Joint Committee On Human Rights Thirteenth Report

Written evidence

1. Letter from the Chairman to Rt Hon David Blunkett MP, Home Secretary

The Joint Committee on Human Rights is considering whether to report to each House on the Anti-social Behaviour Bill. Having carried out an initial examination of this Bill, the Committee would be grateful for your comments on the following point. Our starting­point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committees remit extends to human rights in a broad sense, not just the Convention rights under the Act.


Closure of premises might lead to innocent residents in a house, including children, being deprived of their homes, at least for a period because of the conduct of other members of their family or other co-habitants. This could lead to a breach of the right to an adequate standard of living, including accommodation adequate for their needs, under Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

1.  What protection would be available for the rights, under ICESCR Article 11, of innocent parties, including children, who are excluded from their homes as a result of other peoples misconduct?


The powers which Part 2 proposes for dealing with troublesome tenants would apply only where the troublemaker occupies public sector housing. If the person causing trouble is occupying private accommodation (for example, a former council house which has been bought by its tenant and subsequently let to the troublemaker), the local housing authority would have no power under the Bill to intervene to protect neighbours whose lives are disrupted. The landlord could take action, but might not be willing to do so, and aggrieved neighbours would have no power to force the landlord to take action. This appears to leave a gap in the protection for the rights (including the right to respect for their private and family lives and homes, under ECHR Article 8) of residents affected by the troublemaker. There are circumstances in which a local authority may have positive duties to assist tenants to protect their rights, even when the threat to those rights emanates from a private individual or body rather than from a public body.[48]

2.  Has the Government considered conferring power on the local authority or some other body to take action, similar to that envisaged under Part 2 of the Bill, against troublesome private-sector tenants whose behaviour is affecting residents rights to private and family life and the home?


Although parenting contracts under the terms proposed in the Bill would be voluntary, and would give rise to no legally enforceable obligations, they would have some legal consequences. In particular, a parent who refuses to enter into a parenting contract, or who fails to comply with its terms, would be more likely to be the subject of a parenting order made by a magistrates court, whether made on the application of a local education authority under clauses 19 and 20 or on the application of a member of a youth offending team under clauses 24 to 26. There is thus an element of coercion that backs up both a request to a parent to enter into a parenting contract and the expectation that the parent will comply with the terms of the contract. In view of the requirements that can be imposed by a parenting contract, the Committee provisionally takes the view that the provisions relating to parenting contracts in Part 3 of the Bill fall within the ambit of the right to respect for private and family life under ECHR Article 8.1.

So far the Government has not explained the justification for the provisions under Article 8.2.

3.  In the view of the Government—

(a) which legitimate aim or aims under Article 8.2 is or are thought to be advanced by the provisions of Part 3 of the Bill;

(b) why is there a pressing social need for to take the legislative steps proposed; and

(c) why would the provisions be proportionate to the need that has been identified?


The Government accepts that, where someone is arrested for failing to comply with a direction given by a constable or community support officer, the powers in Part 4 of the Bill would give rise to issues relating to the right to liberty under ECHR Article 5, the right to respect for private life under ECHR Article 8, the right to freedom of expression under ECHR Article 10, and the right to freedom of peaceful assembly under ECHR Article 11. In addition, the Committee is provisionally of the view that the right to liberty would also be engaged where a child is taken to his or her home against his or her will.

The relationship between the powers conferred by the Bill and other statutory and common law powers, particularly the power to take such steps as are reasonably necessary to prevent a reasonably apprehended and imminent breach of the peace, is unclear. If they go well beyond existing powers, or even if they merely replicate them, it raises the question whether the new powers can be said to be necessary in a democratic society so as to be justified under ECHR Articles 8.2, 10.2 and 11.2.

4.  In the view of the Government—

(a) what do the proposed measures would add to existing powers; and

(b) what evidence there is for the proposition that there is a pressing social need to provide for such additional powers, and to provide for them to be exercisable by community support officers as well as by constables?

In relation to removal of children to their homes under clause 29(6), effectively turning the authorisations into an extension of child curfew schemes, the Committees predecessors were concerned about the impact of a similar power in the Criminal Justice and Police Bill, extending the use of child curfew schemes under the Crime and Disorder Act 1998, in the 2000-01 session. In its First Report of 200-01 the Committee noted that such schemes arguably interfere with childrens human rights to liberty, to privacy, and to freedom of association and peaceful assembly. The Committee was prepared to accept that individual child curfew schemes might be justifiable in certain circumstances, but was concerned about the degree of discretion allowed to individual constables, and the lack of specificity in relation to the purposes for which the power to take children home could be exercised. The Committee noted that other powers are available to the police to deal with criminal behaviour and anti-social behaviour in public places. In the light of this, the Committee was not satisfied that the powers would be proportionate to a legitimate aim so as to be necessary in a democratic society for such a purpose. The Committee recommended that the use and effects of the power should be closely monitored.[49]

The same considerations are relevant to the power contained in clause 29(6) of the present Bill.

5.  What use has been made of the power under the Crime and Disorder Act 1998 as amended by the 2001 Act?

6.  What pressing social need is thought to be served by the extensions provided for in Part 4 of the Bill?

7.  How will the new powers provide worthwhile additional ways of addressing the pressing social need?

8.  Why does the Government consider that such additional powers would be proportionate to the aim pursued?


Clause 39 and Schedule 2 would extend the operation of curfew orders imposed on convicted persons under the age of 16, by removing the 3-month limit to such orders under section 37 of the Powers of Criminal Courts (Sentencing) Act 2000. The period for which people could be required to comply with directions of a supervisor under a supervision order would be extended from 90 days to 180 days. Curfew orders engage the right to respect for private life under ECHR Article 8.

9.  Why does the Government things think that the new arrangements would be proportionate to a pressing social need so as to be necessary in a democratic society for the purpose of Article 8.2, bearing in mind the range of other methods of dealing with these problems already available to the courts?

Schedule 2, para. 4(5) would insert a new provision (paragraph 5A) in Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000. This would allow a supervision order to require a child offender (aged 10 or over) to live with a local authority foster parent for a specified period not exceeding 12 months, if:

(a) the offence would be punishable with imprisonment if the offender were 18 or over;

(b) the offence is so serious that a custodial sentence would normally be appropriate in the case of a child aged 12 or over;

(c) the court is satisfied that the defendants behaviour was due to a significant extent to the circumstances in which the defendant was living, and that the imposition of a residence requirement would assist in his or her rehabilitation; and

(d) the court has been notified by the Secretary of State that arrangements are in place to implement the requirement in the area, and the court has consulted the local authority which would be responsible for implementing the requirement.

This engages the right to respect for family life (ECHR Article 8). It involves disrupting the family, and interfering with family relationships. It applies to children as young as 10, who could not normally be subjected to a custodial sentence except for a very small number of crimes (notably murder). The Committee provisionally takes the view that a very strong case would need to be made for the necessity of such arrangements before they could be accepted as being proportionate to a legitimate aim so as to be justifiable under Article 8.2. There are limited safeguards in the legislation. In particular, it is not clear how the responsible public authority would perform its duty under Article 8 to ensure that everything possible was done to maintain family relationships and to work towards the reintegration of the family.

10.  How does the Government expect that the responsible authority to perform its functions under proposed new paragraph 5A of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000?

11.  Why does the Government think that removing a young child from his or her family for up to a year would be justifiable in terms of Article 8.2?


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. The Committee has formed the provisional view that this raises issues of due process under ECHR Article 6.1 and engages the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 to the ECHR (P1/1).

In relation to P1/1, the Committees 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.[50] There are no such limitations in clause 45 of the present Bill. This makes it difficult for the Committee to be satisfied that the provisions 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.

Furthermore, the fact that there is no procedure set out in the Bill for the order to be reviewed by a magistrates court, with full jurisdiction to review the grounds on which it was made, makes it possible that the provisions are 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.

12.  What are the Governments reasons for concluding that clause 45, with its very limited safeguards, would be compatible with:

(a) ECHR Article 6.1; and

(b) ECHR P1/1?

Finally, please would let us know of any representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

23 May 2003

48   See e.g. López Ostra v. Spain (1994) 20 EHRR 277, Eur. Ct. HR Back

49   First Report of 2000-01, Criminal Justice and Police Bill, HL Paper 69, HC 427, paras. 52-57 Back

50   Joint Committee on Human Rights, First Report of 2000-01, paras. 21-23, discussing clause 17 of the Criminal Justice and Police Bill. Back

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