Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill - Human Rights Joint Committee Contents

Legal Aid, Sentencing and Punishment of Offenders Bill

Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

21 June 2011

3 November 2011

HL Bill 109



1.1 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.[1] Lord McNally, Minister of State at the Ministry of Justice, has certified that, in his view, the Bill is compatible with Convention rights. The Bill received its Second Reading in the Lords on 21 November and its Committee stage is scheduled to begin on 20 December.

1.2 We wrote to the Lord Chancellor and Secretary of State for Justice on 11 October 2011 asking for further information on a number of specific issues raised by the Bill.[2] The Secretary of State replied by letter dated 31 October 2011.[3] We publish this exchange of correspondence with this Report. We are grateful to have received submissions about the human rights compatibility of the Bill from the Corporate Responsibility Coalition, the Law Society, Leigh Day and Co., Pol Yates and Southall Black Sisters. All submissions received are published on our website,[4] and where relevant to the issues we consider to be significant we refer to them below.

1.3 The unusually large number of peers who spoke at Second Reading indicates the contentiousness of some of the Bill's provisions. This Report concentrates on the significant human rights issues which are most likely to be debated during the Bill's passage through the Lords, in light of the debate at Second Reading.

Information provided by the Department

1.4 The Bill raises a number of significant human rights issues. However, the Department declined to provide a Human Rights Memorandum. Members of the Bill team made themselves available to meet with our staff to identify the most significant human rights issues, and provided a short memorandum containing some further information in relation to some of the issues discussed at that meeting. We are grateful to officials for their assistance with our scrutiny of this Bill but we expressed our disappointment at the lack of a detailed human rights memorandum in our letter to the Minister. The Minister responded that the decision not to provide such a memorandum was not intended as a slight to the Committee or its members, but he and his officials took the view that the main human rights issues are covered by the Explanatory Notes published on introduction.

1.5 The Explanatory Notes to the Bill set out the Government's view of the Bill's compatibility with the ECHR.[5] The explanation in the Notes is indeed quite full in parts and contains extensive reference to relevant ECHR case-law, and we are grateful for this. However, in relation to some human rights issues they contain mere assertion and there are some significant human rights issues (for example the availability of legal aid to victims of domestic violence and to individuals in police custody) which are not addressed at all in the ECHR section of the Explanatory Notes.

1.6 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. However, we remind the Government, as we did in our recent Report on the Welfare Reform Bill, of the examples of best practice by those departments which have provided us during this Session with a comprehensive human rights memorandum on or shortly after a Bill's publication, going well beyond what is normally covered in the ECHR section of the Explanatory Notes to a Bill and covering other relevant human rights standards as well as the ECHR. Receipt of such a memorandum remains our expectation. We also remind the Government that the provision of such detailed information to Parliament facilitates thorough parliamentary scrutiny of the human rights compatibility of Bills, which in turn makes it more likely that laws will withstand subsequent judicial scrutiny.

1.7 Significant amendments to the Bill were introduced by the Government during the Bill's passage through the Commons, including some at Report stage. These include amendments with clear human rights implications, such as those concerning indeterminate sentences. Although the Explanatory Notes to the Bill which were published when it was introduced in the Lords address the human rights implications of these amendments, no human rights memorandum was received from the Government in respect of these amendments to the Bill when they were introduced in the Commons. We remind the Government that we expect to receive a human rights memorandum when it tables amendments with significant human rights implications to a Bill after its introduction, preferably at the time those amendments are introduced.

1.8 The impact assessments which accompany the Bill have been criticised during its passage for two main reasons. First, they have been criticised for failing properly to assess the extent of the likely impact of the changes to legal aid on various groups of vulnerable people, such as the disabled, welfare claimants, refugees and asylum seekers, women, children and minority groups. Second they have been criticised for failing to take into account the likely cost to the justice system of the expected increase in the numbers of litigants in person as a result of the changes to the scope of legal aid contained in the Bill. Senior judges, including members of the UK Supreme Court, have voiced these concerns. We hope the Government will make clear during the Bill's passage through the House of Lords their assessment of the likely increase in the number of litigants in person and the associated cost to the public purse arising from the lengthier proceedings likely to result.

The human rights engaged by the Bill

1.9 The Bill's provisions on legal aid[6] and litigation funding[7] directly engage the right of effective access to justice. The right of effective access to court is recognised as a fundamental human right by the common law,[8] the European Convention on Human Rights,[9] the EU Charter of Fundamental Rights[10] and other international human rights treaties to which the UK is a party.[11]

1.10 Access to legal advice for those with insufficient resources for their right of access to court to be effective is also recognised as being implicit in the right of access to justice by both the common law[12] and the ECHR.[13] In Airey v Ireland, the European Court of Human Rights held that an indigent wife, who had been refused legal aid to bring proceedings in the High Court for an order of judicial separation, was entitled to legal aid in order for her right of access to the court to be effective. This is not a right to legal aid in all cases, but only when such assistance is "indispensable for an effective access to court." In that case it was indispensable because of the complexity of the proceedings, the need to examine expert witnesses and the emotional involvement of the parties. Entitlement to legal assistance under Article 6(1) ECHR will always depend on the facts: in particular, the importance of what is at stake for the individual, the complexity of the relevant law and procedure and the individual's capacity to represent him or herself effectively.[14]

1.11 The right to legal aid is explicitly recognised in the EU Charter: "Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice." The House of Lords Constitution Committee recently published a Report on the legal aid provisions in the Bill in which it pointed out that "access to justice is a constitutional principle."[15]

1.12 The right to a fair hearing before an independent and impartial court or tribunal is also recognised to include the right to "equality of arms": the right to present one's case to a court or tribunal under conditions that do not place one at a substantial disadvantage compared to the other party to the litigation.

1.13 The Lord Chancellor and Secretary of State for Justice, in the course of debates on the Bill, has accepted that "access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise."[16] However, the Government also has a responsibility to ensure that effective access to justice is "cost-effective access to justice". In the Government's view the legal aid budget has grown too large and is unsustainable and therefore requires refocusing. The priority, it says, must be those cases where life or liberty are at stake or there is a direct or immediate risk of homelessness: fundamental issues such as safety or liberty must take precedence over financial issues.

1.14 Other parts of the Bill, in particular those concerning sentencing and punishment of offenders, engage different human rights which are identified below.

Significant human rights issues


(a) Independence of the Director of Legal Aid Case Work

1.15 Under the current legal framework (the Access to Justice Act 1999), the administration of the criminal and civil legal aid schemes in England and Wales is the responsibility of the Legal Services Commission ("the LSC"), a non-departmental public body. The Bill abolishes the LSC and transfers to the Lord Chancellor the day-to-day administration of legal aid. In practice this function will be carried out by civil servants in an executive agency of the Ministry of Justice. The Lord Chancellor is placed under a duty to secure that legal aid is made available in accordance with the provisions in the Bill.[17] Decisions on legal aid in individual cases will be taken by a civil servant designated by the Lord Chancellor as the "Director of Legal Aid Casework".

1.16 Under the Bill, the Lord Chancellor has the power to issue guidance and directions to the Director of Legal Aid Case Work about the carrying out of the Director's functions, and the Director is under a duty to comply with the directions and to have regard to the guidance.[18] Although the Bill expressly prevents such guidance and directions from being issued in relation to individual cases,[19] there is nothing in the Bill to prevent the Lord Chancellor from issuing such guidance or directions in relation to categories of cases, for example, judicial review, in which the Government clearly has a direct interest.

1.17 There has been widespread concern about the lack of institutional independence of the proposed Director of Legal Aid Case Work from the Government, and the amount of control that this gives the Government over the administration of the legal aid scheme. The Law Society, for example, argues that "a gatekeeper who is answerable to the Secretary of State does not have sufficient impartiality to enable their decisions as to the grant of legal aid to comply with Article 6 ECHR".[20]

1.18 We therefore asked the Government whether the Director of Legal Aid Case Work provided for in the Bill will be as independent from the Secretary of State as the Legal Services Commission which the Director replaces and, if not, how the Government propose to ensure that the Director can avoid the appearance of a conflict of interest when making determinations about whether an individual qualifies for legal aid.

1.19 The Government says that the Bill contains a number of measures to guarantee the independence of the Director in relation to individual funding decisions. The Director, although a civil servant, will be appointed on merit through a fair and open competition process, and will hold an independent statutory office. The Lord Chancellor is specifically prevented from issuing directions or guidance to the Director in relation to individual cases, and directions or guidance issued by the Lord Chancellor will be transparent as they are required to be published. The independence of the Director is also said to be supported by practical arrangements which will preserve the independence and impartiality of the Director's decision-making and ensure they are free from any political interference: for example, it is anticipated that the Director will report to the Permanent Secretary (not the Lord Chancellor) and be provided with civil servants who, when exercising functions delegated to them by the Director, would be accountable to the Director not to the Lord Chancellor.

1.20 As for the potential for a conflict of interest in judicial review cases, the Government points out that its policy has consistently been that proceedings where the litigant is seeking to hold the state to account by judicial review are important and should be retained within the scope of civil legal aid. The Director would be required to determine whether an individual qualifies for funding for a judicial review in accordance with the provisions in the Bill and applying the relevant financial eligibility and merits criteria, and in line with any published guidance and directions. The Government therefore considers that the proposed arrangements to ensure the independence and impartiality of the Director will prevent any appearance of a conflict of interest arising.

1.21 We do not find the Government's reasoning persuasive. Civil servants are bound by the Civil Service Code which sets out the constitutional framework within which they work. Civil servants owe their loyalty to the duly constituted Government and are usually accountable to the Minister responsible for their Department. Even if the Director reports to the Permanent Secretary in the Ministry of Justice (as the Government anticipates), the Permanent Secretary is responsible to the Lord Chancellor and the line of management accountability does not therefore secure institutional independence from the Government. The same consideration applies to the Ministry of Justice civil servants who will be provided to the Director: even if accountable to the Director when exercising functions delegated to them by the Director, they are ultimately accountable to the Lord Chancellor, and moreover remain directly accountable to the Minister in respect of all their other functions as civil servants.

1.22 We are not satisfied that the Bill provides sufficient institutional guarantees of the independence of the proposed Director of Legal Aid Case Work to prevent any appearance of a conflict of interest arising when making decisions about the availability of legal aid to challenge decisions of the Government.

(b) Independent right of appeal against determinations

1.23 Notwithstanding concerns about the lack of institutional independence of the Ministry of Justice civil servant who will be responsible for administering the legal aid scheme, the Bill does not contain any right of appeal to an independent body against a determination by the Director of whether a person qualifies for legal aid. It provides a regulation-making power which "may" be used to make provision for appeals to a court, tribunal or other person against determinations of eligibility, but there is no requirement that there be such an appeal mechanism.[21]

1.24 The Government's view in the Explanatory Notes to the Bill and its response to our letter is that there is no incompatibility with the right of access to court in Article 6(1) ECHR because a decision whether a person qualifies for legal aid is not in itself a determination of that person's civil rights and obligations within the meaning of Article 6(1).[22] Alternatively, even if Article 6 applies, the Government believes that there is no incompatibility because the Director is sufficiently independent and, even if not sufficiently independent for Article 6 purposes, the availability of judicial review will be sufficient to remedy any lack of independence in the initial decision-making process.[23]

1.25 The Government's argument, that a decision whether a person qualifies for legal aid is not itself a determination of civil rights to which Article 6 applies, does not mean that Article 6 is irrelevant to assessing the compatibility of this part of the Bill. Most of the areas of law which the Bill takes out of the scope of civil legal aid concern rights which are "civil rights" within the meaning of Article 6(1) ECHR (for example, clinical negligence, consumer and general contract, debt, tort claims, welfare benefits). The removal of the availability of legal aid from these areas of law therefore engages the right of access to court in the determination of those rights, and raises the question whether that right is practically effective in the absence of a legal aid regime capable of facilitating such access for those who do not have sufficient resources to avail themselves of their right of access without assistance.

1.26 Assuming Article 6 to be relevant, the question we have considered is whether the Government has demonstrated that the Bill will not create a serious risk that its operation will lead to breaches of that Article. The Government says that it is "intended" that some but not all civil legal aid decisions will be appealable to Independent Funding Adjudicators, whose decisions in turn can be challenged by way of judicial review. To the extent that there is not sufficient independence in the initial decision-making process by the Director, the Government argues, these arrangements will ensure that the decision making will be fair and impartial and therefore compatible with Article 6 ECHR.

1.27 Convention case-law makes clear that there must be sufficient guarantees against arbitrariness in the legal regime governing determinations of entitlement to legal aid in order for that regime to be compatible with Article 6.[24] We note that the House of Lords Constitution Committee, in its recent Report on the Bill, invited the House of Lords to consider whether the Bill should be amended to provide that regulations made under the Bill "must" make provision for appeals.

1.28 In the absence of a right of appeal against determinations to an independent court, tribunal or other body in all cases, and bearing in mind the lack of independence of the Director, we are not satisfied that sufficient guarantees exist against arbitrariness in the system for determining individual 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.

(c) Exceptional funding

1.29 The state's responsibility under human rights law to facilitate effective access to a court for the determination of an individual's civil rights does not require the universal provision of legal aid in respect of any disputes concerning civil rights. However, it does require the state to ensure that such aid is available to make such access possible for those with insufficient resources in relation to legally complex disputes concerning matters of fundamental importance.

1.30 The Bill makes provision for funding in exceptional cases where the Director determines that it is necessary to make legal services available to an individual because failure to do so would be a breach of the individual's Convention rights or of any rights of the individual to the provision of legal services that are enforceable EU rights.[25]

1.31 We are concerned about whether the Bill's provision for funding exceptional cases 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 in order for the right of access to justice to be practically effective. We are not convinced that the provision in the Bill to fund exceptional cases, including where a failure to make the services available to a person would be a breach of their Convention rights or EU rights, 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.

(d) Legal aid for victims of domestic violence

1.32 We received representations from Southall Black Sisters expressing concern about the effect of the withdrawal of legal aid in non-detention and non-asylum cases on victims of domestic violence who have insecure immigration status. The Government has accepted that "domestic violence immigration rule" cases, where someone on a spousal visa whose relationship has broken down because of domestic violence can apply for indefinite leave to remain in the UK, are different from other immigration cases because of the particular vulnerability of the victim and the risk that without legal aid such victims will stay trapped in abusive relationships for fear of jeopardising their immigration status. We welcome the Government's amendment of the Bill at Report stage in the Commons to extend eligibility for legal aid to domestic violence immigration rule cases, and 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.

1.33 The Bill removes from the scope of legal aid family law and private children law cases, but preserves legal aid for victims of domestic violence.[26] In its Green Paper on legal aid reform the Government recognised that the state has a role to play in helping claimants to obtain protection and consider that those in abusive relationships are particularly vulnerable and need assistance in tackling their situation. It therefore concluded that continued access to legal aid was justified by a combination of the importance of the issue and the characteristics of the litigants.

1.34 We welcome the Government's intention of preserving legal aid for victims of domestic violence. However, we are concerned about whether the Bill, as currently drafted, gives practical effect to the Government's intention, in view of three aspects of the Bill the effect of which is likely, in practice, to restrict the availability of legal aid for such victims.

1.35 First, the definition of domestic violence used in the Bill is "physical or mental abuse, including sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation."[27] This is narrower than the definition of domestic violence used by the police, the CPS, the Government and practitioners in the field, which is set out in ACPO Guidance: "any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality."

1.36 Second, the list of the forms of evidence which the Government intends to be acceptable for the purposes of establishing whether the definition of domestic violence is satisfied is also quite restrictive. It does not include, for example, the fact that there are ongoing proceedings for a domestic violence order, or forced marriage protection order, where an order has not yet been made; nor does it include undertakings given to a court that the person giving the undertaking will not approach the alleged victim of the abuse. The Government's concern is that accepting these indicators as evidence of domestic violence will lead to false claims of domestic violence for the purposes of securing legal aid. Critics of this approach, however, say that it fails to understand the nature of domestic violence: in particular, that it is a feature of this type of abuse that victims are generally very reluctant to make allegations at all, rather than make false allegations.

1.37 Third, to qualify for legal aid the victim of domestic violence must come forward within 12 months of the perpetrator being convicted or an injunction being obtained against them. This means, for example, that a victim of domestic violence who remains at risk when their convicted partner comes out of prison more than a year after their conviction will, under the Bill, not be able to obtain legal aid to assist in protecting themselves against the risk of further abuse.

1.38 In our view 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.

(e) Legal advice and assistance in the police station

1.39 Currently, initial advice and assistance for an individual who has been arrested and is being held in custody at a police station is an automatic entitlement which is not means-tested.[28] The Bill provides that initial advice and assistance are to be available at a police station "if the Director has determined that the individual qualifies for advice and assistance".[29] It gives the Lord Chancellor the power to make regulations which would require the Director to apply the provisions about means-testing found elsewhere in the Bill.[30] The Explanatory Notes explain that the provision provides the flexibility to make such advice and assistance means-tested in the future "if it is considered appropriate."[31]

1.40 We asked the Government whether it intends to introduce means-testing for initial advice and assistance for individuals in custody at the police station. The Government's response to our letter, and its position in Public Bill Committee, was that it has no current plans to introduce means-testing in this area, but the provisions in the Bill provide the flexibility to do so by regulation in the future. It points out that other countries do means-test police station advice: in Ireland, for example, it is only available to persons who are in receipt of social welfare payments or whose earnings are below a certain threshold, while in Scotland it is available to all but subject to a financial contribution by those who can afford to do so. PACE Code C would have to be amended if means-testing were introduced, and any future decision to implement means-testing for police station advice and assistance, the Government promises, would therefore be "subject to full consultation."[32]

1.41 The availability of publicly funded advice and assistance at a police station is an important part of the legal framework ensuring that the UK satisfies its obligation in Article 6(3)(c) ECHR to ensure that everyone charged with a criminal offence has practical and effective access to free legal assistance. As the House of Lords Constitution Committee has pointed out in its recent Report on the Bill,[33] the statutory right of a person arrested and held in custody at a police station to consult a solicitor privately at any time has been judicially recognised to be "one of the most important and fundamental rights of a citizen", and the Supreme Court recently acknowledged the importance of that advice being free.

1.42 The danger of introducing means-testing is that it might lead to the right to legal advice being undermined in practice, or rendered ineffective in some cases, because the urgency of the need for legal advice in such circumstances makes it unlikely that there is time to conduct a proper means test before advice is made available. Indeed, this is implicitly acknowledged elsewhere in the Government's response to our letter, where the absence of a review and appeal system in relation to initial advice and assistance for individuals in custody is justified because "things happen so quickly that it is not considered that a review and appeal system would be able to be implemented in a way that would have any meaningful effect."[34] Indeed, this appears to be the experience of means-testing legal advice in police stations in Scotland, where the uptake of advice in police stations is around 25%, which is about half that in England and Wales.[35] The House of Lords Constitution Committee invited the House of Lords to consider whether this provision in the Bill has the potential to undermine in practice the right to free legal advice and should therefore be amended to omit the part that would permit mean-testing.[36]

1.43 We are concerned that the introduction of means-testing for legal advice and assistance at the police station would hinder the effective exercise of the right of access to legal advice by an arrested and detained person. Bearing in mind the fact that the Government says that it has no current intention to introduce means-testing for advice and assistance at the police station, 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.


(a) Human rights claims against multinational companies

1.44 Leigh Day and the Corporate Responsibility Coalition ("CORE") have sent us written evidence arguing that the measures in the Bill on litigation funding, and in particular the removal of the recoverability of success fees, will make it virtually impossible for the victims of human rights abuses committed by transnational corporations overseas to bring cases against those corporations in the UK (in cases such as the one against Trafigura). The UN Special Representative on Business & Human Rights has expressed his view that the changes to litigation funding in the Bill could "constitute a significant barrier to legitimate business-related human rights claims being brought before the UK courts in situations where alternative sources of remedy are unavailable".

1.45 The Government, however, claims that amendments to the Bill are not necessary, because claims against multinational companies could still be brought. The Government's concern is to ensure that disproportionate costs are not incurred by defendants, which is unfair because it produces pressure to settle cases where the defendant is not in fact liable.

1.46 In our predecessor Committee's Report on Business and Human Rights, that Committee recognised the importance of effective legal remedies being available to individuals whose human rights are breached by businesses.[37] The right to an effective remedy is also an important strand in Professor Ruggie's emerging international framework on business and human rights. The Committee's inquiry received evidence that existing costs rules and funding limitations already undermine the ability of such victims to seek legal redress, and the Committee urged the Government to consider that evidence in the context of Lord Justice Jackson's Review of Civil Litigation Costs.

1.47 We are concerned about the implications for access to justice if CFA success fees and ATE 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 accept the pressing need for appropriate safeguards against abuses, such as improper profiteering by lawyers and undue pressure on defendants to settle claims for which they may not be liable. We urge the Government to introduce amendments to the Bill which strike this delicate balance.

(b) Clinical negligence and other claims

1.48 The Bill takes clinical negligence claims out of the scope of legal aid and also removes the recoverability of conditional fee agreement ("CFA") success fees and After The Event ("ATE") insurance premiums from the losing party in any civil proceedings.[38] This is a complex and highly technical issue. We acknowledge that CFAs are open to abuse and have led to a widely held perception that lawyers rather than litigants are the main beneficiaries. However we are also aware that CFAs have helped to create a market for legal services which has made access to justice available to those, such as the parents of Milly Dowler in their claim against News International, who would not otherwise be able to afford to take legal action.

1.49 We are 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 such negligence. We are also concerned about the impact of the Bill's CFA proposals on the market for legal services in relation to other claims such as the vindication of a good public reputation and respect for personal privacy. We acknowledge the legitimacy of the Government's concerns about the operation of CFA success fees and the need for effective safeguards against abuse but we are concerned that under these proposals the pendulum will swing too far in the direction of restricting access to court for worthy claims. We are not aware that any detailed modelling has been carried out of the effect of these proposals on the market for legal services and we call on the Government to make available to Parliament evidence of the assessment it has made of the likely impact of the proposals on the availability of legal services for different types of claim.


(a) Indeterminate sentences

1.50 In the Commons the Government introduced amendments to the Bill which remove indeterminate sentences for public protection ("IPP sentences") and replace them with determinate sentences.[39] There has been considerable litigation concerning the compatibility of IPP sentences with the right to liberty in Article 5 ECHR. In practice, their operation has led to very large numbers of prisoners who have served the determinate part of their sentences remaining in prison because the resources have not been available to enable them to take the courses they are required to take before their release. However, the abolition of IPP sentences is prospective only. It does not affect the many thousands of IPP prisoners who have served the determinate part of their sentence but remain in prison.

1.51 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.

(b) Foreign travel prohibition requirements

1.52 The Bill would give the courts power to impose a prohibition on foreign travel as a requirement in a community order or suspended sentence order. Courts can currently impose curfews, residence requirements and exclusion requirements, but not prohibitions on foreign travel. Prohibitions on foreign travel are currently available in relation to offenders who have committed or may commit offences abroad, such as football hooligans[40] or drug traffickers.[41] In the Bill as drafted, however, there is no link between the availability of the power to impose a prohibition on foreign travel and the nature of the offence.

1.53 There is a strong common law presumption that a UK citizen is free to travel abroad. A special prerogative writ, "ne exeat regno", is required to stop a person leaving the country. The freedom of citizens to enter and leave the country is an ancient right. The Magna Carta specifically recognised, in Article 41, the right of merchants to be safe and secure in leaving, entering, staying and travelling in England to buy and sell, and Article 42 recognised a more general right of non-merchants:

'It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.'

As is often the case, this ancient common law right is reflected in international human rights treaties to which the UK is a party. Article 12(2) of the International Covenant on Civil and Political Rights, for example, provides "everyone shall be free to leave any country, including his own." Interferences with this right can be justified, but only if they are shown to be necessary and proportionate.

1.54 We asked the Government why this new power is necessary and what evidence it relies on to demonstrate that necessity. The Government's response to this question is that it will provide "a useful new power" for courts to make use of where they consider it would be an appropriate and proportionate response to the offence.

1.55 The Government also asserts that the power to impose such restrictions is compatible with the right to respect for private and family life in Article 8 ECHR and the right to property in Article 1 Protocol 1 ECHR because the power is conferred on the court in pursuit of a legitimate aim and is proportionate in achieving that aim. It relies on the fact that the court will consider the particular circumstances of the individual case and be mindful of its obligations to act compatibly with Convention rights.

1.56 In the Minister's response to the Committee's letter, the Government confirmed that the power will be generally applicable, and will not be restricted to any particular type of offending, or to any expressly defined class of offender. The Government does not consider that the Convention rights require the scope of the requirement to be so limited.

1.57 We welcome the Government's objective of increasing the use of community sentences in preference to imprisonment, but we are concerned about the proposed extension of foreign travel prohibition requirements. New powers which interfere with ancient rights and liberties require strict justification by the Government and must be defined in a way which makes it as sure as possible that they will only be exercised proportionately. A prohibition on foreign travel 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 such a power will be "useful" does not in our view discharge the Government's responsibility to demonstrate its necessity. We are also concerned that the 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.

1   HL Bill 109. Back

2   Letter dated 11 October 2011 from the Chair to the Lord Chancellor and Secretary of State for Justice. Back

3   Letter dated 31 October 2011, and accompanying Memorandum, from the Lord Chancellor and Secretary of State for Justice, to the Chair. Back

4   http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/leg-scru-2010-11/legal-aid-sentencing-and-punishment-of-offenders-bill/ Back

5   HL Bill 109-EN paras 702-766. Back

6   Part 1 of the Bill. Back

7   Part 2 of the Bill. Back

8   See e.g. Raymond v Honey [1983] 1 AC 1; R v Lord Chancellor, ex p. Witham [1998] QB 575. Back

9   Article 6(1) and Golder v UK (1975) 1 EHRR 524. Back

10   Article 47. The Charter is intended to be declaratory of the existing human rights obligations of Member States of the European Union. It only applies to the EU institutions and to Member States when implementing EU law. Back

11   See e.g. International Covenant on Civil and Political Rights, Article 14. Back

12   See e.g. R v Shayler [2003] 1 AC 247; R v Secretary of State for the Home Department, ex p Anderson [1984] QB 778. Back

13   See e.g. Airey v Ireland (1979) 2 EHRR 305. Back

14   Steel and Morris v UK (2005) 41 EHRR 403 at para. 61. Back

15   House of Lords Constitution Committee, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill, 21st Report of Session 201-12, HL Paper 222, paras 5-8. Back

16   HC Deb 29 June 2011, col. 986. Back

17   Clause 1(1). Back

18   Clause 4(3). Back

19   Clause 4(4). Back

20   Letter dated 10 November 2011 from the President of the Law Society to the Chair. Back

21   Clause 11(6): "Regulations [...] may make provision for appeals to a court, tribunal or other person against such determinations and against the withdrawal of such determinations." Back

22   EN para. 704. Back

23   EN paras 705-6. Back

24   MAK and RK v UK, Application no. 45901/05 and 40146/06 (23 March 2010). Back

25   Clause 9 of the Bill. Back

26   Schedule 1, Part 1, para 10. Back

27   Schedule 1, Part 1, para 10(9). Back

28   Section 58(1) of the Police and Criminal Evidence Act 1984 and PACE Code of Practice C. Back

29   Clause 12(1). Back

30   Clause 12(3). Back

31   EN para. 117. Back

32   PBC 8 September 2011 cc 435-6. Back

33   House of Lords Constitution Committee Report, above n. 15, paras 18-20. Back

34   MoJ memorandum in response to the Committee's letter, fn. 3 (31 October 2011). Back

35   Mike Crockart MP, during Public Bill Committee, HC Deb 2 November 2011 col. 961. Back

36   House of Lords Constitution Committee Report, above n. 15, para 20.The Justice and Institutions Sub-Committee of the House of Lords European Union Committee is currently conducting an inquiry into aspects of EU criminal justice policy, including the Draft Directive on Access to Lawyers. Back

37   Any of our business? Human rights and the UK private sector, First Report of 2009-10, HL 5-I/HC 64-I, paras 288-307. Back

38   Clause 43. Back

39   Clause 113. Back

40   Under the Football (Offences and Disorder) Act 1999. Back

41   Under the Criminal Justice and Police Act 2001. Back

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Prepared 19 December 2011