Joint Committee On Human Rights Seventeenth Report

Appendix 8: Street Furniture (Graffiti) Bill

Letter from the Chair to Ms Siobhain McDonagh MP

As part of its function to consider human rights in the United Kingdom, the Joint Committee on Human Rights examines all bills introduced to either House with a view to reporting to each House on their compatibility with Convention rights under the Human Rights Act 1998, and with other rights which arise in international law under human rights instruments by which the United Kingdom is bound. The Committee is currently considering the human rights implications of the Street Furniture (Graffiti) Bill, which you introduced to the House of Commons.

As you know, the Bill would allow a local authority to serve a notice on the owner of any surface of land owned, occupied or controlled by a statutory undertaker, or any building, structure, apparatus, plant or other object in or on any such land, requiring the owner to remove or obliterate graffiti from that surface within 14 days, if the local authority considers the graffiti to be detrimental to the amenity of the area or offensive. The owner would have a right of appeal to a magistrates' court. If the owner fails to comply with the notice (subject to any appeal) or asks the local authority to remove the graffiti, the local authority may remove it and recover from the owner the expenses reasonably incurred in doing so.

Where the owner wants to retain the graffiti, a notice would interfere with the right to freedom of expression under ECHR Article 10, and would require justification under Article 10.2. The Committee is concerned that detriment to the amenity of the area or offensiveness might not justify the interference in terms of Article 10.2 unless the graffiti are in some way outrageous (for example, provoking public disorder or crime, or threatening morality, or libelling someone) and are visible to the public at large, or violate planning requirements. The Bill as currently drafted contains no such limitation. This raises the possibility that a notice would not serve a legitimate purpose under ECHR Article 10.2 and/or would be disproportionate to any legitimate purpose.

The Committee is also provisionally of the view that a notice would engage the right of the owner of the surface to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR. It represents a control over property, which is justifiable if it serves a legitimate state aim (protecting public amenity and preventing offensiveness might be such aims) and represents a fair balance between the right and competing public interests. The Bill could lead to considerable burdens being imposed on owners. For example, the effect of a notice being served on London Underground statutory undertakers in respect of graffiti would be very considerable. It is not clear to the Committee that imposing the cost of compliance on the statutory undertaker, which is not likely to be responsible for the presence of the graffiti, would represent a fair balance between the undertaker's rights and the public interest (or, in other words, be a proportionate interference with the statutory undertaker's rights).

In the light of this, the Committee is considering whether to draw the attention of each House to the human rights implications of the Bill. The Committee understands the difficulties which the sponsors of private members' bills, with limited resources, often face in responding to questions from the Committee about the human rights implications of their bills. Nevertheless, without suggesting that you are under any obligation to respond to its concerns, the Committee would of course give full weight to any representations which you might wish to put before it.

The Committee is likely to be deciding on 17 November 2003 whether, and if so how, to report to each House on the Bill, and so would be unable to take account of representations received after 14 November 2003.

5 November 2003

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