Joint Committee On Human Rights Twenty-First Report


TWENTY-FIRST REPORT


The Joint Committee on Human Rights has agreed to the following Report:

SCRUTINY OF BILLS: FURTHER PROGRESS REPORT

Introduction

1. We have previously stated our intention to report on all Bills presented to Parliament in respect to their compatibility with Convention Rights as defined by the Human Rights Act 1998, and other human rights instruments. We have produced, in total, fifteen reports on Bills before both Houses in this session.[1] This does not include reports on draft Bills, as explained below. We set out how we intended to proceed with our scrutiny in our Fourteenth Report.[2] 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 the progress of our scrutiny of Government Bills, and we updated this in our Sixteenth and Eighteenth Reports. This report updates those earlier progress reports.

Draft Bills

2. The Government have recently published several bills in draft form. These include the draft Communication Bill, the draft Mental Health Bill and the draft Extradition Bill. The Committee welcomes the opportunity to see draft legislation as early as possible, as it enables more efficient and constructive scrutiny.

3. The Nineteenth Report from the Committee, published on 19 July was on the Draft Communications Bill.[3] The Twentieth Report from the Committee, to be published on 26 July is on the Draft Extradition Bill.[4] We expect to publish a report on the Draft Mental Health Bill in the Autumn.

Government Bills

Bills Previously Reported On

Enterprise Bill

4. The Secretary of State for Trade and Industry wrote to the Committee on 2 July, in response to the comments made in our Eighteenth Report relating to the Enterprise Bill.[5] The letter is included in the annex.[6]

5. In our Sixteenth Report, we had commented that we took—

 ... 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. The Committee will, however, be writing 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.[7]

6. In response to this, the Secretary of State had provided a copy of the draft criteria, which appeared to us to show that the Government was properly considering the implications of human rights provisions, including the Data Protection Act 1998, for overseas disclosures. We reported accordingly in our Eighteenth Report.[8]

7. In accordance with its usual practice, we had invited interested individuals and groups in civil society to comment on the Bill to assist our legislative scrutiny work. Responses were received from, among others, the CBI and JUSTICE. These responses raised a number of issues on which we commented in our Eighteenth Report.[9] Among them was the proposed power of a court under clause 209 of the Bill to make an interim enforcement order stopping a person from trading, with immediate effect, without necessarily having given notice of the application for an order to the person concerned. It would be possible to make an interim enforcement order if the court were satisfied that the person was alleged to have committed an infringement of domestic or EC consumer protection law, that an application for a permanent enforcement order was likely to be successful, that it was expedient to prevent or stop the conduct immediately, and that (if no notice has been given to the person) it was appropriate to make the order without notice.

8. We noted, in our Eighteenth Report, that this was likely to engage the right to the peaceful enjoyment of possessions under ECHR Protocol No. 1, Article 1.[10] While accepting that the provision pursued the legitimate purpose of protecting consumers against rogue traders and dangerous goods, we observed that the enforcement agency applying for an interim order would not be required to have reasonable grounds for suspecting the person of an offence before applying for an interim order, and that it would be possible to dispense both with prior consultation with, and notice to, the person before making an application if the enforcer thought that urgent action was required.[11] That being so, we doubted whether the provisions could be reliably expected to strike a fair balance in practice between the public interest and the rights of traders, and drew to the attention of each House our recommendation that—

The Bill should include on its face a requirement for an enforcer to have reasonable grounds before making an application to a court, and before deciding to dispense with the consultation process; and the court should be explicitly required to consider the rights and interests of the person against whom an interim order is sought before making one, particularly if the order is made in the person's absence and without him or her having been given notice of the application.[12]

9. In her letter of 2 July the Secretary of State wrote—

We do not consider it necessary to include on the face of the Bill a requirement that the court should be explicitly required to consider the rights and interests of the person against whom an interim order is sought before making one, or that they should take into account the fact that the order would be made in the person's absence and without him or her having been given notice of the application. We are confident that the courts will invariably do this in exercising their discretion to make an interim order. This reflects the approach which the courts take to interim injunctions.[13]

10. We remain concerned that this does not necessarily satisfy our concerns about the difference between an application for an interim injunction invoking the court's inherent jurisdiction, and an application for an interim enforcement order under an enforcement power conferred in a statute for the specific purpose of enforcing consumer protection legislation. In our view, there is good reason to be concerned, for the following reasons.

11. First, the interim enforcement order would form part of both the regulatory and the criminal justice systems. In those contexts, the public interest in enforcement of the law is typically given greater weight than it typically has in civil proceedings. There are indications in cases involving the criminal process that courts are inclined to grant orders whenever the minimum conditions for making them are met, rather than give serious consideration to the need to take account of competing interests and rights when exercising a discretion. Examples include the making of orders for access to or production of confidential and journalistic material under the Police and Criminal Evidence Act 1984, the Drug Trafficking Act 1994 and the Prevention of Terrorism (Temporary Provisions) Act 1989, and asset-freezing 'restraint' orders under the latter two Acts and the Criminal Justice Act 1988.[14] It is not clear that a court would approach an application for an interim enforcement order under the Bill as if it were an application for an interim injunction.

12. Second, even in civil proceedings there has sometimes been concern that injunctions (such as search orders, formerly known as Anton Piller orders) have been granted without prior notice in inappropriate circumstances, and without appropriate safeguards against oppression in executing them. Often, this seems to have been the result of a failure by the applicant, or the applicant's legal advisers, to comply with the common-law duty to make full disclosure to the court of all relevant information, including information which would militate against making an order.[15] It is likely that courts would impose a similar duty on enforcers applying for interim enforcement orders under the Bill, but one should perhaps not assume too readily that enforcers would always comply with the duty when applying for an order.

13. For these reasons, we consider that it would be beneficial to draw attention on the face of the Bill to the need for courts to take account of the whole picture, and not simply to accept the applicant's ipse dixit.

Nationality, Immigration and Asylum Bill

14. The Parliamentary Under Secretary of State, Lord Filkin, wrote to the Committee on the 2 July 2002, responding to our Seventeenth Report on the Nationality, Immigration and Asylum Bill. This letter is printed as an annex to this report.[16]


1   First Report, Session 2001-02 Homelessness Bill, HL Paper 30/HC 314; Second Report, Session 2001-02, Anti-Terrorism, Crime and Security Bill, HL Paper 37HC 372; Third Report, Session 2001-02, Proceeds of Crime Bill, HL Paper 43/HC 405; Fourth Report, Session 2001-02, Sex Discrimination (Election Candidates) Bill, HL Paper 44/HC 406; Fifth Report, Session 2001-02, Anti-Terrorism, Crime and Security Bill: Further Report, HL Paper 51/HC 420; Eighth Report, Session 2001-02, Tobacco Advertising and Promotion Bill, HL Paper 59/HC 474; Ninth Report, Session 2001-02 Scrutiny of Bills: Progress Report, HL Paper 60/HC 475; Tenth Report, Session 2001-02, Animal Health Bill, HL Paper 67/HC 542; Eleventh Report, Session 2001-02, Proceeds of Crime Bill, HL Paper 75/HC 596; Twelfth Report, Session 2001-02, Employment Bill, HL Paper 85/HC 645; Thirteenth Report, Session 2001-02, Police Reform Bill, HL Paper 85/HC 645; Fourteenth Report, Session 2001-02, Scrutiny of Bills: Private Members' Bills and Private Bills, HL Paper 93/HC 674; Fifteenth Report, Session 2001-02, Police Reform Bill: Further Report, HL Paper 98/HC 706; Sixteenth Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 113/HC 805; Seventeenth Report, Session 2001-02, Nationality, Immigration and Asylum Bill, HL Paper 132/HC 961; Eighteenth Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 133/HC 962 Back

2   Fourteenth Report, Session 2001-02, Scrutiny of Bills: Private Members' Bills and Private Bills HL Paper 93/HC 674 Back

3   Nineteenth Report, Session 2001-02, Draft Communication Bill, HL Paper 149/HC 1102 Back

4   Twentieth Report, Session 2001-02, Draft Extradition Bill, HL Paper 158/HC 1140 Back

5   Eighteenth Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper133/HC 962, paras. 27- 37  Back

6   See p Ev 1 Back

7   Sixteenth Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 113/HC 805, para. 4 Back

8   Eighteenth Report, op cit, para. 29 Back

9   ibid., paras. 33-37 Back

10   ibid., para. 34 Back

11   ibid., para. 35 Back

12   ibid., para.36 Back

13   See p Ev 1 Back

14   See particularly R. v. Northampton Crown Court, ex parte Director of Public Prosecutions (1991) 93 Cr. App. R. 376, DC: once minimum conditions had been met, it was Wednesbury unreasonable for court to exercise discretion by not making order for access or production. However, there are some signs that the courts have, more recently, begun to treat discretionary powers in this area as being genuinely discretionary. An outline of the effect of case-law in this area can be found in D. Feldman, Civil Liberties and Human Rights in England and Wales 2nd edn (2002), pp. 644-659 Back

15   See, e.g., M. Dockray and H. Laddie, 'Piller problems' (1990) 106 LQR 601-620; Columbia Pictures Ltd. v. Robinson [1986] 3 All ER 338 at pp. 365-371, 375-380 per Scott J.; Lock International plc v. Beswick [1989] 1 WLR 1268 (Hoffmann J.); and see Coca-Cola Co. v. Gilbey [1995] 4 All ER 711 (court should take account of risk that executing order would make party liable to violence by others, but public interest in administration of justice should not normally be subordinated to threats of violence) Back

16   See pp Ev 2-Ev 6 Back


 
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Prepared 26 July 2002