Joint Committee On Human Rights Fourth Report


The Joint Committee on Human Rights examines every Bill presented to Parliament. With Government Bills its starting point is the statement made by the Minister under section 19 of the Human Rights Act 1998 in respect of compliance with Convention rights as defined in that Act. However, it also has regard to the provisions of other international human rights instruments to which the UK is a signatory.

The Committee publishes regular progress reports on its scrutiny of Bills, setting out any initial concerns it has about Bills it has examined and, subsequently, the Government's responses to these concerns and any further observations it may have on these responses. From time to time the Committee also publishes separate reports on individual Bills.

This is the Committee's first scrutiny report of the 2004-05 Session. In this report the Committee comments for the first time on the Serious Organised Crime and Police Bill, the Inquiries Bill and the International Organisations Bill. The Committee will return to give further consideration to each of these Bills in the light of responses from the Government to questions the Committee is putting in correspondence. The Committee also reports its final views on the Mental Capacity Bill following responses by the Government to questions put previously by the Committee, and reports on the School Transport Bill.

In addition, the Committee uses this opportunity to publish the response from the Government to its Nineteenth Report of Session 2003-04,[1] and letters it has received from Ministers responding to its reports on the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004,[2] and the draft Criminal Justice Act 2003 (Categories of Offences) Order 2004.[3]

In relation to the Serious Organised Crime and Police Bill

The Committee raises a number of concerns about the compliance with Article 8 ECHR (right to respect for private and family life) of provisions in Part 1 of the Bill concerning the powers of the Serious Organised Crime Agency (SOCA) in relation to the gathering, storage, use and disclosure of information. In particular, the Committee considers that clauses 2, 3, 5 and 31 to 34 of the Bill are drafted in terms too general to satisfy the requirement of foreseeability in Article 8, whereby a person must be able to foresee the consequences for him or her of an interference with the right to respect for private life. There is also a concern that some of SOCA's powers may not serve a legitimate aim in the sense of one of the purposes prescribed by Article 8(2).

In relation to Part 3 of the Bill, which deals with police powers, the Committee questions whether extended powers of arrest contained in clause 101 are compatible with Article 5.1 and 8 ECHR. It also expresses concern that broadening the power to issue search warrants (clauses 104 and 105) may not be compatible with Article 8. The Committee raises questions about whether appropriate safeguards will be in place to ensure that storage and use of photographs taken on arrest (clause 107) will meet the requirements of Article 8, and it is seeking further information about the training provided to civilian police staff who may exercise a widened range of police functions under clauses 111-114 and Schedules 8 and 9 of the Bill.

Part 4 of the Bill contains provision relation to public order in public places. The Committee expresses concern as to whether the proposed new offence of harassment intended to deter lawful activities (clause 116) will be proportionate to its legitimate aim so as to be justifiable under Articles 9, 10 and 11 ECHR. The Committee will also be asking the Government to set out its reasons for considering that the provisions creating an offence of incitement to religious hatred (clause 119 and Schedule 10) are a proportionate response to a pressing social need so as to justify the interference with Article 10. In relation to the Bill's provisions on trespass and police powers in the vicinity of Parliament (clauses 120 to 124), the Committee also raises the question of compatibility with Articles 10 and 11. Finally, the Committee seeks clarification of the steps the Government will be taking to ensure that the provisions of Articles 3(1) and 40(1) of the Convention on the Rights of the Child are brought to the attention of the courts when deciding whether or not to allow reporting of prosecutions of juveniles for breaching ASBOs (clause 127), and of whether adequate safeguards will be in place to ensure that private individuals and companies exercising contracted-out functions in relation to ASBOs (clause 128) would act in a manner compatible with Convention rights.

In relation to the Inquiries Bill

The Committee raises concerns about the capacity of the Bill to provide a framework for inquiries necessary to comply with the right to life, under Article 2 ECHR, where a death occurs in state custody or agents of the state are implicated in a death. In particular the Committee questions—

  • whether inquiries under the Bill will be sufficiently independent to satisfy Article 2, given ministerial powers to suspend an inquiry; to issue "restriction notices"; to withhold publication of material in the report; to withdraw funding from the inquiry; and to appoint someone to an inquiry panel despite an interest in the subject matter of the inquiry;
  • whether inquiries under the Bill will be sufficiently effective to satisfy Article 2, given ministerial power to issue restriction notices and to withhold publication of material in the report, and the discretionary nature of awards of expenses and legal aid.

The report also points out that similar concerns may arise where the inquiry concerns inhuman and degrading treatment prohibited by Article 3. The Committee has written to the Lord Chancellor requesting clarification on these points.

In relation to the International Organisations Bill

The Committee observes that the immunities conferred by the Bill engage the right to a fair hearing under Article 6 ECHR, which guarantees the right to have disputes concerning civil rights and obligations determined by a competent tribunal. Where immunities interfere with Article 6 rights, this may be justified where the interference is in accordance with law, and proportionate to a legitimate aim. The report therefore notes that the Committee has written to the Government asking whether all of the immunities conferred by the Bill have a basis in an international legal obligation; and whether there are alternative means of redress available in respect of each of the organisations on which immunities are conferred by the Bill.

In relation to the Mental Capacity Bill

The Committee welcomes the Government's clarification that the use of restraint in relation to involuntary placement in hospital of a person lacking capacity would not amount to a deprivation of liberty engaging Article 5 ECHR rights, and invites the Government to consider amending the Bill to make this clear for the avoidance of doubt.

In relation to the "Bournewood gap", whereby compliant incapacitated patients do not have access to the procedural safeguards available to compulsorily admitted patients, the Committee welcomes the Government's commitment to bring forward appropriate new safeguards. While recognising the need for proper consultation on the matter, the Committee urges the Government to bring forward proposals for filling the gap during the passage of the present Bill.

In relation to withholding or withdrawing life-sustaining treatment, engaging rights under Articles 2, 3 and 8 ECHR, the Committee welcomes the introduction of additional safeguards surrounding advance directives, but recommends the amendment of the Bill to include a provision to ensure that an advance refusal of treatment is fully informed. It also recommends that consideration be given to the inclusion of certain other safeguards on the face of the Bill in relation to advance directives. On the question of the need for specific refusal of artificial nutrition and hydration (ANH) in advance directives, the Committee recommends that the Bill be amended to make clear that a specific advance refusal of ANH is required in order to be effective as an advance directive. The Committee welcomes the addition of a presumption in favour of life-sustaining treatment to the best interests provisions of the Bill as a valuable additional safeguard of real practical value. However, the Committee recommends that consideration be given to amending the Bill to require that any authority to refuse consent to ANH in any instruments creating a power of attorney or any order appointing a deputy be expressly and specifically conferred.

In relation to research on or in relation to people lacking capacity, the Committee maintains the concern it expressed on its initial consideration of the Bill that the Bill's provisions would have the effect of relaxing the standards contained in the Convention on Human Rights and Biomedicine and would therefore lower the threshold of when research will be permissible. Noting the Government's explanation that the provisions of the Bill are intended to cover a broader range of research than direct medical interventions on the person, the Committee registers its concern that a single set of provisions covering intrusive and less intrusive research has the effect of diluting the standards applicable to the former type of research, and recommends an amendment to the Bill to distinguish between the two types.

In relation to the School Transport Bill

The Committee notes that the Bill does not raise any additional human rights points to those which arose during its scrutiny of the draft Bill in the previous Session. The Committee maintains one reservation in respect of the guidance contained in the draft prospectus for LEAs accompanying the Bill, as to whether a difference of treatment can be objectively justified on grounds of "reasonable cost", and also reiterates its recommendation that current guidance on school transport contained in Circular Letter of 21 January 1994 be amended to include specific guidance on non-discrimination of the kind contained in the draft prospectus.

1   Nineteenth Report of Session 2003-04, Children Bill, HL Paper 161, HC 537 Back

2   Twenty-second Report of Session 2003-04, The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, HL Paper 190, HC 1212 Back

3   Second Report of Session 2004-05, The draft Criminal Justice Act 2003 (Categories of Offences) Order 2004, HL Paper 9, HC 107 Back

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Prepared 24 January 2005