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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