Legal Aid, Sentencing and Punishment of Offenders Bill report published
19 December 2011
The Joint Committee on Human Rights (JCHR) today publishes its legislative scrutiny Report on the Legal Aid, Sentencing and Punishment of Offenders Bill
- Report: Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill
- Bills before Parliament: Legal Aid, Sentencing and Punishment of Offenders Bill
- Joint Committee on Human Rights
Scope of the report
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
Bans on foreign travel
Government's human rights analysis
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.
Lack of independence
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.
Legal aid in cases of domestic violence
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.
Bans on foreign travel
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.
Comment from the Chair
Dr Hywel Francis MP, the Chair of the committee, said:
"Legal Aid is a vital safeguard of people's right to access justice. We are concerned that certain aspects of the Bill will undermine that right. While we welcome the Government's proposed amendments to enable victims of domestic violence to continue to obtain Legal Aid, we doubt that the Bill as drafted will achieve that aim. We are also concerned that the Government have not demonstrated that the proposed Director of Legal Aid Casework will be sufficiently independent to ensure fair access to Legal Aid in cases against the Government, in the absence of a right to appeal to an independent court or tribunal."