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