The Legal Aid, Sentencing and Punishment of Offenders Bill was introduced in the House of Commons on 21 June 2011 and brought from the House of Commons to the House of Lords on 3 November 2011. Committee stage in the House of Lords is scheduled to begin on 20 December. This Report examines the significant human rights issues which are most likely to be debated during the Bill's passage in the Lords.
We are grateful to the Department for the thoroughness of the analysis of some of the human rights issues raised by the Bill in the Explanatory Notes, but we remind the Government of the examples of best practice by those departments which have provided us with a comprehensive human rights memorandum on or shortly after a Bill's publication. We expect to receive such memoranda. The provision of such information to Parliament facilitates thorough scrutiny of the human rights compatibility of Bills, which makes it more likely that laws will withstand subsequent judicial scrutiny. We also remind the Government that we expect to receive a human rights memorandum when the Government tables amendments with significant human rights implications.
The Government's impact assessments accompanying the Bill have been criticised for failing to take into account a likely increase in the number of litigants in person. We therefore hope the Government will make clear their assessment of the likely increase and the associated cost to the public purse arising from the lengthier proceedings likely to result.
Independence of the Director of Legal Aid Case Work and lack of a right of appeal
We are not satisfied that the Bill provides sufficient institutional guarantees of the independence of the proposed Director of Legal Aid Case Work when making decisions about the availability of legal aid to challenge decisions of the Government. The Bill does not allow for a right of appeal against determinations by the Director to an independent body in all cases, and we are not satisfied that sufficient guarantees exist against arbitrariness in the system for determining eligibility for legal aid. We recommend that the Bill be amended to require regulations to be made making provision for appeals against decisions of the Director to an independent court or tribunal.
Funding for exceptional cases
We are concerned about whether provision in the Bill for funding exceptional cases, where a failure to make the services available to a person would be a breach of their Convention rights or EU rights, is likely to make the right of access to justice practically effective. In many of the areas of law which are no longer in scope under the Bill, a decision on the availability of legal services will be required swiftly if the right of access to justice is to be practically effective, and we are not convinced that the provision in the Bill is a sufficient guarantee that the new legal aid regime will not create a serious risk that its operation will lead to breaches of Convention rights.
Legal Aid in cases of domestic violence
We welcome the Government's amendment of the Bill at Report stage in the Commons to extend eligibility for legal aid to cases of domestic violence where the victim is of insecure immigration status. We also welcome the indication it has given that it is looking at whether the scope of that amendment is sufficiently wide or should be broader so as to cover, for example, EEA spouses who are the victims of abuse. More generally, we welcome the retention of legal aid for victims of domestic violence, but are concerned that the Bill as currently drafted will not achieve the Government's laudable aim of continuing to ensure access to legal aid for victims of domestic violence is practically effective. We recommend that the Bill be amended by using the ACPO definition of domestic violence, broadening the forms of evidence which are capable of establishing that domestic violence has taken place, and removing the 12 months time limit on eligibility.
Legal advice and assistance in the police station
The introduction of means-testing for legal advice and assistance at the police station may hinder the effective exercise of the right of access to legal advice. As the Government says that it has no intention of introducing such means-testing, we recommend that the Bill be amended to remove the power to introduce means-testing by regulation and so ensure that the introduction of such a significant change is contained in primary legislation and subjected to full parliamentary scrutiny.
Litigation funding and access to justice
We are concerned about the implications for access to justice if success fees under Conditional Fee Agreements and After The Event insurance premiums are not to be recoverable from the losing party in claims brought against multinational companies by victims of alleged human rights abuses in developing countries. We urge the Government to consider amendments to the Bill to strike an appropriate balance between preventing profiteering and maintaining access to justice.
We are also concerned that the combination of taking clinical negligence out of the scope of legal aid and removing the recoverability of CFA success fees and ATE premiums may undermine the right of effective access to justice for the victims of clinical negligence.
We welcome the abolition of IPP sentences, which makes it less likely in future that prisoners will be detained in breach of their right to liberty under Article 5 ECHR, but consider that the Bill should also address the pressing issue of current IPP prisoners who have served the determinate part of their sentence.
Foreign travel prohibition requirements
We welcome the Government's objective of increasing the use of community sentences, but we are concerned about the proposed extension of foreign travel prohibition requirements. These may interfere with an individual's private and family life as well as their livelihood if foreign travel is necessary for their business. The fact that they will be "useful" does not discharge the Government's responsibility to demonstrate their necessity. A lack of any link between a foreign travel prohibition order and the nature of the offence may lead in practice to disproportionate interferences with those rights.