1. Letter from the Chairman
to Rt Hon David Blunkett MP, Home Secretary
The Joint Committee on Human Rights is considering
whether to report to each House on the Anti-social Behaviour Bill.
Having carried out an initial examination of this Bill, the Committee
would be grateful for your comments on the following point. Our
startingpoint is of course the statement made under s.19(1)(a)
of the Human Rights Act 1998; but I should make it clear that
the Committees remit extends to human rights in a broad sense,
not just the Convention rights under the Act.
PART 1 OF THE BILL: CLOSURE ORDERS ON CRACK HOUSES
Closure of premises might lead to innocent residents
in a house, including children, being deprived of their homes,
at least for a period because of the conduct of other members
of their family or other co-habitants. This could lead to a breach
of the right to an adequate standard of living, including accommodation
adequate for their needs, under Article 11 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
1. What protection would be available for the
rights, under ICESCR Article 11, of innocent parties, including
children, who are excluded from their homes as a result of other
PART 2 OF THE BILL: TROUBLESOME TENANTS IN PUBLIC
The powers which Part 2 proposes for dealing with
troublesome tenants would apply only where the troublemaker occupies
public sector housing. If the person causing trouble is occupying
private accommodation (for example, a former council house which
has been bought by its tenant and subsequently let to the troublemaker),
the local housing authority would have no power under the Bill
to intervene to protect neighbours whose lives are disrupted.
The landlord could take action, but might not be willing to do
so, and aggrieved neighbours would have no power to force the
landlord to take action. This appears to leave a gap in the protection
for the rights (including the right to respect for their private
and family lives and homes, under ECHR Article 8) of residents
affected by the troublemaker. There are circumstances in which
a local authority may have positive duties to assist tenants to
protect their rights, even when the threat to those rights emanates
from a private individual or body rather than from a public body.
2. Has the Government considered conferring power
on the local authority or some other body to take action, similar
to that envisaged under Part 2 of the Bill, against troublesome
private-sector tenants whose behaviour is affecting residents
rights to private and family life and the home?
PART 3 OF THE BILL: PARENTING CONTRACTS AND RELATED
Although parenting contracts under the terms proposed
in the Bill would be voluntary, and would give rise to no legally
enforceable obligations, they would have some legal consequences.
In particular, a parent who refuses to enter into a parenting
contract, or who fails to comply with its terms, would be more
likely to be the subject of a parenting order made by a magistrates
court, whether made on the application of a local education authority
under clauses 19 and 20 or on the application of a member of a
youth offending team under clauses 24 to 26. There is thus an
element of coercion that backs up both a request to a parent to
enter into a parenting contract and the expectation that the parent
will comply with the terms of the contract. In view of the requirements
that can be imposed by a parenting contract, the Committee provisionally
takes the view that the provisions relating to parenting contracts
in Part 3 of the Bill fall within the ambit of the right to respect
for private and family life under ECHR Article 8.1.
So far the Government has not explained the justification
for the provisions under Article 8.2.
3. In the view of the Government
(a) which legitimate aim or aims under Article 8.2
is or are thought to be advanced by the provisions of Part 3 of
(b) why is there a pressing social need for to take
the legislative steps proposed; and
(c) why would the provisions be proportionate to
the need that has been identified?
PART 4 OF THE BILL: DEALING WITH GROUPS OF PEOPLE
IN PUBLIC PLACES
The Government accepts that, where someone is arrested
for failing to comply with a direction given by a constable or
community support officer, the powers in Part 4 of the Bill would
give rise to issues relating to the right to liberty under ECHR
Article 5, the right to respect for private life under ECHR Article
8, the right to freedom of expression under ECHR Article 10, and
the right to freedom of peaceful assembly under ECHR Article 11.
In addition, the Committee is provisionally of the view that the
right to liberty would also be engaged where a child is taken
to his or her home against his or her will.
The relationship between the powers conferred by
the Bill and other statutory and common law powers, particularly
the power to take such steps as are reasonably necessary to prevent
a reasonably apprehended and imminent breach of the peace, is
unclear. If they go well beyond existing powers, or even if they
merely replicate them, it raises the question whether the new
powers can be said to be necessary in a democratic society so
as to be justified under ECHR Articles 8.2, 10.2 and 11.2.
4. In the view of the Government
(a) what do the proposed measures would add to existing
(b) what evidence there is for the proposition that
there is a pressing social need to provide for such additional
powers, and to provide for them to be exercisable by community
support officers as well as by constables?
In relation to removal of children to their homes
under clause 29(6), effectively turning the authorisations into
an extension of child curfew schemes, the Committees predecessors
were concerned about the impact of a similar power in the Criminal
Justice and Police Bill, extending the use of child curfew schemes
under the Crime and Disorder Act 1998, in the 2000-01 session.
In its First Report of 200-01 the Committee noted that such schemes
arguably interfere with childrens human rights to liberty, to
privacy, and to freedom of association and peaceful assembly.
The Committee was prepared to accept that individual child curfew
schemes might be justifiable in certain circumstances, but was
concerned about the degree of discretion allowed to individual
constables, and the lack of specificity in relation to the purposes
for which the power to take children home could be exercised.
The Committee noted that other powers are available to the police
to deal with criminal behaviour and anti-social behaviour in public
places. In the light of this, the Committee was not satisfied
that the powers would be proportionate to a legitimate aim so
as to be necessary in a democratic society for such a purpose.
The Committee recommended that the use and effects of the power
should be closely monitored.
The same considerations are relevant to the power
contained in clause 29(6) of the present Bill.
5. What use has been made of the power under
the Crime and Disorder Act 1998 as amended by the 2001 Act?
6. What pressing social need is thought to be
served by the extensions provided for in Part 4 of the Bill?
7. How will the new powers provide worthwhile
additional ways of addressing the pressing social need?
8. Why does the Government consider that such
additional powers would be proportionate to the aim pursued?
PART 5 OF THE BILL: ASBOS, CURFEW ORDERS AND CHILD
Clause 39 and Schedule 2 would extend the operation
of curfew orders imposed on convicted persons under the age of
16, by removing the 3-month limit to such orders under section
37 of the Powers of Criminal Courts (Sentencing) Act 2000. The
period for which people could be required to comply with directions
of a supervisor under a supervision order would be extended from
90 days to 180 days. Curfew orders engage the right to respect
for private life under ECHR Article 8.
9. Why does the Government things think that
the new arrangements would be proportionate to a pressing social
need so as to be necessary in a democratic society for the purpose
of Article 8.2, bearing in mind the range of other methods of
dealing with these problems already available to the courts?
Schedule 2, para. 4(5) would insert a new provision
(paragraph 5A) in Schedule 6 to the Powers of Criminal Courts
(Sentencing) Act 2000. This would allow a supervision order to
require a child offender (aged 10 or over) to live with a local
authority foster parent for a specified period not exceeding 12
(a) the offence would be punishable with imprisonment
if the offender were 18 or over;
(b) the offence is so serious that a custodial sentence
would normally be appropriate in the case of a child aged 12 or
(c) the court is satisfied that the defendants behaviour
was due to a significant extent to the circumstances in which
the defendant was living, and that the imposition of a residence
requirement would assist in his or her rehabilitation; and
(d) the court has been notified by the Secretary
of State that arrangements are in place to implement the requirement
in the area, and the court has consulted the local authority which
would be responsible for implementing the requirement.
This engages the right to respect for family life
(ECHR Article 8). It involves disrupting the family, and interfering
with family relationships. It applies to children as young as
10, who could not normally be subjected to a custodial sentence
except for a very small number of crimes (notably murder). The
Committee provisionally takes the view that a very strong case
would need to be made for the necessity of such arrangements before
they could be accepted as being proportionate to a legitimate
aim so as to be justifiable under Article 8.2. There are limited
safeguards in the legislation. In particular, it is not clear
how the responsible public authority would perform its duty under
Article 8 to ensure that everything possible was done to maintain
family relationships and to work towards the reintegration of
10. How does the Government expect that the responsible
authority to perform its functions under proposed new paragraph
5A of Schedule 6 to the Powers of Criminal Courts (Sentencing)
11. Why does the Government think that removing
a young child from his or her family for up to a year would be
justifiable in terms of Article 8.2?
PART 7 OF THE BILL: ENVIRONMENTAL MATTERS
Clause 45 would allow the chief executive officer
of a local authority to make a closure order in relation to licensed
premises, or premises in respect of which a temporary event notice
is in effect, if he or she reasonably believes that a public nuisance
is being caused by noise coming from the premises, and that the
closure of the premises is necessary to prevent that nuisance.
The Committee has formed the provisional view that this raises
issues of due process under ECHR Article 6.1 and engages the right
to peaceful enjoyment of possessions under Article 1 of Protocol
1 to the ECHR (P1/1).
In relation to P1/1, the Committees predecessors
accepted that a power for a senior police officer to make a closure
order in respect of licensed premises where disorder was likely
could be justifiable as a proportionate response to the need to
protect public safety and prevent disorder. The provisions then
in question allowed the order to be made only if the officer reasonably
believed that closure was necessary in the interests of public
safety, and the order lasted only for a day at a time unless a
magistrates court made a further order after a proper hearing.
There are no such limitations in clause 45 of the present Bill.
This makes it difficult for the Committee to be satisfied that
the provisions strike a fair balance between the interests of
the community and the rights of the owner or occupier of the premises
as required by P1/1.
Furthermore, the fact that there is no procedure
set out in the Bill for the order to be reviewed by a magistrates
court, with full jurisdiction to review the grounds on which it
was made, makes it possible that the provisions are incompatible
with the right to a fair hearing by an independent and impartial
tribunal in the determination of civil rights and obligations
under ECHR Article 6.1.
12. What are the Governments reasons for concluding
that clause 45, with its very limited safeguards, would be compatible
(a) ECHR Article 6.1; and
(b) ECHR P1/1?
Finally, please would let us know of any representations
you have received in connection with this Bill in relation to
human rights issues, and to what specific points those representations
23 May 2003
48 See e.g. López Ostra v. Spain (1994) 20 EHRR
277, Eur. Ct. HR Back
First Report of 2000-01, Criminal Justice and Police Bill, HL
Paper 69, HC 427, paras. 52-57 Back
Joint Committee on Human Rights, First Report of 2000-01, paras.
21-23, discussing clause 17 of the Criminal Justice and Police