The Joint Committee on Human Rights has agreed to the following Report:
SCRUTINY OF BILLS: FURTHER PROGRESS REPORT
1. We have previously stated our intention to report on all Bills presented to Parliament in respect of their compatibility with Convention rights as defined by the Human Rights Act 1998, and other human rights instruments. We have produced, in total, thirteen reports on Bills before both Houses in this session. We set out how we intend to proceed with our scrutiny in our Fourteenth Report. In that report, published on 6 March, we summarised the progress that we had made in scrutinising Private Members' Bills and Private Bills. In our Ninth Report, published on 19 December 2001, we reported on our scrutiny of Government Bills. This report updates those earlier progress reports.
2. Since our Ninth Report was published we have examined three newly-introduced Government Bills -
Justice (Northern Ireland) Bill
3. The Bill was introduced in the Lords on the 18th December 2001, and is currently awaiting a Second Reading in the Commons. We consider this Bill does not raise serious human rights issues which require to be drawn to the attention of either House.
4. This Bill was introduced into the Commons on 26 March and had its second reading on 10 April. It is currently in Standing Committee B. We take the preliminary view that, so far as the Bill engages human rights (for example, the right to the enjoyment of property, the right to be free of coerced self-incrimination, and the right to respect for private life and correspondence) it contains adequate safeguards against violations of the rights. We have, however, written to the Secretary of State seeking clarification of the criteria to be applied (under clauses 233 and 234) when a public authority is deciding whether to exercise the power to make a disclosure of confidential information about a person or business to an overseas authority.
Nationality, Immigration and Asylum Bill
5. This Bill was introduced into the Commons on 12 April and had its second reading on 24 April. Our initial view is that the Bill potentially affects a wide range of rights, and we have written to the Home Secretary about the following matters amongst others-
a request to see in draft any codes of practice relating to disclosure of information about individuals;
a request for clarification of the Government's approach to requiring children to reside in accommodation centres;
a request for an assurance that the power to provide educational facilities in accommodation centres would be exercised whenever children of school age were residing there;
a request for information about various aspects of the Government's intentions in relation to the provision of support for destitute asylum-seekers and their families who might be at risk of suffering degrading treatment or a lack of adequate accommodation;
a request for an assurance that people who applied for judicial review of a decision which, under the Bill, would no longer be appealable would not be removed from the United Kingdom pending the final determination of the proceedings, if they claimed to be at risk of a violation of a Convention right;
a request for information about the proportionality of penalties which might be imposed for breaches of the proposed 'authority to carry' scheme.
6. The Committee has invited comments on the human rights implications of both Bills, and will examine the Bills further in the light of those comments and of the Government's responses.
Private Members' Bills
Housing Benefit (Withholding of Payment) Bill
7. This Private Member's Bill was introduced to the House of Commons by Mr Frank Field MP. It received its first reading on 27 February 2002 and its second reading on 19 April. As a Private Member's Bill it does not carry a statement of compatibility under section 19 of the Human Rights Act 1998. It would permit the Secretary of State to withhold housing benefit from any tenant, or any individual living with the tenant, or from any landlord responsible for the property in which the tenant usually resides, subject to certain conditions. These are that the tenant or any person living with the tenant has been guilty of anti-social behaviour leading to an order being made against him by a magistrates' court, or to his being convicted of a summary offence, on two or more occasions in any three year period.
8. The effect of withholding housing benefit might be that the tenant, or a member of his or her family, would be unable to pay rent, and would be liable to be evicted. Indeed, the provision for withholding benefit from landlords seems calculated to encourage them to evict tenants who have, or any member of whose family has, been guilty of anti-social behaviour leading to court orders or convictions.
9. This potentially raises issues of compatibility with the right to be free of inhuman or degrading treatment (ECHR Article 3), the right to respect for private and family life and the home (ECHR Article 8), and the right to adequate housing (ICESC, Article 11(1)). We examined these issues in relation to clause 13 of the Homelessness Bill which excluded certain categories of children, including those guilty of unacceptable (that is anti-social) behaviour, from the duty of local housing authorities to house homeless people with priority needs. In our report, we concluded that it was appropriate to assess the compatibility of housing provision with human rights in the light of the whole range of sources of support for people in need of housing. Taking account of those sources, including the duties of local authorities under the Children Act 1989 and the provisions of the National Assistance Act 1948, we considered that it should be possible to implement the provisions of that earlier Bill in a manner compatible with Convention rights, but we remained concerned about compatibility with other human rights instruments for reasons which do not apply to the current Bill. However, we were particular concerned about the position of children of parents who found themselves homeless as a result of the legislation. We commented--
We recognize that local authorities have duties to provide support for children in need under Part III of the Children Act 1989 ... However, there are circumstances in which adult children of the family, too old to be the subject of duties under the 1989 Act, cohabit with parents. If they occupy accommodation of which one of the parents is the tenant, and that parent behaves in such a way as to be treated as unsuitable to be a tenant of the housing authority, the child's education and social life may be disrupted by homelessness and a need to move to a different area. There is no guarantee that the adult child or other members of the family will be allowed to take over the tenancy from the parent who is deemed to be unsuitable to be a tenant ... [This may] interfere unacceptably with the right to respect for the private life and home ... of adult children and other members of the family to whom no duty is owed under the Children Act 1989. We consider that this should be borne in mind when deciding how to deal with the families of tenants who fall to be treated as unsuitable.
10. On 6 March 2002 the Chairman wrote to Mr Field outlining our concerns about his Bill and invited him to comment if he wished to do so. Mr Field responded in a letter dated 14 March 2002.
11. In relation to the risk that withholding housing benefit payments from one person might lead to the eviction of other members of the household, Mr Field drew attention to four considerations-
The Government could 'take measures to ensure that families were not destitute and that children were taken into care if need be'.
'[T]he situation on some estates - and increasingly in some areas of private housing - is so serious that the wider interests of society require a measure such as this to be available in the last resort.'
The power to withhold payment is permissive, not prescriptive.
The powers would be exercisable only after two previous convictions.
12. These are all relevant considerations in relation to the compatibility of the Bill with the right to respect for private and family life and the home under ECHR Article 8. As Mr Field points out, Article 8(2) provides that it is permissible to interfere with the right as long as the interference is prescribed by law (as this would be), and is necessary in a democratic society (that is as a proportionate response to a pressing social need) to pursue a legitimate aim (in this case to protect the health, rights and freedoms of others). As the Secretary of State would have to take all these matters into account when deciding whether to withhold payment in any particular case, the Bill, as such, cannot be said to be at risk of incompatibility with Article 8.
13. The right not to be subjected to degrading treatment under ECHR Article 3 is absolute. It is not possible, under Article 3, to justify degrading treatment, and the Secretary of State would therefore have to be satisfied, before withholding payment in any case, that all members of the household would have available sufficient housing to avoid their being subjected to degrading treatment through destitution. This would be a necessary condition for making a lawful decision to withhold payment. That being so, the provisions of the Bill do not give rise to a serious risk of incompatibility, although it would be preferable for this to be spelt out on the face of the Bill as an express statutory requirement.
14. As Mr Field points out, the right to adequate housing under ICESC Article 11(1) is not as such part of domestic law. However, it binds the United Kingdom in international law. Furthermore, as it is not a Convention right under the Human Rights Act 1998, a decision to withhold payment would not automatically be unlawful merely because it would have the effect of depriving someone of the opportunity for access to adequate housing. That being so, it seems to be more, rather than less, important that the availability of adequate alternative housing, particularly for the innocent members of the household, should be expressly specified in the Bill as a necessary condition for withholding payment in circumstances where that would be likely to lead to eviction. This would ensure that the United Kingdom would not be at risk of violating its obligations in international law under the ICESC.
Members of Parliament (Employment Disqualification) Bill
15. The Members of Parliament (Employment Disqualification) Bill is a Private Member's Bill introduced by Mr. Peter Bradley MP and others. It does not, therefore, carry a statement of compatibility under section 19 of the Human Rights Act 1998.
16. The Bill would disqualify from membership of the House of Commons any Member who undertook additional remunerated employment likely to interfere with his or her performance of his or her parliamentary duties. There would be exceptions for journalism, public speaking, lecturing, policy research and development, and other employment, as long as those activities were 'commensurate with [the Member's] responsibilities as a Member of Parliament'. The Bill does not define any of the terms mentioned.
17. A Member would not be disqualified as a result of receiving remuneration for a company or other undertaking in which he or she had an interest, unless he or she were to be 'engaged in the day to day activities of that company or undertaking'.
18. A Member who is undertaking remunerated employment at the time of election to the House of Commons would have six months to relinquish it, and could apply to the Parliamentary Commissioner for Standards for an extension of up to six months.
19. The effect of the Bill would be to prevent Members from pursuing certain remunerated activities during their Membership of the House of Commons. This might in some circumstances interfere with a person's ability to enjoy possessions, a right protected by Article 1 of Protocol No. 1 to the ECHR. If it could be shown that the interference had that effect, it might be possible to justify it by showing that the restriction was in the general interest (for example by helping to ensure the probity of the parliamentary process) and maintained a fair balance between the interests of the public and the rights of the Members affected. That would be a matter on which we might wish to seek evidence.
20. At present, however, it seems unlikely that the Bill will make progress. The Bill has a provisional second reading date of 21 June, and is twelfth in the order of Bills to be debated that day.
We draw these matters to the attention of each House.
Bills considered and cleared
22. Since our Fourteenth Report, we have also considered the following Private Members' Bills, none of which we consider raise serious issues of compatibility which require to be drawn to the attention of each House.
Broadcasting Act 1990 (Amendment) [House of Commons Bill 110]
Companies Act 1989 (Amendment) [House of Commons Bill 104]
Control of Fireworks [House of Commons Bill 78]
Copyright (Visually Impaired Persons) [House of Commons Bill 23]
Endangered Species (Illegal Trade) [House of Commons Bill 84]
Motor Vehicles (Prohibition on Use of Hand Held Mobile Telephones) [House of Commons Bill 50]
Patients without Legal Capacity (Safeguards) [House of Commons Bill 94]
Religious Discrimination and Remedies [House of Commons Bill 80]
Right to Self-Employment [House of Commons Bill 79]
Road Speed and Safety [House of Commons Bill 85]
Scottish Parliament (Referendum)[Lords][House of Lords Bill 63]
Sex Discrimination (Amendment)(No.2)[Lords][House of Lords Bill 58]
Travel Concessions (Young Persons) [House of Commons Bill 82]
Trespassers on Land (Liability for Damages and Eviction) [House of Commons Bill 116]
23. Below we comment further on four of these Bills which raise particular questions in relation to their human rights implications.
Patients without Legal Capacity (Safeguards) Bill
24. This Private Member's Bill, introduced by Mr Peter Bradley MP, does not carry a statement of compatibility under section 19 of the Human Rights Act 1998. It would amend section 131 of the Mental Health Act 1983 to allow the nearest relative or acting nearest relative of a mental patient who has been informally (that is voluntarily) admitted to hospital to apply to a Mental Health Review Tribunal for the discharge of the patient. Where a proposal for formal admission (compulsory detention) of the patient is being considered, the nearest relative or acting nearest relative would be allowed to apply to a Tribunal to oppose the formal admission.
25. This would plug a gap in the protective scheme under the 1983 Act. At present, a person who has been admitted informally but does not understand that he or she is free to leave is treated as having consented to admission, and no application to a Tribunal may be made by that person or on his or her behalf unless and until the patient is formally admitted. This may leave compliant, mentally-incapacitated, informally-admitted patients with no effective protection against professional misjudgment by doctors. Allowing the patient's nearest relative, or acting nearest relative, to apply to a Tribunal might increase significantly the workload of the Tribunals, but would enhance the protection for patients and make it less likely that detention would violate the right to liberty of the person under ECHR Article 5.
Religious Discrimination and Remedies Bill
26. The Religious Discrimination and Remedies Bill is a Private Member's Bill introduced by Mr John Austin MP. It does not carry a statement of compatibility under section 19 of the Human Rights Act 1998.
27. The Bill would make it unlawful in certain settings to treat a person less favourably than others on the ground of religious belief. Religious belief would include an absence of religious belief. The Bill would extend to indirect as well as direct discrimination, and to victimisation of a person on the ground that he or she has been involved in proceedings brought under the Bill.
28. The settings in which such discrimination would be unlawful are employment, save where religious belief constitutes a genuine occupational qualification or the employment relates to a charity, the provision of services by employees of another employer under a contract, and in partnerships, trade unions and employers' organizations, qualifying bodies for trades and professions, the provision of vocational training, and the work of employment agencies. It would also be unlawful to discriminate in relation to the provision of goods, facilities and services, in disposing of or managing premises or consenting to assignment of a lease or sub-letting, or in conducting the work of barristers' chambers or advocates. It would be unlawful to publish a discriminatory advertisement, to instruct or put pressure on someone to discriminate, and to aid unlawful acts, except where the acts relate to a charity. There would be certain general exceptions to allow the special needs of certain groups to be supplied and to allow benefits to be provided for certain groups, as well as excepting acts done under statutory authority and acts done to safeguard national security.
29. The provisions mentioned above would bind staff of the House of Commons and House of Lords, and would bind the Crown (but not Government appointments).
30. Although the Bill does not specify the form which remedies would take, it appears that discrimination in employment would be actionable in employment tribunals and that discrimination in other fields would be actionable in the County Court.
31. Incitement to religious hatred would be made a statutory offence in the same terms as those used in the provision dropped from the Anti-terrorism, Crime and Security Bill in December 2001, and re-introduced in Lord Avebury's Religious Offences Bill in 2002.
32. The Bill does not propose the establishment of a Commission, or the extension of the powers of one of the existing equality commissions to cover religious discrimination.
33. The Bill would contribute to protecting people against discrimination on the ground of religion as required by Articles 20 and 26 of the International Covenant on Civil and Political Rights, which binds the United Kingdom in international law. It is our view that this Bill would serve to enhance human rights in the United Kingdom and would not give rise to a significant risk of incompatibility with Convention or other human rights.
Control of Fireworks Bill
34. The Control of Fireworks Bill, a Private Member's Bill introduced by Mr Barry Gardiner MP and others, would allow a Minister to make regulations governing the use and supply of fireworks. These could include a licensing scheme for suppliers of fireworks. In order to be lawful, the regulations would have to be compatible with Convention rights, including the suppliers' rights to a fair hearing (ECHR Article 6) and the right to property (ECHR Protocol 1, Article 1). The regulations could also require safety information to be displayed on, or provided with, fireworks. This might engage the right to freedom of expression, but would be likely to be justifiable as a proportionate response to a pressing social need to protect the health of purchasers and users of fireworks. Contravention of a regulation would be an offence and there would be enforcement powers, all of which would be limited by the requirement of compatibility with Convention rights.
Copyright (Visually Impaired Persons) Bill
35. The Copyright (Visually Impaired Persons) Bill, introduced by Rachel Squire MP, would allow a visually impaired person who has lawfully obtained a copyright work to make, or have made on his or her behalf, a copy in a form which is accessible to him or her. It does not carry a section 19 statement. As copyright is a form of property protected by ECHR Protocol 1, Article 1, this could potentially engage the right to property of the owner of the copyright. However, the Bill contains extensive safeguards to ensure that the provision of accessible copies does not damage the commercial or moral rights of the owner of the copyright, and the purpose of the Bill advances a public interest in enhancing the lives of visually impaired people. That being so, there is little doubt that any possible interference with rights under ECHR Protocol 1, Article 1 by provisions of the Bill would be held to be justifiable.
In our Fourteenth Report we listed the Private Bills which we had considered, none of which appeared to us to raise human rights issues requiring to be drawn to the attention of either House. The London Local Authorities Bill was inadvertently omitted from that list.
1 First Report, Session 2001B
02 Homelessness Bill, HL Paper 30/HC 314; Second Report, Session 2001B
02, Anti-Terrorism, Crime and Security Bill, HL Paper 37HC 372; Third Report, Session 2001B
02, Proceeds of Crime Bill, HL Paper 43/HC 405; Fourth Report, Session 2001B
02, Sex Discrimination (Election Candidates) Bill, HL Paper 44/HC 406; Fifth Report, Session 2001B
02, Anti-Terrorism, Crime and Security Bill: Further Report, HL Paper 51/HC 420; Eighth Report, Session 2001B
02, Tobacco Advertising and Promotion Bill, HL Paper 59/HC 474; Ninth Report, Session 2001B
02 Scrutiny of Bills: Progress Report, HL Paper 60/HC 475; Tenth Report, Session 2001B
02, Animal Health Bill, HL Paper 67/HC 542; Eleventh Report, Session 2001B
02, Proceeds of Crime Bill, HL Paper 75/HC 596; Twelfth Report, Session 2001B
02, Employment Bill, HL Paper 85/HC 645; Thirteenth Report, Session 2001B
02, Police Reform Bill, HL Paper 85/HC 645; Fourteenth Report, Session 2001B
02, Scrutiny of Bills: Private Members=
Bills and Private Bills, HL Paper 93/HC 674; Fifteenth Report, Session 2001B
02, Police Reform Bill: Further Report, HL Paper 98/HC 706 Back
2 Fourteenth Report, op cit Back
3 Bill HL 61 Back
4 Bill 115 Back
5 See Appendix 1 Back
6 Bill 119 Back
7 Appendix 2 Back
8 Bill 102 Back
9 First Report, op cit Back
10 ibid, para 11 Back
11 See Appendix 3 Back
12 See Appendix 4 Back
13 Clause 1(1) and (2) Back
14 Clause 1(3) and (4) Back
15 Clause 1(5) Back
16 Clause 2 Back
17 R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. (Secretary of State for Health and others intervening)  1 AC 458,  3 WLR 107,  3 All ER 289, HL Back
18 See Lord Steyn, dissenting, in the Bournewood case, above,  3 All ER at p. 309, and Feldman, Civil Liberties and Human Rights in England and Wales 2nd edn., pp. 456B
19 Clause 1 Back
20 Clause 3(1) Back
21 Clauses 1 and 2 Back
22 Clauses 4 and 5 Back
23 Clause 22 Back
24 Clause 6 Back
25 Clauses 7 to 11 Back
26 Clause 12 Back
27 Clauses 13 and 14 Back
28 Clauses 15 and 16 Back
29 Clauses 17 to 22 Back
30 Clauses 23 to 26 Back
31 Clauses 31 and 32 Back
32 Clauses 30 and 33 Back
33 Religious Offences [HL], House of Lords Bill 39 01/02; see our Fourteenth Report, op cit, paras 12B
34 Clause 11 Back
35 Clause 12 Back
36 Fourteenth Report, op cit, para 23 Back