Joint Committee On Human Rights Fifteenth Report

Part 2 of the Bill: Complaints and Misconduct

8. We take the view that the establishment of the Independent Police Complaints Commission (IPCC), and the conferral of powers on it, would generally be unlikely to give rise to an incompatibility with human rights. As a public authority, the Commission would be required by section 6 of the Human Rights Act 1998 to act in a manner compatible with Convention rights, and would act unlawfully to the extent of any incompatibility.

9. However, we asked the Minister about two particular aspects of the provisions of Part 2 which caused us some concern.


10. 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 Complaints 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.[13]

11. We have, 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. We recognize 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. However, we felt that it was appropriate to ask the Government whether it was satisfied that Convention rights would be adequately protected by clause 19, in view of the fact that the clause 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. We were particularly conscious of the need to maintain the principle of legal certainty (allowing people to understand as clearly as possible how legislation would affect them), which is an important aspect of the Rule of Law which helps to underpin respect for human rights.

12. In its response, the Government explained that it intends the powers under clause 19 to be exercised by provisions which 'will be made by suitable adaptation of and amendment to the Regulation of Investigatory Powers Act 2000 and the Police Act 1997 ... to ensure that the IPCC is put in exactly the same position as a police force in relation to the powers and safeguards to the exercise of these powers.'[14] These provisions would have to comply with Convention rights, including the requirement of legal certainty. It seems, therefore, that the Government is content to leave the requirements of legal certainty to be satisfied by subordinate legislation, which, as the Government points out, would be subject to the standards contained in the Convention rights under the Human Rights Act 1998.

13. While we agree that both the subordinate legislation and any action taken in the exercise of powers conferred by it would have to be compatible with Convention rights, we conclude that consideration should be given to making the purpose for which the Government would intend to exercise the power into an express condition, on the face of the Bill, for the exercise of the power. As the Government has decided to use the power simply by adapting the provisions of existing legislation to the needs of the new IPCC, there would seem to be no reason to grant a discretionary power to make subordinate legislation which goes significantly beyond that purpose.


14. 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, in R. (Green) v. Police Complaints Authority and others,[15] 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.

15. 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.'

16. 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.

17. We therefore asked the Minister why these provisions of clause 20 and Schedule 3 had been drafted in a way which would appear to authorize the making of regulations which, if implemented in accordance with their plain meaning, would in some circumstances fail to meet the requirements of the fundamentally important rights under ECHR Articles 2 and 3. The Government, in its reply—

    (a)  drew attention to the need 'to ensure that an unmitigated duty to disclose does not trample over other ECHR rights';[16]

    (b)  suggested that it was important to ensure that disclosures do not prejudice possible future criminal proceedings, or otherwise prejudice public interests; and

    (c)  undertook that 'the Secretary of State will ensure that the regulations are fully compliant with the developing case law on eye-witness testimony disclosure to a complainant' (i.e. the point in issue in R. (Green) v. Police Complaints Authority and others).[17]

18. Matters such as this require careful balancing of competing rights and, where an interference with a right can be justified under the ECHR, often a balance of rights and other interests. In view of the undertaking noted above, we have come to the conclusion that these provisions are capable of being operated compatibly with human rights, and do not require to be drawn to the attention of either House.

19. We take the same view in respect of 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.[18]

13   This point is made by the Police Federation of England and Wales in its submission: letter from Mr. C. E. Elliott, General Secretary, dated 8 February 2002, see p Ev 21 Back

14   Memorandum by the Home Office, Police Reform Bill (henceforth 'Memorandum'), paras. 1B-1C, p Ev 1 Back

15   The Times, 16 January 2002, Admin. Ct. (Moses J.) We understand that the case has recently been heard on appeal in the Court of Appeal (Civil Division), and that judgment is awaited. Meanwhile in Paul and Audrey Edwards v. United Kingdom, App. No. 46477/99, Judgment of 14 March 2002, the European Court of Human Rights (Third Section), reiterating earlier decisions of the Court, unanimously held that, when an investigation into a violent death is being conducted, 'the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests' (§ 73 of the Judgment); allowing them to attend the inquiry only when they were giving evidence, and denying them the opportunity to put questions to other witnesses, or to discover the substance of the evidence until the inquiry's report appeared, meant that 'they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests' (§ 84) Back

16   p Ev 2, para. 2A Back

17   ibid., para. 2B Back

18   ibid., para. 3A Back

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