Session 2009-10, 4 January 2010
JCHR legislative scrutiny priorities for 2010
The Joint Committee on Human Rights scrutinizes every Government Bill for its compatibility with human rights, including common law fundamental rights, the Convention rights protected by the Human Rights Act 1998 and the human rights contained in other international obligations of the UK. The Committee's scrutiny of Bills for compatibility with the requirements of human rights law includes consideration of whether the Bill presents an opportunity to enhance human rights in the UK. The Committee is actively seeking to encourage more input from civil society into its legislative scrutiny work.
Further to the Committee's press notice of 28 July 2009, on the Government's draft legislative programme for 2009-10, the Committee has now identified the following nine priority areas for scrutiny in 2010, based on the significance of the human rights issues involved and the likelihood of legislation being passed before the end of the parliamentary session.
The Committee would welcome short submissions of up to 1500 words from interested parties by Monday 18 January.
(1) Illegal file-sharing
The Digital Economy Bill contains provisions to combat illegal file sharing and other forms of online copyright infringement, via a two-stage process: first, by requiring Internet Service Providers to maintain a list of IP addresses which copyright holders suspect may be infringing copyright; and second, through reserve powers, if needed, to introduce technical measures, such as disconnection. One of the main human rights issues raised by the Bill is whether it strikes the right balance between the right of artists to the peaceful enjoyment of their possessions (the intellectual property in their work) (Article 1 Protocol 1) and internet users' right to respect for their private life (Article 8 ECHR) and their right to freedom of expression (Article 10 ECHR).
(2) DNA and fingerprints
The Crime and Security Bill contains the Government's proposed DNA retention framework in response to the European Court of Human Rights judgment in Marper, outlined by the Home Secretary in his Written Statement dated 11 November 2009. The human rights issue is whether the new framework remedies the incompatibility with the right to respect for private life (in Article 8 ECHR) identified in the Marper case.
The Bill also allows the police to take DNA samples and fingerprints at any time following conviction for a serious crime, and retrospectively to add to the DNA database those convicted of serious violent or sexual offences before the 2004 change in the law which made it routine to collect the DNA of offenders. The new power will enable the police to take the DNA of offenders who are now back in the community. The human rights issue is whether the power to take the DNA and fingerprints of offenders who are now back in the community is compatible with the right to respect for their private life (in Article 8 ECHR).
(3) Domestic violence
The Crime and Security Bill provides for "Go orders", allowing police to bar a suspected perpetrator of domestic violence from their homes for a fixed period of time even if they are not charged, enabling the victims of domestic violence to remain in their own homes rather than seek refuge elsewhere. The human rights issue is whether the Bill strikes the right balance between, on the one hand, the State's positive obligation to protect women and children against violence (Articles 2, 3 and 8 ECHR), including within the home, and on the other hand the rights of a person suspected of domestic violence to respect for their home (Article 8) and to a fair hearing in the determination of their civil rights (Article 6(1) ECHR).
(4) Stop and search
The Crime and Security Bill reduces the reporting requirements on stop and search forms in order to reduce police red tape, "whilst retaining important ethnicity monitoring oversight." The human rights issue this raises is whether the reduced reporting requirements provide an adequate safeguard against the arbitrary use of powers to stop and search which are extremely widely drafted. As the Committee recently stated when welcoming the introduction of reporting requirements in relation to the use of force in schools, the requirement to report and the data which such requirements make available are important safeguards against the arbitrary use of widely worded powers to interfere with the right to respect for private life (Article 8 ECHR) and physical integrity. Reporting requirements concerning the use of the powers against vulnerable groups such as children are an important safeguard. Lord Carlile, for example, recently reported on the number of children who had been searched under Terrorism Act powers.
(5) Enforceable entitlements for parents and pupils
The Children, Schools and Families Bill provides pupil and parent "guarantees", a set of specific entitlements which are to be enforceable through certain enforcement mechanisms. This raises a human rights issue considered by the Committee in its Bill of Rights report: whether economic and social rights such as the right to education can be made the subject of individual entitlements with some means of redress falling short of full legal enforceability.
(6) Mandatory sex and relationships education
The Children, Schools and Families Bill provides for mandatory sex and relationships education with a parental right to opt out their child out if they are under the age of 15. This raises issues concerning the right of parents to respect for their religious and philosophical convictions in the education of their children (Article 2 Protocol 1) and the rights of the children to education, to receive information important to their health and to their own freedom of thought, conscience and religion (Articles 8, 9 and 10 ECHR).
(7) Reporting of Family Court proceedings
The Children, Schools and Families Bill also contains measures concerning the publication of information relating to family proceedings. This raises controversial issues of the correct balance between the right of the press to report court proceedings under Article 10 ECHR and children's right to respect for their privacy (Article 8 ECHR) as well as their best interests (under the UN Convention on the Rights of the Child). The recent relaxation of restrictions on media reporting of family proceedings has already given rise to concerns that the rights of children are not being given sufficient protection.
(8) Entitlement to personal care at home
The Personal Care at Home Bill guarantees free personal care at home for those with the highest needs, which, for those eligible, would enhance the right to respect for one's family life and home under Article 8 ECHR. Like the Children, Schools and Families Bill, this raises the question whether economic and social rights such as the right to personal care at home can be made the subject of individual entitlements with some means of redress falling short of full legal enforceability. It also raises the question whether it is unjustifiably discriminatory against those living in residential accommodation who must pay for their personal care.
(9) Asylum support and destitution
The Draft Immigration Bill published on 12 November 2009 makes provision broadly equivalent to s. 55 of the Nationality, Immigration and Asylum Act 2002 (providing that support may not be provided where an application for asylum was not made as soon as was reasonably practicable after arrival in the UK), which was the subject of the adverse decision of the House of Lords in Limbuela v Secretary of State for the Home Department. The draft Bill provides that the provision does not prevent the provision of support to the extent necessary for the purpose of avoiding a breach of a person's Convention rights, and the Explanatory Notes state that the Government intends that the clause is operated in such a way as to ensure that there is no breach of Article 3 ECHR. The Government has also published a consultation document, accompanying the draft bill, Asylum Support: Effective support for those with protection needs. The Committee may wish to scrutinise both the relevant provisions in the draft bill and the consultation paper in light of its previous recommendations concerning the destitution of asylum seekers in its report on the Treatment of Asylum Seekers and in various legislative scrutiny reports.
Submissions should reach the Committee by Monday 18 January 2010 and be addressed to Dr Mark Egan, Commons Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA (email: [email protected]). Electronic submission in Word format is requested, but a signed hard copy should also be sent.
Evidence becomes the property of the Committee, and may be printed, placed on the Internet or circulated by the Committee at any stage. You may publicise or publish your evidence yourself, but in doing so you must indicate that it was prepared for the Committee. Evidence published other than under the authority of the Committee does not attract parliamentary privilege.
THE MEMBERS OF THE COMMITTEE ARE:
Mr Andrew Dismore MP (Labour, Hendon) (Chairman)
Lord Bowness (Conservative)
Dr Evan Harris MP (Liberal Democrat, Oxford West & Abingdon)
Lord Dubs (Labour)
Fiona Mactaggart, (Labour, Slough)
Baroness Falkner of Margravine (Liberal Democrat)
Mr Virendra Sharma MP (Labour, Ealing Southall)
Lord Morris of Handsworth (Labour)
Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills)
The Earl of Onslow (Conservative)
Mr Edward Timpson MP (Conservative, Crewe and Nantwich)
Baroness Prashar (Cross-Bencher)
Clerks of the Committee: Dr Mark Egan (House of Commons) 020 7219 2797 and Chloe Mawsonl (House of Lords) 020 7219 3330
ENQUIRIES: 020 7219 2797/2467 FAX: 020 7219 8393 E-MAIL: [email protected]
MEDIA INQUIRIES: Ms Jessica Bridges-Palmer: 020 7219 0724