Work of the Committee in 2008-09 - Human Rights Joint Committee Contents


Written Evidence


Letter from the Chair of the Committee to Rt Hon Harriet Harman QC MP, dated 19 December 2006

Draft Coroners Bill

The Joint Committee on Human Rights is considering the human rights compatibility of the Draft Coroners Bill. We are aware that this Bill has been subject to detailed pre-legislative scrutiny by the House of Commons Constitutional Affairs Committee. Although the Government had expressed a commitment to bringing forward a Coroners Bill in this parliamentary session, there was no reference to a Coroners Bill made in the Queen's Speech, nor is there any reference to a Bill on the website of the Leader of the House. The Government have indicated to the Committee of Ministers that, in relation to the enforcement of the implementation of general measures to meet the United Kingdom's procedural obligations under Article 2 ECHR, that legislative measures to reform Coroners are underway. The Committee of Ministers Deputies are awaiting further information from the United Kingdom on the progress of these reforms.[100]

1.  We would be grateful if you could update us on the Government's progress on the draft Bill, and whether it is likely that the Government will continue with its proposed reforms in this parliamentary session. If not, why not?

Having undertaken initial scrutiny of the draft Bill, we recognise that the Bill clearly has the potential to be a human rights enhancing measure; by increasing the effectiveness of Coroners' investigations and addressing the requirement for an effective investigation into deaths which engage the State's responsibility to protect individuals' right to life (as guaranteed by Article 2 ECHR). However, we would be grateful if you could provide a fuller explanation of the Government's view that the proposals in the Bill are compatible with the Convention rights guaranteed by the Human Rights Act 1998, in the following respects.

(1) Reform of death investigation: Article 2 ECHR

There are a number of developments in the Bill which have the potential to enhance the ability of Coroners' investigations to satisfy the requirements of Article 2 ECHR for a full and effective investigation, including, a) widening the statutory duty to conduct investigations, including a broad duty to conduct investigations into the death of anyone "lawfully detained in custody", as opposed to the current duty to investigate deaths "in prison"[101] and b) the introduction of new rights of participation and appeal for bereaved families and other "interested parties". We welcome the proposed introduction of a Charter for bereaved families, a policy objective which our predecessor Committee praised in its report into deaths in custody (2004-05, Third Report, para 295).

The draft Explanatory Notes accept that a significant number of the Bill's clauses engage Article 2 ECHR and the obligation to conduct an effective investigation. The Government explain that certain parts of the Bill "are designed to discharge the obligation to conduct an effective investigation".[102] However, the draft Explanatory Notes do not explain why the Government is persuaded that the provisions of the Bill discharge that obligation effectively. We hope that a full explanation of the human rights impact of the proposals in the Coroners Bill will be provided to the Committee, including an explanation of those proposals which the Government considers enhance the United Kingdom's ability to meet the procedural requirements of Article 2 ECHR, and containing an explanation of the Government's reasons for its assessment.

Coroners' Investigations: Recommendations of the Coroner

The draft Bill makes provision similar to that already established under Rule 43 of the Coroners Rules 1984. Under Clause 12(2), where a coroner believes, as a result of an investigation, that action should be taken to prevent similar fatalities, the coroner may report the matter both to a person who has power to take such action and to the Chief Coroner. There is no power for the coroner to compel the person to take action or to report back as to what action, if any, has been taken. The Constitutional Affairs Committee, in their report, recommended that the Government take a bolder approach to the Coroners' preventative role in public health and safety matters (see paragraph 211). Liberty have submitted that the Coroner should be required to make recommendations at the end of every inquest and that these should be centrally recorded and monitored.[103] Article 2(1) ECHR requires the state to take appropriate steps to safeguard the lives of those within their jurisdiction. The Court will take into consideration the effectiveness of any preventative steps taken by the State in their consideration of the compatibility of any State acts or omissions in respect of a death which engages Article 2 ECHR.

2.  Has the Government any plans to enhance the powers of the Chief Coroner to act on recommendations made by coroners with a view to identifying patterns in deaths which require investigation and preventing similar fatalities, in light of the recommendations of the Constitutional Affairs Committee?

Coroners' Investigations: Evidence

For example, Clause 43(2) would give the Lord Chancellor a wide power to limit the power of the Coroner to call certain evidence or require the production of certain documents. Although the Explanatory Notes explain that this power would "only be exercised in a way that is compatible with ECHR obligations", the Committee has previously expressed their concern where issues which may raise significant human rights issues are left to secondary legislation. It is clear from the case law of the European Court of Human Rights that the effectiveness of an individual investigation for the purposes of Article 2 ECHR, where one is required, will be significantly affected by the scope of the evidence taken or heard, and any relevant procedural limitations.[104]

3.  What has persuaded the Government that it is appropriate to grant the Lord Chancellor a wide power to direct the Coroners' treatment of evidence?

4.  In what circumstances do the Government consider that this power could be exercised in a case engaging Article 2 ECHR, without unduly restricting effectiveness of the Coroner's investigation for the purposes of Article 2 ECHR?

Suspension of Coroners Inquests

Clause 22 provides that where certain inquests are suspended, it will be within the discretion of a senior Coroner to resume the inquest, if he thinks there is "sufficient reason" for doing so. Although the Explanatory Notes explain that "where the proceedings for which his investigation was suspended have not met the State's ECHR obligations, that would provide a good reason for resuming the inquest", Liberty are concerned that if an inquest is suspended when a criminal prosecution begins, there is a risk that inquests may not be resumed even where a criminal prosecution fails, or where the substance of a trial does not adequately meet Article 2 ECHR standards.[105]

5.  Has the Government considered how to ensure that Coroners will, in practice, be free to reopen suspended investigations in circumstances where a prosecution or other investigation has not met the UK's obligation to conduct an effective inquiry into a death?

a.  Has the Government considered Liberty's suggestion that there should be a presumption, on the face of the Bill, that where an investigation which triggers the suspension of an inquiry fails to satisfy the requirements of Article 2 ECHR (and fails to identify by what means and in what circumstances a person came by their death) that the inquest will automatically resume?

b.  Does the Government intend to provide guidance to Coroners which emphasises the role which Coroners will play in ensuring that the UK's obligations under Article 2 ECHR are met?

Clause 19 requires the Coroner to suspend an inquest where the Lord Chancellor informs him that the circumstances of an individual's death will be considered in the course of a public inquiry pursuant to the Inquiries Act 2005, unless there are "exceptional reasons" for not doing so. This provision mirrors amendments to the Coroners Act 1988 made to address concerns about overlapping inquiries, and to avoid any conflict or duplication with public inquiries.[106] The Explanatory Notes do not explain whether the Coroner would be able to refuse to suspend an investigation where it was his view that the Inquiries Act inquiry would not be adequate for the purposes of Article 2 ECHR, or whether the Coroner would have the power to reinstate his investigation where he thought that the scope of the inquiry conducted was not adequate to meet the need for a Convention compliant investigation. In their Report on the Inquiries Bill, the Committee concluded that there was a risk that an inquiry held under the Inquiries Act would not be sufficiently independent to satisfy the requirements of Article 2 ECHR. The Committee were particularly concerned that the power of the Minister to issue "restriction notices" which could limit the scope of an inquiry and the power of the Minister to withhold publication of inquiry reports in the "public interest" would limit the institutional independence and effectiveness of any inquiry.[107]

6.  Does the Government consider that a reasonable belief that the inquiry proposed by the Lord Chancellor under the Inquires Act 2005 was unlikely to meet the requirements of Article 2 ECHR, because the scope of that inquiry was restricted, or because there was a risk that the inquiry would not be considered independent, would be an "exceptional reason" which would justify a refusal to suspend an investigation?

Clause 30(1) provides that the Coroner may issue directions prohibiting the publication of information gathered in the course of an investigation. Any Article 2 ECHR compliant investigation must have an adequate degree of transparency to ensure that it is open to public scrutiny to a degree sufficient to provide accountability in the circumstances of the case. The Government considers that "this power is justified, in that it seeks to strike a balance between rights under Articles 8 and 10". Clause 41 confirms that, subject to Coroners Rules, inquests are to be held in public. The Explanatory Notes provide that "the Coroners Rules…will set out the grounds on which the public may be excluded from inquests" (see Clause 67).

7.  What has persuaded the Government that the discretion afforded to the Coroner under Clause 30(1), and to the Lord Chancellor under Clause 67, is adequately defined to ensure that public scrutiny is not circumscribed arbitrarily or inappropriately and that the provisions in the Bill which permit the restricted publication of information relating to an investigation are compatible with Article 2 ECHR?

(2) Legal assistance for bereaved families

Next of kin must be involved in any Convention compliant death investigation to the extent "necessary to safeguard [their] legitimate interest". This may include a positive obligation on the State to provide legal aid.[108] The Luce Report ("Death Certification in England, Wales and Northern Ireland: The Report of a Fundamental Review 2003) recommended that funding for legal representation should be available to families in all Coroners' cases where a public authority is also legally represented. In our predecessor Committee's Report on Deaths in Custody, it recommended that, at least in relation to deaths in custody, funding should be made available to all next of kin participating in an investigation into the death of their family member.[109] At present, families can apply for funding based on significant public interest. However, the Committee has previously heard evidence that many families involved in cases involving deaths in custody have had to fund their own involvement in inquests.[110]

8.  What has persuaded the Government that the current provision for legal funding for bereaved families is adequate to ensure that their participation in Coroners' investigations is effective for the purposes of the procedural requirements of Article 2 ECHR?

(3) Reporting Restrictions

The Committee is considering whether the reporting restrictions which may be imposed by the Coroner pursuant to Clause 30 strike an appropriate balance between the rights of the deceased person's family under Article 8 ECHR and the rights of the press under Article 10 ECHR. This is a new power. The draft Explanatory Notes explain that the department considers that this power is justified, "in that it seeks to strike a balance between rights under Articles 8 and 10".

9.  What has persuaded the Government that the power to impose reporting restrictions provided by the Bill is proportionate to the need to protect bereaved families' right to respect for their private life?

10.  Will members of the press be considered "interested persons" for the purposes of asking the senior coroner to vary a direction imposing reporting restrictions, or bringing an appeal against such a direction?

(4) Powers of Search and Seizure

The Committee is considering whether the powers of search and seizure granted to Coroners by the Bill contain adequate safeguards for the protection of individual rights under Articles 6 and 8 ECHR (Clauses 50 - 51). These are relatively broad powers. They will extend to all premises, including residential premises. It appears that there are a number of safeguards which generally accompany intrusive rights of search and seizure in the United Kingdom which are not, as yet, reflected on the face of the Bill. For example a) the draft Bill grants powers of search and seizure to the Senior Coroner, as an entity, without any guarantee as to the identity of the individual conducting the search. It is important that any search is in fact conducted only by an authorised person with an adequate degree of training to exercise this intrusive power; b) it provides no procedure for dealing with the treatment or return of seized materials, and c) it provides no means of redress for those aggrieved by the conduct of any search.

11. Have the Government considered whether there are adequate safeguards on the
face of the draft Bill to ensure that any interference with the right to respect for
the home and private life and the right to the peaceful enjoyment of possessions
is proportionate? Have the Government considered incorporating safeguards,
similar to those set out in Part II of the Police and Criminal Evidence Act 1984,
and if not, why not?

Letter to the Chair of the Committee from Rt Hon Harriet Harman QC MP, dated 22 January 2007

Thank you for your letter of 19 December about the human rights compatibility of the draft Coroners Bill.

The main purpose of the Bill is to improve the way that the coroners system serves the public interest and meets bereaved families' concerns. The Bill will give families involved in the inquest process a clear legal standing in the system. For the first time, families will have rights, through the introduction of a charter for bereaved people, laying out the level of service in relation to information and consultation that families can expect, and through a new appeals system, enabling then to challenge a coroner's decision.

A second important aim is to create a national structure for coroners' work. For the first time there will be a Chief Coroner who will provide national leadership for coroners, as the Lord Chief Justice does for judges. This will be supported by national standards, a coronial advisory council, a proper inspection system and national training for coroners and their officers.

And the third main aim of reform is to strengthen coroners' work and make the appointment system more transparent. The Bill will provide coroners with new powers and procedures to conduct more effective investigations, and will establish a proper appointments system, approved by the Judicial Appointments Commission.

You have sought additional information about certain aspects of the Bill in relation to human rights compatibility. I have set out below your questions together with my response for ease of reference.

1. We would be grateful if you could update us on the Government's progress on the draft Bill and whether it is likely that the Government will continue with its proposed reforms in this Parliamentary session. If not, why not?

The Coroners Bill is not part of the main programme for this session, but this gives us additional time for further detailed work, including more consultation with stakeholders, so that the legislation can be improved. We will also explore, in consultation with those who deliver and fund the service and those who represent people with experience of it, whether there are other changes that can be made to improve the system in advance of and to complement legislation. The comments of the Joint Committee on Human Rights are therefore particularly welcome and timely.


Coroners' Investigations: Recommendations of the Coroner

2. Has the Government any plans to enhance the powers of the Chief Coroner to act on recommendations made by coroners with a view to identifying patterns in deaths which require investigation and preventing similar fatalities, in the light of the recommendations of the Constitutional Affairs Committee?

Clause 12(2) of the draft Bill gives the coroner power to report his findings to a person who may have power to take action to prevent the recurrence of fatalities similar to that which is being investigated, with a view to preventing similar deaths in the future.

Following the consultation process, I am considering amending the Bill to make it a requirement for the Chief Coroner to include - in his or her annual report to the Lord Chancellor (who is, in turn, required to lay it before Parliament) - a summary of the reports made by coroners and responses to such reports. I am also considering making it a requirement for the person to whom the report is made to formally respond. More details on procedures to support these new arrangements will be dealt with in secondary legislation.

Coroners' Investigations: Evidence

3. What has persuaded the Government that it is appropriate to grant the Lord Chancellor a wide power to direct the Coroners' treatment of evidence?

4. In what circumstances do the Government consider that this power could be exercised in a case engaging Article 2 ECHR, without unduly restricting effectiveness of the Coroners' investigation for the purposes of Article 2 ECHR?

The Bill provides coroners with a power to compel a person to attend to give evidence (clause 42). Powers to compel evidence are a necessary corollary of the state's duty to discharge obligations under Article 2. Lack of power to compel witnesses may diminish the effectiveness of an inquiry[111]. A person may argue that he may not be compelled to give evidence where it would not be reasonable (clause 42(4)). A further procedural safeguard enables a person to argue that he should not be required to give, produce or provide evidence if doing so will tend to incriminate him, if the evidence is covered by legal professional privilege or on the grounds of public interest immunity (clause 43).

The Government is currently reviewing whether these provisions are a sufficient safeguard for witnesses and whether the provision in clause 43(2) is necessary. If further provision is considered to be necessary it is intended that the Bill will list the evidence or documents to which section 42 does not apply and that the Lord Chancellor's power will be limited to altering this list by subordinate legislation, which will follow the affirmative resolution procedure.

Suspension of Coroners Inquests

5. Has the Government considered how to ensure that Coroners will, in practice be free to reopen suspended investigations in circumstances where a prosecution or other investigation has not met the UK's obligation to conduct an effective inquiry into a death?

a. Has the Government considered Liberty's suggestion that there should be a presumption, on the face of the Bill, that where an investigation which triggers the suspension of an inquiry fails to satisfy the requirements of Article 2 ECHR(and fails to identify by what means and in what circumstances a person came by their death) that the inquest will automatically resume?

b. Does the Government intend to provide guidance to Coroners which emphasises the role which Coroners will play in ensuring that the UK's obligations under Article 2 ECHR are met?

6. Does the Government consider that a reasonable belief that the inquiry proposed by the Lord Chancellor under the Inquires Act 2005 was unlikely to meet the requirements of Article 2 ECHR, because the scope of that inquiry was restricted, or because there was a risk that the inquiry would not be considered independent, would be an "exceptional reason" which would justify a refusal to suspend an investigation?

The Bill requires the coroner to suspend an investigation in the event that certain criminal proceedings may be brought, have been brought, or in the event of an inquiry under the Inquiries Act 2005 (clauses 17 to 19). A coroner who suspends an investigation on the ground that criminal proceedings might be brought (clause 17) is required to resume the investigation once the period of suspension has ended. A coroner who suspends an investigation on the ground that criminal proceedings have been brought (clause 18) or that an inquiry is being held (clause 19) has power to resume the investigation once the proceedings or inquiry is complete if he or she thinks there is sufficient reason for doing so. This gives him the power to resume an investigation, for example, where he or she thinks that the State's obligations have not been met under the ECHR.

I consider that the provision as currently worded is sufficient to ensure ECHR compliance. Since a coroner is a public authority and, whether or not the Bill requires him or her to, at the end of the criminal proceedings or inquiry, as the case may be, he or she will be required to assess whether those proceedings met the Article 2 obligation and, if not, he or she will be required to resume the inquest in any event, unless the obligation will be met in any other way.

As to whether the government will issue guidance to coroners emphasising the role which they should carry out in ensuring the obligations of Article 2 are met, this will be a responsibility of the proposed new Chief Coroner as part of his or her leadership role, which will include a requirement to ensure consistency across coroner areas.

Finally, on your question about inquiries under the Inquiries Act, the Government does consider that a reasonable belief that the inquiry proposed by the Lord Chancellor would not meet Article 2 requirements because of its scope, would be an exceptional reason which would justify a coroner's refusal to suspend an investigation.

7. What has persuaded the Government that the discretion afforded to the Coroner under Clause 30(1), and to the Lord Chancellor under Clause 67, is adequately defined to ensure that the public scrutiny is not circumscribed arbitrarily or inappropriately and that the provisions in the Bill, which permit the restricted publication of the Information relating to an investigation are compatible with Article 2 ECHR?

Clause 30 provides a senior coroner with the power to give a direction prohibiting publication of the name of the deceased and any interested person within clause 76(2)(a) and any information which could lead to the identification of the deceased. Any publication in contravention of a direction will constitute a contempt of court. When considering whether to give such a direction, a coroner will be bound by existing case law as to the circumstances in which it is appropriate to allow a name to be withheld. In addition and so as to ensure the public scrutiny of an investigation is not compromised, I am considering amending this clause so as to limit the discretion of a coroner to cases where he or she considers that exceptional circumstances apply to justify the imposition of reporting restrictions. It may also be amended so that a coroner will no longer be able to make a direction under clause 30 of his own motion but only where an application is made by an interested party. In his or her function of providing leadership to coroners, the Chief Coroner will have power to issue guidance to coroners setting out the type of exceptional circumstances that would justify the coroner exercising his discretion.

In the Government's view, exceptional circumstances are only likely to exist if there is a reason for not publicising the name and the case does not raise issues of public interest or matters of public protection or if there is no third party or organisation implicated in or connected to the death. In addition, the Chief Coroner will monitor use of this discretionary power, and he or she will be required to report to the Lord Chancellor the number and outcome of applications under this provision, including the number and outcome of any appeals.

Clause 41 is likely to be amended so that the cases where an inquest may be held in private will be set out on the face of the Bill. The only circumstance when this will be permitted is if there are national security issues.

Legal Assistance for Bereaved Families

8. What has persuaded the Government that the current provision for legal funding for bereaved families is adequate to ensure that their participation in Coroners' investigations is effective for the purposes of the procedural requirements of Article 2 ECHR?

In some cases, Article 2 ECHR places a substantive investigative obligation on the State. In any case that requires an inquest, it is necessary to consider whether the investigative duty under Article 2 is triggered on the facts of the case and if there is such a duty, whether what has become known as the "Jordan fifth" criteria applies. The Jordan criteria derives from the judgement in the case of Jordan (Hugh Jordan v. the United Kingdom - 24746/94 [2001J ECHR 327 (4 May 2001)), and is that "the next-of- kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests" (para. 109). If that criteria does apply, a further issue arises, namely whether or not this requires the grant of public legal funding for the coroner's inquest.

The courts have also made clear that that in the vast majority of inquests the coroner can conduct an effective investigation, with the family's participation, without the family of the deceased needing to be legally represented. For example, in the case of Khan, the court found that:

"...the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented..." (para 74., Khan v Secretary of State for Health [2003] EWCA Civ 1129)

This view was subsequently reiterated in the case of Challender where the court considered that that:

"I see nothing in the cases post-dating Khan to support a broader approach than that expressed in Khan itself when it was said that in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself and that only in exceptional cases will article 2 require legal representation for the family of the deceased" (p.71, R (Challender) v Legal Services Commission [2004] EWHC 925 (Admin)

Normally, the holding of the inquest will be sufficient to discharge the State's Article 2 obligations to conduct an effective investigation into the death. For those exceptional circumstances, funding may be required. In such cases, the Lord Chancellor or his Ministers can grant funding, where it requested by the LSC, under the powers granted by section 6(8)(b) of the Access to Justice Act 1999.

In addition to this, Legal Help is available for an inquest, (subject to financial eligibility and the usual test sets out in the LSC funding code). Legal Help would fund all the preparatory work associated with the inquest, which may include preparing written submissions to the Coroner. Legal Help will also fund someone to attend the inquest as a 'Mackenzie Friend', to offer informal advice in Court, providing the Coroner gives permission.

Other than in exceptional cases, funding for representation at an inquest is not usually available because an inquest is a relatively informal inquisitorial process, rather than an adversarial one. The role of the coroner is to question witnesses and to actively elicit explanations as to how the deceased came by his death. An inquest is not a trial. There are no defendants, only interested parties, and witnesses are not expected to present legal arguments. I am, however, concerned about coroners' investigations where the substantive investigative duty under Article 2 is not triggered and when public authorities choose to be legally represented at inquests, where a bereaved family member is not entitled to public funding for representation. This is something I am considering further.

Reporting Restrictions

9. What has persuaded the Government that the power to impose reporting restrictions provided by the Bill is proportionate to the need to protect bereaved families' right to respect for their private life?

10. Will members of the press be considered "interested persons" for the purposes of asking the senior coroner to vary a direction imposing reporting restrictions, or bringing an appeal against such a direction?

Draft clause 30 polarised opinion in the responses to our public consultation. Some strong views were received from the media, who felt that the proposal was against the principle of open justice and would not be in the public interest. On the other hand, many voluntary groups were supportive of the proposal and felt it was an important step towards protecting families in sensitive cases where there is no justification for names being made public.

The exercise of this power may engage Article 8 and Article 10. The decision to give a direction will involve a balancing of these rights. There is no automatic precedence as between these Articles and both are subject to qualification where, among other considerations, the rights of others are engaged. The coroners will follow the approach of the House of Lords in Re S (a child[112]) that the foundation of the inherent jurisdiction to impose reporting restrictions now derives from Convention rights.

As mentioned at paragraph 7, I am considering a number of amendments to this clause to ensure compliance with the ECHR.

It is intended that the amendments will allay the fears, expressed by the media, that there will be a 'widespread ban' on the reporting of inquests and investigations, yet still provide the necessary protection for vulnerable families in cases where there is no public interest in the publication of information that could lead to the identification of those involved. In clause 76(2), the media will be included as an 'interested person' who may appeal a direction on reporting restrictions.

Powers of search and seizure

11. Have the Government considered whether there are adequate safeguards on the face of the draft Bill to ensure that any interference with the right to respect for the home and private life and the right to the peaceful enjoyment of possessions is proportionate? Have the Government considered incorporating safeguards, similar to those set out in Part II of the Police and Criminal Evidence Act 1984, and if not, why not?

Clause 50 enables a coroner to enter and search premises and to seize property or inspect and take copies of documents. Clause 51 enables property seized to be retained. Reasonable force may be used in the exercise of the power.

The powers of search and retention of property may engage Article 8 rights. However, I consider that any interference will be justified in accordance with Article 8(2) as any search is likely to be in the interests of either public safety, prevention of crime or for the protection of the rights and freedoms of others. The inability to acquire evidence and material may inhibit the coroner's duty to conduct an effective investigation.

I consider that the powers are proportionate to the achievement of a legitimate aim. The power to enter and search may only be used if the Chief Coroner has given his or her authorisation (clause 50(2)). Furthermore, authorisation will only be given if the coroner has reasonable cause to suspect that there may be anything on the premises which relates to a matter which is relevant to the investigation (clause 50(3)); and either-

it is not practicable to communicate with a person entitled to grant permission to enter and search the premises,


    permission to enter and search the premises has been refused, or

    the coroner has reason to believe that such permission would be refused if

    requested (clause 50(4)).

The power to seize anything on the premises and inspect and take copies of documents may only be used if the coroner believes that it may assist the investigation and, in the case of seizure, only if it is necessary to prevent the item being concealed, lost, altered or destroyed (clause 51 (1)]).

The power to seize articles may engage rights to peaceful enjoyment of possessions under Article 1, Protocol 1. However the Department considers that interference with this right is justified in the public interest and is proportionate. Any items seized will only be retained for as long as is necessary in all the circumstances (clause 51 (4)). Furthermore, by virtue of clause 66(2)(f) and (g), the Lord Chancellor has power to make regulations which may contain provision, in relation to authorisations under clause 50(2), which is equivalent to that made by any provision of sections 15 and 16 of the Police and Criminal Evidence Act 1984 and which may contain provision, in relation to the power of seizure of property, which is equivalent to that made by any provision in section 21 of the Police and Criminal Evidence Act 1984. It is intended that the regulations will require a coroner to provide a record of items seized to a person who is the occupier of premises from which the item was seized or who had control of the item before it was seized. It is also intended that such a person will be allowed access to the item for the purpose of photographing it.

A coroner's decision to seize and retain an item will be capable of challenge by way of appeal to the Chief Coroner. Article 6 rights may be engaged in this context, in which case the appeal proceedings which the Bill puts in place will be capable of meeting its requirements.

Letter from the Chair of the Committee to Rt Hon Beverley Hughes MP, Minister of State for Children, Young People and Families, dated 11 November 2008

The use of restraint in juvenile secure settings

I refer to our telephone conversation on 29 October 2008 in which you notified me of David Hanson's Written Ministerial Statement the same day. You told me, and the Statement confirms, that the Government intends to delay publication of the report of the independent review into the use of restraint and the Government's response to it until 15 December.

Thank you for keeping me informed of the Government's plans in this area. As you are aware, the use of restraint on children in detention is an issue of very serious concern to my Committee. We are concerned at the significant time which has elapsed since the inquest into the death of Adam Rickwood and the announcement of the setting up of the independent review into the use of restraint in secure settings, as well as the further postponement of publication of the review and the Government's response. We trust that there will be no further delay in the Government's timetable on this important human rights issue.

In our Report on the Use of Restraint in Secure Training Centres, we recommended that the Government report to Parliament on a six monthly basis on the number of restraint incidents, broken down by the specific purposes for which restraint was necessary (Recommendation 14). The Government accepted this recommendation and proposed to include this information in the quarterly statistics it placed in the Libraries of both Houses (p. 12 Government Response). We note that the most recent statistics were deposited on 11 August 2008 and relate to the period January to March 2008 (HC Dep 2008-2167). Disappointingly, these statistics do not provide a breakdown of the purpose for which restraint was used. Given the Government's commitment to do so, please could you ensure that future statistics are broken down in this way.

Letter to the Chair of the Committee from David Hanson MP, Minister of State for the Home Office and Rt Hon Beverley Hughes MP, Minister of State for Children, Young People and Families, dated 17 February 2009

USE OF RESTRAINT IN JUVENILE SECURE SETTINGS

Thank you for your letter of 11 November about the independent Review of Restraint. We are sorry that you have not had an earlier reply.

You were concerned that the Government should meet its target of publishing the Review and our Response to it by 15 December. I am very pleased that we were able to do so.

You also referred to the quarterly statistics on use of restraint in secure training centres for the period January to March 2008, which were placed in the Libraries on 11 August. You commented on the absence of a breakdown of the reasons for restraint being used.

Letter from the Chair of the Committee to Rt Hon Gordon Brown MP, Prime Minister, dated 11 December 2008

Adoption of the Right of Individual Petition to the UN Human Rights Committee

I am writing to request that you consider ratifying the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), to mark the 60th anniversary of the Universal Declaration of Human Rights.

The International Covenant on Civil and Political Rights (ICCPR) came into force on 23 March 1976. Following the Universal Declaration on Human Rights, this was the first international legal instrument guaranteeing the civil and political rights of individuals across the globe. It has been ratified by 163 States worldwide. The United Kingdom signed the Covenant in 1968 and ratified in May 1976.

The ICCPR is accompanied by an Optional Protocol which provides individuals with a right to petition the international monitoring body, the UN Human Rights Committee, in respect of individual complaints. In 2005, our predecessor Committee called on the Government to explain why the UK had not ratified this and other Optional Protocols which would provide people in the UK with the right to petition international human rights monitoring bodies.[113]

The Minister for Human Rights, Michael Wills MP, has recently published the outcome of the Government's review of its experimental ratification of the similar Optional Protocol to the UN Convention on the Elimination of Discrimination against Women (UNCEDAW). The Minister explains the Government's view that the review has not "provided sufficient empirical evidence to decide either way on the value of other individual complaint mechanisms". We understand that the Government will now consider whether to accept the right of individual petition to the international human rights monitoring bodies on a "case-by-case" basis.

In July, the UN Human Rights Committee called on the UK to consider accession to the Optional Protocol as "a priority".[114] We suggest that it would be appropriate to mark the 60th Anniversary of the Universal Declaration on Human Rights by announcing a review of the merits of ratification of the Optional Protocol to the ICCPR. This would help enhance the protection of human rights in the UK, follow up the recent review of the UK's experience with the Optional Protocol to the UNCEDAW, and be an appropriate response to the concerns of the UN Human Rights Committee. We recognise that the Government has taken a number of positive steps with respect to international human rights treaties in recent years, including the welcome commitment to ratify the UN Convention on the Rights of Persons with Disabilities and the Council of Europe Convention on Human Trafficking. We consider that signing and ratifying the Optional Protocol to the ICCPR would also prove beneficial and we would be grateful for your commitment to initiate a review of this matter.

Letter to the Chair of the Committee from Rt Hon Gordon Brown MP, Prime Minister, to the Chairman regarding the ICCPR, dated 20 January 2009

Thank you for your letter about the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which provides a mechanism of individual petition to the United Nations (UN) Human Rights Committee.

The Government reviewed its position on individual petition under various treaties in 2004.

As we noted at the time, the United Kingdom seeks to comply with its obligations under the UN treaties, including the ICCPR, and we have effective protections in our law to do so. In particular, of course, the Human Rights Act 1998 gives further effect to rights drawn from the European Convention on Human Rights, most of which are civil and political rights; people may also apply to the European Court of Human Rights in Strasbourg in respect of these same rights.

Successive Governments have not seen a compelling need to accept individual petition to the UN. The practical value to the individual citizen is unclear. Unlike the Strasbourg Court, the UN committees that receive individual petitions are not courts and cannot award damages, nor can they produce a legal ruling on the meaning of the law.

However, as a result of the 2004 review, the Government decided to accede to the Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

As you note in your letter, the Government is also considering acceding to the Optional Protocol to the new UN Convention on the Rights of Persons with Disabilities; I am pleased that you welcome the Government's positive attitude towards this and other human rights commitments. Between that and the continued operation of the CEDAW Optional Protocol, we hope to gain more evidence as to the merits of individual petition mechanisms. However at present there is no new evidence to suggest a review of our position.

Letter from the Chair of the Committee to Mr S. Wiggs, Winckworth Sherwood dated 17 December 2008

Broads Authority Bill

I am writing to you in connection with clause 32 and Schedule 2 of the above Bill.

I note that the "Note in support of Human Rights Act declaration" submitted with the Bill, dated 21 November 2006, does not address the question of whether the Bill's provision for appeals against decisions concerning permits are compatible with the right of access to an independent and impartial tribunal in the determination of one's civil rights in Article 6(1) of the European Convention on Human Rights.

I would be grateful if you could provide a reasoned explanation of your view as to why that part of the Bill (as proposed to be amended in your letter dated 5 September 2008 to Counsel to the Chairman of Committees) is compatible with Article 6(1), having regard in particular to the decision of the European Court of Human Rights in Tsfayo v UK [2007] BLGR 1, and to the fact that decisions concerning permits may turn on purely factual questions.

Letter to the Chair of the Committee from Mr S. Wiggs, Winckworth Sherwood, dated 5 January 2009

Broads Authority Bill

I refer to your letter of 17th December which I acknowledged on 18th December.

My clients have obtained advice on your inquiry from Mr Richard Drabble QC who advised in the Human Rights Act declaration when the Bill was deposited in Parliament in November 2006. As it happens Mr Drabble appeared for Mrs Tsfayo in the case of Tsfayo v UK to which you referred in your letter of 17th December. A copy of Mr Drabble's advice is attached. As you will see he is of the view that clause 32 and Schedule 2 to the Bill (as proposed to be amended) are compatible with article 6 of the European Convention of Human Rights.

The Broads Authority have asked me to confirm that, if the Bill becomes law, they will exercise their functions in relation to the Water Skiing and Wake Boarding Appeals Panel in accordance with Mr Drabble's advice.

I hope that this letter and its enclosure provide you with a sufficient response to your letter of 17th December, however do please let me know if you require more information or wish to discuss the matter further.

Annex

RE: BROADS AUTHORITY BILL WATER SKIING AND WAKE BOARDING APPEALS PANELS COMPATIBILITY WITH ARTICLE 6

NOTE

1. This Note has been prepared to deal with the concem raised about the Appeals Panel proposed under paragraph lA of schedule 2 of the Broads Authority Bill. The concem is articulated in a letter dated 17th December 2008 from Andrew Dismore MP in his capacity as Chair of the Joint Committee on Human Rights. The concern is whether this provision is compatible with Article 6, given that the Appeals panel may decide issues of pure fact. The letter draws attention to the decision of Tsfayo v UK (in which, by chance, I appeared as advocate for Mrs Tsfayo).

2. The provisions of paragraph 1A of schedule 2 provide for a panel composed of two persons appointed by the authority; two persons appointed "by a body appearing to the Authority to represent water skiing and wake boarding interests"; and one person appointed by the authority's standards committee from amongst the members of that committee who are not members of the authority. I note at the outset that the form of the paragraph identifies the appointing body; it does not mandate the actual identity of the person who is appointed. Thus, although the paragraph allows the Authority to appoint members of the authority or officers of the authority it does not require this; and the legality of the use of the power to appoint someone with an improperly close connection to the dispute could itself be controlled by judicial review.

3. The JCHR letter refers specifically to Tsfayo. Tsfayo is one of a line of cases both in the ECHR and domestically in which the adequacy of access to a court through judicial review or appeals on a point of law has been considered. The cases include Bryan before both the Commission and the European Court; Alconbury and Begum in the House of Lords; Tsfayo itself; and post Tsfayo cases in the Court of Appeal, including Ali v Birmingham and R(Gilboy) v Liverpool Ct.'.

4. I am of the clear opinion, having regard to this line of authority, that the provisions of paragraph lA of Schedule 2 are compatible with article 6 given the ability of an appellant to judicially review the Panel. Although the JCHR letter concentrates on Tsfayo, the most immediately relevant authorities are the earlier authorities of Bryan and Alconbury, in which the position of planning inspectors in article 6 terms is considered.

5. There are two issues which need to be considered under article 6. A court, to be adequate for article 6 purposes, must be both "impartial" and "independent". A planning inspector is not independent of the executive; and accordingly cannot itself be regarded as an article 6 court. However, s/he does possess a considerable degree of impartiality. For the purposes of fact finding, he can be regarded as "independent" of the parties - see in particular the speech of Lord Hoffmann at paragraphs 103 to 117, especially the citation from Sir Nicholas Bratza in the Commission proceedings in Bryan in paragraph 108. Lord Hoffmann paraphrased this in paragraph 110 by observing that the Inspector was not independent when deciding policy, but "on the other hand, in deciding questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact. ",

6. Applying that dicta to the present structure, it is true that the Appeals Panel would not be an "expert tribunal'[115], but there is no reason at all why the powers of appointment cannot be exercised so as to appoint people with no unacceptable relationship to the dispute. Given the acceptability of the role of higher managers in Begum, recently confirmed by the Court of Appeal in Ali, I think it highly likely that the courts would accept the appointment of members of the authority or officers of the authority provided that they were not involved in the dispute in question; but it is not necessary to form a final view on this. The point for present purposes is that the provisions of the Bill are compatible with the Convention because they provide a wide power of appointment that can be exercised in an acceptable way; and that the exercise of the powers can be policed by the judicial review court.

7. The problem in Tsfayo was different and in some senses extreme. The members of the Housing Benefit Review Board were all members of the paying authority; they operated under a subsidy regime which could be characterised as encouraging a decision adverse to Ms Tsfayo; and they found against her on an issue of pure credibility. Their position is sharply different from the position of a planning inspector. Tsfayo can be seen as an example of a "biased" primary fact finder.

8. For the above reasons, I consider that the provisions of the Bill relating to the appeal panel are compatible with article 6.

Richard Drabble QC

Landmark Chambers

19th December 2008.

Letter from the Chair of the Committee to Frank Doran MP, Chairman of the Administration Committee, dated 3 March 2009

Access to Parliament and parliamentary business by people with disabilities

In the last session, the Joint Committee on Human Rights undertook a broad ranging inquiry into the human rights of adults with learning disabilities. As part of that inquiry, I was keen, as Chair, to ensure that we engaged effectively with adults with learning disabilities during the inquiry. We took a number of steps to try to increase the accessibility of our inquiry. These included:

  • publishing our Call for Evidence in Easy Read;
  • taking advice from the British Institute for Learning Disabilities on how to make our oral evidence sessions more accessible for witnesses with learning disabilities;
  • extending our deadline for evidence in response to requests from adults with learning disabilities and their organisations, who explained that they may need additional time to consider the call for evidence and to work on a response with their supporters;
  • engaging a Specialist Adviser with wide experience of working with adults with learning disabilities; and
  • publishing an Easy Read summary of our Report, together with an audio version of that summary.

One of the main issues raised in our inquiry was the provision of information to adults with learning disabilities about public sector services. We were critical of the Government for not doing enough to make information available in accessible formats. This issue also affects other forms of disability.

As a result of our work, we are interested in Parliament's strategy to engage with people with disabilities and to ensure that our proceedings are accessible to them, using different formats and approaches to information provision, where necessary

We understand that the House has made a number of arrangements to provide access for those with disabilities which affect mobility. I have also met with representatives of the Commons Outreach team, which I understand has delivered a number of information sessions about parliamentary engagement to voluntary sector organisations, including those who work with adults with learning disabilities.  However, we are concerned that the House should have a clear policy and strategy for dealing with other access issues, including in respect of accessible parliamentary information and access to allow people with disabilities to follow and participate in the work of Parliament. A number of examples have arisen in our work, where it would be helpful to have clear guidance on House policy:

  • requests from deaf visitors for a palantypist or British Sign Language (BSL) translator to be provided at public evidence sessions of Committees;
  • questions about accessing Hansard debates and Committee materials in accessible formats, including Braille, audio, BSL, and Easy Read; and
  • queries over accessibility of visitor and other facilities, including the provision of parliamentary materials in accessible formats including Braille, audio, BSL and Easy Read in both electronic and hard-copy forms.

I would be grateful if you could consider whether it would be appropriate for your Committee to discuss this issue, with a view to scrutinising House policy on this issue and ensuring that any work in this area is more widely disseminated to Members and to the organisations which assist and advise disabled people. I, and the staff of my Committee, would be happy to provide further information about the Committee's recommendations to Government in this area if that would be helpful.

I am copying this to Lord Renton of Mount Harry, the Chairman of the House of Lords Information Committee, and plan to provide further information to that Committee as part of its forthcoming inquiry into engaging with the public. I am also copying this to the Speaker, the Leader of the House of Commons and the Clerk of the House. I look forward to receiving your response.

Letter to the Chair of the Committee from Frank Doran MP, Chairman of the Administration Committee

Access to Parliament and parliamentary business by people with disabilities

Thank you for your letter on this subject, which I have circulated to members of my Committee. I share your concerns and agree that it would be useful to have clear guidance from the appropriate House departments on policy in the areas you mention. With this in mind we discussed your letter with the Director General of Facilities at our last meeting. We have requested a report from him, together with the Office of the Chief Executive.

I will be in touch again when the Committee has considered the report.

Letter to the Chair of the Committee from the British Humanist Association, dated 3 March 2009

I would like to draw to the JCHR's attention to the British Humanist Association's submission to the Public Administration Select Committee, on the 2011 Census question on religion (enclosed).

We have a number of equalities and human rights concerns regarding the proposed question on religion for the 2011 Census ("What is your religion?"). We believe that the question will lead to discrimination against the non-religious and, because it is not objectively justified, would be unlawful under both the Human Rights Act 1998 and the Equality Act 2006. Further, we suggest in our submission that a question that purports to measure religion or belief (as it must do following the Equality Act 2006 and section 6 of the HRA 1998) is not compliant with that provision if, by referring to religion in a way that may be perceived as cultural, it fails to treat lack of religion equally with religion.

We would also like to draw the JCHR's attention to the Equality and Human Rights Commission's (EHRC) position, which supports our view of the need for a different question. In written comments to the Office for National Statistics on the religion question (received by the BHA following our Freedom of Information request to the ONS; details in attached submission), EHRC state that:

'It has been suggested to us that the question 'what is your religion' is a leading question with an implicit expectation that you should have one, leading to an over-count of those having affiliation to a religion. We have had several stakeholder representations made to us expressing concerns in this area. Of particular note is the impact in the last Scottish census of having two questions that effectively distinguished between the religion you were brought up in and your current religion, giving much lower figures for current religious affiliation than the single question in England and Wales. We have not reached a firm view on whether two questions are necessary or whether one might address the issue by re-phrasing the proposed question. If there is to be a single question we believe it would be better to phrase the question 'Do you regard yourself as belonging to any particular religion?' and to make the options, No, non-religious; Yes, Christian; Yes, Buddhist etc. We hope that you will test such an option, given all the representations that have been made to you on this issue, such as at your Diversity Advisory Group, and would be happy to discuss ways in which we can contribute to further development of this question.'

We hope that the JCHR will decide to look further into the equalities and human rights issues that we highlight in our submission, and we are happy to supply the JCHR with any further information on this matter that it may need.

Letter from the Chair of the Committee to Rt Hon Jacqui Smith, Home Secretary, dated 12 May 2009

Excluding Promoters of Hate from the UK

I am writing to you in connection with your publication on 5 May of a list of "individuals banned from the UK for stirring up hatred".[116] In subsequent media interviews you explained that coming to the UK is a privilege and that the Government's exclusions policy makes clear that we have certain values and standards in the UK and that those who do not come up to those standards and values are not welcome here.[117]

I welcome in principle the Government's greater openness in providing information about the way in which you exercise in practice the wide power to exclude individuals from the UK on grounds of their unacceptable behaviour. However, your statement raises a number of questions about the Government's policy which I would be very grateful if you could answer.

My Committee scrutinised closely the "unacceptable behaviours policy" when it was introduced in August 2005 and expressed a number of concerns that the policy as drafted was so broadly worded as to give rise to a risk that the policy will be applied in practice in a way which is in breach of the right to freedom of expression in Article 10 ECHR.[118] The policy was introduced in the wake of the July 2005 terrorist attacks in London and the principal purpose was said to be to "make clear that those who would attempt to foment terrorism or provoke others to commit terrorist acts are not welcome in the UK."[119] The Government's response to the JCHR's concerns also stressed "the need to protect society from those who support the use of violence in the furtherance of a cause."[120]

In your Written Statement on 28 October 2008, however, announcing the outcome of your review of the Government's exclusions policy, you referred to the "policy on the exclusion from the UK of those individuals who encourage violence or hatred in support of their ideology" (emphasis added).[121] You also referred to implementing the proposals in your review in a way that has the greatest impact on those who seek to enter the UK "to stir up hatred" within our society. In the light of some of the individuals who have now been named as having been excluded in your recent announcement, my Committee is concerned that the Government's policy on "unacceptable behaviours", about which it was already concerned, is now being applied in practice in a way which poses an even greater threat to freedom of expression by including behaviour which stirs up community tensions, regardless of whether this gives rise to any risk of violence. I would therefore be grateful for your answers to the following questions.

Q1. Is it the Government's policy to exclude from the UK those who express what the Government considers to be extreme views that are in conflict with the UK's culture of tolerance?

Q2. Is stirring-up hatred now enough on its own to warrant exclusion from the UK, or must it be hatred which might lead to inter-community violence in the UK?

The author of the Government's unacceptable behaviour policy, former Home Secretary Charles Clarke MP, acknowledged in evidence to my Committee that there is a case for consistency between the precise wording used in the list of unacceptable behaviours and that used in the new offence of encouragement of terrorism in the Terrorism Act 2006 and gave his undertaking to my Committee that he would look at the relationship between the two wordings when the Terrorism Bill received Royal Assent.[122]

Q3. Can you confirm whether this review took place and, if so, what its outcome was? If the review has not taken place, will you now honour your predecessor's undertaking and consider whether it is justifiable for the wording of the unacceptable behaviours policy to be wider than the wording of the criminal offence of encouragement of terrorism, and explain your conclusion in writing?

Q4. In relation to the six individuals who have been excluded since 28 October 2008 but have not been named, can you explain, in summary form, in relation to each individual, why it is not in the public interest to disclose their names?

Q5. Do you accept that your power to exclude individuals from the UK on the basis that their presence here is not conducive to the public good is a power of sufficient significance that it ought to be the subject of regular reports to Parliament, just as you already report to Parliament quarterly on your use of the power to impose control orders on individuals?

Q6. Finally, I would be grateful if you could provide my Committee with a memorandum covering the following matters:

  • naming the 79 other individuals excluded from the UK on grounds of unacceptable behaviour between August 2005 and October 2008
  • indicating, in summary form, why they were considered to have engaged in unacceptable behaviour within the terms of the Government's policy
  • if it is not considered to be in the public interest to disclose the names of any of those 79, explaining the reasons why it is not in the public interest to disclose them
  • indicating whether all 101 individuals remain on a UK watch list to ensure that they are identified if they should seek to come to the UK
  • explaining precisely how you go about deciding whether an individual has displayed unacceptable behaviour warranting their exclusion, including the relevance of factors such as the frequency with which the relevant views have been expressed or the relevant actions occurred, and the time which has elapsed since then
  • explaining whether, and if so how, individuals are removed from watch lists once they are on them.

Letter to the Chair of the Committee from the Home Office, undated

Q1. Is it the Government's policy to exclude from the UK those who express what the Government considers to be extreme views that are in conflict with the UK's culture of tolerance?

When considering whether it is appropriate to exclude an individual from the UK I will take account of all the available evidence of their views and the impact, both in the UK and overseas, of those opinions. I would certainly consider excluding an individual who expressed views that seek to undermine the UK's culture of tolerance through the spread of hatred and advocacy of violence. This is clearly the intention of those aspects of the criteria that refer to fomenting / provoking serious criminal activity or the possibility of inter-community violence.

Q2. Is stirring-up hatred now enough on its own to warrant exclusion from the UK, or must it be hatred which might lead to inter-community violence in the UK?

The author of the Government's unacceptable behaviour policy, former Home Secretary Charles Clarke MP, acknowledged in evidence to my Committee that there is a case for consistency between the precise wording used in the list of unacceptable behaviours and that used in the new offence of encouragement of terrorism in the Terrorism Act 2006 and gave his undertaking to my Committee that he would look at the relationship between the two wordings when the Terrorism Bill received Royal Assent.

I consider that the deliberate spread of hatred and intolerance can all too easily lead to inter-community violence and therefore believe that those who are based overseas and might want to come here to stir up such hatred should be considered for exclusion. As I have made clear, being permitted to come to the UK is a privilege and I do not believe that it should be extended to those who wish to undermine our society.

Although there are links between some aspects of the policy of excluding those who engage in certain unacceptable behaviours from the UK and the offence of encouragement of terrorism, I do not accept that these two measures are the same. The offence of encouragement of terrorism applies, as you will appreciate, only in terrorism cases but exclusion from the UK on the basis of unacceptable behaviour is wider covering also those who foment/provoke serious criminal activity or who foster inter-community violence. These activities might not solely relate to terrorism but might relate to other forms of violence. The Committee will also appreciate that the offence of encouragement is a criminal matter whereas the exclusion from the UK is not. It is right that the scope of a criminal measure should be as narrowly defined as is possible in keeping with the objective of the measure. However, the aims of both the offence of encouragement of terrorism and exclusion on the basis of unacceptable behaviour are consistent in that they target those who seek to create an environment where terrorism is able to develop / spread.

Q3. Can you confirm whether this review took place and, if so, what its outcome was? If the review has not taken place, will you now honour your predecessor's undertaking and consider whether it is justifiable for the wording of the unacceptable behaviours policy to be wider than the wording of the criminal offence of encouragement of terrorism, and explain your conclusion in writing?

At the time that the Terrorism Act 2006 received Royal Assent consideration was given to whether the unacceptable behaviours criteria should be amended to bring them more closely in to line with the provisions of the offence of encouragement of terrorism. However, as I have already indicated, the two sets of provisions, although closely linked, are different. The criminal offence relates specifically to terrorism whereas the unacceptable behaviours criteria, which are only indicative of the types of activity that will lead to the consideration of exclusion, go wider. It is right that a criminal offence that can lead to the loss of liberty of a person should be drawn in a precise manner. Exclusion from the UK relates to people who are not normally resident here and only limits their ability to visit the UK, which is not a right. I consider that permission to come to this country is a privilege and so a different standard should apply.

Q4. In relation to the six individuals who have been excluded since 28 October 2008 but have not been named, can you explain, in summary form, in relation to each individual, why it is not in the public interest to disclose their names?

As I indicated in my statement on 28 October 2008 there will be a presumption towards disclosure of the details of those who are excluded from the UK on unacceptable behaviour grounds. However, I will not normally disclose details if it is not in the public interest to do so. When considering this I will normally take into account the following factors:

—  whether legal barriers, e.g. the Data Protection Act, prevent us from doing so;

—  whether to do so would place the individual or others at risk;

—  whether for operational reasons it is undesirable to do so;

—  whether disclosure would threaten British interests, either in the UK or overseas;

I considered the cases of the six individuals whose names I decided to withhold on the basis of the factors set out above.

Q5. Do you accept that your power to exclude individuals from the UK on the basis that their presence here is not conducive to the public good is a power of sufficient significance that it ought to be the subject of regular reports to Parliament, just as you already report to Parliament quarterly on your use of the power to impose control orders on individuals?

I do not agree that the power to impose a control order and the power to exclude an individual from the UK are comparable. I am not therefore convinced that there is justification in reporting on a regular basis to Parliament. Furthermore, there are avenues to challenge any decision to exclude through judicial review and any subsequent immigration decision might attract a right of appeal. I   have, in addition, introduced a process of quarterly publication of the numbers excluded on the basis of unacceptable behaviours, including naming the individuals concerned where I judge it is in the public interest to do so.

Q6. Finally, I would be grateful if you could provide my Committee with a memorandum covering the following matters:

·  naming the 79 other individuals excluded from the UK on grounds of unacceptable behaviour between August 2005 and October 2008;

Prior to November 2008 it was not our policy to disclose the details of those who had been excluded from the UK on the basis of unacceptable behaviours. As such, at the time of the decisions no assessment was made on whether it was in the public interest to disclose this information or not. I do not consider that, at this time, it would be a good use of resources across government departments, to review those cases to decide whether to disclose in each case. The policy on disclosure applies to new cases decided from 28th October 2008 onwards and I do not currently intend to apply that policy retrospectively to older cases.

·  indicating, in summary form, why they were considered to have engaged in unacceptable behaviour within the terms of the Government's policy;

The 79 individuals on the basis of unacceptable behaviours comprised 56 individuals excluded for fomenting, justifying or glorifying terrorist violence in furtherance of particular beliefs; 17 individuals excluded for fomenting other serious criminal activity or seeking to provoke others to serious criminal acts; and 6 individuals excluded for fostering hatred which might lead to inter-community violence in the UK.

·  if it is not considered to be in the public interest to disclose the names of any of those 79, explaining the reasons why it is not in the public interest to disclose them;

See above.

·  indicating whether all 101 individuals remain on a UK watch list to ensure that they are identified if they should seek to come to the UK;

All individuals who have been excluded from the UK are recorded on the relevant watch lists.

·  explaining precisely how you go about deciding whether an individual has displayed unacceptable behaviour warranting their exclusion, including the relevance of factors such as the frequency with which the relevant views have been expressed or the relevant actions occurred, and the time which has elapsed since then;

When deciding whether to exclude an individual from the UK I will take into account all relevant information that is available to me. This will include details of the statements that are considered to have come within the unacceptable behaviours criteria, views from interested departments such as the FCO and CLG, as well as any representations that have been received from individuals or organisations. I take account of the number and frequency of statements made but depending on the severity of what has been said do not consider that more than one statement is necessarily needed. I would take into account the time that has elapsed since the statements were made, but again, I do not consider that the passage of time since the statements necessarily makes exclusion unnecessary. In all of this I would also take into account any statements made by the individual to repudiate earlier views. I do consider the potential impact of statements, both here in the UK and overseas, as well as the impact on UK interests.

·  explaining whether, and if so how, individuals are removed from watch lists once they are on them.

It is our practice to review exclusion decisions after three years, and then every three years after that. If there has been a change of circumstance that would warrant lifting the exclusion then that would be done. It is also open to a person who is subject to exclusion to challenge that decision either by way of judicial review or an appeal if they have made an immigration application that has been refused and that decision attracts a statutory right of appeal.

If an individual is no longer excluded, and there are no other reasons for their inclusion on the watch list, then their details would be removed from the watch list.

Letter from the Chair of the Committee to Lord Myners CBE, Financial Services Secretary to the Treasury, dated 21 May 2009

Time limits for complaints against financial advisers

I am writing to you about a human rights issue which has been raised with members of my Committee, concerning the time limits within which complaints about financial advisers must be referred to the Financial Ombudsman Service.

Under the Financial Services Authority's procedural rules on dispute resolution (DISP 2.8.2), the Financial Services Ombudsman cannot consider a complaint if the complainant refers it to the Ombudsman more than six years after the event complained of, or more than three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint. As authorised by the relevant statutory provision (para. 13(2) of Schedule 17 to the Financial Services and Markets Act 2000), the FSA's rules also provide that the Financial Services Ombudsman may extend that time limit if, in the Ombudsman's view, the failure to comply with those time limits "was as a result of exceptional circumstances".

The FSA's rules do not provide, however, for a 15 year overriding time limit, or "longstop", equivalent to that which applies to court actions for damages for negligence not involving personal injuries (s. 14B Limitation Act 1980). I understand that the FSA recently consulted on whether or not to introduce such a 15 year longstop into its rules for the Ombudsman scheme but decided against it, despite (I am informed) the overwhelming majority of responses to the consultation being in favour.

Human rights law does not go so far as to prescribe the detail of time limit regimes. However, the European Court of Human Rights has acknowledged that limitation periods serve important purposes, including ensuring legal certainty and finality and protecting people from stale claims, and that where limitation periods apply differently to people who are in analogous situations the differential treatment requires some objective justification (Stubbings v UK (1997) 23 EHRR 213). My Committee has been told that financial advisers are the only occupational group to be denied the protection of a 15 year longstop. The right not to be discriminated against in the enjoyment of the right to peaceful enjoyment of possessions (Article 14 in conjunction with Article 1 Protocol 1 ECHR) is therefore potentially engaged by the FSA's current rules.

I would therefore be grateful if you could answer the following questions.

1. What are the FSA's reasons for not amending its rules to include a 15 year longstop on complaints against financial advisers, comparable to that which applies to court actions for negligence?

2. Do any other ombudsman schemes lack a 15 year longstop on complaints, and if so which?

3. If financial advisers are treated differently from other professions in this respect, please explain the justification for the difference of treatment.

Letter to the Chair of the Committee from Lord Myners CBE, Financial Secretary to the Treasury, dated 4 June 2009

Time Limits For Complaints Against Financial Advisers

Thank you for your letter of 21 May 2009.

As you know, the FSA is responsible for rules covering the day-to-day operations of the Financial Ombudsman Service, including time limits for referring cases to the FOS. The Limitation Act 1980 does not apply to the FOS, a point that was discussed and considered when the Financial Services and Markets Act 2000 was being debated by Parliament.

I understand that the FOS scheme rules were consulted on extensively before they came into force on 1 December 2001.

The FSA considered the case for the introduction of a 'long-stop' time limit in the context of the Retail Distribution Review. According to Feedback Statement (FS08/6)[123], responses from the industry - particularly from the IFA community - focused on the 'fairness' argument. However, other responses, and this included responses from firms rather than just consumers, highlighted the possible consumer detriment and reputational damage that a 'long-stop' could cause. In light of the responses to the review, the FSA did not consider there to be a sufficiently strong case that introducing a 'Iongstop' would bring-additional benefits to either consumers or firms and therefore decided not consult further on this.

The Treasury does not have full details of all other ombudsman schemes to determine whether meaningful comparisons can be made. However, to give one example, I understand that the Legal Services Ombudsman also has discretion to extend its usual three-month time limit in exceptional circumstances, such discretion not being subject to a pre-determined 'Iongstop'.

Letter to the Clerk of the Committee from Mr A. Lakey, Highclere Financial Services, dated 22 June 2009

Time limits for complaints against Financial Advisers

Thank you for providing a copy of Lord Myners response to Mr Dismore's letter.

As I am sure you are aware, the response is very vague and fails to answer any of the questions posed.

He makes a number of points, the first regarding Parliament debating the Financial Services and markets Act 2000. I have undertaken extensive research of Hansard and have been unable to find any reference to a longstop during the various debates in both Houses. His assertion is therefore incorrect.

Secondly, he argues that there was "extensive consultation" on FOS scheme rules prior to the eventual implementation. Whilst there was a consultation at no point was the removal of the 15 year longstop mentioned. Again it would appear that obfuscation is the prime tool at his disposal.

The FSA Feedback Statement FS/08/6 in respect of their Discussion Paper DP/07/1 was published in November 2009. the attaching pages have been printed from this document and highlight the industry support for the return of a protection that has been removed illegally in defiance of Statute.

Finally, Lord Myners dissembles regarding other ombudsman bodies. He suggests that the Legal Services Ombudsman has discretion to extend its usual three-month time limit in exceptional circumstances.

Rationality is stretched at this point because the Legal Services Ombudsman does not deal with complaints from the public against legal practitioners. It is only able to investigate the complaint-handling undertaken by one of the six legal professional bodies.

In turn, these bodies do not investigate complaints in respect of negligence; their remit is solely with regard to the service and administrative capability of the body being complained about.

Additionally, whilst the Legal services Ombudsman is able to extend the "usual three-month time limit in exceptional circumstances" the FOS is anything but exceptional - it ignores the 15 year longstop in each and every instance.

I also refer to the following extracts from Hansard, specifically the minutes of the Standing Committee A, 29th Sitting Part II. Miss Melanie Johnson MP stated; "The schedule provides in paragraph 11 for the scheme operator and the ombudsman to have statutory immunity in damages for anything done or not done in the discharge of their statutory functions under the compulsory jurisdiction, except when that is done in bad faith or is unlawful under section 6(1) of the Human Rights Act 1998."

On June 5 2000 the House of Commons debated the House of Lords amendments and Stephen Timms MP, in response to a point raised by Howard Flight, commented, "The standard limitation period is, of course, six years, although it can vary according to the type of case and according to judicial discretion. If a lengthy complaint was before the ombudsman and a statute bar appeared on the horizon, it would be up to the consumer to institute protective court proceedings to ensure that the limitation period did not run out".

As previously advised, the business of providing financial advice carries no greater long-term potential for detriment than the medical profession, surveyors, builders, architects, legal practitioners or politicians. It is therefore incumbent on a free society to ensure that advisers human rights enjoy a parity with those of other professions.

The FSA cannot override statute yet, but by using its powers to design the rules under which FOS operates, it is making new law to the disadvantage of the adviser community.

Letter from the Clerk of the Committee to Mr A. Lakey, Highclere Financial Services, dated 27 July 2009

We spoke last week and I am sorry not to have been able to write to you sooner. I have discussed the issue you raised about the longstop for cases raised with the financial ombudsman with the Committee's Legal Adviser, in the light of the Committee's correspondence with Lord Myners and the paper we asked the House of Commons Library to prepare about other ombudsmen schemes.

The Legal Adviser's view is that the issue you raise is not a sufficiently significant one, in human rights terms, for the Committee to pursue. Firstly, there does not appear to be any evidence that financial advisers are any less favourably treated than other professionals who are the subject of ombudsmen schemes. The regime for the legal services ombudsman, for example, is the same, with a short time limit for the bringing of complaints but a discretion to extend in the circumstances of a particular case, and no longstop.

In any event, even if such a differential treatment could be established, it is likely that the Government has provided a sufficiently strong justification, in the letter from Lord Myners and the FSA's response to the consultation on the Retail Distribution Review, to meet any argument of unjustified discrimination.

The Legal Adviser will set out the issue and his view on the human rights implications in a note to the Committee when it next meets in October. It will be for the Committee to decide whether to accept his advice. I thought it would be helpful for you to know his views at this stage: if you wish to write again to the Committee to draw Members' attention to any points you think are being overlooked then please do so.

I am away on leave from today until 17 August. If you wish to discuss how to proceed, perhaps you could call me when I return?

Letter to the Clerk of the Committee from Mr A. Lakey, Highclere Financial Services, dated 25 August 2009

Time Limits for Complaints Against Financial Advisers

Thank you for you letter dated 27 July 2009.

In truth, I found the content both disturbing and astounding in equal measure.

I feel that possible I have failed to develop my arguments regarding the oppressiveness of the regime under which financial advisers are forced to operate. Given this I would be most grateful if you would provide a copy of this letter to Mr Hunt enabling him to gain a greater appreciation of the important issues at hand and how they relate to other ombudsman organisations.

Your letter comprised two distinct sections, the first to do with Mr Hunt's view as to the "significance", and the second, in respect of the Government's response via Lord Myners and the FSA. For convenience I will adapt my comments to this two-part setting with additional comments following.

Other Ombudsman Schemes

There are significant disparities between the various ombudsman schemes, although it is clear that none, bar the FOS, extend to the removal of basic human rights.

How exactly does the FOS differ from other schemes?

  • The FOS is a mandatory scheme which does not accept the tenets of English Law and not only ignores the 15 year longstop but also uses a perverted variation of the '3 year rule' due to a re-writing of law by the FSA
  • Advisors do have an independent appeal procedure apart from the considerable expense of a Judicial Review, which can only look at the process, not the illogicality, of any decision.
  • The FOS is able to dictate compensation of up to £100,000 and their process fails to allow for a personal hearing regardless of requests.
  • Additionally, they apply 'natural justice' which, as Walter Merricks has previously confirmed, means that they "create new law".

By contrast, whilst the Legal Services Ombudsman is able to order the relevant professional body to pay compensation, it cannot so order the firm being complained about.

Both the surveyors Ombudsman and the Property Ombudsman limit compensation to £25,000, whilst membership of the Surveyors Ombudsman scheme is optional.

Unlike the FOS, every other Ombudsman scheme refuses to deal with claims of negligence, their investigations are therefore limited to complaints of poor service and maladministration.

There has been some mention of similarities between the FOS and the Legal Services Ombudsman and we believe these to be illusory. Firstly, whilst the FOS investigates complaints which have been rejected by financial advisory firms the LSO only looks at complaints which have been rejected by one of the seven professional bodies.

Secondly, the time limits for complaints have little in common. The FOS is able to look at all complaints post April 1988. Whilst they do not accept the normal limitation terms their rules approximately reflect the '3 and 6 year rule' stipulated within the Limitation Act. Complaints to financial firms which have been rejected are allowed a 6 month window in which to escalate the matter to the FOS.

The seven professional bodies apply different rules, examples being the Legal Complaints Service, the law Society of Northern Ireland, the Council for Licensed Conveyancers and the Bar Standards Board, none of which will entertain a complaint if it is made more than 6 months after the act complained of. The Institute of Legal Executives extends this limit to 12 months. The Scottish Legal Complaints Commission uses a mix of 6 and 12 months depending on the nature of the complaint.

Whilst the FOS enables a maximum claim of £100,000 the various professional bodies apply far lower maximums. Examples being, £5000 with the Legal Complaints Service, £15,000 with the Bar Standards Board and £20,000 with the Scottish Legal Complaints Commission.

FOS decisions are legally enforceable, whereas decisions by the Parliamentary and Health Service Ombudsman can be treated with impunity, and frequently are.

More pertinently, none of the professional bodies nor the LSO will look into complaints regarding negligence whereas the FSO does.

The reason that the other Ombudsman bodies do not specifically use the 15 year longstop is because they never will be in a position to entertain complaints extending that far back. The time parameters they operate within are best highlighted by the table below, which purposely ignored any time spent investigating the complaint.
OmbudsmanTime Limit from act complained about Time limit from receipt of a final decision by the professional body Overall Maximum time limit from date of act complained about
Financial Ombudsman72 months* 6 monthsNone
Legal Services Ombudsman12 months 3 months9 months
Surveyors Ombudsman12 months 9 months21 months
Local Govt Ombudsman12 months None12 months
Parliamentary and Health Service Ombudsman 12 monthsNone12 months
Housing Ombudsman12 months 12 months24 months
European Ombudsman 24 months None24 months

* Or 3 years from knowledge of reason for compliant if longer.

You will see that whilst the FOS operates an open-ended system, by a unilateral extension of the '3 year rule', the other Ombudsman bodies operate up to a maximum of 24 months from the act being complained about, sometimes as little as 9 months.

By using the legal Services Ombudsman as a comparison, Lord Myners has unwittingly exposed a further anomaly. Financial advice provided by solicitors prior to 2001 does not fall within the FOS jurisdiction and solicitors are able to depend upon the longstop as a defence. Conversely, for financial advisers, any advice provided post 29 April 1988 falls within the FOS jurisdiction. This further highlights the erosion of human rights which applies only to this relatively small group of professionals.

By way of emphasis, I quote the considered opinion of Anthony Speaight QC.

    "There are growing concerns that the pendulum of consumer protection has swung too far in the case of the Financial Ombudsman Service and small independent financial advisers. The FOS appears regularly to be exercising its discretion to adjudicate upon claims against small IFAs up to its maximum theoretical jurisdiction of £100,000. There is rarely an oral hearing. And there are good reasons to believe that sometimes FOS make substantial awards in cases which would be rejected by the courts . On other occasions compensation seems to be calculated in a more generous manner than a court would assess damages. By reason very large excesses and other insurance shortcomings some such IFAs have no insurance which responds. There is no appeal on the merits.

    Such a system would be tolerable if the maximum award were modest - say £5,000 (which is the maximum summary compensation under the legal professions' schemes for "inadequate professional service"). It would also be tolerable if, as is the case with the summary system of adjudication in the construction industry under the Housing Grants Construction and Regeneration Act 1996, there could be a complete rehearing before a court. And it might even be tolerable if it were applied only against very large companies.

    But an unappealable, compulsory, summary jurisdiction against small traders making awards as great as £100,000 is, in my view, both wrong in principle and producing injustice in practice.

There is a prima facie case that financial advisers have suffered retrospective revocation of their human rights due to the failure to refer to a longstop within FSMA 2000.

The Government's Response

Lord Myners letter to Mr Dismore failed to provide any adequate response and contained a number of untruths which should have been evident to any parliamentarian.

Parliament did not debate the question of whether or not to include a longstop within the provision for FSMA 2000. Nor was there "extensive consultation" in respect of removal of the longstop. Whilst there were a number of debates, and whilst there was a form of consultation, it is totally inaccurate to state that these ever touched on the matter of a longstop, it was never mentioned.

Within the April 2009 RDR Feedback statement, the FSA says;

    "To justify a longstop we will have to identify wider benefits to consumers and to firms, for example greater consumer access and saving, arising from a long-stop or a package of changes including one. These benefits would need to exceed the consumer detriment from time-barred complaints."

With respect, this statement is fatuous. The FSA, in setting the Dispute Resolution wordings within its rulebook, has removed a legitimate protection previously available within the PIA Ombudsman Bureau scheme and also available under the rules operated by the respective Pensions and Insurance Ombudsman bodies.

It is unfair and unreasonable for the FSA to argue that the industry must identify benefits stemming from the restoration of the long-stop. This is back-to-front and not only breaches human rights legislation but also the tenets of common sense. The removal of time limits from any complaint system will serve to benefit consumers inasmuch as they will have unlimited ability to level complaints. If such a system was employed by other Ombudsman schemes then consumers would be advantaged. The rationale behind limitation periods is that people should not be held to account for their actions indefinitely, nor have to investigate and defend stale claims. Parliament determined 15 years as the appropriate balance between consumer protection and business responsibility.

Parliament's Intention

It is my contention that parliament never intended that financial advisers suffer retrospective removal of their right to use time bars legitimised within the Limitation Act 1980 as mended by the Latent Damages Act 1986.

In June 2001 FSA had published a consultation document . DISP 3.3.2G cross referred to article 5(2)(b) of the Order, enacted as Statutory Instrument 2001 no. 2326, to entitle regulated firms to claim the 15 year longstop under the Limitation Act 1980, a defence accepted by PIAOB which had operated under the Financial Services Act 1986.

In October 2001 FSA had published a policy statement to confirm that the FSA and FOS boards had legally made DISP 1-4 with effect from 1 December 2001.

In September 2003 the FSA Board subverted SI 2326 and therefore the intent of Parliament. The minutes state: "GCD advises that the way in which schedule 17, paragraph 13, of the FSMA is framed suggests that parliament intended the FSA to be able to set limits which can differ from those in the Limitation Act." The statement was mendacious.

Parliament never intended that the 15 year longstop defence under the Limitation Act 1980 would be extinguished by FSMA. This conclusion is not weakened but fortified by the explicit recognition in Section 228(2) of FSMA that, "a complaint is to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all circumstances of the case."

Schedule 17, paragraph 12 of FSMA emphasised, "this Part of this Schedule applies only in relation to the compulsory jurisdiction."

Section 2.2 of the FSA consultation document published in June 2001 had stated "The FSMA provides that the complaints which the FOS can cover must relate to an act or omission which occurred at a time when jurisdiction rules were in force in relation to the activity in question. This means that the Compulsory Jurisdiction rules (which are to be made by the FSA) can apply only to acts or omissions occurring on or after N2. The scope of the Compulsory Jurisdiction of the FOS is therefore effectively limited to complaints about activities which took place after N2"

It is inconceivable to accept that GCD was not aware of Schedule 17 paragraph 12 of FSMA. In such circumstances he committed misfeasance, illegal conduct by a public body without the knowledge that the conduct was illegal. Indeed, the offence of 'conspiring to commit misconduct in a public office', alleged by the police against Damien Green MP on 27 November 2008, may have occurred. (Although the DPP confirmed on 17 April 2009 that no action would be taken, Mr Green had been warned at the time of his arrest that a successful prosecution could receive a life sentence.)

In the event of proven allegations the FSA and FOS would lose immunity from liability in damages under Section 102 Subsection 2(a) and Schedule 17 Section 10 Sub-paragraph 2(a) of FSMA.

An invitation to industry and consumer bodies to attend a joint forum on mortgage endowment complaints on 28 November 2003 was issued on 27 October 2003 by Anna Bradley, Director Consumer Division FSA, and Walter Merricks, Chief Ombudsman FOS.

The letter confirmed: "You may like to know that the Board of the FSA recently discussed whether or not to change the current situation whereby the 15 year long stop defence under the Limitation Act does not apply to the FOS. The Board decided that there should be no change. The FSA intends to use the forum to explain the reasons behind the decision and invite feedback."

FSA was required by Subsections 1 to 6 of Section 155 of FSMA to consult in a specific way unless Subsection 7 applied "Subsections (1) to (6) do not apply if the Authority considers that the delay involved complying with them would be prejudicial to the interests of consumers…"

On 15 July 2004 Bond Pearce, a leading business law firm, criticised the application in a press article:

On June 1 the FSA again changed the rules governing the time-limits applying to customers wanting to complain to firms and the Financial Ombudsman Service about their mortgage endowment policies.

The new rules were made by the FSA using its powers under section 155(7) of the Financial Services and Markets Act 2000. This means that the FSA did not consult with the industry or the public on the proposed rules as it believed that the delay in doing so could have been prejudicial to the interests of consumers. Any prejudice to the interests of the firms which the FSA regulates does not appear to have been considered.

Unsurprisingly, the new rules give the vast majority of policyholders more time to complain. This is the latest in a series of manoeuvres and rule changes by the FSA and the FOS designed to erode the rights of authorised firms to reject complaints on the basis that they are time-barred under normal limitation rules.

Industry Outrage

I am not alone in suggesting that the lack of a longstop is unfair and that, additionally, it causes detriment to financial firms. Below, you will see public comments by a number of influential financial commentators and companies.

AXA 7/5/2008

    "The FSAs decision to ditch plans for a 15 year longstop time limit for consumers to bring complaints against financial services firms could hamper acquisitons in the sector"

Robert Bass, Poynton York Vos, 3/10/08

    "The 15 year long-stop under S14 of the Limitation Act 1980 operates in law to provide protection to advisers and other professionals. Whilst records may (and should be) complete, the passage of time distorts recollections on both sides as to what may, or may not, have been said and it is only right and proper that a business should be able to rely upon the law of the land to protect them. The FOS should recognise this principle in an endeavour to be even-handed in it's dealings with investors and regulated firms."

Paul McMillan, Editor Money Marketing, 12/6/09

    "It is clear the FSA is holding the Sword of Damocles above the heads of the whole IFA profession for a small number of complaints."

    (This reflects the House of Lords judgement in Haward and other v Fawcetts (a firm). Lord Scott stated … it is also a hardship to a defendant to have a cause of action hanging over him, like the sword of Damocles, for an indefinite period."

Jonathan Newbold, Brown Jacobson, 18/10/08

    "It is almost impossible to manage historical liabilities because it is never going to be entirely safe to assume that no claims will arise from advice provided more than a decade ago."

John Virgo, Barrister, Guildhall Chambers, June 2009

    "The FSA's refusal to bring in a 15-year long stop is in breach of the Human Rights Act 1998. The regulator and Financial Ombudsman Service have acted in breach of section six of the act in depriving IFAs of a means of defence.

    This is because without a 15-year long stop an IFA can still be potentially sued for damages for the rest of his life, even if he is no longer working in the profession or has retired."

Michelle Kinsella, Clarke Willmott, April 2006

    "A recent application for judicial review of a FOS decision has highlighted how the odds are stacked against IFAs when it comes to the FOS's decision making process.

    The time limits for making a complaint to the FOS broadly reflect English law limitation periods. However, the ombudsman can override the primary time limits for making a complaint if the failure to make a complaint is due to 'exceptional circumstances', or in other specified circumstances (see Dips. 2.3 of the FSA Handbook).

    So, when a client is faced with the usually insurmountable legal hurdles of limitation periods and 'remoteness of damage' (ie, liability only for damage that is reasonably foreseeable), which would effectively end any court proceedings, he can turn to the FOS, which need not be restricted by such matters.

    Additionally, the FOS has decreed that time limits should not start to run in endowment miss-selling claims until the firm or provider has put the client on notice of the possible shortfall.

    In addition to the FOS's ability to depart from settled principles of law, section 229 of the FSMA states that if a complaint is upheld by the FOS, it can make "a direction that the respondent take such steps in relation to the complainant as the ombudsman considers just and appropriate (whether or not a court could order those steps to be taken)"

Given the above, I believe that there is considerable evidence to prove that advisers Human Rights have deliberately been extinguished. The evidence confirms that the matter is "significant" and an analysis of the competing Ombudsman schemes, particularly the LSO, as well as the proof of deception by the FSA in its dealings and manoeuvrings, serves to blunt Lord Myners response.

I look forward to hearing from you in this regard.

Letter to the Clerk of the Committee from Mr A. Lakey, Highclere Financial Services, dated 22 September 2009

Time limits for complaints against Financial Advisers

Thank you for your letter along with the information from the House of Commons Library.

I wish to enlarge upon the content of my own letter dated 25 August and would therefore be grateful if you would provide copies to the Committee members and Mr Hunt.

The Longstop and other Ombudsman bodies


In my eagerness to distinguish the Financial Ombudsman Service (FOS) processes from those of other ombudsman bodies I may have failed to fully emphasis the major distinction. This is that only the FOS can look at complaints of negligence. Every other ombudsman body insists that such complaints are beyond their remit and directs the complainant towards the courts.

Therefore the semantic arguments regarding time limits and characteristics fail to convey the fact that advisers labour under a totally different regime which ensures that they remain open to complaints some twenty or thirty years after the event in question and into retirement unlike every other profession.

Lord Myners Response
You advised that Mr Hunt considered Lord Myners letter to contain sufficient information as to rebuff the arguments I put forward. Specifically, Lord Myners stated, "I understand that the FOS scheme rules were consulted on extensively before they became into force on 1 December 2001."

My previous letter highlighted that an examination of Hansard confirmed that whilst the matter of FOS rules was discussed there was never any mention of the longstop. It is evident that both Houses were unaware that such a change was being legislated. It is not unreasonable to expect that the wholesale removal of a legitimate legal defence would receive a high degree of parliamentary comment and scrutiny.

In addition, I have come into possession of the minutes to an FSA board meeting held on 18 September 2003. In part 1 of the annex the minutes corroborate my contention that no worthwhile consultation ever took place. The minutes state, "We did not consult on having a 15year limitation period when DISP was consulted on."

The minutes then went on to say, in part 2 of the annex, "GCD advises that the way in which schedule 17, paragraph 13, of the FSMA is framed suggests that Parliament intended the FSA to be able to set time limits which can differ from those in the Limitation Act."

The FSA's General Counsel opined that the removal of the longstop defence was Parliament's intention. It is my contention that the FSA's General Counsel subverted Parliament's intention with that statement. The legitimate expectation of advisers is clearly demonstrated in the attached flow chart proving that this is not only a serious breach of advisers' human rights but also a clear case of the FSA subverting Parliament by circumventing the established procedures of open debate and full knowledge of the issues at hand.

This matter is deserving of closer analysis and will, I believe, enable the Committee to form the opinion that both the spirit and the letter of the Human Rights Act has been breached. Therefore, this is a matter of overwhelming significance and is deserving of the Committee's attentions.

Letter from the Chairman of the Committee to Mr A. Lakey, Highclere Financial Services, dated 20 October 2009

Thank you for your letter of 22 September to Mark Egan, Commons Clerk of the Committee, which was circulated to Members and staff of the Joint Committee.

The Committee was asked at its meeting last Tuesday whether or not to undertake further scrutiny of the law relating to time limits for complaints against financial advisers, in the light of the reply it received from Lord Myners of 4 June; the initial view of the Committee's Legal Adviser, which the Clerk communicated to you in his letter of 27 July; and your further letters on the subject.

The Committee has decided that the lack of a 15 year longstop on the FSA's discretion to extend the time limit for investigating a complaint in exceptional circumstances does not raise a significant human rights issue for it to scrutinise further. In particular, the Committee accepts that Lord Myners has provided sufficient justification for any discrimination against financial advisers, in his argument that the absence of a longstop is necessary to maintain consumer confidence, given the nature of the advice offered by financial advisers.

Your letters also raise the issue of whether the current arrangements reflect the intentions of Parliament, but this is not a human rights point on which the Joint Committee can take a view.

I appreciate that this is a disappointing reply but I am grateful that you raised this matter with the Committee and I hope it will be evident that we have considered this matter carefully.

Letter from the Chair of the Committee to Baroness Fookes, dated 9 July 2009

London Local Authorities Bill

I am writing to you in advance of the Unopposed Bill Committee on this Bill because the Government has expressed concerns about the human rights compatibility of two of its provisions, both of which concern the adequacy of the procedural safeguards accompanying powers of entry into residential premises. You might find it helpful to be aware of the views previously expressed by the JCHR on those issues.

In particular, the Bill Committee should be aware that one of the provisions in the Bill proposes to relax a procedural safeguard which was inserted by the Government into the 2004 Housing Act specifically in response to concerns expressed by the JCHR. In view of the JCHR's direct involvement in the provenance of that provision, I deal with it first. The other compatibility issue raised by the Government is not one on which the JCHR has commented specifically in relation to this legislation, but it raises a general compatibility issue on which it has commented in other contexts.

(1) Seniority of officer authorising entry

Clause 22 of the Bill amends s. 243 of the Housing Act 2004 in its application to London. Section 243 provides that any authorisation for individual officers to exercise certain enforcement powers, including powers of entry into premises, must be given by an officer of the local housing authority who is at least a deputy chief officer of the authority.[124] Clause 22 of the Bill would enable such authorisation to be given also by a person who reports directly to, or is accountable to, a deputy chief officer. The effect of the amendment is therefore to widen significantly the range of officers who can authorise entry into premises.

The provision of the Housing Act 2004 which clause 22 of the Bill amends in its application to London was inserted into that Act by the Government specifically to meet one of the concerns expressed by the JCHR about the lack of adequate procedural safeguards attached to a very widely defined power of entry into premises. As the Committee explained in its Eighth Report of 2003-04,[125] at para. 4.34, powers of entry, in particular powers of entry to residential premises, engage the right to respect for private life of the occupiers of the premises under Article 8 ECHR. In order to be justified under Article 8.2, powers of entry must be clearly defined, so as to comply with the requirement that they be in accordance with law; and must be subject to sufficient safeguards so as to ensure that they are necessary in a democratic society and proportionate to the aim they pursue. The procedures for authorisation of entry to premises is one of the factors which is relevant to assessing the justification for powers of entry under Article 8.2. The Committee said: [126]

    In particular, we are concerned that the absence of a requirement for judicial authorisation of entry onto premises and the absence of specification of the level of internal authorisation required may allow for unjustified and disproportionate use of these powers.

The Government initially rejected the Committee's concern but in the light of the Committee's sustained concern,[127] the Government reconsidered the matter and tabled an amendment to the Bill to strengthen the authorisation requirements where a power of entry is exercised under the Bill. The Government explained the amendment in a letter to the Committee:[128]

    "We have tabled an amendment which introduces a new clause that will require an authorisation for the purposes of certain provisions of the Bill to be given by a senior local authority officer. That officer would be a deputy chief officer (within the meaning of section 2 of the Local Government and Housing Act 1989) whose duties are relevant to the function for which the authorisation is to be given, or the officer to whom the deputy chief officer reports or is accountable in respect of that function. The new requirement would apply to the exercise of any of the powers of entry under the Bill, except one, including those in clause 203 …..

The Committee welcomed the Government's amendment.[129]

Therefore, I share the concern expressed by the Secretary of State in her SO 98 report on the Bill that allowing a person who reports directly to the deputy chief officer may not be compatible with the European Convention on Human Rights. Broadening the class of officer who can authorise entry into premises would remove one of the important procedural safeguards in the Housing Act 2004 which was specifically inserted to make it more likely that the wide powers of entry in s. 239 of that Act would be exercised in practice in a way which is compatible with the right to respect for private life and home in Article 8 ECHR.

(2) Notice to owner of intention to enter

Clause 21 of the Bill amends s. 239 of the Housing Act 2004 in its application to London by removing the requirement in s. 239(5) that at least 24 hours' notice of intention to enter premises must be given to the owner of the premises (if known). Clause 21(2) removes the need to serve notice of entry on the owner except where there is no occupier.

The exercise of a power of entry into premises is an interference with the right of the owner of those premises to peaceful enjoyment of their possessions under Article 1 Protocol 1 ECHR. A requirement of a minimum period of notice before the power of entry is exercised is one of the procedural safeguards which contributes to ensuring that the power to interfere with that right is exercised in a way which is not arbitrary but is necessary and proportionate.

I therefore share the concern of the Secretary of State to ensure that the interference with property rights as a result of the powers of entry in s. 239 of the Housing Act 2005 is both necessary and proportionate. Removing the requirement that the owner of the premises be given notice of an intended exercise of the power of entry makes it more likely that those powers of entry will be exercised in practice in a way which is incompatible with the right to peaceful enjoyment of possessions.

I hope that this is helpful.

Letter to the Chair of the Committee from Baroness Fookes, dated 24 July 2009

London Local Authorities Bill

Thank you for your letter of the 9th of July 2009 which unfortunately did not reach me in time prior to the unopposed Bill Committee sitting. I have mail redirected to my home at the weekends and I fear that it got caught up in the industrial action by the postal service and it was "chasing" me.

However I did in fact receive the meat of your letter by other means and this was most helpful in considering the London local Authorities Bill.

The Committee reached certain compromises which we believe satisfies both the London local Authorities and those expressing concern about human rights. This will be the subject of a special report so please forgive me if I do not go into all the details in this letter.

Thank you for writing to me with your observations this was a very thoughtful gesture on your part.

Letter from the Chair of the Committee to Rt Hon Alan Williams MP, Chairman of the Liaison Committee, dated 16 July 2009

Delayed Government response to a JCHR report

I am writing in respect of a delayed Government response to the Joint Committee on Human Rights' Ninth Report of 2006-07, entitled The Meaning of Public Authority under the Human Rights Act, which was published on 28 March 2007.

The Report was concerned with the effect of a number of court decisions on the scope of the Human Rights Act, particularly in relation to services which had been contracted out to a private sector provider. The main area in which this issue had arisen was with the provision of publicly funded care services by private sector care homes. The Report included 47 conclusions and recommendations, principally on Government guidance and legislative solutions to the problem.

The Government response to this Report was due at the end of May 2007. On 14 May we received a holding reply from Baroness Ashton of Upholland, then Parliamentary Under-Secretary of State at the Ministry of Justice, outlining the Government's position in the definitive care homes case - YL v Birmingham City Council - and promising a more detailed response once the House of Lords judgment had been handed down.

In October 2007, having not received a full response to our Report, we asked Michael Wills MP, the Minister for Human Rights, in oral evidence, when we should expect it. His reply was "soon".[130]

We raised the issue again in the Report on our work in 2007, published on 1 February 2008, and called on the Government to respond to our earlier Report "as a matter of urgency".[131] The Government's response was to argue that many of the Committee's conclusions had been overtaken by an amendment to the Health and Social Care Bill which dealt with the scope of the Human Rights Act in relation to private sector care homes. Nevertheless, Mr Wills undertook "to write to the Committee soon on this general subject in the context of the continuing consideration in relation to the Health and Social Care Bill: I shall take that opportunity to address the Committee's conclusions insofar as they remain relevant".[132]

We commented again on the Government's failure to respond to our meaning of public authority Report in the Report on our work during the 2007-08 session, recommending that the Ministry of Justice reply "forthwith".[133] The lateness of the Government's response was highlighted in your Committee's Report on the work of committees in 2007-08.[134] The Government's response to our annual Report ignored our recommendation.[135] We raised the matter again in oral evidence with the Secretary of State for Justice, Jack Straw MP, and Michael Wills MP, on 20 January 2009, and received a firm commitment from Mr Wills that we would receive a reply to our Report by Easter.[136] Needless to say, this deadline was missed.

In recent weeks I have tabled a parliamentary question asking when the Secretary of State for Justice will respond to our report and why the response has been delayed. I have also tabled an early day motion on this issue. I received an answer to my question on 9 July in which Mr Wills said for the first time that the Committee would not receive a reply to its report: issues which "remain relevant" will be addressed in a long-delayed consultation document on the scope of the Human Rights Act.

We can see no good reason why our Report should not have received a Government response. Although those conclusions and recommendations dealing with the private sector care homes issue have been dealt with in the Health and Social Care Act 2008, other conclusions and recommendations, on wider aspects of the issue and Government guidance, have simply been ignored. At no point has the Minister written to us to ask for more time to respond or, until now, to assert that he saw no need to respond. In fact, we have repeatedly been told that a response was being prepared.

As well as impeding our work, failure to respond to a select committee report undermines the whole system. The Government cannot be permitted to pick and choose which reports it responds to. Consequently, we request that you should write to the Leader of the House of Commons and the Secretary of State for Justice, drawing their attention to the Government's failure to respond to our Report, and requesting a response by the end of August.

Letter from Rt Hon Alan Williams MP, Chairman of the Liaison Committee to Rt Hon Harriet Harman QC MP, Leader of the House of Commons, dated 21 July 2009

Delayed Government response to JCHR report

Andrew Dismore has brought to my attention the serious problems that the Joint Committee on Human Rights has been having in getting a full response to its Ninth Report of Session 2006-07 on The Meaning of Public Authority under the Human Rights Act. In our First Report last March, we noted that the response had still not been provided.

I am attaching his letter which sets out the disappointing experience that he has had from Departments and Ministers.

The Liaison Committee has always taken seriously the obligation by the Government to respond fully and specifically to the recommendations in select committee reports. Some delay can be tolerated where this has a good reason but I am sure you will understand the concern that I share with Andrew that this situation has run on for such a long time. Can you please investigate why the response has still not been provided and discuss with Jack Straw, to whom I am copying my letter and enclosure, the early submission of a proper response.

Letter to the Chair of the Committee from Metropolitan Police Service, dated 17 July 2009

Re: Disclosure of report into death of Blair Peach

Thank you for your letter dated June 09 addressed to the Commissioner of Police for the Metropolis which has been forwarded to me for response. Please accept my apologies for the delay in responding.

I can advise you that the Commissioner has asked Deputy Commissioner Tim Godwin to consider if the report can be made public, starting from the principle that it should be. However it is on the basis that the MPS needs to review the material and to consider carefully all of the relevant factors, including taking legal advice.

The intention is for the process to be completed by the end of the year and it is too early at this stage to give a view as to the details of how disclosure/non disclosure will take place. Once the MPS is in a position to comment we will ensure that the MPA and interested parties are made aware.

Letter to the Chair of the Committee from Metropolitan Police Authority, dated 4 August 2009

The Metropolitan Police Authority (MPA) writes in response to your call for the release of the findings of the Metropolitan Police Service (MPS) inquiry into the death of Mr Blair Peach.

The MPA, the body that oversees the MPS, moved a motion at our June Full Authority (25th June 2009) meeting requesting that the MPS publish the report by the end of 2009. The Commissioner, Sir Paul Stephenson said at that meeting that his starting point was a desire to publish the report and that began a review to consider the issue arising out of publication particularly in relation to fairness and legality. He also noted that it "would be reckless of me not to do that, particularly if we get that judgement wrong it may well end up in litigation and an issue of public money". He agreed to complete that review as soon as he could. In passing the motion, the Chair of the Authority Boris Johnson said that "there is a very strong call from this MPA for that report to be released". The Authority will continue to monitor the progress of the MPS's internal review and to press for publication of the report.

Letter to the Chair of the Committee from David Hanson MP, Minister of State, Home Office, dated 24th October 2009

DEMONSTRATING RESPECT FOR RIGHTS? FOLLOW-UP REPORT

I wanted to provide you with an update on the Government's planned response to the report 'Demonstrating Respect for Rights? Follow-up' by the Joint Committee on Human Rights (JCHR) published on 14 July 2009.

The Home Office submitted written and oral evidence to JCHR's review into policing protest and published a formal reply in May 2009. The Government welcomes the JCHR's follow-up report and is committed to continuing to engage constructively with the Committee on what remains a very important area.

As you will be aware, there have been a number of reviews into the policing of

protest in recent months, and we await Her Majesty's Inspectorate Constabulary's (HMIC) full Report which is due to be published in November. We are in the process of carefully considering JCHR's latest recommendations, and will be able to provide you with a more comprehensive response once the HMIC Review is published and following the publication of the Policing White Paper next month: I will ensure you are provided with a full response by 9 December 2009, but in the interim I wanted to give you an update on the Government position of the core issues raised in your Report;

Firstly, it is important to reiterate the evidence provided by my predecessor, Vernon Coaker. The Government is clear that it is important to recognise the professionalism of police forces in facilitating the vast majority of protests without conflict or disorder. It is also important to recognise the successes of the G20 policing operation: criminal activity and wider disruption to London was minimal, the police maintained the high levels of security needed to protect those attending the Summit and over the course of two days thousands were able to protest peacefully.

However it is of course right that those incidents that call into question the actions of individual officers, and any concerns over police tactics, are properly explored and lessons learnt.

I would also reiterate. that we are committed to protecting and facilitating the right to peaceful protest. We will be using the opportunity of the White Paper to reaffirm this commitment and to set out the key principles that must underpin the policing of protest.

We agree too that good communication between police and protestors - and

with the media - is the key to ensuring 'no surprises policing', and that the use of tactics like containment and use of force must be proportionate. We will set out in our full response how we think this can best be achieved working with a full range of partners.

In our reply to your report and in oral evidence to the Committee, the Home Office also gave undertakings to consult on amendments to section 5 of the Public Order Act 1986, to look at how the Protection from Harassment Act is Sometimes used against protestors and to look at the impact of the privatisation of public space on the right to protest. We have sought views from a range of stakeholders on section 5 and are currently collating the responses; we remain in discussions with the Ministry of Justice on the use of injunctions against protestors and will be drawing on the work of the HMIC Review in responding to the Committee's concerns around quasi-public space.

Finally, you will have seen that the Government has brought forward repeal of sections 132-138 of the Serious Organised Crime and Police Act 2005 in the Constitutional Renewal and Governance Bill. In doing so we have directly addressed the Committee's concerns about the level of access the police are required to maintain. I look forward to the Committee's support for these provisions as we take them through both Houses.

I am copying this letter to the Commissioner of the Metropolitan Police Service, the President of ACPO and Her Majesty's Chief Inspector of Constabulary.

Letter from the Chair of the Committee to Alan Campbell MP, Parliamentary Under-Secretary of State, Home Office, dated 27 October 2009

On 9 December 2008 I wrote to you expressing concern in the light of press reports that the Metropolitan Police Services' Human Trafficking Unit was to close down because Home Office funding was being withdrawn. On 16 December you announced that the Home Office would provide additional funding for the Unit in the form of a one-off grant. The aim of the grant was to help the Metropolitan Police mainstream the Unit's work into its existing budget and core business.

The Committee is aware that your recent response to the 6th Report of the Home Affairs Committee, "The Trade in Human Beings: Human Trafficking in the UK", suggests that the Home Office will not provide the Human Trafficking Unit with any more money. This is despite evidence received by the Home Affairs Committee suggesting that closing down the Unit will make it more difficult to identify trafficking victims.

I would be grateful if you could send us a memorandum explaining the funding arrangements for the MPS Human Trafficking Unit and outlining its future. Please indicate what assessment you have made of whether the Metropolitan Police is now tackling human trafficking as part of its mainstream work.

I would be grateful if you could reply by 18 November and send us a Word version of your letter as well as hard copy.

I am copying this letter to the Met Commissioner, the Mayor of London and Keith Vaz MP.

Letter to the Chair of the Committee from Alan Campbell MP, Parliamentary Under-Secretary of State, Home Office

Thank you for your letter dated 9th December about Human Trafficking. I am grateful for your on-going engagement on this important cause. We all agree that human trafficking is an abhorrent crime and I can assure you that protecting its victims and bringing to justice those responsible for exploiting them remains a key priority for me and the Government.

The Home Secretary gave a commitment to ratify the Council of Europe Convention on Trafficking in Human Beings by the end of the year. We are on track to do so and I hope to be able to confirm ratification by the end of next week.

As you will be aware, we announced last week that, following discussions with the Metropolitan Police Service, the Home Office has decided to provide additional one-off funding for the Metropolitan Police Service Trafficking Team. As a result, the MPS will make arrangements to ensure the Trafficking

Team continues to function during 2009/10.

Human trafficking is now part of core business for all police forces . This funding is designed to enable the MPS to mainstream this work into its daily activities in a planned and organised fashion. The MPS has commissioned a review of how they deal with organised immigration crime, including human trafficking, in order to find more efficient methods and mainstream this work effectively. We will continue to work with the MPS on this and related issues .

Letter to the Chair of the Committee from Ivan Lewis MP, Minister of State, Foreign and Commonwealth Office, dated 10 November 2009

I am writing to you about a reference in the Joint Committee on Human Rights report of 3 August on "Allegations of Complicity in Torture". The Report contained a reference to the number of cases of British nationals detained in Pakistan in relation to terrorism since 2000 (at paragraph 7) and referred to a discrepancy between the number of cases the FCO gave in answer to a PQ last year and a list of cases provided by the Guardian (JCHR Report, page 47, footnote 133). Although you have not asked us about this discrepancy, I consider that it is important that we address it now in order to set the record straight at the earliest opportunity.

Having see the Guardian's list of cases, I can confirm that the FCO is aware of the 11 individuals that they have mentioned. The figure of 8 cases (amended from 6 originally) given last year in response to the PQ was based on a search of our case files. These records were not designed to be searched according to thematic criteria such as the reason for detention, but are set up for the retrieval of individual cases. Information from before the introduction of the current electronic consular casework database in 2003 is held in paper files which are weeded in line with HMG's data handling policy. Furthermore, we rely on the national authorities in any country to notify us of any detention and of the reasons for detention, and this is not always done, particularly in cases of dual nationals.

We continue to put in place systems to facilitate this type of data retrieval. But for the reasons above, and despite our best efforts, it is not always possible to give a definitive historical figure for detentions in connection with allegations of terrorism. Where we find discrepancies we will always aim to set the record straight as soon as possible.

Email to the Chair of the Committee from Craig Murray, dated 17 November 2009

I should be most grateful if you would copy this and the attachments to all members of the Joint Committee on Human Rights.

I forward for the Committee's consideration documents which I have newly obtained from the FCO under the Freedom of Information Act.  These documents show beyond any possible doubt that there was indeed a policy operating of using intelligence from torture; and that it was directed and approved by Jack Straw, as evidenced by the minute from Simon McDonald, then Straw's Assistant Private Secretary.

I do hope that these documents go some way to assuage the doubts expressed in the Committee's report as to whether my evidence was credible.  A key part of it is hereby proven.

It is of course for the Committee to judge the credibility of witnesses before it.  Nonetheless, I must say I was deeply wounded by the Committee's comments.  I would in particular have hoped that the Committee might distinguish between comments run on an unabashedly polemical blog, and sober evidence given with great care for accuracy to parliament, which I took as a high burden and responsibility.

I do hope that this new documentary evidence I now offer will go some way to lifting the Committee's doubts on my credibility, and that the Committee may take an opportunity to reflect that in public.~

I would also restate that my evidence is not just evidence of a policy of knowing and considered complicity with torture, but it is also evidence of a secret such policy.  In particular, I put it to you that, taken in the round, the two minutes attached are utterly incompatible with Jack Straw's previous evidence to parliament on this subject, given two years after the attached documents were written:

As I said there, there are no circumstances in which British officials use torture, nor any question of the British Government seeking to justify the use of torture. Again, the British Government, including the terrorist and security agencies, has never used torture for any purpose including for information, nor would we instigate or connive with others in doing so. People have to make their own judgment whether they think I am being accurate or not.

http://www.publications.parliament.uk/pa/cm200506/cmselect/cmfaff/573/5102405.htm

I have highlighted in bold those sections of Jack Straw's evidence which, in the light of these two documents attached, appear to be highly misleading.

Annex 1

From: Linda Duffield
Date: 10 March 2003
Reference: 1
To PUS
cc: Michael Wood, Legal Adviser
Matthew Kidd , [REDACTION]

SUBJECT: UZBEKISTAN; INTELLIGENCE POSSIBLY OBTAINED UNDER TORTURE

1. Michael Wood, Matthew Kidd and I had a meeting with Craig Murray to discuss his telegram (Tashkent Telno Misc 01). [REDACTION] I said you had asked me to discuss this with Craig personally in view of the sensitive nature of the issues involved.

2. Craig said his concerns had been prompted by a presentation to the Uzbek authorities by Professor Korff (OSCE Adviser) on the UN Convention on Torture. Craig said that his understanding was that it was also an offence under the Convention to receive or to possess information obtained under torture. He asked for clarification on this. Michael Wood replied that he did not believe that possession of information was in itself an offence, but undertook to re-read the Convention and to ensure that Craig had a reply on this particular point.

3. I gave Craig a copy of your revised draft telegram (attached) and took him through this. I said that he was right to raise with you and Ministers his concerns about important legal and moral issues. We took these very seriously and gave a great deal of thought to such issues ourselves. There were difficult ethical and moral issues involved and at times difficult judgements had to be made weighing one clutch of "moral issues" against another. It was not always easy for people in post to see and appreciate the broader picture, eg piecing together intelligence material from different sources in the global fight against terrorism. But that did not mean we took their concerns any less lightly.

4. [PARAGRAPH REDACTED]

5. After Michael Wood and Matthew Kidd had left, Craig and I had a general discussion
about the human rights situation in Uzbekistan and the difficulties of pushing for a
Resolution in Geneva, which we both agreed was important. [REDACTION]

CONCLUSION

6. In conclusion, Craig said that he was grateful for the decision to discuss these issues with me personally. At the end of the day he accepted, as a public servant, that these were decisions for Ministers to take, whether he agreed with them or not. If it ever reached the stage where he could not accept such a decision, then the right thing to do would be to request a move. But he was certainly not there yet. He had fed in his views. You and Ministers had decided how to handle this question. He accepted that and would now go back to Tashkent and "Get on with the job".

7. I think it was right to see him. I am not sure this is the end of the issue (or correspondence), but it was a frank and amicable discussion and Craig appears to be making efforts to balance his work on human rights with other FCO objectives. We shall, of course, be reviewing these again once he has produced his post objectives for the upcoming year.

Signed
Linda Duffield
Director Wider Europe

Annex 2

Linda Duffield

Uzbekistan

Last night the Foreign Secretary read a copy of your minute of 10 March reporting your conversation (in the company of Michael Wood and Matthew Kidd) with Craig Murray.

The Foreign Secretary agrees with the PUS that you handled this very well. He has asked me to thank you.

Signed
Simon McDonald

Letter to the Chair of the Committee from Meg Hillier MP, Parliamentary Under-Secretary of State, Home Office, dated 20 November 2009

UK BORDER AGENCY - STATUTORY DUTY TO SAFEGUARD AND PROMOTE THE WELFARE OF CHILDREN

I am writing to let you know that section 55 of the Borders, Citizenship and Immigration Act 2009 is now in force. It places a duty on the Home Secretary to make arrangements for ensuring that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children.

We have introduced this duty after carefully listening to constructive debates on this issue in each House. It is a step forward for the UK Border Agency which has been steadily improving its work with children. The duty puts the Agency on the same footing as other bodies who work with children. It will be a driver for more effective interagency working which is crucial if children are to be kept safe and given the opportunity to thrive. In particular, the duty will place greater emphasis on the UK Border Agency's participation with Local Safeguarding Children Boards.

I know that many of you have concerns about the detention of children for immigration purposes. Let me make it clear that I share those concerns: none of us wants to detain children. We would much prefer families who have no legal right to be here to leave voluntarily and we provide opportunities and incentives for them to do so, including a re-integration package to assist them in their country of return. We are considering how we might better promote such assisted returns and we are committed to exploring other alternatives to detention: we are currently running a pilot in Glasgow in co-operation with the City Council and Scottish Government, which provides intensive support to help families to prepare for their return.

However we have a responsibility to enforce the immigration laws and, if families refuse to take advantage of the opportunities offered to them to leave voluntarily, detention and enforced removal remains the only realistic option. When this does happen our aim is to make the period of detention as short as possible and to provide children with appropriate care and facilities.

We have made significant improvements in recent years in both the management of detention and the facilities provided, especially in Yarl's Wood which is where most families with children are detained, and this has been acknowledged by various independent bodies. We have also explored, and continue to do so, alternatives to detention for suitable cases.

We want to continue this process of improvement in detention and across all aspects of our work with children, and to engage constructively with those who can help us. The duty is evidence of our commitment to this.

Together with Baroness Delyth Morgan, Parliamentary Under-Secretary of State for Children, Young People and Families, I am issuing guidance to support the new duty, copies of which are available in the Library.

Letter from the Chair of the Committee to the Rt Hon David Hanson MP, Minister of State, Home Office, dated 24 November 2009

I am writing to give you advance notice that my Committee may wish to ask some questions at next week's evidence session about the legal costs incurred by the Government in connection with control orders since the inception of that regime in 2005. Since this may require some preparation by the staff in your department I want to ensure that you have sufficient time to obtain the necessary information.

I would be grateful if you could provide us with a memorandum showing:

  • the total number of court hearings that have taken place in relation to control orders
  • if possible, a breakdown of those figures into the different types of hearing
  • the total cost to the public purse of those court hearings (including the cost of the Government's own representation at those hearings, the cost of representation by special advocates, the cost of the Special Advocate Support Office, the cost of meeting the other side's costs where these have been awarded against the Government, and any other costs arising from the hearings)
  • if possible, a breakdown of the total cost figure into the different components listed above.

If it is possible to provide this the day before the evidence session my Committee would find this extremely useful.

Letter from the Rt Hon David Hanson MP, Minister of State, Home Office to the Chair of the Committee, dated 27 November 2009

LEGAL COSTS OF CONTROL ORDERS

Thank you for your letter dated 24 November 2009 regarding the legal costs incurred by the Government in connection with control orders since the inception of the regime in 2005.

My officials have sought to respond to your request to the fullest extent possible within the short time available before the evidence session. Obtaining some aspects of the information will involve the identification and search of a large number of files and records and cannot be completed in a manner that would provide the committee with a comprehensive and accurate response in under a week. I am however able to provide you with some of the

information which can be obtained from existing records held by the department.

It is not possible to provide you with figures relating to the total number of court hearings relating to control orders since March 2005 within the time available. I will write to you in due course on this point. The information will be broken down to show the total number of:

  • substantive judicial review hearings under section 3(10) of the PTA;
  • appeal hearings in the High Court under section 10 of the Act;
  • Court of Appeal hearings; and
  • House of Lords hearings.

You will be aware that there are also a number of interim procedural hearings that take place in relation to control orders - including disclosure hearings and case management hearings . The Home Office does not hold comprehensive records of all of these interim hearings, and they will therefore not be included in the figures provided.

In relation to your request for the total cost to the public purse of control order court hearings I am able to respond. Between April 2006 and the end of October 2009 the Home Office spent £8,134,012.49 on legal costs . This figure includes the costs of the Government's Counsel and charges by the Treasury Solicitor, the costs of the Special Advocates and the Special Advocates Support Office and the cost of meeting the other side's costs where this has been ordered by the court. For the avoidance of doubt, this figure does not only relate to court hearings, but also other work carried out by Counsel and solicitors in relation to control order litigation - for example preparation for hearings and legal advice in advance of the imposition of each control order. The Home Office does not hold information relating to the cost of control order proceedings to the Legal Services Commission or Her Majesty's Courts Service. It is not possible to provide a breakdown of this figure as requested by the committee, as the Home Office does not hold the relevant audited figures.

The Home Office cannot provide figures for the cost of control order legal costs during the financial year 2005-2006 as to do so would be at disproportionate cost. During that financial year control order costs were charged to a cost centre which was also used for the costs of a number of different programmes. It would be necessary to look at the records of every transaction made to the cost centre to establish which costs relate to control orders and which costs relate to other programmes. From the financial year 2006-2007 onwards a separate cost centre was used for control order costs.

Memorandum submitted by the British Humanist Association

We are making this submission on DCSF draft guidance, 'Religious education in English schools: Non-statutory guidance 2009', which we hope is an issue the Committee can take up with the DCSF.

A: INTRODUCTION

1. The current situation

The Department of Children, Schools and Families (DCSF) has (on 30 April 2009) issued new draft guidance for public consultation to replace previous guidance on Religious Education (RE) and Standing Advisory Councils on Religious Education (SACREs) which was issued in 1994, and which was even at the time widely considered to be very poor guidance. The public consultation ran until 24 July 2009 and the DCSF will now be considering its response with a view to issuing final guidance in the autumn.

In two respects the draft guidance is severely unsatisfactory and set to cause significant disadvantage to humanists. It fails to ensure:

·  that RE should be the study of both religious and non-religious beliefs;

·  that humanists should have the same right to be full members of the local committees writing and overseeing RE syllabuses as religious people have.

We are now very concerned that the guidance will, at best, offer no improvements in these two areas and, at worst, undermine the positive developments that have occurred, in defiance of the previous guidance, in the years since 1994 (and especially since the Human Rights Act 1998).

We want the DCSF to use the Human Rights Act to read references to 'religion' in the present law on RE as references to 'religion or belief' in the new guidance. In particular, we want the references to the content of RE as being about 'principal religions' to be read as 'principal religions or beliefs' and the eligibility for full membership of Standing Advisory Councils for RE (SACREs - the local committees that oversee RE) and Agreed Syllabus Conferences (ASCs - the local committees that set the RE syllabus) as representatives of 'religions' to be read as 'religions or beliefs', giving humanists the right to be full members.

2. Summary of our position

We say:

1.  DSCF guidance on RE in English schools needs (by section 3(1) of the Human Rights 1998 Act) to read relev ant legislation to secure compatibility with Convention rights, including thus the Convention rights of humanist parents and pupils, including rights under Article 9 ECHR, Article 2 Protocol 1 ECHR and Article 14 ECHR read in conjunction with those articles.

2.  DCSF guidance needs to be compliant with the Equality Act 2006

And that:

3.  As it is currently drafted, it fails to do this in relation to what it says or fails to say about:

a.  the eligibility of humanists to be members of SACREs and ASCs

b.  the inclusion of Humanism alongside religions as a subject of study in RE

3. Religious Education (RE) and the present situation

Religious Education in England and Wales is part of the basic curriculum, but not in the National Curriculum; uniquely, RE syllabuses are set locally by occasional Agreed Syllabus Conferences (ASCs) and monitored by Standing Advisory Councils for RE (SACREs) in each local authority. (In practice the same people are members of both bodies.) Nationally, the law requires that RE be the study of 'Christianity and other principal religions' and sets out local arrangements in some detail (for example, SACREs must include representatives of the Church of England and representatives of 'other religions and religious denominations').

The BHA believes that the introduction of the Human Rights Act 1998 (HRA), which gave further effect in UK law to the rights contained in the European Convention on Human Rights, has effects in practice upon the legal framework governing the teaching about religions and beliefs in England and we are seeking that this be reflected in the new guidance.

In the Introduction to the new guidance, and as one of the stated rationales for the new guidance, it says:

1.2.1 Changes in general legislation

A number of legislative changes within and beyond the world of education in both Britain and Europe have implications for RE. The Human Rights Act 1998, the Race Relations Amendment Act 2000, and the Equality Act 2006 contribute to the 'bigger picture' within which RE is provided in schools and experienced by children and young people.

But no actual changes are then introduced in the rest of the guidance in light of either the Human Rights Act or the Equality Act!

B: OUR POSITION

1. The content of the curriculum

a. We say that references in primary legislation to the content of RE ('principal religions') should be read as 'principal religions and beliefs'.

Section 375 of the Education Act 1996 provides that agreed syllabuses of religious education

    shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain

We want to argue that 'and beliefs' should be read in:

shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions and beliefs represented in Great Britain

b. We say that this has already in fact been acknowledged in the Non-statutory National Framework for RE (2004) . . .

In 2004, the government and QCA published the Non-statutory National Framework for RE to give advice to SACREs, ASCs, and others involved in RE. Prescribing the breadth of study at key stage 1 (p.25), key stage 2 (p.27), and key stage 3 (p.29), the Framework said:

During the key stage, pupils should be taught the Knowledge, skills and understanding through the following areas of study:

  Religions and beliefs

  a Christianity

  b at least two other principal religions

  c a religious community with a significant local presence, where appropriate

  d a secular worldview, where appropriate

The Framework uses the phrase 'religions and beliefs' repeatedly to refer to the religious and non-religious worldviews to be studied in religious education and on page 12 makes it clear that humanism is included in this phrase: 'it is recommended that there are opportunities for all pupils to study…secular philosophies such as humanism.'

c. …and in the non-statutory programmes of study for RE at key stages 3 and 4 (2007)...

In 2007, when the secondary National Curriculum was revised and reissued by the government and QCA, non-statutory programmes of study for RE at key stages 3 and 4 were issued alongside the new National Curriculum. Again the content of RE was prescribed as 'religions and beliefs', which was defined in the explanatory notes at key stage 3 (p.264) and key stage 4 (p.276):

    Religions and beliefs: These include systems of thought that are religious and non-religious, theistic and non-theistic, Western and Eastern, Abrahamic and dharmic.

'Religions and beliefs' is the phrase used repeatedly throughout the programmes of study to refer to the nature of the content to be taught: pupils should interpret 'teachings, sources, authorities and ways of life in order to understand religions and beliefs' (1.1(a)); they should explore the impact of religions and beliefs on how people live their lives.'(1.2(a)) and so on.

At key stage 3 (page 268), the Range and Content is given as:

The study of RE should include:

a Christianity

b at least two other principal religions

c a religious community of local significance, where appropriate

d a secular world view, where appropriate.

And 'secular worldview' is glossed (p.268):

A secular world view: This includes, as in the example given in the non-statutory national framework, secular philosophies such as Humanism.

d. …and in the proposed non-statutory programme of learning for RE at primary level...

In April 2009, at the same time as the draft guidance for RE was released, a non-statutory programme of learning in primary level RE, which it is proposed to issue alongside the new primary National Curriculum was published. This programme says that RE is important because, 'it develops children's knowledge and understanding of religions and beliefs' (p.1) and it defines 'religions and beliefs' in its third explanatory note:

    3. The phrase 'religions and beliefs' should be taken to include religious and secular world views, and their associated practices.

Under 'Breadth of learning' (p.2) it prescribes the content of RE as including 'secular world views, such as humanism' and adds an explanatory note (ninth explanatory note) to say:

    Over the primary phase as a whole, children should draw on both religious and non-religious world views.

In prescribing curriculum content under the heading of 'Curriculum Progression' (p.3), the phrase 'religions and beliefs' or variants of it are used repeatedly. Pupils will 'name and explore a range of celebrations, worship and rituals in religions or beliefs' (E2); 'describe and discuss some key aspects of religions and beliefs' (L1); 'investigate the significance and impact of religion and belief in some local, national and global communities' (L2) and so on.

e. …and even in the draft guidance itself, but it is not explicit and it is not defined.

Repeatedly throughout the draft guidance, 'religion and belief' or variants are used to describe the content of religious education. However, when the Education Act 1996 is referred to (and hence in all those parts of the draft guidance that deal with legal requirements), 'religion' or 'religious' is used.

In Chapter 2, 'Religious education - the legal framework', the new guidance says:

2.3 The agreed syllabus

    A locally agreed syllabus is a statutory syllabus of RE prepared under Schedule 31 of the Education Act 1996 and adopted by the LA under that Schedule. Every locally agreed syllabus must reflect that the religious traditions of Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain (Section 375, Education Act 1996). The law does not define what the principal religions represented in Great Britain are. ASCs can decide which principal religions represented in Great Britain, other than Christianity, are to be included in their agreed syllabus…

Although, it is clear to us from other documents referred to, that the government's view is that religious education is about 'religions and beliefs' - including non-religious 'beliefs' (in the ECHR meaning of the word) in the content of the curriculum - there is nothing statutory about these documents and so SACREs and ASCs are free to ignore them. We would like to make the case that there is HRA support for a reading of 'religion' as 'religions and beliefs', that a compatible reading of the Education Act 1996, such as we have suggested above, is necessary, and should be written into the new guidance, which currently gives no rationale for the use of the phrase 'religions and beliefs' throughout.

2. Eligibility of humanists for full membership on SACREs

a. We say that references in primary legislation to eligibility requirements for SACREs and ASCs, where they say 'religions', should be read as 'religions and beliefs'.

Section 390 of the Education Act 1996 sets out the eligibility for membership of the SACRE:

(4) The representative groups required by this subsection are—

(a) a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;

(b) except in the case of an area in Wales, a group of persons to represent the Church of England;

(c) a group of persons to represent such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area; and

(d) a group of persons to represent the authority.

We want to argue that 'beliefs' should be read in:

(a) a group of persons to represent such Christian denominations and other religions and beliefs and denominations of such religions and beliefs as, in the opinion of the authority, will appropriately reflect the principal religious and belief traditions in the area;

Schedule 31, para 4 of the Education Act 1996 provides that:

(1) A conference convened under this Schedule shall consist of such groups of persons ("committees") appointed by the local education authority which convenes the conference as are required by sub-paragraph (2).

(2) Those committees are—

(a) a committee of persons representing such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;

(b) except in the case of an area in Wales, a committee of persons representing the Church of England;

(c) a committee of persons representing such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area; and

(d) a committee of persons representing the authority.

Again, we want to argue that 'beliefs should be read in:

(2) Those committees are—

(a) a committee of persons representing such Christian denominations and other religions and beliefs and denominations of such religions and beliefs as, in the opinion of the authority, will appropriately reflect the principal religious and belief traditions in the area;

b. The old guidance did not say this - it prohibited humanists from full membership instead

Circular 1/94 - the guidance being replaced - explicitly prohibited humanists from full membership of SACREs with reference to the provisions above:

104. The inclusion of representatives of belief systems such as humanism, which do not amount to a religion or religious denomination, on committee A of an Agreed Syllabus Conference or group A of a SACRE would be contrary to the legal provisions referred to at paragraph 103.

c. The new guidance does not replicate the explicit prohibition, but also does not recommend full membership for humanists

We had hoped and expected the new guidance to make it clear that, in light of the HRA, humanists were now eligible to be full members of committee A of an Agreed Syllabus Conference and group A of a SACRE. Although it does not replicate the explicit prohibition on humanist membership given in the old guidance, the new guidance does not recommend the full membership of humanists either on grounds of the HRA or Equality Act 2006, or on any other grounds.

Membership of SACREs

In '5.2 Role of Local Authorities', the new guidance, interpreting the section of the Education Act 1996 quoted above, says:

A LA must…

…establish a permanent body called a Standing Advisory Council for Religious Education (SACRE) (Section 390, Education Act 1996). LAs must appoint representatives to each of four groups representing respectively:

Committee A Christian denominations and other religions and religious denominations

Committee B The Church of England

Committee C Teacher associations

Committee D The local authority

…ensure that the composition of committee A on an ASC and group A on a SACRE are representative of the principal religious traditions in the area.

Implicitly, and cryptically, it recommends that humanists should be co-opted to SACREs and informally attached to group A in '5.3.2 Composition and membership of a SACRE':

    If a SACRE is to be effective, its membership needs to be as inclusive as possible and to reflect the priorities for RE and for education more broadly in the twenty-first century. SACREs are local bodies and so should ensure that the religions and beliefs of the local area are represented. Membership of SACREs must be as required by law, comprising four committees or groups mentioned in Section 5.2 above. A SACRE may also include co-opted members who are not members of any of the four groups, although it is often useful to attach, informally, co-opted members to one of the SACRE groups. Members of a group may well wish to take into consideration the views of co-opted members before taking a vote. SACREs should also make sure that their membership reflects, where possible, the breadth of study of religions and beliefs referred to in the non-statutory National Framework for Religious Education (the Framework) thus embodying a commitment to a RE which is inclusive, broad and balanced. It is therefore desirable that membership of a SACRE (through group membership or co-options) should include representatives who reflect both the diversity of religions and beliefs identified within the local agreed syllabus, and local commitment to inter-religious dialogue and community cohesion.

Under '5.3.3 Decision making and workings of a SACRE', the guidance says:

    Co-opted members do not have a vote (Section 390(7) and Section 391(4), Education Act 1996)

By use of a rather slippery 'case study' the guidance implies, however, that not having the right to vote need not really disadvantage a humanist co-optee:

    A SACRE had several vacancies which needed to be filled and decided to carry out a review of membership in partnership with the LA. This brought to attention the fact that there were significant religion and belief communities in the area not currently represented on Group A, that there were no representatives of higher education on Group C, and that the voices of the young people most affected by the SACRE's work, the pupils, were entirely absent. It was decided that in the interests of effectiveness the membership should be expanded to include young people as well as a Bahá'í and a Humanist representative and somebody from a nearby university. Formal votes were very rarely necessary, and the SACRE and LA agreed that since the statutory requirement was for each group, not each individual representative, to have a single vote, there was no problem about these additional new members contributing to the decision making process.

Membership of ASCs

Under '5.4.2 Membership of an ASC', the new guidance says:

An ASC is required to be made up of four committees representing respectively (Section 390(2) Education Act 1996; Schedule 31, para 4, Education Act 1996):

A Christian denominations and other religions and religious denominations

B The Church of England

C Teacher associations

D The local authority

There is no provision for an ASC to include co-opted members, but this does not mean that advice cannot be sought beyond its membership.

d. The current situation for humanists on SACREs/ASCs and possible effects of the guidance

As it stands, the new guidance appears to be recommending co-opted, non-voting membership of SACREs for humanists and no membership at all of ASCs. Given that, at the same time, government is recommending that Humanism be included in the syllabus, we believe that a prohibition on humanists being involved in deciding what will be said about them and their beliefs (when religious representatives are included) is a gross inequality.

When Circular 1/94 was issued, most humanists who had been full members of existing SACREs were demoted to non-voting, co-opted membership, if they were retained at all, and most of the new SACREs established had no humanist members. Only the two SACREs of Oxford and Westminster, in defiance of the guidance, chose to keep their humanists as full members of SACRE group A and ASC committee A.

In the years since 1994, some co-opted humanists have been chairs and vice chairs of SACREs and given distinguished service in the development of RE and the inclusion of all pupils. Where there have been SACREs of good will, the position of humanists has not been as bad in practice as circular 1/94 mandated in theory. The experience of other humanists, however, (and this is the case for most) has been that circular 1/94 makes SACREs and ASCs feel unable to appoint humanists as members of SACREs and ASCs, and gives cover to those who, for reasons of prejudice, do not wish to do so. Crucially, even where humanists have been able to be co-opted members of SACREs, they have still been prevented from being members of ASCs and so actually involved (as their religious colleagues are) in the writing of syllabuses.

We are concerned that this situation will not be resolved by the draft guidance and, additionally, that by stopping short of recommending full membership of SACREs and ASCs for humanists, it may actually reverse the progress made in some areas. Whereas Oxford and Westminster were the only SACREs we are aware of that chose to retain their humanists as full members in 1994, we are aware of at least seven further SACREs who have restored full group/committee A membership to humanists since 1998 - Brent, Suffolk, Portsmouth, Northumberland, Harrow, Ealing and Camden. In the case of Brent, Portsmouth, and Suffolk this was explicitly in light of the HRA and Equality Act 2006. If the new guidance fails to provide appropriate cover and justification for the actions of these LAs, we are concerned that the position of humanists on these SACREs may deteriorate again.

C: SUPPORT FOR OUR VIEW

a. Human Rights Act 1998

Section 3 of the HRA requires that legislation written before it was adopted should be interpreted to meet its requirements; 'so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights'.  We believe that this means that the DCSF can read references to 'religions' in the Education Act 1996 as references to 'religions an beliefs'.

Section 6 makes it "unlawful for a public authority to act in a way which is incompatible with a Convention right" which - taken with Articles 9 and 14 - arguably applies in the same way as the Equality Act section 52 (below).

b. Equality Act 2006

Section 52 ('Public authorities: general') of the Equality Act 2006 says:

(1) It is unlawful for a public authority exercising a function to do any act which constitutes discrimination.

(2) In subsection (1)—

(a) "public authority" includes any person who has functions of a public nature (subject to subsections (3) and (4)), and

(b) "function" means function of a public nature.

As we read it, 'discrimination' in section 52 refers to the definition of 'discrimination' given in section 45 ('Discrimination'):

(1) A person ("A") discriminates against another ("B") for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

(2) In subsection (1) a reference to a person's religion or belief includes a reference to a religion or belief to which he is thought to belong or subscribe.

(3) A person ("A") discriminates against another ("B") for the purposes of this Part if A applies to B a provision, criterion or practice—

(a) which he applies or would apply equally to persons not of B's religion or belief,

(b) which puts persons of B's religion or belief at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),

(c) which puts B at a disadvantage compared to some or all persons who are not of his religion or belief (where there is no material difference in the relevant circumstances), and

(d) which A cannot reasonably justify by reference to matters other than B's religion or belief.

Section 44 makes it clear that Humanism is covered:

In this Part—

(a) "religion" means any religion,

(b) "belief" means any religious or philosophical belief,

(c) a reference to religion includes a reference to lack of religion, and

(d) a reference to belief includes a reference to lack of belief.

It is true that section 52 also provides that:

(4) The prohibition in subsection (1) shall not apply to—

  …(k) action in relation to—

(i) the curriculum of an educational institution…

But we would argue that the section on membership of SACREs at least is not about the curriculum & arguably none of the guidance is per se.

Section 66 of the Act ('Claim of unlawful action') reads:

(1) A claim that a person has done anything that is unlawful by virtue of this Part may be brought in a county court (in England and Wales) or in the sheriff court (in Scotland) by way of proceedings in tort (or reparation) for breach of statutory duty.

(4) In subsection (1) the reference to a claim that a person has done an unlawful act includes a reference to a claim that a person is to be treated by virtue of this Part as having done an unlawful act.

(5) In proceedings under this section, if the claimant (or pursuer) proves facts from which the court could conclude, in the absence of a reasonable alternative explanation, that an act which is unlawful by virtue of this Part has been committed, the court shall assume that the act was unlawful unless the respondent (or defender) proves that it was not.

We believe that the Equality Act 2006 may therefore be used in action over the draft guidance.

c. UN Special Rapporteur on freedom of religion or belief on RE in the UK

The UN Special Rapporteur on freedom of religion or belief in her 2008 report on the UK (A/HRC/7/10/Add.3) made a recommendation to the UK authorities in light of the current discriminatory situation for humanists (emphasis added):

69. With regard to religious education, the authorities should pay specific attention to the contents of syllabuses in publicly funded schools. Furthermore, a non-discriminatory membership of relevant committees preparing such syllabuses seems vital to adequately represent the various theistic, non-theistic and atheistic approaches. The Final Document of the International Consultative Conference on School Education in Relation to Freedom of Religion or Belief, Tolerance and Non-Discrimination deemed that each State should promote and respect educational policies aimed at strengthening the promotion and protection of human rights, ensuring respect for and acceptance of pluralism and diversity in the field of religion or belief as well as the right not to receive religious instruction inconsistent with his or her conviction (E/CN.4/2002/73, appendix, para. 4). Most recently, the Office for Democratic Institutions and Human Rights (ODIHR-OSCE) Advisory Council of Experts on Freedom of Religion or Belief has prepared the "Toledo Guiding Principles on teaching about religions and beliefs in public schools" which may provide further useful guidance in this regard.

d. ODIHR Advisory Council of Experts on Freedom of Religion or Belief on the drawing up of curricula to do with religions and beliefs

Toledo Guiding Principles on teaching about religions and beliefs in public schools (2007), the ODIHR-OSCE document to which the Special Rapporteur refers, among its other recommendations to OSCE participating states (which, of course, includes the UK) recommended that they should:

    4. Assess the process that leads to the development of curricula on teaching about religions and beliefs to make sure that this process is sensitive to the needs of various religious and belief communities and that all relevant stakeholders have an opportunity to have their voices heard.

And included amongst the guiding principles themselves were (emphasis added):

4. Efforts should be made to establish advisory bodies at different levels that take an inclusive approach to involving different stakeholders in the preparation and implementation of curricula and in the training of teachers.

7. Preparation of curricula, textbooks and educational materials for teaching about religions and beliefs should take into account religious and non-religious views in a way that is inclusive, fair, and respectful. Care should be taken to avoid inaccurate or prejudicial material, particularly when this reinforces negative stereotypes.

8. Curricula should be developed in accordance with recognized professional standards in order to ensure a balanced approach to study about religions and beliefs. Development and implementation of curricula should also include open and fair procedures that give all interested parties appropriate opportunities to offer comments and advice.

It is made clear that this advice is to deal with very real discrimination (pp.41-2):

    Curricula should be sensitive to different local manifestations of religious and secular plurality found in schools and the communities they serve. Such sensitivities will help address the concerns of students, parents and other stakeholders in education, especially with regard to a fair and balanced coverage of different religions and philosophies. The negative impact on the self-esteem and sense of belonging of students who feel excluded has been well documented. Parents who feel that their (religious) beliefs are not respected in the school and school curriculum are also less likely to feel a sense of engagement with the learning that takes place in the schools their children attend. An impartial and inclusive approach should therefore be reflected in the general policy and outlook of the school as well as throughout the curriculum.

e. OSCE/ODIHR Guidelines for Review of Legislation Pertaining to Religion or Belief, (Warsaw, ODIHR, 2004)

On page 20 of the Toledo Principles, it is said that:

    belief refers to deeply held conscientious convictions that are fundamental about the human condition and the world. See the working definition given in OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief, Guidelines for Review of Legislation Pertaining to Religion or Belief, (Warsaw, ODIHR, 2004)

These guidelines state (p.8):

    International standards do not speak of religion in an isolated sense, but of "religion or belief." The "belief" aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world. Thus, atheism and agnosticism, for example, are generally held to be entitled to the same protection as religious beliefs. It is very common for legislation not to protect adequately (or to not refer at all to) rights of non-believers. Although not all beliefs are entitled to equal protection, legislation should be reviewed for discrimination against non-believers.

f. Concluding Document of the Vienna Meeting 1989 of Representatives of the Participating States of the Conference on Security and Co-operation in Europe

This sets out a number of key principles concerning the enjoyment of the freedom of religion and belief, these being that:

(16) In order to ensure the freedom of the individual to profess and practise religion or belief, the participating States will, inter alia,

(16.1) - take effective measures to prevent and eliminate discrimination against individuals or communities on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, political, economic, social and cultural life, and to ensure the effective equality between believers and non-believers;

(16.2) - foster a climate of mutual tolerance and respect between believers of different communities as well as between believers and non-believers;

g. Final Document of the International Consultative Conference on School Education in Relation to Freedom of Religion or Belief, Tolerance and Non-Discrimination

Recommended for the attention of the UK government by the UN Special Rapporteur as above. In this document, the conference (emphasis added):

4. Deems that each State, at the appropriate level of government, should promote and respect educational policies aimed at strengthening the promotion and protection of human rights, eradicating prejudices and conceptions incompatible with freedom of religion or belief, and ensuring respect for and acceptance of pluralism and diversity in the field of religion or belief as well as the right not to receive religious instruction inconsistent with his or her conviction;

6. Condemns all forms of intolerance and discrimination based on religion or belief including those which promote hatred, racism or xenophobia, and deems that States should take appropriate measures against those which manifest themselves in school curricula, textbooks and teaching methods as well as those disseminated by the media and the new information technologies, including Internet;

7. Considers favourably the following objectives:

(a) The strengthening of a non-discriminatory perspective in education and of knowledge in relation to freedom of religion or belief at the appropriate levels;

(b) The encouragement of those engaged in teaching to cultivate respect for religions or beliefs, thereby promoting mutual understanding and tolerance;

h. Council of Europe's 'Recommendation of the Committee of Ministers to member states on the dimension of religions and non-religious convictions within intercultural education' (CM/Rec(2008)12)

In this recommendation, the Committee of Ministers:

1. Recommends that the governments of member states, with due regard for their constitutional structures, national or local situations and educational system:

a. draw on the principles set out in the appendix to this recommendation in their current or future educational reforms;

Appendix to Recommendation CM/Rec(2008)12

1. The recommendation's aim is to ensure taking into account the dimension of religions and non-religious convictions within intercultural education as a contribution to strengthen human rights, democratic citizenship and participation, and to the development of competences for intercultural dialogue, at the following levels:

- education policies, in the form of clear-cut education principles and objectives;

3. Religious and non religious convictions are diverse and complex phenomena; they are not monolithic. In addition, people hold religious and non-religious convictions to varying degrees, and for different reasons; for some such convictions are central and may be a matter of choice, for others they are subsidiary and may be a matter of historical circumstances. The dimension of religions and non-religious convictions within intercultural education should therefore reflect such diversity and complexity at a local, regional and international level.

Principles for taking the dimension of religions and non-religious convictions into account in the framework of intercultural education

4. The following principles should form the basis and define the perspective from which religions and non-religious convictions have to be taken into account in a framework of intercultural education:

- the principle of the freedom of conscience and of thought includes the freedom to have a religion or not to have one, and the freedom to practice one's religion, to give it up or to change it if one so wishes;

- agreement that religions and non-religious convictions are at least "cultural facts" that contribute, along with other elements such as language and historical and cultural traditions to social and individual life;

- information on and knowledge of religions and non-religious convictions which influence the behaviour of individuals in public life should be taught in order to develop tolerance as well as mutual understanding and trust;

- religions and non-religious convictions develop on the basis of individual learning and experience, and are not entirely predefined by one's family or community;

- an interdisciplinary approach to education in religious, moral and civic values should be encouraged in order to develop sensitivity to human rights (including gender equality), peace, democratic citizenship, dialogue and solidarity;

- intercultural dialogue and its religious and non-religious convictions dimension are an essential precondition for the development of tolerance and a culture of "living together", as well as for the recognition of our different identities on the basis of human rights;

- the manner in which the dimension of religious and non-religious convictions within intercultural education is introduced in practice could take into account the age and maturity of pupils to whom it is addressed as well as the already existing best practices of the respective member states.

Objectives of an intercultural approach concerning the religious and non-religious convictions dimension in education

  5. Education should develop intercultural competences through:

  - developing a tolerant attitude and respect for the right to hold a particular belief, attitudes based on the recognition of the inherent dignity and fundamental freedoms of each human being;

  - nurturing a sensitivity to the diversity of religions and non-religious convictions as an element contributing to the richness of Europe;

  - ensuring that teaching about the diversity of religions and non-religious convictions is consistent with the aims of education for democratic citizenship, human rights and respect for equal dignity of all individuals;

  - promoting communication and dialogue between people from different cultural, religious and non-religious backgrounds;

- providing opportunity to create spaces for intercultural dialogue in order to prevent religious or cultural divides;

  - addressing the sensitive or controversial issues to which the diversity of religions and non-religious convictions may give rise;

  - developing skills of critical evaluation and reflection with regard to understanding the perspectives and ways of life of different religions and non-religious convictions;

  - combating prejudice and stereotypes vis-à-vis difference which are barriers to intercultural dialogue, and educating in respect for equal dignity of all individuals;

  - fostering an ability to analyse and interpret impartially the many varied items of information relating to the diversity of religions and non-religious convictions, without prejudice to the need to respect pupils' religious or non-religious convictions and without prejudice to the religious education given outside the public education sphere.

Requirements for dealing with the diversity of religions and non-religious convictions in an educational context

6. The following attitudes should be promoted in order to remove obstacles that prevent a proper treatment of the diversity of religions and non-religious convictions in an educational context:

  - recognising the place of religions and non-religious convictions in the public sphere and at school as topic for discussion and reflection;

  - recognising that different religions and humanistic traditions have deeply influenced Europe and continue to do so;

  - promoting a balanced approach of the presentation of the role of religions and other convictions in history and cultural heritage;

  - accepting that religions and non-religious convictions are often an important part of individual identity;

  - overcoming prejudices and stereotypes concerning religions and non-religious convictions, especially the practices of minority groups and immigrants, in order to contribute to the development of societies based on solidarity.

Teaching aspects of an intercultural approach to religions and non-religious convictions in education

7. In order to encourage consideration of the diversity of religions and non-religious convictions in the educational context, and to promote intercultural dialogue, the following educational preconditions and learning methods can be seen as highly appropriate examples:

7.2 Various learning methods

…- the development of appropriate pedagogical approaches such as:

  - a phenomenological approach aimed at cultivating a knowledge and understanding of religions and non-religious convictions as well as respect for other persons irrespectively of their religious and ?non-religious convictions;

  - an interpretative approach which encourages a flexible understanding of religions and non-religious convictions and avoids placing them in a rigid pre-defined framework;

July 2009


100   Main Cases pending supervision, database, presented 17 October 2006 to the Committee of Ministers; Execution of Edwards v United Kingdom App 46477/99 (page 218).We note that the Committee of Ministers Deputies have reopened their consideration of the implementation of this judgment and are awaiting further information. http://www.coe.int/t/e/human_rights/execution/02_documents/PPcasesExecution_Nov%202006.pdf Back

101   Clause 1.See Coroners Act 1988, Section 8(1). Back

102   Ibid, page 116 Back

103   "The Draft Coroners Bill", Liberty Briefing, para 12. Back

104   Jordan v United Kingdom (2003) 37 EHRR 2, para 141 (Failure to disclose witness statements and/or take evidence from various members of the security forces in breach of Article 2 ECHR)  Back

105   Liberty, Briefing on Draft Coroners Bill, September 2006 Back

106   Coroners Act 1988, Section 17A, inserted by Access to Justice Act 1999, s71(1) Back

107   2004-05, Eighth Report, 3.1-3.18 (See also 2004-05, Fourth Report) Back

108   Jordan v United Kingdom (2003) 37 EHRR 2, para 109; R (Khan) v Secretary of State for Health [2004] 1 WLR 971 Back

109   2004-05, Third Report, at paras 307-309. Back

110   Ibid. Back

111   Edwards v United Kingdom [2002] ECHR 46477/99 Back

112   in [2004] UKHL 47 Back

113   Seventeenth Report of Session 2004-05, Review of International Human Rights Instruments, HL Paper 99/HC 264, paragraphs 9 - 27. Back

114   CCPR/C/GBR/CO/6,Concluding Observations of the UN Human Rights Committee on the Sixth Periodic UK Report, 30 July 2008, paragraph 6. Back

115   Although even here the power is structured to facilitate appointment of persons with knowledge of the

relevant background. Back

116   "Home Office name hate promoters excluded from the UK", Home Office Press Release, 5 May 2009. Back

117   BBC Breakfast interview, 6 May 2009. Back

118   JCHR Third Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters, HL 75-I/HC 561-I, paras 105, 109-119. Back

119   "Tackling Terrorism-Behaviours Unacceptable in the UK", Home Office Press Release, 24 August 2005. Back

120   Government's Response, HL 114/HC 888. Back

121   Hansard, 28 October 2008, col 26WS. Back

122   Q43. Back

123   http://www.fsa.gov.uk/pubs/discussion/fs08_06.pdf Back

124   Section 243(3) Housing Act 2004. Back

125   Eighth Report of Session 2003-04, HL paper 49, HC 427. Back

126   Ibid. at para. 4.35. Back

127   Tenth Report of Session 2003-04, HL Paper 64/HC503. Back

128   Twentieth Report of Session 2003-04, HL Paper 182/HC 1187, Appendix 2 at para. 10. Back

129   Ibid. at para. 3.2. Back

130   HC (2007-08) 132, Oral evidence 26 Nov 07, Q43. Back

131   HC (2007-08) 270, paragraph 83. Back

132   HC (2007-08) 526, page 15. Back

133   HC (2008-09) 92, paragraph 83. Back

134   HC (2008-09) 291, paragraph 85. Back

135   HC (2008-09) 592, page pp37-38.  Back

136   HC (2008-09) 174-i, Q79. Back


 
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