|
The Crime and Courts Bill was introduced in the House of Lords on 10 May 2012. The Bill received its Second Reading in the House of Lords on 28 May 2012 and completed its Committee stage on 13 November. Report stage is scheduled for 27 November. In this Report we consider the significant human rights issues raised by the Bill.
THE NATIONAL CRIME AGENCY
The Bill empowers the Secretary of State to confer counter-terrorism functions on the National Crime Agency should the Government decide to do so. We are concerned about the lack of clarity which is introduced into the Bill by the wide order-making power to do this. We do not see the necessity for including such a provision before the intended review of the current counter-terrorism policing structures in England and Wales has been carried out. The potential human rights implications of a decision to confer such counter-terrorism functions appear sufficiently significant to warrant primary rather than secondary legislation and so we recommend that the relevant clause be deleted from the Bill. We also urge the Government to provide more details about how, under the new arrangements, the UK will be able to fulfil its obligations under international agreements in relation to human trafficking.
The Bill provides for the National Crime Agency to be exempt from freedom of information legislation. We are not convinced by the Government's justification for reducing the coverage of freedom of information legislation by including within the National Crime Agency exemption functions which were previously covered by that legislation. We are concerned that reducing the coverage of this legislation in this way could create a dangerous precedent.
The Bill also prohibits National Crime Agency officers with operational powers from taking strike action. We are concerned about whether the restriction on the right to strike in the Bill can be considered to have been shown by the Government to be necessary when negotiations with the trade unions for a voluntary no-strike agreement have not yet concluded. We question whether the Government has yet demonstrated by reference to actual evidence that there is a pressing need to restrict the right of Agency officers to take strike action, bearing in mind that the Serious Organised Crime Agency has so far operated with no restrictions on its officers' right to strike, and we do not consider it proportionate to apply the no-strike provision to National Crime Agency officers who only exercise the operational powers of a customs officer or immigration officer.
COURTS AND JUSTICE
The Bill provides for the delegation of judicial functions in the family court to a legal adviser or assistant legal adviser. Bearing in mind that the guarantees in the Bill of the legal adviser's impartiality, independence and immunity from suit are not directly comparable to those of judicial office holders, we are concerned about the risk that the delegation of judicial functions to legal advisers in the magistrates court may give rise to an appearance of lack of independence and impartiality. We recommend that the power to delegate to legal advisers be confined to essentially administrative, as opposed to judicial functions, concerning, for example, case management decisions.
The Bill makes provision concerning judicial appointments. It would allow the Lord Chancellor to sit as a member of the selection commission for the appointment of the President of the Supreme Court and the Lord Chief Justice, in place of the current power of veto over the recommendation of the selection commission. We recommend that the Bill be amended to remove the provision allowing the Lord Chancellor to sit as a member of the selection commission for the appointment of the President of the Supreme Court and the Lord Chief Justice, and to make the current process more transparent by requiring the Lord Chancellor to make public, without identifying candidates, any exercise of the power to reject, or request the selection commission to reconsider, its recommendation.
There are also measures in the Bill to promote diversity in judicial appointments. We welcome these provisions, concerning the availability of part-time working, and the introduction of a tie-break where candidates are of equal merit, which should have a positive impact on judicial diversity. In our view, however, the Bill does not go far enough in this respect. We are not satisfied with the Government's explanation for not extending to the Lord Chancellor and the Lord Chief Justice the statutory duty which already applies to the Judicial Appointments Commission, to have regard to the need to encourage diversity in the range of people available for selection for appointment, and believe its inclusion in the Bill would be wholly compatible with the Government's stated commitment to improving judicial diversity.
The Bill confers on the Lord Chancellor a broad power to lift, by order, the current restrictions on filming and broadcasting of court proceedings. The Government intends to proceed incrementally with the exercise of this new power. We agree with the Government's objective of making justice as transparent and publicly accessible as possible, but we are not satisfied that the Government has adequately consulted interested parties nor properly assessed the likely impact of this on the operation of the criminal justice system. Notwithstanding the safeguards in the Bill, we are concerned about the risk that vulnerable victims might be deterred from coming forward with their complaints, that witnesses also may be deterred from coming, and that certain defendants may not receive the protection their vulnerability demands. We do not see the justification for the width of the order-making power in the Bill and urge a much more cautious approach. Before any extension of this power, we recommend that the Government conduct a much more comprehensive public consultation, carry out a more detailed impact assessment, and conduct a review of the operation of this power after an elapse of years. We therefore recommend that for the moment the Bill be amended to confine the scope of the power to the filming and broadcasting of judges and advocates in appellate proceedings, as the Government currently intends.
The Bill also provides for the transfer of immigration and nationality judicial reviews from the High Court to the Upper Tribunal because immigration and asylum judicial reviews are putting the Administrative Court under severe pressure, causing long delays for all categories of case. We are aware that there has still been no systematic review by the Government of the exercise by the Upper Tribunal of its judicial review jurisdiction generally, and there is therefore no evidence before Parliament of how the Upper Tribunal is performing that significant judicial role. We urge the Government to consider amending the Bill to insert additional safeguards ensuring that immigration and nationality cases in which human rights such as life, liberty or freedom from torture are at stake continue to be decided by high court judges.
The Bill removes the full right of appeal against the refusal of a family visit visa. We cannot currently support the removal of this right while there are still so many successful appeals. We ask the Government as a matter of urgency to make available to Parliament data on the proportion of appeals which succeed because new evidence is submitted on appeal as a result of an error by the applicant rather than the fault of the UK Border Agency.
OVERBROAD OR UNNECESSARY CRIMINAL OFFENCES
The Bill creates a new "strict liability" criminal offence of "drug driving": driving or being in charge of a motor vehicle with the concentration of a specified controlled drug in the body being above the specified limit for that drug. We are anxious about the impact of strict liability criminal convictions on individuals' CRB checks, even where disqualification from driving may have been avoided through a "special reasons" hearing. We recommend that the Bill be amended to introduce a "spiked drinks" defence which places a legal burden of proof on the defendant: that is, it is for the defendant to prove, on the balance of probabilities, that his or her drink was spiked. We also recommend that the same defence be made available to the drink driving offence in s. 4 of the Road Traffic Act 1988 on which the new offence in the Bill is modelled.
We expect the Law Commission to make recommendations to Government shortly on the issue of the common law offence of scandalising the court. We support the abolition of this outdated offence, the continued existence of which represents an unjustifiable restriction on freedom of speech.
Both we and our predecessor Committee have called for the scope of section 5 of the Public Order Act 1986 to be reduced by removing the reference to "insulting". We understand the sensitivities within certain communities on this issue, but we nonetheless support an amendment to the Bill which reduces the scope of this section on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression.
| 
