking about.
Sir Patrick Cormack
5. Following that up, Minister, it is quite
clear that a single incident can lead to designation regardless
of how improbable it is that a similar incident can take place
again in that way. Are you not a little worried about that?
(Mr Clarke) No, because I think that local people
in a particular circumstance are very well placed to make a judgment
on both the likelihood of the action recurring and, indeed, addressing
the question of time when these issues come through. I can imagine
that if there were a single incident only that it might be argued
that it was wrong then to designate a particular area. I can see,
Sir Patrick, how that argument could be made. Again, we are very
happy to leave it to the local authorityas I say, there
have been 113 authorities which have passed byelaws in these areasto
make a judgment on how likely an event is or is not to happen.
There is clearly a massive distinction between an individual act
where one particular person has come in from outside and has created
disorder in a particular place, for whatever reason, and a new
set of events happening where, for example, a set of football
matches were to be played in the immediate locality or whatever
it might be which might give rise to the concerns operating for
6. How will you monitor this?
(Mr Clarke) We will, as a Government, be looking very
carefully at the way in which the whole of this legislation operates
and seeing what public places are designated. One of the points
which we agreed in Committee following representations from the
Liberal Democrat representatives in the Committee was that we
should try and achieve a national website where we had information
about what areas were designated and what areas were not, because
at the moment in the whole byelaw structure it is very complicated,
nobody knows exactly what the state of affairs is. We agreed there
should be transparency in these areas and I think the process
of trying to achieve transparency will enable us to monitor the
7. Is there a specific individual within the
Home Office who has this responsibility?
(Mr Clarke) My colleague, Mr Lane, has responsibility
for alcohol related matters in general, so he has an overall responsibility
in this regard.
8. So you will give him responsibility for this
in particular, will you?
(Mr Clarke) I think he will be the individual, depending
on his future career following the passage of this Bill, who will
have the job of reporting to Ministers at the time on how things
move. We accept completely the thrust of the question you are
raising, Sir Patrick, that it is right to monitor it, right to
assess it and right from time to time to report publicly on how
we perceive this legislation as having operated.
9. Proportionality and certainty are different
issues and if it is not sufficiently certain one never gets as
far as proportionality because the provision is incompatible.
(Mr Clarke) That is right. The point that perhaps
I have not emphasised enough in what I have answered so far is
the requirement on the police to focus very much on public safety
when they are considering whether to take action under other aspects
of this Bill and the responsibility of the local authority to
take account of all aspects around when they decide which areas
to designate. They are different requirements, as you say, and
there will be different balances of judgment that are made in
Lord Carlisle of Bucklow
10. Minister, can I take you to clause 34 of
the Bill. That is the one that sets out the new offence which
makes it an offence for "A relevant person shall not permit
drunkenness or any violent, quarrelsome or riotous conduct to
take place in licensed premises." It is the word "quarrelsome"
that I am really interested about. You said in your reply when
we raised this matter with you that, in fact, this was already
an offence under the Licensing Act 1964 so far as the licensee
was concerned and you have really extended it by the use of the
words "relevant person". I am sure you will agree that
since the 1964 Act we have brought in the Human Rights Act and
incorporated it into our legislation in this country and under
that Act, as I understand it, for an offence to be Convention
compatible has to be clearly understandable and to allow a person
to predict with reasonable confidence what conduct will make him
liable to a sanction. My concern is the word "quarrelsome"
seems somewhat wide, somewhat vague and somewhat subjective. What
to one person might be quarrelsome, to someone else might be agreeing
in an argument. You say in your answer that we can get benefit
from the case law on the 1964 Act. I wonder could you expand a
little bit on that and say whether you are satisfied that the
word "quarrelsome" is precise enough?
(Mr Clarke) Two or three things to say, Lord Carlisle.
Firstly, the reason why we used the phrase "quarrelsome conduct"
was, as you say, because it is in the existing legislation. Secondly,
it is right to say that the Government has published a White Paper
on the whole of licensing right across the whole range upon which
we intend to legislate in the future which will look at this whole
area of conduct of our society. I am sure that when the debate
takes place on that in both Houses there will be a lot of debate
about things like "quarrelsome conduct" in that context.
The reason why we kept that phrase in relation to this legislation
was because it already existed. The case law that exists is almost
entirely in the case of magistrates' courts from existing law.
It may be that our evidence was misleading in saying that there
is crown court case law, as it were, easily available at any rate
which we have been able rapidly to identify. We were referring
to the fact that the term is already clear to magistrates from
existing law and any experience that a magistrate has of interpreting
that term in the current offence can be applied to a consideration
of the term in a new offence. That is why we wrote the evidence
that we did. We have not, in fact, got case law from the crown
court which would assist courts in judging this matter in the
way they will do in the future, simply a lot of experience from
the magistrates' courts.
11. Indeed, the case law we have been given
all relates to drunkenness which is rather easier to define than
(Mr Clarke) We have a list. I do not know if it has
been circulated to the Committee.
Chairman: Yes, we have that.
Lord Carlisle of Bucklow
12. I notice the first one of all was to supply
drink to a person who is already drunk and that is quite simple,
but supplying it to a person who is already quarrelsome is rather
(Mr Clarke) We had quite a lot of discussion, Chairman,
on the meaning of the word "drunk" in our Committee
when we were considering this. Even "drunk" might not
be quite as clear as we might wish.
Lord Carlisle of Bucklow: I think I have
got your point. Thank you very much.
13. I notice, Minister, you said that magistrates
understood this. I do not know whether that is the problem, I
think the problem really is that potential offenders ought to
be able to understand it. Are you confident about that?
(Mr Clarke) I think that is a fair point but, as I
say, the reason why we used the phrase was because it was one
that was in existing law and the question as to whether offenders
understand the phrase "quarrelsome conduct" in the legislation
that the House is now considering is the same as the question
do they understand the phrase "quarrelsome conduct"
in the law more generally of the Licensing Act, in particular
section 172 of the Licensing Act. We think the issues are much
the same in both cases. I think it will be an interesting question
when the licensing legislation is proposed for consideration for
the House, if indeed it is based on the White Paper that we have
published, whether the House at that time will think we need to
define more clearly what these words mean for members of the public
so they know exactly where they stand.
Lord Lester of Herne Hill
14. Can I follow that up a little bit more.
One of the things that puzzled me in the Home Office memorandum
was that in paragraph 24 and in other places it was suggested
that the provision that Lord Carlisle has drawn attention to,
clause 34, does not engage any free speech problems under, let
us say, Article 10 of the Convention. Unless I am much mistaken,
the way that clause 34 works is like this: it creates a criminal
offence for a barman or a barwoman who permits non-violent, quarrelsome
behaviour in a pub. Suppose hypothetically that there are two
people sitting in a pub; let us assume one is of one political
party and the other is of another political party and they are
debating whether the Home Secretary is a wet Liberal from Hampstead
or an illiberal populist from Herne Hill or Clapham. Let us assume
that they get not violent and not drunk but they become quarrelsome.
As I understand it if the barman or barwoman does not expel the
quarrelsome couple then it is a criminal offence. What I do not
understand is how the Home Office thinks that that does not at
least engage issues about free expression because the pub is not
allowed to become a little Speaker's Corner, if you like. Could
you explain that?
(Mr Clarke) Yes, and with your permission, Chairman,
I would like to explain at some length because I think it is a
very important point. We do believe that clause 34 does not directly
restrict freedom of expression. This provision does not criminalise
drunkenness or other conduct. It simply imposes certain responsibilities
on bar staff. Any restrictions on an individual's freedom to express
himself through quarrelsome or riotous conduct is imposed by the
bar staff, and is only indirectly connected to the legislation
itself. Moreover, clause 34 does not cover any behaviour that
is not already mentioned by section 172 of the Licensing Act 1964.
I am sorry to return to the point of our previous conversation.
All the clause does is to extend the range of people who have
a legal responsibility to deal with certain types of behaviour.
So we question whether the new clause can be said to "restrict"
freedom of expression any more than the Licensing Act 1964 does,
whether there is any significant change in that regard. As far
as which types of behaviour are acceptable and how far people
may exercise their freedom of expression are concerned, we believe
this clause simply maintains the status quo and imposes no additional
restrictions. So the kind of argument between lawyers and non-lawyers,
if that was what Lord Lester was suggesting, that might take place
under this proposed Act, the issues would be the same under the
Licensing Act 1964. However, we do accept that it is an indirect
effect of the legislation that in certain circumstances a person's
freedom of expression will be restricted. However, we think that
this can be justified since the level of behaviour that could
provoke an exclusion from licensed premises is likely to be relatively
high, and we come back to the proportional questions that were
being talked about earlier on. As the Committee has pointed out,
and as Lord Carlisle just emphasised, "quarrelsome conduct"
is not a precise term. But for two reasons, we believe that in
new clause 172A it must be construed to mean seriously aggressive
behaviour, verging on a breach of the peace. The reason I was
keen to put this on the record was to set that out. First, the
term appears in the context of the phrase "any violent, quarrelsome
or riotous conduct", and that means there is a context for
the word which is significant, which must be taken to mean conduct
of the same general kind as the more extreme forms of behaviour
specified in the clause, ie violent and riotous. Secondly, in
interpreting the term a court will, under section 3(1) of the
Human Rights Act 1998, have to read it in a way which is compatible
with the Convention rights, so far as it is possible to do so.
We therefore consider that the provisions strike a fair balance
between the rights of a person to express him or herself and the
need to impose an obligation on bar staff to maintain order in
premises where they work. In coming to this view we are mindful
that a person's freedom of expression is not seriously impaired
by his being expelled from a pub, as he can continue to express
himself outside the premises. As I have explained our view is
not based on particular legal authority but on a construction
of the words of Clause 34, and the relevant provisions of the
Human Acts Right.
15. I find that a helpful answer. It picks up
the point I wanted to ask you about, which is the phrase itself.
The phrase, as you say, appears in present legislation in the
1964 Licensing Act in the context of violent, quarrelsome or riotous
conduct. Looking at it cold is has a sort of Victorian ring to
it, if not an 18th Century ring to it. Does it come from some
earlier legislation and does that help answer the question, whether
it brings with it an implication of, as you described it, seriously
(Mr Clarke) I should introduce my colleague Andrew
Cunningham, and one of his responsibilities in the Home Office
was to draw up the Licensing White Paper that was published earlier
this year. He advises me it does go back to previous legislation
before that time. I do think that the implication of the question,
that the whole of this needs tidying, is one of the reasons and
the argument for the Licensing White Paper that we published last
Sir Patrick Cormack
16. I would like to know, Mr Clarke, if you
can tell me the difference between argumentative and quarrelsome.
(Mr Clarke) I cannot because I am not a lawyer. Were
I a lawyer I am sure I could. I suppose as a layperson I could
give you a layperson's view, speaking off the cuff myself, which
is that argumentative is somebody who has a tendency to make arguments.
An argument need not be conduct in any kind of aggressive or difficult
manner. Quarrelsome is a word describing somebody who has a tendency
to quarrel, ie to have an argument which is not an exchange of
facts in a tight way, but to have disputes with others.
17. You said it needs some tidying up, I would
ask you to look at this again. To many people these are synonyms,
argumentative and quarrelsome, and to many people to have an argument
or a quarrel is not particularly reprehensible. Lord Lester has
given one example, and I have heard that in many a pub, particularly
during election times. What I think you ought to look at is getting
in the word "incite". If somebody is inciting bad conduct
or reprehensible behaviour that is going one step beyond arguing
and quarrelling. I am a little uneasy about your answers on quarrelling.
(Mr Clarke) Firstly, I do believe, as I say, speaking
as a layperson that there is a qualitative distinction between
the word argumentative and the word quarrelsome. I encourage my
children to argue because I think argument is an important characteristic
of a civilised society. I do not incite them to quarrel, because
I think quarrelling does not have the element of rationality which
argument has to it. It might be a quarrel, if you said I had big
ears and I said had you four eyes, or whatever it might be, but
it would not be an argument. If we had an argument, I could argue
that you were a Conservative and I was Labour. I think they are
qualitatively different. Secondly, as I have already said the
word is located in a phrase associated with violence and riotous
behaviour, which I think is a non-trivial question which arises.
We do think that dealing with quarrelsome behaviour in a place
where alcohol can accelerate the collapse in disorder is important
because this kind of behaviour is often provocative and inflammatory
and a precursor to violent conduct, which is why we put it in
that phrase. I would defend, as a layperson but not as a lawyer,
the distinction between argumentative and quarrelsome.
Lord Lester of Herne Hill
18. Could I put to you, this is not about lawyers
and laymen, this is about a barman who has a criminal liability
imposed on him to fine level three and the question is whether
the barman can understand what is meant by quarrelsome to avoid
criminal liability. Surely it is important that Parliament should
get the statute right and not leave it to the Human Rights Act
and judges to have to come to the rescue so far as is reasonably
possible. Would it not be a good idea, Minister, to forget about
the lawyer/layman point and concentrate on reasonable legal certainty
and try and find a definition which does not hark back to Lord
Goldsmith's reference to the Victorian and Georgian statute on
quarrelsome but give a modern definition that a barman can work
(Mr Clarke) In one sense I completely accept your
point, I do think that the whole of the language of the licensing
legislation needs to be tidied up and addressed but we did not
feel this was the measure to do this. The measure to do this we
felt was the Licensing Bill, which I hope will be before the House
at some point in the future if Parliamentary time arises, to implement
the Licensing White Paper we talked about. Secondly, I was not
seeking to introduce the lawyer/layperson point. The point was
put to me about the distinction between two words and I was doing
my best as a layperson to give my analysis of that. I return to
the fact that under the legislation Clause 34, 172A (1) states,
"A relevant person should not permit drunkenness in any violent,
quarrelsome or riotous conduct to take place in a licensed premises".
For the barkeeper in those circumstances, which is the same legislation
as the Licensing Act currently, that is a much clearer context
for the use of the word quarrelsome than it would be if one had
simply said, any quarrelsome conduct or, indeed, any argumentative
conduct. It is a phrase which holds together, which reflects existing
legislation, which I acknowledge does not provide absolute clarity
to any barperson or any potential resident or inhabitant of a
pub. It does provide a much clearer context than simply to use
the word quarrelsome standing on its own.
Lord Carlisle of Bucklow
19. I was just going to say I thought we were
in danger of taking a disproportionate amount of time on this
particular word. This discussion has been very helpful and maybe
the answer is for the Government to consider an amendment on the
words that you used yourself, some "aggressive behaviour
likely to cause a breach of the peace".
(Mr Clarke) I would suggest two things in relation
to that, Madam Chair, the first is I think it would be very helpful
if the Committee had views on what is the best language to deal
with the conduct we are talking about. Whether it can be considered
by this Committee around this Bill or whether it would be in relation
to any licensing Bill which might come forward would be a matter
for us to deal with. With the experience around the table here
it would be helpful to look at that.