Joint Committee On Human Rights First Report



27. This Bill would require a social services authority to make a 'delayed discharge payment' to the NHS body caring for a patient if—

(a)  the NHS body has notified the social services authority that a hospital patient receiving treatment of a type to be prescribed by regulations could be discharged from hospital if specific community care facilities were provided, but cannot be discharged without those facilities being available, and

(b)  the social services authority failed to provide those services.

The main object of the Bill is to provide a financial sanction to encourage social services authorities to provide services which would allow patient's to be discharged, thus reducing 'bed-blocking' in hospitals. The Explanatory Notes to the Bill, para. 10, state—

    In the first instance it is intended that the prescribed type will be acute or geriatric care provided in a general and acute hospital. The types of care may later be extended to other sectors, such as mental health or intermediate care, as appropriate.

28. We have written[33] to the Minister in charge of the Bill raising the following questions—

(a)  why the scheme proposed by the Bill is not intended to apply to mental health from the outset,

(b)  why it is not proposed to apply the same scheme to local health authorities in cases arising under section 117 of the Mental Health Act 1983, and

(c)  what other steps are being taken to alleviate the risk, arising from a lack of aftercare services in the community, of violating the Convention rights of mental health patients who cannot be discharged from compulsory treatment.

29. We have also received a letter from Mr Paul Burstow MP, raising a number of issues relating to the compatibility of the Bill's provisions with Convention rights. Mr Burstow's letter is printed as an Appendix to this report.[34]


30. The Courts Bill is intended to give effect to those recommendations of Sir Robin Auld's Review of the Criminal Courts in England and Wales (October 2001) which the Government accepted, and to make various other changes relating to arrangements for civil, criminal and family courts. Explanatory Notes have been published,[35] but are not helpful in relation to the Bill's human rights implications.

31. The Bill would: make the Lord Chancellor responsible for maintaining an effective and efficient system of courts, and abolish Magistrates' Courts Committee (Part 1); create a national rather than local jurisdiction for lay magistrates (Part 2); change the rules on jurisdiction to reflect this (Part 3); allow for standard powers to be given to security officers in all courts (Part 4); create a new inspectorate, HM Inspectorate of Court Administration (Part 5); allow for judicial titles to be altered and for judges to sit in different courts (Part 6); provide for a Criminal Procedure Rules Committee and a Family Procedure Rules Committee, and amend the powers of the Civil Procedure Rules Committee (Part 7); and make various other changes (Parts 8 and 9).

32. Most of the Bill has no human rights implications. In our view, several provisions which engage human rights are justified in so far as they interfere with the rights. However, there are a few provisions which we consider could potentially lead to an unjustified interference with human rights.

Justices of the Peace

33. At present, the Lord Chancellor can dismiss a JP at will. That gives rise to a risk that a JP might be regarded as insufficiently independent of the executive to ensure that litigants are receiving a hearing by an independent tribunal as required by ECHR Article 6.1. Clause 11(6) would restrict the Lord Chancellor's power of removal somewhat. There remains a potential problem of institutional independence, as the person making the decision to remove a JP would be a member of the executive—in fact, a Cabinet Minister. We have written to the Lord Chancellor asking why he considers that the provision relating to his discretion to dismiss a JP would be compatible with the right of litigants before to a hearing by an independent tribunal as required by ECHR Article 6.1.[36]

34. Clauses 26 and 27 of the Bill contain provisions to the same effect as the present law so that a JP, or justices' clerk or assistant clerk when exercising the functions of a JP, is not liable to be sued for any act or omission in the execution of his or her duty in a matter within his or her jurisdiction. The immunity conferred by these provisions is equivalent to that conferred on judges of superior courts by the common law.

35. Such an immunity may be justifiable, despite an apparent interference with the right of access to a court under ECHR Article 6.1. However, it certainly may give rise to a problem where a JP acts in such a way as to violate a person's Convention right. The Human Rights Act 1998, section 9 provides that normally the only remedy in such a case is to appeal against, or apply for judicial review of, the act, omission or decision. However, where a court order interferes with a person's liberty in violation of his or her right under ECHR Article 5.1-5.4, there must be an enforceable right to compensation (ECHR Article 5.5). Section 9 of the Human Rights Act 1998 therefore provides that damages may be awarded in respect of a judicial act for which ECHR Article 5.5 requires that there be an enforceable right to compensation. There is a presumption, when interpreting legislation, that a later Act which is inconsistent with an earlier Act is intended to restrict, amend or repeal it to the extent of the inconsistency. Because the Human Rights Act 1998 was enacted subsequently to the Justices of the Peace Act 1997, the immunity under the 1997 Act was naturally read as being subject to the right under section 9 of the 1998 Act. The Bill would repeal the 1997 Act[37] and enact the immunity once more as part of a later Act than the Human Rights Act 1998. Doing this might be interpreted as freeing the immunity from the restriction imposed by section 9 of the 1998 Act, interfering with the protection for the right to compensation under ECHR Article 5.5, although it is also possible that a court would regard the duty to read and give effect to all legislation so as to be compatible with Convention rights so far as possible, under section 3 of the 1998 Act, as overriding the presumption that a later Act supersedes earlier, inconsistent legislation. We have written to the Lord Chancellor asking whether it would not be desirable, for the avoidance of doubt, to amend clauses 26 and 27 of the Courts Bill to clarify the applicability of section 9 of the Human Rights Act 1998.[38]

36. Clause 36 of the Bill would provide that JPs who are members of local authorities would be disqualified from acting as a member of a court in proceedings brought by or against, or by way of appeal against a decision of, the local authority, a committee or officer of the authority, or the executive of the local authority, and certain other related bodies. This is welcome as an additional, express protection for due process rights both at common law and under ECHR Article 6.1. However, we have some doubts about the precise effect of Clause 36(5) which provides: 'No act is invalidated merely because of the disqualification under this section of the person by whom it is done.' We have written to the Lord Chancellor asking what the effect of clause 36(5) of the Courts Bill, particularly on the right to a hearing by an impartial tribunal under ECHR Article 6.1, is intended to be.

37. Some JPs have been appointed in contravention of section 3 of the Act of Settlement 1700, which provides (among other things) that, if 'the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of England' (as happened when King George I acceded to the throne) 'no person born out of the kingdoms of England Scotland or Ireland or the dominions thereunto belonging (although he be...made a denizen (except such as are born of English parents)) shall be enjoy any office...from the Crown...'. Clause 37 of the Bill would prevent section 3 of the Act of 1700 from invalidating any appointment of such a person as a JP before 31 January 2002, or any act done by virtue of such an appointment. According to the Explanatory Notes to the Bill,[39] this is intended to mean that their earlier actions as lay justices are not invalidated by the Act of 1700. One effect of this may be to leave people affected by orders of an invalidly appointed JP without any remedy for acts or omissions which were unlawful at the time of their occurrence. We have written to the Lord Chancellor asking why the Government is satisfied that clause 37 of the Bill would be compatible with Convention rights.

Prosecution appeals from the Court of Appeal (Criminal Division)

38. Clause 83 of the Courts Bill would amend section 34 of the Criminal Appeal Act 1968 to extend the time allowed for the prosecution (but not the defence) to apply to that Court for leave to appeal to the House of Lords, or to apply to the House of Lords for leave to appeal after the Court of Appeal has refused leave. In each case, the prosecution would have 28 days. The defendant would continue to be allowed only 14 days. This introduces an inequality which seems to us to call for justification under the principle of equality of arms which forms an element of the right to a fair hearing under ECHR Article 6.1. Nothing in the Explanatory Notes explains the need for the inequality or the reason for allowing twice as much time to the prosecution as to the defence. We have written to the Lord Chancellor asking why it is proposed to introduce an apparent inequality to the system of appeals, and why the Government considers that such an inequality would be compatible with ECHR Article 6.1.[40]

Setting the level of fees

39. Clause 87 of the Courts Bill would empower the Lord Chancellor, with the consent of the Treasury and after consulting a number of specified people and bodies, to prescribe, by statutory instrument, fees payable in respect of anything dealt with by the Supreme Court, county courts, and magistrates' courts. The level of fees affects people's right to have access to the courts for the determination of disputes. This is a fundamental constitutional right at common law,[41] and is an element in the right to a fair trial under ECHR Article 6.1 as interpreted by the European Court of Human Rights.[42] To respect those rights, it is important for the fee structure to take account of such matters as ability to pay and the nature of the case, and for the system for prescribing fees to allow that to happen. Clause 87(2) permits the necessary flexibility, allowing a statutory instrument to prescribe exemptions from or reductions in fees, and remission of fees in whole or in part.

We have written to the Lord Chancellor seeking clarification of the extent to which Parliament will play a part in approving the setting of fees under the provisions of clauses 87 and 97 of the Courts Bill.[43]


40. The Bill, which is accompanied by Explanatory Notes,[44] is designed to give effect to a number of obligations under EU law—

  • Part 1, on Mutual Assistance in Criminal Matters, implements various provisions of the Schengen Convention, the Convention on Mutual Assistance in Criminal Matters 2000 and its 2001 Protocol on co-operation in locating bank accounts and providing banking information, and the Framework Decision on the Execution in the EU of Orders Freezing Property and Evidence.

  • Part 2, on jurisdiction in relation to terrorist acts, implements the EU Framework Decision on combating terrorism 2002 in relation to extra-territorial jurisdiction over various offences of terrorism.

  • Part 3 implements the EU Convention on Driving Disqualifications 1998, introducing mutual recognition of driving disqualifications. It also prevents drivers who are banned in Northern Ireland from obtaining a British driving licence, and vice versa.

  • Part 4 implements other measures of Schengen relating to police co-operation, extradition and data protection, and paves the way for implementing the EU Framework Decision on non-cash means of payment.

  • Part 5 contains miscellaneous provisions.

41. The UK Government has agreed to the various Framework Decisions (made under Art. 34 TEU) and is party to Schengen under the Treaty of Amsterdam 1997. None of these decisions and treaties requires or allows obligations arising under them to be implemented nationally in a manner inconsistent with fundamental principles of EU and EC law, which include protection of human rights recognised under international treaties to which Member States have contributed and the common constitutional traditions of Member States. It follows that legislation implementing the UK's obligations under EU law must be shown to contain adequate safeguards for those human rights.

42. The Bill engages a number of rights. The Explanatory Notes are unhelpful in this regard, merely noting that the Minister has made a statement of compatibility under Human Rights Act 1998, section 19(1)(a),[45] without identifying the provisions which are thought to engage Convention rights, the rights which are thought to be affected, or the reasons for deciding that the provisions are compatible with the rights. In this, the form and substance of the Explanatory Notes on human rights matters are notably out of line with recent Government practice. The Explanatory Notes to the Crime (International Co-operation) Bill do not reflect good practice in relation to their coverage of human rights matters.

43. We note, and welcome, the proposed extension of the powers under the Data Protection Act 1998 allowing the Information Commissioner to inspect personal data recorded in the Schengen information system, the Europol information system, and the Customs information system, to assess whether or not any processing has been or is being carried out in compliance with the 1998 Act.[46] We consider this provision would serve to enhance protection for Convention rights, particularly under ECHR Article 8, in this context.

44. The Bill engages a good many rights. The following seem to us to be in particular need of justification on human rights grounds—

  • orders to freeze evidence under Chapter 2 of Part 1 engage the right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter P1/1) and the right to respect for private and family life, home and correspondence under ECHR Article 8;

  • the provision of information about banking transactions under Chapter 4 of Part 1 engages the right to respect for private life under ECHR Article 8;

  • the power of foreign police officers to conduct surveillance for five hours in the UK without authorisation (clause 83) engages the right to respect for private and family life, home and correspondence under ECHR Article 8.

45. Accordingly, we have written[47] to the Department—

—  drawing attention to the inadequacy of the Explanatory Notes to the Bill in respect of the justification for the section 19(1)(a) statement;

  • asking why it considers that it would be compatible with ECHR Article 8 to allow customer information orders and account monitoring orders to have effect notwithstanding any restriction on disclosure of information, however imposed; and
  • asking why it considers that foreign officers allowed to conduct directed or intrusive surveillance in the UK without complying with the requirements of the Regulation of Investigatory Powers Act 2000 and its associated Code of Practice would be subject to sufficient safeguards to meet the requirements of ECHR Article 8.


46. The Criminal Justice Bill contains a wide-ranging set of proposals relating to criminal procedure, evidence and sentencing. The following matters raise human rights implications which the Committee is pursuing with the Government.

Safeguards for property rights when a person is taken into custody (clause 6)

47. Clause 6 would remove the requirement in section 54(1) of the Police and Criminal Evidence Act 1984 that a custody officer shall 'record or cause to be recorded everything which a person has with him' when he is arrested at a police station or brought to a police station following arrest, and the requirement in section 54(2) that such a record shall form part of the detainee's custody record. As section 54(3) provides that most such items can be seized and retained by the police, powers under section 54 engage the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter P1/1). Most items in the possession of an arrested person can be seized and retained by the police even if they are not evidence, and could not be used to injure anyone or to escape. The requirement for a record to be kept is a protection against unjustified interference with that right by the police or other prisoners. We have therefore asked the Home Office why the Government considers that adequate safeguards would be in place after the enactment of clause 6 to ensure that interference with rights under P1/1 by virtue of section 54 of the 1984 Act strike a fair balance between the rights of the person in possession of property and the public interest, as required under P1/1.[48]

Double jeopardy

48. The restriction of the rule against double jeopardy in the light of new evidence following an acquittal (see particularly clauses 62, 65 and 66) have implications for human rights. These were thoroughly considered by the Law Commission in its report on the subject.[49] The Law Commission concluded that its recommendations would be compatible with human rights. We see no reason to disagree. The Bill closely follows the Law Commission's recommendations, save in respect of the range of offences for which a person's trial could be reopened in the light of new evidence. The Law Commission thought that it would be proper to relax the double jeopardy rules only in relation to murder, genocide, and (if and when the Law Commission's recommendations on reform of the law of involuntary manslaughter are enacted) reckless killing. The range of offences to which the Bill would apply is far wider, but we do not consider that this would on its own make the provisions incompatible with human rights. However, we consider that the Bill should make it clear that the law to be applied at a second trial would be the law applicable at the time of the first trial, so as to prevent any risk of a violation of the right to be free of retrospectively imposed criminal sanctions (ECHR Article 7) or of the right to a fair hearing (ECHR Article 6.1).[50]

Evidence of bad character and hearsay evidence

49. Part 11 (clauses 81 to 98) of the Bill would permit certain types of information, not currently ordinarily admitted as evidence in a criminal trial, to be put before the court. These are: (a) evidence of a defendant's 'bad character', which cannot currently be given unless the defendant has put his character in issue by either asserting that he is of good character; and (b) hearsay evidence, which cannot currently be given unless it falls within one of a number of exceptions, including but not limited to the use of earlier statements by people who are unable to give evidence. At present, good or bad character refers largely, if not wholly, to whether the defendant has any previous convictions. Hearsay evidence is evidence from X that Y made a statement Z, when the evidence of X is admitted as evidence of the truth of statement Z (rather than merely as evidence of the fact that Y said Z). Evidence of bad character is extremely widely defined, giving rise to a risk that evidence of lifestyle with little probative value but considerable prejudicial weight would be admitted.

50. In relation to both evidence of bad character and hearsay evidence, there is likely to be difficulty in allowing the defendant to confront the original witnesses against him or her, even where those witnesses are still alive and capable of giving evidence. What is more, the Bill does not expressly prevent a person being convicted on the basis of evidence of bad character or hearsay alone. For these reasons, it seems to us that there is a significant risk that the provisions as currently drafted would lead to violations of the right to a fair trial under ECHR Article 6.1 and 6.3(d). We have therefore asked the Home Office why the Government considers that the provisions as drafted offer adequate protection to those rights, and whether the provisions could be redrafted to improve the assurance of compatibility.[51]

33   See Appendix 9 Back

34   See Appendix 10 Back

35   HL Bill 12-EN Back

36   See Appendix 7 Back

37   See clause 98 of, and Schedule 7 to, the Bill Back

38   See Appendix 7 Back

39   HL Bill 12-EN, para. 110 Back

40   See Appendix 7 Back

41   R. v. Lord Chancellor, ex parte Witham [1998] QB 575, D.C. Back

42   See, among many other cases, Golder v. United Kingdom, Eur. Ct. H.R., Series A, No. 18, judgment of 21 February 1975; Silver v. United Kingdom, Eur. Ct. H.R., Series A, No. 61, judgment of 25 March 1983 Back

43   See Appendix 7 Back

44   HL 5-EN (London: The Stationery Office, 2002) Back

45   Explanatory Notes, para. 194 Back

46   Clause 82, inserting a proposed new s. 54A in the Data Protection Act 1998 Back

47   See Appendix 12 Back

48   See Appendix 2 Back

49   Double Jeopardy and Prosecution Appeals, Law Com. No. 267, Cm. 5048 (London: The Stationery Office, 2001) Back

50   See Appendix 2 Back

51   See Appendix 2 Back

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