Joint Committee On Human Rights Thirteenth Report


Part 7 of the Bill: environmental matters

54. With regard to noise, clause 45 would allow the chief executive officer of a local authority to make a closure order in relation to licensed premises, or premises in respect of which a temporary event notice is in effect, if he or she reasonably believes that a public nuisance is being caused by noise coming from the premises, and that the closure of the premises is necessary to prevent that nuisance. When we first examined the Bill, this seemed to us to raise issues relating to the right to a fair hearing under ECHR Article 6.1 and the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR ('P1/1').

55. In relation to P1/1, our predecessors accepted that a power for a senior police officer to make a closure order in respect of licensed premises where disorder was likely could be justifiable as a proportionate response to the need to protect public safety and prevent disorder. The provisions then in question allowed the order to be made only if the officer reasonably believed that closure was 'necessary in the interests of public safety', and the order lasted only for a day at a time unless a magistrates' court made a further order after a proper hearing.[46] There are no such limitations in clause 45 of the present Bill. We therefore asked the Government why it thought that a provision in this form, with its limited safeguards, would strike a fair balance between the interests of the community and the rights of the owner or occupier of the premises, as required by P1/1.

56. The Government replied that the provision would extend the power to close premises causing a public nuisance so that it could be exercised by Environmental Health Officers who are trained to assess the level of nuisance being caused. The use of the power would be a control of the use of possessions under P1/1 rather than a deprivation of property, and the Government asserts that 'The temporary interference with the rights of the licensee would strike a fair balance between the public interest in controlling noise nuisance and the protection of individual rights.' The closure order would last only 24 hours, and would have to be cancelled earlier if no longer necessary to prevent a public nuisance.[47]

57. In view of the very limited duration of a closure order made under clause 45 of the Bill, and the requirement that it must be necessary to stop a nuisance caused by noise, we accept the provisions strike an appropriate balance between the public interest and individual rights, as required by Article 1 of Protocol No 1 to the ECHR.

58. We also asked the Government whether it thought that the absence from the Bill of a procedure for the order to be reviewed by a magistrates' court, with full jurisdiction to review the grounds on which it was made, might make the provisions incompatible with the right to a fair hearing by an independent and impartial tribunal in the determination of civil rights and obligations under ECHR Article 6.1. The Government replied that the procedure would not determine a civil right or obligation or a criminal charge. Any steps taken subsequently by the licensing authority (for example, to deny a licence to the licensee in the future) would be subject to court proceedings which would guarantee compliance with Article 6.

59. While property and business rights are undoubtedly civil rights for the purpose of P1/1 as it has been interpreted by the European Court of Human Rights, we are prepared to accept that the limited interference with those rights for the purpose of ending a nuisance caused by noise from licensed premises would not amount to the 'determination' of those rights. We therefore accept that the provisions of clause 45 would be unlikely to give rise to an incompatibility with ECHR Article 6.1.


46   Joint Committee on Human Rights, First Report of 2000-01, paras. 21-23, discussing what was then clause 17 of the Criminal Justice and Police Bill (later the Criminal Justice and Police Act 2001) Back

47   Annex A to the Home Secretary's letter, p 27 Back


 
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