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

Conclusions and recommendations

Information provided by the Department

1.  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. (Paragraph 1.6)

2.  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. (Paragraph 1.7)

3.  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. (Paragraph 1.8)

Significant human rights issues

4.  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. (Paragraph 1.22)

5.  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. (Paragraph 1.28)

6.  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. (Paragraph 1.31)

7.  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. (Paragraph 1.32)

8.  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. (Paragraph 1.34)

9.  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. (Paragraph 1.38)

10.  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. (Paragraph 1.43)

11.  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. (Paragraph 1.47)

12.  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. (Paragraph 1.49)

13.  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. (Paragraph 1.51)

14.  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. (Paragraph 1.57)

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Prepared 19 December 2011