Joint Committee On Human Rights Fourth Report

4. Further memorandum from Richard McDonald Bridge, MacDonald Bridge, Solicitors


Further to my previous email, I have overnight noted a serious lacuna (or worse) in the arguments of the government about article 8: a lacuna that must significantly and further undermine any belief that the government in any way intends to deal frankly and openly with human rights concerns.

Indeed, given the doctrine of ministerial responsibility it may amount to a matter which should give Mr Howells cause to consider his position.

The government asserts as if fact that a licensing authority will ONLY be obliged to consider a premises application if "it is satisfied that the application has first been advertised in a manner likely to bring it to the attention of those living in the vicinity of the premises". This is not the case. The duties in question (to grant, or consider, or take steps etc) are indeed subject to a precondition of a slightly similar kind, but the effect is strikingly dissimilar. The relevant precondition is that the authority "is satisfied that the Applicant has complied with ANY (emphasis added) requirement imposed on him under section [17(5)]". Section 17(5) says that Regulations MAY (not must, and emphasis added) require advertisement of an application. Such regulations MAY (not must, and emphasis added) be "likely to bring the application to the attention of the interested parties likely to be affected by it".

As a minor matter, interested parties will not be affected by the application. They will only be affected by the grant of a licence (conditionally or otherwise) pursuant to the application, or possibly its refusal. That is just slipshod drafting.

The principal difference however is absolutely fundamental to any question of whether article 8 rights are observed. The government argues that these to be affected WILL have had notice. That is not what the Bill says. The Bill says they MAY (and I add "perhaps") have notice.

30 January 2003

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