Legislative Scrutiny: Children, Schools and Families Bill; other Bills - Human Rights Joint Committee Contents


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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