Memorandum submitted by the Law Society
of England and Wales
1. SUMMARY
1.1 The Law Society ("The Society")
is the professional body for over 140,000 solicitors in England
and Wales. The Society represents the interests of the profession
to decision makers within Parliament, Government and the wider
stakeholder community, and has an established public interest
role in law reform.
1.2 The Society has focussed its evidence
to the Joint Committee on the provisions in the Children, Schools
and Families Bill and the Crime and Security Bill.
2. CHILDREN,
SCHOOLS AND
FAMILIES BILL:
ENFORCEABLE ENTITLEMENTS
FOR PARENTS
AND PUPILS
2.1 The Law Society's view that there is
currently no clear model of how to make economic, social and cultural
rights subject to individual entitlements while at the same time
avoiding the pitfalls of making them fully enforceable. individual
and fully enforceable entitlements for such rights are said to
be objectionable for three reasons:[134]
2.1.1 economic, social and cultural rights are
formulated in general terms and due to their imprecise nature
were not suitable for consideration in courts
2.1.2 creating enforceable rights usurp the proper
functions of the democratically elected Government and Parliament.
2.1.3 it would lead to judicial involvement in
setting social priorities and resource allocation which would
be constitutionally inappropriate.
2.2 The Society believes that it would be
difficult to provide individual entitlements without making them
fully enforceable. Otherwise, the entitlements are effectively
aspirations. Without the machinery to ensure compliance, they
would risk being meaningless if they could be ignored.
2.3 The South African model is the one most
regularly cited as a "successful" model for the justiciability
of economic, social and cultural rights. Inspired by this model,
the Joint Committee has itself suggested its own version of "qualified
justiciability".[135]
The role of the courts would be limited to (a) using economic,
social and cultural rights as a guide to interpreting other legislation;
and (b) assessing the reasonableness of Government measures taken
to achieve the Governments duty, within available resources, of
progressive realisation of such rights.
2.4 However, both the South African and
the models suggested by the Joint Committee are not enforceable
by individuals against government or public authorities. The courts'
role is limited to carrying out a "reasonableness review"
to ensure that the commitments are not being ignored, rather than
providing individual justice.
3. CHILDREN,
SCHOOLS AND
FAMILIES BILL:
REPORTING OF
FAMILY COURT
PROCEEDINGS
3.1 The Law Society's particular concern
is regarding Clause 40 of the Bill which provides the power
to alter the treatment of sensitive personal information. This
Clause enables the Lord Chancellor to make an order to bring into
force amending provisions relating to the treatment of sensitive
personal information.
3.2 Sensitive personal information is defined
in Schedule 3, and includes information which a child has provided
to a witness in proceedings or any other person; the medical,
psychological or psychiatric condition or evaluation of any person
or any health care, treatment or therapy. This could cover a significant
number of issues including; the private views, feelings and wishes
put forward by children about themselves and/or family members
including any difficulties or concerns with making friends and
being socially accepted, or private details about how they interact
and describe their relationship with each of their parents; information
provided by the child regarding maltreatment; details of medical
and psychiatric information about the child or other family members;
alcohol and drug abuse; or domestic disputes between family members.
These are all essentially private matters which any adult, let
alone a child, may well not wish to be made public.
3.3 A child, who through no fault of their
own is subject to the justice system, may well have intimate details
about their life or medical condition publicly available to friends
and others. Moreover, as it becomes clear that this can be published,
this may deter children from confiding in adults who may be witnesses
and so they may feel that the justice system is actually acting
against their interest. The Society does not believe that the
dangers and risks to privacy in publishing sensitive personal
information would be outweighed by any gain in increasing public
understanding of the Family Courts. The Society does not believe
that even a power to publish such information should be included
in the Bill without a full assessment of the potential harm that
could be caused to parties to proceedings, especially children
by the publication of sensitive personal information and a full
consultation.
3.4 The Society believes that the publishing
by the media of personal sensitive information raises serious
issues under Article 8 of the ECHR.
4. CRIME AND
SECURITY BILL:
DNA AND FINGERPRINTS
4.1 The Law Society does not believe that
the proposed DNA retention framework contained in the Crime and
Security Bill remedies the incompatibility with the right to respect
for private life in Article 8 of the Human Convention on
Human Rights, as identified by the European Court of Human Rights
Judgment in the case of Marper v the UK.
4.2 The Law Society is particularly concerned
about the retention of DNA profiles and fingerprints from persons
who have not been convicted of any offence. The Society is further
concerned about the proposals for the retention of DNA profiles
and fingerprints from convicted persons under the age of 18.
4.3 Retention of non-convicted persons'
DNA profiles and fingerprints
4.4 The Law Society is of the view that
the DNA profiles and fingerprints of innocent people should not
be retained by the State. People who have not been convicted of
an offence should not be subject to any measure in the nature
of a sanction, be it the loss of their freedom by imprisonment,
the forfeiture of their property by way of a fine, or the forceful
taking and involuntary retention of their DNA profile and fingerprints.
4.5 To use the fact that a person has been
arrested by the police on mere suspicion only of having committed
an offence to forcibly take samples and prints, and then retain
this information, is an arbitrary means by which to build up a
database of DNA profiles and fingerprint information. Whilst it
may be said that the person who has been convicted of an offence
has, by committing that offence, forfeited their right not to
have their information retained, the mere fact that a person has
been arrested is not sufficient to justify this interference with
the individual's right to keep this information from the State.
It is a consequence of being convicted of a criminal offence that
this aspect of private life is forfeited. The proposals in relation
to retention of innocent persons' DNA profiles and fingerprints
has the potential to create grades of innocence and, in our view,
is not acceptable.
4.6 The Society notes that the Government
does not accept this approach. A less satisfactory approach to
the non-retention of any non-convicted person's DNA profile and
fingerprints, but one that is preferable and more proportionate
to the proposed blanket six year retention period, is the system
that applies in Scotland. The Society would suggest a similar
approach be implemented in England and Wales, so that the retention
of DNA profiles and fingerprints from those arrested but not convicted
would only be permitted where there is an objective assessment
that the arrested person presents a future risk, based on the
violent and/or sexual nature of the offence for which they were
arrested. A more limited but nevertheless significant retention
period of three years could apply, with an option for the police
to apply to an independent court for an extension of this period
for a further specified period where there are factors that justify
further retention.
4.7 Convicted persons under 18 year
of age
4.8 The Bill will permit the indefinite
retention of DNA profiles and fingerprints of under-18 year
olds convicted of a serious offence, and 5 year retention
where it is a first conviction for minor offence, or indefinite
retention following a second minor conviction. The Society does
not accept that these periods of time are appropriate or proportionate.
4.9 The Law Society suggests that in relation
to children and young people, retention of DNA profiles and fingerprints
should only be permitted in relation to those convicted of a serious
sexual or violent offence. The appropriate indicator of seriousness
should be the fact that an actual Detention Order was imposed
on the child or youth. In relation to convictions for minor crimes,
the DNA profile and fingerprints should only be able to be retained
following the child or youth's third conviction for a minor offence.
On attaining their 18th birthday the person's records should be
deleted.
4.10 As with adults, persons under 18 years
who have merely been arrested but not convicted of an offence
should not be subject to retention at all.
19 January 2010
134 Joint Committee on Human Rights (2008) A Bill
of Rights for the UK? HL Paper 165-I/HC 150-I, Paragraphs
182 to 191 Back
135
Ibid, Paragraph 171 Back
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