Background

1.1 This is a Government Bill first introduced in the House of Commons in the last session on 26 June 2007 and carried over into the current session. The Government has made a compatibility statement under s.19(1)(a) of the Human Rights Act 1998. The Explanatory Notes accompanying the Bill explain that the Government considers that the Bill engages a number of Convention rights, but that all of the Bill's provisions are compatible with the ECHR.[1] Although we are critical of some aspects of the Explanatory Notes in this Report, including certain omissions, it is worth noting that the extent of the analysis of compatibility issues in the Notes is unprecedented and they have assisted us greatly in our scrutiny of a very long and detailed Bill. The Bill was considered in a Public Bill Committee between 16 October and 29 November 2007 and passed all remaining stages in the House of Commons on 9 January 2008. The Bill is due to have its Second Reading in the House of Lords on 22 January 2008.

1.2 This is an important Government Bill containing many provisions with very significant human rights implications. We wrote to the Minister on 29 October 2007 asking a number of questions concerning what we considered to be the most significant human rights issues raised by the Bill as published.[2] We asked for a response by 15 November, that is, within two weeks, to enable us to report in time to inform debate on the Bill before Report stage in the Commons. Unfortunately the Government's response took almost six weeks to reach us, the Minister responding in a letter dated 6 December 2007.[3] This made it impossible for us to report on the Bill in time for Report stage in the Commons.

1.3 The Government also tabled a large number of new clauses and amendments to the Bill (without Explanatory Notes) at a very late stage in its passage through the Commons, including some which have very significant human rights implications, and moved a programme motion which seriously truncated debate at Report stage in the House and gave no opportunity whatsoever for debate on some of the new clauses. We add our voice to the many Members who complained at Report stage that the House of Commons has been deprived of the opportunity to conduct, in the case of many clauses, any scrutiny at all of provisions which have serious implications for the rights and liberties of the citizen.

1.4 In this Report, we publish the Minister's response to our inquiries about the Bill as published and report on the human rights issues which we consider to be significant in light of that response. We have also sought to indicate briefly some of the most important human rights issues raised by the new clauses, in relation to some of which we will be writing to the Minister. Further scrutiny may reveal other human rights issues raised by the new clauses on which we may also write to the Minister and report further in due course. We include in an annex some suggested amendments to the Bill to give effect to some of our recommendations in this Report.

Purpose of the Bill

1.5 Parts of the Bill follow on from earlier Government consultations, including the Criminal Justice Review: Rebalancing the criminal justice system in favour of the law-abiding majority.[4] Speaking when the Bill was published, David Hanson MP, Minister for Justice, said:

Today's Bill builds on the considerable reforms to the Criminal Justice System over the past ten years to rebalance the system in favour of the victim and the law abiding majority".[5]

1.6 As we stated when we considered the Criminal Justice Review consultation:

There is assumed to be, or perceived to be, an imbalance between the right of the public to be safe and the rights of individuals, and on the basis of this assumption or perception there is asserted a need to redress this imbalance. The Government does not always make clear whether the justification for its proposals for change is that public safety is actually being prejudiced, or that the public perceives that its safety is being prejudiced so that action is required to provide reassurance.[6]

1.7 At the time, and on the basis of oral evidence from Baroness Scotland, then Minister of State in the Home Office, we stated that we welcomed the fact that the Government did not appear to be asserting that there was an actual imbalance in the criminal justice system.[7] Considering the Minister's comments when introducing the Bill and the evidence that we have received from the Government, it is not clear to us whether this remains the case. We urge the Government to exercise caution in this contentious area of policy and to proceed only on the basis of objective evidence. We ask the Government again to clarify their position on this issue.

Youth Justice

1.8 The Bill introduces Youth Rehabilitation Orders ("YROs"), a new community sentence for juvenile offenders.[8] The proposal to create YROs came out of the consultation on the Government's 2003 Green Paper, "Youth Justice - the next steps", which accompanied the "Every Child Matters" Green Paper. A YRO combines several existing community sentences into one generic community sentence, enabling the sentencing court to choose from a menu of 15 different requirements with which the juvenile offender must comply. One of the main aims is to seek to ensure that the requirements imposed in a community sentence are more closely tailored to the individual circumstances of the juvenile offender.

1.9 We welcome, in principle, the introduction of a generic community sentence for children and young offenders, because it has the potential to enhance the legal protection for the human rights of children and young people in the criminal justice system. Indeed, Article 40(4) of the UN Convention on the Rights of the Child ("the CRC") requires that a variety of dispositions shall be available "to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence." In particular, seeking to ensure that the requirements imposed in a community sentence are more closely tailored to the individual circumstances of the juvenile offender, which is said to be one of the main aims of this Part of the Bill, should help to make the requirements imposed on juvenile offenders more proportionate.

1.10 However, we do have a number of human rights concerns about the legal framework for the new community sentence for juveniles set out in the Bill.

ADEQUACY OF SAFEGUARDS TO ENSURE THAT CUSTODY OF CHILDREN IS A LAST RESORT

1.11 The CRC requires that the use of custody for children should be a last resort. Article 37(b) CRC provides "The … detention or imprisonment of a child shall be … used only as a measure of last resort and for the shortest appropriate period of time." The Explanatory Notes to the Bill contain a detailed analysis of the compatibility of YROs with the ECHR but do not consider compatibility with the CRC.[9]

1.12 In its most recent observations on the UK in 2002, the UN Committee on the Rights of the Child was:

… deeply concerned at the increasing number of children who are being detained in custody at earlier ages for lesser offences and for longer sentences imposed as a result of the recently increased court powers to issue detention and training orders. The Committee is therefore concerned that deprivation of liberty is not being used only as a measure of last resort and for the shortest appropriate period of time, in violation of Article 37(b).[10]

1.13 Our predecessor Committee's Report on the UK's compliance with the CRC, urged the Government to re-examine, with renewed urgency, sentencing policy and practice (and in particular the use of detention and training orders) and alternatives to custodial sentences, with the specific aim of reducing the number of young people entering custody and with a commitment to implementing Articles 37(b) and 40(4) of the Convention to the fullest extent possible.[11]

1.14 The Bill's introduction of a YRO with "intensive supervision and surveillance" ("YRO with ISS")[12] as an alternative to custody could represent an important step towards the fulfilment of this recommendation. To implement the recommendation, the Bill should require that a YRO with ISS should always be tried before custody is ordered, unless the offence is exceptionally serious. However, the Bill does not do this. We asked the Government why not. The Government replied that it agrees that custody for young people should only be used as a last resort, but considers that adequate and appropriate safeguards already exist to ensure that courts only use custody where it is a necessary and proportionate response to the offence or offending of the young person.[13]

1.15 The Government argues that these safeguards are to be found in the Bill itself, and in the restriction on custody contained in the Criminal Justice Act 2003 which states that courts must not pass custodial sentences unless of the opinion that the offence, or combination of offences, was so serious that neither a fine alone nor a community sentence can be justified for the offence.[14] We have considered whether the safeguards relied on by the Government are adequate. However, we note that the Government has not identified which specific provision of the Bill provides the necessary safeguard. Moreover, the provision in the Criminal Justice Act restricting the use of custody is a general restriction applying to all offenders, rather than one aimed at ensuring that custody is only ever used as a genuinely last resort in relation to juveniles. In our view, a much more specific safeguard is required in order to ensure that the obligation in Article 37(b) CRC is properly implemented.

1.16 We note the Government's statement that it strongly believes that custody for young people should only be used as a last resort. However, we note that in the Government's response to our predecessor Committee's recommendation, it said that "intensive supervision and surveillance would be the first option for courts, and custody would be available as a second option only where the offences were so serious that only a physical restriction of liberty could be justified."[15] As presently drafted, however, there is nothing in the Bill to require that a YRO with ISS be the first resort, before custody, other than in exceptionally serious cases.

1.17 In our view, such a requirement would be an important additional safeguard to ensure that custody of children is only used as a last resort. Moreover, such a safeguard is arguably necessary to counter the risk that a single community sentence may lead to a quicker escalation to custody if the order is breached. We recommend that the Bill be amended to require that a YRO with ISS should always be tried before custody, unless the offence is so exceptionally serious that a custodial sentence is necessary to protect the public.

ADEQUACY OF SAFEGUARDS TO ENSURE PROPORTIONALITY OF YRO

1.18 As well as requiring that custody of children must only be used as a last resort, the CRC also requires that such custody should be only for "the shortest appropriate period of time"[16] and that "children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence".[17]

1.19 We are concerned that certain aspects of the YRO framework in the Bill may give rise to disproportionate use of custody for children and young offenders. For example, the Bill contains a requirement that YROs should be proportionate in relation to the seriousness of the offence, but not in relation to the child's age and emotional and intellectual maturity. The provisions in the Bill concerning the consequences of breach also contain very little discretion which gives rise to the risk that breach of a YRO may quickly lead to custody even where custody could not have been an option in relation to the original offending behaviour.

1.20 We asked the Government whether there are any reasons why more judicial discretion could not be provided for in the provisions in the Bill concerning the consequences of breach. The Government replied that while it appreciates that sentencers wish to have freedom to decide on the appropriate action to take on breach of a YRO, it is necessary for it to set clear standards in order to maintain confidence in community sentences. In the Government's view, it is essential that community sentences are subject to "rigorous enforcement action" when breaches occur. It is said to be essential to the integrity of the YRO that the Government ensures that the courts have robust enforcement options to deal with wilful and persistent breach. The Government also does not believe that breach of a YRO could quickly lead to custody. It says that where the original offence was not imprisonable, custody is only available where there has been a persistent and wilful breach of the first YRO, followed by a persistent and wilful breach of the YRO with ISS, at which point the court may make a Detention and Training Order for up to 4 months.[18]

1.21 The Government's response to our inquiry has confirmed our concern that the Bill lacks adequate safeguards to ensure that the use of custody is proportionate, not only to the offence, but to the child's age and intellectual and emotional maturity, as required by the CRC. The Government's emphasis on robust enforcement for wilful and persistent breaches of a YRO, coupled with its assertion that it "needs to maintain confidence in community sentences", appears to us to give rise to a considerable risk that young people will be accelerated into custody not because of the seriousness of their offence but because of their persistent failure to comply with the terms of their community sentences. We recommend that the Bill be amended to include an explicit reference to the requirement of the CRC that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

CHILDREN'S RIGHT TO LEGAL REPRESENTATION IN CRIMINAL PROCEEDINGS

1.22 The Bill expressly provides that a fostering requirement in a YRO (that is, a requirement that the child live for a specified time with one or more named local authority foster parents) cannot be imposed unless the child has had the opportunity to be legally represented.[19] There is, however, no general requirement that children be legally represented in criminal proceedings. This seems surprising to us given the obligation in the CRC to ensure that the best interests of the child shall be a primary consideration in all actions concerning them.[20] We therefore asked the Government why the right of children to legal representation is so confined and whether there are any reasons why children should not enjoy a general right to legal representation in criminal proceedings.

1.23 The Government replied that there are already a number of safeguards in place to ensure that a young person will be granted publicly funded representation where necessary, mainly in the form of the "interests of justice" test in the Access to Justice Act 1999: that legal representation is available to anyone facing criminal proceedings where it is in the interests of justice that public funding should be granted. Accompanying guidance states that the Court should give consideration to whether the defendant is of a young age and to the defendant's ability to understand the proceedings or to state his own case. The Government also stated that extending the scope of publicly funded representation for children "could impact significantly on legal aid funding".

1.24 We are surprised to learn that there is not a presumption that children are entitled to publicly funded legal representation in criminal proceedings, given the seriousness of the consequences for them and the complex and intimidating nature of those proceedings for the child. We recommend that the Government amend the Bill to provide for a general right of legal representation for children in criminal proceedings.

Sentencing

1.25 The Bill provides that where a court is dealing with an offender aged under 18 in respect of an offence, it must have regard primarily to the principal aim of the youth justice system, which is to prevent offending or re-offending by under 18s, and must also have regard to the purposes of sentencing, which are the punishment of offenders, the reform and rehabilitation of offenders, the protection of the public and the making of reparation by offenders to persons affected by their offences.[21] The court must also have regard to the welfare of the offender, as required by s. 44 of the Children and Young Persons Act 1933,[22] but that duty is expressly made subject to the new duty to have regard to the principal aim of the youth justice system.[23]

1.26 The Explanatory Notes to the Bill state that the Government "does note that Article 3 CRC provides that in all actions concerning children their best interests are to be a primary consideration."[24] They state that the duty in the Children and Young Persons Act 1933 to have regard to the welfare of the particular child or young person will continue to apply, but clause 9 clarifies that where the court is sentencing a juvenile offender it must primarily have regard to the principal aim of the youth justice system.

1.27 We asked the Government why it considers that this provision is compatible with the obligation in Article 3 CRC to ensure that the best interests of the child shall be a primary consideration in all actions concerning children. The Government's response is that it is right that the courts should have regard primarily to the principal aim of the youth justice system when sentencing a young offender, and the intention of this provision in the Bill is to clarify the current law and remove any confusion. The welfare of the young person "will be considered as a supporting factor".[25] The Government sees no incompatibility with Article 3 CRC, because that Article only requires the welfare of the child to be a primary consideration in sentencing, not the primary consideration.

1.28 We recognise that the obligation in the CRC is to ensure that the best interests of the child are a primary consideration in all decisions affecting children, not the sole primary consideration. In our view, however, the effect of clause 9 of the Bill is to subordinate the best interests of the child to the status of a secondary consideration below the primary consideration of crime prevention. To treat the welfare of the child as a mere "supporting factor" is not, in our view, to treat it as a primary consideration. We recommend that the Bill be amended to delete the provision which subjects the duty to have regard to the welfare of the child to the primary duty to have regard to the principal aim of the youth justice system. We also recommend that the Bill be amended to make explicit that the sentencing court is required to have regard to the welfare of the child "as a primary consideration," as required by the CRC.

Criminal Appeals

1.29 The Bill amends the test to be applied by the Court of Appeal when deciding whether to allow a criminal appeal.[26] The current test is that the Court of Appeal shall allow an appeal against conviction "if they think that the conviction is unsafe."[27] The Bill provides that a conviction is not unsafe if the Court of Appeal think that there is no reasonable doubt about the appellant's guilt.[28] However, this is qualified by a further provision which makes clear that even if the Court of Appeal thinks there is no reasonable doubt about the appellant's guilt, they still have discretion to allow the appeal if they think that "it would seriously undermine the proper administration of justice to allow the conviction to stand."[29]

1.30 The policy behind the change to the test is that "it is not right that the Court of Appeal should be obliged to quash convictions as unsafe because of procedural irregularities when there is no doubt that the appellant was guilty of the offence", but at the same time the Court of Appeal must retain discretion to allow an appeal if it thinks that there has been serious misconduct by the investigating or prosecuting authorities.[30]

1.31 We welcome the Government's willingness to amend the Bill, since its introduction, to acknowledge the important function of the appellate courts in upholding the rule of law by quashing convictions where there has been serious misconduct on the part of the State authorities. However, we still have two concerns about the new test for allowing criminal appeals.

1.32 The first is whether the necessity for restricting the powers of the Court of Appeal in this way has really been made out by the Government. There is no clear evidence that the mischief the provision is aimed at is a problem in practice: the Court of Appeal has not interpreted its powers to mean that any procedural irregularity or technical defect renders a conviction unsafe. On the contrary, the Court of Appeal has generally taken a fairly robust, common sense attitude to its "safety" jurisdiction.

1.33 Our second concern is that the clause appears to invite the Court of Appeal to set itself up as the arbiter of factual questions going to the guilt or innocence of the appellant, which is not the function of the Court of Appeal in criminal appeals. The role of the Court of Appeal is to review the safety of the conviction, and if it thinks that a conviction is unsafe it should quash a conviction and order a retrial. The new clause appears to restrict the ability of the Court of Appeal to do this.

1.34 In our reports on monitoring the implementation of court judgments finding breaches of human rights, we have noted that in certain circumstances UK law does not allow for the re-opening of criminal proceedings following judgments of the European Court of Human Rights.[31] We pointed out the limits on the ability to re-consider convictions referred to the Court of Appeal by the Criminal Cases Review Commission where the incompatibility arises as a result of primary legislation or as a result of the substantive criminal law rather than a procedural breach. In such cases the Criminal Cases Review Commission does not have jurisdiction to refer the case back to the Court of Appeal. It is therefore impossible for the UK to fulfil its obligation to take individual measures to redress, so far as possible, the effects of the violation for the injured party in such cases, because there is simply no mechanism in national law for reviewing the safety of the conviction in light of the finding of a violation. The present Bill provides an opportunity to give effect to our recommendation in our earlier reports.

1.35 We therefore recommend that the Bill be amended to allow expressly for the re-opening of criminal proceedings in appropriate cases following a finding by the European Court of Human Rights that there has been a breach of the right to a fair trial. We repeat our earlier observation that what is required is not an automatic right to have proceedings reopened following a finding of a violation of a Convention right by the Strasbourg Court, but a procedural mechanism for deciding whether proceedings should be reopened to review the safety of the conviction in the light of that judgment. We hope to propose an amendment to give effect to this recommendation in time for the Bill's Committee stage.

Commissioner for Offender Management and Prisons

1.36 The Bill creates the new office of "Her Majesty's Commissioner for Offender Management and Prisons" to replace the non-statutory Prisons and Probation Ombudsman.[32] The Commissioner's main functions are to deal with eligible complaints from detainees about their treatment during detention, to investigate deaths in custody and to carry out other investigations at the request of the Secretary of State.[33] The Explanatory Notes to the Bill claim that the new Commissioner will be a statutory office-holder, "legally independent of the Secretary of State."[34] The Commissioner will perform an important investigative function as part of the institutional machinery ensuring, amongst other things, that the human rights of prisoners are respected in prisons. As such, it is important that the Commissioner is truly independent of those whose actions are likely to be the subject of investigation, including the Secretary of State himself or herself.

1.37 We are concerned about whether the Commissioner provided for in the Bill can truly be said to be independent of the Secretary of State, for the following reasons:

• the Secretary of State will set the budget of the new Commissioner;
• the Commissioner's staff shall be provided by the Secretary of State;[35]
• the Commissioner will be under a duty to investigate any matter which is requested by the Secretary of State;[36]
• the Secretary of State may give the Commissioner directions as to the scope of, and the procedure to be applied to, such investigations;[37]
• the reporting arrangements provide for the Commissioner to send his reports to the Secretary of State who shall lay them before Parliament.[38]

1.38 Before the publication of the Bill, we raised a similar point about independence in correspondence with the Home Secretary concerning the arrangements for setting the budgets of Her Majesty's Chief Inspectorate of Prisons ("HMIP") and the Prisons and Probation Ombudsman ("PPO"). In March 2007, we wrote to the Home Secretary querying whether the delegation of budget setting to the NOMS Board, on which both the Director General of Prisons and the Director of Probation sit, could be consistent with the independence of HMIP and the PPO when those who are inspected and investigated by those bodies are involved in setting their budgets.[39] The Government confirmed that this was the arrangement but did not accept that there was any problem, stating that "there has been no attempt by the Director General of the Prison Service or Director of Probation to influence the budgets of HMIP or the PPO."[40]

1.39 We wrote again to the Minister pointing out that, regardless of whether any actual influence had been brought to bear, the problem was that the budgetary arrangements undermined the appearance that those bodies are capable of functioning independently, and might therefore be inconsistent with the UK's obligations to maintain independent preventative mechanisms in the Optional Protocol to the UN Convention Against Torture.[41] The Government replied, again denying that there had been any actual or apparent undermining of the functional independence of these scrutiny bodies.[42] It also pointed out that the independence of the two bodies in carrying out their duties is further protected by their freedom to determine the use to which funding is put, which is a key requirement of the Paris Principles on the status of national human rights institutions.[43]

1.40 We share the concerns expressed by the Parliamentary and Health Service Ombudsman, in her letter to us dated 10 December 2007,[44] and by the Prisoner Ombudsman for Northern Ireland, in his letter dated 2 January 2008,[45] that the new Commissioner will not in fact be truly independent of those subject to investigation, particularly the Secretary of State, because of the various ways in which the Secretary of State can control and influence the new Commissioner, as summarised above. We are also concerned that the proposal will in fact diminish the overall level of protection for vulnerable prisoners because it removes investigations from the remit of an existing genuinely independent Ombudsman. We recommend that the Bill be amended to make the Commissioner truly independent of the Secretary of State and accountable directly to Parliament not the Secretary of State.

Compensation for miscarriages of justice

1.41 The Bill imposes a cap of £500,000 on the total amount of compensation that may be paid to an individual[46] in respect of a particular miscarriage of justice.[47] It also caps the amount of compensation payable for a person's loss of earnings to one and a half times the median annual gross earnings. It also provides that the assessor may make deductions from overall compensation by reason of conduct that may have caused or contributed to the conviction, and any other convictions or punishment resulting from them.

1.42 Article 3 of Protocol 7 ECHR (which the UK has not ratified) provides that where there has been a miscarriage of justice the person who has suffered punishment shall be compensated according to the law or practice of the State concerned, unless they were responsible for the non-disclosure of the unknown fact at the time. Article 14 of the International Covenant on Civil and Political Rights is to similar effect. The Government's view is that the limits on the amount of compensation are compatible with these provisions, relying in particular on Strasbourg case law which suggests that relatively modest levels of compensation may be acceptable.[48] In its response to our letter, it accepts that there may be some cases where the effect of the cap is that the compensation an individual receives does not wholly reflect the extent of the individual's loss, but it takes the view that a cap of £500,000 cannot be said to impair the essence of the right.[49]

1.43 The Government also argues that there should be similar limits to the amount of compensation payable to victims of miscarriages of justice as there are to the amount payable to victims of crime under the criminal injuries compensation scheme.

1.44 We do not accept that there is any rational connection between limits on compensation for miscarriages of justice and limits on compensation for victims of crime. In our view, where the State is responsible for a miscarriage of justice, there arises an obligation to restore the individual as closely as possible to the position he or she would have been in but for the miscarriage of justice. It is not difficult to imagine extreme cases in which a limit of £500,000 would fall far short of such an amount, for example where an innocent person has served a very long sentence for a very serious crime and so foregone a lifetime's opportunities. We recommend that the cap on the amount of compensation be deleted from the Bill.

Extreme pornography

1.45 Clause 113 creates a new offence of possession of extreme pornographic images. During the Second Reading Debate, the Lord Chancellor explained that the new offence was required because of technological developments such as the emergence of the internet. He stated:

We believe that those who produce and publish this vile material in the UK are already covered by current legislation, but we need the offences created by part 6 for those who possess it, because the makers and distributors are very often operating across borders ...[50]

1.46 Prosecution for possession of extreme pornographic images interferes with an individual's private life (Article 8) and his/her right freely to receive and impart information (Article 10). Included in the protection of Article 10 is speech which is offensive or unpalatable.[51] In addition, the mere threat or possibility of prosecution would similarly interfere with Articles 8 and 10.[52] In the Explanatory Notes to the Bill, the Government accepts that the new offence interferes with rights under Articles 8 and 10 ECHR, but believes that any such interferences are justified.[53]

1.47 The Committee wrote to the Minister raising concerns about the proposed new offence, including (1) whether the definition of the new offence is sufficiently precise and foreseeable to satisfy the requirement that interferences with the right to respect for private life (Article 8 ECHR) and the right to freedom of expression (Article 10 ECHR) be "in accordance with the law"; and (2) whether the offence is necessary in a democratic society and proportionate so as to be compatible with those rights.

LEGAL CERTAINTY

1.48 We asked the Minister to explain how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.

1.49 In reply, the Minister stated that material caught by the offence must meet three thresholds, namely, it must be pornographic, contain an extreme image and be real or appear to be real. He stated that the Government believed that the individual user of such material would have "no difficulty in recognising pornography" and that extreme images would be "recognisable" or "easily recognisable".[54] However, the Minister noted concerns which were expressed during the Committee stages as to whether there was sufficient precision "in limiting the scope of the offence to material which is extreme and explicit" and stated that "we are considering how the drafting may be clarified".[55] To date, however, no amendments have been made to the original text. There was no debate about the new offence at Report stage in the Commons.

1.50 Our concerns about the vagueness of the definition of the offence, which we expressed in correspondence with the Minister, remain. It is in our view questionable whether the definition of the new offence in clause 113 is sufficiently precise and foreseeable to meet the Convention test of "prescribed by law". The offence requires the pornographic image in the individual's possession to be "extreme". An assessment of whether an image is or is not "extreme" is inherently subjective and may not, in every case, be, as the Government suggests, "recognisable" or "easily recognisable". This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession. We look forward to the Government bringing forward an amendment to make the scope of the new offence more precise.

PROPORTIONALITY

1.51 The Explanatory Notes to the Bill state that the proposed new offence is intended to (1) protect individuals from participating in degrading staged activities or acts of bestiality[56] (2) break the demand and supply cycle of the material[57] and (3) protect others, such as children and vulnerable adults from inadvertently coming into possession of the material on the internet. [58] We intend to return to this matter in a future report.

Prostitution

1.52 The Bill amends the offence of loitering or soliciting for the purposes of prostitution so that the offence is committed only if the woman acts persistently, which means on two or more occasions in any three-month period.[59] It also introduces a new penalty for those convicted of the offence, allowing courts to make "orders to promote rehabilitation" instead of imposing a fine or other penalty.[60] The purpose of the rehabilitation orders is said to be to assist the offender, through attendance at a series of three meetings with a named supervisor, to address the causes of their involvement in prostitution and to find ways out of it.[61] If the order appears to have been breached without reasonable excuse, a warrant for the offender's arrest may be issued,[62] and they can be detained for up to 72 hours before being brought before the appropriate court.[63] If the court is satisfied that the order has been breached without reasonable excuse, it must revoke the order and has power to deal with the offender in any way that it could have dealt with them on conviction.[64]

1.53 In its letter responding to our inquiries about the Bill, the Ministry of Justice stated that breach of a rehabilitation order will not result in a significant increase in the number of vulnerable women being imprisoned because breach of such an order will not be punished with a sentence of imprisonment.[65] Detention for up to 72 hours following arrest was said not to be a penalty for loitering or soliciting, nor a penalty for breaching the order, but part of a mechanism for ensuring that offenders can be brought back to the right court to deal with any breaches. It says that the maximum period of detention has been set at 72 hours in order to give the police an opportunity to bring the offender before the appropriate court, even if the arrest occurs over, say, a bank holiday weekend. We note, however, that in Committee, the Minister, Mr Coaker, appeared to refer to the provision for detention for up to 72 hours as a "sanction" of last resort, to be used should someone completely fail to comply with a rehabilitation order:

We do not wish the 72 hours provision to be used often, but at the end of the day it is important to make available a sanction should somebody knowingly, deliberately and wilfully choose to ignore the fact that they are subject to an order. [66]

1.54 We also note that no justification is offered for why as long as 72 hours may be needed in order to bring an offender before the right court, other than the reference to the possibility of an arrest taking place on a bank holiday weekend.

1.55 We welcome the motivation behind the Bill's provisions on prostitution, in particular the emphasis on rehabilitation and its attempt to facilitate assistance for those vulnerable women who are forced to resort to prostitution. Such measures have the potential to enhance the human rights of such women. However, we are concerned that these measures may in fact lead to the detention of women for up to 72 hours for failing to attend a meeting, and in fact may eventually lead to their imprisonment for failure to comply with the terms of court orders.

Blasphemy

1.56 At Report stage in the Commons one of our members, Dr Evan Harris MP, moved an amendment that "the offences of blasphemy and blasphemous libel are abolished."[67] The Government indicated that it has every sympathy for the case for formal abolition and, subject to a "short and sharp" consultation with the Church of England, undertook to bring forward amendments to the Bill in the House of Lords to achieve the aims of the Harris amendment.[68]

1.57 We welcome the Government's commitment, subject to its consultation with the Church of England, to abolish the offences of blasphemy and blasphemous libel. In our view the continued existence of these common law offences gives rise to an ongoing risk of violations of the right to freedom of expression (contrary to Article 10 ECHR) and of the right not to be discriminated against, on grounds of religion, in the enjoyment of the right to freedom of thought, conscience and religion (contrary to Article 14 ECHR in conjunction with Article 9).

1.58 The risk to freedom of expression arises partly because the scope of the offence is uncertain and it does not require any intention to blaspheme to be proved as an element of the offence, which makes it potentially very wide in scope. This combination of lack of legal certainty and the potential breadth of the offence can have a considerable chilling effect on freedom of speech. Although no actual prosecution has been brought since 1976,[69] the continued existence of the offences makes private prosecution a possibility, as was recently demonstrated by the attempt by Christian Voice to bring a private prosecution against the BBC in respect of "Jerry Springer: the Opera".

1.59 The offences also discriminate on grounds of religion because they only protect the Christian religion, and even within that religion they only protect the tenets of the Church of England. Unlike the narrowly drawn offence of incitement to religious hatred, which protects people of all religions and none against intentionally threatening words and behaviour,[70] the offences of blasphemy and blasphemous libel provide no protection to people of other religions. The only conceivable justification which might be offered for such differential treatment on grounds of religion can be the historical one that the Church of England is the established church of this country, but in our view such a reason cannot be a sufficient justification even in a modern ethnically mixed society comprised of many people of different faiths and none. We note that even the established church itself does not apparently seek to justify the continued existence of the blasphemy laws.

1.60 Although the old European Commission of Human Rights (now replaced by the reformed European Court of Human Rights) declined to find the UK's blasphemy laws to be in breach of freedom of expression or discriminatory, that was more than 25 years ago.[71] In our view, for the reasons we have summarised above, the continued existence of the offences can no longer be justified, and we are confident that this would also, in today's conditions, be the view of the English courts under the Human Rights Act and the Strasbourg Court under the ECHR.[72] We therefore look forward to the Government amendment to the Bill in the Lords abolishing the offences of blasphemy and blasphemous libel. The amendment proposed in the Commons had the virtue of simplicity, by just abolishing the two offences. We recommend that the Bill be amended to similar effect.

Incitement to hatred on grounds of sexual orientation

1.61 The Bill makes it a criminal offence to stir up hatred on the grounds of sexual orientation.[73] Hatred on grounds of sexual orientation means hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both).[74]

1.62 We welcome the creation of the new offence as a human rights enhancing measure. As Stonewall has demonstrated, there is now considerable evidence that gay people in particular are often the subject of material inciting people to violence against them. Where such clear evidence of harm exists, there is a positive obligation on the State under Articles 2, 3 and 8 ECHR (right to life, prohibition of inhuman and degrading treatment, and right to respect for private and family life) to ensure that the criminal law is adequate to protect people from such harm. We are gratified to see that there was a clear cross-party consensus in the Commons that there is an obligation on the State to act to protect against such harm.

1.63 The new offences are modelled on the recently enacted offence of incitement to religious hatred and are therefore narrower than the offences of stirring up racial hatred in two respects. First, the offences apply only to "threatening" words or behaviour, rather than "threatening, abusive or insulting" words or behaviour. Second, the offences apply only to words or behaviour if the accused "intends" to stir up hatred on grounds of sexual orientation, rather than if hatred is either intentional or "likely" to be stirred up.

1.64 In our report on the Racial and Religious Hatred Bill, we expressed concern about the impact on freedom of expression of a broadly drafted offence of incitement to religious hatred and recommended that the offence be narrowed by specific reference to advocacy that constitutes incitement to hostility, violence and discrimination.[75] We welcome the fact that the new offences concerning incitement to hatred on grounds of sexual orientation are narrowly defined so as to apply only to threatening words or behaviour intended to incite hatred against people on the basis of their sexuality. In our view this provides an appropriate degree of protection for freedom of speech.

1.65 The Bill does not extend to incitement to hatred on transgender grounds. On Third Reading the Minister expressed "considerable sympathy" for the view that the Bill should be amended to include such incitement and agreed to meet with parliamentarians who are concerned about the omission.[76] We are aware that Press for Change, the campaigning organisation concerned with transgender issues, amongst others, submitted evidence to the Public Bill Committee suggesting that incitement to hatred on transgender grounds is also a very real problem. We sympathise with this viewpoint, but legislation must be firmly based on evidence. We will therefore be writing to the Minister to ask about the evidence the Government has about the extent of the problem of incitement to hatred on transgender grounds and may return to the issue in a future report.

Self defence and use of force to prevent crime

1.66 The Bill was amended at Report stage to include a provision intended to clarify the law on self-defence.[77] The new provision applies where in proceedings for a criminal offence an issue arises as to whether a person charged with the offence is entitled to rely on the common law defence of self-defence or the statutory defence of "use of force in prevention of crime or making an arrest"[78], and there arises in those proceedings the question whether the degree of force used by the person charged was reasonable in the circumstances.

1.67 The Government's purpose in introducing the provision is to respond to public concern about the operation of the law on self defence, not by amending the law, but by clarifying the operation of the existing defences.[79] It provides that the question whether the degree of force used was reasonable in the circumstances is to be decided by reference to the circumstances as the person using force believed them to be,[80] regardless of whether that belief was mistaken or, if mistaken, whether that mistake was reasonable.[81] The degree of force used is not to be regarded as having been reasonable if it was disproportionate in the circumstances as the person believed them to be,[82] but in deciding that question two considerations are to be taken into account if they are relevant:

a)  that a person acting for a legitimate purpose may not be able to "weigh to a nicety" the exact measure of any necessary action; and

b)  that evidence of a person's having only done what they honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.[83]

1.68 We are satisfied that the new clause clarifies rather than amends the existing law, by articulating clearly in statutory form some of the most important elements of the case-law interpreting the scope of the defences in question. As such, in our view the clause is to be welcomed as a clarification of the existing law. To this extent we consider the clause to be a human rights enhancing measure because it brings greater precision to the scope of a defence to a criminal charge and therefore improves legal certainty in the criminal law.

1.69 However, this beneficial clarification of the current law on self defence and use of force to prevent crime brings sharply into focus a potentially significant human rights concern about the current law, as now restated in the Bill.

1.70 The current position, reflected in the Bill, is that the question whether the degree of force used was reasonable in the circumstances is to be decided by reference to the circumstances as the person subjectively believed them to be, regardless of the reasonableness of that belief.[84] This would mean, for example, that in a situation such as the shooting of Jean Charles de Menezes, a policeman or other agent of the state who used lethal force against an individual of Muslim appearance, in part because he honestly believed Muslims to be more likely to be terrorists, would be entitled to have that honest belief taken into account when deciding whether the degree of force used was reasonable, no matter how unreasonable his mistaken belief.

1.71 Similarly, a racist householder who used lethal force against a black man who came to his door, in part because the householder honestly believed that black men are more likely to be robbers, would also be entitled to have that honest belief taken into account when deciding whether his response was reasonable, notwithstanding that the basis for the honest belief is a mistaken racial stereotype.[85] In both cases, on the current law, so long as the force used is reasonable given what the person honestly thought was about to happen, he would be entitled to be acquitted no matter how mistaken and unreasonable his belief about the circumstances.

1.72 The human rights issue which this raises is whether the right to life is adequately protected by the defence as it currently stands in the Bill, or whether the inclusion of "honest belief" as part of the defence risks putting the UK in breach of the positive obligation under Article 2 ECHR to ensure that its criminal law provides adequate protection for the right to life. This is an obligation which applies even to protect life against the unjustified use of force by other individuals, but it applies with particular strength where the use of force is by state agents.

1.73 Because the provision was inserted by Government amendment at Report stage, we have not yet corresponded with the Minister about this issue. We will write to him shortly and report further in due course.

Violent Offender Orders

1.74 Part 9 of the Bill creates new Violent Offender Orders ("VOOs"). These orders are designed along similar lines to anti-social behaviour orders ("ASBOs") and other civil orders,[86] allowing a court to impose prohibitions, restrictions or conditions on qualifiying offenders in order to prevent serious violent harm. Whilst VOOs are intended to be civil orders, granted in civil proceedings, breach of the order is a criminal offence. Such preventive orders raise human rights questions similar to those on which the Committee has already reported frequently to Parliament in the context of, for example, control orders[87] and serious crime prevention orders.[88]

1.75 During Committee stage, the Government defended its intention to create a new type of civil order, suggesting that ASBOs had been generally successful and stating:

… the cry about the use of civil orders in my and other people's constituencies is not that we should not have them because they are civil orders but that they want more of them. They do not argue about whether antisocial behaviour orders are civil or criminal orders. They just see them as a useful way to control antisocial behaviour … Civil orders make a real difference to preventing harm in our communities and, therefore, to protecting the public.[89]

1.76 The Minister set out the principal aim of VOOs:

... to protect the public from the most dangerous violent offenders who still present a risk of serious, violent harm at the end of their sentences, when there is no other risk management mechanism in place.[90]

1.77 Violent offender orders were not debated on Report stage in the House of Commons.

1.78 In our view, the Bill's provisions on VOOs raise three significant human rights issues:

a)  whether the power to make VOOs is defined with sufficient precision to satisfy the requirement that interferences with Convention rights be "in accordance with the law" or "prescribed by law";

b)  whether VOOs meet the fairness requirements of Article 6 ECHR, and whether the more stringent criminal standards of due process should apply; and

c)  whether the Bill contains sufficient safeguards to ensure that an individual is not retrospectively punished for an offence committed before the Act came into force (contrary to Article 7 ECHR).

LEGAL CERTAINTY

1.79 Clause 148(1) provides that a court may make an order containing "such prohibitions, restrictions or conditions as the court making the order considers necessary for the purpose of protecting the public from the risk of serious violent harm".[91] VOOs will last for at least two years, unless renewed or discharged. The Government accepts that, depending on the conditions imposed by a court, VOOs may engage Convention rights, including Articles 5 (deprivation of liberty) and 8 (right to respect for private and family life) ECHR but considers that no breach would occur.[92] We are concerned that the power to interfere with various Convention rights by imposing a VOO is insufficiently defined in law to satisfy the requirement of legal certainty which is also a fundamental feature of human rights law, including the ECHR.

1.80 In our view, there is a danger that clause 148 provides the court with an entirely open-ended discretion as to the types of prohibitions, restrictions or conditions that a court may attach to an order. The only limit on the order that may be imposed is that the court must consider them to be necessary for the prevention of serious violent harm by the offender. We can find nothing in the Bill which restricts the scope of this discretion other than the purpose for which such terms can be imposed. Further, the Bill does not contain a list of the sorts of prohibitions, restrictions or conditions which may be placed on an individual. Unlike other legislation empowering courts to make civil preventive orders,[93] no examples are provided. Both the Serious Crime Act 2007 (for serious crime prevention orders) and the Prevention of Terrorism Act 2005 (for control orders) contain indicative lists of the sorts of restrictions, conditions or prohibitions that may be imposed. The Crime and Disorder Act 1998 (dealing with ASBOs) does not. We consider violent offender orders to be analogous to the more serious orders (i.e. serious crime prevention orders and control orders). In our view, in order to provide the requisite degree of legal certainty, the Bill should be amended to provide, at the very least, an indicative list of the types of prohibitions, conditions or restrictions which may be imposed, although we consider that it would be more appropriate, and offer greater protection for individual rights, if an exhaustive list were set out.

THE APPLICABLE STANDARDS OF DUE PROCESS

1.81 Clause 151 sets out the test for the making of a VOO. A court may make a VOO if it is satisfied that:

a)  the individual is a qualifying offender (i.e. that he meets the requirements set out in clause 149 of having committeed a specified offence or having done an equivalent act); and

b)  the individual has "acted in such a way as to make it necessary to make a violent offender order for the purpose of protecting the public from the risk of serious violent harm".[94]

1.82 In the leading ASBO case of R (McCann) v Crown Court at Manchester,[95] the House of Lords upheld the Government's argument that proceedings leading to the making of an ASBO do not involve the determination of a criminal charge for the purposes of Article 6 ECHR. It held that:

a)  proceedings for ASBOs were civil, not criminal:

i)  there was no formal accusation of a breach of criminal law;

ii)  they were initiated by a civil complaint;

iii)  it was unnecessary to establish criminal liability;

iv)  the true purpose of the proceedings was preventive;

v)  the making of an ASBO was not a conviction or condemnation that a person was guilty of an offence;

b)  hearsay evidence was admissible.

1.83 Although the House of Lords held that proceedings for an ASBO were civil not criminal, they also held that they should carry the criminal standard of proof. In all cases in which an ASBO was applied for, magistrates should apply the criminal standard of proof: that is, they must be sure that the individual in question has acted in an anti-social manner before they can make an order.[96]

1.84 In the Explanatory Notes to the Bill, the Government accepts that VOOs engage Article 6 ECHR, but only in relation to the determination of an individual's civil rights.[97] As it has argued previously in relation to other civil orders, the Government relies on the fact that VOOs are civil preventive orders stating that they are "not punitive and do not constitute a criminal sanction".[98]

1.85 In correspondence with the Minister, we questioned three issues relating to the fairness of VOOs under Article 6 ECHR:

a)  what distinguishes VOOs from indeterminate sentences for public protection (IPPs);

b)  why the Government considers it to be appropriate for civil proceedings to be used, in circumstances where an individual has been convicted of an offence; and

c)  why the Government does not consider that criminal fairness guarantees are appropriate in the light of the judgment of the House of Lords in McCann.

1.86 We asked the Government to explain the distinction between VOOs and indeterminate sentences for public protection ("IPPs"), which clearly amount to punishment and to which the criminal fair trial standards apply. In his letter to us, the Minister stated that VOOs may be issued in three situations where IPPs would not be applicable and so VOOs "will be the only means of protecting the public", namely:

a)  where individuals were convicted of a qualifying offence prior to the introduction of IPPs;

b)  where at the point of conviction, an individual's risk level was not seen to be sufficiently high to warrant an IPP but s/he was now deemed to present a risk of serious violent harm; and

c)  where an individual's sentence for a qualifying offence has expired but agencies believe, on the basis of the individual's behaviour, that s/he poses a risk of serious violent harm.[99]

1.87 The classification of proceedings as civil in national law is of course not in itself determinative of whether those proceedings determine a criminal charge within the autonomous Convention meaning of that phrase. As a matter of Convention case-law, whether a particular measure amounts to a criminal charge or penalty, so as to attract criminal fair trial guarantees including the presumption of innocence, depends on the application of criteria which have been spelt out in the case-law of the European Court of Human Rights. Significantly, although the classification of the proceedings as a matter of domestic law is a relevant criterion, it is not the decisive factor. Other, more substantive criteria include the nature and severity of the sanctions attached to the offence in question.

1.88 The criteria for obtaining a VOO differ in one major respect from an ASBO and some other civil preventive orders, namely that a prerequisite for obtaining a VOO is demonstrating that the individual has been convicted of a specified offence.[100] One factor that the House of Lords took into account in McCann in determining that the proceedings were civil was case-law of the European Court of Human Rights which recognised that proceedings to obtain an order designed to prevent future harmful conduct, but not to impose a penalty for past offences, did not constitute the bringing of a criminal charge. However, the situation is markedly different in relation to VOOs in that a criminal offence must have been committed before an application for a VOO can be made.[101] We asked the Government to explain its justification for using civil penalties in respect of individuals convicted and punished for previous criminal offences. In reply, the Government stated that a VOO "is not an additional punishment for a past offence. It relates to the risk of future violent harm."[102]

1.89 On the issue of its assertion that criminal guarantees are not appropriate, the Government relies on the decision of the House of Lords in McCann, noting that "the criminal standard of proof is applied in an application for an ASBO" but that "the criminal fairness guarantees set out in Article 6 do not apply to an application for an ASBO". It concludes "the Government does not think that it is appropriate for the criminal fairness guarantees to apply to a civil order such as a VOO".[103] ASBOs generally involve relatively low-level anti-social behaviour which may not even be criminal. We consider VOOs to be a different matter, more akin to control orders and serious crime prevention orders, both in terms of the seriousness of the conduct in which the individual must have been involved before the order can be made and in the severity of the possible restrictions which can be imposed. In the Explanatory Notes to the Bill, the Government refers to the possibility of a VOO imposing a 12-hour curfew on an individual,[104] analogous in our view to some of the control orders which were the subject of challenge in the recent House of Lords cases. In one of those cases, whilst the House of Lords found that non-derogating control order proceedings do not amount to the determination of a criminal charge for the purposes of Article 6(1) ECHR, Lord Bingham stated that the procedural protections must be commensurate with the gravity of the consequences for the controlled individual.[105]

1.90 In our view, the combination of the fact that a VOO will only be made where an individual has already been convicted of a serious violent offence, the risk being protected against is the risk of that person causing serious violent harm in the future by committing a serious criminal offence, the severity of the restrictions to which an individual may be subject under a VOO, and the possible duration of such an order (up to 2 years and indefinitely renewable) means that in most cases an application for a VOO is likely to amount to the determination of a criminal charge for the purposes of Article 6 ECHR and therefore to attract all the fair trial guarantees in that Article.

1.91 In our recent work on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside of the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of VOOs represents yet another step in this direction.

1.92 Article 6 ECHR does not expressly state that the standard of proof required in criminal proceedings is proof beyond a reasonable doubt. However, the European Court of Human Rights has emphasised on a number of occasions that "any doubt should benefit the accused"[106] and it can therefore be said to be implicit in the case-law that proof beyond a reasonable doubt is necessary.

1.93 The Bill does not expressly state the standard of proof to be applied by the court in making a VOO. In correspondence with us the Government stated that whilst the criminal standard of proof applies in applications for ASBOs, criminal fair trial guarantees do not. Based on this analogy, the Government concludes that it "does not think that it is appropriate for the criminal fairness guarantees to apply to a civil order such as a VOO".[107]

1.94 During the Committee stage, there was considerable debate as to whether or not the standard of proof beyond reasonable doubt should be on the face of the Bill.[108] Relying on McCann, the Minister stated:

... there is a sliding scale and ... a standard of proof virtually indistinguishable from the criminal standard should be the standard of proof that is used.[109]

1.95 We welcome the Government's acceptance in debate that the criminal standard of proof applies. However, this acceptance should be spelt out on the face of the Bill to provide that before making a VOO, the court must be satisfied beyond reasonable doubt that the person has "acted in such a way as to make it necessary to make a violent offender order" (clause 151(2)(b)). As we have stated on previous occasions, we do not consider that issues of such importance, and with such serious consequences for the individual, should be left to guidance, but instead should be made explicit on the face of the Bill.

1.96 During the Committee stage, an amendment to insert the words "beyond reasonable doubt" after "satisfied" in clause 151(1) was proposed. The amendment was opposed by the Government and negatived by 8 votes to 5.[110] We consider that amending the Bill in this way would make express the Government's intention that the criminal standard of proof would apply to the making of a VOO. We therefore recommend that the Bill be amended in the manner proposed in Committee to make explicit that the appropriate standard of proof for an application for a VOO be the criminal standard, in accordance with the decision of the House of Lords in McCann.

1.97 In Committee, when asked what evidence would be admissible, the Minister confirmed that, as with ASBOs, hearsay evidence would be admissible,[111] that written rather than oral evidence would be the norm[112] and that guidance would be issued which would relate, amongst other things, to issues of evidence and how applications are to be made.[113] The Minister also stated that guidance would refer to the fact that orders must be proportionate[114] as courts will have to act in line with the Human Rights Act 1998.[115] We are concerned that VOOs may be made without oral evidence or the opportunity for the individual to cross examine witnesses. We recommend that there needs to be a full adversarial hearing in order to ensure that the fairness guarantees in Article 6 ECHR are met.

INTERIM VIOLENT OFFENDER ORDERS

1.98 Clause 153 permits a court to make an interim VOO ("IVOO") if it is:

a)  satisfied that the individual is a qualifying offender under clause 149; and

b)  considers it just to do so.

1.99 Unlike full VOOs, where proof is required that an individual has acted in such a way as to make it necessary to impose a VOO (clause 151(2)(b)), IVOOs do not require such proof of an individual's behaviour. IVOOs may be imposed for a maximum period of four weeks, and are subject to unlimited renewal.[116] This power raises serious questions about its compatibility with Article 6 ECHR. We recommend that clause 153(3) be amended to include, as a third requirement, that prima facie evidence be provided to the court that the individual has engaged in the behaviour set out in clause 151(2)(b). Further, we suggest that the period for which an individual IVOO may be granted be reduced from four weeks to a more limited period, and that IVOOs be non-renewable.

RETROSPECTIVE PUNISHMENT

1.100 VOOs and IVOOs can be made in respect of specified offences committed before the coming into force of the Criminal Justice and Immigration Bill. The fact that any individual convicted of a specified offence, whenever the offence was committed, may be subject to a VOO or IVOO, leads to a risk of retrospective punishment of individuals convicted of specified offences before the coming into force of the Act, contrary to Article 7 ECHR, especially where the terms of the VOO or IVOO are particularly onerous.

1.101 In the Explanatory Notes to the Bill, the Government disputed that VOOs even engaged Article 7 ECHR, but stated that, even if Article 7 were engaged, there would be no breach as any breach of a VOO would be a criminal offence at the time that the breach occurred. We asked the Government to explain the safeguards that it would put in place to ensure that an individual was not retrospectively punished. The Government reiterated that VOOs are not punishments but preventive measures, which will be made on the basis of an up to date assessment of risk and only imposed where the court considers an order to be necessary to protect the public from serious violent harm.[117] Whilst breach of an order would be a criminal offence, this would be a new offence and there would be no question of retrospective punishment. It concluded:

Therefore, we do not need to introduce any additional safeguards to ensure that an individual is not retrospectively punished for an offence committed before the coming into force of the Act.[118]

1.102 We remain to be convinced that the imposition of a VOO or IVOO, particularly one with especially onerous terms, would always comply with Article 7 ECHR. We are disappointed that the Government has chosen not to put in place safeguards to ensure that an individual is not retrospectively punished and we recommend that the Government reconsiders its opposition to introducing safeguards in this regard.

Anti-Social Behaviour

1.103 Part 10 of the Bill deals with anti-social behaviour. It includes two sets of provisions which, in the Committee's view, raise human rights concerns: first, the power to permit closure of premises associated with persistent disorder or nuisance and secondly, the creation of a new offence of causing nuisance or disturbance on NHS premises.

PREMISES CLOSURE ORDERS

1.104 Clause 169 and Schedule 30 of the Bill insert a new provision into the Anti-social Behaviour Act 2003 to permit closure of premises (including homes, whether tenanted or owner-occupied) associated with persistent disorder or nuisance (similar to the existing provisions for closure of premises where drugs are unlawfully used). In order to apply for an order, a senior police officer or a local authority must have reasonable grounds for believing that a person has engaged in anti-social behaviour on the premises in the preceding three months and that the premises are associated with significant and persistent disorder or persistent serious nuisance. A magistrates' court may grant an order if it is satisfied of the grounds above, and considers that an order is necessary to prevent further disorder or serious nuisance. Premises may be closed for a maximum of three months, with the possibility of extensions of further three month periods. Remaining on or entering premises on which a closure notice has been effected is a criminal offence.

1.105 The effect of a closure order on residential property would be likely to be that residents would become homeless for the duration of the order.[119] Whilst the Government has consistently stated that closure orders should only be used as a matter of last resort, this is not made plain on the face of the Bill, and the authorising officer is under no express requirement to demonstrate that other measures have been taken and failed or are not appropriate, although a court may conclude that it is required to undertake such an analysis in order to satisfy itself that the order is "necessary". There is no explicit requirement in the Bill for the authorising officer or the court to consider whether an order would make someone homeless (and if they could find alternative accommodation) or the vulnerabilities of children or some adults.

1.106 We wrote to the Government, outlining our concerns that the proposed measures carry a real risk of violations of the right to respect for family life and the home (Article 8 ECHR), and the protection of property (where the premises are privately owned) (Article 1 of Protocol 1). We expressed our particular concerns about the effects on children and vulnerable adults and questioned the necessity of the measures, given the range of other measures available to deal with anti-social behaviour.

1.107 In the Explanatory Notes to the Bill, the Government accepts that Article 8 and Article 1 of Protocol 1 ECHR are engaged by closure notices and orders.[120] The Government relies on the fact that the applicants for premises closure orders will be public authorities who are required to act compatibly with Convention rights[121] as are courts, who will grant the applications.[122] The Notes state that premises closure orders will not affect property rights as owner occupiers or tenants can return to the property after the order comes to an end.[123]

1.108 In his letter to us, the Minister stated that any interference with private life was "justified in the prevention of disorder or the protection of rights and freedoms of others"[124] and would protect vulnerable adults and children.[125] He also stated that any interference with the peaceful enjoyment of property would be limited by the temporary nature of the order and may safeguard neighbours' peaceful enjoyment of their own premises.[126] The Minister stressed that such orders would only be used as a last resort.[127]

1.109 Concerns were expressed during the Committee stage about the effect of closure orders on family members (especially children) and other residents not associated with the behaviour which was the basis for the closure order and "cuckooing" (the displacement of people who then move into other premises where there are vulnerable people).[128] In reply, the Minister stated that the orders would be the subject of:

… robust guidance on how the orders operate and how the process is put into practice. I will ensure that we include housing considerations as part of the guidance … The guidance will say that this process is only appropriate if it is an absolute last resort and nothing else seems to be appropriate ... We have to protect children and vulnerable people. I believe that through guidance we can ensure that we do that, even though the safeguards are not necessarily on the face of the Bill.[129]

1.110 We are pleased to note that the Government intends to produce guidance dealing more fully with the operation of premises closure orders in practice. However, in our view, this guidance will set out requirements which, for reasons of legal certainty and to ensure the proportionality of the measures with Convention rights, should be contained in the Bill itself. In particular, we are disappointed that the Government does not propose to include, on the face of the Bill, the requirement that a premises closure order only be imposed as a last resort, and that the needs of children and vulnerable adults be taken into account. We encourage the Government to reconsider its position in order to ensure that premises closure orders are proportionate to the interference with the rights to respect for family and home life (Article 8 ECHR) and the peaceful enjoyment of property (Article 1 of Protocol 1).

NUISANCE OR DISTURBANCE ON NHS PREMISES

1.111 Clause 170 creates a new offence of causing nuisance or disturbance on NHS premises, which consists of three elements:

a)  A person on NHS premises, causes a nuisance or disturbance to NHS staff, without reasonable excuse; and

b)  The person refuses, without reasonable excuse, to leave the premises when asked to do so; and

c)  The person is not there to obtain personal medical assistance. A person who has been provided with medical help or who was refused assistance during the previous eight hours will not be classed as being on the premises to obtain personal medical assistance.

1.112 Clause 171 creates the power to remove a person, who it is believed has committed a Clause 170 offence, from the premises. The Secretary of State may issue guidance on the exercise of the power to remove.[130]

1.113 We were concerned that this new offence and the power to remove could adversely affect the ability of some vulnerable people (such as those with mental health problems) to access medical treatment, which raises issues under Article 2 (the right to life) and 8 (including respect for physical and psychological integrity), as well as the right not to be discriminated against in the enjoyment of Convention rights (Article 14 in conjunction with Articles 2 and 8). We therefore wrote to the Government asking it to explain (1) the necessity for the new offence, (2) why a criminal penalty was chosen to address the suggested problem and (3) how such a measure is proportionate to ensuring that all members of the public have equal access to basic medical treatment. In addition, given the Government's positive duties to protect life and prevent ill-treatment and the possibility that an individual might avoid seeking help for medical problems, including those that are life threatening, for fear that s/he would face a criminal sanction,[131] we asked the Government to indicate the steps that it proposed to take to ensure that it complied with its positive obligations.

1.114 In its reply, the Government justified the new offence in part by pointing to the following gaps in current legal protection:

a)  Existing anti-social behaviour law is inadequate to deal with low level nuisance and disturbance occurring on hospital premises, in particular because it requires a court order and therefore cannot be used to deal with an incident as it occurs;

b)  Existing criminal offences such as drunkenness and Public Order Act offences are relevant, but require a police response to arrest and remove the person committing the offence, leaving hospital staff to deal with the offender unless and until the police arrive;

c)  Hospitals may apply for civil law injunctions against individuals, but this is time-consuming, slow and costly and is not appropriate for dealing with an incident as it occurs.[132]

1.115 The Government concluded by noting that:

There is no existing offence dealing with nuisance or disturbance behaviour, with an attendant power of removal exercisable on the commission of the offence conferred on persons other than police officers. There is a need for both the offence, and a power of removal by an authorised NHS staff member where a person has committed or is committing the offence. It will meet the dual objectives of ensuring that persons who cause a nuisance or disturbance on NHS premises to NHS staff and refuse to leave when asked to do so by NHS staff members can be prosecuted for that specific offence … and NHS staff can be empowered to take immediate action against offenders by exercising the power of removal.[133]

1.116 The Government therefore considers a criminal sanction to be necessary:

… in order that offenders who prevent NHS staff from delivering healthcare can be prosecuted and deterred from engaging in such behaviour in the future … The creation of the new offence in combination with the attendant power of removal … will enable incidents to be dealt with more quickly and thus have a positive impact on the delivery of healthcare.[134]

1.117 In a lengthy section of the Explanatory Notes to the Bill, the Government accepts the "potential application" of Articles 2, 3, 6, 8, 9, 10, 11 and 14 ECHR to the new offence and power to remove, and explains that the Government believes that any interferences with Convention rights can be justified.[135]

1.118 In its correspondence with the Committee and in the Explanatory Notes, the Government contends that sufficient safeguards are built into the legislation or will be contained in guidance to ensure that all members of the public have equal access to medical treatment. Suggesting that the measures are a proportionate and targeted response, the Government relies heavily on the fact that the measures are aimed at people who are on NHS premises, but who are not seeking medical attention for themselves.[136] The safeguards relied on by the Government include:

a)  No offence will be committed by an individual attending the premises to obtain medical advice, care or treatment;[137]

b)  A person on NHS premises cannot be removed if an authorised officer believes that the person may need medical treatment, care or advice, or removal would endanger his or her physical or mental health.[138] The Government states that guidance will provide that the officer should be a medical practitioner and will indicate, amongst other things, the matters to be taken into account;[139] and

c)  A person only commits an offence if he or she causes nuisance or disturbance without reasonable excuse and fails to leave when asked to do so, again without reasonable excuse. The Government states that a reasonable excuse would include committing nuisance or disturbance because of a mental health condition or another condition which affects behaviour and will set out examples in guidance.[140] Other examples include receiving distressing news or a communication problem due to language barriers.[141]

1.119 Clause 172 provides that guidance will be published setting out how to exercise the power to remove on at least nine issues.

1.120 During Committee stage, an amendment was suggested by Mr David Heath to remove Clause 170(1)(c). In debate, he suggested that it was "extraordinary" that a hospital could not remove an individual who was causing nuisance or disturbance from NHS premises if s/he required medical treatment.[142] He stated:

I suspect that it is to avoid any potential human rights implications of effectively refusing treatment to someone who has suffered a serious injury.[143]

1.121 The Minister, Mr Vernon Coaker, responded by defending the right of patients to access medical treatment stating:

I do not think that it is acceptable to deny medical treatment to those who need it. It may be vital to that person's health and well-being that they receive the medical advice or treatment that they have sought by attending hospital. Their need for treatment may far outweigh any need to remove them from the premises for having committed the offence of causing a nuisance or disturbance on the premises.[144]

1.122 We consider that the Government has made its case for the necessity of a new power to deal with individuals who cause a nuisance or disturbance on NHS premises. The proposed new offence appears to attempt to strike a balance between the desire for staff and patients not to suffer nuisance and disturbance and the needs of those requiring medical attention to be treated. We welcome the safeguards which the Government has proposed and its commitment to ensuring that the rights of individuals to access medical treatment or advice are protected. The question is whether the proposed measures put into effect the Government's commitment. We are concerned to see that the manner in which the power to remove may be exercised is to be contained in guidance, rather than on the face of the Bill and encourage the Government to reconsider this omission. In particular, we suggest that the Bill should be amended to include express provisions on the matters currently covered by Clause 172(2)(d) to (g), as the exercise of the powers in relation to these issues has the capacity to seriously interfere with an individual's Convention rights. We recommend that the Bill set out an indicative list of the factors which would constitute a reasonable excuse for the purposes of Clause 170(1). Whilst the Government has told us that nuisance or disturbance caused by an individual suffering a mental or physical condition will prevent the commission of an offence or removal, it is unclear whether this would include behaviour due to an addiction (e.g. to drugs or alcohol). We propose to write to the Minister to seek clarification on this matter.

Special Immigration Status

1.123 The Bill introduces a new "special immigration status" for designated "foreign criminals" who are liable to deportation but cannot be removed from the UK because of s. 6 of the Human Rights Act 1998 (e.g. because they face a real risk of torture in the receiving country).[145] "Foreign criminals" are defined to include those who are excluded from the protection of the Refugee Convention under Article 1F of that Convention, or who are guilty of "serious criminality" in or outside the UK.[146] The effect of designation is that the individual does not have leave to enter or remain in the UK, and can be made subject to various conditions concerning residency, reporting, employment or occupation.

1.124 The measure is the Government's response to the decision of the courts in the so-called Afghani hijackers case. The Court of Appeal in that case expressly indicated that it would be open to Parliament to create a new statutory category to accommodate people who it was felt by their conduct had disentitled themselves to any discretionary leave to remain in the UK.[147]

1.125 The Bill provides that the Secretary of State may not designate a person "if the Secretary of State thinks that" an effect of designation would breach the UK's obligations under the Refugee Convention.[148] The Explanatory Notes to the Bill describe the effect of this provision as being that a person may not be designated where the effect of designation would breach the UK's obligations under the Refugee Convention.[149] We were concerned by the subjective language used in this provision and therefore wrote to the Government. We welcome the Government's clarification that the Secretary of State's designation of a person under clause 181 of the Bill would be unlawful if, in the opinion of a court, the effect of designation would breach the UK's obligations under the Refugee Convention.

1.126 In our view, however, the clause still gives rise to a significant human rights issue, because of its reliance on the so-called statutory construction of Article 1F of the Refugee Convention by s. 54 of the Immigration, Asylum and Nationality Act 2006.[150] The Government confirmed in its response to our inquiry that this statutory construction of Article 1F of the Refugee Convention would apply in any court proceedings when deciding whether the effect of designation would breach the UK's obligations under the Convention.[151] In a previous report we have reported that this statutory construction undermines the protection afforded by the Refugee Convention because it expands the scope of the exclusions from refugee protection well beyond the narrow scope given to those exclusions in the Convention itself. These concerns continue to be shared by the UNHCR.[152] We are therefore concerned that this Part of the Bill gives rise to a further risk of breaches of the Refugee Convention by the UK and we recommend that the statutory construction of Article 1F of that Convention be repealed.

Prohibition on industrial action by prison officers

1.127 By means of a Government amendment at Report stage, the Bill reintroduces a statutory prohibition on prison officers taking industrial action.[153] The prohibition is not merely on strike action: "industrial action" is defined to include the withholding of services as a prison officer "and any other action likely to affect the normal working of a prison."[154]

1.128 The right to freedom of association in Article 11 ECHR expressly includes the right to form and join trade unions for the protection of a person's interests. Although the right to strike as such has never been held by the European Court of Human Rights to be included in the scope of Article 11, the right of union members to take collective action to protect their interests has at least implicitly been acknowledged as important to enable the enjoyment of the right to freedom of association. The right to strike is not expressly recognised in any of the ILO Conventions, but is expressly recognised in the European Social Charter 1961,[155] as an example of the collective action to which workers are entitled in order to ensure the effective exercise of the right to bargain collectively.

1.129 Article 11(2) ECHR expressly provides that Article 11 "shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State." Although the European Court of Human Rights has held that the phrase "administration of the State" should be interpreted narrowly, prison officers are clearly "members of the administration of the State." Article 11(2) does not, however, provide the State with carte blanche to impose whatever restrictions it wishes on the association rights of those involved in the administration of the State. To be "lawful", such restrictions must satisfy the usual requirements that they be prescribed by law, necessary in a democratic society and proportionate to the legitimate aim it is sought to achieve. The Explanatory Notes to the Bill acknowledge this but do not go on to explain why the new prohibition satisfies those requirements.[156]

1.130 The Government's justifications for the prohibition of industrial action by prison officers are to be found in the speech of the Secretary of State introducing the amendment on Report: they are because of the risks posed by such action to both public safety and the welfare of prisoners.[157] The evidence referred to by the Government of the consequences of the industrial action taken by prison officers in August 2007 certainly suggests that such action can have very serious consequences for the welfare of prisoners, many of whom have mental health problems, require regular medication or are otherwise vulnerable.[158] We consider that the duty on the State to ensure the safety and well-being of prisoners is a fairly compelling consideration capable in principle of justifying some restriction on the right of prison officers to take some forms of collective action to protect their interests. The question is whether the restrictions contained in the Bill are proportionate to the pursuit of that aim.

1.131 Before we can reach a view on the proportionality question we would like to know the answer to two questions which we have not yet had an opportunity to ask the Minister because of the late stage at which the amendment was introduced. First, why is it necessary, in order to protect the welfare of prisoners, to prohibit all forms of industrial action by prison officers rather than just strike action? Second, has the point of last resort been reached, or is there still a possibility that a voluntary agreement with the Prison Officers Association could be reached? We will write to the Minister in relation to these points and may return to the matter in a future report.

2   Appendix 1. Back

3   Appendix 3. Back

4   Published July 2006. Back

5   26 June 2007. Back

6   Thirty Second Report of 2005-06, The Human Rights Act: the DCA and Home Office Reviews, HL Paper 278, HC 1716, para. 110. Back

7   Ibid., para. 111. Back

8   Part 1, Clauses 1-8 and Schedules 1-4. Back

9   EN paras 1050-1068. Back

10   Committee on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, 9 October 2002, CRC/C/15/Add.188, para. 59. Back

11   Tenth Report of 2002-03, The UN Convention on the Rights of the Child, HL Paper 117, HC 81, para. 41. Back

12   Clause 1(3)(a). Back

13   Appendix 3, para. 1. Back

14   Section 152(2). Back

15   Eighteenth Report of Session 2002-03, The Government's Response to the Committee's Tenth Report of Session 2002-03 on the UN Convention on the Rights of the Child, HL Paper 187, HC 1279, Appendix 1, p. 18. Back

16   CRC Article 37(b). Back

17   CRC Article 40(4). Back

18   Appendix 3, paras. 8-9. Back

19   Schedule 1, para. 19(1). Back

20   CRC Article 3. Back

21   Clause 9(1), inserting new s. 142A of the Criminal Justice Act 2003. Back

22   New s. 142A(3)(b). Back

23   Clause 9(3), inserting new subsection (1A) into s. 44 of the Children and Young Persons Act 1933. Back

24   EN para. 1071. Back

25   Appendix 3, para. 17. Back

26   Clause 42. Back

27   Criminal Appeal Act 1968, s.2(1)(a). Back

28   Clause 42(2), inserting new s. 2(1A) into Criminal Appeal Act 1968. Back

29   New s. 2(1B) Criminal Appeal Act 1968. Back

30   PBC Deb, 20 November 2007, col. 392 (Maria Eagle MP). Back

31   See e.g. Sixteenth Report of 2006-07, Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights, HL Paper 128, HC 728, paras 147-150. Back

32   Part 4, Clauses 50-73 and Schedules 9-13. Back

33   Clause 50(2). Back

34   HL Bill 16-EN, para. 32. Back

35   Schedule 9 para. 9. Back

36   Clause 58(7). Back

37   Clause 58(11). Back

38   Schedule 9, para. 12. Back

39   Letter to the Home Secretary, 19 March 2007, Appendix 8. Back

40   Letter from Mr Gerry Sutcliffe MP, 11 April 2007, Appendix 9. Back

41   Letter to Mr Gerry Sutcliffe MP, 14 May 2007, Appendix 10. Back

42   Letter from Mr Gerry Sutcliffe MP, 6 June 2007, Appendix 11. Back

43   Principles relating to the Status of National Human Rights Institutions (The Paris Principles), Adopted by General Assembly resolution 48/134 of 20 December 1993. Back

44   Appendix 5. Back

45   Appendix 6. Back

46   Under s. 133 of the Criminal Justice Act 1988. Back

47   Clause 111(7), inserting new s. 133A into the Criminal Justice Act 1988. Back

48   EN para. 1152. Back

49   Appendix 3, para. 24. Back

50   HC, 8 October 2007, col. 60. Back

51   Mueller v Switzerland (1991) 13 EHRR 212, para. 33. Article 10 "constitutes one of the essential foundations of a democratic society … it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population." Back

52   Norris v Ireland (1988) 13 EHRR 186, para. 31. Back

53   EN para. 1154. Back

54   Appendix 3, paras 26-28. Back

55   Appendix 3, para. 29. Back

56   EN para. 1156. Back

57   EN para. 1157. Back

58   EN para. 1158. Back

59   Clause 123, amending s. 1 of the Street Offences Act 1959. Back

60   Clause 124. Back

61   EN paras 622-623. Back

62   Schedule 25, para. 2(2)(b). Back

63   Ibid., para. 9(2)(a). Back

64   Ibid., para. 4(2). Back

65   Appendix 3, para. 39. Back

66   PBC Deb, 27 November 2007, cols 569-570. Back

67   HC Deb, 9 January 2008, col. 437. Back

68   Ibid., col. 454. Back

69   R v Lemon [1979] AC 617. Back

70   Part 3A of the Public Order Act 1986, as amended by the Racial and Religious Hatred Act 2006. Back

71   Gay News Ltd. and Lemon v UK (1983) 5 EHRR 123, 7 May 1982 (common law offence of blasphemous libel held to be a proportionate restriction on freedom of expression and restriction of the law to Christianity held to involve no discrimination). Back

72   This was also the view of our predecessors, who expressed similar views about the common law offence of blasphemous libel in November 2001, commenting on the proposal in the Anti-Terrorism Crime and Security Act 2001 to introduce an offence of incitement to religious hatred: Second Report of 2001-02, Anti-Terrorism Crime and Security Bill, HL Paper 37, HC 372, para. 60. The Committee observed that the dynamic interpretation of the ECHR as a living instrument may lead to a change of view by the Strasbourg Court. Back

73   Clause 126 and Schedule 26, amending Part 3A of the Public Order Act 1986 (hatred against persons on religious grounds). Back

74   New s. 29AB of the Public Order Act 1986, inserted by Schedule 26, para. 4. Back

75   First Report of 2005-06 on Racial and Religious Hatred Bill, HL Paper 48, HC 560, paras 5.1-5.2. Back

76   HC Deb, 9 January 2008, col. 485. Back

77   Clause 128. Back

78   Section 3(1) of the Criminal Law Act 1967 and Northern Ireland equivalent. Back

79   Clause 128(7) and the Secretary of State for Justice, HC Deb, 9 January 2008, col. 347. Back

80   Clause 128(3). Back

81   Clause 128(8). Back

82   Clause 128(4). Back

83   Clause 128(5). The relevant considerations spelt out in the Clause are not the only considerations that might be relevant in deciding whether the degree of force used was reasonable: Clause 128(6). Back

84   Clause 128(3) and (8). Back

85   Cf. the American case of Bernard Goetz, who in 1982 shot four black men who asked him for money on the New York subway. Back

86   Such as football banning orders and sexual offences prevention orders. Back

87   See e.g. Eighth Report of Session 2006-07, Counter-terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007, HL Paper 60, HC 365. Back

88   Twelfth Report of Session 2006-07, Legislative Scrutiny: Fifth Progress Report, HL Paper 91, HC 490.  Back

89   PBC Deb, 27 November 2007, col. 596. Back

90   PBC Deb, 27 November 2007, col. 598. Back

91   Clause 148(1)(a). Back

92   EN paras 1204-1205. Back

93   E.g. serious crime prevention orders and control orders. Back

94   Clause 151(2). Back

95   [2003] 1 AC 787. Back

96   [2003] 1 AC 787 at paras 37 (Lord Steyn) and 83 (Lord Hope). Back

97   EN para. 1202. Back

98   Appendix 3, para. 40. Back

99   Appendix 3, para. 41. Back

100   Or has been acquitted of it by reason of insanity or has been found to have done the act charged and been found to be under a disability (Clause 149). Back

101   Or an equivalent finding have been made (Clauses 149(2)(b) and (c)). Back

102   Appendix 3, para. 42. Back

103   Appendix 3, para. 44. Back

104   EN para. 1205. Back

105   Secretary of State for the Home Department v MB [2007] UKHL 46, para. 24. Back

106   E.g. Barbera, Messegue and Jabardo v Spain (1989) 11 EHRR 360, para. 77. Back

107   Appendix 3, para. 44. Back

108   PBC Deb, 27 November 2007, col. 607-614. Back

109   PBC Deb, 27 November 2007, col. 613. Back

110   Amendment No. 364, PBC Deb, 27 November 2007, cols. 607-614. Back

111   PBC Deb, 27 November 2007, col. 613. Back

112   PBC Deb, 27 November 2007, col. 612. Back

113   PBC Deb, 27 November 2007, col. 612. Back

114   PBC Deb, 27 November 2007, col. 601. Back

115   PBC Deb, 27 November 2007, col. 598. Back

116   Clause 153(5) and (6). Back

117   Appendix 3, para. 45. Back

118   Appendix 3, para. 46. Back

119   The Government's own regulatory impact assessment states that "it is anticipated that most people who become homeless as a result of premises closure are likely to be found by the local authority to have become homeless intentionally" (Regulatory Impact Assessment, p. 119). Back

120   EN paras. 1212 and 1214. Back

121   EN para. 1213. Back

122   EN para. 1214. Back

123   EN para. 1214. Back

124   Appendix 3, para. 55. Back

125   Appendix 3, paras. 52-3. Back

126   Appendix 3, para. 57. Back

127   Appendix 3, para. 59. Back

128   PBC Deb, 27 November 2007, col. 618-620. Back

129   PBC Deb, 27 November 2007, col. 621. Back

130   Clause 172. Back

131   E.g. someone with mental health problems at risk of suicide or self-harm. Back

132   Appendix 3, paras. 65-67. Back

133   Appendix 3, para. 68. Back

134   Appendix 3, para. 71. Back

135   EN paras. 1220-1228. Back

136   Appendix 3, para. 77. Back

137   Clause 171(c) and EN para. 1222. Back

138   Clause 171(4). Back

139   Appendix 3, para 75. Back

140   Appendix 3, para. 76. Back

141   EN para. 1227. Back

142   PBC Deb, 27 November 2007, col. 625. Back

143   PBC Deb, 27 November 2007, col. 625. Back

144   PBC Deb, 27 November 2007, cols. 627-8. Back

145   Part 12, clauses 181-188. Back

146   Clause 182. Back

147   S v Secretary of State for the Home Dept [2006] EWCA Civ 1157 at para. 47. Back

148   Clause 181(5)(a). Back

149   EN paras 649 and 873. Back

150   See Third Report of 2005-06, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters, HL Paper 75, HC 561. Back

151   Appendix 3, para. 83. Back

152   PBC Deb, 27 November 2007, cols 643-4 (Harry Cohen). Back

153   Clause 189, amending s. 127 of the Criminal Justice and Public Order Act 1994. Back

154   New s. 127(1A), inserted by Clause 189(3). Back

155   Article 6(4). Back

156   EN paras 1249-1250. Back

157   HC Deb, 9 January 2008, col 328 (Secretary of State for Justice). Back

158   Ibid., col. 329. Back