2 Background to our recommendation
The purpose and effect of the
proposal for a draft order
6. The purpose of this draft proposal for a remedial
order is to remove the incompatibility in Section 82(1) of the
Sexual Offences Act 2003 identified by the domestic courts in
F &Thompson v Secretary of State for the Home Department.[7]
7. Section 82(1) provides for the notification arrangements
created by the Sexual Offences Act 2003 (and commonly known as
"Sex Offenders Registration") to apply indefinitely
to offenders sentenced to a term of imprisonment lasting 30 months
or more. Other offenders who commit relevant offences may be made
subject to a restriction order and these offenders are also required
to notify indefinitely. The Supreme Court concluded that, in so
far as these provisions allow for indefinite notification without
review, they present a disproportionate interference with the
right to respect for private life and are incompatible with Article
8(1) ECHR.[8]
8. The Supreme Court concluded that the terms of
the notification scheme engaged the right to respect for private
life enjoyed by offenders. The impact on offenders was not insignificant.
However, the requirement for notification served a legitimate
aim of protecting the rights of others from the risk posed by
offenders. The Court accepted that significant weight was to be
placed on measures designed to protect individuals against sexual
offences. Ultimately however, the Court concluded that:
There must be some circumstances in which an appropriate
tribunal could reliably conclude that the risk of an individual
carrying out a further sexual offence can be discounted to the
extent that continuance of notification requirements is unjustified.
As the courts below have observed, it is open to the legislature
to impose a high threshold for review. Registration systems are
not uncommon in other jurisdictions.[9]
9. In the course of making its decision, the Supreme
Court considered the operation of review requirements in other
jurisdictions. In the Impact Assessment accompanying this Order,
the Government notes that in other jurisdictions, review is generally
conducted by a Court on application by the relevant offender.
In France, the review is conducted by the prosecutor, but subject
to subsequent appeal to a judge.[10]
10. The Supreme Court considered the only Strasbourg
authority on this issue was not decisive, but was relevant to
their assessment. In this case, the European Court of Human Rights
considered the reporting requirements applicable in France were
compatible with the right to respect for private life guaranteed
by Article 8 ECHR.[11]
However, as the Supreme Court noted, the possibility for review
was "highly material" to the determination that the
French reporting mechanism operates in a proportionate manner.
It is important to note that the Court in the French case refers
to the entirety of the review mechanism, including the opportunity
for an appeal to the "freedoms and detention judge"
(juge des libertés et detentions) and then
on to the President of the investigating chamber.[12]
11. The draft Order would introduce a mechanism for
review on application to the relevant Chief Police Officer. The
review would be triggered on application by an offender and would
only be available either 15 years after release from custody for
adult offenders or eight years after release for offenders who
were under-18 when they committed the relevant offence.[13]
The relevant Chief Police Officer will consider written
representations from the offender before making his final decision.
The Chief Police Officer may confirm the notification requirements
or remove them.[14] If
the notification requirements are confirmed, there will be a further
opportunity for review after eight years unless the Chief Officer
orders that review shall be at a later date for reasons of public
protection.[15]
A further review must be made available within 15 years
at the latest.[16] The
Impact Assessment indicates that the decision of the Chief Police
Officer will not be subject to a right of appeal.[17]
Parliamentary scrutiny of remedial
orders
12. The Committee has adopted the practice of reporting
on the technical compliance of any remedial order with the HRA
1998, of recommending, in accordance with the requirements of
the Standing Orders, whether or not the order should be approved,
and of noting whether the order raises any concerns which would
ordinarily be within the remit of the Joint Select Committee on
Statutory Instruments.[18]
Broadly, the Committee asks whether the draft order:
- should be approved in the form
in which it was originally laid before Parliament;
- should be replaced by a new order modifying its
provisions; or
- should not be approved.[19]
13. In order to answer these questions, the Committee
generally asks:
- Have the conditions for using
the remedial order process (Section 10, HRA 1998) been met?
- Are the reasons for proceeding by remedial order
rather than by primary legislation, "compelling"?
- Has the Government produced the information required
by the HRA 1998?
- Has the Government effectively responded to other
requests for information from the Committee?
- Does the proposal remove the incompatibility
with Convention rights which it is designed to meet, and is it
appropriate?
- Is the procedure used—urgent or non-urgent—appropriate?
14. The relevant grounds on which the JCSI can draw
a statutory instrument to the special attention of each House
are:[20]
- that it imposes a charge on
the public revenues or requires payments to be made to a public
authority;
- that there appears to have been unjustifiable
delay in the publication or laying of the order before Parliament;
- that there appears to have been unjustifiable
delay in notifying the Speaker or Lord Speaker where the order
has come into effect before being laid;
- that there appears to be a doubt whether it is
intra vires or that it appears to make some unusual or
unexpected use of the powers conferred by the statute under which
it is made;
- that for any special reason its form or purport
calls for elucidation;
- that its drafting appears to be defective;
- or on any other ground which does not impinge
on its merits or the policy behind it.
15. The Committee can draw the attention of each
House to the order on any of these grounds and may also report
to each House on "any matter arising" from its consideration
of the order.[21]
7 [2010] UKSC 17 (Herein "F & Thompson") Back
8
F & Thompson, para 57. Back
9
F & Thompson, para 57. Back
10
Impact Assessment, page 7. Back
11
Bouchacourt v France, App No 5335/06, 17 December 2009. Back
12
F & Thompson, para 33. Back
13
Section 3, New Section 91B(2) Back
14
Section 3, New Section 91(C) Back
15
Section 3, New Section 91B(4)-(5) Back
16
Section 3, New Section 91B(4)-(5) Back
17
Impact Assessment, page 11. Back
18
Fifteenth Report of 2009-10, Enhancing Parliament's Role in
relation to Human Rights Judgments, HL 85/HC 455, Annex, paras
22-23. Back
19
S.O. No. 152B(4) of the House of Commons. Back
20
S.O. No. 151(B) of the House of Commons. Back
21
S.O. No. 152B(4) of the House of Commons. Back
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