Legislative Scrutiny: Eleventh Progress Report · 2006. 6. 20. · £0.00 House of Lords House of Commons Joint Committee on Human Rights Legislative Scrutiny: Eleventh Progress Report

HL Paper 201HC 1216

House of Lords House of Commons

Joint Committee on Human Rights

Legislative Scrutiny: Eleventh Progress Report

Twenty-first Report of Session 2005-06

Drawing special attention to:

Legislative and Regulatory Reform Bill

Education and Inspections Bill

Compensation Bill

Commons Bill

HL Paper 201 HC 1216

Published on 20 June 2006 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited

£0.00

House of Lords House of Commons


Legislative Scrutiny: Eleventh Progress Report

Twenty-first Report of Session 2005-06

Report, together with formal minutes and appendices

Ordered by The House of Lords to be printed 12 June 2006 Ordered by The House of Commons to be printed 12 June 2006


The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders. The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House.

Current Membership

HOUSE OF LORDS HOUSE OF COMMONS Lord Bowness Lord Campbell of Alloway Lord Judd Lord Lester of Herne Hill Lord Plant of Highfield Baroness Stern

Mr Douglas Carswell MP (Conservative, Harwich) Mary Creagh MP (Labour, Wakefield) Mr Andrew Dismore MP (Labour, Hendon) (Chairman) Dr Evan Harris MP (Liberal Democrat, Oxford West & Abingdon) Dan Norris MP (Labour, Wansdyke) Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills)

Powers

The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman.

Publications

The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm.

Current Staff

The current staff of the Committee are: Nick Walker (Commons Clerk), Ed Lock (Lords Clerk), Murray Hunt (Legal Adviser), Jackie Recardo (Committee Assistant), Pam Morris (Committee Secretary) and Tes Stranger (Senior Office Clerk).

Contacts

All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2467; the Committee=s e-mail address is [email protected].

Legislative Scrutiny: Eleventh Progress Report 1

Contents

Report Page

Summary 3

Bills drawn to the special attention of both Houses 5 Government Bills 5

1 Legislative and Regulatory Reform Bill 5 Background 5 Orders amending the Human Rights Act 5 Orders treated as primary legislation for purposes of the HRA 6

2 Education and Inspections Bill 8 Background 8 New duties on LEAs 8 Statutory protections for pupils at maintained schools 9

3 Compensation Bill 11 Introduction 11 Negligence, breach of statutory duty and “desirable activities” (Clause 1) 11 Exclusion of evidence and access to justice (Clause 2) 11 Regulation of Claims Management Services (Part 2) 12

The Regulator’s Powers 12 Criminal Sanctions 12 The Claims Management Services Tribunal 13 Investigative Powers of the Regulator 13

4 Commons Bill 15

Bills not requiring to be brought to the attention of either House on human rights grounds 17

Government Bills 17

5 Civil Aviation Bill 17

6 Police and Justice Bill 18 Private Bills 19

7 London Local Authorities and Transport for London Bill 19 Background 19 Justification for immunity from liability in clause 11(2) 19

8 Leicester City Council, Liverpool City Council and Maidstone Borough Council Bills 21

Formal Minutes 23

Appendices 24 Appendix 1: Letter from The Rt Hon Hilary Armstrong MP, Minister for the Cabinet Office and Social Exclusion Chancellor of the Duchy of Lancaster, re Legislative and Regulatory Reform Bill 24 Appendix 2: Letter from The Rt Hon Alan Johnson MP, Secretary of State for Education and Skills, re Education and Inspections Bill 25 Appendix 3(a): Letter from the Chair to Bridget Prentice MP, Parliamentary Under-Secretary, Department for Constitutional Affairs, re Compensation Bill 31 Appendix 3(b): Letter from The Rt Hon Baroness Ashton of Upholland, Parliamentary Under Secretary of State, Department for Constitutional Affairs, re Compensation Bill 34 Appendix 4(a): Letter from the Chair to The Rt Hon Margaret Beckett MP, Secretary of State for Environment, Food and Rural Affairs, re Commons Bill 37 Appendix 4(b): Letter from Barry Gardiner MP, Minister for Biodiversity, Landscape and Rural Affairs, Department for Environment, Food and Rural Affairs, re Commons Bill 37 Appendix 5: Letter from Derek Twigg MP, Parliamentary Under Secretary of State, Department for Transport, re Civil Aviation Bill 40 Appendix 6: Letter from Rt Hon Dr John Reid MP, Secretary of State for the Home Department, re Respect Action Plan 42 Appendix 7(a): Letter from the Chair to Messrs Sharpe Prichard, Solicitors and Parliamentary Agents, re London Local Authorities and Transport for London Bill 44 Appendix 7(b): Letter from Messrs Sharpe Pritchard, Solicitors and Parliamentary Agents, re London Local authorities and Transport for London Bill 44

Public Bills Reported on by the Committee (Session 2005–06) 47


Summary

The Joint Committee on Human Rights examines every Bill presented to Parliament. With Government Bills its starting point is the statement made by the Minister under section 19 of the Human Rights Act 1998 in respect of compliance with Convention rights as defined in that Act. However, it also has regard to the provisions of other international human rights instruments to which the UK is a signatory. The Committee publishes regular progress reports on its scrutiny of Bills, setting out any initial concerns it has about Bills it has examined and, subsequently, the Government’s responses to these concerns and any further observations it may have on these responses. From time to time the Committee also publishes separate reports on individual Bills. In this Report the Committee comments on Government responses received in relation to a number of Government Bills on which the Committee has already reported. In respect of two such Government Bills, the Civil Aviation Bill and the Police and Justice Bill, the Committee publishes without comment letters received from the Government. The Committee also comments on four private Bills, but without drawing any matters arising to the attention of each House of Parliament.

Legislative and Regulatory Reform Bill

In its previous Report on this Bill the Committee recommended two amendments be made to the Bill to meet its concerns. The Government has subsequently brought forward an amendment to meet the first of these concerns, by making it explicit that the order-making power under the Bill may not be used to amend the Human Rights Act, and the Committee welcomes this fact (paragraph 1.6). The Government has not however brought forward an amendment to meet the Committee’s second concern, that orders under the Bill amending primary legislation are themselves defined as primary legislation for the purposes of the Human Rights Act, though it is willing to give the matter further consideration. After considering the Government’s argument for not bringing forward such an amendment at this stage, the Committee maintains its previous view that it would be desirable for it to do so (paragraph 1.15).

Education and Inspections Bill

The Committee considers two main matters arising from the Government’s response to its previous Report on the Bill. The Committee says it is not persuaded by the Government’s argument that it is “inappropriate” to include detained children within the new duty placed on LEAs to identify children not receiving education (paragraph 2.5). In relation to the question of whether the Bill should make Academies and City Technology Colleges (CTCs) maintained schools, in order to make applicable to them a number of statutory protections for pupils’ human rights in relation to admissions, exclusions and SEN, the Committee notes the Minister’s implicit acceptance that the rights enjoyed by pupils at such schools should be no less than those enjoyed by pupils at maintained schools. However the Committee cites three examples where funding agreements between the Secretary of State and Academies provide inferior protections to those at maintained schools, and

4 Twenty-first Report of Session 2005–06

recommends that, if Academies and CTCs are not to be made maintained schools, the Model Funding Agreement should prescribe minimum, non-negotiable terms in relation to those matters (paragraph 2.14).

Compensation Bill

After consideration of the Government’s response to its previous Report on the Bill, the Committee maintains its view that some courts may be persuaded to apply Clause 1 of the Bill in a manner which would give rise to a risk of breach of Articles 2, 3 and 8 ECHR (paragraph 3.4). In respect of the regulatory scheme for claims management companies established under Part 2 of the Bill, the Committee says it is minded to accept that it is not necessary for the full details of the scheme to appear on the face of the Bill (paragraph 3.7). The Committee notes that the Government’s response did not address its concern that the Bill would impose a more severe sanction on an authorised person (i.e. a claims manager) than on a solicitor for holding out (paragraph 3.8). Finally, in relation to the Regulator’s investigative powers, after considering the Government’s argument that a degree of flexibility is needed for the effective exercise of those powers, best met by including safeguards in regulations, the Committee nevertheless concludes that, where powers of search and seizure are sought, safeguards should generally be included in primary legislation (paragraph 3.13).

Commons Bill

After considering the Government’s response to its previous Report on the Bill, the Committee expresses its continuing concern that the lack of provision in the Bill for independent appraisal of applications to amend the register under the commons registration procedure gives rise to a risk of incompatibility with the right of access to court under Article 6(1) ECHR. (paragraph 4.8)

London Local Authorities and Transport for London Bill, Leicester City Council Bill, Liverpool City Council Bill and Maidstone Borough Council Bill

The Report explains why the Committee does not consider that any of these private Bills give rise to a significant risk of incompatibility with Convention rights.


Bills drawn to the special attention of both Houses

Government Bills

1 Legislative and Regulatory Reform Bill Date introduced to first House Date introduced to second House Current Bill Number Date introduced to first House

11 January 2006 17 May 2006 HL 109 17th Report of Session 2005-06

Background

1.1 In our Seventeenth Report of this Session we identified what we considered to be the main human rights implications of the Bill and explained why our Chair had written to the Minister about two specific concerns relating to the potential of the order-making power in the Bill to threaten the protection which the Human Rights Act affords against breaches of human rights.1

1.2 The Minister responded to our queries in a letter dated 11 May 2006.2 We now report further in light of the Minister’s answers.

Orders amending the Human Rights Act

1.3 On our preliminary examination of the Bill, we were concerned that there was nothing on the face of the Bill to prevent the very broad order-making power in the Bill from being exercised to make provision purporting to amend, repeal or replace any provision of the Human Rights Act 1998.

1.4 We therefore asked the Minister why such a restriction on the scope of the order-making had not been included on the face of the Bill, and whether the Government would support an amendment to that effect.

1.5 In his reply, the Minister states that it has never been the Government’s intention that orders made under the new power should be able to amend the Human Rights Act 1998. The Government tabled an amendment to make this explicit in the Bill, and the Bill now expressly provides that an order under this Part of the Act may not make provision amending or repealing any provision of the Human Rights Act 1998.3

1.6 We welcome the Government’s willingness to amend the Bill to meet our concern and we are satisfied that, as amended, the Bill now puts the matter beyond doubt.

1 Seventeenth Report of Session 2005-06, Legislative Scrutiny: Eighth Progress Report, HL Paper 164, HC 1062

2 Appendix 1

3 Clause 9

6 Twenty-first Report of Session 2005-06

Orders treated as primary legislation for purposes of the HRA

1.7 We were also concerned that orders amending primary legislation are themselves defined as “primary legislation” for the purposes of the Human Rights Act, and that the Bill contained no equivalent to the provision in the Civil Contingencies Act 2004 that regulations made under that Act shall be treated as subordinate legislation and not primary legislation for the purposes of the Human Rights Act.

1.8 We therefore asked the Minister why no such provision was contained in the Bill and whether the Government would support an amendment to include one.

1.9 The Minister in his reply gives a single reason for not including in the Bill a provision that regulations made under the Bill shall be treated as subordinate not primary legislation for the purposes of the HRA 1998: the impact on legal certainty for those who need to comply with primary legislation amended by order if those provisions could later be struck down. It is said to be for this reason that the HRA contains the s. 4 procedure for declarations of incompatibility. The Civil Contingencies Act is distinguished on the basis that emergency regulations made under that Act are only temporary, whereas orders under this Bill would make permanent changes to the law.

1.10 We welcome the Minister’s indication that, although at present not convinced that a measure equivalent to that in the Civil Contingencies Act 2004 is appropriate, he nevertheless will listen with an open mind to the debates on this issue and has asked his officials to give it further thought.

1.11 In our view the problem here is one of effective remedies. Orders which amend primary legislation are themselves defined as primary legislation for the purposes of the Human Rights Act.4 This has a very real practical consequence: it means that if an order is made under this Act which breaches Convention rights, the only remedy available will be a declaration of incompatibility. This leaves it for Parliament to decide whether and if so how to remedy the incompatibility. It does not provide the individual concerned with any effective remedy for the breach of their Convention rights.

1.12 Two hypothetical cases might illustrate this potential problem. First, if an order under the Act were to repeal or amend the statutory provision which protects the right of an employee not to be subjected to any detriment on grounds related to their membership of a union,5 for example so as to make it apply only to employees of firms with a workforce of more than 500, this would be likely to be incompatible with the right to freedom of association in Article 11 ECHR. An affected employee, however, would only be able to obtain a declaration of incompatibility in respect of the order, which would not provide much of an effective remedy.

1.13 Second, if an order were made under the Act which significantly increased the regulatory burden on certain businesses, for example by requiring only certain businesses to install safety devices, there may be an argument that the regulatory measure is incompatible with the right to peaceful enjoyment of possessions in Article 1 Protocol 1

4 HRA 1998, s. 21(1)

5 S. 146 Trade Union and Labour Relations Consolidation Act 1992


because it imposes a disproportionate burden on the affected businesses. However, the only remedy available if the breach were made out would a declaration of incompatibility.

1.14 We are not persuaded by the Minister’s argument based on legal certainty. The reason the HRA contains the s. 4 procedure for declarations of incompatibility is not to protect against legal uncertainty. The reason for that procedure being in the Act is to ensure that Parliament, rather than the courts, has the power to amend primary legislation: “because we think that any decision to change primary legislation should be reserved for the consideration of Parliament”.6 We would also point out that people and businesses also have to comply with subordinate legislation, but that is always liable to being struck down by the courts for being ultra vires.

1.15 We therefore remain of the view that a provision should be inserted into the “Restrictions” part of the Bill making clear that no order made under clause 1 of the Bill amending, repealing or replacing any legislation shall be treated as primary legislation for the purposes of the Human Rights Act 1998. We draw this matter to the attention of each House.

6 Parliamentary Secretary to the Lord Chancellor’s Department, Geoff Hoon MP, during the House of Commons

Committee Stage of the Human Rights Bill (HC Deb, 3 June 1998, col 457)


2 Education and Inspections Bill Date introduced to first House Date introduced to second House Current Bill Number Previous Reports

28 February 2006 25 May 2006 HL 116 18th Report of Session 2005-06

Background

2.1 In our Eighteenth Report of this Session, in which we reported on the main human rights implications of this Bill, we indicated that our Chair had written to the Minister on a number of matters arising from its scrutiny of the Bill, and that we might report again in light of that response.7

2.2 The Minister responded to our queries in a letter dated 22 May 2006.8 We now publish that response and report further on some issues in light of some of the Minister’s answers.

New duties on LEAs

2.3 In our earlier Report, we welcomed the imposition of the new duty to make arrangements to identify children not receiving education, but were concerned that this duty might not apply to children who are detained pursuant to a court order. We asked the Minister whether the duty applied to such children, and if not, why not, given that they will be amongst the most vulnerable children in the LEA’s area.

2.4 The Minister in his response confirms that local authorities will not be required to identify such children under the new duty. He affirms the Government’s belief that keeping young offenders engaged in education and learning is a critical part of helping them stay away from crime and to thrive, but states that “since these children are receiving education, it is inappropriate to identify them as children not receiving education who need to be identified by the LEA.”

2.5 We welcome the Government’s commitment to education and learning for young offenders and its intention to develop a strategy to reduce re-offending through skills and employment, but we are not persuaded by the argument that it is “inappropriate” to include detained children within the duty to identify children not receiving education. The Government cites the obligations which exist to provide education for children in different kinds of detention in support of this argument: there is no need to include them within the scope of the duty because they will be receiving education. But the fact that such obligations exist does not mean that these children will necessarily be receiving education. Indeed it seems to us that the very purpose of introducing a duty to identify children not receiving education is to make the realisation of such obligations more likely in practice by identifying the children who are not receiving suitable education. In our view, there is no justification for excluding children in detention from the new duty on LEAs to identify children who are not receiving education. We draw this matter to the attention of each House.

7 Eighteenth Report of Session 2005-06, Legislative Scrutiny: Ninth Progress Report, HL Paper 177, HC 1098

8 Appendix 2


Statutory protections for pupils at maintained schools

2.6 In our earlier Report, we welcomed the fact that the Bill made clear that the new Trust schools will not be “independent” schools as trailed in the White Paper, but will be maintained schools for the purposes of the Education Acts, because this makes applicable a number of statutory protections concerning, in particular, admissions, exclusions and Special Educational Needs (SEN).

2.7 However, this clarification in the Bill gave rise to a separate concern about the justification for not also making Academies and City Technology Colleges (“CTCs”) maintained schools in this Bill. It matters because pupils at Academies and CTCs have inferior protections in a number of respects, for example in relation to the procedural protections which apply to decisions about exclusions. We asked the Minister what the justification is for Academies and CTCs not being maintained schools.

2.8 In his reply the Minister restates the Government’s position that Academies and CTCs should not be defined as maintained schools. They are regulated, not through statutory requirements, but rather through funding agreements with the Secretary of State. It is said to be incorrect to suggest that the protections offered to the pupils are inferior. On exclusions, for example, the model Academy Funding Agreement requires the Academy to have regard to the Secretary of State’s guidance on exclusions as if the Academy were a maintained school, and requires that appeals panels must be both impartial and constituted in accordance with that guidance. The same is said to be true of other areas, such as SEN and admissions, where suggestions that pupils’ rights at Academies are inferior are said to be equally unfounded. Most Academies are said to have adopted the model Academy Funding Agreement without any amendment.

2.9 We welcome the Minister’s response insofar as it implicitly accepts in principle that the protections enjoyed by pupils at Academies and CTCs in relation to exclusions, admissions and SEN should be no less than those enjoyed by pupils at maintained schools. It recognises the importance of the rights at stake (e.g. the right to a fair hearing before being permanently excluded from school) and also the importance of not treating pupils at Academies and CTCs less favourably than pupils at other state schools in respect of their enjoyment of rights such as the right to a fair hearing.

2.10 We are not persuaded, however, that regulating Academies and CTCs through their particular funding agreements with the Secretary of State is conducive to ensuring that equivalent protections are enjoyed by the pupils at Academies and CTCs. Three examples of inferior protections should suffice to demonstrate this.

2.11 First, the Model Funding Agreement suggests a term in the agreement providing that in discharging their duties the Head and Governors will “have regard to” the Secretary of State’s guidance on exclusions as if Academies are maintained schools. As the Government appears to have accepted in the context of the Admissions Code, a duty to “have regard” to guidance is very much weaker than a positive requirement to act in accordance with it. It is a formulation which presupposes that departures from the guidance may be justifiable.

2.12 Second, even where actual funding agreements contain the wording recommended in the Model Agreement, the agreement itself might contain specific provision which is inferior to the protections available at maintained schools. The funding agreement between


the Secretary of State and Haberdashers’ Aske’s Knights Academy, for example, specifically provides for a final right of appeal against permanent exclusion to the Governors, who clearly are incapable of being an independent and impartial tribunal.

2.13 Third, whereas a maintained school is required by statute to admit a child with a statement of special educational needs, there is no equivalent requiring Academies to do the same. Rather, the Secretary of State has power to direct an Academy to take such a pupil if the SENDIST orders it, but whether to exercise that power is itself discretionary on the part of the Secretary of State.

2.14 In our view, if Academies and CTCs are not to be made maintained schools, the only way to ensure that the protections offered to their pupils in relation to admissions, exclusions and SEN are not inferior to those at maintained schools is for the Model Funding Agreement to prescribe minimum, non-negotiable terms in relation to those matters. For example, the Model Funding Agreement would have to require that the Head and Governors act in accordance with current guidance on admissions and exclusions, and comply with an order of the Special Education Needs and Disability Tribunal. This is also likely to require existing contracts with Academies and CTCs to be revisited. We draw these matters to the attention of each House.


3 Compensation Bill Date introduced to first House Date introduced to second House Current Bill Number Previous Reports

2 November 2005 27 March 2006 HC 155 20th Report of Session 2005-06

Introduction

3.1 This is a Government Bill, brought from the House of Lords on 27 March 2006. The Rt Hon Bridget Prentice MP, Parliamentary Under-Secretary of State for Constitutional Affairs, has made a statement of compatibility under s. 19(1)(a) of the Human Rights Act 1998. The Bill had its second reading in the House of Commons on 8 June 2006.

3.2 We expressed our views on this Bill in our Twentieth Report, published on 2 June 2006.9 We wrote to the Minister on 15 May 2006,10 asking for her views on several matters. We comment below on the Government’s response dated 2 June 2006.11

Negligence, breach of statutory duty and “desirable activities” (Clause 1)

3.3 In our earlier report, we considered that there was a risk that Clause 1 could be interpreted in a manner which would not reflect the subtleties of the current law of negligence; with a risk that if such an interpretation were adopted, this could breach the requirements of Articles 2, 3 and 8 ECHR that an individual should have access to an appropriate legal framework to seek redress for any breach of the Convention.12

3.4 We welcome the Government’s confirmation in their response to our concerns that it is their intention that Clause 1 should be interpreted in manner which is consistent with the current law on negligence. However, it is our view that there remains a risk that some Courts may be persuaded to apply this clause in a manner which gives absolute protection to defendants undertaking “desirable activities” against otherwise well-founded claims of negligence or breach of statutory duty. Such an interpretation would, in our view, give rise to a risk that the United Kingdom will be held in future cases to be in breach of its obligations under Articles 2, 3 and 8 ECHR. We draw this to the attention of both Houses.

Exclusion of evidence and access to justice (Clause 2)

3.5 We previously expressed our view that it is very unlikely that Article 6(1) will be engaged by the direction in Clause 2, provided that claimants retain the power to impugn defendants’ evidence on the meaning and effect of their prior statements, including apologies, subject to the determination of the Court as to their effect, meaning and weight in the context of a particular case. We welcome the Government’s confirmation that in their view, this Clause is declaratory of existing law and is not capable of being

9 Twentieth Report of Session 2005–06, Legislative Scrutiny: Tenth Progress Report, HL Paper 186, HC 1138

10 Appendix 3(a)

11 Appendix 3(b)

12 Twentieth Report of Session 2005–06, op. cit., paras 2.14–2.19


interpreted in a manner which could lead to the exclusion of evidence of prior statements and actions of defendants.

Regulation of Claims Management Services (Part 2)

The Regulator’s Powers

3.6 In our report, we expressed our view that Article 1, Protocol 1 ECHR was engaged by the regulatory powers created by the Bill. We concluded that while the scheme envisaged by the Bill is entirely capable of creating a regulatory regime where any interference is proportionate and compatible with individual rights, we took the view that further specificity was required about the Regulator’s power to impose conditions (and the nature of those conditions), and the rules of conduct and the conditions and safeguards surrounding the exercise of the Regulator’s disciplinary powers, before we could conclusively advise whether these provisions will bear a risk of incompatibility.13

3.7 We note the Government explanation that further details about the Regulator’s powers and their scope have been delegated to the Regulator, or are subject to delegated legislation to meet the “the need for flexibility and responsiveness to a changing market and conditions”. We also recognise that the Regulator—and the Secretary of State—will be a public authority, subject to the obligations of section 6 HRA 1998 to act compatibly with the Convention (as we did in our earlier report).14 Generally, the Committee has taken the view that explicit safeguards against the breach of human rights, where necessary, should be included on the face of legislation. In the present context, and bearing in mind that both the Regulator and the Secretary of State are required to comply with the requirements of the ECHR, we are minded to accept that it is not essential that the full details of the Regulatory scheme is reflected on the face of the Bill. However, we re-iterate our view that the regulatory regime must be operated in a manner which allows authorised persons to have confidence that the relevant conditions for the limitation or removal of his authorisation comply with the principle of legal certainty and are fulfilled in their case. We welcome the opportunity to further consider the draft regulations which are expected before the Bill completes its passage through the House of Commons. We draw this to the attention of both Houses.

Criminal Sanctions

3.8 In our Report, we concluded that—save for our concern that the Government proposed to impose a more severe sanction on an authorised person (i.e. a claims manager) than on a solicitor for holding out—that any interference with Article 10 ECHR caused by the Bill’s proposed offence of pretending to be an authorised person was unlikely cause any significant risk of incompatibility with the Convention as the sanctions imposed would most likely to be proportionate to the aim to be achieved.15 We welcome the Government’s confirmation that it believes that the sanctions in the Bill are proportionate to the aim of protecting vulnerable members of society, but note that the

13 Ibid., para 2.41

14 Ibid., para 2.61

15 Ibid., para 2.46


Government’s response does not address the disparity in the degrees of punishment to which we drew attention. We draw this to the attention of both Houses.

The Claims Management Services Tribunal

3.9 In our earlier Report, we indicated that if the Claims Management Services Tribunal was intended to act as a tribunal of full jurisdiction, that it should be clear that it would have the power to quash and remit all decisions of the Regulator, including decisions in respect of disciplinary matters.16 We welcome the Government’s confirmation that the Tribunal will have full powers to quash and remit disciplinary decisions taken by the Regulator and draw this to the attention of both Houses.

Investigative Powers of the Regulator

3.10 We have previously expressed our view on the investigative powers of the Regulator, which include powers of search and seizure, and concluded that with adequate safeguards, including each of those listed by the Minister in the Delegated Powers Memorandum and additional protection for documents protected by legal professional privilege, any interference under the Bill with Articles 6, 8 and Article 1, Protocol 1 is likely to be proportionate to the legitimate aims these enforcement powers are designed to serve.

3.11 However, as drafted, we concluded that the powers in the Bill are inadequately defined and lack appropriate safeguards. In the absence of clearer definition we concluded that there is a significant risk that the enforcement powers in the Bill could be exercised incompatibly with Articles 6, 8 and Article 1, Protocol 1. We wrote to the Minister asking her to elaborate on the Government’s Delegated Powers Memorandum (which accepted safeguards were necessary to comply with the Convention), to explain which additional safeguards the Government consider necessary to comply with the provisions of the Convention and why those safeguards should not be reflected on the face of the Bill.

3.12 We welcome the Government’s confirmation that they do consider that safeguards are necessary and that those safeguards will a) confer protection for legal professional privilege, b) outline the conditions for any search and c) highlight the need for any enforcement action to be proportionate. We note however that the Government has not confirmed whether or not it intends to provide for a procedure for dealing with the treatment or return of seized materials, and means of redress for those aggrieved by the conduct of any search.

3.13 The Government explains that the Regulator “needs a degree of flexibility in his ability to undertake such investigations, depending on the severity and nature of the offence and of the offender. Placing safeguards in the regulations provides flexibility”. We consider that their response does not adequately explain why these essential safeguards should not be included on the face of the Bill. As we explained in our earlier Report, we consider that certain procedural safeguards are necessary to ensure the proportionate exercise of intrusive powers of compulsion and as the Government has already identified which safeguards it considers necessary, we find it difficult to imagine what proportionate benefit could be achieved by leaving these matters to secondary legislation.17 When weighed 16 Ibid, para 2.49

17 Ibid., paras 2.51–2.60


against the seriousness of the powers sought, it is our view that where powers of search and seizure are sought, safeguards should generally be included in primary legislation and that in this case the requirement for “flexibility” is not adequate justification for failing to do so. We draw this to the attention of both Houses.


4 Commons Bill Date introduced to first House Date introduced to second House Current Bill Number Previous Reports

27 June 2005 19 January 2006 HC 115, HC 173 15th Report of Session 2005-06

4.1 In our Fifteenth Report of this Session we reported the results of our preliminary scrutiny of this Bill.18 We had one compatibility concern, which was whether the Bill might give rise to a risk of incompatibility with the right of access to a court for a fair hearing in the determination of civil rights in Article 6(1) ECHR.

4.2 Specifically, we were concerned that the lack of provision in the Bill for independent appraisal of applications to amend the register, other than the very limited jurisdiction of the High Court to amend it on grounds of fraud under clause 19 of the Bill or to intervene by way of judicial review, might give rise to a risk of such incompatibility.

4.3 We therefore wrote to the Minister on 13 March 200619 asking why, in view in particular of the lack of any right of appeal to an independent and impartial tribunal against decisions of the commons registration authorities, the Bill is compatible with Article 6(1) ECHR. We requested a response, if possible, by 30 March.

4.4 We received a response from the Minister in a letter dated 12 May 2006.20 The Minister accepts that in cases which do involve the determination of civil rights and obligations, the commons registration authority may not be regarded as an independent and impartial tribunal for the purposes of Article 6(1) ECHR.

4.5 However, the Government states that it intends to introduce regulations which will provide a number of procedural safeguards in the initial decision-making process, including a requirement to publicise classes of applications which might affect the rights of third parties, a requirement to give the applicant and any objectors an opportunity to be heard before the determination of any contested application, and a right for an applicant to be heard before any decision not to grant an uncontested application.

4.6 The Government argues that, in view of these procedural safeguards in the initial decision-making process, and the specialised nature of commons registration, the availability of judicial review will be sufficient for the commons registration procedure to satisfy Article 6(1) ECHR, relying on the decisions of the European Court of Human Rights in Bryan v UK and of the House of Lords in Alconbury.

4.7 We do not accept that the combination of procedural safeguards before the initial administrative decision-maker and the availability of judicial review is sufficient to remove the risk of incompatibility with the right of access to court in Article 6(1) ECHR.21 The Government’s justification relies on case-law in which there was a layer of administrative appeal from the first instance administrative decision-maker (e.g. in the planning context

18 Fifteenth Report of Session 2005–06, Legislative Scrutiny: Seventh Progress Report, HL Paper 144, HC 989

19 Appendix 4(a)

20 Appendix 4(b)

21 We made the same point in the context of the Civil Aviation Bill, Fourteenth Report of Session 2005-06, Legislative Scrutiny: Sixth Progress Report, HL Paper 134, HC 955, paras 1.3–1.11


to the Planning Inspectorate against a decision of a local planning authority) before a further opportunity to challenge the decision in an Article 6(1) compliant court. As far as we were aware, the courts in those cases had expressed their satisfaction that Article 6(1) was complied with in light of the combined opportunities to challenge the original administrative decision at, first, the administrative appeal level and then, subsequently, the judicial level.

4.8 In the absence of any authority from either the European Court of Human Rights or a domestic court accepting that the requirements of Article 6(1) are satisfied where there is no administrative appeal against the administrative decision of the first instance decision-maker before any subsequent appeal or application to an Article 6(1) compliant court, we remain concerned that the lack of provision in the Bill for independent appraisal of applications to amend the register, other than the very limited jurisdiction of the High Court to amend it on grounds of fraud under clause 19 of the Bill or to intervene by way of judicial review, gives rise to a risk of incompatibility with the right of access to court under Article 6(1) ECHR, because of the limitations on the scope of the court's jurisdiction over factual matters on judicial review. We draw this matter to the attention of each House.


Bills not requiring to be brought to the attention of either House on human rights grounds

Government Bills

5 Civil Aviation Bill Date introduced to first House Date introduced to second House Current Bill Number Previous Reports

5.1 We have previously reported our views on this Bill in our Seventh and Fourteenth Reports of this Session.22

5.2 We have received a letter dated 31 March 2006 from the Minister responding to the concerns expressed in our Fourteenth Report about the provisions in the Bill concerning financial penalties and the removal of a right of appeal to the High Court.23

5.3 We are grateful for the Minister’s response. In light of the advanced stage of the Bill’s progress through Parliament and the extensive consideration of the issues raised by this Bill in our previous Reports, we merely publish this response without substantive comment by us.

22 Seventh Report of Session 2005–06, Legislative Scrutiny: Fourth Progress Report, HL Paper 98, HC 829 and Fourteenth

Report of Session 2005–06, op. cit.

23 Appendix 5


6 Police and Justice Bill Date introduced to first House Date introduced to second House Current Bill Number Previous Reports

25 January 2006 11 May 2006 HL 104 20th Report of Session 2005-06

6.1 We reported on this Bill in our Twentieth Report of this Session.24 As we explained in that Report, we also scrutinised for human rights compatibility the proposals contained in the Respect Action Plan which preceded the introduction of the Bill.

6.2 As part of that scrutiny, we wrote to the Home Secretary on 13 February 2006 asking questions about two aspects of those proposals: first, conditional cautions and unpaid work requirements and, second, whether the bodies to whom certain local authority functions were proposed to be contracted out would be public authorities for the purposes of the Human Rights Act.25

6.3 We have now received a response to those questions, in a letter dated 23 May 2006 from the Home Secretary, which we publish without substantive comment from us.26

24 Twentieth Report of Session 2005–06, op. cit.

25 Ibid., Appendix 1(g)

26 Appendix 6


Private Bills

7 London Local Authorities and Transport for London Bill Date introduced to House of Lords Previous Reports

24 May 2005 None

Background

7.1 The London Local Authorities and Transport for London Bill was first introduced in the House of Lords in the 2004-05 Session and has been revived in this Session. It received its Second Reading in the House of Lords on 1 February 2006 and is due to begin its Committee stage on 26 June.

7.2 The Bill is promoted jointly by Westminster City Council (on behalf of the other 32 London borough councils and the Common Council of the City of London) and Transport for London. It provides those local authorities and Transport for London with various powers in respect of their responsibilities as highway, traffic and street authorities.

7.3 In accordance with Private Business Standing Order 38(3) of the House of Lords, the promoters have provided a statement of opinion of the Bill’s compatibility with Convention rights in the form of an Opinion and Further Opinion by James Goudie QC.

7.4 On 20 December 2005 the Parliamentary Under Secretary of State at the Department for Transport, Karen Buck MP, reported on the promoter’s statement of opinion as required by Private Business Standing Order 98A. She reported that she believed that the promoters have undertaken a full assessment of the compatibility of their proposals with the European Convention on Human Rights and that she saw no need to dispute their conclusions.

7.5 On our preliminary scrutiny of the Bill we had one compatibility concern in relation to which we wrote to the promoters. We now report the results of our scrutiny of the Bill in light of their reply.

Justification for immunity from liability in clause 11(2)

7.6 Clause 11(2) of the Bill provides an immunity from liability for parking attendants and certain other persons in respect of any damage arising out of the exercise of the power in clause 11(1) to remove anything which obscures a registration mark.

7.7 Such an immunity from liability for damage caused by the exercise of a statutory power engages the right of access to court in Article 6(1) ECHR. As a limitation on the right of access to court, it requires justification. No justification is offered in the accompanying Explanatory Memorandum. The Further Opinion of James Goudie Q.C. dated 23 November 2004, supplied in support of the promoter’s statement of compatibility of the Bill with the ECHR, states that he has been provided with justification for the immunity, and is now satisfied that it does not contravene the Convention, but does not state what that justification is.


7.8 In order to assess the proportionality of the interference with the right of access to court which is entailed by the immunity in clause 11(2), we needed to be provided with that justification. We therefore wrote to the promoters on 25 May 2006 asking them to provide a more detailed explanation of the precise purpose which the immunity in clause 11(2) is intended to achieve, and the reasons for the promoters’ view that the restriction on the right of access to court is proportionate to the achievement of that aim.27

7.9 The promoters responded by letter dated 5 June 2006.28 We are grateful for their prompt response. They explain that the justification for the immunity is that, in order to carry out their duties, parking attendants sometimes have to remove locking devices that have been placed in such a way as to obscure vehicle registration plates. This involves breaking the lock. Without the immunity provided by clause 11(2) the fear of civil or criminal liability would prevent parking attendants from carrying out their duties. Any interference with the right of access to court under Article 6(1) ECHR is said by the promoters to be proportionate: it serves the important legislative objective of enabling parking attendants to perform their duties without fear of prosecution or civil proceedings; the immunity is rationally connected to that aim; and there are exceptions to the application of the immunity in cases of bad faith, failure to exercise due care and attention and alleged breaches of s. 6(1) of the Human Rights Act 1998, which ensures that the means used are no more than is necessary to meet the objective.

7.10 In light of this explanation of the justification for the immunity from liability in clause 11(2) of the Bill, we are satisfied that it does not give rise to any significant risk of incompatibility with the right of access to court in Article 6(1) ECHR. We would only comment that we would find it helpful in the performance of our scrutiny function if promoters’ statements of opinion in support of their statement of the Bill’s compatibility with Convention rights contain all of the relevant justifications relied on in support of that statement of compatibility.

27 Appendix 7(a)

28 Appendix 7(b)


8 Leicester City Council, Liverpool City Council and Maidstone Borough Council Bills

Date introduced to House of Commons Date introduced to House of Lords Previous Reports

24 January 2006 None

8.1 The Leicester City Council, Liverpool City Council and Maidstone Borough Council Bills were introduced in the House of Commons on 24 January 2006 and received their Third Reading in the Commons on 23 May 2006. They are likely to begin their Committee stage in the Lords in early July.

8.2 The Bills are promoted by the respective Councils and are in substantive content identical. They relate to street trading, and have three main purposes: first, to alter the exemption from the street trading regime currently enjoyed by holders of a pedlar’s certificate; second, to give a power to council officers or police constables to seize articles, receptacles or equipment where they believe a street trading offence has been committed; and to allow court-ordered forfeiture of such seized articles.

8.3 In accordance with Private Business Standing Order 38(3) of the House of Lords, the promoters have provided a statement of opinion of the Bill’s compatibility with Convention rights in the form of an Advice by Neil Cameron.

8.4 On 23 May 2006 the Minister for Trade, Investment and Foreign Affairs, Ian McCartney, reported on the promoters’ statement of opinion as required by Private Business Standing Order 98A. He notes that the promoters have justified to the Unopposed Bill Committee the limitations on the rights of those holding pedlars’ certificates and the powers of seizure as being in the general interest. He regards it as being for the appropriate Committee in the Lords to consider the justification for the provisions.

8.5 The substantive content of these Bills is identical to the provisions of the Medway Council Act 2004. The Medway Council Bill which preceded that Act was amended in Committee to meet concerns expressed by our predecessor Committee about the compatibility of the Bill with Convention rights.29 These Bills contain the additional safeguards inserted into that Act to meet those compatibility concerns. In all but one respect, our predecessor Committee accepted that those amendments met its compatibility concerns. We see no reason to differ from the judgment of our predecessor Committee.

8.6 The one respect in which our predecessor Committee continued to have reservations concerned whether removing pedlars’ right to trade in the street had been shown to be proportionate to a legitimate aim and therefore a justified interference with the right to peaceful enjoyment of possessions in Article 1 Protocol 1.30 It drew its concern about this matter to the attention of each House, but said that ultimately this would be a matter which the Unopposed Bills Committee could take into account when deciding whether the promoters have established the case for the Bill.

29 Fourth Report of Session 2003–04, Scrutiny of Bills: Second Progress Report, HL 34, HC 303 and Eighth Report of

Session 2003–04, Scrutiny of Bills: Third Progress Report, HL 49, HC 427

30 Eighth Report of Session 2003–04, op. cit., para. 7.26


8.7 The Unopposed Bill Committee on the Medway Council Bill heard evidence from the promoters about the justification for removing pedlars’ right to trade in the street.31 The principal justification was that holders of pedlars certificates were effectively circumventing the street trading regime, without paying the same licence fee, and exposing members of the public to inferior quality goods. In light of that evidence, the Committee was content to let the Bill proceed without amendment.

8.8 We have considered the evidence given to the Unopposed Bill Committee on the Medway Council Bill, subsequently to the report of our predecessor Committee on that Bill. In light of that evidence we do not consider that the provisions in the Bill concerning pedlars’ exemption from the street trading regime carry a significant risk of incompatibility with the right to peaceful enjoyment of possessions in Article 1 Protocol 1 ECHR.

31 Oral evidence taken before the Unopposed Bill Committee on the Medway Council Bill on 16 June 2004, Qq 1–31,

121–131


Formal Minutes

Monday 12 June 2006

Members present:

Mr Andrew Dismore MP, in the Chair

Lord Campbell of Alloway Lord Judd Lord Plant of Highfield

Mr Douglas Carswell MP Mary Creagh MP Dr Evan Harris MP Mr Richard Shepherd MP

Draft Report [Legislative Scrutiny: Eleventh Progress Report], proposed by the Chairman, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1.1 to 8.8 read and agreed to.

Summary read and agreed to.

Resolved, That the Report be the Twenty-first Report of the Committee to each House.

Several Papers were ordered to be appended to the Report.

Ordered, That the Chairman do make the Report to the House of Commons and Lord Judd do make the Report to the House of Lords.

[Adjourned till Monday 26 June at 4.00 pm.


Appendices

Appendix 1: Letter from The Rt Hon Hilary Armstrong MP, Minister for the Cabinet Office and Social Exclusion Chancellor of the Duchy of Lancaster, re Legislative and Regulatory Reform Bill

Thank you for your letter to Jim Murphy of 19 April, and for the Committee’s report on the Bill. Thank you also for the opportunity to meet with you and discuss the recommendations of your committee’s report.

On the first question you raised in your letter, it has never been the Government’s intention that orders should be able to amend the Human Rights Act 1998. However, I have now tabled an amendment that makes this explicit in the Bill in order to put the point beyond doubt.

On your second question, there are considerable differences between this Bill and the Civil Contingencies Act 2004. In particular, emergency regulations made under the Civil Contingencies Act only have effect over a short period of time, whereas orders under this Bill would make permanent changes to the law.

If it were possible that amendments to primary legislation could be reversed by the courts—potentially some time after they were made—there would be a significant impact in terms of legal certainty for those who need to comply with primary legislation amended by order if those provisions could later be struck down. It is for this reason that the Human Rights Act contains the procedure for declarations of incompatibility under section 4, allowing Parliament to take a view on how it wishes to proceed in relation to each identified incompatibility.

While I shall listen with an open mind to the debates on this issue, I am not convinced that a measure similar to section 30(2) of the Civil Contingencies Act would be an appropriate provision to include in this Bill. However, I have asked my officials to give further thought to this issue, and I am sure that the debates in the House of Lords will return to this matter.

11 May 2006


Appendix 2: Letter from The Rt Hon Alan Johnson MP, Secretary of State for Education and Skills, re Education and Inspections Bill

Thank you for your letter of 9 May on the Committee’s scrutiny of the Education and Inspections Bill currently before Parliament. Your letter set out a number of specific issues to which I am responding.

NEW DUTIES ON LEAS

I am pleased that the Committee has welcomed the new duty on local authorities to identify children missing from education. You pose three specific questions in relation to that duty.

First, section 562 of the Education Act 1996 provides that no duty imposed under that Act (which includes our new duty under 436A) shall be construed as relating to any person who is detained in pursuance of an order made by a court. Therefore, local authorities will not be required to identify these children under the new duty.

A child serving a custodial sentence will be subject to the rules of the institution in which he is detained. The Secure Training Centre Rules provide that arrangements must be made to educate trainees, as do the Young Offender Institution Rules in relation to inmates. As my Minister made clear in Commons Committee, we believe that keeping young offenders engaged in education and learning is a critical part of helping them stay away from crime and to thrive. In our Green Paper, “Reducing, Re-Offending Through Skills and Employment”, published jointly by my Department, the Home Office and the Department for Work and Pensions last December, we said we would work with relevant Departments and agencies to develop a strategy to address the challenges we face in this area. I am committed to doing this, and intend to publish proposals in the second half of this year.

As for Immigration Removal Centres, the Detention Centre Rules provide that every detained person at the centre shall be encouraged to take part in educational activities provided there, and that programmes of educational classes shall be provided. These arrangements for providing education in these centers are established through the contract by which the centre is operated and run. Centre operators should provide education based on the national curriculum which is tailored to the needs of the individual child in the centre.

A local authority has separate obligations to safeguard and promote the welfare of children it looks after under the Children Act 1989. So far as a child detained pursuant to an order of the court is a looked after child in a secure children’s home, this duty will apply and it includes a duty to promote the child’s educational achievement.

Since these children are receiving education, it is inappropriate to identify them as children not receiving education who need to be identified by the LEA and accordingly clause 4 need not apply to them.

Children receiving care in a psychiatric unit, detained pursuant to an order of the court, would generally be suffering from mental illness, psychopathic disorder or severe mental impairment which would be the subject of treatment.

Second, we have made it clear in guidance that informal exclusion is illegal. If head teachers are engaging in this illegal practice, they are unlikely to notify the local authority that they doing so. Therefore we do not believe that arrangements for schools to notify local authorities of pupils to whom they are not providing full time education would be effective.


Parents are expected to ensure that their children attend school and if a child has been sent home from school for no good reason we would expect the parent to take the matter up with the school. However, in some cases parents agree to unofficial exclusions, believing it is better than having a formal exclusion shown on their child’s school record. If a child is wandering the streets and is found in a public place during school hours, enquiries would be made into the reasons for the child’s absence from school. If this is the result of unofficial or informal exclusion, we would expect the local authority to take the matter up with the school.

We are planning to issue revised guidance in the autumn to emphasise that formally recording and specifying the length of the exclusion in every instance where a pupil is sent home for disciplinary reasons is crucial for head teachers to ensure that:

• they are meeting their duty of care towards pupils, providing appropriate supervision whilst on site, and ensuring parents are formally notified if a pupil needs to be removed from site;

• the well-being of the child is taken into account; and

• pupils’ human right to education is not contravened.

Officials are working with head teacher professional associations to communicate this message to head teachers and governors and to disseminate good practice.

Third, we consider that the English and Welsh legislation fully complies with Article 2 Protocol 1 of the ECHR. In Ali v Lord Grey School (2006) UKHL 14, Lord Bingham when rejecting the Court of Appeal’s finding that the article had been breached by an unlawful exclusion outlined the way that domestic law fulfils convention rights, explaining that the responsibility for ensuring education rests on what has been called a “fourfold foundation”:

• The first element being the duty of parent to cause children to receive efficient and suitable FT education either by regular attendance at school or otherwise;

• The second element is the Secretary of State’s duty under Section 10 to promote the education of the people of England and Wales;

• The third is the LEA required by Section 13 to secure that efficient education is available to meet the needs of the population of the area; and

• The fourth is the maintained schools themselves.

Similarly, we believe that the purposes identified in Articles 29(1)(b)-(e) of the UN Convention on the Rights of the Child (CRC) are delivered in various ways, for example through Citizenship education and PSHE, and that it is not necessary for specific provision to be made for them in this Bill. In passing, it is notable that sections 1 and 2 of the Standards in Scotland’s Schools etc Act 2000 (2000 asp 6) (to which we presume you are referring) deals exclusively with Article 29(1)(a).

STATUTORY PROTECTIONS FOR PUPILS AT MAINTAINED SCHOOLS

I am pleased that the Committee has recognised that Trust schools are unequivocally maintained schools and, therefore, public authorities for the purposes of the Human Rights Act.


We do not believe that Academies and City Technology Colleges (CTCs) should be defined as maintained schools in the same way. Academies’ independence gives them the flexibility to tackle historic educational failure within some of the most challenging areas in the country. They are regulated in an entirely different way, through funding agreements with the Secretary of State. Where we recognise that regulating Academies in certain respects is desirable, for example in terms of compliance with the school food nutritional standards, we will do this through the funding agreement.

CTCs were historically also set up as independent schools for similar reasons. Almost all of the CTCs are planning to convert to Academy status and so will be regulated by revised Funding Agreements.

It is incorrect to suggest that the protections offered to the pupils are inferior. On exclusions, for example, the model Academy Funding Agreement (which most Academies have adopted without any amendment) requires the Academy to have regard to the Secretary of State’s guidance on exclusions as if the Academy were a maintained school; and requires that appeals panels must be both impartial and constituted in accordance with that guidance. The same is true of other areas, such as SEN and admissions, where suggestions of ‘inferior’ rights are also unfounded.

Furthermore, the Government takes the view that Academies are susceptible to judicial review. They are plainly public authorities and will thus be subject to the provisions of the Human Rights Act.

There is no doubt that CTCs are capable of being judicially reviewed: R v Governors of Haberdashers’ Aske’s Hatcham College Trust ex parte T [1995] ELR 350. The basis of this decision is that the CTC comes into existence pursuant to a power granted to the Secretary of State under Section 105 of the Education Reform Act 1988 and the Secretary of State had a significant power to control CTCs through the funding agreement. The same can be said of Academies set up pursuant to Section 482 of the Education Act 1996 as amended. No logical distinction exists between them—indeed, the legislative provisions and the govemance models are similar. Although the House of Lords in the Aston Cantlow decision ([2003] UKHL 37) recognised that susceptibility to judicial review and status as a public authority were not necessary exactly coterminous, there is nothing here to suggest any other conclusion.

The Government is, of course, aware of the Leonard Cheshire case. However, it does not believe that this will prevent the Academy being subject to the provisions of the Human Rights Act. We stated, in an answer to a Parliamentary Question earlier this year, that while the matter had not been judicially determined, Academies exercise functions of a public nature by providing education at public expense. In the Leonard Cheshire case, the Company providing care was not exercising functions of a public nature.

ADMISSIONS

Again, I welcome the Committee’s support for the ban on interviewing introduced by the Bill. You may be aware that we have provided for the Commons Standing Committee a draft of a new Code on Admissions to which all admission authorities will have to act in accordance—which includes a list of banned oversubscription criteria. We are also tabling a Government amendment to the Bill to place a duty on local authorities to promote fair access to educational opportunity when carrying out all of their education functions. We believe that these measures will help to put a stop to “covert” selection that potentially discriminates against disadvantaged children.


However, we do not want schools to be prevented from speaking to parents at open days and through other informal meetings. We are dear that these conversations must play no part whatsoever in the published admissions criteria of a school or in the decisions taken by an admission authority. The Admissions Code will provide additional guidance to schools on the prohibition on interviewing.

Academies are required by law to cater for children of all abilities and by virtue of the funding agreement to comply or be consistent with admissions legislation and the School Admissions Code. They are therefore not allowed to introduce selection by ability other than in order to band, and if the Bill is enacted will be unable to interview parent or pupils either. None of the existing Academies, in fact, interviews in any event.

SCHOOL TRANSPORT

We have previously noted the considerations of the Joint Committee on Human Rights in relation to school transport. During the passage of the Equality Act 2006, the Department undertook to produce guidance for local authorities on the human rights implications. Such draft guidance was made available to Commons Committee Members and I am happy to enclose a copy.

DISCIPLINE

We do not believe that the power to use force in the Bill will lead to a disproportionate use of force. The power has existed (in section 550A of the Education Act 1996) since 1998 and there is no evidence to suggest that the incidence of disproportionate force being used in the exercise of this power is anything other than low. The power cannot be used as a punishment (clause 85(4) of the Bill, and currently in section 550A (2) Education Act 1996— it is preventive only.

The widening of the power clarifies that it applies to inaction constituting behaviour prejudicial to the maintenance of good order and discipline, for example a refusal to move when deliberately obstructing an entrance. This is unlikely to increase the use of the power. Most members of staff regard refusal to act as a form of behaviour in which a pupil was actively engaged. Our behaviour guidance (set out in circular 10/98) suggested that interpretation.

The power will also now apply to pupils visiting one school from other school. This is necessary given that pupils are more likely to attend more than one school in order to access the new curriculum entitlements set out in Part 5 of the Bill.

We conclude, therefore that the power, though technically wider, will not be exercised any more frequently and therefore the risk of disproportionate use of force will not increase.

Any force used must be “reasonable in the circumstances” and, because it is exercised by staff on behalf of a public authority, must be exercised in a manner compatible with the ECHR. The Government believes that the power cannot reasonably be interpreted as permitting the use of disproportionate force.

To the extent Article 8 of the ECHR is engaged by the use of force, we consider that such force is applied because it is necessary to do so in a democratic society in the interest of public safety (to prevent a crime or injury), for the prevention of disorder or crime and for the protection of the rights of others. We consider the power, being provided for and regulated by statute, of foreseeable application and capable of judicial scrutiny, is in accordance with the law and therefore falls within the qualification in Article 8(2).


On confiscation, we do not consider that clause 86 of thp Bill provides a “blanket immunity”. Clause 86 provides that a member of staff has a defence if his seizure, retention or disposal as a disciplinary penalty is lawful. As such, it must only be imposed where the standard of conduct of a pupil is below the standard reasonably expected of him and it must be reasonable in all the circumstances and proportionate. This means that:

• The behaviour must be of sufficient seriousness to justify the length of retention (or disposal);

• The value of the property and the pupil’s need for it are relevant to retention beyond the school day or its disposal;

In the absence of some other power provided by law, if the confiscation is not a disciplinary penalty or is not reasonable, it we be unlawful and the person concerned (and possibly the school) could be liable for unlawful interference with the pupil’s goods.

Seizure, retention or disposal of somebody’s property does interfere with his rights under Article 1 of Protocol 1 of the ECHR. This means that the person who has seized, retained or disposed of the property must prove that this interference was proportionate, necessary in a democratic society and in pursuance of a legitimate aim.

Article 6 of the ECHR is about the determination of civil rights and obligations, and criminal charges. We do not believe that a disciplinary penalty represents a criminal charge and nor do we consider that a member of staff’s determination that a pupil’s behaviour has fallen below the standard expected of him is the determination of a civil right or obligation. As a result, we are of the view that Article 6 is not engaged and that the clause does not represent an infringement of the right to a fair trial.

In any event, it remains open for a person who feels aggrieved by his treatment to make a claim on several grounds: that it was not a disciplinary penalty, that it was unreasonable to regulate his conduct outside of the school or that the penalty imposed was unlawful. His rights to a fair trial under domestic standards of natural justice are unaffected.

EXCLUSIONS

The committee ask why the provision does not Involve a risk of disproportionate impact on parents’ right to respect for private life.

Our view is that the duty imposed on parents in relation to excluded pupils does not engage the respect for privacy in Article 8 of the ECHR. A parent is at liberty to arrange for the supervision of the child in whatever way they choose and this need not be in person; hence they have no need to take time off work. In any case we believe that the provisions are in accordance with the law, necessary in a democratic society and proportionate to the legitimate aim pursued, namely to encourage parents to take responsibility for their children’s whereabouts and supervision when those children are excluded. The proposals reinforce that responsibility by providing a balance between sanctions and support (and further provisions go on to place duties on governing bodies or LEAs on the sixth and following days of exclusions). The requirement during the first five days applies only during school hours and, in any event, the pupil may associate with others at places other than public places, or if in a public place for a purpose that provides reasonable justification. The duty will not require a parent to take time off from work to supervise their child. Parents can make arrangements for the child to visit a friend or relative’s house if they are unable to supervise them themselves. This should help single parent households or those in lower paid employment.


We consider that the right of the parent to develop his or her personality under Article 8 is not materially infringed by the provisions which are provided for and regulated by statute and are in accordance with the law. We consider the provisions are necessary in a democratic society for public safety (the wellbeing of the child himself), for the prevention of disorder or crime (ensuring an excluded child is not free to roam the streets without supervision) and for the protection of the rights and freedom of others (the provisions are part of an overall scheme to render exclusion a more effective sanction and to improve the effectiveness of the educational system as a whole by encouraging parental responsibility).

The legislation is framed in such a way that such parents could avail themselves of the defence of ‘reasonable justification’ where circumstances prevent compliance with the duty. While it is for the courts to decide what is reasonable justification, this could conceivably cover situations where it was not possible for parents to make alternative arrangements or to take time off work. Furthermore, the courts must take ability to pay into account in setting the level of any fine if the parent is prosecuted following failure to pay the £50 penalty. Accordingly we are of the view that any interference with the parent’s rights under Article 8 is proportional to the need to ensure responsibility and supervision of parents for their excluded children.

CONSULTATION WITH CHILDREN

Section 176 of the Education Act 2002 provides for the consultation of pupils on issues affecting them. We published guidance “Working together - giving children and young people a say” in April 2004 to give effect to the provision. We are actively encouraging schools to put the guidance on participation into practice in ways that are meaningful to children and young people.

In addition to this:

• we have ensured that inspection arrangements make the views of children and young people an important part of assessing school performance

• we have changed the law so that school governing bodies can appoint pupils as associate members, allowing them to attend governing body meetings and become members of committees

• we have introduced Citizenship education as a statutory part of the secondary school curriculum. It encourages discussion and debate of issues affecting young people and encourages their active participation

• we have funded School Council UK to produce toolkits for primary and secondary schools to encourage effective introduction if school councils

• we sponsor the United Kingdom Youth Parliament as a mechanism for encouraging representation of young people’s views on issues at national level

The detail of implementation of the UN Convention on the Rights of the Child is left to individual states. We believe that the measures we have taken are fully within the spirit of the Convention and will provide a helpful mechanism in allowing schools to listen to the views of their pupils. I hope that this letter is helpful in addressing the important issues you raise and that it facilitates further consideration of the Human Rights implications of the Education and Inspections Bill. I would, of course, be happy to respond to any further queries that the Committee may have. 22 May 2006


Appendix 3(a): Letter from the Chair to Bridget Prentice MP, Parliamentary Under-Secretary, Department for Constitutional Affairs, re Compensation Bill

The Joint Committee on Human Rights is considering the human rights compatibility of the Compensation Bill, and would appreciate your answer in relation to a number of particular points which have arisen from the Committee’s scrutiny of the Bill’s compatibility.

The Committee has several specific human rights concerns about the Bill in its current form. While these concerns predominantly relate to the details of the regulatory regime proposed by the Bill, which are currently left to secondary legislation, the Committee does however have some concerns about Part 1 of the Bill.

NEGLIGENCE, BREACH OF STATUTORY DUTY AND “DESIRABLE ACTIVITIES” (CLAUSE 1)

Clause 1 of the Bill provides that in considering a claim for negligence or breach of statutory duty, a court may have regard to whether a requirement to take particular steps to meet a standard of care might “prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way” or might discourage persons from undertaking functions in connection with a desirable activity. The Explanatory Notes set out the Government’s view that this clause does not raise any human rights issues, as it deals with the substantive law rather than procedure and in any event, is declaratory of the existing legal position. In relation to certain Convention rights (or serious interferences with those rights), the Committee notes that the State has a duty to put in place a legal framework for the effective protection of those rights, including against interference by other private individuals. Article 2(1) ECHR provides that everyone's right to life shall be protected by law. Article 3 ECHR prohibits (among other things) degrading treatment of any person. Article 8 ECHR protects a person's physical integrity. All three Articles impose positive obligations on the state to take reasonable steps to protect people against threats of death or degrading treatment or threats to their physical integrity in some circumstances. The availability of legal redress (civil as well as criminal) is one of the means by which the state discharges that positive obligation.

The Committee is concerned that Clause 1 is drafted in a manner which is likely to lead to defendants seeking to persuade the Courts that the value of any “desirable activity” that they are undertaking is such that they should be provided with a defence to any failure to take particular steps to avoid a claimant’s injury, regardless of whether or not it would have been reasonable for him or her to take those steps. As currently drafted, the Committee considers that there is some risk that the courts may be persuaded to interpret this clause in a way which restricts access to legal redress by claimants, including potentially vulnerable groups such as children or employees. The Committee would be grateful for your explanation of the Government’s view of the compatibility of this clause with the United Kingdom’s positive obligations under Articles 2, 3 and 8 ECHR.

EXCLUSION OF EVIDENCE AND ACCESS TO JUSTICE (CLAUSE 2)

The Committee considers that as drafted, Clause 2 reflects the current rules of domestic civil procedure, which allows claimants to impugn defendants’ evidence on the meaning and effect of their prior statements. However, the Committee would be grateful if you could confirm that the Government does not intend that this clause should change the current position in law, or that it should be interpreted to exclude from evidence all prior statements of the Defendant which are classified as apologies or offers of treatment or redress.


REGULATION OF CLAIMS MANAGEMENT SERVICES (PART 2)

The Regulator’s Powers

The Bill gives the Secretary of State the power to permit the Regulator to impose conditions on authorization, or to cancel, suspend or place conditions on any existing authorisation in response to a breach of the rules of conduct which the Regulator will have a duty to establish and enforce. In so far as any authorisation may be subject to conditions, it is the Committee’s view this is likely to be a legitimate restriction on the operation of commercial activities and that this alone will not breach Article 1, Protoco1 ECHR. However, any authorised person has the right to expect that the relevant conditions for the limitation or removal of authorisation comply with the principle of legal certainty and are fulfilled in his or her case.

The Committee specifically notes that the Bill provides the Regulator with a largely unfettered right to impose “conditions” on authorisation. It is concerned that although the Regulator (or the Secretary of State, if no Regulator is identified) will be able to impose sanctions for breach of the rules governing the conduct of authorized persons, those rules are subject to secondary legislation, the content of which is not yet known. We would be grateful for your explanation of the Government’s view on the compatibility of the new regulatory scheme with Article 1, Protocol 1 ECHR, and specifically the compatibility of the Regulator’s undefined power to impose conditions on authorisations and to impose sanctions for as yet unspecified conduct.

Criminal Sanctions

The Committee notes that the Explanatory Notes which accompany the Bill accept that the offences which it creates engage the right to free expression under Article 10 ECHR. The current maximum sentence in the Bill for committing unauthorised acts, or for pretending to be an authorised person is two years imprisonment and a fine, or both. The Committee notes that this sentence is comparable to that imposed on unqualified persons acting as solicitors,1 but is more onerous than the sentence imposed on individuals pretending to be qualified solicitors (which is a summary offence only, subject to a fine of up to £2,500).2 In light of this disparity, the Committee would be grateful for your explanation of why the Government consider it necessary to impose harsher sanctions in the case of an individual pretending to be authorised as a claims manager than an individual pretending to be a qualified solicitor, and specifically why this harsher sentence is considered a proportionate one.

The Claims Management Services Tribunal

The Committee welcomes the creation of the new Claims Management Services Tribunal and its contribution towards the capability of the appeals mechanism in the Bill to meet the standards of an independent and impartial hearing required by Article 6 ECHR. The Committee notes that Tribunal will have the power to overturn any decision of the Regulator on conditions; and to suspend or cancel the appellant’s authorisation, but may not overturn any decision by the Regulator to suspend or cancel an individual’s authorisation pursuant to a complaint.3 These matters must be referred back to the Regulator. If it is intended that the claimant should have a full appeal to the Tribunal, and

1 Solicitors Act 1974, s20(2)(a).This also reflects the sentence for acting in the purported exercise of rights of audience,

Courts and Legal Services Act 1990, s70(4)

2 Ibid, s21. This also reflects the sentence for acting in the purported exercise of rights of audience, Courts and Legal Services Act 1990, s70(3)(c)

3 Schedule, paragraphs 8(2)(b), 10(2)


that the Tribunal should be a tribunal of full jurisdiction, it is disappointing that the Bill does not clearly state that the Tribunal will have the power to quash the disciplinary decisions of the Regulator. Please confirm whether the Tribunal will be able to take any decision on disciplinary matters open to the Regulator, or alternatively will have the power to quash and remit any disciplinary decision for a new decision in accordance with its findings.


The Bill confers on the new Regulator a number of highly intrusive powers including the power to require disclosure of information and documents and powers of search and seizure, subject to warrant. The Committee welcomes the concession that the requirement for a warrant, a valuable safeguard against incompatibility with the right to respect for private life and home guaranteed by Article 8 ECHR, should be included on the face of the Bill.

The Committee agrees with the conclusion of the memorandum presented by the Government to the House of Lords Delegated Powers Committee, which accepts that safeguards are key to the compatibility of these intrusive powers with the right to private life and home. That Memorandum goes on to explain that additional safeguards will be provided by secondary legislation. The Government envisaged then that those safeguards would include a) a requirement to consider the proportionality of the desired enforcement action, b) a requirement that there is clear evidence that a person has incriminating documents in his possession, c) restrictions on the time of day during which powers of search or seizure may be exercised, d) restrictions on the type of material which may be copied and e) the requirement to obtain a judicial warrant authorising a search. The last of these safeguards was incorporated into the Bill at Report stage in the House of Lords. The Committee welcomes the limitation of the Regulator’s powers of search and seizure by the requirement for a warrant.

However, no other safeguards have been incorporated into the Bill and the matters which the judicial authority considering an application for a search warrant must consider are left to secondary legislation. There are a number of safeguards which generally accompany intrusive rights of search and seizure in the United Kingdom which are not, as yet, reflected either on the face of the Bill or in the list of potential safeguards so far identified by the Government. The Memorandum explains:

Specific details are not included on the face of the Bill as the precise nature of these safeguards will depend on the circumstances in which they are applied. Various factors will need to be taken into account in determining appropriate limits on the power of the front line regulator, including which individual or body (if any) is designated as regulator and the nature of the task it faces.4

The Committee considers that the fact that the Regulator is as yet unidentified is a strong reason for having specific core safeguards on the face of the Bill, not least to provide protection for documents subject to legal professional privilege. The Convention requires that any justifiable interference with Article 8 must satisfy the principle of legal certainty. Taking this into account, the Committee is concerned that the Government appear to seek to retain flexibility in respect of these key safeguards. The Committee considers that with adequate safeguards, including each of those listed by the Minister in the Government Memorandum and additional protection for documents protected by legal professional privilege, any interference under the Bill with Articles 8 and Article 1, Protocol 1 ECHR is likely to be proportionate to the legitimate aims these enforcement powers are designed to serve. However, as drafted, the powers are inadequately defined and lack appropriate 4 HL 73, Seventh Report, 2005–06, Appendix 1 at para 32


safeguards. Please explain further the Government’s view that the enforcement powers provided by the Bill are proportionate and comply with the requirement for legal certainty. Specifically, the Committee would be grateful if you could explain which additional safeguards the Government consider necessary to comply with the provisions of the Convention and why those safeguards are not to be included on the face of the Bill.

I would be grateful if you could let me have your response to these queries by 2 June 2006.

15 May 2006

Appendix 3(b): Letter from The Rt Hon Baroness Ashton of Upholland, Parliamentary Under Secretary of State, Department for Constitutional Affairs, re Compensation Bill

COMPENSATION BILL

Thank you for your letter setting out the concerns of the Joint Committee on Human Rights in the Compensation Bill. I am writing to let you have my comments on the points you raise.

Negligence, breach of statutory duty and “desirable activities” (Clause 1)

It appears that the Committee’s concerns about Clause 1 stem from a construction of that clause as providing a defence in claim in negligence where a defendant has not taken reasonable case but argues that the activity which gave rise to the risk is a desirable activity. The Government does not consider that construction to be correct. The clause is intended to reflect a line of judicial authority, of which the best-known recent case in Tomlinson v. Congleton Borough Council [2004] 1 AC 46 in the House of Lords, in which Lord Hoffmann described the court’s approach to determining whether the defendant had taken reasonable care as depending on assessing

“Not only the likelihood that someone may be injured and the seriousness of the injury which may occur but also the social value of the activity which gave rise to the risk and the cost of preventative measures.”

This approach involves the balancing of a number of relevant factors by a court on the particular facts of a case, and the Government is not aware of any case in which this approach has been challenged as incompatible with the Convention rights.

The clause is drafted so as to be applicable only where a court is considering a claim in negligence or breach of statutory duty in which the court has to determine whether the defendant met a standard of care. It does not affect the question whether a duty is owed, or what the duty is. It will have no application in cases involving strict liability or requiring intention rather than the lack of care on the part of the defendant. It will apply only where the court is determining whether the defendant should have taken particular steps to meet the applicable standard of care. It does not require the court to take this matter into account, or to accord it any particular weight, still less to make it a dominant or paramount consideration.

For example, in a case involving the duty of an occupier of premises to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of a particular danger (which was in issue in Tomlinson), the clause makes it clear that the court may take into account, in determining that the defendant should have taken certain steps. The clause does not permit the court to decide that the


defendant has failed to take the steps which it would have been reasonable to take in all the circumstances but that the claim fails notwithstanding that failure because there would be some impact on a desirable activity.

Exclusion of evidence and access to justice (Clause 2)

Clause 2 was introduced into the Bill by an Opposition amendment which the Government did not accept. The Government has, however, since decided against seeking to remove the clause from the Bill. This decision is based on the Government’s understanding that the clause does not set out the change the law but rather to be of purely declaratory effect The Government would not have taken this decision had the clause appeared capable of being construed as excluding from evidence all prior statements or actions of a defendant which may be categorized as apologies or offers of treatment or redress.

REGULATION OF CLAIM MANAGEMENT SERVICE. (PART 2) A

The Regulators Powers

The Government considers that the new regulatory regime is compatible with Article 1 Protocol 1 ECHR. While Article 1 of Protocol 1 guarantees the peaceful enjoyment of possessions, it allows for persons to be deprived of that enjoyment in the public interest subject to conditions provided for by law. The power to make regulations about the functions of the regulator is in clause 8(1), and details about what the regulations must do and things that they may do are outlined in the Schedule. The Regulator (or where no person is designated as Regulator, the Secretary of State) will be able to impose sanctions for breach of terms and conditions of authorisation as specified in the regulations. In addition, any decision of the Regulator to attach conditions to a grant of authorisation or impose sanctions will be subject to appeal to the Claims Management Services Tribunal.

It is a usual consequence of delegating powers to establish regulatory regimes that the detailed requirements by which those who are regulated will have to abide will be prescribed by the Regulator. In this case the regulations will provide a framework enabling the Regulator to prescribe rules and a code of practice for the professional conduct of authorised persons, only after he has consulted on the content of both and sought the approval of the Secretary of State. The reason that such matters are delegated to the Regulator is the need for flexibility and responsiveness to a changing market and conditions. The level of detail is also generally thought to require a lesser amount of parliamentary scrutiny.

We want to put in place a proportionate and flexible regulatory framework. The regulated areas will be specified by order, so that we can quickly include new areas as problems arise, and equally remove areas from regulation if problems subside. During the House of Lords consideration of the Bill, we published “Model Rules” for the conduct of authorised persons which outline the areas we expect them to cover. A copy is attached, and has also been placed in the libraries of both Houses. We are also in the process of drafting regulations, and will be consulting on these later in June while the Bill is still in the House of Commons.

The importance of the regulations is such that the exercise of the power is governed by the affirmative procedure; therefore the regulations will be subject to Parliament’s approval. As the Committee has rightly implied, it will be important that the regulations themselves provide an appropriate level of regulation and control of authorised persons. Clause 14 allows transitional provision to be made meaning that the regulations will be able to deal with any issues as necessary in moving across to the new regime. Finally, as with any legislation, the courts will have a duty to interpret the regulations, so far as is


possible, in a way that is consistent with the convention rights and, if necessary, the option of a declaration of incompatibility.

Criminal Sanctions

The Government considers that the maximum penalty for the offence of pretending to be authorised, or offering to provide services without authorisation, is proportionate. The penalty of imprisonment is only intended for use in the most serious cases. Where an individual persistently and repeatedly offends, it is appropriate to have a stringent penalty. Some claims management companies prey of the most vulnerable members of society and cause a great deal of harm. In the worst cases it is important that such a penalty, which will act as a deterrent, is available to the courts. The offence of pretending to be authorised or offering to provide regulated services without authorisation will allow the Regulator to take action against unauthorised companies or individuals at the earliest possible opportunity, minimising harm to consumers.

The Claims Management Service Tribunal

The Claims Management Service Tribunal will have the power to quash a decision of the Regulator on disciplinary matters and remit the matter to the Regulator for a new decision in accordance with its findings. So if, for example, an individual appeals against a decision of the Regulator to cancel an individual’s authorisation because he considers that individual to have breached the Rules, the Tribunal can rule that this decision is inappropriate and remit the disciplinary matter to the Regulator (see s.12(3)(e)) who would be obliged to reverse his decision. By clause 12(4) there is a further appeal, against decisions of the Tribunal, to the Court of Appeal.


The investigative powers under the Bill enable the Regulator to examine the possible criminal offences and allow the Regulator to ensure authorised persons comply with terms and conditions of authorisation. The Regulator needs a degree of flexibility in his ability to undertake such investigations, depending on the severity and nature of the offence and of the offender. Placing safeguards in the regulations provides this flexibility. And of course, as mentioned above, regulations will be subject to Parliamentary approval, as they will be made by affirmative procedure.

As indicated in our memorandum to the Delegated Powers Committee, the power to enter and search are necessary to enable the Regulator to investigate the possible commission of criminal offences. Allied with appropriate safeguards it is our view that they will constitute a necessary and proportionate interference with the exercise of Article 8 rights. As indicated, individuals must be accorded adequate and effective safeguards against abuse. The regulations we propose under clause 7(8) and subparagraph 14(6) of the Schedule will provide these safeguards. They will clearly state the criteria and evidence that a judge or justice of the peace must be satisfied of before a warrant can be issued, including the need to consider the proportionality of the desired enforcement in relation to the level of the offence. The power to enter and search will be limited to certain times of the day; limits on search of residential premises; the time frame for use of warrant and the fact that they cannot be re-requested. We also envisage a specification on the categories of material which might be copied, which would include the protection of documents subject to legal professional privilege.

2 June 2006


Appendix 4(a): Letter from the Chair to The Rt Hon Margaret Beckett MP, Secretary of State for Environment, Food and Rural Affairs, re Commons Bill

The Joint Committee on Human Rights is considering the human rights compatibility of the Commons Bill, and would appreciate your answer in relation to one particular point which has arisen from the Committee’s preliminary scrutiny of the Bill’s compatibility.

The Committee is concerned as to whether the requirement in Article 6(1) ECHR, for a fair and public hearing before an independent and impartial tribunal in the determination of civil rights, will in fact be satisfied by the scheme of the Bill. It notes that the Government accepts, in the Explanatory Notes to the Bill, that determinations by the commons registration authorities determine civil rights for the purposes of Article 6. The question therefore is whether the combination of the procedural safeguards which it is intended to provide before the initial determination by the commons registration authority with the possibility of applying for judicial review of that determination and of applying to the High Court to amend the register on grounds that the relevant entry has been obtained by fraud, is sufficient to satisfy the requirements of Article 6(1).

The Committee’s concern is that the combination of the conclusiveness of the register provided for by clause 18 of the Bill, the very limited power of the High Court to amend it on grounds of fraud in clause 19(7), the absence of a right of appeal to an independent and impartial tribunal with full jurisdiction, and the limitation on the scope of the court’s jurisdiction over factual matters in an application for judicial review, may give rise to a risk of incompatibility with the right of access to a court in Article 6(1) ECHR. It notes that under the Commons Registration Act 1965, disputed provisional registrations were referred to a Commons Commissioner for determination. Under the scheme of the Bill, however, there is no provision for independent appraisal of applications to amend the register, other than the limited jurisdiction of the High Court under clause 19 or on judicial review.

We would therefore be grateful for an explanation of your reasons as to why, in view in particular of the lack of any right of appeal to an independent and impartial tribunal against decisions of the commons registration authorities, the Bill is compatible with Article 6(1) ECHR.

I would be grateful if you could let me have your response to this query by 30 March 2006.

Because the point on which we are asking for further information relates to the administration of justice and access to courts, I copy this letter to the Lord Chancellor for any observations he may wish to make.

13 March 2006

Appendix 4(b): Letter from Barry Gardiner MP, Minister for Biodiversity, Landscape and Rural Affairs, Department for Environment, Food and Rural Affairs, re Commons Bill

Thank you for your letter of 13 March to Margaret Beckett. I would like to thank the Committee for its work in considering the Commons Bill and its report published in Legislative Scrutiny: Seventh Progress Report. I apologise for the delay in responding.

In your letter of 13 March you asked for an explanation of the Government’s reasons as to why, in view in particular of the lack of any right of appeal to an independent and


impartial tribunal against decisions of the commons registration authorities, the Bill is compatible with Article 6(1) ECHR.

Your question is raised in relation to Part 1 of the Bill, which provides for commons registration authorities to continue to keep registers of common land and town or village greens (‘the commons registers’), and to permit amendments to be made to the registers in accordance with the provisions in that Part. This replaces and improves the registration system established under the Commons Registration Act 1965 (‘the 1965 Act’), but using the same registers prepared under that Act.

We intend that applications to a commons registration authority under Part 1 of the Bill will be determined in one of two ways. Clause 24(7) enables a panel of inspectors to be appointed to discharge functions of a commons registration authority, and we intend that regulations will in certain circumstances require applications to be referred to a member of this panel for determination. Other applications will be determined by the commons registration authority itself.

Whether an application is determined by a panel member or by a commons registration authority itself, regulations under clause 24(1) will prescribe the procedure to be followed. We intend these to include requirements designed to ensure procedural fairness including, in particular, a requirement to publicise classes of applications which might affect the rights of third parties, a requirement to give the applicant and any objectors an opportunity to be heard before the determination of any contested application, and a right for an applicant to be heard before any decision not to grant an uncontested application.

We intend to consult on the precise circumstances in which an application must be determined by an inspector, but we have in mind requiring this in two classes of case. First, where the registration authority itself has an interest in the outcome of the application. Secondly, where the application is of a type which is likely to raise issues of fact or law which are too complex for a commons registration authority to determine itself: for example, applications for the registration of new town or village greens under clause 15, or for rectification of a mistake in the register under Schedule 2.

We envisage that an inspector will be an independent and impartial tribunal, and that where an application is determined by an inspector the initial determination will satisfy the requirements of Article 6(1). If that is not the position, then we consider that an initial determination by an inspector following judicial or quasi-judicial procedures, together with the right to challenge that decision by judicial review, will be sufficient.

Many applications which a commons registration authority deals with itself will be purely administrative and will not involve the determination of civil rights and obligations: for example, recording a variation or extinguishment of a right of common on the application of the person entitled to the right. In cases such as these, we do not consider that Article 6(1) will be engaged.

We accept that in cases which do involve the determination of civil rights and obligations, the commons registration authority may not be regarded as an independent and impartial tribunal for the purposes of Article 6(1). Nevertheless, the fact that regulations under clause 24(1) will require it to follow fair procedures, which satisfy many of the requirements of Article 6(1), will be relevant to determining whether the availability of judicial review of its decisions is sufficient to comply with Article 6(1).

Having regard to the specialised nature of commons registration, and the procedural safeguards that we intend to build into the initial decision-making process, we consider


that Bryan v. United Kingdom (1995) 21 EHRR 342 and R v. Secretary of State for Environment, Transport and the Regions ex parte Alconbury Developments Ltd [2001] UKHL 23 support our view that the availability of judicial review will be sufficient for the commons registration procedure to satisfy Article 6(1).

Most applications to a commons registration authority under Part 1 of the Bill will be applications to amend the commons registers. In relation to these applications the existing position under section 13 of the Commons Registration Act 1965 is that applications are determined by a commons registration authority rather than the commons commissioners (whose jurisdiction extended only to determining contested applications for initial registrations made between 1967 and 1970 under the 1965 Act, and questions of the ownership of initially registered land), and judicial review provides the only means of challenging a decision to refuse an application. I draw the Committee’s attention in particular to R v. Commons Commissioners ex p. Whitmey [2004] EWCA Civ 951, paras 33–34, in which Arden LJ stated that if it were necessary to decide the point, she would hold that this involves no violation of Article 6.

I trust that this meets your concerns.

12 May 2006


Appendix 5: Letter from Derek Twigg MP, Parliamentary Under Secretary of State, Department for Transport, re Civil Aviation Bill

You will recall that the Joint Committee made a number of observations on the Civil Aviation Bill—now set down for Lords Third Reading on 28 March—in its Seventh Report published on 23 January.

Although the Committee concluded that the Bill’s provisions were likely to satisfy the Government’s obligations under Article 8 of ECHR it expressed some reservations about its compatibility with Article 6. These concerns related to the Bill’s provisions covering the control of noise from aircraft (clauses 3 and 4), and the removal of the current right of appeal to the Secretary of State against a decision of the CAA in respect of route licensing (clause 7). At the time of the report’s publication you wrote to Lord Davies of Oldham seeking the Government’s observations on the issues raised.

The issue of human rights is of course a matter that needs to be uppermost in our minds when legislation is drafted, and I can assure you that the statements made under section 19 of the Human Rights Act 1998 at the introduction of the Bill to both Houses were not undertaken lightly.

The Government gave very careful consideration to the Committee’s observations but as Lord Davies explained in his reply of 30 January we remained of the view that the provisions in the Bill are compatible with Article 6.

In its Fourteenth Report published on 27 February 2006 the Committee explained that although it was grateful to the Government’s detailed response it nevertheless continues to have concerns about the compatibility of certain elements of the Bill with Article 6. We have considered the Committee’s further observations and it will, I hope, be helpful if I set out the Government’s views on the points made.

FINANCIAL PENALTIES

Clauses 3 and 4 of the Bill introduce statutory powers for airport operators to levy financial penalties on aircraft operators where noise control arrangements are breached. The Committee suggests that in practice the levying of a financial penalty for breach of a regulatory requirement will appear to the party subject to the penalty to be an administrative act of a public authority and that Article 6(1) of ECHR would apply. The Committee suggests that the power to levy financial penalties should be accompanied by better safeguards such as a code of practice, precise specification of the levy of penalty, and the provision of a full right of appeal on the grounds of liability, reasonableness and amount of the penalty.

In respect of concerns on liability we reiterate that an aircraft operator would have the opportunity to dispute liability for a financial penalty, either by defending a private law claim based on the contractual relationship between the parties, or by advancing a claim in public law on the basis that the airport had not imposed a financial penalty lawfully. The courts are not unused to claims where the basis of a claim is mixed and do not seek to prejudice applicants by restricting their avenues of redress.

As regards concerns about the specification of the financial penalty, I should emphasise that the scheme itself must specify the amount of any financial penalty (by virtue of new section 78A (3) of the Civil Aviation Act 1982); the penalty cannot be an unknown quantity; that would clearly be unlawful. The airport operator would be susceptible to judicial review if the amount was not specified or was unreasonably high. An airline


operator could also consider applying for judicial review against the Secretary of State with regard to his power of direction under new section 78B.

Moreover, since a scheme could become an important feature in the management of an airport one would expect the scheme to be considered by the existing consultative mechanisms (see section 35 of the Civil Aviation Act 1982). I should add that in announcing its conclusions concerning the control of noise from civil aircraft5 we said that we would work with relevant bodies to draw up non-statutory guidance on sanctions in due course. That commitment remains and we will take this forward once the Bill has completed its Parliamentary stages.

It appears from the report that the Committee may be equating the airport operator’s role with that of regulators such as the competition bodies. Whilst it is true that such regulators’ powers to levy penalties are closely defined in statute, with explicit appeal mechanisms, this occurs where there is no relationship between the regulating body and the regulated party. The competition authorities are empowered to intervene in the business of companies and to penalise anti-competitive behaviour. By contrast, clauses 3 and 4 of the Bill are dealing with a situation where two parties have a commercial relationship with one another, which arises out of the use by one party of another party’s facility on certain terms. Airport operators already make rules about how their facilities may be used and there is already a means by which disputes may be addressed: the courts. The new provisions in the Bill enable airports to take steps to tackle noise, but they also seek to enable effective enforcement too.

REMOVAL OF RIGHT OF APPEAL

With regard to Clause 7, I can assure the Committee that we paid full regard to the Lord Chancellor’s comment that the Department should consider carefully whether recourse to Judicial Review would be a suitable alternative to current arrangements. We concluded however that our approach was the one best calculated to bring the fullest benefits of this deregulatory reform to both the industry and its customers and that the institution of an alternative point of appeal would only serve to frustrate these aims without adding significant value to the CAA’s consideration of the merits of cases.

I am copying this letter to other members of the Joint Committee, Lord Davies of Oldham, the Lord Chancellor, and the Leaders and Libraries of both Houses.

31 March 2006

5 Control of Noise from Civil Aircraft: The Government’s Conclusions, Department for Transport, December 2003


Appendix 6: Letter from Rt Hon Dr John Reid MP, Secretary of State for the Home Department, re Respect Action Plan

Thank you for your letter of 13 February regarding your investigations into the compatibility of the proposals in the Government’s Respect Action Plan with the European Convention on Human Rights and please accept my sincere apologies for this delayed response.

The conditional caution scheme established in the Criminal Justice Act 2003 is an alternative to prosecution that the CPS may offer to low level offenders. The 2003 Act provides that before doing so there must be sufficient evidence to charge the offender with the offence, the offender must admit the offence, the effect of the conditional caution must be explained to the offender and the offender must sign a document that contains details of the offence, their admission, their consent to the conditional caution and details of the conditions themselves. The Conditional Caution Code of Practice issued under section 25 of the 2003 Act and approved by both Houses of Parliament in 2004 contains additional safeguards such as the right to receive legal advice before accepting a conditional caution.

Under the existing scheme any condition imposed must be either reparative or rehabilitative. As paragraph 5.2 of the Code states a reparative condition may require the offender make good any damage caused to property, for example, cleaning up graffiti. So to a degree the 2003 Act already provides for conditional cautions to involve what might be called unpaid work. The changes to the conditional caution scheme in the Police and Justice Bill are designed to allow conditional cautions to have attached to them conditions that are solely or partially punitive. It is the intention that these will include offenders undertaking activities which, because they are not directly related to their offending, cannot be characterised as reparative, for example, asking an offender to help clean up someone else’s graffiti. The Bill provides that any condition that requires an offender to attend at a specific time or place is limited to a 20 hour maximum period. This is in contrast to unpaid work requirements as part of a community sentence under Part 12 of the 2003 Act that must be for between 40 and 300 hours.

Your letter suggests that a conditional caution involving an unpaid work condition may be contrary to Article 4 of the Convention. The Government does not accept that on the basis that any such activities will be undertaken voluntarily and there is no additional sanction for breach. The decision to accept a condition involving activities that might be considered to be work, such as cleaning up a town centre or repairing damage to a local park, is entirely a matter for the offender. They must agree in writing to the terms of the conditional caution after its consequences have been explained to them and they are entitled to legal advice in reaching that decision. If the offender does not wish to accept a conditional caution they can choose to face prosecution in the normal way. If the offender accepts a conditional caution then they will do so fully understanding the nature of the conditions which cannot alter and, in practice, any such activity would be undertaken shortly thereafter. Further, once the conditional caution is accepted there is no legal obligation on the offender to actually undertake the activity and complete the condition. Failure to do so does not lead to the imposition of any additional penalty; rather the consequence is simply potential prosecution for the original offence.

In the view of the Government, compliance with a conditional caution is therefore not subject to the menace of a penalty as required by Van der Mussele. Moreover, not only does the conditional caution scheme benefit society by diverting certain low level offenders out of the criminal justice system, but it also gives clear and immediate benefits to the offender whom by accepting a conditional caution will have liability for their offending discharged swiftly and will not face prosecution for their offence or risk a


criminal conviction. Accordingly, even if it could be said that carrying out work under a conditional caution is carried out subject to the menace of a penalty, the Government considers that the obligations involved are not excessive or disproportionate in light of the benefits to both society as a whole and to the offender.

With respect to the questions you raise about the contracting out of local authority functions, it is the Government’s view that the person to whom a local authority’s functions may be delegated, in pursuance of an order under the new s.28A of the Anti-social Behaviour Act 2003 (as inserted by clause 20 of the Bill), is to be treated as a public authority for the purposes of the Human Rights Act 1998 in the discharge of those functions. The new section is modelled closely on similar provisions in section 1 F of the Crime and Disorder Act 1998 (inserted by the Serious Organised Crime and Police Act 2005 ) under which the Secretary of State may make an order which enables a local authority to contract out its functions of applying for anti-social behaviour orders and similar types of orders, and the Government has taken the view that persons to whom functions are contracted out by virtue of such an order are public authorities for the purposes of the Human Rights Act.

The Committee will be aware that the Government has successfully sought to intervene in the case of R (Johnson and others) v London Borough of Havering. In that case, the Government has appeared before the Administrative Court to argue for its original intention as to the meaning of “public authority” in section 6 of the Human Rights Act 1998. The intervention is partly in response to the recommendation of the previous Joint Committee in its 2004 report on this subject (The Meaning of Public Authority under the Human Rights Act, Seventh Report of Session 2003–04).

As the Committee then recommended, with which the Government agrees, a successful intervention presents the best possibility of resolving the lack of clarity in the case law on this subject. First it is quite possible that the Havering decision, if it confirms the Government’s view, either in whole or in part, could render any such provision otiose (or at least partially so) and create further uncertainty. Secondly, there is no such provision in section 1 F of the Crime and Disorder Act 1998, and to insert such provision in the new section 28A could leave the implication that such persons are not public authorities for the purposes of that provision, let alone in other similar or corresponding parts of the statute book which may not immediately come to mind. The Government would wish to consider the position very carefully before making any such provision here lest it leave unwelcome or unforeseen implications and run the risk of creating further uncertainty.

23 May 2006


Appendix 7(a): Letter from the Chair to Messrs Sharpe Prichard, Solicitors and Parliamentary Agents, re London Local Authorities and Transport for London Bill

The Joint Committee on Human Rights reports to each House on the human rights implications of all Bills presented to Parliament, including private bills. We start from the promoters’ statement of compatibility with Convention rights under the Human Rights Act 1998.

The Committee has conducted an initial examination of the London Local Authorities and Transport for London Bill. In the light of advice from our Legal Adviser, we would be grateful for your answers as Parliamentary Agent of the promoters of the Bill to the following question.

JUSTIFICATION FOR IMMUNITY FROM LIABILITY IN CLAUSE 11(2)

Clause 11(2) provides an immunity from liability for parking attendants and certain other persons in respect of any damage arising out of the exercise of the power in clause 11(1) to remove anything which obscures a registration mark.

Such an immunity from liability for damage caused by the exercise of a statutory power engages the right of access to court in Article 6(1) ECHR. As a limitation on the right of access to court, it requires justification. No justification is offered in the accompanying Explanatory Memorandum. The Further Opinion of James Goudie Q.C. dated 23 November 2004, supplied in support of the promoter’s statement of compatibility of the bill with the ECHR, states that he has been provided with justification from immunity, and is now satisfied that it does not contravene the Convention, but does not state what that justification is. In order to assess the proportionality of the interference with the right of access to court which is entailed by the immunity in clause 11(2), the Committee needs to provided with that justification.

Please provide a more detailed explanation of the precise purpose which the immunity in clause 11(2) is intended to achieve, and the reasons for the promoter’s view that the restriction on the right of access to court is proportionate to the achievement of that aim.

The Committee would be grateful for a reply to this question by 5 June. When your reply is received, the Committee will consider it carefully and may report on its conclusions.

25 May 2006

Appendix 7(b): Letter from Messrs Sharpe Pritchard, Solicitors and Parliamentary Agents, re London Local authorities and Transport for London Bill

I write in response to your letter of 25 May 2006 on the subject of the above Bill (“the Bill”).

You have raised the question of the compatibility of clause 11(2) of the Bill with Article 6(1) of the European Convention on Human Rights (“the Convention”). In particular, you have requested a more detailed explanation of the precise purpose which the immunity in clause 11(2) is intended to achieve, along with the reasons why the restriction on the right of access to a court is proportionate to the achievement of that aim.


In responding to those points, it is necessary first to have in mind the precise ambit of clause 11. I set this out below.

Clause 11(1) provides a power for parking attendants and other authorised London authority officers to remove anything which obscures a registration mark or a pedicab registration plate when carrying out their functions. Clause 11(2) provides an immunity for parking attendants and their employers against liability for damages otherwise caused by any such removal. Pursuant to clause 11(4) the immunity does not apply:

1. If the act or omission is shown to have been in bad faith;

2. To liability arising out of a failure to exercise due care and attention; or

3. To prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful by virtue of section 6(1) of the Human Rights Act 1998 (“HRA”).

The justification for the immunity provided by clause 11(2) is as follows. It is the experience of several London authorities that, on occasion, locking devices may be placed in such a way as to obscure vehicle registration plates, particularly those of motorcycles. This is sometimes done deliberately. Parking attendants need to view the registration plates in order to comply with their duties to record the unlawful parking of vehicles. This is because they need to record the registration plate to identify the vehicle, in the first place, and ultimately the registered owner. Penalty charge notices for unlawful parking are served on the registered keeper of the vehicle, who is presumed to be the owner and, therefore, responsible for the payment of penalty charges under the Road Traffic Act 1991.

If the registration plate is obscured by a locking device, the parking attendant will need to remove it to have sight of the plate. This would involve breaking the lock. Carrying out such actions would result in the threat of a potential prosecution for criminal damage or the threat of being sued in a private law claim for damages. Clearly, the carrying out of parking attendants’ duties in circumstances where they were constantly concerned about the threat of criminal or civil liability would be rendered extremely difficult. It is this situation which clause 11(2) seeks to address and avoid.

As to the proportionality of this provision, it is submitted that any interference with rights under Article 6(1) that may occur is entirely proportionate. Using the three stage test of proportionality adopted by Lord Steyn in R (on the application of Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 (as adopted from the Privy Council case of De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69), the following points are made:

1. In view of the background set out above, the legislative objective is sufficiently important to justify the interference with Article 6. The legislative objective is to ensure that parking attendants and other relevant officers are able to pursue their duties without fear of unjustified prosecution or civil claim. Without the protection offered by clause 11(2) there would be a whole category of case where they could be prevented from exercising their statutory functions for fear of the criminal or civil consequences.

2. The measures are clearly rationally connected with the legislative objective they seek to meet. They directly offer a solution to the problem in question.


3. The means used are no more than is necessary to accomplish the objective. In particular:

a) There is an exception to the application of the immunity in cases of bad faith, failure to exercise due care and attention and alleged breaches of section 6(1) HRA. There are thus careful safeguards built into the immunity in clause 11(2) which ensure that the scope of its application is not excessive.

b) Enforcement only occurs when the vehicle is on the highway.

c) It is, in any event, an offence to keep a vehicle with the registration plate obscured (section 43 of the Vehicle Excise and Registration Act 1994).

For all these reasons, it is submitted that any interference with Article 6(1) of the Convention that may arise from clause 11(2) is both justified and proportionate.

I hope this information proves sufficient to answer your request. If I can be of any further assistance or if any aspect of my response is not clear, please do not hesitate to contact me.

5 June 2006


Public Bills Reported on by the Committee (Session 2005–06)

* indicates a Government Bill Bills which engage human rights and on which the Committee has commented substantively are in bold

BILL TITLE REPORT NO

Charities Bill* 1st Children and Adoption Bill* 5th & 15th Civil Aviation Bill* 7th, 14th & 21 st Commissioner for Older People (Wales) Bill* 6th Commons Bill* 15th & 21st Compensation Bill* 20th & 21st Consumer Credit Bill* 1st & 14th Council Tax (New Valuation Lists for England)* 5th Criminal Defence Service Bill* 1st Crossrail Bill* 1st

Education and Inspections Bill* 18th & 21st Electoral Administration Bill* 11th Equality Bill* 4th & 11th European Union (Accessions) Bill* 5th Fraud Bill* 14th Government of Wales Bill* 14th Health Bill* 6th & 11th Identity Cards Bill* 1st Immigration, Asylum and Nationality Bill* 3rd, 5th & 11th Legislative and Regulatory Reform Bill* 17th & 21st London Olympic Games and Paralympic Games Bill* 15th Merchant Shipping (Pollution) Bill* 1st National Insurance Contributions Bill* 14th National Lottery Bill* 1st Natural Environment and Rural Communities Bill* 1st NHS Redress Bill* 15th Northern Ireland (Offences) Bill* 7th Police and Justice Bill* 20th & 21st Racial and Religious Hatred Bill* 1st Regulation of Financial Services (Land Transactions) Bill* 5th Road Safety Bill* 1st Terrorism Bill* 3rd Terrorism (Northern Ireland) Bill* 11th


Transport (Wales) Bill* 1st Violent Crime Reduction Bill* 5th Work and Families Bill* 15th

Documents

Legislative Scrutiny: Eleventh Progress Report · 2006. 6. 20. · £0.00 House of Lords House of Commons Joint Committee on Human Rights Legislative Scrutiny: Eleventh Progress Report