Conclusions and recommendations
1 Recommendation
1. While
we welcome the Government's decision to use the remedial order
process in this case, we raise a number of significant concerns
about the Government's approach, below. We recommend that the
proposals are amended to provide for a review by an independent
tribunal before any draft order is tabled. Without such amendment,
we will be unable to recommend the approval of any proposed draft
order. (Paragraph 5)
3 Is it proper to proceed by way of non-urgent
remedial order?
2. In
light of the time which has passed since the decision in Thompson,
the continuing impact on those required to notify indefinitely,
and ongoing uncertainty about the lawfulness of the notification
requirements, there are sufficiently compelling reasons to justify
the use of the remedial order process. (Paragraph 19)
3. We
agree with the Government's assessment that there are compelling
reasons for using the remedial order process to introduce a form
of review into the registration of sex offenders. We also agree
that an urgent remedial order would not be justified. There is
nothing in this case which would justify the use of the urgent
remedial order process. An increasing number of people are subject
to indefinite notification requirements. However, the significance
of the impact of these requirements does not justify the removal
of the opportunity for parliamentary scrutiny before the relevant
reforms come into force. This is particularly significant in light
of the political sensitivity of these measures. (Paragraph 22)
4 Does the draft Order remedy the incompatibility?
4. It
is our view that the proposals in the Bill do not remove the incompatibility
identified by the Supreme Court. We recommend that the draft Order
should not be tabled in the terms proposed. It is our view that,
without significant amendment, the proposals in the draft Order
will lead to repeat litigation and further violations of Article
8 ECHR. (Paragraph 26)
5. The
proposals in the Bill will not remove the incompatibility identified
by the Supreme Court in Thompson. We consider that the draft Order
should be amended to introduce a review by application to an independent
and impartial tribunal, with a requirement that the Chief Police
Officer (and other MAPPA institutions) should be notified of the
application and should submit reports on their assessment of the
risk posed by the applicant; or that the Order is amended to introduce
a full statutory right of appeal from the decision of the Chief
Officer to an independent and impartial tribunal. In our view,
either of these options would introduce a sufficiently independent
element to the review process. (Paragraph 29)
6. However,
together with the changes set out at paragraphs 37-38 below, amendment
of the draft Order to provide for a full statutory appeal to an
independent and impartial court or tribunal would be the minimum
required to ensure that the Government's proposals will remove
the violation identified by the Supreme Court. We consider that
an appropriate tribunal in these circumstances should be a court
of sufficient seniority, such as the High Court or the Crown Court
(following the model proposed in Northern Ireland). (Paragraph
30)
7. In
our view, without amendment to make clear that the review of notification
requirements involves an assessment of whether the impact on the
individual applicant for review of continuing notification continues
to be justified and necessary in light of the risk they pose to
the public, there is a risk that the Government's proposals will
not remove the violation identified by the Supreme Court. (Paragraph
37)
8. We
recommend amendment of the draft Order to (a) include a test to
be applied on review, incorporating a proportionality exercise
and (b) to introduce the impact on the individual offender as
a relevant factor to be considered on review. (Paragraph 38)
9. Without
extraordinary provision for review of the proportionality and
necessity in connection with any requirement to notify for a fixed
period of time, there remains a risk of further challenges to
the operation of the register. In individual cases where the circumstances
of the relevant offence or offender are such that the risk of
further reoffending are reduced significantly very early in the
period of compulsory notification, continued registration may
be unjustifiable. We draw this to the attention of both Houses.
Members may wish to ask the Government to provide further justification
for the proposed 15 and 8 year timescales for initial review.
(Paragraph 44)
10. We
welcome the Government's confirmation that guidance will be necessary
to accompany the new review mechanism. We consider that this guidance
will be essential to ensure procedural fairness and the effective
involvement of victims and offenders in the decision making process.
It will also enhance the likelihood of consistency in approach
to the review process. However, we are concerned that the requirement
for guidance (and its need to provide clarity on key procedural
aspects of the review process) is not provided for in the draft
Order. (Paragraph 48)
11. We
recommend that the draft Order is amended to include a requirement
for statutory guidance to be issued on the making of determinations
of any application for review, including on relevant procedural
issues, for example, the requirement for the applicant to understand
the evidential basis for the assessment that notification is considered
necessary and the right to make representations. This statutory
guidance should also deal with the involvement and relevance of
any input by victims of previous offences, in connection with
the assessment of the risk posed by the applicant. (Paragraph
49)
12. We
recommend that the Government consider amendment of the draft
Order to introduce either (i) a discretionary opportunity for
review of the proportionality of notification requirements imposed
on child offenders or (ii) a shorter period for rolling reviews
in the case of child offenders (perhaps providing for applications
to be possible at two year intervals, rather than 8 year periods).
(Paragraph 54)
13. We
consider that the Government is under a particular obligation
to justify the review periods which it proposes to apply to offenders
who were children at the time when they committed the relevant
offence which led to the imposition of notification requirements.
(Paragraph 54)
5 Other matters arising
14. While
we acknowledge the political interest in Government's seeking
to maintain their policy objectives when responding to adverse
human rights judgments, we share our predecessor's concerns that
the first objective of any remedial order or legislation designed
for this purpose should be to remove the relevant violation. While
States have discretion in how they respond to individual judgments,
bringing forward proposals which clearly do not meet the concerns
of the relevant court involves asking Parliament to acquiesce
in an approach which will encourage repetitive litigation and
could lead to future violations of individual rights. Remedial
orders are designed to be used when the Government intends to
remove a violation and provide a fast-track parliamentary procedure
for remedying breaches of the Convention quickly. We consider
that it is our role to advise both Houses about both the substance
of any measures proposes and to highlight any unusual and inappropriate
use of this power. Introducing measures which create a significant
risk of further litigation using this special parliamentary procedure
appears to us to undermine the purpose for which it was intended.
(Paragraph 56)
15. While
it is clearly open to each of the constituent parts of the UK
to adopt a different approach to the Supreme Court's judgment,
we are concerned that if the Government proceeds with its minimalist
response to the violation identified that further litigation in
England and Wales is inevitable. In principle however, we note
that different approaches, each of which removed the violation,
could be entirely appropriate for each of the administrations
responding to adverse human rights judgments. Care must however
be taken, when this discordant approach arises to ensure that
the ECHR is respected across the UK and that mechanisms are in
place to ensure that geography does not lead to significant disparities
in the protection offered to individuals' rights. (Paragraph 57)
16. We
draw the proposed relationship between Sexual Offences Prevention
Orders and the review mechanism proposed by the Government to
the attention of both Houses. Members may wish to ask the Government
to provide fuller information on how this relationship will work
in practice, clarify the distinct assessment of risk which will
be applied by the Court discharging the SOPO and the Chief Officer
considering review of notification requirements, and to explain
any likely associated costs of requiring a second, separate risk
assessment exercise. (Paragraph 58)
17. Unfortunately,
in cases such as this, where the proposal made by the Government
does not meet the violation identified, it is clear that costs
and administrative convenience cannot outweigh the risks associated
with further future litigation costs and continued violations
of the ECHR. (Paragraph 60)
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