2 Serious
Organised Crime and Police Bill
Date introduced to the House of Commons
Date introduced to the House of Lords
Current Bill Number
Previous Reports
| 24 November 2004
8 February 2005
House of Lords 24
4th and 8th
|
2.1 In our latest report on this Bill, setting out
our conclusions about its human rights compatibility in light
of the Government's response to our questions, we pointed out
that we had not yet considered the new provisions in the Bill
concerning protection of the activities of animal research organisations[36]
which were introduced by the Government at Report Stage in the
Commons.[37] We said
that they might be the subject of a further report if we considered
them to raise significant human rights issues.
2.2 We subsequently received representations from
the British Union of Anti-Vivisectionists about the new provisions
in the Bill, including evidence of how they would affect the forms
of protest in which they engage.[38]
This short report deals exclusively with these provisions of the
Bill.
2.3 We are concerned about the compatibility of the
new criminal offence contained in clause 142 both with the right
to freedom of expression in Article 10 ECHR and with the requirement
in Article 5 ECHR that arrest and detention must be lawful. Clause
142 creates the new criminal offence of interfering with contractual
relationships so as to harm an animal research organisation. A
person commits the new offence if, with the intention of harming
an animal research organisation, he either commits a crime or
a tortious act causing loss or damage (or threatens to do so)
in such a way that the crime or tortious act is intended or likely
to cause a second person (B) not to perform any contractual obligation
owed by B to a third person (C), to terminate any contract B has
with C, or not to enter into a contract with C.[39]
"Harm" is defined to include preventing or hindering
the carrying out by the animal research organisation of any of
its activities.
2.4 The new offence clearly engages the right to
freedom of expression in Article 10 ECHR and the right to liberty
in Article 5. In our view two distinct compatibility issues arise.
The first concerns the necessity for this measure. The Explanatory
Notes cite "the systematic way in which animal rights extremists
have used the conduct covered by both of the new offences with
the calculated aim of disrupting organisations carrying out licensed
animal research procedures".[40]
We find that we do not have any way of evaluating this claim about
the necessity for the measures. We note the extensive list of
offences and police powers already available against intimidatory
forms of protest published as an annex to Animal WelfareHuman
Rights: protecting people from animal rights extremists published
by the Home Office, the Attorney General and the DTI in July 2004.
We are not so far persuaded that any of the specific examples
of intimidation which have so far been relied on by the Government
to justify the need for the new power is not already a criminal
offence under existing provisions. We draw this matter to the
attention of each House.
2.5 The second compatibility issue concerns the legal
uncertainty of the new offence in clause 142. As the Explanatory
Notes point out, the effect of the clause is to make a tortious
act committed with the necessary intention, which causes loss
or damage, a criminal offence.[41]
The clause does not list the crimes and offences to which the
clause relates, but refers expansively to all criminal offences
and all torts causing loss or damage. This includes the economic
torts of interfering with contractual relations and conspiracy
which are notoriously uncertain in their scope. We recognise that
the uncertainty surrounding the reach of these torts could already
be seen as an impediment to freedom of expression, but, as the
Explanatory Notes themselves accept, criminalising such torts
has the effect of creating a more serious impediment to freedom
of expression than the existing torts. It also bring Article 5
into play, with its rigorous requirement of "lawfulness".
2.6 In our view the legal uncertainty created by
the definition of this offence is demonstrated by the chilling
effect these provisions will have on activity such as seeking
to persuade contractors not to contract with animal research organisations,
and advocating boycotts of those contractors if they refuse. The
Explanatory Notes state that there will be no interference with
Article 10 rights, because of the requirement that the commission
of a tort can only form the basis of the offence if the tort is
one causing loss or damage to the person against whom it is directed.[42]
They state that the effect of this requirement is that "the
offence will not apply to any peaceful protest to the effect,
for example, that a person should end a contractual relationship
with an animal research organisation or to personal expression
of opinion to that effect. Such protests and expressions of opinion
are not capable of causing loss or damage to the person at whom
they are addressed."
2.7 We are not persuaded that the offence does not
have precisely the chilling effect which is disclaimed here. A
campaign by a law-abiding organisation such as the BUAV to attempt
to persuade an airline not to transport animals to animal research
organisations, widely assumed to be a perfectly legitimate form
of protest activity in the past, may well be within the scope
of the economic torts. A campaign advocating a boycott of such
an airline if it refused to do so is even more likely to be within
the scope of those torts. In our view the offence therefore
fails to satisfy the requirement of legal certainty as it is currently
defined, and is likely to be disproportionate in its effect because
of the chilling effect it will have on these non-intimidatory
forms of protest. We draw this matter to the attention of each
House.
36 Clauses 142-146 of the Bill Back
37
Eighth Report of Session 2004-05, Scrutiny: Fourth Progress
Report, HL Paper 60, HC 388, para. 2.2 at footnote 36 Back
38
Appendix 1 Back
39
Clause 142(1)-(3) Back
40
EN para. 533 Back
41
EN para. 374 Back
42
EN para. 532 Back
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