Appendix A
Summary of the Home Office review of decision
making in the CJS, Immigration and Asylum systems
1. BACKGROUND
This paper details the key findings of a Home
Office review of decision making in the CJS, Immigration and Asylum
Systems which was initiated by the Prime Minister and complements
the wider review undertaken by the Department for Constitutional
Affairs.
Objective of the review
The objective of the review is examining the
impact of the Human Rights Act and the ECHR articles it enshrines
on decision making in the criminal justice, immigration and asylum
systems. In doing so, three areas have been considered:
— Legislation, regulations and administrative
rules.
— Interpretation of existing legislation
and regulations.
— Administration and competent application
of legislation and regulations.
Methodology
This report is based on evidence that has been
provided to the review team by the relevant agencies across the
Office for Criminal Justice Reform and the Home Office. The evidence
has been gathered in a number of stages:
— Agency leads were asked to provide
details of any areas within their policy responsibilities which
the review should address.
— Once the areas had been agreed, further
detailed information was requested from officials and Home Office
legal advisers.
— Meetings were held with those agencies
whose returns indicated the greatest areas of concern.
— Focus groups and semi-structured
interviews were held with front-line CJS staff to ensure that
all relevant decision-making processes had been identified.
2. LEGISLATION
The review has found that the Human Rights Act
(1998) and other legislation are felt by the majority of agencies
to be helpful in providing a framework in which the work of the
Criminal Justice System can be operated. A review of cases that
were heard in the last 18 months has demonstrated that the Human
Rights Act is being robustly applied by the courts in many areas.
In addition, it has been highlighted that many of the impediments
currently being attributed to human rights issues often existed
before the Human Rights Act was enacted, or would have still occurred
if it had not been enacted under common law, if not the UK's 50
year old obligations under the European Convention for Human Rights.
There is evidence however that in a minority
of cases judgements or considerations on Human Rights have inhibited
the delivery of Home Office policy in a few areas. The adverse
judgements identified by agencies have been managed by putting
in place procedures that ensure that the policy is delivered but
possibly in a slightly different way to, or slightly altered from,
what was envisaged. For example, an ECtHR judgement resulted in
the loss of Prison Governors' power to award added days to a custodial
sentence as a penalty in disciplinary adjudications. This has
been resolved by introducing a system of independent adjudicators
for serious cases where added custodial days may be a possible
penalty.
That said however, an area where the impact
of the interpretation of the Convention is problematic and presents
a blockage to the effective delivery of policy relates to the
pre-Human Rights Act case of Chahal. In this case the European
Court of Human Rights found that the absolute protection provided
by Article 3 prevents a State from considering the protection
of the public as a balancing factor when deciding whether or not
to deport a dangerous person. The European Court has always recognised
that the European Convention is a "living Instrument",
and we are therefore working with our partners in Europe to challenge
this judgement.
3. INTERPRETATION
There is some evidence from the agencies of
an occasionally cautious interpretation of the Human Rights Act
and particularly those articles of the Convention that require
the rights of the individual to be balanced with public safety.
A culture needs to be developed that is less risk averse to ensure
that misconceptions around human rights are not in any way preventing
the effective delivery of policy. To an extent this may arise
from a lack of central co-ordination and consistency on messages
being circulated to agencies on the approach to adopt when balancing
rights. However, there may also be a fear of litigation that may
encourage those who develop guidance to be cautious in their interpretation.
The findings from the police focus groups and
interviews support this assertion. There was a view that some
guidance that is produced is not specific enough in relation to
human rights and how to strike a balance. It was felt that the
onus can sometimes be placed on junior officers to apply tests
and make decisions when the guidance on how they should do this
is limited. This was felt partly to be due to officers over-reading
new legislation and seeing it as being more restrictive than it
really is.
The impact of adverse judgements on policy and
practice would also benefit from more central co-ordination. An
adverse judgement may not mean that the policy is unworkable but
rather that adjustments to how it is applied will enable the policy
to still be operated effectively.
Recommendations:
— That a panel to scrutinise legislation
and practice in frontline agencies is established to ensure a
co-ordinated robust approach is taken.
— That a secretariat is established
in support of the "Scrutiny Panel".
4. ADMINISTRATION
It would seem from the review that decision-making
can sometimes be carried out at the individual level with little
reference to managers or legal advisers. This may lead to a general
nervousness about pursuing a particular course rather than working
on a more risk based approach balancing the policy objectives
against the risk of an adverse judgement and its consequences.
A lack of consultation in relation to decision making could stem
from an unawareness of where advice and guidance on Human Rights
Act issues can be accessed.
The participants in the focus groups suggested
that where specific police operations were concerned the administration
of the Convention rights is very clear as specific guidance is
produced that is tailored to the operation that outlines the powers
available to the officers and how these should be interpreted
in relation to human rights including where the rights are not
absolute. It was felt that this empowered officers at the constable
level to apply their duties in a confident way whilst not riding
roughshod over the rights of the individual. Where it was felt
that policies may occasionally be impeded is in situations where
the decisions are more subtle and there is less specific and clear
guidance to constables on the application of rights.
A specific example of a misinterpretation of
administration of human rights relates to the treatment of prisoners.
There is a misconception amongst some prison
staff and the public that the Human Rights Act inhibits authorities
from carrying out mandatory drug testing or applying blanket sanctions
or security measures to all prisoners or visitors where the Prison
Act and Rules, Prison Service Orders or Instructions convey an
element of discretion. In fact, the exercise of discretion is
judicially reviewable without recourse to the Human Rights Act
and the growth of these challenges owes more to the growing litigation
culture than to the impact of the Human Rights Act. On the point
of mandatory drug testing the Home Office has in fact won a challenge
to this policy so there does not appear to be any grounds for
the fears in relation to breaching human rights.
There is limited central co-ordination of training
in relation to Human Rights Act and the balancing of rights, although
last year the Home Office Legal Advisers Branch launched a co-ordinated
Legal Awareness Programme which provides a good platform to be
built upon.
Recommendations:
— That the Scrutiny Panel will as part
of its remit review training to ensure that it is advocating a
robust approach and is fit for purpose.
— The direct advice to Immigration
and Nationality Directorate, prison service and OCJR should be
supplemented by a web site hosting an advice service available
to probation, police and courts practitioners, the Youth Justice
Board, parole board etc.
5. MYTH BUSTING
AND COMMUNICATING
THE REALITY
OF THE
HUMAN RIGHTS
ACT
An analysis of the accuracy of media reporting
of Human Rights issues was undertaken as part of the review. It
was evident from the results that the stories promulgated by the
press and in particular the tabloid press are not always accurate
or are incomplete. This finding is supported by the Department
for Constitutional Affairs review which identified four types
of "myths": urban legends; false attributions of unpopular
decision to the Human Rights Act; partial reporting of the launch
of cases but not their outcomes and rumours about the requirements
of human rights that arise through pure speculation or poor decision
making.
Changing media reporting is challenging, however
this does not mean that it should not be done. A "myth-busting"
exercise involving immediate rebuttals of future news stories
that misrepresent the Act coupled with efforts to disseminate
positive messages around the Act to the wider public might go
some way to redressing public perceptions of the Human Rights
Act as promulgated by the press.
Recommendation:
— Working with the Department for Constitutional
Affairs the Home Office should develop a proactive and reactive
approach to myth busting around the Human Rights Act.
6. CONCLUSIONS
AND NEXT
STEPS
The evidence gathered in the process of this
review would suggest that in general human rights legislation
is perceived by the majority of agencies as providing a useful
framework in which the work of the Criminal Justice System can
be operated and indeed some officers have felt that it has given
them more discretion in their decision making. Radical amendment
of the Human Rights Act will have little benefit in improving
the effective and efficient delivery of policy objectives or make
them more in line with public expectations since we are committed
to remain signatories to the European Convention.
Where action is required however is in addressing
a sometimes cautious interpretation and administration of the
Convention rights by agencies across the Criminal Justice, Immigration
and Asylum systems. This caution can on occasion impede the successful
delivery of policy and a number of strategies have been recommended
throughout the Review to tackle this risk adverse culture. Alongside
the work to drive up the robust interpretation and administration
of human rights across agencies action needs to be taken to drive
up public confidence in the application of human rights across
the CJS. The review has identified that the stories promulgated
by the press are not always accurate. A "myth-busting"
exercise involving immediate rebuttals of future news stories
that misrepresent the Act coupled with efforts to disseminate
positive messages around the Act to the wider public should be
instigated.
The recommendations from this Review are being
taken forward as part of the wider Rebalancing the Criminal Justice
System Agenda.
Home Office
July 2006
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