The Joint Committee on Human Rights is considering the human rights compatibility of the Offender Management Bill. Having carried out an initial examination of the Bill, the Committee would be grateful if you could provide a fuller explanation of the Government's view that the proposals in the Bill are compatible with the Convention rights guaranteed by the Human Rights Act 1998 in the following respects.

(1) Whether providers will be "public authorities" for purposes of the HRA

On the current state of the case law interpreting s. 6 of the HRA, there remains considerable legal uncertainty as to the scope of the definition of "public authority" in the Act. Recently, in Johnson v Havering BC, the High Court upheld the Court of Appeal's restrictive interpretation of the term in the Leonard Cheshire case, rejecting the argument made by the Department for Constitutional Affairs, intervening, that the Leonard Cheshire interpretation had been implicitly overruled by the later House of Lords decision in Aston Cantlow. We are aware that an appeal against the High Court's decision will be heard by the Court of Appeal in January.

Q1. In the Government's view, will providers of probation services from the private or voluntary sectors be "public authorities" for the purposes of s. 6 of the Human Rights Act 1998?

Q2. Does the Government agree that on the current state of the case-law there is considerable uncertainty as to whether the courts will regard providers of probation services from the private or voluntary sectors as public authorities for the purposes of the Act? If not, why not?

(2) Information sharing

The Committee is considering whether the power to disclose information for offender management purposes is sufficiently tightly defined and contains sufficient safeguards to make it likely that it will be exercised compatibly with the right to respect for private life in Article 8 ECHR.

The purposes for which disclosure may be made include "any other purposes connected with the management of offenders".

Q3. Bearing in mind that the disclosure of information contemplated by the Bill may interfere with the right to respect for private life in Article 8 ECHR, on which of the enumerated legitimate aims in Article 8(2) ECHR does the Government rely in seeking to authorise disclosures for "any other purposes connected with the management of offenders"?

The test for disclosure in the Bill is whether it is necessary "or expedient" for any of the specified purposes.

Q4. In the Government's view, does a test of "expediency" satisfy the requirement that disclosures of information which interfere with the right to respect for private life in Article 8(1) ECHR must be "necessary in a democratic society"?

(3) New powers to search in private prisons

The Committee is considering whether the removal of the restriction on the power of prisoner custody officers at contracted out prisons and secure training centres to search visitors, so as to enable them to require visitors to remove items of clothing which are not merely an outer coat, jacket or gloves,[117] is accompanied by sufficient safeguards to be compatible with the right to respect for private life in Article 8 ECHR.

The European Court of Human Rights in Wainwright v UK has very recently reiterated the importance of stringent procedural safeguards accompanying any power to search visitors to prison.

Q5. In light of that judgment, please provide a detailed explanation of the precise procedural safeguards which will accompany the new power to search visitors in a contracted out prison.

(4) New power to detain

The Committee is considering whether the new power to detain for up to two hours in contracted out prisons and secure training centres whilst waiting for the arrival of a constable[118] is compatible with the right to liberty in Article 5 ECHR.

In the Explanatory Notes the Government states that Article 5 does not apply because requiring a person to wait for up to two hours does not amount to a deprivation of liberty. The House of Lords has held that a person who is stopped and searched under s. 44 of the Terrorism Act 2000 should not be regarded as being detained in the sense of confined or kept in custody, or in the sense of kept from proceeding or kept waiting.[119] Merely transitory detention will not therefore constitute a deprivation of liberty such as to engage Article 5 ECHR. Detention for as long as two hours, however, is unlikely to be regarded as merely transitory. The Court of Appeal in Laporte v Chief Constable of Gloucestershire, for example, held that detention on a coach for two and a half hours "went far beyond anything which could conceivably constitute transitory detention".[120]

Q6. In light of the observation of the Court of Appeal in Laporte, that detention for two and a half hours went "far beyond" merely transitory detention, does the Government accept that requiring a person to wait for two hours pending arrival of a police constable would amount to a deprivation of liberty for the purposes of Article 5 ECHR? If not, why not?

The Explanatory Notes alternatively say that, if Article 5 does apply, the power is compatible with that Article because it is within the scope of Article 5(1)(c), that is, a deprivation of liberty effected for the purpose of bringing the person before the competent legal authority on reasonable suspicion of having committed an offence.[121]

Q7. Bearing in mind that the purpose of the detention is to await the arrival of a police constable, who has the power of arrest in order to bring the person before the competent legal authority, please provide a more detailed explanation of the Government's view that such detention is covered by Article 5(1)(c) ECHR.

(5) New power to adjudicate disciplinary charges

The Committee is considering whether the new power of a director of a contracted-out prison to inquire into a disciplinary charge against a prisoner, conduct the hearing and make an award in respect of any charge risks giving rise to breaches of the right to a fair hearing before an independent and impartial tribunal in Article 6(1) ECHR.

The Bill would remove the current statutory prohibition that prevents a director of a contracted-out prison from exercising certain adjudication and segregation functions.[122] The Explanatory Notes state that it is not considered that this gives rise to any ECHR issues.[123] Article 6(1) ECHR, however, requires there to be structural independence between those with the prosecuting and those with the adjudicating roles.[124] Such structural separation is unlikely to apply in a contracted out prison in which persons answerable to the contractor will have been responsible for drafting and laying the charges, investigating and prosecuting those charges, and determining the prisoner's guilt or innocence of those charges as well as his or her sentence.

Q8. How will the proposed new adjudication powers for directors of contracted-out prisons satisfy the requirement in Article 6(1) ECHR that there be structural independence between those with the prosecuting and those with the adjudicating roles?

(6) New criminal offence of removing documents from a prison

The Committee is considering whether the proposed new criminal offence of removing or electronically transmitting "restricted documents" from a prison is so broad as to amount to a disproportionate interference with the right to freedom of expression in Article 10 ECHR.

The Bill would create a new offence of removing or transmitting, without authorisation, a "restricted document" from prison. Restricted documents are defined to include any document which contains "information relating to any matter connected with the prison or its operation if the disclosure of that information would or might prejudicially affect the security or operation of the prison."[125] The Explanatory Notes acknowledge that this could, in certain circumstances, interfere with rights under Article 10 ECHR, but state the Government's view that the interference will be justified for the protection of the rights of prison staff and the security of the prison.[126]

The Bill does provide that it is a defence to show that in all the circumstances there was an overriding public interest which justified the removal or transmission of the document.[127] Nevertheless, a prisoner's right to communicate with those outside the prison is regarded as an important bulwark against the risk of wrongful conviction or mistreatment in prison.[128]

Q9. Why is it considered necessary to create an offence of such width?

Q10. What is the justification for including within the scope of the offence information the disclosure of which "might prejudicially affect the operation of the prison"?

(7) Removal of requirement to appoint medical officer

The Committee is considering whether the removal of the requirement for prisons to appoint a medical officer is compatible with international minimum standards for the detention of prisoners.

The Bill removes the requirement in the Prison Act 1952 that prisons must appoint a medical officer.[129] The Explanatory Notes explain that the reason for this change is that the provision of medical care is now contracted out to primary care trusts and the role of medical officers has become redundant.[130] It is not considered by the Government to create any ECHR issues.

Q11. In view of the importance of having some medical expertise on site in any place where vulnerable people reside or may arrive at short notice, why does the Government consider that the abolition of this requirement is compatible with international minimum standards for the detention of prisoners such as the European Prison Rules and the UN Basic Principles for the Treatment of Prisoners?

(8) Power to send to prison at 18

The Committee is considering whether there will be adequate safeguards accompanying the proposed power of the Secretary of State to send people who receive a detention and training order to prison when they turn 18.

The Explanatory Notes state that there will be policy guidelines in place to ensure that transfer to prison takes place only in appropriate cases, with due consideration to the requirements of the ECHR.[131]

Q12. Will a draft copy of the proposed policy guidelines be made available in draft while the Bill is before Parliament? If not, what, in outline, will be the likely content of the proposed "policy guidelines"?

I would be grateful for your response by 19 January 2007.

118   Clause 12. Back

119   Gillan v Metropolitan Police Commissioner [2006] UKHL 12 at para. 25. Back

120   [2004] EWCA Civ 1639 at para. 47 (this aspect of the Court of Appeal's decision is not affected by the decision of the House of Lords [2006] UKHL 55). Back

121   EN para. 160. Back

122   Clause 14. Back

123   EN para. 161. Back

124   Whitfield v UK, App No 46357/99, Judgment, 12 April 2005, at para. 47. Back

125   New s. 40E(4)(d)(ii) of the Prison Act 1952, as inserted by clause 18 of the Bill. Back

126   EN para. 162. Back

127   Proposed new s. 40D(4)(b). Back

128   See eg. Daly v Secretary of State for the Home Department. Back

129   Clause 20. Back

130   EN para. 165. Back

131   EN para. 166. Back