Legislative Scrutiny: Crime and Courts Bill - Human Rights Joint Committee

Legislative Scrutiny: Crime and Courts Bill - Human Rights Joint Committee Contents

Written evidence

1. Letter to the Chair, from Lord Henley, Minister of State for Crime Prevention and Anti-Social Behaviour Reduction, 11 May 2012

As you will be aware, the Crime and Courts Bill was introduced in the House of Lords yesterday and is being published today. Lord McNally and I will be taking the Bill through the House of Lords.

The Bill establishes the National Crime Agency to protect the public by enhancing the national response to serious, organised and complex crime and strengthening border security. In addition, the Bill will help deliver a swifter, more open and effective court and tribunal system, while also reforming the judicial appointments process.

I am pleased to enclose a copy of the ECHR memorandum which we have published alongside of the Bill.[42]

The Committee will wish to scrutinise the Bill in the normal way and will, no doubt, have a number of issues which it will want to explore further before publishing its report. Lord McNally and I stand ready to respond to any questions the Committee may have. To ensure a prompt response, it would be helpful if any correspondence from you could be copied direct to the Bill Manager.

I am copying this letter to Lord McNally.

11 May 2012

2. Letter to the Chair, from Rt Hon Lord McNally, Minister of State, Ministry of Justice, 22 June 2012

I am writing to provide the Committee with the attached supplementary memorandum in respect of a Government amendment (amendment 135 on the marshalled list) we have tabled for Lords Committee stage of the Bill. The amendment provides for the transfer of immigration and nationality judicial reviews to the Upper Tribunal.

The Tribunals, Courts and Enforcement Act 2007 provides the Upper Tribunal with the power to hear certain kinds of judicial review cases and the Senior Courts Act 1981 provides for certain applications made to the High Court to be transferred to the Upper Tribunal. The only kind of immigration and asylum judicial reviews which can presently be heard in the Upper Tribunal under these provisions are those relating to a refusal of the Home Secretary to treat submissions as a fresh asylum or human rights claim. The majority of immigration and asylum judicial reviews are therefore still heard in the Administrative Court, which is putting it under severe pressure—with nearly 9000 immigration cases in 2011 accounting for some 70% of the total—and causing long delays for all categories of case. Many of these immigration judicial reviews lack substance and may be simply attempts to delay removal from the UK. The new clause on the Transfer of immigration or nationality judicial review applications accordingly removes current restrictions so that immigration, asylum and nationality judicial reviews—like virtually all other types of judicial review—will be able to be transferred to the Upper Tribunal. This will allow High Court judges to focus on the complex public law cases for which the Court was established and allow immigration to be heard in what is now a tried and tested specialist tribunal.

I am copying this letter to Baroness Smith of Basildon, Lord Beecham, Lord Thomas of Gresford, Lord Laming, Lord Woolf and Lord Avebury.

22 June 2012

3. Letter from the Chair, to Lord Henley, Minister of State for Crime Prevention and Anti-Social Behaviour Reduction, Home Office, 4 July 2012

The Joint Committee on Human Rights is currently scrutinising the Crime and Courts Bill for compatibility with the UK's human rights obligations. The Bill clearly has some significant human rights implications, including for the UK's ability to comply with various positive obligations under international human rights treaties such as the European Convention Against Trafficking.

I am grateful for the very detailed ECHR Memorandum addressing issues arising under the European Convention on Human Rights, and to your officials for making themselves available to meet with the Committee's staff. The combination of the ECHR Memorandum, the meeting with officials from the Bill team and the additional information provided following that meeting has made it possible for the Committee's members to focus their scrutiny on the most significant questions which they consider require further explanation or justification. I would be grateful if you could answer the following questions.

The NCA and counter-terrorism

Q1: What evidence exists to demonstrate that conferring counter-terrorism functions on the National Crime Agency will assist in the fight against terrorism; and how will it do so?

Q2: Given the potentially significant human rights implications of conferring counter-terrorism functions on the NCA, and that the Government appears to accept that there is not currently any compelling case for doing so, why is it appropriate to grant the power to do so by order of the Secretary of State, rather than to bring forward primary legislation at the appropriate time which can be subjected to full and proper scrutiny?

The NCA and human trafficking

Q3: What consideration has been given to how the reorganisation of the UK Human Trafficking Centre and the Child Exploitation and Online Protection Centre ("CEOP") within the new NCA will affect the UK's capacity to fulfil its obligations under the Council of Europe Convention on Action against Trafficking in Human Beings and the European Directive on Human Trafficking?

Q4: In the absence of specific mention on the face of the Bill, will the framework document include specific references to the importance of combating the trafficking of children and adults, and does the Government intend to include it in the strategic priorities for the NCA?

The NCA and freedom of information

Q5: What is the justification for excluding from the scope of the Freedom of Information legislation functions which were formerly within the scope of that legislation?

The "no-strike" provision

Q6: What evidence is there of the necessity to restrict the right of NCA officers to take strike action?

Q7: Is there evidence of public harm having been caused by SOCA employees with operational powers exercising their right to strike?

Q8: Is the application of the no-strike provision to NCA officers who hold "some" of the operational powers a proportionate restriction?

Q9: Can the restriction be shown to be "necessary" before negotiations with the trade unions over a voluntary strike agreement have concluded?

Delegation of judicial function to legal adviser in magistrates court

Q10: What specific type of decisions is it envisaged will be delegated to a legal adviser or assistant legal adviser?

Q11: Is it possible under the Bill for a legal adviser or assistant legal adviser to exercise a judicial function in relation to proceedings in which he or she either has advised or may in future advise the court in their capacity as legal adviser?

Q12: Are the guarantees of the legal adviser's impartiality, independence and immunity in the Bill equivalent to the guarantees of the same for judicial office holders?

Judicial appointments

Q13: Does the Lord Chancellor's membership of the selection commission for the President of the Supreme Court and the Lord Chief Justice give rise to a perception of executive interference in the judicial appointments process?

Q14: Why has the Government decided not to extend to the Lord Chancellor and the Lord Chief Justice the statutory duty to encourage diversity in the range of persons available for judicial appointment?

Q15: Why has the Government not taken the opportunity in this Bill to lay down in statute the rules governing the selection exercises for senior judicial appointments to international courts such as the European Court of Human Rights?

Filming of witnesses, parties, victims, jurors and defendants in court proceedings

Q16: What assessment has the Government made of the likely impact of clause 22 of the Bill on:

(i) the willingness of witnesses, victims and jurors to take part in court proceedings;

(ii) the right of criminal defendants to a fair trial; and

(iii) the judiciary?

Q17: What steps has the Government taken to consult the police, the judiciary, the Crown Prosecution Service, the Criminal Bar Association and victims' organisations about the power in clause 22 and what views have been expressed to the Government by them or any other interested parties?

Q18: What representations has the Government received on the issue from media organisations?

Q19: If the Government's current intention is that, apart from judges and advocates, no individual participants in court proceedings, such as witnesses, parties, crime victims, jurors or defendants will be filmed or broadcast, what is the justification for conferring such a wide power on the Lord Chancellor?

Transfer of immigration and nationality judicial reviews to the Upper Tribunal

Q20: How many (i) nationality cases and (ii) since October 2011 "fresh claim" judicial reviews has the Upper Tribunal dealt with?

Q21: What analysis has the Government carried out of:

(i) The proportion of immigration judicial reviews that are withdrawn because the UK Border Agency conceded that its decision was wrong or must be reconsidered?

(ii) Decisions of the Court of Appeal on appeals from the Upper Tribunal (Immigration and Asylum chamber)?

Removal of rights of appeal in relation to family visit visas

Q22: How many of the 49,400 family visit visa appeals in 2010-11 were successful?

Q23: In what proportion of successful appeals was new evidence introduced because the applicant had made a mistake on their initial application?

Drug driving offence

Q24: Is there any reason why the Bill could not include a defence which would prevent the injustice of strict liability for the offence in a case where a drink has been genuinely spiked, by placing the legal burden of proving the defence on the accused?

It would be helpful if we could receive your reply by 18 July 2012. I would also be grateful if your officials could provide the Committee secretariat with a copy of your response in Word format, to aid publication.

I am copying this letter to Lord McNally as some of these questions concern matters which are the responsibility of the Ministry of Justice.

I look forward to hearing from you.

4 July 2012

4. Letter to the Chair, from Lord Henley, Minister of State, Home Office, and Lord McNally, Minister of State, Ministry of Justice, 30 July 2012

Thank you for your letter of 4 July.

We are pleased that the Committee found the Government's ECHR memorandum on the Bill helpful.

We attach a response to the various questions set out in your letter and look forward to receiving the Committee's Report on the Bill in the autumn.

Crime and Courts Bill: Home Office/Ministry of Justice/Department of Transport response to Questions by the Joint Committee on Human Rights

The NCA and counter-terrorism

Q1. What evidence exists to demonstrate that conferring counter-terrorism functions on the National Crime Agency will assist in the fight against terrorism; and how will it do so?

The creation of a new agency with a focus on national threats and the coordination of the UK-wide response to serious, organised and complex crime naturally brings with it consideration of counter-terrorism. When we published Policing in the 21st Century, we acknowledged that counter-terrorism policing already had effective structures but were also clear that, in time, it might be right to consider these national arrangements in light of the reforms that we were proposing to bring to the national policing landscape.

However, maintaining our highly regarded counter-terrorism policing effort remains paramount. Any consideration of changes should not be undertaken lightly and, for this reason, we have been clear that there would be no wholesale review of the current counter-terrorism policing structures in England and Wales until after the NCA is established. Only after the NCA is up and running will it be right to decide where it is appropriate for national responsibility for counter-terrorism policing to sit in future. Such a review should sensibly consider whether or not the National Crime Agency might play a role, and, if so, what that role might be.

The inclusion of the order-making power in clause 2 is required to enable us to give prompt effect to any future decision should it include a role for the NCA in relation to counter-terrorism. It is not intended to suggest that a decision has been made. No assessment has been made of the evidence whether to support, or otherwise, a decision to confer counter-terrorism functions on the NCA. But, in due course, when the time is right to review the arrangements for counter-terrorism policing, we expect both police partners and the security and intelligence agencies to be fully involved ahead of any decision, and that such a decision will be evidence-based and should preserve those features of the current arrangements that work well.

Q2. Given the potentially significant human rights implication of conferring counter-terrorism functions on the NCA, and that the Government appears to accept that there is not currently any compelling case for doing so, why is it appropriate to draft the power to do so by order of the Secretary of State, rather than to bring forward primary legislation at the appropriate time which can be subjected to full and proper scrutiny?

Whilst no decision has been made, the Government considers that there could be benefits in conferring counter-terrorism functions on the NCA. The inclusion in the Bill of the order-making power at clause 2 will enable us to give prompt effect, subject to parliamentary approval, to any decision made in the future.

The Committee will be aware that the approach that we have taken—of being able to modify the functions of the NCA in relation to counter-terrorism functions by order—has been considered by the Delegated Powers and Regulatory Reform Committee. In their report, that Committee made no recommendation in relation to clause 2, and noted that "The idea of adding to a statutory body's functions by subordinate legislation subject to a Parliamentary procedure is well established".

We recognise the potential significance of a future decision, and as such we have made the order subject to the super-affirmative procedure set out in Schedule 16 to the Bill. This includes a statutory duty on the Secretary of State to consult those persons whom she considers to be affected by the proposed order, and to have regard to any representations made in response to that consultation. Furthermore, the order-making power in clause 2 only permits the Secretary of State to make provision about counter-terrorism functions and other provisions which the Secretary of State considers necessary as a consequence of the conferral of the counter-terrorism function(s).

We believe that the approach that we have taken through the order-making power is appropriate and balances the flexibility to implement promptly any decision to confer counter-terrorism functions on the NCA, should a decision be made, with the necessary Parliamentary scrutiny of that decision.

The Government has been clear that no decision has been made on the future of counter-terrorism policing structures or a role for the NCA within those structures. In the event that a decision is made in the future to confer a counter-terrorism function on the NCA, the Director General and other NCA officers would be subject to the same legal and procedural safeguards as the police are subject to when carrying out a counter-terrorism function. NCA officers would also be expected to adhere to long established legal principles, including fundamental human rights. Such safeguards apply to the current operational powers that NCA officers can be designated with (provided they are suitable, capable and adequately trained), albeit in the context of organised crime and serious crime.

The NCA and human trafficking

Q3: What consideration has been given to how the reorganisation of the UK Human Trafficking Centre and the Child Exploitation and Online Protection Centre ("CEOP") within the new NCA will affect the UK's capacity to fulfil its obligations under the Council of Europe Convention on Action Against Trafficking in Human Beings and the European Directive on Human Trafficking?

Both CEOP and the UK Human Trafficking Centre (UKHTC) will be moving into the NCA, as part of the precursor transfer of the Serious Organised Crime Agency. The NCA will have a key role in building on the existing arrangements for tackling human trafficking, by using its enhanced intelligence capabilities and coordination functions to target the criminal gangs involved in perpetrating this crime, wherever they are.

Working across the Agency's internal structures (including the NCA?s Border Policing Command and the National Missing Persons Bureau, as well as CEOP and UKHTC) and with external partners such as Border Force, the NCA will help identify trafficked adults and children who are being brought into the UK, and ensure that appropriate action is taken to protect them and to disrupt the activities of those involved in this despicable trade.

Q4: In the absence of specific mention on the face of the Bill, will the Framework Document include specific references to the importance of combating the trafficking of children and adults, and does the Government intend to include it in the strategic priorities for the NCA?

It is too early to comment on what the strategic priorities for the National Crime Agency will be, given that the Agency will not be operational until 2013 and they will need to take account of the latest assessments. However, as Ministers have emphasised during the debate on the Bill, the National Crime Agency will have a key role in tackling trafficking of children and adults. The NCA Framework Document will set out the internal governance, financial management, reporting and transparency arrangements for the Agency. We do not envisage that it will identify priority areas of activity. Instead, these will be established through the NCA?s Strategic Priorities and Annual Plan (where, in addition to the strategic priorities, the Director General of the NCA will set out his operational priorities).

The NCA and freedom of information

Q5: What is the justification for excluding from the scope of the Freedom of Information legislation functions which were formerly within the scope of that legislation?

The Government considered carefully whether the NCA should be made subject to the Freedom of Information (FOI) Act. That Act has never applied to its main precursor agency, SOCA, the functions of which will form the majority of those coming into the NCA. We concluded that the FOI Act should not apply, as to do so could compromise operational effectiveness by reducing the confidence of partners, including those overseas and in the private sector, to share information with the Agency, and potentially handing organised criminal groups a valuable tool for undermining and evading its operations.

The functions transferring into the NCA which were formally within the scope of the FOI Act (namely those from the National Policing Improvement Agency and the Metropolitan Police e-Crime Unit) are expected to make up only a small part of the Agency (on current projections, about 8% of staff/5% of budget). We do not consider that it would be possible to ring-fence the functions of the precursor agencies for the purpose of the application of the FOI Act, for two main reasons. Firstly, the NCA is being designed as an integrated whole, to ensure a free flow of information between the central intelligence hub and all parts of the Agency. This is essential so that it can effectively map, analyse and task action against serious, organised and complex crime. It would defeat the purpose of this integrated approach, and weaken the effectiveness of the Agency as a whole, if individual units had to be "cordoned off" as subject to the FOI Act. Secondly, precursor units are unlikely to be clearly identifiable as distinct entities within the new NCA: part of the Metropolitan Police Central e-Crime Unit, for example, will combine with SOCA?s Cyber Unit capabilities and will be fully integrated into the new National Cyber Crime Unit.

We are committed to ensuring that the NCA will be transparent. To this end, the Director General will be under a statutory duty to make arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA. The sorts of information that will be published will be set out in more detail in the NCA?s Framework Document, which itself will be published and laid before Parliament. This duty aims to ensure that the public have access to information relating to the NCA wherever possible, and we expect that as a result the NCA will in fact publish more information than its predecessors.

The "no-strike" provision

Q6: What evidence is there of the necessity to restrict the right of NCA officers to take strike action?

The NCA will be different to any organisation that currently exists. It will build on the work of precursor agencies but its remit, in both scope and reach, will be broader and NCA officers will be operational crime-fighters. To that extent the work of NCA officers will be closely aligned to that of police officers who are similarly prevented from taking strike action.

It is the Government's view that the threat from serious and organised crime is such that any interruption in the service provided by NCA officers with operational powers would have serious consequences in relation to the prevention of crime, the safeguarding of national security, the maintenance of public safety and/or the protection of the rights and freedoms of others. The continuous availability of NCA officers will be indispensable in order to protect the public from serious and organised crime, in the same way that the police's continual presence is required to ensure the protection of the public.

Preparing for industrial action and putting in place appropriate contingency arrangements to maintain service can be a huge distraction to operational delivery which is a potential risk to protecting the public. This is why we have decided to take this important step and set out from the beginning our expectation that unions cannot induce NCA officers with operational powers to strike.

Lawful restrictions can be imposed on the exercise of the rights of civil servants if the nature of the duties performed by them is such that they are engaged in the administration of the state. NCA officers designated with operational powers will clearly be engaged in the administration of the state, as they will be exercising powers of a constable, customs powers and/or immigration powers.

Q7: Is there evidence of public harm having been caused by SOCA employees with operational powers exercising their right to strike?

SOCA has, in the past, conducted operations in a manner which has enabled strike action taken by staff to be managed. However, it would be wrong to draw a direct comparison between the NCA and SOCA. The NCA will have a wider, joined up remit to tackle organised crime, strengthen our borders, fight fraud and cyber crime and to protect children and young people from sexual abuse and exploitation. It will work collaboratively with law enforcement agencies and wider partners to ensure that those who commit serious and organised crime are tracked down and brought to justice, their criminal activities disrupted and their criminal gains stripped away. It will have the authority to coordinate and task the national response, prioritising resources and connecting activity from the local, in country, at the border and overseas. In working closely with the police, the NCA will need to align its capabilities and responses accordingly.

In addition, the Government does not consider that a policy of "managing" strike action provides the necessary guarantee that the public will be protected from the harm caused by serious and organised crime. The NCA will need to react quickly, including in response to intelligence received at short notice indicating a specific and immediate threat of harm. It is not always possible to plan or organise such a response around the non-availability of NCA officers through industrial action. As with police officers, if NCA officers with operational powers are not available for duty due to industrial action there will be an increased and significant risk of public harm or a threat to national security.

Q8: Is the application of the no-strike provision to NCA officers who hold "some" of the operational powers a proportionate restriction?

The NCA must have the operational capability to respond to the threat of serious and organised crime around the clock so that the public is protected. In order to achieve this, the Government carefully considered how a restriction on the right to strike of NCA officers could be applied in the most proportionate manner and concluded that it should be limited to those officers with an operational role designated with some or all of the operational powers—that is, those of a constable, customs officer or immigration officer.

In practice, the Government expects the overwhelming majority of NCA officers with operational powers will be designated with all of the operational powers. The Director General of the NCA will designate NCA officers according to the operational need of the Agency with the imperative being to provide for an appropriately skilled and experienced operational workforce. The designation of powers will be carried out in a proportionate manner and therefore retained flexibility in the process to allow the selective designation of powers if necessary.

The role of the NCA and NCA officers designated with customs or immigration powers will be to complement, rather than replicate, the work of HM Revenue and Customs and UK Border Force. The immigration and customs crime that the NCA will be focusing on will be at the threshold level of serious and/or organised crime. Therefore it is considered proportionate to include those NCA officers designated with powers other than those of a constable.

Q9: Can the restriction be shown to be "necessary" before negotiations with the trade unions over a voluntary agreement have concluded?

It remains the Government's strong preference to negotiate for a voluntary no-strike agreement with unions. Given the Government's view as to the necessity of the restrictions on the right to strike of NCA officers designated with operational powers, we consider it appropriate to legislate for the introduction of statutory restrictions at the same time as we legislate for the establishment of the NCA itself. Whilst we will make every effort to secure a voluntary agreement with the relevant unions, it is essential that the statutory provisions are in place, should they be needed, at the point at which the NCA is formally established in autumn 2013. In the event that a voluntary agreement can be reached with the relevant unions, clause 13 enables the Home Secretary to suspend the operation of the statutory no-strike provisions.

Delegation of judicial function to legal advisers in the Family Court

Q10. What specific type of decisions is it envisaged will be delegated to a legal adviser or an assistant legal adviser?

The Government is yet to finalise the details of the powers which will be delegated to legal advisers, and will need to develop and agree these in partnership with the family judiciary and HM Courts and Tribunals Service. As a starting point, however, the Government anticipates replicating the existing functions which a justices' clerk can perform in place of a single justice of the peace. Such functions are often procedural, such as the making of orders for directions (such orders do not determine issues and are made in order to progress the case, for example, to ensure that parties file documents within a certain time). These functions also include the making of an order for the renewal of an interim care order under the Children Act 1989, where the parties and any children's guardian consent to the making of the order.

Beyond the likely continuation of these existing functions, there are a number of other functions which the Government envisage could be carried out by legal advisers in the new family court. Examples of the type of functions which the Government are considering delegating include the making of allocation decisions in private law applications and Case Management hearings on public law family cases.

In addition, the Government response to the Family Justice Review accepted the recommendation to allow uncontested divorce applications to be dealt with administratively by the courts. While the implementation of this proposal will require further changes to primary legislation (which will be taken forward in the Department for Education's Children and Families Bill), this is a further function which the Government believe legal advisers would be able to carry out, subject to a power to refer the case to a judge where appropriate.

Q11. Is it possible under the Bill for a legal adviser or assistant legal adviser to exercise a judicial function in relation to proceedings in which he or she either has advised or may in future advise the court in their capacity as legal adviser?

Yes, although it is important to stress that this is something which happens already in Family Proceedings Courts. Currently, under powers delegated under the Justices' Clerks Rules 2005, many cases come before a justices' clerk to make directions particularly at first hearing. Further down the process, these cases will then come back before the bench of lay magistrates for a decision and the justices' clerk advising that bench, will most likely be the person who dealt with the case at first hearing. The Government consider this continuity to be beneficial.

Q12. Are the guarantees of the legal adviser's impartiality, independence and immunity in the Bill equivalent to the guarantees of the same for judicial office?

New section 31O(8) to (10) of the Matrimonial and Family Proceedings Act 1984, as inserted by the Bill, deals with immunity from suit of legal advisers in the family court. This mirrors the position for justices' clerks in the magistrates' courts, as set out in sections 31(2) and 32(2) of the Courts Act 2003.

Section 31(1) and (2) of the Courts Act 2003 make mirroring provision for justices of the peace (being lay magistrates or District Judges (Magistrates' Courts)), so to that extent the position of legal advisers will be equivalent to those judicial office holders.

Of course, the principle of judicial immunity from suit is a very long-standing constitutional principle, established in caselaw stemming back to the 14th century.

New section 31O(7) of the Matrimonial and Family Proceedings Act 1984 deals with independence from directions of the Lord Chancellor or any other person when carrying out a function of the family court or of a judge of the court, or a function specified in subsection (5) of new section 31O of the Matrimonial and Family Proceedings Act 1984. This mirrors the provision for justices' clerks in section 29 of the Courts Act 2003, which replaced section 48 of the Justices of the Peace Act 1997.

The principle of judicial independence is another cornerstone of constitutional law, having its origins in the Act of Settlement 1701. Section 3 of the Constitutional Reform Act 2005 states that the Lord Chancellor must uphold the "continued independence of the judiciary".

Clearly, judicial office holders have "more" in the way of guarantees of their judicial independence, for example, in terms of the limited number of ways in which they may be removed from office.

However, in terms of limiting the ability to sue a legal adviser or to "interfere" with the independence of his or her particular decisions, when exercising a judicial function, it is considered that the provisions in the Bill are broadly equivalent to those for judicial office holders, as are the current provisions in respect of justices' clerks.

Judicial appointments

No, we do not consider that the Lord Chancellor sitting on selection panels for the President of the UK Supreme Court and the Lord Chief Justice encroaches on the principle of an independent process for judicial appointments. The appointment will remain based on merit rather than political considerations.

Being on the panel would not necessarily mean that the Lord Chancellor would get his way on the individual appointed; instead it would mean that he would have the opportunity to be engaged in the process and make his views known to the other panel members. The members of these panels will be significant individuals ("heavy hitters") in their own right. A lay chair, plus senior members of the judiciary and judicial appointment commissioners who are all strong and independent minded individuals, none of whom, given their status, are likely to simply fall into line with the Lord Chancellor. The Lord Chancellor would have the opportunity to express his views but would not, on his own, be able to determine the selection.

The Lord Chancellor being a member of the selection panel for these two appointments is also no less transparent than the current process. Although when requesting a selection panel to reconsider or rejecting a name, the Lord Chancellor is required to document his reasons, this letter is only for the eyes of the selection panel and is not shared more widely.

This provision is not, as such, designed to secure greater transparency in for the selection of these two roles. Rather, the intention is to make the Lord Chancellor's involvement more effective and proportionate to the nature the working relationship between the Executive and these two senior judicial roles.

Current case-law requires that in order to establish a lack of independence in the manner of appointment of judges, it is necessary to show that the appointment process as a whole was unsatisfactory (see Zand v Austria, App. No. 7360/76). Given that the Lord Chancellor already plays a significant role in relation to selection—in that he may reject/accept or require reconsideration (and in certain circumstances even veto the process)—then the proposed changes do not amount to a greater influence over the selection process than currently applies.

We therefore believe that this provision strikes the right balance in providing both the legitimate accountability for the Executive in these important appointments where there is a significant public interest and an independent and transparent process.

The Government has given a firm commitment to improving diversity, and is of the view that the Lord Chancellor and Lord Chief Justice can show strong leadership in this area without the imposition of such a duty. Both the Lord Chancellor and the Lord Chief Justice (in relation to his public functions other than those relating to judicial decision-making) are already subject to a public sector equality duty (under the Equality Act 2010) when exercising their functions in relation to the judiciary, including having regard to advancing equality of opportunity between different groups.

Selection exercises for the UK judicial office holders to the European Court of Human Rights and European Court of Justice, together with selection exercises for appointments to other international courts have recently concluded. There are a number of issues which will need to be considered and it is proposed to discuss the process for making these international appointments with the Foreign Secretary, as responsibility for managing these appointments is split between the Ministry of Justice and Foreign Office.

Given that these appointments are made on behalf of the UK as a whole, any proposals for codifying the selection and re-appointment processes for international office holders will require careful consideration and engagement with the Devolved Administrations and their respective judiciary.

Filming of court proceedings

Q16: What assessment has the Government made of the likely impact of clause 22 of the Bill on:

(i) the willingness of witnesses, victims and jurors to take part in court proceedings;

The Government's assessment is that the current proposals could have positive and negative potential impacts on the willingness of witnesses, victims or jurors to take part in court proceedings.

On 10 May 2012, the Government published a paper on "Proposals to allow the broadcasting, filming, and recording of selected court proceedings" ("the Government Paper").[43] This included a section on the analytical considerations for the introduction of broadcasting to courts, including potential costs and benefits for media organisations, parts of the Criminal Justice System including victims and witnesses. An Equality Impact Assessment for the proposals to introduce broadcasting from the Court of Appeal has also been completed. This concluded that the proposals would not have a different impact on those with protected characteristics as opposed to those who do not share such characteristics.

The Government Paper drew attention to a public opinion poll conducted in the United States which indicated that a majority of the public surveyed would be less willing to testify if proceedings were televised.[44] However, the filming of trials in the United States is very different to the proposals currently put forward by the Government. For example, no victims, witnesses or jurors will be recorded or broadcast under the proposals put forward for broadcasting court proceedings in the UK, unlike the rules in the United States. Additionally, in the first instance, recording and broadcasting will only be permitted from the Court of Appeal where victims and witnesses rarely even appear.

However, the Government Paper also highlighted that there is some evidence to suggest that an increased understanding of the Criminal Justice System can lead to increased public confidence in the System, which often leads to increased engagement from victims and witnesses.[45] Work is ongoing to consider how to measure the impact of the introduction of court broadcasting.

(ii) the right of criminal defendants to a fair trial; and

The Government considers its proposals will have no adverse impact on the right to a fair trial.

The Government Paper referred to research in the United States which indicated that those polled thought televising trials would impede the right to a fair trial. However, the Government is not proposing to televise criminal trials. It also mentioned anecdotal evidence that judges played to the cameras or imposed harsher sentences to court public opinion.

Open justice is a long-standing and fundamental principle of the UK justice system. The Government believes that a judge delivering a judgement is a public figure performing a public function, and it is therefore appropriate that the public are able to see and hear the judiciary in their own words. Additionally, apart from when a court or tribunal sits in private (in which case recording or broadcasting would not be permitted) court or tribunal hearings are public events, in accordance with Article 6 of the ECHR which provides that "everyone is entitled to a fair and public hearing".

However, we are conscious of the risk identified above. We are considering how to monitor this to ensure there is no adverse impact on the right of defendants to a fair trial.

(iii) the judiciary?

The Government paper included our current assessment of any likely impact on the judiciary from the introduction of court broadcasting. This included the potential of incurring some costs from introducing any specific training for the judiciary following the introduction of court broadcasting, should any be required.

The Government has sought the views of a range of interested organisations, including the judiciary, the Crown Prosecution Service, the Criminal Bar Association and victims groups. Ministers and officials have met several times with members of the senior judiciary who are leading on the introduction of broadcasting selected court proceedings. There has been no direct consultation with the police service. Ministers have corresponded with, and officials have met with, the Crown Prosecution Service and the Bar Council, including the Chair of the Criminal Bar Association.

The Director of Public Prosecutions, Keir Starmer QC, has publicly stated his support for the introduction of court broadcasting in limited circumstances with the aim of increasing public understanding of the Criminal Justice System. The Bar Council and some victims groups, such as Victim Support, have also previously made public statements which were cautiously supportive of the limited proposals to introduce broadcasting in selected court proceedings with appropriate safeguards.

Q18: What representations has the Government received on the issue from media organisations?

Ministers and officials have met with representatives from a range of organisations with an interest in broadcasting court proceedings, including broadcasters. The broadcasters (BBC, ITN, BSkyB) have publicly called for a lifting of the ban on broadcasting from courts for many years. We have also sought the views of media regulatory bodies, including Ofcom and the Press Complaints Commission, on our proposals.

The Government believes that once the principle of broadcasting selected court proceedings has been approved by Parliament, the detail should be left to secondary legislation. The legislative framework includes a "triple-lock" safeguard, as the Lord Chancellor, the Lord Chief Justice, and Parliament will need to agree any secondary legislation extending the circumstances in which recording court proceedings is permitted. Following a recommendation made by the Delegated Powers and Reducing Regulation Committee, the Government tabled an amendment for Lords Committee stage to provide for the affirmative resolution procedure to apply to any order made under clause 22. That Committee did not argue that the clause inappropriately delegated legislative power. In cases where filming is permitted by a clause 22 order, the court or tribunal will have the power to direct that, notwithstanding any such order, filming or broadcast may not be permitted or may only be permitted subject to certain conditions if this is necessary to ensure the fairness of any particular proceedings or to ensure that any person involved in the proceedings is not unduly prejudiced.

Transfer of immigration and nationality judicial reviews to the Upper Tribunal

Q20: (i) How many nationality cases has the Upper Tribunal dealt with?

There is no data available on the number of nationality appeals heard in the Upper Tribunal, but there is no right of appeal, for instance, against the refusal of British citizenship and the number of nationality cases is understood to be very small.

The Administrative Court deals with naturalisation and citizenship civil judicial reviews. Applications for judicial review of nationality decisions are not currently able to be transferred to the Upper Tribunal. As with all case types, nationality judicial reviews would be transferred as and when the appropriate level of expertise was available. Judicial reviews of nationality decisions will not be transferred unless and until the Senior President of Tribunals, the Lord Chief Justice and the Lord Chancellor are satisfied there is sufficient expertise in the Upper Tribunal to deal with such matters.

(ii) Since October 2011 how many "fresh claim" judicial reviews has the Upper Tribunal dealt with?

From October 2011 to the end of June 2012, 184 applications for judicial review of "fresh claim" decisions have been disposed of by the Upper Tribunal. This includes cases withdrawn and discontinued, along with those determined by the Tribunal. There were 254 live cases at the end of June 2012, including cases that are currently, stood out? pending the outcome of test cases, applications that are awaiting renewal and cases with hearing dates fixed.

Q21 What analysis has the Government carried out of:

(i): The proportion of immigration judicial reviews that are withdrawn because the UK Border Agency conceded that its decision was wrong or must be reconsidered?

There are many reasons why judicial reviews are withdrawn or conceded and it is unhelpful to draw detailed conclusions from bare statistics. Withdrawn judicial reviews are not routinely analysed, but sampling exercises are periodically undertaken. Some judicial reviews will be conceded because the UK Border Agency reviews the case and decides that it is at fault. Others will be conceded because the Border Agency reviews the case and takes a pragmatic decision that it would be quicker to resolve the case in the statutory appeals system than in the judicial review system. Another group of cases will be conceded or withdrawn because additional evidence is put forward after the issue of a claim for judicial review. A conceded judicial review does not always result in a grant of leave. Consideration or re-consideration of evidence often leads to a further adverse decision.

(ii): Decisions of the Court of Appeal on appeals from the Upper Tribunal (Immigration and Asylum Chamber)?

The Government consider these decisions and any potential impacts on a case-by-case basis, recognising the importance of independent judicial decision making. As context, in 2011 there were approximately 1800 decisions on permission applications to the Court of Appeal of decisions from the Upper Tribunal (Immigration & Asylum Chamber). Of these, only 39 were granted permission to appeal, and 17 were remitted to the Upper Tribunal. (Note: the data supplied is internal management information and is not subject to the same checks as published data.)

Removal of rights of appeal in relation to family visit visas

Q22: How many of the 49,400 family visit visa appeals in 2010-11 were successful?

HM Courts and Tribunals Service publish annual and quarterly statistics on immigration and asylum appeals. Those statistics provide, among other analysis, a breakdown of the number of appeals received, the number determined and the number of those determined that were allowed (successful). It is therefore not possible to set out how many of the 49,400 family visit visa appeals received in 2010-11 were successful, but it is possible to set out the number and percentage of appeals determined that were successful. In 2010-11, 58,600 family visit visa appeals were determined of which 22,400 were successful (38%). In 2011-12, 47,200 family visit visa appeals were determined of which 15,100 were successful (32%). The Annual Tribunal Statistics can be found at the following link http://www.justice.gov.uk/statistics/tribunals/annual-stats.

Q23: In what proportion of successful appeals was new evidence introduced because the applicant had made a mistake on their initial application?

Analysis of a sample of 363 allowed family visit visa appeal determinations received by the UK Border Agency in April 2011 showed that new evidence produced at appeal was the only factor in the Tribunal's decision in 63% of allowed appeals and was one of a combination of factors in 92% of allowed appeals. No information is held as to the proportion of successful appeals where the applicant submitted new evidence having made a mistake on their initial application.

Drug driving offence

There is no defence of "spiked drinks" in respect of the offences in sections 4 and 5 of the Road Traffic Act 1988 (related to driving while impaired by drugs or drink and to driving with a concentration of alcohol in excess of the prescribed limit respectively). The latter, like the new drug driving offence, is a strict liability offence.

In respect of convictions for these offences, section 34 of the Road Traffic Offenders Act 1988 (which covers disqualification for certain offences) allows for a court to not order an obligatory disqualification from driving in circumstances where there are special reasons to warrant this. It is recognised that a genuinely spiked drink is a relevant consideration for a special reasons hearing. Therefore we understand that the lack of a spiked drink defence has not resulted in any injustice with regard to the offences in sections 4 and 5 of the Road Traffic Act 1988.

Section 34 of the Road Traffic Offenders Act 1988 would also apply to the new drug driving offence, meaning that for cases related to spiked drinks the court could conduct a special reasons hearing and decide not to order a mandatory disqualification from driving.

The inclusion of a defence of spiked drinks for the new offence would create a difference in approach between the new offence and the offences in sections 4 and 5 of the Road Traffic Act 1988.

In addition a defendant would have nothing to lose from seeking to rely on a spiked drink defence if one were available—which could introduce substantial extra difficulties for prosecutions.

30 July 2012

5. Letter to the Chair, from Helen Grant MP, Parliamentary Under-Secretary of State for Justice, Ministry of Justice, 23 October 2012

I am writing on Lord McNally's behalf to provide the Committee with the attached supplementary memorandum[46] in respect of the Government amendments we have tabled for the final day of Lords Committee stage of the Bill. The amendments make a number of substantive changes to community sentencing and provide for Deferred Prosecution Agreements.

I look forward to seeing the Committee's Report on the Bill.

I am copying this letter to Baroness Smith of Basildon, Lord Beecham, Baroness Hamwee, Lord Thomas of Gresford, Lord Laming and Lord Ramsbotham.

23 October 2012

42 See http://www.homeoffice.gov.uk/publications/about-us/legislation/crime-courts-bill/ Back

43 http://www.justice.gov.uk/publications/policy/moj/proposals-for-broadcasting-selected-court-proceedings Back

44 Broadcasting Courts: Consultation Paper CP 28/04, 107-8; Stepniak Audio-Visual Coverage of Courts, 152-6 Back

45 Ministry of Justice and Burns and Co (2010). Attitudes towards Sentencing qualitative research, Phase 2 Back

46 See http://www.homeoffice.gov.uk/publications/about-us/legislation/crime-courts-bill/ Back



© Parliamentary copyright 2012	Prepared 26 November 2012