Joint Committee On Human Rights Minutes of Evidence


Annex 1

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 than 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.

Recommendations:

    —  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.

July 2006


 
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Prepared 14 November 2006