5 Planning and Compulsory Purchase Bill
| Date introduced to the House of Commons
(carried over and re-introduced)
Date introduced to the House of Lords
Current Bill Number
Previous Reports
| 4 December 2002
1 December 2003
10 December 2003
House of Lords 26
3rd Report of Session 2003-04
|
5.1 We commented on this Bill in our Third Report of Session 2002-03.[29]
At that time, we took the view that the Bill did not give rise
to a significant risk of violating Convention rights.
5.2 The Bill has been carried over into the current
session. On Thursday 26 February 2004 the Government tabled a
number of new amendments to be moved at the Report Stage in the
House of Lords. Amendment 143A, in the name of Lord Rooker, proposes
a new clause to take its place after clause 51 of the Bill. Its
effect would be to insert new sections 171E to 171H in the Town
and Country Planning Act 1990. These would allow a local planning
authority to issue a temporary stop notice if it thinks that there
has been a breach of planning control in relation to any land,
and that it is expedient that the activity should be stopped immediately.
A temporary stop notice would specify the activity in question,
prohibit the carrying on of the activity (or so much of it as
is specified in the notice), and set out the authority's reasons
for issuing the notice.[30]
The effect would be to make it an offence to carry on the prohibited
activity during the period of up to 28 days during which the temporary
stop notice continues in effect.[31]
Proposed new section 171F(1)(a) would prevent a temporary stop
notice from prohibiting "the use of a building as a dwelling
house".
5.3 The use of a temporary stop notice would interfere
with the right of an owner or occupier of property to quiet enjoyment
of his or her possessions, a right protected by Article 1 of Protocol
No. 1 to the ECHR. Article 1 allows the State to interfere with
the right by imposing controls on the use of possessions for the
general interest, but any interference must be shown to strike
a fair balance between the rights of the owner or occupier and
the general interest. This has been interpreted by the European
Court of Human Rights as meaning that the interference must serve
a legitimate aim (and the maintenance of land-use planning controls
is such an aim), must not be arbitrary, and must be rationally
related and proportionate to the aim.[32]
A control over the use of possessions which treats some people
less favourably than others on the ground (among others) of their
race, social origin, association with a national minority or other
status will, in addition, violate the right to be free of discrimination
in the enjoyment of Convention rights under ECHR Article 14, taken
together with Article 1 of Protocol No. 1.
5.4 It is far from clear to us that the restrictions
to be imposed by a temporary stop notice would satisfy the requirements
of Article 1 of Protocol No. 1. This is in part because there
appear to be only rudimentary safeguards for Article 1 rights
in the proposed amendments. There is no prior judicial control
over the issuance of a notice. The local planning authority is
not required to have any reasonable grounds for thinking that
there has been a breach of planning control, or that it is expedient
to stop it immediately. The person who is alleged to have breached
planning controls would not be entitled to a hearing before the
notice is issued. It is not even necessary to serve the notice
on the person who is thought to be carrying on the activity which
may make him or her liable to criminal penalties: proposed new
section 171E(4) requires the authority to display a copy of the
notice on the land, but merely allows, without compelling, the
authority to serve the notice on "any of" the person
thought to be carrying on the activity, a person thought to be
an occupier of the land, or a person who is thought to have an
interest in the land. Any of these people may be liable to criminal
sanctions under proposed new section 171G by merely causing or
permitting (as distinct from carrying out) a contravention, unless
he or she can prove (the burden of doing so lying on the accused)
that the notice was not served on him or her and that he or she
did not know and could not reasonably have been expected to know
of its existence: see proposed new section 171G(2), (5).
5.5 It is also not clear that the proposed new sections
would be compatible with the right to be free of discrimination,
under Article 14 of the ECHR taken together with Article 1. The
exception in proposed new section 171F(1)(a) preventing a temporary
stop notice from prohibiting the use of a building as a dwelling
house would not prevent a notice from prohibiting the use of a
caravan as a dwelling. This appears to discriminate against travellers,
including gypsies who constitute a vulnerable group entitled to
protection by virtue of Article 14. (We note that this discrimination
would have been avoided had the Government accepted amendment
143AA, standing in the name of Lord Avebury.) To be justified,
this difference of treatment must serve a legitimate aim and be
objectively and rationally justified, and the extra burden imposed
on the victim must be proportionate to the aim pursued. We have
not been provided with any information which could show that these
criteria would be met. Racial discrimination is particularly difficult
to justify, not least because it can amount to a breach not only
of Article 14 but also to "degrading treatment" contrary
to Article 3.[33]
5.6 Normally, we would have raised the matter with
the appropriate Minister (Lord Rooker). However, in this case
the amendments tabled on Thursday 26 February were to be debated
(and were in fact debated) in the House of Lords on Monday 1 March,
a mere four days (including a non-sitting Friday and a weekend)
after being tabled. We were given no advance notice of them, and
neither we nor the House of Lords received a written explanation
of the Government's thinking about the compatibility of the amendments
with Convention rights. We have therefore had little time to assess
the amendments, and no time to consult the Government about them.
5.7 We regard it as unacceptable that amendments
having obvious implications for human rights should be introduced
at such a late stage in a Bill's passage through Parliament without
adequate warning and without a clear explanation of the Government's
view of the human rights implications. As at present advised,
we have serious doubts as to the compatibility of the provisions
with the Convention right to peaceful enjoyment of possessions
under Article 1 of Protocol No. 1 to the ECHR, and with the Convention
right to be free of discrimination in relation to the right to
possessions under Article 14 of the ECHR taken together with Article
1. We draw this to the attention of each House.
29 Joint Committee on Human Rights, Third Report of
Session 2002-03, Scrutiny of Bills: Further Progress Report,
HL Paper 41, HC 375, paras. 44-48. Back
30
Proposed new s. 171E of the 1990 Act. Back
31
Proposed new ss. 171E(7) and 171G Back
32
See Sporrong and Lönnroth v. Sweden, judgment of 23
September 1982, Series A, No. 52, 5 EHRR 35. Back
33
East African Asians v United Kingdom (1973) 3EHRR 76; Cyprus
v Turkey (2002) 35 EHRR 30; paragraphs 305-11. Back
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