Joint Committee On Human Rights Thirteenth Report


ANNEX

Letter from the Chairman of the Joint Committee on Human Rights to the Rt Hon the Lord Rooker, Minister of State, Home Office.

Police Reform Bill [Lords]

* * * * *

The JCHR welcomes the inclusion in the Explanatory Notes to the Police Reform Bill of the rather fuller account than has previously been provided in such notes of the Convention rights which the Government has taken into account in drafting the Bill and in making a statement of compatibility under section 19 of the Human Rights Act. This has greatly assisted the Committee, by making it easier to see what issues have been considered. The Committee nevertheless has some concerns about the human rights implications of certain aspects of the Bill, and would be grateful for your response on the following questions.

PART 2 OF THE BILL: COMPLAINTS AND MISCONDUCT

The Committee is considering the human rights implications of two particular aspects of the provisions of Part 2.

First, clause 19 would allow the Secretary of State by order to make 'such provision as he thinks appropriate' for the authorizing of directed and intrusive surveillance, and the conduct and use of covert human intelligence sources, in connection with Commission investigations. These types of surveillance and intelligence activities, when used by the police, are governed by the Regulation of Investigatory Powers Act 2000, which includes detailed provisions about the circumstances in which their use may be authorized. These are designed to secure compatibility with the right to respect for private and family life, home and correspondence under ECHR Article 8 by ensuring that the powers are used for legitimate purposes and in a proportionate manner. Clause 19(2) would allow for the inclusion of the application of the relevant provisions of the 2000 Act to Commission investigations, but does not require this. As a result, there is a risk that an Order made by the Secretary of State might fail to contain the provisions of the Regulation of Investigatory Powers Act 2000 designed to protect human rights. Such an Order might be invalid as breaching the 2000 Act, and would be in considerable danger of being invalid as violating the Convention right under Article 8 of the ECHR.

The Committee has, on several occasions, drawn attention to the importance of expressing the constraints on the use of statutory powers alongside the powers in primary legislation, in order to make the extent of the powers (and of any authorized interference with human rights) clear and accessible on the face of the legislation. The Committee recognizes that the person exercising the power will be required by law, under section 6 of the Human Rights Act 1998, to act compatibly with Convention rights, so there is no need to include safeguards expressly in the primary legislation.

1. Are you satisfied that Convention rights are adequately protected by a provision in clause 19 which appears to give blanket discretion to the Secretary of State, without including any express requirements as to the manner in which the discretion may be used, particularly having regard to the principle of legal certainty?

Secondly, clause 20 would for the first time require that a complainant shall be kept informed of the progress of an investigation into a complaint, any provisional findings, any final report, any action taken as a result of the final report, and the outcome of such action. This is particularly to be welcomed in cases where the complaint relates to allegations which, if substantiated, would amount to a violation of human rights, as noted in para. 428 of the Explanatory Notes. However, the Committee is aware that it has been held that, where a complaint relates to conduct which would amount to a violation of the right to life under Article 2 or the right to be free of inhuman or degrading treatment under Article 3 of the ECHR, the Convention rights require disclosure to the complainant of documentation necessary to allow him or her to participate effectively in the investigation process, for example by commenting on witness statements. This legitimate interest of the complainant in such cases has been held to override considerations of confidentiality and of the need to avoid prejudice to any subsequent disciplinary proceedings.[2]

Clause 20 of, and Schedule 3 to, the Bill as originally drafted do not make provision for such disclosure. What is more, clause 20(5) would allow the Secretary of State to make regulations (inter alia) providing for exceptions from the duties imposed by clause 20. It is true that clause 20(6) would prevent the Secretary of State from providing for exceptions—

    'except so far as he would consider it necessary to do so for the purpose of—

    (a) preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any actual or prospective criminal proceedings;

    (b) preventing the disclosure of information in any circumstances in which it has been determined in accordance with regulations that its non-disclosure—

      (i) is in the interests of national security;

      (ii) is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;

      (iii) is required in order to secure that no person is adversely affected in any respect by or as a consequence of its disclosure; or

      (iv) is otherwise necessary in the public interest.'

However, sub-paragraphs (iii) and (iv) are certainly capable, and sub-paragraphs (i) and (ii) may in some circumstances be capable, of allowing regulations which deprive victims of access to documentation in violation of their rights under ECHR Articles 2 and 3, which might often be held to outweigh the interests listed in those sub-paragraphs.

2. Why have these provisions of clause 20 and Schedule 3 been drafted in a way which would appear to authorize the making of regulations which, if implemented in accordance with their plain meaning, would be capable of leading to violations of the fundamentally important rights under ECHR Articles 2 and 3?

3. Do you take the same view in relation to the similar provisions relating to arrangements which may be made for handling complaints against members of the National Criminal Intelligence Service, the National Crime Squad, and other forces under clauses 23 and 24?

PART 3: REMOVAL, SUSPENSION AND DISCIPLINING OF POLICE OFFICERS

Part 3 of the Bill would amend the Police Act 1996 so as to allow police authorities, with the approval of the Secretary of State, to require them to resign instead of to retire.[3] It would also allow police authorities, with the approval of the Secretary of State, to suspend a chief officer from duty if that step is required in order to maintain public confidence in the police force in question.[4] There would be a new power for the Secretary of State to require police authorities to require a chief officer to retire or resign in the interests of efficiency or effectiveness, and to require police authorities to suspend the chief officer if he considers it necessary to do so for the maintenance of public confidence in the force in question.[5]

This potentially raises human rights issues relating to—

    —  the procedures used when deciding whether to suspend chief officers or to require them to retire or to resign, which may engage the right to a fair and public hearing by an independent and impartial tribunal in the determination of civil rights and obligations, under ECHR Article 6(1);

    —  the loss of pension rights which may result from requiring chief officers to resign rather than to retire, potentially engaging the right to the enjoyment of property under ECHR Protocol 1, Article 1.

Neither of these issues is considered in the Explanatory Notes to the Bill.

Article 6(1) of the ECHR. The Committee provisionally takes the view that no rights under Article 6(1) would be engaged by the Bill, as a police officer has no civil right (as that term is used in Convention law) to continue to carry out his or her duties.

However, the European Court of Human Rights has sometimes regarded decisions which principally and directly affect an officer's pension entitlement, rather than merely his or her right to hold the office, as giving rise to a dispute about a civil right. Where the nature of the issue is essentially economic, or a career-related disciplinary decision (for example, to require an officer to resign or to take unpaid leave) is bound to have a decisive effect on economic rights, it may to that extent import a right to a fair hearing under Article 6(1).[6] A decision that the officer must resign rather than retire could be seen as being directly concerned with economic rights. It may be that the only practical difference between forced retirement and forced resignation would, in most cases, relate to pension entitlement, if resignation leads to the loss of a pension (or part of a pension) to which the officer would otherwise have been entitled on the basis of his or her previous period of service. On the other hand, following the decision in Pellegrin v. France[7] to employ a functional analysis to deciding whether Article 6(1) is applicable, the Court held in R. v. Belgium[8] that the determination of military pensions does not determine civil rights or obligations.

4. In the light of the case-law, do you consider that rights under ECHR Article 6(1) would be engaged by Part 3 of the Bill?

If ECHR Article 6(1) is engaged, it is not clear whether, and if so how, any regulations would ensure that the decision-making procedure (particularly when the decision is taken by the Secretary of State) or any subsequent appeal procedure would be properly independent of government so as to meet the requirements of Article 6(1). If regulations were held to be invalid by reason of incompatibility with Article 6(1), it might leave an aggrieved chief officer with no procedural protection at all.

5. In the event that you consider rights under Article 6(1) to be engaged by Part 3 of the Bill—

    —  What procedures would be provided for under regulations made under section 2A of the 1996 Act as inserted by clause 31 of the Bill?

    —  Why has it proved to be impossible to include those provisions in the Bill, so that Parliament could satisfy itself that the requirements of ECHR Article 6(1) would be met?

ECHR Protocol 1, Article 1. The Committee provisionally takes the view that a right to a pension would be likely to be regarded as a possession protected by ECHR Protocol 1, Article 1, so far as the applicant has already acquired the right on the basis of payments made or service provided, although (at least in the case of state pensions) it may not be a right to a particular level of pension payment.[9] An interference with a pension to which an officer has a vested right must be justified according to the criteria set out in Article 1: any interference must be 'in the public interest and subject to the conditions provided for by law and by the general principles of international law.' If the main difference between requiring a senior officer to resign and requiring him or her to retire were to be the extent of his or her pension entitlement, the decision could engage rights under Article 1.

Under the 1996 Act as it would be amended by Part 3 of the Bill, the object—securing the efficiency and effectiveness of the police force, or maintaining public confidence in it—would be likely to be regarded as legitimate public interests under Article 1. The other requirements of Article 1 have been held to include the avoidance of arbitrariness, and maintaining a fair balance between the general interest of the community and the need to protect the fundamental rights of the individual (essentially a form of proportionality test).[10] Whether that test were met might depend on (a) the degree of blameworthiness attaching to conduct of the officer which led to the requirement to resign or retire, and (b) the extent to which the decision directly and inevitably determined the officer's entitlement to enjoy the benefit of already vested pension rights.

6. To assist it in considering whether the provisions of Part 3 of the Bill are compatible with rights under ECHR Protocol 1, Article 1, the Committee seeks your view on—

    —  What impact you would expect that requiring an officer to retire or to resign, respectively, would have on the officer's vested pension entitlements?

    —  What flexibility there is likely to be in the operation of the system to ensure that the need to act compatibly with Article 1 in relation to vested pension entitlements could be properly taken into account?


PART 4, CHAPTER 1 OF THE BILL: EXERCISE OF POLICE POWERS ETC. BY CIVILIANS

Part 4 of the Bill contemplates different groups of police powers being exercisable for the first time by people other than constables. The Committee is concerned about the adequacy of the safeguards for human rights against unjustified interference in the purported exercise of powers. Five categories of civilians (community support officers, investigating officers, detention officers, escort officers, and accredited employees under community safety accreditation schemes) could be given authority to exercise certain police powers. Those in the first four of the categories would be employees of a police authority who are under the direction and control of the chief officer for the force. Civilians in the fifth category would not be employees of a police authority, or under the control of the chief officer. Instead, they would be employees of employers carrying on business in the area, who might be public authorities for the purposes of the Human Rights Act 1998 but might equally well be private companies, partnerships or individuals.

The powers of civilians in all five of these categories would be very extensive. In a variety of contexts they would entitled civilians, in different situations, to take action which could engage Convention rights, including—

    —  the right to life (ECHR Article 2), particularly if a community support officer were to use force, for example to detain a person;

    —  the right to be free of degrading treatment (ECHR Article 3), for example if civilians exercised powers to use force to detain people, or to carry out strip searches or intimate searches, or to take samples or fingerprints from a person without his or her consent;

    —  the right not to be arbitrarily deprived of liberty (ECHR Article 5);

    —  the right to silence, as an aspect of the right to a fair hearing and the presumption of innocence under ECHR Article 6(1) and (2), where detention officers require suspects to account for certain matters on pain of having adverse inferences drawn at trial from failing to do so;

    —  the right to respect for private and family life, home and correspondence (ECHR Article 8), for example in relation to detention or the seizure of alcohol or tobacco by community support officers and accredited employees under community safety accreditation schemes, search of premises and seizure of material (including confidential material) by investigating officers, searches of the person by detention officers and escort officers, and detention officers examining people for the purposes of identification, photographing them, taking samples and fingerprints, and giving warnings about their use in speculative searches;

    —  the right to be free of discrimination in relation to the enjoyment of other Convention rights (ECHR Article 14), particularly if the powers turn out to be used in a discriminatory way against members of certain groups defined by colour, race, sex, age, etc.;

    —  the right to the enjoyment of one's possessions under Article 1 of Protocol No. 1 to the ECHR, particularly in relation to the seizure of alcohol and tobacco by community support officers and accredited persons under community safety accreditation schemes, seizure of vehicles by community support officers, and seizure of material for evidential purposes by investigating officers.

The Explanatory Notes, para. 430, suggest that only interferences with rights under Articles 5 and 8 have been considered relevant.

The issue which concerns the Committee in each case is whether the Bill provides sufficient safeguards to secure compatibility with Convention rights. The Committee has already expressed concern about the adequacy of safeguards in respect of some aspects of the powers when they were conferred on police officers, including powers to seize alcohol,[11] to conduct bodily searches,[12] and to conduct examinations and take photographs.[13]

7. What measures do you envisage would be put in place to ensure that the civilians who would exercise such powers under clauses 33 to 41 of the Bill, and Schedules 4 and 5 to the Bill, would be properly accountable and subject to sufficient legal and managerial controls to provide adequate safeguards for the compatibility of their actions with Convention rights? In particular, what legal steps will be taken to make accredited persons under a community safety accreditation scheme, who might be employed by a private person or body, legally accountable for acts which would give rise to liability under the Human Rights Act 1998 had they been employed by a public authority?

The concern felt by the Committee about these provisions is not altogether relieved by Clause 38, which would confer on the Secretary of State the power to amend Schedules 4 and 5 to the Bill in order (inter alia) to allow civilians to exercise additional police powers, as long as they did not include additional powers to arrest or detain persons, to enter premises without the occupier's consent otherwise than in the company of a constable, or other powers not already conferred on constables. Despite the relatively high level of parliamentary scrutiny which this offers, which the House of Lords Delegated Powers and Regulatory Reform Committee decided was sufficient for its purposes,[14] the power to extend the range of police powers which civilians could exercise, without resort to primary legislation, further threatens safeguards for Convention rights.

8. How do you propose to ensure rights are safeguarded in the exercise of powers under clause 38 and schedules 4 and 5 of the Bill? Why does the Bill not spell out the legitimate aims for which the powers could be exercised compatibly with Convention rights?

This was done in the Regulation of Investigatory Powers Act 2000, and in the Committee's view represents good practice, particularly where the powers would be exercised by people who are not fully trained police officers or fully subject to police discipline, in order to minimise the risk of action being incompatible with Convention rights.

Conditions for the exercise of powers. Some powers would be exercisable where an officer has 'reason to believe' in the existence of a specified state of affairs. Those which would be particularly likely to engage human rights are the power of a community support officer or an accredited person under a community safety accreditation scheme to ask for a name and address, which may lead to detention.[15] Having reason to believe something is not often used in legislation as a foundation for the exercise of a police power. It is not clear how it relates to the more usual conditions: having reasonable grounds to suspect something, or (more demandingly) having reasonable grounds to believe something, to be the case. For example, the higher standard, having reasonable grounds for believing that a motor vehicle is being used in a certain way, is employed in clause 52 as a condition for the exercise by a constable in uniform (or, under Part 1 of Schedule 4 to the Bill, a community safety officer) of the proposed new power to seize vehicles. 'Reason to believe' might be a less assured state of mind than 'reasonable belief', and the Committee is concerned that a detention following a request for a name and address on the basis of 'reason to believe' might not be justifiable under ECHR Article 5 (which requires reasonable suspicion that the person has committed an offence). It is certainly fair to say that the relationship between (a) having reason to believe, (b) having reasonable grounds to suspect (or a reasonable suspicion), and (c) having reasonable grounds to believe (or a reasonable belief) is unclear.

9. Why has the unusual form of words 'reason to believe' been used, in the Bill and how do you consider that 'reason to believe' compares with the idea of reasonable suspicion that an offence has been committed, under ECHR Article 5(1)(c).

Legal liability for using powers in a manner incompatible with Convention rights. As noted above, it is not as clear that the employer of an accredited person under a community safety accreditation scheme would be regarded as a public authority for this purpose. As the Committee has discussed in other contexts, judicial decisions so far have not clearly established the circumstances in which a private person or body is to be regarded as a public authority when providing services which might otherwise have had to be provided by public agencies. The Committee considers it to be important that people who are subject to interference with their Convention rights under police powers should not lose the protection of the rights merely because they are being exercised by accredited employees of private employers, under community safety accreditation schemes, rather than by police officers or designated persons. If the employer were to be regarded, for the purpose of the Human Rights Act, as a private person, he or she would probably not be subject to the duties which correlate to Convention rights, and the victim of a violation of those rights might lack the effective remedy before a national authority for such a violation which ECHR Article 13 requires.[16]

10. In your opinion, could clause 36(5) of the Bill be usefully be amended by expressly providing that employers under community safety accreditation schemes are to be regarded as public authorities (within the meaning of section 6(3)(b) of the Human Rights Act 1998, as a person 'certain of whose functions are of a public nature') when performing functions in connection with those schemes? How otherwise would the exercise of powers under the Bill by persons not employed by a public authority be appropriately safeguarded?

PART 4, CHAPTER 2 OF THE BILL: PROVISIONS MODIFYING AND SUPPLEMENTING POLICE POWERS

New arrestable offences. Clause 42 of the Bill would re-codify and somewhat extend the list of offences which fall into the category of 'arrestable offences' under the Police and Criminal Evidence Act 1984.

This has significant implications for human rights, because classifying an offence as an arrestable offence under the 1984 Act carries with it the possibility of exercising further powers if, because of the nature of the offence or the circumstances of the case, an arrestable offence falls to be treated as a 'serious arrestable offence'. The 1984 Act uses the concept of the 'serious arrestable offence' as potentially activating a number of powers if the case in question involved serious harm to the security of the state or public order, serious interference with the administration of justice or the investigation of crime, the death of or serious injury to any person, or substantial financial gain or loss to any person.[17] These powers, which impact significantly on human rights, are—

    —  the power to seek an order for access to or production of confidential and journalistic material falling into the categories of 'excluded material' and 'special procedure material', and in some circumstances to seek warrants to search for such material;[18]

    —  the power to detain a suspect without charge for more than 24 hours,[19] engaging the right to liberty under ECHR Article 5;

    —  the power to delay the exercise of the detainee's right to have someone informed of his or her whereabouts,[20] which is an important safeguard against the 'disappearance' of detainees (engaging ECHR Articles 2 and 3) or their arbitrary detention (engaging ECHR Article 5), as well as making a significant contribution to respecting the family life of the detainee and his or her family as required by ECHR Article 8;

    —  the power to delay the exercise of the detainee's right to consult a solicitor privately at any time,[21] which is an important guarantee of the right to a fair trial and of the right to defend one's self through legal advisers of one's own choosing under ECHR Article 6.[22]

The Government has not explained why it considers (as it says in paragraph 431 of the Explanatory Notes) interfering with Convention rights in the ways mentioned above will satisfy the test of proportionality in relation to (for example) the offence of assaulting a constable in the execution of his duty,[23] having an article with a blade or point in a public place or on school premises[24] (where the suspect is likely to be a child), failing to comply with requirements imposed by a constable in relation to the consumption of alcohol in public places,[25] placing advertisements for prostitutes,[26] or ticket touting.[27]

11. Why, in the light of the observations above, do you consider (as it says in paragraph 431 of the Explanatory Notes) that interfering with Convention rights in the ways provided for under clause 42 of the Bill will satisfy the test of proportionality?

Extending the use of anti-social behaviour orders. In your speech opening the Second Reading debate you gave notice that the Government intends to bring forward amendments to the Bill to extend the use of anti-social behaviour orders (ASBOs) under section 1 of the Crime and Disorder Act 1998. The amendments would be intended, in your words—

    to strengthen the effectiveness of the anti-social behaviour orders. This is a vital part of the Bill for Members both of this House and the other place. We want to extend the use of such orders to registered social landlords and the British Transport Police. We want to introduce a system of interim ASBOs so that communities can be protected pending the outcome of a full hearing. We want to enable anti-social behaviour orders to travel with the people on whom they have been served. That will ensure that people cannot escape the consequences of such an order by moving from one area to another. We also propose to explore whether or not, to save time, there is a role for county courts in making orders when they are already dealing with an eviction notice or other civil proceedings against an individual [28]

These are wide-ranging extensions to the use and effect of an already controversial measure contained in the Crime and Disorder Act 1998. The amendments will have important human rights implications, but they will not be covered either by the Minister's section 19 statement or by the Explanatory Notes to the Bill. There is not even the justification here of urgency, let alone emergency. The Committee is very concerned that a Bill has been introduced knowing that the provisions giving rise to some of its most sensitive human rights issues will only be introduced by way of amendment, reducing the opportunity for proper scrutiny by Members of the House of Lords (and, perhaps, of the House of Commons), and by this Committee and others in both Houses.

12. Why were the measures to extend the use of anti-social behaviour orders (ASBOs) under section 1 of the Crime and Disorder Act 1998 not included in the Bill as originally published? The JCHR seeks the earliest possible sight of the proposed amendments to the Bill to make possible full parliamentary scrutiny of proposals which may interfere with human rights.

Seizure of motor vehicles. Clause 52 of the Bill would give various new powers to a constable in uniform who has reasonable grounds for believing (not merely suspecting) that a motor vehicle is being used in a manner which contravenes the prohibition on careless and inconsiderate driving or off-road driving, and is causing, or is likely to cause, alarm, distress or annoyance to members of the public. The new powers would be—

      (a)  power to order a person to stop a moving vehicle;

      (b)  power to seize and remove the vehicle;

      (c)  power for the above purposes to enter any premises on which the vehicle is or is believed to be;

      (d)  power to use reasonable force, if necessary, to exercise the above powers.

Under clause 53, the Secretary of State would be empowered to make regulations to make provision as to the removal, retention, release and disposal of seized vehicles.

The seizure, retention, release and disposal powers would engage various Convention rights, especially (as the Explanatory Notes, paragraph 434, observe) the right to the enjoyment of one's possessions under Article 1 of Protocol No. 1 to the ECHR, but also, potentially, the right to respect for private life and the home under ECHR Article 8.

Any interference with the right under Article 1 of Protocol No. 1 must be justified by showing that it is 'in the public interest and subject to the conditions provided for by law and by the general principles of international law,' avoiding arbitrariness, and maintaining a fair balance between the general interest of the community and the need to protect the fundamental rights of the individual (essentially a form of proportionality test).[29]

The power under clause 52 would not have the purpose of enforcing or facilitating the enforcement of any sentence of a court (although there would have to be reasonable grounds for believing that an offence was being committed). Instead, the seizure could be triggered by a decision by a single uniformed officer, with a view to preventing further alarm, distress or annoyance to the public. This raises a question as to whether the Bill contains adequate procedural safeguards for the Convention and other rights of people with interests in the vehicle, and whether there are sufficient guarantees that the powers will be exercised only in ways which represent a fair balance between interests as required by Article 1.

The Government says, in paragraph 434 of the Explanatory Notes, that it is satisfied that the provisions 'strike a fair balance between the general interest in controlling anti-social behaviour and protecting the rights of others.' In this regard, the Committee notes that the procedural safeguards in the Bill are minimal. There are some. Before seizing a vehicle, the constable must warn the person who appears to be using it that he will seize it if the use continues or is repeated. The seizure power then arises only if it appears to the constable that the use has been continued or repeated after the warning.[30] However, the constable need not warn the user if—

    (a)  the circumstances make it impracticable in the circumstances;

    (b)  the constable has already given a warning, on that occasion, to that person in relation to the use of that vehicle or another vehicle;

    (c)  the constable has reasonable grounds for believing that another constable has given such a warning to that person on the same occasion; or

    (d)  the constable has reasonable grounds for believing that the person in question has been given such a warning on another occasion within the previous twelve months.[31]

These exceptions appear to us to weaken the protection for Article 1 rights. The Committee provisionally inclines to the view that exception (d), in particular, represents a serious inroad into the protection, so that a seizure made on that basis might fail the fair balance test.

13. Why, in the light of the relative weakness of the safeguards included in the Bill, do you consider that the powers granted under clause 52 strike a fair balance between the general interest in controlling anti-social behaviour and protecting the rights of others? How could the safeguards be strengthened without losing the effect sought?

Furthermore, the procedural protections after seizure seem to the Committee to be very limited. No procedural protection is provided in the Bill itself, either for Convention rights or for ordinary property rights under civil law. Neither proceedings in the magistrates' court under the Police (Property) Act 1897 nor civil litigation against the police for unlawful interference with goods or for violation of rights under Article 1 of Protocol No. 1, or by way of judicial review, offers an entirely satisfactory way of dealing with cases which may often raise complex questions of law, fact and discretion. Regulations made by the Secretary of State under clause 53 may, but need not, provide for a procedure whereby someone who claims to be the owner of the vehicle may seek to have it released. In any event, it is not clear from the Bill what criteria would be applied when deciding whether to release it, or whether the procedure would be judicial or administrative, or what procedures (if any) would be made available to people who claim to have interests in the vehicle short of outright ownership.

The same concerns arise in respect of the power of the Secretary of State to make regulations under clause 53 to impose fees or charges on the person seeking the release of a seized vehicle, unless the person shows that the use which led to the seizure was not a use by him or her, and that he or she had not known about or consented to its use in that manner, and could not have prevented it by taking reasonable steps.[32] The power directly engages rights under Article 1. It is not clear how the fees would be fixed, on whom they would be imposed, or what form of administrative or judicial control would be exercised over decision made pursuant to any such regulations.

14. What procedural protection is intended to be contained in regulations made under clause 53?

The powers under clause 52 to enter premises, using reasonable force if necessary, engage the right to respect for private life and the home under ECHR Article 8. The considerations which are relevant to deciding whether an interference with those rights is necessary in a democratic society (that is, both a response to a pressing social need and proportionate to a legitimate aim under Article 8(2)), so as to be justifiable, are similar to those which arise in relation to Article 1 of Protocol No. 1.

15. What are your reasons for concluding that the use of the power to enter premises under clause 52 would be likely to be justifiable under Article 8(2)?

Power of the British Transport Police to remove truants. Clause 54 would amend section 16 of the Crime and Disorder Act 1998 to allow members of the British Transport Police (BTP) to exercise the power to remove truants to a specified place where the children were in or in the vicinity of premises policed by the BTP. As in the original text of the Crime and Disorder Act 1998, the provision engages a number of rights, including the Convention right to freedom from arbitrarily deprivation of liberty under ECHR Article 5, the right respect for private life under Article 8, and (if force is used) the right not to be deprived of life (Article 2) and the right to be free of inhuman or degrading treatment (Article 3). The Explanatory Notes do not expressly address these matters.

16. What would the purpose of the removal of such truants be, and how it would relate to the legitimate grounds for depriving a person of liberty under Article 5(1) and for interfering with the right to respect for private life under Article 8?

17. What training would members of the BTP receive to deal with young people for educational purposes, if that is the aim for which the power is to be conferred?

The Committee would also be grateful for information on any other representations the Home Office has received relating to the provisions of this Bill and the ways in which they might engage Convention rights.

27 February 2002


2   R. (Green) v. Police Complaints Authority and others, The Times, 16 January 2002, Admin. Ct. (Moses J.) Back

3   Clause 28 of the Bill Back

4   Clause 29 Back

5   Clause 30, which would substitute new provisions for section 42(1) and (2) of the 1996 Act; and clause 29, which would make consequential amendments to sections 9E, 9F, 9FA, 9G and 11 of the 1996 Act Back

6   See, e.g., Lombardo v. Italy(1996) 21 EHRR 188, Eur. Ct. HR; Couez v. France, Eur. Ct. HR, Judgment of 24 August 1998. In a rather different context, see also Matthews v. Ministry of Defence [2002] EWHC 13 (QB), 22 Jan. 2002, Keith J. Back

7   Pellegrin v. France, Eur. Ct. HR, Grand Chamber, Judgment of 8 December 1999, at para. 66 Back

8   Eur. Ct. HR, Third Section, App. No. 33919/96, Judgment of 27 February 2001 Back

9   See Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2000), para. 18.39, pp. 1306-7; Kuna v. Germany, Eur. Ct. HR, Judgment of 10 April 2001; Rajkovic v. Croatia, Eur. Ct. HR, Judgment of 3 May 2001. Back

10   Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35 at para. 69 of the Judgment Back

11   First Report of 2000-01, Criminal Justice and Police Bill, HL Paper 69, HC 427, pp. xi-xii, paras. 17-20 Back

12   ibid., p. xxv, paras. 75, 78, 81 Back

13   Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, pp. xvii-xviii, paras. 61-62 Back

14   Delegated Powers and Regulatory Reform Committee, Twelfth Report of 2001-02, Police Reform Bill, HL Paper 73, para. 7 Back

15   Schedule 4, paras. 2 and 3 (community support officers) and Schedule 5, paras. 2 and 3 (accredited persons) Back

16   Article 13 binds the United Kingdom in international law, and could be the basis for a complaint to the European Court of Human Rights in Strasbourg, although it is not one of the Convention rights which is made part of national law under the Human Rights Act 1998, s. 1 and Schedule 1 Back

17   PACE, s. 116(3), (4), (6) Back

18   PACE, s. 9 and Schedule 1 Back

19   PACE, ss. 42 and 43 Back

20   PACE, s. 56 Back

21   PACE, s. 58 Back

22   Other powers, such as the power to require an intimate sample under s. 62 of PACE, originally depended on the person being suspected of a serious arrestable offence, but the safeguards have been watered down to the point at which the power can now be exercised in respect of any recordable offence. Back

23   Police Reform Bill, Sched. 6, para. 22 Back

24   ibid., para. 15 Back

25   ibid., para. 25(a) Back

26   ibid., para. 25(b) Back

27   ibid., para. 21(b) Back

28   HL Deb., 5 February 2002, c. 514 Back

29   Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35 at para. 69 of the Judgment Back

30   Clause 52(4) of the Bill Back

31   Clause 52(5) Back

32   The House of Lords Delegated Powers and Regulatory Reform Committee has decided that the negative resolution procedure provides sufficient safeguards for the delegated legislative power under clause 53, but did not have to consider the human rights implications of the exercise of the power. See Twelfth Report, Police Reform Bill, para. 8 Back


 
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