Joint Committee On Human Rights First Report



The Committee is considering whether to report to each House on the above Bill. It has carried out an initial examination of this Bill, and has formed the provisional opinion that the Bill is compatible with relevant human rights obligations. The Committee would, however, be grateful for your comments on the following point raised by its Legal Adviser. 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 Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

I would also like to take this opportunity to convey the Committee's disappointment with the human rights elements of the published Explanatory Notes to the Bill. These do not help to make clear the reasons for making the statement of compatibility under section 19(1)(a). Although several provisions of the Bill clearly engage Convention rights, there is nothing in the Notes to explain the Government's view that an interference with those rights is justified in the circumstances. As a result, the questions which follow have to cover a wider range of issues than might otherwise have been necessary.

The points to which the Committee seeks your responses are—

1. Customer information orders and account monitoring orders (clauses 32 to 46).

Disclosure of customer and account information affects private life, and needs to be justified under ECHR Article 8.2. The provisions would be clear enough to meet the test of being 'in accordance with the law', and would serve a legitimate aim (prevention of crime) under Article 8.2. The question is whether there are sufficient safeguards to ensure that the powers will be used only where there is a pressing social need, and only interfere with the right in ways that are proportionate to the need, so as to be 'necessary in a democratic society' for the legitimate purpose under Article 8.2.

These matters fall to be assessed on the facts of each case (taking account, for example, of the relative degree of seriousness of the criminal conduct being investigated, and the fact that the account holder will be unable to protect his or her own rights, since a financial institution would commit an offence by informing him or her of the application or the order[136]). Unlike the position in relation to some other powers which the Bill would confer, it seems that the express provisions of the Bill could prevent judges from giving adequate force to these considerations. In the case of both customer information orders and account monitoring orders, the Bill provides that an order 'has effect in spite of any restriction on the disclosure of information (however imposed).'[137] This could be taken as indicating that an order could be made and then carried into effect notwithstanding any restriction on disclosure of information (including restrictions arising under the Human Rights Act 1998 and ECHR Article 8). The Committee has previously taken the view that it is not good practice, in the protection of Convention rights, to draft legislation in such a way as to leave the applicability of the rights in doubt.

In the light of these considerations, the Committee seeks an explanation of why these provisions, and particularly clauses 32(7) and 37(7) (in relation to customer information orders), and clauses 35(6) and 40(6) (in relation to account monitoring orders) are thought by the Government to be compatible with Convention rights and to offer an appropriate level of protection for the right to respect for private life (ECHR Article 8) in particular.

2. Surveillance by overseas police and customs officers without authorisation in the UK.

Under clause 83, the new section 76A to be inserted into the Regulation of Investigatory Powers Act 2000 would allow a foreign police or customs officer lawfully to conduct, without authorisation and for a period of up to five hours, directed or intrusive surveillance in the UK which would normally require authorisation to be granted under the 2000 Act. The range of crimes, in relation to which surveillance would be lawful, would be extensive, and open to extension by order. The conditions laid down for the lawfulness of the surveillance (under proposed new section 76A(1) and (4)) would go some way towards protecting ECHR Article 8 rights, but would apparently not import the safeguards of the 2000 Act and the associated Code of Practice.

The inapplicability of safeguards under the 2000 Act seems to give rise to a potential weakness in the protective arrangements for ECHR Article 8 rights. Directed and, particularly, intrusive surveillance represent significant intrusions on the right to respect for private and family life under Article 8.1. It is not clear that the nature of the offences being investigated, or the grounds for suspecting the person under surveillance, will be sufficient to establish that the interference is proportionate to a pressing social need to advance the legitimate aim of prevention of crime under Article 8.2.

In the light of these considerations, the Committee seeks an explanation of why the Government takes the view that the provisions would provide sufficient safeguards to meet the requirements of Article 8.2, especially bearing in mind the range of offences to which the powers of surveillance would apply, the safeguards against abuse, and the need to ensure that an interference with a right under Article 8.1 is 'necessary in a democratic society' for the legitimate purpose of preventing crime.

Finally, the Committee would be grateful for a description of any other representations you have received in connection with this Bill in relation to human rights issues, and of the specific points to which those representations were directed.

The Committee would be grateful for a reply by the time we break for the Christmas Adjournment, that is no later than the morning of Thursday 19 December.

5 December 2002

136   Clause 42 Back

137   Clauses 32(7) and 37(7) (customer information orders), 35(6) and 40(6) (account monitoring orders)  Back

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