APPENDIX 2: GOVERNMENT RESPONSE TO 16TH
REPORT
I write in response to the Constitution Committee's
Report of 2nd July 2009 in which the Committee sets out its views
on a number of provisions within the Policing and Crime Bill.
The Government is grateful for the views of the Committee and
we have considered them carefully over the summer recess.
We have identified five substantive recommendations
and conclusions in the Constitution Committee report on the Policing
and Crime Bill. We have set out below our response to each of
the issues raised.
Preventative injunctions
1. We reiterate our general concern about the
trend of addressing problems associated with criminal activity
and other anti-social behaviour through preventative injunctions.
(Paragraph 3)
The Government understands that the Committee is
concerned about a new preventative injunction. The Government
is very clear that these civil injunctions are not being introduced
as an alternative to prosecuting gang- related violence, when
such prosecutions are available. However, the granting of injunctions
in Birmingham prior to the Court of Appeal decision in Birmingham
City Council v Shafi and Ellis showed in some cases an acceptance
by local authorities and courts that there was a need for immediate
injunctive relief in cases which involved gang-related violence.
The injunctions provided a flexible, preventive tool which was
able to provide immediate relief from a particular problem without
criminalising young people. It was particularly important to the
community in Birmingham that these injunctions were flexible and
could be granted for a short period of time (there being no minimum
term) and that any breach did not result in a criminal record.
Some mothers of gang members even gave evidence in support of
an injunction as this did not involve the criminal justice system
in any way. Evidence from the use of these injunctions in Birmingham
showed that incidents of serious gang-related crime fell (Col
590, PBC, 26.02.09).
Where prosecution is possible, the use of criminal
law to deal with gang- related violence will always be the preferred
option. These injunctions will be aimed at those against whom,
for a variety of reasons, criminal proceedings have not been brought.
It may be that there is some evidence of criminal behaviour, but
that either the investigation is still on-going or that the CPS
has not yet decided whether to charge an individual or that a
decision not to charge has been taken. In all these circumstances,
although the criminal justice system is the preferred option,
the Government recognises that injunctions can offer the immediate
relief required as well as the opportunity to offer an escape
route from further violent behaviour. We know that some gangs
are sophisticated in their criminal behaviour, they are practised
in destroying all evidence that could implicate them, and that
they systematically intimidate witnesses. The civil justice system
complements the criminal justice system as it can be an effective
driver for change or prevention rather than delivering punishment;
the responsibility for which lies within the criminal justice
system. For all of these reasons we believe that an injunction
provides a first step to reducing gang behaviour while evidence
of criminality is sought.
Gang-related violence injunctions
2. We accept that preventative orders cover a
wide range of different situations, some of which have more serious
consequences than others. There may be some preventative orders
in respect of which the civil standard or a sliding-scale of the
standard of proof is appropriate. Gang- related violence injunctions
are, however, in the category of preventative orders with the
most serious consequences. We are therefore concerned that the
bill states expressly that the standard of proof is the civil
standard rather than the criminal standard. In our view minimum
considerations of due process should require the criminal standard
of proof ("beyond reasonable doubt") to be applied in
applications for gang-related violence injunctions. (Paragraph
9)
As stated in our above response where prosecution
is possible, the use of criminal law to deal with gang-related
violence will always be the preferred option. These injunctions
will be aimed at those against whom, for a variety of reasons,
criminal proceedings have not been brought.
The proposed injunction is a civil order and whilst
the Government acknowledges the serious nature of gang-related
violence we feel that the only appropriate burden of proof to
be applied is the civil balance of probabilities. We feel that
this is appropriate because the injunction will be granted in
the civil courts and any breach of which will be dealt with as
a civil contempt of court. The Government is satisfied that civil
court procedure adequately safeguards individuals' ECHR Article
6 rights.
Civil courts are well versed in using injunctions
to deal with allegations involving criminal or quasi-criminal
behaviour for example, housing disputes and domestic violence.
An allegation of criminal activity taking place is not enough
to put this injunction into the arena of the criminal justice
system. The Government is aware of the need to ensure that there
are adequate safeguards, especially bearing in mind the nature
of the requirements and prohibitions and the duration of the injunctions.
It is for these reasons that, in addition to the right to appeal,
express provision has been made allowing applications to discharge
or vary the injunction to be made by either party as well as enabling
the courts to set review hearings.
The Government has carefully considered both the
case of McCann and the subsequent House of Lords case of
Re B in which it was clarified that there is only one civil
standard of proof. Since it is not a criminal offence to breach
an injunction, the Government is content that the situation is
distinguished from that of ASBOs. These injunctions are not the
tool to be used for anti-social behaviour and therefore the Government
is satisfied that any overlap with ASBOs is minimal.
As previously highlighted, should there be proof
to the criminal standard of criminal activities, the Government
would expect criminal proceedings to be considered. However, given
these are civil injunctions granted in civil courts, breach of
which is a civil contempt of court, the Government is content
that the balance of probabilities is the appropriate burden of
proof.
Retention and destruction of samples
3. Clause 96 of the bill seeks to amend the Police
and Criminal Evidence Act 1984 by inserting new powers for the
Secretary of State, by regulations, to "make provision as
to the retention, use and destruction of material". It is
in our view wholly unacceptable that the important matter of retention
of samples is to be dealt with by delegated legislation. The Government's
proposals as to how they intend to implement the Marper
judgment raise important and controversial questions, which the
House will want to debate fully. Clause 96, if agreed to, will
not allow that debate to happen. The principles governing samples
should be set out on the face of primary legislation to enable
Parliament to scrutinise them and, if needs be, to seek to amend
them. Unamendable delegated legislation will not provide a sufficient
opportunity for parliamentary oversight and control over the legal
framework for the Government's policy. (Paragraph 15)
We call on the Government to think again and bring
forward proposals in a separate bill to regulate the National
DNA Database. (Paragraph 16)
The Government has always acknowledged that this
important topic arouses strongly held views and that there was
a case for saying that the detail of the retention periods should
be set out in primary legislation. However, against that we had
to weigh the importance of responding to the European Court of
Human Rights judgment in S and Marper v United Kingdom within
a reasonable time frame. We judged that the approach taken in
the Policing and Crime Bill provided a sensible opportunity for
us to demonstrate we were committed to implementing the judgment,
to consult swiftly but thoroughly on the detail of the policy,
and for us to give Parliament an opportunity to approve this through
the affirmative resolution procedure.
We have however considered the Committee's views
on Clauses 96-98 over the summer, alongside the views expressed
by the JCHR, the DPRRC, members in both Houses and importantly,
the responses received to the Home Office Consultation Document
'Keeping the right people on the DNA database', published on 7
May 2009. While we remain committed to implementing the judgment
of the European Court of Human Rights at the earliest opportunity,
we accept the concerns raised by the Committee and other stakeholders
around the approach of making the necessary changes to the law
through an enabling power.
Given the strength of feeling on this issue and the
importance that we move forward with consensus on this issue we
therefore accept the view that this issue would be more appropriately
dealt with in primary legislation and have decided to invite Parliament
to remove clauses 96-98 from the Bill when it comes to consider
them in Committee in the Lords. We will then look to bring forward
appropriate measures which will place the detail of retention
periods on the face of primary legislation, allowing full debate
and scrutiny on the issue in both Houses, as soon as Parliamentary
time allows.
Clause 99: border controls
4. In the light of Lord West's explanation, we
are content that the proposal does not infringe constitutional
principle. That said, we remind the House that the new powers
are part of a package of changes that seek to integrate customs
and immigration functions of government. We have expressed some
concerns about features of this process in an earlier report (Part
1 of the Borders, Citizenship and Immigration Bill, 5th Report
of 2008-09, HL 41). It will be important to monitor these developments
to ensure that they do not impinge, whether inadvertently or otherwise,
on constitutional principles. (Paragraph 18)
The Government is pleased that the Committee is content
that the proposal does not infringe constitutional principle.
The measure is key to delivering improved border security as recommended
in the O'Donnell report on the UK's border arrangements. That
said, we acknowledge the concern expressed and will work closely
with the Crown Dependencies to ensure the arrangements do not
impinge on constitutional principles.
5. It is a matter of concern that there does not
appear to be in place a robust system for ensuring that the Crown
Dependencies, which are British Islands, are properly consulted
by departments of the United Kingdom Government in respect of
policy proposals that may have an impact on the rights of British
citizens living in those islands or the constitutional relationship
with the islands. The Ministry of Justice has overarching responsibility
for the Government's relations with the Crown Dependencies. We
recommend that the Ministry of Justice carries out a review of
the processes across Government for ensuring that the views of
the Crown Dependencies are sought during policymaking and legislative
drafting on proposals that may affect them. (Paragraph 26)
The Ministry of Justice is currently in the process
of developing and updating protocols for how consultation with
Crown Dependencies should be carried out. These will be circulated
to other government departments for departments to refer to when
consulting with the Crown Dependencies, through the appropriate
channels within the Ministry of Justice, on the extension of UK
regulations; UK primary legislation and international instruments
to the Crown Dependencies. The dissemination of these protocols
forms part of the ongoing work the Ministry of Justice is undertaking
to raise awareness across Government of the necessity of consulting
with the Crown Dependencies on any proposed policy—whether
it be UK legislation or international conventions or treaties
and complement the Cabinet Office Guide to Making Legislation
which states that if a department wishes its Bill to extend to
the Crown Dependencies it will need to seek the consent of the
Insular Authorities via the Ministry of Justice.
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