Joint Committee On Human Rights

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Joint Committee On Human Rights First Report

SCRUTINY OF BILLS: PROGRESS REPORT

Disclosure of pre-sentence reports where the defendant is a child

51. Where a court obtains a pre-sentence report on an offender, clause 143(2) would lay down a general principle that copies of it should be given to the offender, his counsel or solicitor, and (usually[52]) to the prosecutor. However, the duty to give a copy to the offender would be subject to an exception under clause 143(3) where the offender is under 17 and is not represented by counsel or a solicitor. In this case, the copy need not be provided to the offender, but would have to be given to the offender's parent or guardian if present in court. Clause 144 makes similar provision in relation to reports to the court by probation officers or members of youth offending teams.

52. This could prevent the offender from making representations on his or her own behalf in relation to the reports at the sentencing stage. It would threatens to violate three human rights—

the right of the offender, as a person subject to a criminal charge, to a fair hearing under ECHR Article 6.1 and the Human Rights Act 1998, since Article 6.1 rights do not end on conviction but extend to the sentencing stage of the trial;

the right of the offender as a child to express his views freely in all matters affecting him or her, to have those views given due weight in accordance with the child's age and maturity, and in particular to have the opportunity to be heard in any judicial and administrative proceedings affecting him or her, either directly or through a representative or an appropriate body, under Article 12.1 and 12.2 of the UN Convention on the Rights of the Child; and

the right of the offender as a person to respect for his private life, under ECHR Article 8 and the Human Rights Act 1998, in circumstances where he or she is no longer in the care of a parent or guardian and/or does not want the parent or guardian to see the reports or to make representations to the court (although the Bill would not expressly give the parent or guardian a right to address the court in relation to the reports).

53. We have therefore asked the Home Office why the Government considers that clauses 143 and 144 of the Bill would be compatible with the above rights.[53]

Sharing of information when assessing risks posed by certain offenders

54. Clauses 205-208 of the Bill would allow an extended sentence to be passed on certain sexual and violent offenders[54] deemed to be liable to cause serious harm to the public if released. The task of assessing the danger is allocated to the 'responsible authority', that is, the chief officer of police for the area, the local probation board and the Minister of the Crown responsible for prisons, acting jointly.[55] For this purpose, they must co-operate with other bodies, which in turn are required to co-operate with the responsible authority to the extent compatible with their 'functions under any other enactment'.[56] Co-operation for this purpose may include the exchange of information.[57] It is not clear whether 'function' would include the performance by those public authorities of their duty to comply with Convention rights under the Human Rights Act 1998, section 6, and the Data Protection Act 1998. In order to ensure that the right to respect for private life under ECHR Article 8 and rights in respect of personal information under the Data Protection Act 1998 are properly protected, we have asked the Home Office whether the Bill could be amended to make it clear that the duty to exchange information is subject to the requirements of section 6 of the Human Rights Act 1998 and of the Data Protection Act 1998.[58]

Other matters

55. We do not consider that the proposed limitations on jury trial under Part 7 in principle raise any human rights issue, despite their politically controversial nature. Provisions relating to extended sentences where offenders are thought to be a danger to society (clauses 205-209), a provision relating to the conditions of detention for young people (clause 215), and provisions relating to the recall of prisoners released on licence (clauses 232 and 233), all engage Convention rights, but do not, in our view, give rise to a significant risk that any interference with them would be unjustified.

Government Response

56. We received a response to our questions from the Home Office on Monday 16 December. We congratulate the Minister and his officials on the efficiency with which they have dealt with our inquiries. We have not had sufficient time to give consideration to these responses before the Christmas recess, and we will report our conclusions in the New Year. Meanwhile, we attach the Government's response as an Appendix to this report.[59]

EUROPEAN PARLIAMENT (REPRESENTATION) BILL

57. This Bill would amend the law on elections to the European Parliament from all parts of the United Kingdom and Gibraltar. We welcome Part 2 of the Bill, which would enfranchise electors in Gibraltar, following the decision of the European Court of Human Rights in Matthews v. United Kingdom[60] that the exclusion of Gibraltarians from elections for the European Parliament violated their rights under Article 3 of Protocol No. 1 to the ECHR. The other parts of the Bill do not seem to us to threaten any violation of human rights.

EXTRADITION BILL

58. The Bill as now introduced follows the consultation by the Government on the Draft Extradition Bill.[61] The Committee reported on that draft Bill in the last session.[62] As the Report noted, 'The proposed Bill would represent a fundamental change in the philosophy underpinning the UK's approach to extradition.'[63] In particular, where a request for extradition came from one of the UK's European partners, the UK court would no longer require the requesting territory to show that there is prima facie evidence that the suspect was guilty of the alleged offence, or question the compatibility of the requesting territory's criminal code or criminal justice system with that of the UK: there would be no requirement for 'double criminality'.[64] There would be mutual recognition by each territory of requests made by the others. However, the Bill provides that a court in the UK would be prevented from ordering extradition if there is credible evidence that it would threaten any Convention right (including the right to a fair hearing within a reasonable time and the right to be presumed innocent until proved guilty) either in the requesting territory or in the UK. On that basis, the Committee took the view that the draft was generally compatible with Convention rights (paragraphs 18-19), but drew attention to serious concerns on human rights grounds in respect of—

the lack of clarity on the face of the Bill as to the relationship between its proposals and the provisions of the Extradition Act 1989, and the possibility of amending or repealing the provisions of that Act by Order in Council (paragraph 3 of the Report);

the lack of express provision for a defendant's mental or physical incapacity to defend himself or herself to be a bar to extradition (paragraph 6);

the potential for human rights violations arising from the removal of the 'political offence' exception to extradition, and the possibility of removing protection against extradition for political offences by Order in Council (paragraph 22); and

possible weaknesses in the procedures for accepting assurances from requesting states about compliance with Convention rights on their territory, including the range of rights in respect of which assurances might be accepted and the means for assessing the reliability of such assurances (paragraphs 27-28).

59. The Parliamentary Under-Secretary of State for the Home Office (Mr. Bob Ainsworth MP) responded to the Committee's Report in a letter to the Chair dated 4 November 2002.[65] His response to the Committee's concerns are set out below.

60. On the relationship between the Bill and the Extradition Act 1989, we were told that the 1989 Act would be repealed in its entirety, together with the Backing of Warrants Act 1965. However, this cannot be done until the last cases to be brought under the Act have been finally disposed of. The power to repeal by Order will be used to repeal the earlier legislation when that time comes. In our view, this is a satisfactory explanation of the power.

61. In response to the Committee's comments, the Bill now includes physical or mental incapacity as a bar to extradition: see clauses 25 and 88. We welcome this.

62. The Government argues that the political offence exception 'is a 19th century notion which has largely fallen into disuse. It is now very rarely invoked as a defence against extradition and there are no recent cases in this country where it has been successfully used. In addition, a number of international conventions have limited the scope of the political offence exception so that it can not be used as a bar to extradition in cases of alleged terrorism or other crimes of violence. The Government believes that all the other safeguards that will exist mean that no fugitive will suffer as a consequence of the decision not to include a provision preventing extradition for politically motivated crimes.'

63. We are not altogether persuaded by this line of argument. We note, in this connection, that the courts of some other EU Member States make use of the exception.[66] In our Twentieth Report, we noted that some of the conduct falling within the scope of the European arrest warrant, in respect of which extradition could be granted, would be particularly likely to be political, including racism and xenophobia, and we pointed out that the EU Framework Decision on the European arrest warrant does not require the UK to remove the political offence exception. We also suggested that removing the exception was a sufficiently important step to merit an express provision in primary legislation, in order to facilitate parliamentary debate on the matter.[67] The Minister has not responded directly to these points.

64. We accept that a person could not be extradited under the Bill if trial in the requesting state would infringe Convention rights, including the right to hold and express opinions under ECHR Article 10(1). On the other hand, the right to hold opinions (without expressing them) could be compromised by legislation against racism or xenophobia. Unlike the right to hold opinions under ICCPR Article 19(1), which is absolute, the equivalent right under the ECHR is subject to qualifications under ECHR Article 10(2). There may be cases in which a bar on extradition, where it would infringe Convention rights, might not adequately protect the right under ICCPR Article 19(1), which could by contrast have been protected by the political offence exception. Despite these reservations, however, we do not intend to pursue this matter further.

65. The power to accept assurances from requesting states about compliance with rights is a long-standing feature of extradition procedures in the United Kingdom. The District Judge would have to be satisfied him or herself that any assurance was reliable. The Government argues that, 'There have not been any problems in recent years in regard to death penalty assurances and we see no reason why the new provisions should give rise to any difficulties.' In relation to assurances from requesting states about rights unrelated to the death penalty, their response is, 'If the requesting state believes that offering undertakings in response to any such concerns that have been raised would be of assistance to the District Judge, it will be free to do so.' On balance, we still consider that this should be expressly written into the Bill, and we draw the matter to the attention of each House.

66. We have examined the Bill for other respects in which its provisions differ from those contained in the draft Bill. In our view, none of the changes threaten to violate human rights.

67. Where a person whose extradition is sought applies for asylum, he or she could not be extradited until the asylum claim has been finally determined.[68] Where the application for asylum is rejected, an appeal to the High Court (and, subject to certain limitations, to the House of Lords on a point of law) would replace the system of appeals under the Nationality, Immigration and Asylum Act 2002.[69] In our view, neither of these sets of provisions threatens to violate human rights. If there are circumstances in which they may adversely affect protection for human rights, they would not seem likely to raise issues different from those which have already been fully explored by this Committee and both Houses in relation to the Nationality, Immigration and Asylum Bill in the 2001-02 session.

68. The Bill provides that the rule against double jeopardy would be a bar to extradition only if the person whose extradition is sought would be able to rely on it as a defence if he or she were charged with the extradition offence in the part of the United Kingdom where the judge is exercising jurisdiction.[70] We considered above the proper extent of the double jeopardy rule in relation to the relevant provisions of the Government's Criminal Justice Bill. Under the present law, however, it does not seem to us to raise issues to which we need to draw the special attention of either House in the context of the Extradition Bill.

LICENSING BILL

69. The Licensing Bill is the product of a long period of consideration and consultation about the modernisation of licensing law. The Bill covers entertainment licensing as well as liquor licensing. Explanatory Notes have been published.[71] Our predecessors expressed views about certain aspects of licensing law when it reported on the Criminal Justice and Police Bill in the 2000-01 session.[72] In particular, they considered provisions which now form Chapter 2 of Part 1 (sections 12 to 32) of the Criminal Justice and Police Act 2001, and sections 169I, 172A and 179A-179K of the Licensing Act 1964, and advocated improvements to the language in which certain criminal offences were expressed.[73]

70. The present Bill would repeal the 1964 Act in its entirety, and make certain amendments to other legislation, including Chapter 2 of Part 1 of the Criminal Justice and Police Act 2001. The provisions governing licensing and various offences (including those considered by the Committee in the 2000-01 session) would be comprehensively revised.

71. In considering the offence of allowing 'any violent, quarrelsome or riotous conduct' on licensed premises,[74] our predecessors recommended that the definition of offences committed by people who permit certain types of behaviour on licensed premises should be amended 'to ensure that adequate legal certainty and proportionality can be achieved in the definition of criminal offences.'[75] The equivalent provision proposed in the present Bill is to be found in clause 138(1): 'A person to whom subsection (2) applies commits an offence if he knowingly allows disorderly conduct on relevant premises.' It seems to us that this wording meets the previous Committee's concerns. We are pleased that the Government has been able to draft a satisfactory replacement for the previous provisions.

72. Any regime for regulating the supply of alcohol, and for licensing premises for the sale of alcohol,[76] interferes with the freedom of owners of premises to use them for the sale of liquor, and with the freedom of owners of intoxicating liquor to sell it. As the freedom to dispose of property or to use property for one's own chosen purposes is an aspect of the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter 'ECHR P1/1'), the whole of the Bill interferes with that right.

73. The Explanatory Notes outline the Government's reasoning leading to the conclusion that the provisions are compatible with rights under P1/1 and ECHR Article 6.1.[77] Essentially, it is argued that the restrictions pursue a legitimate aim under and are proportionate to that aim for the purposes of P1/1, and provide for a fair procedure complying with Article 6. In view of the potentially damaging effects of alcohol on individual health and safety and on public order, there is a clear public interest in regulating the sale and public consumption of alcohol. We accept the Government's view, and do not propose to comment further here on this aspect of the Bill.

74. The Explanatory Notes address the applicability of the right to freedom of expression to the provisions of the Bill in relation to the offence of carrying out licensable activities without due authorisation under clause 134 of the Bill.[78] Several submissions to us[79] have argued that criminalising all 'regulated entertainment' unless it is licensed would violate the rights of performers under ECHR Article 10. Under Schedule 1 to the Bill, regulated entertainment includes the following—

(a) The performance of a play; exhibition of a film; an indoor sporting event; a boxing or wrestling entertainment; a performance of live music; any playing of recorded music; a performance of dance; certain entertainments similar to live or recorded music or dance; if in each case it is provided in the presence of an audience for the purpose of entertaining the audience.[80]

(b) Providing facilities to enable people to make music, to dance, or take part in entertainment of a similar description.[81]

Entertainment or facilities under (a) and (b) are regulated entertainments only if they are provided for members of the public or a section of the public, or members of a qualifying club with or without guests, or for consideration and with a view to profit.[82]

(c) Any entertainment at all, if it takes place on premises made available for the purpose, or partly for the purpose, of enabling the entertainment in question to take place.[83]

75. The effect of this would be to remove the current exemption from the regulation regime for live performances by no more than two performers. As such, the Bill would interfere with the rights of performers, and those who make facilities or premises available, under ECHR Article 10.1. The question is whether the Government is right to say that the interference is justifiable under Article 10.2.

76. The Government's view is as follows.

77. This does not explain why the measure is thought to be a proportionate response to a pressing social need so as to fall within the justification under Article 10.2. The inflexibility of the provision makes it difficult to be confident that it could be applied in a proportionate way and only in response to a pressing social need. We consider that there is a significant risk that the provision would amount to an unjustifiable interference with, and hence a violation of, rights under Article 10. Nor does it appear to us that the Government has so far provided an adequate justification for the provision so far as it interferes with the right of owners and occupiers of premises to peaceful enjoyment of their possessions under ECHR P1/1. We have therefore written to the Minister seeking a fuller justification for the provisions of clause 134 of the Licensing Bill in relation to the criteria set out in ECHR Article 10.2.[85]

78. Clause 18(2) of the Bill provides that the licensing authority 'must grant' a licence (subject to any conditions authorised by that sub-clause) in the absence of relevant representation made under clause 18(3). Relevant representations are representations about the likely effect of granting the licence on the promotion of the licensing objectives, which do not include respect for or protection of Convention rights: clause 4(2). The representations must be made by an interested party or responsible authority (fairly narrowly defined by clause 13(3), (4)) must not be vexatious or frivolous, and must satisfy certain other criteria: clause 18(6)-(9).

79. It has been submitted to us that the duty to grant a licence under clause 18(2) would prevent a licensing authority taking account of the effect of the licence on residents' rights to respect for their private lives and their homes, unless someone had made a relevant representation. The right includes a certain level of protection against noise pollution at night: ECHR Article 8, as interpreted by the European Court of Human Rights in Hatton v. United Kingdom (the case relating to noise at night around Heathrow Airport). In our view the express terms of clause 18(2) would be impossible to interpret away using section 3 of the Human Rights Act 1998. It seems to be capable of forcing the licensing authority to act in a manner incompatible with Convention rights in certain circumstances. We have therefore written to the Minister asking why the Government considers that these provisions adequately safeguard Convention rights.[86]

80. Clause 167 would exempt the police from liability for damages in proceedings for judicial review, the tort of negligence or misfeasance in public office arising out of any act of omissions in the performance or purported performance of his functions in relation to a closure order on licensed premises. This exemption would not prevent liability arising where an act or omission were done in bad faith or where the unlawfulness arose from incompatibility with a Convention right. It has been suggested that the provision might lead to a violation of Article 6 or Article 13 of the Convention. The former is, but the latter is not, one of the Convention rights for the purposes of the Human Rights Act 1998. However, it seems to us that the limitation of the exemption, by clause 167(3)(b), so that it does not apply where damages would be available for unlawfulness arising under section 6 of the Human Rights Act 1998, would be effective to protect against violation of Convention rights, particularly as remedies other than damages would still be available.

81. Clause 180 could prevent a licensing authority or responsible authority from passing on information about alcohol-related disorder and similar matters to people other than a licensing authority or responsible authority. It has been said that it would make possible a violation of the right to information about environmental threats under ECHR Article 8 as interpreted by the Strasbourg court in, e.g., Guerra v. Italy. In view of the type of information involved, we do not consider that this is a sufficiently serious threat to amount to a violation of Article 8.

Government Bills raising no special Human Rights Questions

82. In our opinion, the following Government Bills raise no special concerns relating to human rights which require to be drawn to the attention of either House.

LORDS BILLS

Arms Control & Disarmament (Inspections) [HL] [House of Lords Bill 2]
National Minimum Wage (Enforcement Notices) [HL] [House of Lords Bill 8]
Waste & Emissions Trading [HL] [House of Lords Bill 3]

COMMONS BILLS

Consolidated Fund (Appropriation) Bill ( HC Bill 11)
Health (Wales) [House of Commons Bill 1]
Regional Assemblies (Preparations) [House of Commons Bill 3]
Industrial Development (Financial Assistance) [House of Commons Bill 5]
Local Government [House of Commons Bill 9]

Private Members' Bills

83. We now consider some of the Private Members' Bills introduced so far in this Session into the House of Lords.

HIGH HEDGES BILL

84. The High Hedges Bill is a Private Member's Bill introduced by the Baroness Gardner of Parkes. This Bill would make local authorities responsible for providing a mechanism for deciding on complaints about high hedges which are said unreasonably to affect enjoyment of domestic property by obstructing light. A high hedge would be defined as a barrier consisting of two or more evergreen trees or shrubs over two metres in height. If the local authority concluded that a high hedge unreasonably affected the enjoyment of neighbouring domestic property by obstructing light, the authority would be required to serve and, if necessary, enforce an order requiring the obstruction of light to be remedied within a set period.

85. In our view the Bill engages the following rights—

the right to peaceful enjoyment of possessions (ECHR Protocol 1, Article 1);

the right to respect for private life and the home (ECHR Article 8);

the right to a fair hearing by an independent and impartial tribunal in the determination of civil rights and obligations (ECHR Article 6.1).

86. In our view, the Bill pursues a legitimate aim (speedily settling disputes between neighbours about enjoyment of domestic property). Bearing in mind the fact that the rights of occupiers of adjoining domestic premises under ECHR Protocol 1, Article 1 and ECHR Article 8 have to be held in a fair balance with each other, and the prevalence and seriousness of some long-running disputes about hedges, we consider that the Bill can properly be regarded as responding to a pressing social need and being proportionate to the aim pursued. The procedures for appeals under clauses 7 to 9 would seem to ensure that the proceedings would satisfy the requirements of ECHR Article 6.1. That being so, we do not consider that there is any significant risk of the Bill being intrinsically incompatible with human rights.

PATIENTS' PROTECTION BILL

87. The Patients' Protection Bill is a Private Member's Bill the purpose of which is to reverse the effect of a series of judicial decisions, the first and best known of which was Airedale NHS Trust v. Bland.[87]

88. In that case, the House of Lords held that it was not necessarily unlawful to withdraw or withhold nutrition and hydration from patients who could not consent to treatment because of catastrophic and irreversible brain damage. The courts decided that administering nutrition and hydration to such patients was a form of medical treatment. On general principles, medical treatment cannot be lawfully administered to someone unless they consent, or the treatment is objectively in the best interests of the patient and the patient has not said beforehand whether he or she would not wish to be treated in the circumstances which have arisen. Where there had been no such advance direction, and doctors concluded that continuing treatment would not improve the patient's medical treatment and was not in the patient's best interests, it would be lawful to withdraw or withhold sustenance, with the result that the patient, who is unable to care for himself or herself, dies, usually of dehydration.

89. The Bill would make it unlawful to withhold or withdraw hydration or nutrition with the purpose of hastening or otherwise causing the patient's death.

90. This would engage the right to respect for private life (ECHR Article 8) in cases where the patient had given directions that he or she would not wish to be kept alive in such circumstances. However, the purpose is to uphold the right not to be intentionally deprived of life (ECHR Article 2). This would be a legitimate aim under ECHR Article 8.2, would be in accordance with the law, and might well be held to answer a pressing social need to protect the right to life and to be proportionate to that aim. As such, it would in our view be likely to be held to be compatible with ECHR Article 8.

91. It is possible that continuing to administer nutrition to someone who had given instructions that no nutrition was to be administered in the circumstances which have arisen would amount to degrading treatment contrary to ECHR Article 3, particularly bearing in mind the way in which naso-gastric intubation is carried out. However, in our view it would be unlikely to be regarded as degrading, for the purposes of Article 3, to administer such treatment in order to preserve life.[88]

92. On balance, therefore, we conclude that the Bill raises no issues requiring to be drawn to the attention of either House on human rights grounds at this time.

PRIVATE MEMBERS' BILLS RAISING NO SPECIAL HUMAN RIGHTS QUESTIONS

93. In our view the following Private Members' Bills, introduced into the House of Lords, raise no questions relating to human rights requiring to be drawn to the special attention of that House.

European Union (Implications of Withdrawal)[House of Lords Bill 7]
Road Traffic (Amendment) Bill [HL Bill 13]
Voting Age (Reduction to 16) Bill [HL Bill 10 (Rev)]
Wild Mammals (Protection)(Amendment)[House of Lords Bill 6 (withdrawn)]
Wild Mammals (Protection) (Amendment) (No. 2)[HL Bill 11]

Private Bills

94. The Standing Orders of each House relating to Private Bills were amended with effect from 27 November 2001 so that Standing Orders 38(3) of the Commons and Lords now require the memorandum attached to each Bill by the promoter to include a statement of opinion as to compatibility with Convention rights. Standing Order 169A of the Commons and 98A of the Lords require a Minister to report on each such statement (by depositing a statement in the Private Bill Office) immediately after First Reading.

95. We consider Private Bills, together with these opinions and reports, in much the same manner as we do Government Bills. So far, none of those we have examined in the current Session, which are listed below, seems to us to raise significant human rights questions requiring to be drawn to the attention of either House.

Hereford Markets Bill
Transas Group Bill

52 See clause 143(4) Back

53 See Appendix 2 Back

54 See clause 264 and Sch. 11 to the Bill Back

55 Clause 262(1), (2) Back

56 Clause 262(3) Back