Conclusions and recommendations
The National Crime Agency
1. We
are concerned about the lack of clarity that the wide order-making
power to confer counter-terrorism functions on the NCA introduces
into the Bill. It is not clear, for example, which particular
"counter-terrorism functions" the clause contemplates.
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. In our view,
the potential human rights implications of a decision to confer
counter-terrorism functions on the NCA are sufficiently significant
to warrant primary rather than secondary legislation, to ensure
that Parliament has the fullest opportunity to scrutinise the
possible implications. We recommend that clause 2 be deleted from
the Bill. (Paragraph 15)
2. We
did not find the Government's response to our questions about
the effect of the proposed reorganisation of the NCA on the ability
of the UK to fulfil its obligations under international agreements
in relation to human trafficking to be satisfactory. We urge the
Government to provide more details about how, under the new arrangements,
the UK will be able to fulfil the international obligations it
has recently assumed under various international agreements. We
intend to continue our consideration of this question in our inquiry
into unaccompanied migrant children. (Paragraph 18)
3. We are not convinced by the Government's justification for reducing the coverage of freedom of information legislation by including within the NCA 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. It is not uncommon for this legislation to apply to certain of an organisation's functions but not others, and we need a good deal more evidence from the Government to persuade us why the NCA should be any different.
(Paragraph 22)
4. We
are concerned about whether the restriction on the right of NCA
officers 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. Expressing a final view on the need for and proportionality
of the no strike provision is in this sense premature. Provisionally,
however, we question whether the Government has yet demonstrated
by reference to actual evidence that there is a pressing need
to restrict the right of NCA officers to take strike action, bearing
in mind that SOCA has so far operated with no restrictions on
its officers' right to strike. In our view, NCA officers are
closer to SOCA officers than police officers. Even if there were
evidence of such a need, on the evidence currently available to
us we do not consider it to be proportionate to apply the no-strike
provision to NCA officers who hold some of the operational powers,
including officers who only exercise the operational powers of
a customs officer or immigration officer and not those of a constable.
(Paragraph 28)
COURTS AND
JUSTICE
5. 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.
(Paragraph 34)
6. 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.
(Paragraph 41)
7. We welcome the Bill's provisions concerning the availability of part-time working, and the introduction of a tie-break where candidates are of equal merit. In our view these should have a positive impact on judicial diversity and would represent welcome progress towards implementing the UK's relevant international obligations concerning women's right to participate in public life.
(Paragraph 45)
8. In
our view, however, the Bill does not go far enough in promoting
judicial diversity. 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. (Paragraph 46)
9. We
welcome the Government's indication that there are issues to consider
arising out of the recent selection exercises for certain UK judicial
office holders, and we look forward to being included in the discussions
to be held by the Ministry of Justice and FCO. (Paragraph 49)
10. In
our view, the Government's assertion that the right to respect
for private life in Article 8 ECHR is not engaged by provisions
to confer power on the Lord Chancellor to lift restrictions on
filming and broadcasting of court proceedings, because court proceedings
are "public", is too simplistic given the range of very
well established restrictions on reporting court proceedings,
ranging from hearings in private through to anonymity orders,
where the justification rests, in part at least, on the protection
of aspects of a person's private life. Indeed, one of the most
important questions for Parliament about these provisions is whether
relaxing the current restrictions on filming and broadcasting
court proceedings which are anyway public is a justifiable interference
with the right to respect for private life of those individuals
involved in the proceedings. (Paragraph 54)
11. 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 conferring the power
to lift filming and broadcasting restrictions on the operation
of the criminal justice system. We support the plans to televise
appellate hearings, but have serious concerns about the implications
for the right to a fair trial, and for jury trial itself, if television
cameras are allowed into criminal trials. Notwithstanding safeguards
already referred to, we are concerned about the risk that vulnerable
victims, for example of child abuse or other sexual offences,
might be deterred from coming forward with their complaints, that
witnesses also may be deterred from coming forward because greater
publicity will exacerbate the perceived risk of intimidation,
and that certain defendants such as children may not receive the
protection their vulnerability demands. (Paragraph 59)
12. We
do not see the justification for the width of the order-making
power in clause 23(1) of the Bill, which, as it stands, authorises
the filming and broadcasting of witnesses, parties, crime victims,
jurors and defendants in court proceedings. We 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 in the light of that
consultation and conduct a review of the operation of the power
after an elapse of years. In the meantime, we recommend that 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. (Paragraph 60)
13. We
are very much aware that one of the main reasons for Parliament's
opposition to the transfer of immigration and nationality judicial
reviews to the Upper Tribunal in 2009 has not been addressed:
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.
(Paragraph 75)
14. The
proposed removal of an existing right of appeal in relation to
family visit visas, an area of such obvious importance to family
life, is a measure which requires careful justification. We cannot
currently support removal of this right while there are still
so many successful appeals. Notwithstanding our efforts to obtain
such information, there is still no evidence before Parliament
as to 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. We ask the Government
to make this information available to Parliament as a matter of
urgency. (Paragraph 83)
Overbroad or unnecessary criminal offences
15. We
are mindful of the apparent increase in recent years of incidents
of spiking drinks in public places, in particular with so-called
"date-rape drugs", and that this is a particular problem
for women. We are also 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.
In our view, maintaining symmetry with a strict liability offence
contained in legislation enacted in 1988, and relying on a provision
which related to the nature of the sentence, rather than to criminal
liability, in order to prevent possible injustice, are not strong
enough justifications for failing to include a "spiked drinks"
defence in the Bill's proposed strict liability drug driving offence.
We also see no reason in principle why such a defence could not
also be inserted into the Act setting out the equivalent drink
driving offence by this Bill. (Paragraph 90)
16. In
our view, the Government's objection to a "spiked drinks
defence" does not hold good if such a defence imposed the
legal burden of proof, as opposed to the evidential burden of
proof, on the defendant: that is, if the Bill provided for a defence
only if the defendant can prove that the drug was present in their
body due to the intervention of a third party without the defendant's
knowledge or consent. (Paragraph 92)
17. We are concerned that the new strict liability offence as presently drafted is incompatible with the presumption of innocence in the absence of a spiked drinks defence which casts the legal burden of proof on the defendant. 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.
(Paragraph 93)
18. We
also recommend that the "spiked drinks" 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. (Paragraph
95)
19. We
support the abolition of the outdated common law offence of scandalising
the court, the continued existence of which represents an unjustifiable
restriction on freedom of speech. (Paragraph 98)
20. We
understand the sensitivities with certain communities on the issue
of criminalising insulting words or behaviour, but nonetheless
we support an amendment to the Bill which reduces the scope of
s. 5 Public Order Act 1986 on the basis that criminalising insulting
words or behaviour constitutes a disproportionate interference
with freedom of expression. (Paragraph 102)
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