The Joint Committee on Human Rights (JCHR) publishes a Report on the proposed Sexual Offences Act 2003 (Remedial) Order 2011.
The proposal is the Government's response to the judgment of the UK Supreme Court that indefinite registration on the sex offenders’ register without opportunity for review by an appropriate tribunal was incompatible with the right to respect for private life, protected by Article 8 of the European Convention on Human Rights (ECHR).
The committee welcomes the Government’s decision to use the remedial order process in this case and agrees that there is no case for an urgent order to be made. The committee stresses that the ECHR and the European Court of Human Rights recognises States have a human rights obligation to protect the public and particularly vulnerable people, from sexual crime. It notes the limited effect of the Supreme Court judgment: that a review by an “appropriate tribunal” of continued registration must be introduced in cases where offenders are required to notify indefinitely.
However, the committee concludes that the Government's proposals do not go far enough to remove the incompatibility identified by the Supreme Court. The proposed review, undertaken by a Chief Police Officer does not amount to review by an appropriate tribunal. The draft proposals must be amended or they will lead to further unnecessary litigation and avoidable violations of Article 8 ECHR.
The committee calls for two key changes to the proposal:
The draft Order should be amended to provide for a review by an independent and impartial tribunal. This amendment could be by way of a merits review on application to an independent and impartial tribunal court (as proposed in Northern Ireland) or by way of appeal from a decision of a Chief Officer to an independent and impartial tribunal (as in Scotland). The Committee considers either approach would introduce a sufficient degree of independence, but considers any review should be conducted by a court of sufficient seniority, such as a the High or Crown Court.
The Review must involve a balancing exercise which allows the independent decision maker to consider whether continued registration is a necessary and proportionate interference with the private life of the offender. Although the public interest will weigh heavily in favour of the interest in protecting the public from harm, the Supreme Court was clear that any review must involve weighing the risk against the ongoing impact on the individual offender.
The committee recommends that the draft Order is amended to make this balancing exercise clear, by introducing a statutory test to be applied on review and making clear that the decision maker should consider both the risk posed by the relevant offender and the impact of continued registration in making their decision.
The report concludes that additional guidance will be essential to ensuring procedural fairness for both victims and offenders taking part in any review. It calls for statutory guidance to be required by the terms of the draft Order.
The committee stresses that remedial orders are designed to be used when the Government intends to remove a violation and provide a fast-track parliamentary procedure for doing this quickly.
Introducing measures which create a significant risk of further litigation appears to undermine the purpose for which the procedure was intended.
The committee expresses concern about the Government’s approach in this case.
Comments from the Chair
Dr Hywel Francis MP, the Chair of the Committee, said:
"We welcome the Government's decision to use the fast-track process to respond to the decision of the Supreme Court. But the current proposal needs amendment to ensure effective access to an independent review for a small number of cases where the Supreme Court has said that such a review is necessary. Otherwise, there is a risk of further unnecessary litigation, adverse judgments and associated costs. Additional statutory guidance is also essential, to ensure procedural fairness both for victims and offenders taking part in a review."
Remedial Orders are secondary legislation made under the Human Rights Act 1998. They are used to remove incompatibilities with the European Convention of Human Rights (ECHR) in primary legislation identified by either domestic courts or the European Court of Human Rights (ECtHR). The Standing Orders of both Houses of Parliament require the JCHR to report on every remedial order or proposal for remedial order. When a proposal for a non-urgent order is produced, the Committee must report to both Houses within 60 days. It must advise on whether the proposal for a remedial order is compliant with the Human Rights Act 1998 and whether the order removes the relevant violation. It must also advise parliament on a number of technical questions about the drafting of the order and its effects. More information about the approach of the JCHR to remedial orders is available here: