Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1. Minister, good afternoon, and welcome to the first public session of the Joint Committee on Human Rights. I think it is probably right to say that the walls of Parliament have in the past echoed occasionally to exaggeration and rhetoric, but it is no exaggeration to say that this is an historic occasion because it is the first public session of the Joint Committee on Human Rights. We had our first meeting on 31 January. We are a Committee, as the name implies, comprising six Members of the House of Lords, six Members of the House of Commons, six from the Government, six from the opposition, and we have a wide remit. So far we have written to interested parties about the Human Rights Act's impact on the Committee's work, to Cabinet Ministers about compatibility issues and obviously one of those refers to section 19 on the Scrutiny of Bills, and it is the main reason for asking you to come here today with your officials to discuss with us the Criminal Justice and Police Bill. Before we start, and before I ask you to introduce your team, I would like to say on behalf of the Committee how grateful we are for the prompt and comprehensive way in which the Home Office have responded on a very, very tight timescale to the many questions we asked about this Bill. We would like to say that we think that the briefing which has been sent to us by the Home Office should serve as a model for the way in which Government departments respond to enquiries from this Committee and the serious nature with which they have dealt with our questions. I want to give my thanks you to you and ask you to introduce your team.

  (Mr Clarke) Chairman, firstly can I express my thanks for those words. The credit for it is entirely due to my team and the work that they have done in preparation for the Bill generally. I know they will appreciate, as I do, what you have just said. I have got at the table with me Valerie Keating, who is the Bill Team leader and is co-ordinating all the work we do for the Bill in the House, and Bernard Lane who deals particularly with the alcohol parts of the Bill. Other members of my team I will not introduce by name because, as the Committee will appreciate, the Bill covers a range of different aspects of Home Office work and, therefore, the different experts have been brought together from those areas. Could I just say that for the Government's part we very, very much note the historic nature of this meeting today. We very much welcome the establishment of your Committee. We do believe that your Committee will enable Parliament better to address the Human Rights Act implications of legislation going through the House in the future. We think that the way to proceed and on which you have set out a series of questions is the right way to proceed. I am not a lawyer and many of you are distinguished lawyers, so in some cases I hope I will be excused if I simply respond from the brief which I have on detailed legal matters, but I will endeavour to be as clear as I can in answers to your questions.

  Chairman: Thank you very much. You have already had indications of the parts of the Bill that we particularly wish to raise with you and Members will obviously raise points that occur to them as we try to go through the Bill in a sequential fashion. First of all, Lord Lester.

Lord Lester of Herne Hill

  2. Thank you very much. I would like to ask, if I may, about the provisions prohibiting alcohol in designated public places. In the Home Office memorandum you very helpfully set out the policy reasons for introducing these measures in paragraphs six and seven. Taking those as given and showing an important general and pressing need, what I would like to ask about is really the Human Rights standards against which one is measuring this. I want to do it in a way that is, as far as possible, accessible to the wider world, so I will try not to sound like a lawyer. I am really seeking confirmation about this because it is not clear from your memorandum and I want to see that it is common ground. As I understand it the two main standards or criteria that we should be concerned about, leaving aside the questions of policy, are, first of all, legal certainty, reasonable legal certainty, in other words is the way in which the public places are defined sufficiently reasonably certain to satisfy that standard and, secondly, the test of pressing social need, proportionality and necessity, and let us just call that proportionality for the sake of argument. If I can ask a general question first of all. Looking at Human Rights Act areas like privacy and property, which are the ones that have been identified here, Article 8 of the Human Rights Convention and Article 1 of the First Protocol, is it common ground that the Government and Parliament and the wider world should be concerned about reasonable certainty, that is to say the definition should be sufficiently precise, though not too precise, to satisfy that, and proportionality and necessity?
  (Mr Clarke) The short answer to your question is yes, but I am not quite sure when you refer to "common ground", common ground between whom and whom. I certainly believe that both legal necessity, as you have indicated, and proportionality are key elements of the legislation and those are among the reasons why we are confident that the Bill as proposed passes the test of according with the Human Rights Act. My general answer to the question is yes, and I am happy to go into more detail as you pursue further. When you say "common ground", I am not sure—

  3. I meant common ground between the Government and, if you like, myself individually. I did not mean anything more than that. Then in terms of the very wide definition of "public place" in terms of legal certainty, I put it that way because the memorandum does not refer as such either to proportionality or to legal certainty. It is not a criticism but it is simply why I put the question in the first place. Could I ask you, Minister, whether you are satisfied that the wide definition of "public place" does satisfy, first of all, legal certainty and then pressing social need, proportionality?
  (Mr Clarke) We do believe that the definition of "public place" provided by clause 18(1) is proportionate to the purpose of clauses 14 to 17, which is to reduce the incidence of disorder and public nuisance arising from alcohol consumption in public places. We think that the definition of "public place" in clause 18(1) is sufficiently wide to allow the local authority to designate, for this purpose, any place within its area which is open to the public. This includes places such as streets and parks but other places also to which members of the public may have access, for example privately owned shopping centres, where public drinking may give rise to public nuisance and disorder. As the Home Secretary made clear in the memorandum to the Committee, regulations under clause 15(4) will provide for the owners of any private land to be designated to be consulted. But in our view it would severely limit the usefulness of the power if it were limited to places in "public ownership" for that reason. The test in clause 15(2) tailors the definition of public places by restricting the local authority's power in this context to those that have experienced nuisance, annoyance or disorder arising from public drinking. The local authority will have to satisfy itself of the need for designation; it will not be lawful to designate public places which have not experienced problems associated with public drinking. I think it is worth saying, Chairman, that 113 local authorities have adopted the model byelaw to control public drinking, which these adoptive provisions will replace. We believe that practice does establish the need for these powers and also indicates that there has as yet so far been no significant difficulty or problem about the exercise of those powers in places where that byelaw has been adopted.

  4. I am very grateful. Could I just ask one short supplementary question on proportionality? I wonder why it says in clause 15(2) "...has been associated with the consumption of intoxicating liquor in that place" without any time limit. On the face of it the fact that the local authority identifies any public place in their area where there has been nuisance, let us say, or disorder and the place has been associated with the consumption of intoxicating liquor in that place at any time, how does one square the "at any time in the past"? So far as I read this it could have been ten years ago in one sense. How is one going to make sure that is carefully tailored to ensure pressing social need, proportionality?
  (Mr Clarke) I accept that in principle it is imaginable that a problem of that kind could arise if you do not specify a time period here. When an ancient fair was held in medieval times was there disorder or not? I do not accept that it is a severe limitation upon the principle of proportionality. I have to confess, it is not an issue I have thought about a great deal. We did not debate this in Committee, there were no amendments moved to that on limitation of time. The reason for that was we wanted to give the local authority—We set a whole series of requirements about their need to consult widely on this rather than to be arbitrary in what they do, including we made it clear in Committee the requirement to talk to parish and town councils in the area where we are talking about, so it is not just a local authority but a much more local geographic entity as well. It seemed to us that ability was sufficiently constrained in a proportional way by the legislation which is here. I am speaking off the cuff really but I cannot accept the specific identification of the time period, whether five years, ten years, 20 years or whatever, would significantly of itself increase or reduce the action of a local authority as a liability to a charge of being disproportionate in the way that it operated. I am prepared, and I do not know how this Committee is going to work, Chairman, it is interesting to see how it goes, to have a look at that and think about that question but so far, thus far, we do not believe that even a relatively extreme time factor in this would be a serious inhibition on the proportional grounds that we are talking about.

Sir Patrick Cormack

  5. Following that up, Minister, it is quite clear that a single incident can lead to designation regardless of how improbable it is that a similar incident can take place again in that way. Are you not a little worried about that?
  (Mr Clarke) No, because I think that local people in a particular circumstance are very well placed to make a judgment on both the likelihood of the action recurring and, indeed, addressing the question of time when these issues come through. I can imagine that if there were a single incident only that it might be argued that it was wrong then to designate a particular area. I can see, Sir Patrick, how that argument could be made. Again, we are very happy to leave it to the local authority—as I say, there have been 113 authorities which have passed byelaws in these areas—to make a judgment on how likely an event is or is not to happen. There is clearly a massive distinction between an individual act where one particular person has come in from outside and has created disorder in a particular place, for whatever reason, and a new set of events happening where, for example, a set of football matches were to be played in the immediate locality or whatever it might be which might give rise to the concerns operating for the future.

  6. How will you monitor this?
  (Mr Clarke) We will, as a Government, be looking very carefully at the way in which the whole of this legislation operates and seeing what public places are designated. One of the points which we agreed in Committee following representations from the Liberal Democrat representatives in the Committee was that we should try and achieve a national website where we had information about what areas were designated and what areas were not, because at the moment in the whole byelaw structure it is very complicated, nobody knows exactly what the state of affairs is. We agreed there should be transparency in these areas and I think the process of trying to achieve transparency will enable us to monitor the situation.

  7. Is there a specific individual within the Home Office who has this responsibility?
  (Mr Clarke) My colleague, Mr Lane, has responsibility for alcohol related matters in general, so he has an overall responsibility in this regard.

  8. So you will give him responsibility for this in particular, will you?
  (Mr Clarke) I think he will be the individual, depending on his future career following the passage of this Bill, who will have the job of reporting to Ministers at the time on how things move. We accept completely the thrust of the question you are raising, Sir Patrick, that it is right to monitor it, right to assess it and right from time to time to report publicly on how we perceive this legislation as having operated.


  9. Proportionality and certainty are different issues and if it is not sufficiently certain one never gets as far as proportionality because the provision is incompatible.
  (Mr Clarke) That is right. The point that perhaps I have not emphasised enough in what I have answered so far is the requirement on the police to focus very much on public safety when they are considering whether to take action under other aspects of this Bill and the responsibility of the local authority to take account of all aspects around when they decide which areas to designate. They are different requirements, as you say, and there will be different balances of judgment that are made in different circumstances.

Lord Carlisle of Bucklow

  10. Minister, can I take you to clause 34 of the Bill. That is the one that sets out the new offence which makes it an offence for "A relevant person shall not permit drunkenness or any violent, quarrelsome or riotous conduct to take place in licensed premises." It is the word "quarrelsome" that I am really interested about. You said in your reply when we raised this matter with you that, in fact, this was already an offence under the Licensing Act 1964 so far as the licensee was concerned and you have really extended it by the use of the words "relevant person". I am sure you will agree that since the 1964 Act we have brought in the Human Rights Act and incorporated it into our legislation in this country and under that Act, as I understand it, for an offence to be Convention compatible has to be clearly understandable and to allow a person to predict with reasonable confidence what conduct will make him liable to a sanction. My concern is the word "quarrelsome" seems somewhat wide, somewhat vague and somewhat subjective. What to one person might be quarrelsome, to someone else might be agreeing in an argument. You say in your answer that we can get benefit from the case law on the 1964 Act. I wonder could you expand a little bit on that and say whether you are satisfied that the word "quarrelsome" is precise enough?
  (Mr Clarke) Two or three things to say, Lord Carlisle. Firstly, the reason why we used the phrase "quarrelsome conduct" was, as you say, because it is in the existing legislation. Secondly, it is right to say that the Government has published a White Paper on the whole of licensing right across the whole range upon which we intend to legislate in the future which will look at this whole area of conduct of our society. I am sure that when the debate takes place on that in both Houses there will be a lot of debate about things like "quarrelsome conduct" in that context. The reason why we kept that phrase in relation to this legislation was because it already existed. The case law that exists is almost entirely in the case of magistrates' courts from existing law. It may be that our evidence was misleading in saying that there is crown court case law, as it were, easily available at any rate which we have been able rapidly to identify. We were referring to the fact that the term is already clear to magistrates from existing law and any experience that a magistrate has of interpreting that term in the current offence can be applied to a consideration of the term in a new offence. That is why we wrote the evidence that we did. We have not, in fact, got case law from the crown court which would assist courts in judging this matter in the way they will do in the future, simply a lot of experience from the magistrates' courts.

  11. Indeed, the case law we have been given all relates to drunkenness which is rather easier to define than quarrelsome.
  (Mr Clarke) We have a list. I do not know if it has been circulated to the Committee.

  Chairman: Yes, we have that.

Lord Carlisle of Bucklow

  12. I notice the first one of all was to supply drink to a person who is already drunk and that is quite simple, but supplying it to a person who is already quarrelsome is rather more difficult.
  (Mr Clarke) We had quite a lot of discussion, Chairman, on the meaning of the word "drunk" in our Committee when we were considering this. Even "drunk" might not be quite as clear as we might wish.

  Lord Carlisle of Bucklow: I think I have got your point. Thank you very much.


  13. I notice, Minister, you said that magistrates understood this. I do not know whether that is the problem, I think the problem really is that potential offenders ought to be able to understand it. Are you confident about that?
  (Mr Clarke) I think that is a fair point but, as I say, the reason why we used the phrase was because it was one that was in existing law and the question as to whether offenders understand the phrase "quarrelsome conduct" in the legislation that the House is now considering is the same as the question do they understand the phrase "quarrelsome conduct" in the law more generally of the Licensing Act, in particular section 172 of the Licensing Act. We think the issues are much the same in both cases. I think it will be an interesting question when the licensing legislation is proposed for consideration for the House, if indeed it is based on the White Paper that we have published, whether the House at that time will think we need to define more clearly what these words mean for members of the public so they know exactly where they stand.

Lord Lester of Herne Hill

  14. Can I follow that up a little bit more. One of the things that puzzled me in the Home Office memorandum was that in paragraph 24 and in other places it was suggested that the provision that Lord Carlisle has drawn attention to, clause 34, does not engage any free speech problems under, let us say, Article 10 of the Convention. Unless I am much mistaken, the way that clause 34 works is like this: it creates a criminal offence for a barman or a barwoman who permits non-violent, quarrelsome behaviour in a pub. Suppose hypothetically that there are two people sitting in a pub; let us assume one is of one political party and the other is of another political party and they are debating whether the Home Secretary is a wet Liberal from Hampstead or an illiberal populist from Herne Hill or Clapham. Let us assume that they get not violent and not drunk but they become quarrelsome. As I understand it if the barman or barwoman does not expel the quarrelsome couple then it is a criminal offence. What I do not understand is how the Home Office thinks that that does not at least engage issues about free expression because the pub is not allowed to become a little Speaker's Corner, if you like. Could you explain that?
  (Mr Clarke) Yes, and with your permission, Chairman, I would like to explain at some length because I think it is a very important point. We do believe that clause 34 does not directly restrict freedom of expression. This provision does not criminalise drunkenness or other conduct. It simply imposes certain responsibilities on bar staff. Any restrictions on an individual's freedom to express himself through quarrelsome or riotous conduct is imposed by the bar staff, and is only indirectly connected to the legislation itself. Moreover, clause 34 does not cover any behaviour that is not already mentioned by section 172 of the Licensing Act 1964. I am sorry to return to the point of our previous conversation. All the clause does is to extend the range of people who have a legal responsibility to deal with certain types of behaviour. So we question whether the new clause can be said to "restrict" freedom of expression any more than the Licensing Act 1964 does, whether there is any significant change in that regard. As far as which types of behaviour are acceptable and how far people may exercise their freedom of expression are concerned, we believe this clause simply maintains the status quo and imposes no additional restrictions. So the kind of argument between lawyers and non-lawyers, if that was what Lord Lester was suggesting, that might take place under this proposed Act, the issues would be the same under the Licensing Act 1964. However, we do accept that it is an indirect effect of the legislation that in certain circumstances a person's freedom of expression will be restricted. However, we think that this can be justified since the level of behaviour that could provoke an exclusion from licensed premises is likely to be relatively high, and we come back to the proportional questions that were being talked about earlier on. As the Committee has pointed out, and as Lord Carlisle just emphasised, "quarrelsome conduct" is not a precise term. But for two reasons, we believe that in new clause 172A it must be construed to mean seriously aggressive behaviour, verging on a breach of the peace. The reason I was keen to put this on the record was to set that out. First, the term appears in the context of the phrase "any violent, quarrelsome or riotous conduct", and that means there is a context for the word which is significant, which must be taken to mean conduct of the same general kind as the more extreme forms of behaviour specified in the clause, ie violent and riotous. Secondly, in interpreting the term a court will, under section 3(1) of the Human Rights Act 1998, have to read it in a way which is compatible with the Convention rights, so far as it is possible to do so. We therefore consider that the provisions strike a fair balance between the rights of a person to express him or herself and the need to impose an obligation on bar staff to maintain order in premises where they work. In coming to this view we are mindful that a person's freedom of expression is not seriously impaired by his being expelled from a pub, as he can continue to express himself outside the premises. As I have explained our view is not based on particular legal authority but on a construction of the words of Clause 34, and the relevant provisions of the Human Acts Right.

Lord Goldsmith

  15. I find that a helpful answer. It picks up the point I wanted to ask you about, which is the phrase itself. The phrase, as you say, appears in present legislation in the 1964 Licensing Act in the context of violent, quarrelsome or riotous conduct. Looking at it cold is has a sort of Victorian ring to it, if not an 18th Century ring to it. Does it come from some earlier legislation and does that help answer the question, whether it brings with it an implication of, as you described it, seriously aggressive behaviour?
  (Mr Clarke) I should introduce my colleague Andrew Cunningham, and one of his responsibilities in the Home Office was to draw up the Licensing White Paper that was published earlier this year. He advises me it does go back to previous legislation before that time. I do think that the implication of the question, that the whole of this needs tidying, is one of the reasons and the argument for the Licensing White Paper that we published last year.

Sir Patrick Cormack

  16. I would like to know, Mr Clarke, if you can tell me the difference between argumentative and quarrelsome.
  (Mr Clarke) I cannot because I am not a lawyer. Were I a lawyer I am sure I could. I suppose as a layperson I could give you a layperson's view, speaking off the cuff myself, which is that argumentative is somebody who has a tendency to make arguments. An argument need not be conduct in any kind of aggressive or difficult manner. Quarrelsome is a word describing somebody who has a tendency to quarrel, ie to have an argument which is not an exchange of facts in a tight way, but to have disputes with others.

  17. You said it needs some tidying up, I would ask you to look at this again. To many people these are synonyms, argumentative and quarrelsome, and to many people to have an argument or a quarrel is not particularly reprehensible. Lord Lester has given one example, and I have heard that in many a pub, particularly during election times. What I think you ought to look at is getting in the word "incite". If somebody is inciting bad conduct or reprehensible behaviour that is going one step beyond arguing and quarrelling. I am a little uneasy about your answers on quarrelling.
  (Mr Clarke) Firstly, I do believe, as I say, speaking as a layperson that there is a qualitative distinction between the word argumentative and the word quarrelsome. I encourage my children to argue because I think argument is an important characteristic of a civilised society. I do not incite them to quarrel, because I think quarrelling does not have the element of rationality which argument has to it. It might be a quarrel, if you said I had big ears and I said had you four eyes, or whatever it might be, but it would not be an argument. If we had an argument, I could argue that you were a Conservative and I was Labour. I think they are qualitatively different. Secondly, as I have already said the word is located in a phrase associated with violence and riotous behaviour, which I think is a non-trivial question which arises. We do think that dealing with quarrelsome behaviour in a place where alcohol can accelerate the collapse in disorder is important because this kind of behaviour is often provocative and inflammatory and a precursor to violent conduct, which is why we put it in that phrase. I would defend, as a layperson but not as a lawyer, the distinction between argumentative and quarrelsome.

Lord Lester of Herne Hill

  18. Could I put to you, this is not about lawyers and laymen, this is about a barman who has a criminal liability imposed on him to fine level three and the question is whether the barman can understand what is meant by quarrelsome to avoid criminal liability. Surely it is important that Parliament should get the statute right and not leave it to the Human Rights Act and judges to have to come to the rescue so far as is reasonably possible. Would it not be a good idea, Minister, to forget about the lawyer/layman point and concentrate on reasonable legal certainty and try and find a definition which does not hark back to Lord Goldsmith's reference to the Victorian and Georgian statute on quarrelsome but give a modern definition that a barman can work with?
  (Mr Clarke) In one sense I completely accept your point, I do think that the whole of the language of the licensing legislation needs to be tidied up and addressed but we did not feel this was the measure to do this. The measure to do this we felt was the Licensing Bill, which I hope will be before the House at some point in the future if Parliamentary time arises, to implement the Licensing White Paper we talked about. Secondly, I was not seeking to introduce the lawyer/layperson point. The point was put to me about the distinction between two words and I was doing my best as a layperson to give my analysis of that. I return to the fact that under the legislation Clause 34, 172A (1) states, "A relevant person should not permit drunkenness in any violent, quarrelsome or riotous conduct to take place in a licensed premises". For the barkeeper in those circumstances, which is the same legislation as the Licensing Act currently, that is a much clearer context for the use of the word quarrelsome than it would be if one had simply said, any quarrelsome conduct or, indeed, any argumentative conduct. It is a phrase which holds together, which reflects existing legislation, which I acknowledge does not provide absolute clarity to any barperson or any potential resident or inhabitant of a pub. It does provide a much clearer context than simply to use the word quarrelsome standing on its own.

Lord Carlisle of Bucklow

  19. I was just going to say I thought we were in danger of taking a disproportionate amount of time on this particular word. This discussion has been very helpful and maybe the answer is for the Government to consider an amendment on the words that you used yourself, some "aggressive behaviour likely to cause a breach of the peace".
  (Mr Clarke) I would suggest two things in relation to that, Madam Chair, the first is I think it would be very helpful if the Committee had views on what is the best language to deal with the conduct we are talking about. Whether it can be considered by this Committee around this Bill or whether it would be in relation to any licensing Bill which might come forward would be a matter for us to deal with. With the experience around the table here it would be helpful to look at that.

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