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Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 20 - 39)



Mr Maclennan

  20. My concern is aroused less, perhaps, by the word quarrelsome than by part of the Home Office's justification for not being concerned, expressed in paragraph 22 of the Home Office minute, in which it is indicated that a person's right to express himself is not seriously compromised as he will continue to hold and impart his opinions outside the licensed premises. It does seem, on the face of it, that that is saying that the right of freedom of expression may justifiably be curtailed in certain licensed premises.
  (Mr Clarke) I did acknowledge in the answer I gave earlier on that we did accept there was an indirect effect of the legislation, that in certain circumstances a person's freedom of expression will be restricted. I do acknowledge that again to you. I think the overall position we are talking about here, around public safety and so on, is an important one. If I can give an example, again speaking off the cuff, if there was a very heated argument taking place about whether a penalty should or should not have been given for a particular incident in the game that was taking place before they went to the pub that would certainly be quarrelsome, whether it is argumentative I am not quite sure, it could well be a quarrelsome point and it could be very, very heated, some of us may have been in such circumstances. It could very well be inflamed by alcohol in ways that lead to disorder issues which are quite serious. In those circumstances I would argue that it is right that the barman should have in his or her power the ability to deal with that situation. Such arguments could then be taken up in other circumstances if they wish to be so. We all know of circumstances where that kind of argument can lead into very difficult and problematic circumstances.

Mr Browne

  21. Forgive me for coming back to the point that Lord Lester made, I do not think that this legislation will apply to Scotland, which may be just as well for the Glasgow pubs. In any event I accept the argument that quarrelsome appears before violent or riotous conduct and I accept the Minister's assurance that the use of this language is an issue which the Government is looking at in the context of licensing legislation, but, what guidance will a normal barman have that the word quarrelsome actually means serious aggressive behaviour verging on a breach of the peace and not just an argument that is taking place that is getting quite vigorous?
  (Mr Clarke) We are fortunate that in the whole preparation of this legislation we are working closely with the institutions of the brewing and licensing industry. There are a number of institutions which are organised in that industry and we have discussed very fully with them this and other areas of legislation. They provide, as Mr Browne will know, substantial support and training advice to their members throughout the country. We are very keen that our advice fits very well with their advice in these areas. We have not yet resolved precisely what advice we will give them and the precise form of it. I am prepared to say here, as I said to the Standing Committee considering the Bill at the moment, we will certainly guidance to try and be as clear as possible about the situation. I am sightly qualified in saying that because being as clear as possible about the situation round the argument we are having now means that it is important not to constrain the judgment of people in the particular circumstances that they deal with, and the judgment that they have to make. The need to establish over time more effectively how this operates is something that I have already acknowledged to Sir Patrick Cormack in answer to his questions, to monitor the situation and move it forward and will very much continue to do that and offer further advice as is necessary.

Mr Miller

  22. To follow on very much from that point, the landlord or his agent will retain the common law right to throw anyone out of his premises, except for grounds of discrimination, anyway, if he does not think that their behaviour fits in with the normal behaviour of that public house. If he believes that the person's action is likely to incite violence or some unreasonable behaviour by another party he will have a duty to throw that person out.
  (Mr Clarke) Yes. I think it is important to make it clear here, Madam Chair, that the central purpose of Clause 34 is to extend to people who are not actually licensees of the pub the rights and responsibilities which a licensee currently has. The reason why we do that is that the nature of the licenced industry has changed significantly over a period, away from a large number of individual licensees and publicans to a number of major organisations who employ and retain staff to run their pubs and clubs, and so on. We think that there needs to be absolute clarity in their legal rights and responsibilities. There should not be an argument that so and so was not the licensee and therefore has no responsibility. The main purpose of this Clause is to extend to all employees the obligations and duties which licensees have.

Mr Maclennan

  23. I want to follow up on my earlier remark and I want to clarify what your response meant. Whatever quarrelsome means it is a course of behaviour rather than a single provocative remark or a remark which may have the effect of provoking. For someone to insult somebody else is not necessarily quarrelsome, or to make a statement that arouses a response. I think the word quarrelsome is the one that, perhaps, we do need to invite you to look at again. A single provocative remark would seem not to be something which ought to lead to the barman acting in accordance with his powers.
  (Mr Clarke) I think there is an important point here. If I may say so, Mr Maclennan, that goes with what the Government is about rather than against it. The phrase that is in the Bill is "quarrelsome conduct", which is different from a quarrel or an event. It is "quarrelsome conduct" as it happens taken together with violent or riotous conduct, which I think reinforces the point you have made Mr Maclennaan, that quarrelsome is a word which applies to more than a particular event, and quarrelsome conduct applies even more so.

  Sir Patrick Cormack: Aggressive behaviour would be far better.

  Chairman: Can we move on to Clause 35?

Mr Browne

  24. Can I turn your attention, Minister, to part III of the Bill, which deals with travel restrictions on drug trafficking offenders. In the letter we wrote to the Home Office we drew the Home Office's attention to the provision of Article 12(2) of the International Covenant of Civil and Political Rights that states, "Everyone shall be free to leave any country, including his own". Also, the provisions of Article 12(3), which states, "There may be exceptions to that right, provided they are provided by law and are necessary to protect national security, public order, public health or the rights and freedoms of others and are consistent with other rights recognised under the covenant". In your memorandum of response in paragraph 26 you set out to argue that the legitimate purposes of making a travel restriction order are, firstly, preventative, that is to prevent the commission of further drug trafficking offences. Secondly, the deterrent, you expressed a view that the availability of the power may also have a deterrent effect on the commission of offences, 4(c), and I quote this, "The imposition of such an order may be an appropriate and justifiable way of expressing society's condemnation of the traffickers unlawful activities". If I may deal with each of these individually, it is our view, and the advice that we have received, that it is perfectly justifiable, of course, to seek to prevent future crime by the imposition of an order of this nature in terms of the article of the Covenant, so prevention is justifiable. The difficulty that we have, and I think it was expressed in a letter to you, but not addressed entirely in the memorandum's responses, is that the Bill does not make it clear that there needs to be a likelihood of further offending. In other words, it does not make it clear that the likelihood of preventing further offending is a necessary condition for the making of the order. The question I ask is, in the absence of such necessary conditions how is the bill compatible with the provision of the Convention?
  (Mr Clarke) Can I begin by introducing Simon Hewett, who is the official responsible for this work at the Home Office. I need to emphasise very strongly indeed that it is the Government's intention that travel restrictions orders should be an effective and useful new sentencing tool, that is say that it is a penalty for carrying out this kind of activity. There is a high threshold too, people need to have been found guilty of drugs offences which are capable of at least four year sentences, which is not a light sentence. We believe that it is an effective and a useful new sentencing tool. Therefore, the question of itself, should there be a test for preventing further offending, that particular question which is raised—this was also debated at some length on the Standing Committee because it is a very important question—the issue, we believe, that the courts have to address is set out in lines 37 to 39 of Clause 35 of the Bill, namely, "Whether a travel restriction order in the circumstance of the individual case is an appropriate sentencing option". That is the question we are asking, is this order an appropriate sentencing option full stop. That requires the court to make a broad judgment. The likely preventive or deterrent benefit of imposing an order would be relevant, but so too would punitive considerations. We believe that for an offender whose lifestyle includes frequent overseas travel the imposition of the travel restriction order may be a very effective element in the overall punishment, given that that is the way that they are living. It may also help, we believe, to make the sentence as a whole more proportionate. The courts will be able to weigh the imposition of any order against the length of the prison sentence. The argument the Government would make is to emphasise that the order is of itself an effective and useful new sentencing tool, it is a weapon of sentencing, rather than something which is designed purely to prevent further offending or re-offending.

  25. If I may just stay with this point for a moment, I accept that people who commit the sort of offences that attract the sentences that would trigger this penalty are likely to have been serial offenders. People do not do these sort of deals the first time around, frankly. Would it not simply be possible to ask the court, when looking at all of the circumstance, to reach the conclusion that people like that do have a likelihood of further offending, and in that way to address the issue of compatibility with the covenant?
  (Mr Clarke) It is possible to ask the court to take that into account in making the judgment they make. We believe that to make it a necessary condition, which is the implication, would give the offender a defence about looking to the future which well might not be justified. In any case, we would argue that it is not, as such, a relevant position because the only relevant question is, does the court consider in the circumstances somebody who is receiving a sentence which effectively adds up to more than four years in prison, which is a very substantial offence, would this be a useful additional sentence and a useful additional imposition. We think, yes, it would. The question of whether further offending may or may not be committed is something that the court can take into consideration but not something that the court should be required to take into consideration.

  26. It may be that I have not made myself clear enough. My argument, if I have understood the argument in relation to the international covenant of civil and political rights, is that all of the exceptions anticipate there will be some looking to the future. That they will only be used where it is necessary to prevent something that will happen in the future.
  (Mr Clarke) As I understand it, restrictions on the liberty of movement and freedom to choose residents under Article 12 of the ICCPR may be restricted among other reasons where it is necessary to protect public order. That is a reason that can be given under Article 12. In our view the concept of public order in Article 12 of the covenant must include the prevention of crime and the maintenance of an effective penal policy. While someone is serving a sentence of imprisonment their right to travel under Article 12 is curtailed by definition of the fact they are in prison. A travel restriction order will contain a lesser interference with Article 12 rights and is, in our view, within the public order exception in Article 12(3). I do not know whether I am addressing more accurately what Mr Browne is seeking to ask. I am trying to hit his point, but maybe I am missing it.

  27. You may be. Is what you are saying that part of your reasoning is that in order to address the necessity to protect public order we have to have an effective penal policy and that this provision will add to our ability to have an effective penal policy moving forward?
  (Mr Clarke)If I may say so, Mr Browne, you have said it better than I did, that is precisely what this is about, it is about giving more sentencing weapons to the court to deal with the situation.

Lord Carlisle of Bucklow

  28. You are saying it is part of the penalty imposed by the court.
  (Mr Clarke) Precisely so.

  Lord Carlisle of Bucklow: I follow that.


  29. Penalties must be compatible with human rights as well.
  (Mr Clarke) Obviously a prison penalty inhibits anybody's ability to travel. Equally a travel restriction order inhibits somebody's ability to travel, but is a lesser interference than a prison sentence.

Lord Carlisle of Bucklow

  30. If you have somebody with a sentence of less than four years and he serves the second half of his sentence in the community, there may be controls put on him within the community which you say were compatible to that part of the penalty imposed by the court.
  (Mr Clarke)In the same way, yes.

Lord Goldsmith

  31. Minister, that answer is very clear. Although the memorandum talks about deterrents, about the possibility of preventing the commission of further offences, the real reason behind this is to provide another penalty in the sentencing armoury of the court?
  (Mr Clarke) Quite so.

  32. I hope I am not stepping over the boundaries of this Committee but I am also thinking about this as someone who sits as a part-time judge, and I am thinking to myself, "In what circumstances am I going to send someone both to prison and then impose a travel restriction order?" for what appears, if I understand the Bill correctly, to be potentially an indeterminate time. It has got to be for a minimum of two years but it could be for any period after that. I am trying to understand, I think, what are the reasons that a judge might think that in addition to a substantial prison sentence, a potentially lifetime ban on travel may be an appropriate penalty and in that context if you could help, Minister, with any evidence the Home Office has that that new penalty is going to add something substantial to the way that the courts already deal with serious drugs offences.
  (Mr Clarke) The truth is, madam chair, that the scale of business we are dealing with here in drug trafficking is an enormous international business, drug trafficking—as it is in trafficking people—which is estimated to have a turnover amounting to eight per cent of international trade, it is absolutely enormous, and the link between overseas travel and drug trafficking is in a sense self-evident for many of the links in that business chain which arise. As part of an exercise to assess the extent to which targets were operating outside the United Kingdom, including whether or not members of organisations were based abroad, the National Criminal Intelligence Service asked regional offices to select, on a random basis, a sample of 15 "familial" targets (ie where two or more dominant members of the organisation are blood or familial relatives) and 15 "network" targets (ie where dominant members are not related in any way). Returns from the regional offices indicate that 85.7 per cent of familial organisations and 90 per cent of networks are active outside the UK, and in each case the dominant members travel with some significant degree of frequency outside the UK ( which meant more than six times in any 12-month rolling period.) So in the police's experience, while major members of such organisations tend to be "hands off" in relation to the principal activities of the group, they do prefer to handle important meetings or business transactions on some personal level rather than remotely through a representative. So there is very substantial evidence that the serious organisation of these conspiracies to traffic drugs is international in character and does involve a very significant amount of travelling internationally. That is why we believe at the highest level of these organisations that travel restriction orders will make it much more difficult for those organisations to travel overseas and would help to prevent and/or disrupt drug trafficking activities. But we think that even at the lower or middle level of drug trafficking, travel restriction orders will add to the risks traffickers take. For example, the commercial or business traveller whose legitimate business is used as a cover for drug trafficking activities will put the future conduct of his legitimate business at risk if he behaves in that way. I am sorry to answer the question Lord Goldsmith asked at more length than I meant to, but I cannot over-emphasise to the Committee enough that when looking at sanctions, and going back to Lord Carlisle's point it is about sanctions in the case of people here, sanctions which disrupt the international drug network organisations which operate as international corporations, travel restriction orders are a significant sanction.

Lord Lester of Herne Hill

  33. I wonder if I could put Lord Goldsmith's question in a different way to you, thinking of him, or anyone else, as a sentencing judge. The International Covenant on Civil and Political Rights is not part of our law and is not covered by the Human Rights Act. When Lord Goldsmith sits as a judge he does not have it as a piece of hard law to apply. It is only the Covenant that gives the right in international law of freedom of travel outside this country. Therefore, what the Bill says is particularly important because if it does not give proper discretion to the sentencing judge and ensure proportionality, the judge is not going to have an adequate standard. As I understand the way the Bill works it is like this: if the term is for four years then the judge, if he thinks it is an appropriate sentence, must give a minimum period of two years' travel restriction, if it is four to ten, he must give four years, if it is ten plus, he or she must give five years. There is nothing in the Bill to direct the judge to ensure proportionality. We all understand the reasons, the aim, this pressing need for this sentencing power to be added to the judges' armoury but it is not enough, I suggest, to simply point to public order. What the Bill ought to do is give the sentencing judge enough legal guidance to ensure wide discretion and proportionality in the way that this very, very draconian penalty is added to a fairly draconian prison sentence.
  (Mr Clarke) There are two points to make. The first is the beginning of what you said is right in the sense that paragraph 35(3)(b) specifies a minimum time period of two years for the operation of the travel restriction order but the rest of what was said in terms of the hierarchy, I am looking for the clause in the Bill

  34. It is in 37 (7).
  (Mr Clarke) —The minimum period there deals with revocation rather than the minimum period itself.

  35. I got it wrong, I apologise, that is my misreading.
  (Mr Clarke) I agree with your fundamental point which is should there be proper guidance about the inter-relationship between this law and the relevant international documents for judges like Lord Goldsmith on proportionality. I completely agree with that and that needs to be the case. If it is helpful to give the commitment to the Committee that I will work with my colleagues and other government departments to achieve that, I am happy to give that commitment this afternoon.

  Chairman: Minister, one of the parts of the Bill that we did not specifically flag up with you was child curfew schemes, clauses 43 and 44. Your memorandum paragraphs 32 to 53 give a very full explanation of the justifications which the Government advance on child curfew schemes. I am going to take a question to you from Baroness Perry on this subject.

Baroness Perry of Southwark

  36. I have two questions about clauses 43 and 44. It is, to coin a phrase from Lord Lester, a "fairly draconian" thing to impose a curfew on young people. I wonder if you could tell us why you are satisfied that to do so would be compatible with Articles 5,8 and 11. Obviously our hearts are with you, but we would be grateful to know what your reasons are for assuring yourselves that this is compatible. My second question really arises from what is said in your own memorandum, that this is not imposing any new form of criminality, it is to allow a police officer to take a child home to his or her family. Why then is it necessary to impose something as draconian as a curfew on a child? A policeman can take a child home if he believes that child is in a place of danger or in danger of something unpleasant happening, without legislating in this way to make it possible.
  (Mr Clarke) Firstly, I think on your first question, Lady Perry, what I need to say is that we have been clear throughout, and I think we are clear in our evidence to your Committee, that any powers that are bestowed upon the public authorities concerned will be exercised in a way that is compliant with the European Convention on Human Rights. The reason why we believe the powers are necessary at all is because of public order issues that we described generally. I acknowledge that the issue of proportionality which Lord Lester raised at the outset of this discussion, is a very important aspect in relation to this particular part of the Bill and we believe that we are able to establish a means by which those powers can be operated in a way that is indeed proportionate. Why do we believe such powers are necessary—and the implication of your question is that they might perhaps not be—the reason is the fact is there are certain locations that have become well-known trouble spots, possibly because children and young people congregate there to indulge in drug-taking or alcohol consumption, or because they are prime sites for fighting, or for whatever reasons. We think that these places present significant dangers for local communities and children in particular and that is why they need to be identified. If it is helpful to describe how we see the situation, we believe that under our Crime and Disorder Act and the Crime Reduction partnerships that operate, all public authorities and agencies should be seeking to work together. So by hypothesis the process that would operate, and is indeed operating in some parts of the country, is that the police will look at where action and disorder is happening, and identify where it is—often on a typical estate it may well be in four or five particular homes that people are coming from and in one or two public places in that particular estate where people are congregating—and then discuss with the other agencies—police and social services, education, welfare, housing and so on—what form of intervention is the most appropriate intervention. In many cases, of course, it will not be any orders of this type at all, it will simply be to discuss with the children concerned how they behave and how to deal with it in a positive way. We believe that in extreme circumstances there does need to be an additional sanction there to deal with the particular localities where this happens and that is the reason why we propose that power in this Act. If it is any reassurance at all it is not our view that you simply go straight to a point of saying "That is an area where there should be a curfew because of what happens". There should be a very, very considered process by the authorities concerned, in particular, as I say, police but also housing and social services as to what are the appropriate sanctions to deal with the situation which, as I say, may well be non-punitive and may well involve other approaches in different ways. We think this additional power is an important power. We believe it can be operated proportionately in a way that complies with the Convention. I do not know if I have hit your question directly in my answer.

  37. Are you intending that this might be transferrable from place to place? Children are very inventive young souls and if they are banned from one particular area where they have been getting together and creating mayhem they will move around the corner to the next area where they will get together.
  (Mr Clarke) That is true, but the experience is that there are certain places where people do congregate for all kinds of reasons because it is congenial for that reason. The actual power lasts for 90 days and then lapses, so that situation can then fall in that context. As I say, I do not want to give the impression that this would be an easy or lightly used power. I do not think it is something just to be whipped out and sorted in that way because the fundamental thrust of your question is one I accept entirely, namely that one needs to address the issue itself, why are the young people or children behaving in that way rather than focusing on the end result which is the plot of land, as it were? I think the power to establish an order for a particular plot of land is an additional extra sanction which could in certain circumstances be valuable.

  Chairman: Now we move on to disclosable information, clauses 45 and 47 on our list.

Lord Lester of Herne Hill

  38. Yes. This is about the disclosure of information for the purposes of criminal investigation and criminal proceedings, clauses 45 and 47 and Schedule 1. I think the Committee were concerned to know your reasons, Minister, for being satisfied that these provisions are compatible with the personal privacy safeguards in Article 8 of the Convention as being in accordance with reasonable legal certainty and necessary in a democratic society. I wonder whether in answering that question I could just ask you one specific tiny detailed point which, speaking for myself, I would be perfectly happy if you did not deal with off the cuff. When I looked through the first schedule in terms of necessity and proportionality and saw the list of enactments that this would trigger I was very puzzled to see good friends like the Sex Discrimination Act and the Race Relations Act listed there. I could not for the life of me think, but it must be my own stupidity, why you need a power to disclose, let us say, the Equal Opportunities Investigation Report or the Commission for Racial Equality's Investigation Report into the civil wrong of sex or race discrimination for the purposes of criminal investigation. I could not think of any circumstances where that would even be relevant. Obviously normally the reason why Parliament has written in these safeguards to Bills like that is that coercive powers are being used, quite properly, in these kinds of bodies. They produce their reports and they then disclose them. Why does the Government feel that it is necessary to write in such a wide loophole for criminal investigations in respect of statutes which seem to have little or nothing to do with crime?
  (Mr Clarke) Okay. I will respond to that point at the conclusion of my answer, it is a most substantive further point. Just to emphasise we do think this is a very, very important issue that is being raised here. The whole question of information disclosure across agencies is going to be a more and more important area of consideration and debate in the Government's view. If, Chairman, you would excuse me I would like to give a substantive answer to this question which we had anticipated for the reason that there are important issues which I very much welcome getting on the record if I possibly can before further cross-questioning is appropriate. We do accept that there are situations in which the state may have a positive duty to adopt measures to secure respect for private life. One of the examples might be some of the new clauses tabled to the Bill prompted by the unacceptable activities of animal rights activists where issues of that type arise. In the case of clauses 45 and 47 of the Bill, the Government's view is that no further measures are required to secure respect for Article 8 rights. There are two cases in which information disclosable under clauses 45 or 47 could be accessed by private individuals or bodies. The first is where the person making the primary disclosure is not a "public authority" within the meaning of Section 6 of the Human Rights Act 1998. The second is where the recipient of the information disclosed in accordance with either clause 45 or clause 47 is a private individual or body. It will be very unusual for a body endowed with particular functions or capacities under statute to fall outside the very broad definition of "public authority" in Section 6 of the Human Rights Act. Both the Inland Revenue and Customs, for example, would be "public authorities" and so would be obliged to exercise their new disclosure powers in a way that would be compatible with Article 8 of the Convention. This would also be the case for the vast majority of disclosing authorities relying upon the existing provisions listed in Schedule 1, and to which I will come back in a second as to the second question. However, three provisions have been identified in which the person making the primary disclosure under the Act might not always be a "public authority" within the meaning of Section 6. These are Section 4 of the Electronic Communications Act 2000, which is not yet in force, and possibly Section 206 of the Water Industry Act 1991 and Section 204 of the Water Resources Act 1991. Nevertheless, such a person is not in any way free to disclose such information at will. The information is subject to specific statutory restrictions on disclosure which are enforced by criminal penalties. Information can only be disclosed in accordance with specific and detailed carve outs from the restrictions, one of which allows information to be disclosed for the purposes of criminal investigations and criminal proceedings. Disclosures of this type fall squarely within the legitimate aim identified in Article 8(2), namely the "prevention of disorder and crime". The only difference in the standards applied to disclosures by private individuals or bodies and "public authorities" within the meaning of Section 6 is that "public authorities" will be required to undertake a balancing exercise to ensure that disclosures are only made in circumstances which make the disclosure necessary and proportionate. Private bodies will not be subject to such a requirement, although they will invariably be required to apply the filter required by the Data Protection Act 1998. This Act applies to any information disclosure in so far as it concerns data relating to an identified or identifiable individual. It provides a detailed statutory framework for regulating the processing (which includes disclosure) of personal data. If a disclosure cannot be made in accordance with the data protection principles, the disclosure can only be made if an exemption applies. Section 29 of the Act is particularly relevant. This provides an exemption to the "non-disclosure provisions" where both the disclosure is for the prevention or detection of crime or the apprehension or prosecution of offenders, and the application of the provisions would be "likely to prejudice" any of those purposes. This means that the Act operates as a filter on the type of information that can be disclosed and requires an assessment of the proportionality of disclosing the information to be carried out before a decision to disclose is made. In any event, the Government believes that it would not be appropriate to introduce a proportionality test into the legislation for private individuals. I have quite a lot more here to say, Chairman, I am wondering if it would be preferable to the Committee if I was to write to you on it.


  39. It might be helpful if you could because of time.
  (Mr Clarke) I am conscious of the time that we are under. I apologise for the length but it was something we thought about and wanted to get across as clearly as possible. On the Sex Discrimination Act it is important to indicate that we already do have powers to disclose information for criminal investigations or proceedings. The policy underlying such Bills is clearly that such disclosure should be permitted. Clause 45 is only intended to clear up doubts about the scope for such disclosure in relation to the provisions in Schedule 1. I am sorry that my answer has been less coherent than it ought to be. Perhaps if I wrote at length to the Committee that would fulfil your desire to clarify the situation without taking up undue time.

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