Joint Committee On Human Rights

Joint Committee On Human Rights First Report

FIRST REPORT

The Joint Committee on Human Rights has agreed to the following Report:

SCRUTINY OF BILLS: PROGRESS REPORT

Introduction: Legislative Scrutiny by this Committee

1. Under section 19 of the Human Rights Act, every Government Bill is required, on publication, to be prefaced by a statement from the responsible Minister as to whether, in his or her opinion, the provisions of the Bill are compatible with Convention rights, as defined in the Act.

2. In the last Session we reported on all Bills presented to Parliament in respect to their compatibility with Convention Rights as defined by the Human Rights Act 1998 and other human rights instruments. We produced, in total, nineteen reports on Bills before both Houses in that session.[1] In addition we produced reports on a number of draft Bills. This report is our first report of the 2002-2003 Session setting out the progress of our legislative scrutiny activities.

3. The general principles of our approach to this work are—

That every Government Bill will be examined at as early a stage as possible to establish whether significant questions of human rights appear to be raised by any of its provisions.

Where such questions appear to arise, written ministerial responses to specific enquiries from the Committee will be sought.

Where it seems appropriate, written commentary from non-governmental sources on these questions will be sought at the same time.

Ministerial and other responses will be considered, pursued and published alongside any report of the Committee's opinion.

Oral evidence will only be taken in exceptional cases.

Where a Bill has been substantially amended in either House in such a way as to appear to raise significant new questions relating to the human rights compatibility of its provisions, we will be prepared to consider it afresh in its altered form.

4. When the responses are received from Departments and have been considered by us, we intend to move in this Session towards a principle of 'exception reporting', that is generally reporting our considered views to each House only when a Bill appears to give rise to a significant risk of a violation of a human right. We will make that assessment on the basis of a number of criteria including—

(a) the seriousness of the interference with, and the nature of, the right(s) affected,

(b) the severity of the impact of any infringement on victims,

(d) the extent to which the Bill in question appears to have taken account of any earlier recommendations of the Committee in respect of similar matters (including reports we have made on draft Bills).

Detailed reports on particular Bills will in general be confined to those which seem to us to raise substantial human rights issues.

PRIVATE MEMBERS' BILLS

5. Our approach to this type of scrutiny has been slightly modified for Private Members' Bills, which do not have a section 19 statement attached.

6. Each Private Member's Bill will therefore be examined by the Committee for compatibility questions but, in allocating time and resources to this scrutiny, we will have due regard to the priority that needs to be accorded to consideration of government legislation. However, we do consider that ballot Bills in the Commons should reasonably have a higher priority than other Private Members' Bills in that House.

7. Where questions of compatibility do arise in relation to a Private Member's Bill, the Committee will give an opportunity for the Bill's sponsor to respond to our concerns. We recognise that this may not always be possible, and we intend, in general, simply to report such matters for the attention of each House, rather than expecting the Member in charge necessarily to provide written responses. Again, we intend to make substantive reports only on those Private Members' Bills which raise significant human rights issues measured against the criteria outlined above.

Government Bills raising Human Rights Questions

8. We now turn to our consideration of Bills so far introduced in this Session which we consider do, potentially, give rise to significant compatibility questions.

COMMUNICATIONS BILL

9. The Bill follows the consultation on a White Paper[2] in 2000 and the Draft Communications Bill[3] (published in May 2002). We reported our views on the human rights aspects of the Draft Bill.[4] There was also a full review by a Joint Select Committee on the Draft Bill.[5] As the Explanatory Notes to the Bill show, the Government has given careful consideration to the views expressed in both these reports, as well as to other contributions to the consultation process. The human rights implications are considered at some length in paragraphs 630-634 and 877-903 of the Explanatory Notes. We welcome the very full response to our comments. We are particularly pleased that the Government has been able to cater for many of the Committee's concerns in the Bill. In particular, we welcome the fact that—

additional due process rights have been given to service providers before penalties can be imposed on them, save in cases of real urgency;[6]

the powers of OFCOM to require people to provide information have been subjected to new safeguards, and an express power to use information in litigation in ways which might have violated the principle of equality of arms under ECHR Article 6.1 has been omitted;[7]

the proposals for very wide powers for the Secretary of State to restrict, on the grounds of public safety, public health or national security, a service provider's freedom to provide a service[8] have been omitted from the Bill;

the provisions for forfeiture of wireless telegraphy apparatus in certain circumstances have been subjected to much enhanced procedural safeguards for the rights of those affected, including third parties;[9]

the proposal in the Draft Bill for a power to require a broadcaster to publish an apology has been omitted from the Bill, and (particularly welcome) similar powers in existing legislation would be changed by the Bill.[10]

10. A number of matters still give rise to human rights issues. The first matter, and the one which perhaps is of most far-reaching significance, is the fact that the Government felt unable to make a statement of compatibility under section 19(1)(a) of the Human Rights Act 1998.

The section 19(1)(b) statement.

11. It is the first time since the system of making statements under section 19 of the Human Rights Act 1998 began in December 1998 that a Bill, on first introduction to Parliament, has carried a section 19(1)(b) statement rather than a statement of compatibility under section 19(1)(a). Instead, the Secretary of State for Culture, Media and Sport, the Rt. Hon. Tessa Jowell MP, has made the following statement under section 19(1)(b) of the Human Rights Act 1998—

I am unable (but only because of clause 309) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights. However, the Government nevertheless wishes the House to proceed with the Bill.

The reason for making such a statement on this Bill is that the Government has decided to maintain, in clause 309, the existing ban on political advertising and sponsorship in the broadcast media, despite recognising that the European Court of Human Rights has held in Vgt Verein Gegeng Tierfabriken v. Switzerland[11] that a blanket ban violated the right to freedom of expression under ECHR Article 10. In our report on the Draft Bill, 'we noted[12] that the decision in that case established—

59. The Court accepted that the ban advanced the protection of the rights of others, within Article 10(2), by preventing financially strong groups from obtaining a political advantage, and securing the independence of the broadcaster, as well as preventing undue commercial influence over politics and providing for 'a certain equality of opportunity between the different forces of society', and also to support the press, which remained free to carry political advertisements.[13] However, the Court decided that the ban had not be shown to be 'necessary in a democratic society' within the meaning of Art. 10(2).

60. Although the Swiss ban applied only to national broadcasting, not to local broadcasting (the United Kingdom ban extends to both), the Court held that the ban was disproportionate to the legitimate aim, arguing that where expression is political, the State's margin of appreciation in justifying an interference with it is reduced,[14] and the fact that the ban did not extend to political advertising in the press suggested that the need for the ban was not particularly pressing.[15] The judgement also argued that the group in question (an animal rights group) was not particularly powerful economically or politically, so (even if the ban could be justified in respect of some potential advertisers) it was not justifiable in relation to the particular advertiser.[16] That being so, the Court was of the view that the ban had not been shown to be justified, either generally or in the particular case.

61. The Court would appear to suggest by this judgement that: States are unlikely to be able to justify controls on political broadcasting as easily as controls on other kinds of broadcasting; that a general justification for having a regulatory regime for political advertising on television will no longer necessarily justify a ban on all political advertising on radio and television, unless it can be justified by reference to the 'necessity in a democratic society' test; and that, even if the regulatory regime as a whole can be justified in general, States must now be able to justify each application of the ban to individual advertisers by showing that banning that advertiser, or that advertisement, is proportionate to the overall need to regulate political advertising in general.

12. We noted that this did not mean that there could be no controls over political advertising on television and radio, but only that any control must be shown to be justified by reference to the criteria set out in ECHR Article 10(2).[17] It was implicit in the Court's judgment that avoiding discrimination against less favoured or less well-funded viewpoints was a legitimate objective under Article 10(2). The question, in each case, was whether the restriction went further than can be shown to be necessary to achieve the goal. While observing that it would be a formidable challenge to put the compromise hinted at by the Court—a more circumscribed ban applied more discriminatingly—in statutory form, and accepting that there was some room to doubt the applicability of the Court's decision to the ban proposed in the United Kingdom,[18] we recommended that the Government should seek restrictions short of an outright ban which could be shown to advance one of the legitimate aims in Article 10(2), and to be a proportionate and non-discriminatory way of pursuing that aim as required by Article 10(2) both alone and taken together with Article 14.[19]'

13. The Government does not explain, in the Explanatory Notes, why it has decided not to include such lesser restrictions but rather to risk incompatibility. Instead, it says—

This seems to indicate that the Government would be likely to argue in court for a limitation, or the overruling, of the decision in Vgt Verein Gegeng Tierfabriken v. Switzerland.

14. We regret that the Government, in taking this action, felt no need to offer a fuller explanation of the reasons for it in the Explanatory Notes.[21] However, we recognise that it may sometimes be legitimate to use section 19(1)(b) and to legislate in ways which are known to be potentially incompatible with Convention rights. It is likely that this was the view of Parliament when it was considering the Bill that became the Human Rights Act 1998. Had it not taken that view, there would have been no point in including section 19(1)(b) in the Act. Of course, initially Parliament must decide whether such legislation is justified, and later the courts must decide whether the legislation is indeed incompatible with Convention rights. The question for us, at this stage, is whether to advise each House that the Government's approach is justified in relation to this Bill.

15. While we accept that introducing legislation accompanied by a section 19(1)(b) statement is not necessarily unjustifiable, we consider that it requires strong justification as a matter of principle. Our preliminary view is that Parliament's consideration of the Bill, and specifically clause 309 of it, should be based on the following factors—

making a section 19(1)(b) statement does not evince a lack of respect for human rights standards. It shows that the Government is taking the task of assessing the human rights implications of its legislation seriously, and considers that there are reasons (which it should be ready to share with Parliament) for considering that it is desirable in the public interest to take the risk of incompatibility;

this may be justifiable if its reasons for taking the risk of incompatibility are sufficiently compelling and are consistent with the general objective of maintaining respect for rights;

section 19(1)(b) makes it clear that it is the Government, not the individual Minister, who takes the responsibility for inviting Parliament to consider a Bill notwithstanding a substantial risk that it is incompatible with a Convention right. In other words, this is a matter for which the Government as a whole is collectively responsible to Parliament;

a section 19(1)(b) statement does not mean that the Government considers that the provision in question would be held to be incompatible with a Convention right. It only means that the Minister is unable to say, with the requisite level of confidence,[22] that the provision is compatible;

it follows that, where a section 19(1)(b) statement is made, the Government remains free to argue in subsequent litigation that the provision in question is actually compatible with Convention rights;

where the Government is prepared to do that, and to amend the Act if it is held to be incompatible, it evinces an appropriate level of respect for human rights, as long as its reasons for taking the risk of incompatibility in the first place are sufficiently compelling and are consistent with the general objective of maintaining respect for rights.

16. Unfortunately, as noted above, the Explanatory Notes do not explain the reasons for taking the step, the grounds for thinking that those reasons are compelling, or the reasons for thinking that the step is consistent with the general objective of maintaining respect for rights. We have therefore written to the Secretary of State to asking the Government to explain more fully its reasons for concluding that it would be impossible to introduce transparent controls on political advertising which would be proportionate to the legitimate aim pursued and would secure a fair balance between competing rights and interests. We draw the matter to the attention of each House.

Other human rights issues

17. There are five other issues, identified in the paragraphs which follow, on which the Government has not changed its position, despite the Committee's invitation to it to reconsider.

18. Refusal to include express protection for the privilege against self-incrimination and items subject to legal privilege. In our report on the Draft Bill, we pointed out the lack of such protection, and suggested that it led to a risk of incompatibility with ECHR Articles 6 and 8.[23] The Government's response is—

19. In fact, that is exactly the approach that the courts have traditionally taken. Judges have assumed that the common law privileges are excluded by a statutory scheme which does not expressly import them. It is as yet unclear whether the Human Rights Act 1998 will make any difference to this approach. We have consistently taken the view that appropriate safeguards for Convention rights should be made manifest on the face of legislation, rather than relying on courts or administrators to read them into the legislation by applying the duty to act compatibly and to read and give effect to legislation in a compatible manner under sections 6 and 3 respectively of the 1998 Act.

20. We have therefore written to the Secretary of State, impressing on her once again the importance of including appropriate protections for human rights on the face of the Bill. We draw the matter to the attention of each House.

21. Penalties and other sanctions on broadcasters: procedural safeguards. In our report on the Draft Bill, we recommended that the Bill should provide significantly better procedural safeguards where broadcasters are to be liable to fines or revocation and suspension of licences, in order to meet ECHR Article 6 standards.[25] The Government rejects this, and is content to rely on OFCOM to 'establish appropriate internal procedures for handling alleged breaches of conditions and for giving practical effect to broadcasters' rights to have a reasonable opportunity to make representations...' The Government considers that 'there is no reason to think that OFCOM will fail in that respect, and there could be disadvantages in tying OFCOM's hands by laying down statutory procedures that could deprive them of valuable flexibility. Such procedures, coupled with the availability of judicial review, would in the Government's view be found to meet the standards set by Article 6.'[26]

22. In our report on the Draft Bill, we wrote—

Wednesbury

We do not consider that the procedural safeguards would meet Article 6 standards.

This is equally true of the equivalent provision in the Bill (clause 230). We have therefore written to the Secretary of State raising the matter once again, taking account of the absence of a reasoned response from the Government to our concern about the adequacy of judicial review in this context. We draw the matter to the attention of each House.

23. Direction by a Minister to a broadcaster via OFCOM to include announcements in their services. In our report on the Draft Bill, we thought that this power, now in clause 324 of the Bill, should be made more specific in order to provide adequate safeguards for the rights to freedom of expression (ECHR Article 10) and peaceful enjoyment of possessions (Article 1 of Protocol No. 1).[28] The Government disagrees, considering it to be 'neither necessary nor appropriate further to delimit the exercise of the power', since (i) section 6 of the Human Rights Act 1998 would compel the Minister to act compatibly with Convention rights, and (ii) it would be impossible exhaustively to set out the circumstances in which the power could be used.[29] It is our settled view that powers conferred by Bills should be subject to sufficient safeguards, and be appropriately delimited, on the face of the Bill to provide adequate security for Convention rights. As safeguards can usually be provided without exhaustively defining the circumstances in which a provision might operate, we have written to the Secretary of State raising the matter once again. We draw the matter to the attention of each House.

24. Ownership of broadcasting licences by religious bodies. In our report on the Draft Bill, we suggested that allowing religious organisations to hold licences for local radio broadcasting, but not for national radio or any television broadcasting, brought into question the justification for interfering with their rights under ECHR Article 10 which had been upheld by the European Court of Human Rights in respect of the blanket ban under current legislation.[30] The Government takes the view that the aim of the provisions has not changed,[31] and that 'the less wide-ranging ban proposed by the Bill pursues a legitimate objective in a proportionate manner and is compatible with the ECHR.'[32]

25. The Government has not offered any detailed explanation for its view that a ban on owning any television broadcasting licence, but only on owning national (not local) radio broadcasting licences, is a response to a pressing social need so as to be 'necessary in a democratic society' for the purpose of establishing a justification for interfering with freedom of expression under ECHR Article 10.2. We have therefore written to the Secretary of State asking for an explanation of this point. We draw the matter to the attention of each House.

26. Other provisions of the Bill seem to us to raise no human rights issues significant enough to be drawn to the attention of either House at this time.