Joint Committee On Human Rights Third Special Report


Memorandum by the Home Office


  1.  Lord Bassam has made a statement under section 19(1)(a) of the Human Rights Act 1998 indicating that, in his view, the provisions of the Bill are compatible with the Convention rights. He believes that, where the Convention rights are engaged, the proposals are a balanced and proportionate response to a pressing social need and that the judgments that have been made about the balance to be struck between competing rights and responsibilities can be objectively justified.

  2.  The jurisprudence of the European Court of Human Rights[8] and the early jurisprudence of the English courts on the Human Right Act 1998[9] have established that the legislature and executive have a margin of discretion in forming a view as to whether particular measures are justified within the terms of those articles of the ECHR which permit of exceptions.

  3.  Many of the provisions in the Bill confer discretionary powers on public authorities, such as the new Security Industry Authority. In the government's view all these powers are capable of being exercised in a way which is compatible with the Convention. Those on whom the powers are conferred—the Authority, local authorities, the Secretary of State and the Courts—will be obliged in accordance with section 6 of the Human Rights Act to exercise them in a way which is compatible with the Convention rights.

  4.  The rest of this memorandum has been prepared in response to the following specific questions on the Bill raised by the Committee.

    "(a)  Bearing in mind that the Bill as drafted does not require or assume that the private security operators should have been guilty or suspected of any criminal offence, please inform the Committee of the facts or other considerations which satisfy you that clause 1 of the Bill maintains a fair balance between the interests which are affected and safeguards the rights of others for the purpose of ECHR Protocol No 1, Article 1".

  5.  Clause 1 of the Bill sets out the functions of the Security Industry Authority. Clause 3 provides that it will be an offence to engage in "licensable conduct" otherwise than in accordance with a licence. The circumstances in which conduct will be deemed to be "licensable" are set out in sub-section (2). Article 1 of Protocol 1 provides that "no-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law". It goes on to state that "the preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest". It is accepted that in the jurisprudence of the ECHR the term "possessions" may extend to economic interests such as licences to engage in a particular trade.

  6.  The objective of the Bill is to provide better protection for the general public by regulating those who provide security industry services. Those who provide such services are often in a position of considerable power in relation to members of the public who come into contact with them. The Bill aims to restrict the opportunities for abuse of this power. For example, door supervisors ("bouncers") on the doors of pubs and clubs control access to such premises and frequently come into contact with members of the public, including young people. Reports of cases in which door supervisors have abused this position of power by engaging in violence or drug dealing have prompted the industry to support measures to rid it of this undesirable minority. Schedule 2 to the Bill, which sets out the sectors of the industry which will be regulated by these provisions, has been drafted to take account of situations in which the public need protection from the minority of operatives within the industry who might attempt to exploit their position of power.

  7.  The Department is satisfied that regulation of these sectors to provide better protection for the public is a legitimate aim, and is one which is supported by the industry as a whole. The aim is achieved by the licensing requirement established in clause 3. There is no restriction on who may apply for a licence to enable them to perform "licensable conduct". The restrictions imposed by the licensing requirement are proportionate to the aim of public protection. By virtue of clause 7(3) the Security Industry Authority, or in certain cases the local authority, is required to determine applications for licences in accordance with criteria which will be published in accordance with clause 6(1). These criteria will include those appropriate to ensure that operatives are "fit and proper persons" to engage in such conduct.

  8.  The Bill allows the application of criteria that are flexible and appropriate. The Bill does not provide any automatic equation by which an applicant with a criminal record will be refused or deprived of a licence. That would be a disproportionate response. The framework created by the Bill enables each application for a licence to be considered on its merits. Clearly the Authority will scrutinise very carefully applications coming from those with, for example, recent convictions for offences of serious violence or drug dealing, and it will need to publish, as part of its licensing criteria, details of the type of criminal history which it would be likely, in the public interest, to regard as a bar to obtaining a licence. If the authority were to deprive an individual with no criminal record of a licence in circumstances in which the individual considered that refusal or revocation of the licence was not justified in the public interest, then the individual could challenge the decision, relying on the ECHR. There is, however, nothing in the Bill that will require the Authority to act in a way that is incompatible with the rights guaranteed by Article 1 of Protocol 1.

  9.  The Bill provides the Authority with considerable discretion in determining who is, and who is not, a fit and proper person to be granted a licence, but also requires it to publish a statement as to the criteria relevant to the exercise of that discretion. As well as having the power to grant or refuse a licence, the Authority, or a local authority acting under powers delegated under clause 12, can impose conditions on a licence that it grants. Clause 7(6) provides a mechanism by which the Authority can ensure that it responds in a proportionate manner to the facts of an individual application and any concerns that it may have regarding the risk that the applicant may pose to the general public. The refusal or revocation of a licence is a measure of last resort.

    "(b)  Please inform the Committee of your reasons for deciding that the Bill meets the requirements of Article 6 despite including neither express provision for an appeal mechanism nor a statutory duty on the Secretary of State to make provision for one in terms which ensure that it would meet the requirements of Article 6(1). This point applies both to the initial licensing appeals (see clause 10) and to appeals relating to approvals (clause 17)."

    "(c)  Please would you inform the Committee of your reasons for deciding that these aspects of the Bill meet the requirements of Article 6 despite including neither express provision for an appeal mechanism nor a statutory duty on the Secretary of State to make provision for one in terms which ensure that it would meet the requirements of Article 6(1). Again, this point applies both to the initial licensing appeals (see clause 10) and to appeals relating to approvals (clause 17)."

  10.  Although clauses 10 and 17 of the Bill as introduced were drafted as permissive powers, the Department has always recognised that there should be a right of appeal from any decision of the Authority or a local authority which would have the effect of restricting the right of an individual to earn a living within the industry. Similarly, it was always intended that there should be an avenue of appeal from a decision to refuse or impose conditions on an application for an approval. This has been clearly expressed in the debates on the Bill in the House of Lords.

  11.  There is nothing in the Bill as introduced which is incompatible with Article 6; a breach of Article 6 would arise only if a proper and adequate appeals mechanism were not in force at the time when an aggrieved applicant wished to appeal. It was always intended that the secondary legislation establishing the appeals process would be in place in time for the commencement of the Bill. However, in response to debates in Parliament during the early stages of the Bill's progress, there has been a shift in the policy regarding appeals. The Government brought forward at Report stage amendments to provide for appeals to the Magistrates' Court from licensing decisions made by the Authority or local authorities. There is a further avenue of appeal to the Crown Court for an individual who is aggrieved at the decision of the Magistrates. These amended provisions on the face of the Bill ensure compatibility with Article 6.

  12.  A corresponding amendment to clause 17 was introduced by the Government at Report stage. In place of the permissive power for the Secretary of State to establish a mechanism for appeals in relation to approval decisions, there is now a right of appeal to a Magistrates Court. Once again there is a further appeal to the Crown Court for an individual who is dissatisfied with the decision of the Magistrates.

  With reference to the Bill's provisions relating to entry and inspection, the Committee asked:

    "(d)  Please would you inform the Committee what safeguards (if any) you envisage putting in place to prevent the abuse of the power in order to ensure that the powers are justifiable under Article 8.2 and do not violate Article 6 in relation to what seems to be a significant interference with the right to respect for private and family life, home and correspondence guaranteed by Article 8.1 of the Convention, and with the right to be free of coerced self-incrimination under Article 6."

  13.  Clause 18 permits properly authorised persons to enter premises and require the production of relevant documentation in the possession of regulated persons. It provides part of the mechanism whereby the legitimate aim of the regulatory regime is to be enforced. The Department is satisfied that any infringement of the right to privacy is justifiable and necessary in a democratic society in the interests of public safety and for the protection of the rights of others. The purpose of better protecting the general public will not be accomplished unless there is power to check that the new system or regulation is being complied with. In common with other regulatory regimes, such as food hygiene and construction, the power of entry applies only to those who are voluntarily engaged in the trade to which the regulatory regime applies. There is no general power of entry to premises occupied by members of the public. Accordingly the clause does not provide for entry only under warrant.

  14.  The Department is conscious of the need to restrict interference with the Article 8 right to privacy to the minimum, whilst ensuring proper enforcement of the new regime. Government amendments introduced at Report stage have further restricted the power conferred by clause 18 and have provided further protection for the rights of the individual. These amendments have been drafted to put on the face of the Bill restrictions that will show that the power of entry is a proportionate response to the legitimate need to enforce the regulatory regime established by the Bill. There will be no power of entry to premises occupied solely as domestic dwellings and any entry to other properties must be made only at a reasonable hour. Those exercising the power of inspection must produce on demand evidence of authorisation and identity. They must draw up a search record and, if requested, give a copy to anyone present on the premises at the time. A further duty will be imposed on the Authority to prepare and publish guidance as to the manner in which the power should be exercised. The Department has therefore taken strenuous efforts to ensure that the power of entry is a strictly proportionate tool to encourage compliance with the new licensing system.

    "(e)  Please would you inform the Committee how you envisage that the power to exempt certain persons from the licensing requirements (clause 4) or to impose special requirements for approval before persons of prescribed descriptions are allowed to provide prescribed security industry services (clause 16) will be used, in order that the Committee may satisfy itself that the criteria for exemption or the imposition of special requirements do not infringe the right to be free from discrimination under Article 14 of the Convention, taken together with other Articles (particularly Article 1 of Protocol No 1)."

  15.  Exemptions from the licensing requirements are provided for in clause 4 in cases where it appears to the Secretary of State that alternative arrangements already apply which make it unnecessary to require such persons to hold a licence. The reason for the exemption is to ensure that the Bill does not impose unnecessary regulatory burdens or waste administrative time in the Authority where suitable alternative arrangements to the Authority's vetting procedures already exist. Clause 4 allows the Secretary of State to prescribe circumstances which will be judged as validly alternative to the Authority's vetting procedures, thereby exempting persons to whom the alternative arrangement apply from the need for a licence.

  16.  Although clause 4 confers an element of discretion on the Secretary of State, the circumstances in which such exemptions can be granted are clearly restricted on the face of the Bill. Suitable alternative arrangements will exist only where the arrangements correspond with the licence criteria "so far as the protection of the public is concerned" (clause 4(3)). The Department believes that this is a non-discriminatory test to achieve the legitimate aim of public protection. It differentiates solely between those who already meet criteria which ensure adequate protection of the public and those who should be required to meet the criteria in force under clause 6. It is a proportionate measure to lessen the potential for unnecessary over-regulation and does not discriminate on grounds of gender, race or nationality or on any other unacceptable ground.

  17.  Clause 16 allows the Secretary of State to convert the voluntary approved contractors scheme established under clause 14 into a compulsory scheme. Regulations brought in under clause 16 would make it illegal for a company or firm to provide prescribed security industry services without an approval under clause 14 in the same way that the Bill already proposes to make it an offence for an individual to provide those services without a licence.

  18.  During the consultation period preceding the introduction of the Bill, it became clear that a very significant proportion of the private security industry itself favoured compulsory licensing not only of individual security operatives but also of companies offering security services. It has never been the Department's policy to introduce such a compulsory scheme for companies. The Government believes that the majority of firms will wish to associate themselves with the voluntary scheme and believes that it will be a useful contribution to the raising of standards overall in the industry. However, it recognises (without currently sharing) the arguments being made in the industry that a voluntary scheme might create a two tier industry in which approved contractors are undercut by unscrupulous ones.

  19.  The Secretary of State would contemplate the introduction of compulsory approval for providers of security services only on the recommendation of the Security Industry Authority and in relation to specified activities as set out in Schedule 2 to the Bill (or introduced into it at a later stage by means of the power in paragraph 1(2) of that Schedule). The recommendation would need to be made on the basis of clear and evident public concern about the activities of the providers of such services, and would need to be supported by compelling evidence.

  The Committee would also like to know "what representations have been received in connection with this bill in relation to human rights issues, and to what specific points those representations were directed".

  20.  Members of the House of Lords voiced concerns during the early passage of the Bill as to the civil liberties aspects of the Bill's proposals with regard to appeals from Authority decisions and the right of the Authority to enter and inspect premises owned or occupied by regulated persons. The Government has made what it considers to be appropriate responses by way of amendments at Report stage, as outlined in paragraph 14 above.

  21.  Apart from those concerns, the Department has received no representations about the human rights implications of the Bill.

March 2001

8   eg Buckley v United Kingdom (1996) 23 EHRR 101. Back

9   eg R (on the application of Mahmood) v. Secretary of State for the Home Department [2000] All ER (D) 2191; R (on application of N) v. Governor of HMP Dartmoor (16 February 2001). Back

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