On 19 December 2011, the Joint Committee on Human Rights (JCHR) published its legislative scrutiny Report on the Legal Aid, Sentencing and Punishment of Offenders Bill.
The Report deals with a number of significant human rights issues, including:
- The thoroughness of the Government’s human rights analysis
- The independence of the proposed Director of Legal Aid Case Work
- The lack of a right of appeal to an independent court or tribunal
- The availability of legal aid in cases of domestic violence
- Means-testing for legal advice and assistance in the police station
- The effect of changes to litigation funding on access to justice
- Indeterminate sentences
- Bans on foreign travel
The Committee regrets the fact that the Government has not provided Parliament with a full human rights memorandum which includes a detailed analysis of the Bill’s compatibility with the UK’s obligations under relevant international human rights treaties. Providing such information to Parliament strengthens the principle of subsidiarity: laws passed after detailed parliamentary scrutiny of their human rights compatibility are more likely to withstand subsequent judicial scrutiny.
The Committee is concerned by the lack of independence of the proposed Director of Legal Aid Case Work and calls on the Government to put in place a system for appealing the Director’s decisions to an independent court or tribunal. It is concerned that provision in the Bill for funding exceptional cases, where a failure to make the services available to a person would be a breach of their Convention rights or EU rights, is unlikely to make the right of access to justice practically effective. Many of the areas of law which are no longer in scope under the Bill will require a quick decision on the availability of legal services; and the Committee is concerned that the provision in the Bill for funding exceptional cases is not a sufficient guarantee against breaches of Convention rights.
While welcoming the Government’s intention to protect the right of access to Legal Aid for victims of domestic violence, the Committee expresses concern that the definitions used will not lead to practically effective access. It therefore calls on the Government to amend the Bill to use the ACPO definition of domestic violence, broaden the forms of evidence which are capable of establishing domestic violence has taken place, and remove the 12 month time limit on eligibility. However, the Committee welcomes the Government’s previous amendment of the Bill to extend eligibility for legal aid to cases of domestic violence where the victim is of insecure immigration status.
The Committee is also concerned that the introduction of means-testing for legal advice and assistance at the police station would hinder the effective exercise of the right of access to legal advice by an arrested and detained person and recommends that the power to introduce such means-testing by regulation be removed from the Bill.
On sentencing, the Committee welcomes the abolition of indeterminate IPP sentences, as this will make it less likely that prisoners will be detained in breach of their right to liberty under Article 5 ECHR. However, it considers that the Bill should also address the pressing issue of current IPP prisoners who have served the determinate part of their sentence, but remain in prison.
The Committee also welcomes the Government’s objective of increasing the use of community sentences in preference to imprisonment. However, it is concerned about the proposed extension of foreign travel prohibition requirements, which may interfere with an individual’s private and family life as well as their livelihood if foreign travel is necessary for their business. The Government has not demonstrated the necessity for such prohibitions. A lack of any link between a foreign travel prohibition order and the nature of the offence may also lead in practice to disproportionate interferences with those rights.
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