Conclusions and recommendations
Serious Crime Bill
Information Provided by the Government
1. We welcome the
observance of good practice by the Home Office and the Ministry
of Justice in their provision of information in relation to this
Bill. (Paragraph 1.6)
2. The lateness of
the Government's response to our questions has therefore not assisted
our reporting before the Bill's Report Stage begins. (Paragraph
1.7)
3. We remind the Government
that we have previously expressed our concern at the short timescale
often afforded for scrutiny of legislation, and at delays in Government
responses to requests for information hindering the timely publication
of Committee Reports. (Paragraph 1.8)
4. We also remind
departments of both (i) the importance of observing the dates
by which responses to correspondence are requested and (ii) the
responsibility on parliamentary business managers to allow scrutiny
by committees to proceed to a conclusion within a reasonable timescale
before moving on to the very last stage of a Bill in any one House
at which amendments can be considered. (Paragraph 1.8)
Proceeds of crime (Part 1)
5. Restraint orders,
which freeze a suspect's assets, can have a serious impact not
only on the individual concerned but on that person's dependants
and on their business, and the proposed lowering of the threshold
for the obtaining of such orders therefore reduces the safeguards
against such interferences with the peaceful enjoyment of possessions
and with the right to respect for private and family life being
disproportionate. However, we are satisfied that the Government
has demonstrated by evidence that the current approach gives rise
to a real, practical risk that assets will be dissipated or otherwise
shielded from possible confiscation orders. As the Government
points out, other safeguards already exist in the statutory framework:
for example, the court has the power to vary or discharge a restraint
order if it is not satisfied that the investigation is progressing
satisfactorily. In addition to the safeguards expressly provided
for in the legislation, other implied safeguards have been read
into the statutory framework by the courts pursuant to their obligation
to read legislation compatibly with Convention rights. (Paragraph
1.14)
6. In view of the
existence of these other safeguards, we are satisfied that the
Government has adequately justified the lowering of the threshold
for restraint orders from "reasonable cause to believe"
to "reasonable cause to suspect". We consider below
whether the opportunity should be taken in this legislation to
write the judicially implied safeguards into the statutory framework
so that the law is clear on its face and there is no room for
doubt about the safeguards which exist to ensure that restraint
orders are only used where necessary and proportionate. (Paragraph
1.15)
7. We are puzzled
by this response, which is based on a misunderstanding of our
questions. Section 3 of the Human Rights Act requires all legislation
to be interpreted compatibly with Convention rights so far as
it is possible to do so, and this makes it unnecessary for any
Bill to include an express requirement to the same effect. Neither
we nor our predecessors has ever recommended that a Bill be amended
to include an express requirement that it be interpreted in accordance
with the ECHR, and nothing in the questions asked by us in our
letter suggests that we had this in mind. (Paragraph 1.18)
8. In our view the
Bill provides an opportunity to bring greater legal certainty
to the legal regime governing the proceeds of crime by inserting
into the statutory framework express language which would give
clear effect to the judgment of the Supreme Court in Waya. We
recommend that the Bill be amended to give clear statutory force
to the qualification on the duty to make a confiscation order
that has been "read in" to the POCA by the Supreme Court.
The following amendment would give effect to this recommendation:
(Paragraph 1.23)
9. We look forward
to being informed about the outcome of this review and expect
the Government to make clear to Parliament precisely how it proposes
to respond to the Supreme Court's judgment in Ahmad. (Paragraph
1.25)
10. We accept the
Government's explanation in its supplemental ECHR memorandum that
its amendment is compatible with the privilege against self-incrimination
in Article 6 ECHR in light of the express provision that no information
given by a person under the new provision is admissible in evidence
in proceedings against that person for an offence. (Paragraph
1.27)
Computer misuse offence (Part 2, clause 40)
11. We regard as highly
significant the fact that the Government is not aware of any other
criminal offences which have "damage to the environment",
"damage to the economy" or "damage to national
security" as an ingredient of the offence. The use of such
broad concepts without further definition in other statutory contexts
is one thing but, as the Government itself acknowledges, it is
quite another in the context of criminal sanctions. Legal certainty
requires that criminal offences are precisely defined so that
individuals know how to avoid such sanctions. Vagueness is not
permissible in the definition of criminal offences. (Paragraph
1.35)
12. We do not doubt
the need to ensure that the criminal law provides adequate protection
against cyber-attacks on critical infrastructure. We doubt, however,
whether the concepts of "damage to the environment",
"damage to the economy" or "damage to national
security" are sufficiently certain in their meaning to justify
their inclusion as an ingredient of a criminal offence carrying
maximum sentences of 14 years and life imprisonment. The broad
and vague definition of the new offence of computer misuse appears
to be without precedent, and the Bill therefore appears to cross
a significant line by using these unsatisfactory concepts in the
definition of a serious criminal offence carrying a lengthy sentence.
We recommend that the Bill be amended to remove these particular
elements of the new computer hacking offence. (Paragraph 1.38)
Participating in the activities of an organised
crime group (Part 3, clause 44)
13. We welcome the
Government's preparedness to address concerns about the legal
uncertainty caused by the breadth of the offence as currently
drafted. However, we are not persuaded that the change from "reasonable
cause to suspect" to "reasonably suspects" goes
far enough to meet those concerns. We recommend that the Bill
be amended to raise the threshold of the mens rea required above
either "reasonable cause to suspect" (in the Bill as
it currently stands) or "reasonably suspects" (as proposed
in the Government's amendment), to "reasonably believes".
This is a higher threshold, as the Government acknowledges in
clause 11 of the Bill where it is reducing the threshold test
for restraint orders from "reasonable cause to believe"
to "reasonable grounds to suspect", and it would therefore
go some way towards reducing the scope of this new criminal offence.
(Paragraph 1.45)
14. We also recommend
a probing amendment which would provide for a general defence
to be available where the defendant has acted reasonably in all
the circumstances, to provide Parliament with the opportunity
to explore in more detail the Government's reasons for rejecting
the argument for a wider defence than the Bill currently provides.
(Paragraph 1.46)
Seizure and forfeiture of drug-cutting agents
(Part 4)
15. We welcome the
Government's clarification of its intention, in the light of which
we are satisfied that the safeguards surrounding the proposed
new powers are adequate. We also welcome the Government's amendments
to Part 4 which would require notice to be given both to the person
from whom the substance was seized and, if different, to the person
to whom the substance belongs, which improve the procedural safeguards
against the unnecessary or disproportionate use of these powers.
(Paragraph 1.50)
Protection of children (Part 5)
16. We are satisfied
that the Government is legally correct that cruelty causing psychological
harm to a child is already a criminal offence under the current
section 1 of the Children and Young Persons Act 1933. Although
there is only a slight evidential basis for the view that the
scope of the current law is misunderstood, the evidence suggesting
that many police officers and others may not appreciate that the
current offence covers psychological harm is nonetheless particularly
significant and does call into question whether the UK is adequately
fulfilling its positive obligation to protect children from such
harm. For this reason, we welcome the clarification of the law.
(Paragraph 1.57)
17. The relevant guidance
to front-line professionals will be key in ensuring that the requirements
of legal certainty and proportionality are met when the amendments
to the offence come into force. We welcome the Government's commitment
to liaise with the Department for Education, the Crown Prosecution
Service and the police about the changes that may be necessary
to ensure that the amended offence is properly understood. We
stress the need for effective cross-Government coordination on
this issue to ensure that guidance is both understood and applied
consistently across all departments and agencies. We also recommend
that the Government consults widely with civil society on drafts
of the relevant guidance, including with organisations which aim
to enable children to be raised safely within their families and
to avoid unnecessary removal of children into care. (Paragraph
1.60)
18. We are not persuaded
by the Government's justification for continuing to exclude 16
and 17 year olds from the protection of the child cruelty offence.
The fact that a criminal offence protects those under the age
of 18 does not mean that the offence cannot be committed by a
person who is also under 18. In our view, it would be possible
in principle to extend the scope of protection provided by the
offence to those under 18 whilst preserving the possibility that
those over 16 can commit the offence. This provision is the latest
in a series of issues which have arisen in different contexts
raising the wider question of the lack of a consistent legal definition
of the age of a child in the UK, and we call on the Government
to review this area of law. (Paragraph 1.62)
19. Based on the information
provided by the Government, the creation of a new offence to criminalise
the possession of "paedophile manuals" appears to be
a necessary and proportionate measure in order to fulfil the positive
obligation to protect children from harm. (Paragraph 1.64)
20. We welcome the
proposed amendment to the Female Genital Mutilation Act 2003 as
a human rights enhancing measure, which furthers the Government's
positive obligation to protect women and girls from FGM. (Paragraph
1.66)
Preparation or Training Abroad for Terrorism (Part
6, clause 68)
21. Extending the
territorial reach of very broadly worded criminal offences has
obvious implications for those who have legitimate reasons for
travelling to areas of the world affected by armed conflict—for
example to visit family, to deliver humanitarian aid, or simply
on business. We are therefore surprised that the Government's
ECHR memorandum does not consider the human rights implications
of these significant provisions. (Paragraph 1.69)
22. However, despite
the lack of concrete evidence in the form of actual cases that
cannot be prosecuted, we find the Government's argument that there
is a potential gap in the law plausible, and we therefore do not
oppose in principle the extension of extraterritorial jurisdiction
over these offences. We are particularly influenced by the Minister's
statement during the Bill's Committee stage in the House of Lords,
in response to a question about whether the Government had consulted
the Director of Public Prosecutions, that the Government has worked
closely with law enforcement partners, including the Crown Prosecution
Service, in developing the measure, and that those partners fully
support it and have suggested that it will be operationally useful.
(Paragraph 1.77)
23. The episode of
Moazzam Begg's collapsed prosecution may demonstrate some of the
difficulties involved in using the criminal law in relation to
alleged terrorist activities abroad, and the legal uncertainty
which is inherent in such a broad definition of terrorism when
applied to such rapidly moving political events. (Paragraph 1.80)
24. We are also concerned
that the extension of extra-territorial jurisdiction over these
offences may give rise to a number of difficulties in practice
which may make it difficult to bring such prosecutions. (Paragraph
1.81)
25. In light of the
Minister's clear assurance about the Government's assessment that
the measure will be operationally useful and lead to prosecutions
which cannot currently be brought, we do not oppose the inclusion
of the provision extending extra-territorial jurisdiction over
terrorism offences in the Bill. However, with reference to the
various concerns expressed about the legal certainty, proportionality
and desirability of doing so, we recommend that arrangements are
made to report on and monitor the number of prosecutions brought
as a result of this change in the law and the extent to which
giving extra-territorial effect to the offences in question proves
to be as operationally useful as the Government currently anticipates.
(Paragraph 1.84)
Criminal Justice and Courts Bill
Information provided by the Department
26. While we regret
that the Government has not accepted any of our recommendations
in relation to this Bill, and we remain concerned about the Government's
willingness to conduct UNCRC compatibility assessments prior to
a Bill's introduction, we commend the Ministry of Justice for
its approach to providing us with the information we need to perform
our function of scrutinising legislation for ECHR compatibility,
which has continued to be in keeping with our recommendations
for best practice. (Paragraph 2.7)
Review of whole life orders (clauses 2, 3 and
26)
27. The amendment
we recommended is in our view even more necessary than it was
at the time of our first Report, in light of the new provision
introduced by the Government to make a whole life order the usual
term of imprisonment for murder of a police or prison officer,
which is likely to lead to more whole life orders being imposed.
We also draw to Parliament's attention the fact that, since our
first Report on the Bill, a very recent judgment of the European
Court of Human Rights on whole life orders has come to our attention
which clearly reinforces our reasoning in that Report about the
need for more specific details about the review mechanism that
is available in UK law. In a case against Hungary, the European
Court said: (Paragraph 2.11)
28. According to the
principle of subsidiarity, which is an inherent part of the ECHR's
regime following an adverse judgment by the Court, it is the national
authorities, including Parliament, who have the primary responsibility
to consider, discuss and decide precisely how to respond to such
a judgment, subject to the supervision of the Committee of Ministers.
We therefore expect the Committee of Ministers to be informed
about any relevant parliamentary consideration of the issue, especially
by Parliament's own human rights committee. (Paragraph 2.13)
29. We recommend that
the Government make clear at the earliest opportunity whether,
and if so how, it is proposing to amend the relevant Prison Service
Order in light of the Vinter judgment. (Paragraph 2.14)
30. The issue of review
of whole life orders having been extensively debated during the
Bill's Committee stage, there is little to be gained from tabling
another amendment to the same or similar effect at Report stage.
We remain of the view that Parliament could remove the ongoing
legal uncertainty about the availability of an adequate mechanism
for the review of a whole life order by a relatively simple amendment
of the existing statutory framework, but to become law that would
require the Government's support which will clearly not be forthcoming.
Notwithstanding the Government's commitment to the principle of
subsidiarity, the matter will now have to be decided by the Committee
of Ministers in its supervision of the UK's response to the Vinter
judgment, and the Court in its judgment in the pending case of
Hutchinson v UK. We expect the Government to bring to the attention
of the Committee of Ministers in its next Action Report, and to
the Court in its submissions in Hutchinson, the relevant parts
of our Reports on this issue and the relevant parliamentary debates
on the statutory amendment that we recommended. (Paragraph 2.15)
Mandatory sentencing for possession of a knife
(clause 27)
31. We are satisfied
that, for the purposes of assessing the compatibility of the provision
with the requirements of human rights law, there appears to be
sufficient judicial discretion in relation to the proposed mandatory
sentencing provision, and we therefore accept the Government's
explanation of its compatibility with the right to liberty.
(Paragraph 2.19)
32. However, we regret
that the Government did not provide any further information to
explain the justifications for the potential differential impacts
that it has identified on black offenders and offenders aged 40
to 49. (Paragraph 2.21)
Use of force on children in secure colleges (Part
2 and Schedule 6)
33. We welcome the
Government's unequivocal acceptance that any use of force for
the purposes of disciplining and punishing is prohibited; that
force should only ever be used as a last resort; and that the
minimum amount of force should be used for the minimum time possible,
and subject to strict conditions and safeguards. We are disappointed,
however, that the Government has so far refused to amend the Bill
to make this clear on the face of the Bill and to remove the legal
uncertainty that would be created by the wording of the Bill as
it currently stands, which expressly enables the making of secure
college rules which authorise a secure college custody officer
to use reasonable force where necessary to ensure good order and
discipline. (Paragraph 2.28)
34. We are concerned
by the vagueness of the Government's references to "maintaining
a stable environment" and protecting the "welfare"
of the child and others as permissible justifications for the
use of force. The law is clear that the use of force on children
can only ever be justified in order to protect the child or others
from harm, and can never be justified for the purposes of good
order and discipline. We recommend that the Bill be amended to
make this absolutely clear on the face of the legislation. (Paragraph
2.29)
Striking out personal injury claims involving
fundamental dishonesty (clause 49)
35. We welcome the
Government's clarification that it intends the courts to retain
the flexibility to apply the provisions "fairly and proportionately"
in the particular circumstances of an individual case. We accept
the Government's analysis of the compatibility of the clause with
the right to peaceful enjoyment of possessions in Article 1 Protocol
1 in light of the Government's clarification of the purpose of
the judicial discretion expressly preserved by clause 49(2). (Paragraph
2.35)
36. In our view, the
Bill's explicit recognition, in clause 49(7), of the need to avoid
double punishment is strongly indicative of the quasi-criminal
nature of the sanction imposed by the dismissal of the claim.
The criminal standard of proof (beyond reasonable doubt), and
not the civil standard (balance of probabilities), should therefore
apply to the question of whether the claimant has been fundamentally
dishonest and we recommend that the Bill be amended accordingly.
The following amendment would give effect to this recommendation:
(Paragraph 2.38)
Revenge pornography
37. We welcome the
Government's commitment to giving further consideration to the
need for specific legislation in order to provide better protection
for the privacy of victims of the emerging practice of 'revenge
pornography'. We agree with the Government that this requires
detailed and careful consideration, and we welcome the Minister's
assurance that we will be provided with the Government's analysis
of the human rights implications of any new offence in due course.
(Paragraph 2.41)
38. We welcome the
removal of these provisions from the Bill and commend the former
Attorney General for his willingness to listen to and act on reasoned
concerns about the human rights compatibility of the provisions.
(Paragraph 2.44)
Judicial review (Part 4)
39. The amendments
to clause 70 that we recommended in our Report on judicial review
to make it reflect the current approach of the courts have been
tabled by Lord Pannick, Lord Woolf, Lord Carlile and Lord Beecham
and we support those amendments for the reasons we gave in our
earlier Report on Judicial Review. (Paragraph 2.50)
40. We do not agree
with the Government that the clause as currently drafted leaves
the court with a discretion to decide whether or not to make an
order for costs against an intervener according to what the interests
of justice require. The Bill as currently drafted imposes a statutory
duty on courts to order an intervener to pay the costs incurred
by other parties, unless there are "exceptional circumstances"
that make it inappropriate to do so. (Paragraph 2.53)
41. We support the
amendment to clause 73 tabled by Lord Pannick, which would achieve
the objective of our original recommendation by restoring the
judicial discretion which currently exists. (Paragraph 2.56)
42. We remain of the
view expressed in our Report on judicial review that restricting
the availability of costs-capping orders to cases in which permission
has been granted would be a disincentive to meritorious public
interest challenges being brought, and we maintain our recommendation
that the Bill be amended to remove this restriction. (Paragraph
2.60)
43. For the reasons
explained above we support Lord Pannick's amendment removing clause
74(3) from the Bill, which would preserve the court's current
power to make a costs-capping order at any stage of judicial review
proceedings, including before permission is granted. (Paragraph
2.61)
44. We recommended
that the relevant provisions of the Bill which give the Lord Chancellor
the power to redefine public interest proceedings be deleted.
Lord Pannick has tabled an amendment which would do precisely
that and we support that amendment. (Paragraph 2.65)
45. We welcome the
Government's clarification of the intention behind the mandatory
cross-cap provision in the Bill. In particular we welcome the
Government's acceptance that the relevant principle is proportionate
protection for both parties, and that judicial discretion remains
to set the cross-cap at a different level from the cap on the
costs which can be recovered from the defendant, to reflect any
imbalance in the parties' financial position. This clarification
makes it unnecessary to proceed with the amendment that we previously
recommended to this provision of the Bill. (Paragraph 2.68)
Armed Forces (Service Complaints and Financial
Assistance) Bill
Background
46. We welcome the
Bill as a significant human rights enhancing measure. (Paragraph
3.4)
Information provided by the Department
47. We commend the
Ministry of Defence for the exemplary way in which it has assisted
us in our human rights scrutiny of this Bill. (Paragraph 3.8)
The independence of the Service Complaints Ombudsman
(clause 1)
48. The Government's
response to our questions focuses more on whether there is likely
to be actual interference with the Ombudsman's independence in
practice, rather than the appearance of independence. Our work
in relation to national human rights institutions, including most
recently the reform of the Office of the Children's Commissioner,
demonstrates the importance of the appearance of independence
and of clear, legally enshrined institutional guarantees of independence
to provide the necessary public confidence in the independence
of the particular office holder. Safeguards for independence
which are left to be "agreed" between the office holder
and the Secretary of State and/or the Armed Forces, are not, by
their very nature, "guarantees" of independence. Given
that one of the purposes of the Bill is to increase the independence
of the Ombudsman, in part in response to concerns about public
confidence, we recommend that the Bill be amended to increase
the appearance of independence of the Ombudsman. (Paragraph 3.12)
Redress of service complaints (clause 2)
49. We accept that
the Government is, strictly speaking, correct that the absence
of regulations enabling the appointment of a wholly independent
service complaint panel does not render the redress framework
incompatible with Article 6 ECHR. However, in our view, the continued
absence of such regulations does carry the risk of breaches of
Article 6 arising in individual cases, because of the likely delay
that would be involved in establishing an independent panel to
determine the complaint in a case (such as Crompton) where Article
6 clearly applied. Since there currently appears to be no power
to empanel a wholly independent panel (as opposed to a panel with
an independent element), it would be necessary for the Secretary
of State to make such regulations first before such a panel could
be convened, which will inevitably delay the determination of
the complaint. We recommend that, in order to minimise the risk
of breaches of the right to a fair hearing in future cases where
the resolution of a service complaint determines a civil right
within the meaning of Article 6 ECHR, the Minister undertake to
make, within a specified time, the necessary regulations enabling
the appointment of a wholly independent panel. (Paragraph 3.16)
50. We accept that
the Government is, strictly speaking, correct that the absence
of regulations enabling the appointment of a wholly independent
service complaint panel does not render the redress framework
incompatible with Article 6 ECHR. However, in our view, the continued
absence of such regulations does carry the risk of breaches of
Article 6 arising in individual cases, because of the likely delay
that would be involved in establishing an independent panel to
determine the complaint in a case (such as Crompton) where Article
6 clearly applied. Since there currently appears to be no power
to empanel a wholly independent panel (as opposed to a panel with
an independent element), it would be necessary for the Secretary
of State to make such regulations first before such a panel could
be convened, which will inevitably delay the determination of
the complaint. We recommend that, in order to minimise the risk
of breaches of the right to a fair hearing in future cases where
the resolution of a service complaint determines a civil right
within the meaning of Article 6 ECHR, the Minister undertake to
make, within a specified time, the necessary regulations enabling
the appointment of a wholly independent panel. (Paragraph 3.16)
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