Joint Committee On Human Rights Third Special Report


APPENDIX 3

Letter from the Chairman of the Committee to the Home Secretary

PRIVATE SECURITY INDUSTRY BILL

  The Joint Committee on Human Rights will shortly be deciding whether or not it is necessary to consider the above Bill in detail. To assist with its decision, the Committee would be grateful for your comments on the following points raised by its Legal Adviser. Our starting-point is of course, the statement made under section 19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

  Whilst the Committee does not, as a general rule, intend to express any view on the underlying policy issues, its consideration of the Bill will be greatly assisted by an understanding of the factors which have led you to make a statement of compatibility under section 19 of the Human Rights Act, and more particularly, to conclude that any curtailment of rights under the Convention which the Bill may entail is justified by reference to the wider public policy considerations set out in the Convention.

1.  CRIMINALISING UNREGISTERED PRIVATE SECURITY OPERATIONS

  The Bill would make it an offence for a person to carry on business as a private security operator without being licensed. The liberty to use one's possessions for the purpose of economic activity is a "possession" within the meaning of Article 1 of Protocol I to the ECHR. The refusal of a licence to a person who had been previously operating a private security business in an area might be regarded as an interference with the peaceful enjoyment of possessions, and might also constitute deprivation of possessions, again engaging Article 1 of Protocol No 1. While it is open to the state, or a public authority, to justify the interference as the enforcement of laws which it deems necessary to control the use of property in accordance with the general interest, the European Court of Human Rights held in Allan Jacobsson v Sweden (Series A, no 163, judgment of 25 October 1989) that "there must exist a reasonable relationship of proportionality between the means employed and the aims sought to be realised".

  (A)  Bearing in mind that the Bill as drafted does not require or assume that the private security operators should have been guilty or suspected of any criminal offence, please inform the Committee of the facts or other considerations which satisfy you that clause 1 of the Bill maintains a fair balance between the interests which are affected and safeguards for the rights of others for the purpose of ECHR Protocol No 1, Article 1.

2.  PROCEDURAL FAIRNESS

  The Bill does not require the Secretary of State to put in place an appeal mechanism by way of safeguard for the rights of applicants for licences, or licence-holders who are threatened with withdrawal or modification of the licence, under Article 6 of the European Convention on Human Rights. It is possible that failing to provide for a proper and adequate appeal mechanism might lead to a violation of the Article 6 rights of those affected.

  (b)  Please inform the Committee of your reasons for deciding that the Bill meets the requirements of Article 6 despite including neither express provision for an appeal mechanism nor a statutory duty on the Secretary of State to make provision for one in terms which ensure that it would meet the requirements of Article 6(1). This point applies both to the initial licensing appeals (see clause 10) and to appeals relating to approvals (clause 17).

3.  APPEAL MECHANISM FOR DECISIONS TO WITHDRAW OR MODIFY LICENCES

  In the same vein, the Bill does not require the Secretary of State to put in place an appeal mechanism by way of safeguard for the Article 6 rights of applicants for licences or licence-holders who are threatened with withdrawal or modification of the licence. It is at least possible that failing to provide for a proper and adequate appeal mechanism would lead to a violation of the Article 6 rights of those affected.

  (c)  Please would you inform the Committee of your reasons for deciding that these aspects of the Bill meet the requirements of Article 6 despite including neither express provision for an appeal mechanism nor a statutory duty on the Secretary of State to make provision for one in terms which ensure that it would meet the requirements of Article 6(1). Again, this point applies both to the initial licensing appeals (see clause 10) and to appeals relating to approvals (clause 17).

4.  POWERS OF ENTRY AND INSPECTION

  Clause 18 gives an extremely wide power of entry and inspection without limitation, for example, to business premises or even to premises not used wholly as a dwelling. There is no limitation as to the time of day or night at which entry may take place, and no requirement for a warrant to be issued by a judicial officer in order to authorise entry. People who fail to co-operate are guilty of a criminal offence (clause 18(3)), and there is no express exception for those who refuse to make self-incriminating statements or produce material which is confidential or subject to legal professional privilege (although the words "without reasonable excuse" might possibly be interpreted as covering those situations or some of them).

  (d)  Please would you inform the Committee what safeguards (if any) you envisage putting in place to prevent abuse of the power in order to ensure that the powers are justifiable under Article 8.2 and do not violate Article 6 in relation to what seems to be a significant interference with the right to respect for private and family life, home and correspondence guaranteed by Article 8.1 of the Convention, and with the right to be free of coerced self-incrimination under Article 6.

5.  FREEDOM FROM DISCRIMINATION: ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO 1

  (e)  Please would you inform the Committee how you envisage that the power to exempt certain persons from licensing requirements (clause 4) or to impose special requirements for approval before persons of prescribed descriptions are allowed to provide prescribed security industry services (clause 16) will be used, in order that the Committee may satisfy itself that the criteria for exemption or the imposition of special requirements do not infringe the right to be free from discrimination under Article 14 of the Convention, taken together with other Articles (particularly Article 1 of Protocol No 1). In particular, it would be helpful to know what types of criteria might be laid down, and how the grounds of differentiation which are envisaged relate to the purposes of the Bill so as to provide an objective and rational justification for any differential treatment between groups of people. The Committee would also like to know whether the grounds could be set out in the Bill itself, giving greater transparency and making it clear that the arrangements will be compatible with rights under Article 14, taken together with Article 1 of Protocol No 1.

  Finally, the Committee would like to know, please, what representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

14 February 2001


 
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