Summary
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
| 
