Legislative Scrutiny: (1) Criminal Justice and Courts Bill and (2) Deregulation Bill - Human Rights Joint Committee Contents


Criminal Justice and Courts Bill

The Criminal Justice and Courts Bill was introduced in the House of Commons on 5 February 2014. It received its Second Reading in the Commons on 24 February 2014, completed its Committee Stage on 1 April and began its Report Stage on Monday 12 May. The Bill has been carried over to the new Session of Parliament.

The rights of the child

While we welcome the Government's acknowledgment of the importance to this Bill of the relevant international standards concerning the rights of children and, specifically, the rights of children within the youth justice system, there is no evidence to suggest that these standards were considered by the Ministry of Justice prior to the publication of the Bill, despite the commitment given by the Government in December 2010 always to have due regard to the UNCRC when developing law and policy This is not the first time that such a lack of evident consideration has been commented on in our scrutiny Reports. We intend to return to the question of whether the Government has made any progress towards implementing this commitment.

Increased sentence for terrorism offences

The Bill increases the maximum sentence for certain terrorism-related offences from 10 or 14 years to life imprisonment. The Bill also adds these and other terrorism-related offences to the list of serious offences which are subject to the dangerous offenders sentencing scheme. The combined effect of this is that offenders may receive an automatic life sentence, they may be eligible to receive an "Extended Determinate Sentence", and they will be subject to discretionary early release, after an assessment of risk by the Parole Board. They may even receive a "whole life order" in cases of sufficient seriousness. We believe that significant increases in maximum sentences require clear and transparent justifications which in this case have not been given.

The Government has clarified what was meant in its ECHR Memorandum when it stated that the effect of the provisions in these clauses of the Bill may be to "compel" courts to make whole life orders in certain cases concerning these terrorism-related offences. It is now clear that the compulsion only obtains where a court decides for itself that the case is sufficiently serious to warrant such an order, in which case the court has no choice but to make such an order.

Although the Court of Appeal in the McLoughlin case has brought welcome clarification of the legal position concerning "whole life orders", we believe that, in view of the legal uncertainty that remains about the availability of a review mechanism for such orders, more specific details need to be provided about this mechanism, including the timetable on which such a review can be sought, the grounds on which it can be sought, who should conduct such a review, and the periodic availability of further such reviews after the first review. The current Bill provides an opportunity for Parliament to remove any legal uncertainty by specifying the details of the review mechanism. We have therefore suggested a probing amendment to the Bill in order to give Parliament the opportunity to debate the desirability of amending the statutory framework to put beyond legal doubt the availability of this mechanism, in accordance with the principle of subsidiarity.

Electronic monitoring following release on licence

The Bill would give the Secretary of State a power to require compulsory electronic monitoring of offenders released on licence. It also provides for a Code of Practice to be issued by the Secretary of State relating to the processing of data gathered in the course of monitoring people under electronic monitoring conditions imposed on offenders following their release on licence. The detailed safeguards in the Code of Practice will be crucial to ensuring that the processing of data so gathered is carried out in such a way that any interference with the right to respect for private life is necessary and proportionate to the legitimate aims pursued. We recommend that the Bill be amended to make the Code subject to some form of parliamentary procedure in order to ensure that Parliament has as opportunity to scrutinise the adequacy of the relevant safeguards.

Extreme pornography

We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life and freely to receive and impart information.

Young offenders

The Bill provides for a new form of youth detention accommodation, with a focus on education—namely, secure colleges. We emphasise the importance of existing international human rights standards to these provisions: for example, that the State should set up small open facilities where children can be tended to on an individual basis and so avoid the additional negative effects of deprivation of liberty; and that institutions should be decentralised to allow for children to continue having access to their families and their communities. We note that the Government does not appear to have carried out any equality impact assessments of the proposed secure colleges policy, and we recommend that such assessments should be carried out and made available to Parliament at the earliest opportunity. We call on the Government to provide further information in relation to SEN provision in secure colleges.

The Bill provides the authority for a secure college custody officer, "if authorised to do so by secure college rules", to use reasonable force where necessary to ensure good order and discipline on the part of persons detained in a secure college. This provision of the Bill directly raises a human rights compatibility issue which has already been the subject of an inquiry and Report by our predecessor Committee in the last Parliament; of a judicial decision by the Court of Appeal; and of recommendations by the UN treaty monitoring bodies. In our view, it is clear from the reasoning of the Court of Appeal in the case of C v Secretary of State for Justice that it is incompatible with Articles 3 and 8 ECHR for any law, whether primary or secondary legislation, to authorise the use of force on children and young people for the purposes of good order and discipline. We therefore recommend that the relevant provision in Schedule 4 of the Bill should be deleted, and the Bill should be amended to make explicit that secure college rules can only authorise the use of reasonable force on children as a last resort; only for the purposes of preventing harm to the child or others; and that only the minimum force necessary should be used.

Criminal courts charge

We have considered the extent to which the criminal courts charge proposed in the Bill is likely to influence impecunious defendants' decisions about whether to plead guilty, whether to elect summary or jury trial, and whether to appeal against conviction or sentence. We have found it difficult to assess this risk in the absence of clear evidence about the impact of court charges in practice. We therefore recommend that the Government monitor carefully the impact of the criminal courts charge on the right of defendants to a fair trial of the criminal charge against them, and make available to Parliament the results of that monitoring. In the meantime we recommend that Parliament be provided with any other evidence that already exists about the impact of other, existing, charges and fees on criminal defendants' decisions about plea, mode of trial and appeals.

Contempt of court

Part 3 of the Bill makes changes to the law of contempt of court and juror misconduct in response to concerns that the law striking the balance between the right to a fair trial and the right to freedom of expression needs updating for the internet age. It provides for a statutory procedure whereby the Attorney General may issue a formal notice to a publisher informing them that there are active proceedings and identifying prejudicial on-line material. We recommend that the Government publish a draft of the regulations setting out this procedure at the earliest opportunity to enable Parliament to scrutinise them for their possible implications for freedom of expression.

Judicial Review

We also set out again for the sake of comprehensiveness the amendments proposed to the Bill in our recent Report on the implications for access to justice of the Government's proposed reforms to judicial review.

Deregulation Bill

The Deregulation Bill was introduced in the House of Commons on 23 January 2014. It received its Second Reading in the Commons on 4 February 2014, completed its Committee Stage on 25 March and began its Report Stage on 14 May. The Bill has been carried over to the next Session of Parliament. The Bill was preceded by a draft Deregulation Bill which was subject to pre-legislative scrutiny by the ad hoc Joint Committee on the Draft Deregulation Bill, a process to which we contributed.

The Bill provides that a person exercising a regulatory function specified by the Minister "must, in the exercise of the function, have regard to the desirability of promoting economic growth." The Government intends this economic growth duty to apply to the EHRC. We believe that applying this growth duty to the EHRC poses a significant risk to the EHRC's independence, and therefore to its compliance with the Paris Principles and the Equal Treatment Directives as implemented by the Equality Act 2010. The Government is therefore risking the possibility of the EHRC's accredited "A" status being downgraded and of putting the UK in breach of its obligations under EU equality law. Unless the continuing discussions between the Government and the Commission satisfy the Commission that the growth duty will not in any way impact upon its independence, we recommend that this duty not be applied to the EHRC.

The Bill would remove the power conferred on employment tribunals by the Equality Act to make wider recommendations in discrimination cases. The EHRC regards the power as useful, both for the employer to whom the recommendation is made and to the Commission itself for following up tribunal decisions, and it does not consider that sufficient evidence has been gathered to make out the case for abolition. We therefore recommend that the power of employment tribunals to make wider recommendations in discrimination cases should be retained.

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Prepared 11 June 2014