Legislative Scrutiny: (1) Criminal Justice and Courts Bill and (2) Deregulation Bill
11 Jun 2014 03:13 PM
In a new Report, the Joint
Committee on Human Rights welcomes the provision in the Criminal Courts and
Justice Bill, carried over from the last Session of this Parliament, which
extends the current offence of possession of extreme pornography to include
possession of pornographic images depicting rape and other non-consensual
sexual penetration. The Committee considers this provision to be human rights
enhancing, given the evidence of cultural harm done by such pornography, and
acknowledges the strong justification provided by the Government and others for
this proportionate restriction on individual rights.
In the Report, the Committee
also concludes that there is insufficient certainty surrounding the legal
position of “whole life orders” notwithstanding some welcome
clarification by the Court of Appeal in the McLoughlin case. The Committee
suggests a probing amendment to the Bill to give Parliament the opportunity to
debate the desirability of amending the statutory framework for whole life
orders to put beyond any legal doubt the availability of an appropriate review
mechanism. This would be in accordance with the principle of subsidiarity,
under which it is for national authorities to decide how to give detailed
effect to Convention rights in their national law.
Criminal Justice and Courts
Bill
With regard to the Criminal
Justice and Courts Bill, the Committee:
- welcomes the Government’s
acknowledgment of the importance of international standards on the rights of
children in detention, but finds no evidence that the relevant standards were
considered by the government before publication of the Bill; recommends that
equality impact assessments be carried out on its proposed secure college
policy and made available to Parliament at the earliest
opportunity;
- urges the Government to provide
further information in relation to SEN provision in secure colleges;
and
- recommends that 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.
The Committee reiterates its
conclusions with regard to the reform of judicial review as set out in its
earlier Report on that subject; it also requests more information about the
justification for and likely impact of the criminal court charge proposed in
the Bill, and requests that the Government monitor its impact when introduced.
In addition, it calls for publication at the earliest opportunity of the draft
regulations relating to the changes to the law of contempt of court and juror
misconduct proposed in the Bill 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. The Committee further
recommends that the Bill be amended to make the Code of Practice to be issued
by the Secretary of State relating to the processing of data gathered in the
course of monitoring people following their release on licence subject to some
form of parliamentary procedure, in order to ensure that Parliament has an
opportunity to scrutinise the adequacy of the relevant
safeguards.
Deregulation
Bill
The Committee also reports on
the Deregulation Bill. It expresses its concern that application of the
economic growth duty in that Bill to the Equality and Human Rights Commission
(EHRC) risks the possibility of that body’s UN accredited “A”
status being downgraded and could put the UK in breach of its obligations under
EU equality law. It therefore recommends that this duty not be applied to
the EHRC unless that body is satisfied that it can be done in a way that will
not restrict its independence. The Committee further recommends that the power
of employment tribunals to make wider recommendations in discrimination cases
– the removal of which is proposed by the Bill – should be
retained.
Dr
Hywel Francis MP, Chair of the Committee, said:
“We are pleased to see the
action that the Government is taking on extreme pornography, particularly as,
as we are seeing in our current inquiry into violence against women and girls,
such pornography contributes to a culture in which violence against women is
condoned. However, some of the provisions of the Criminal Justice and Courts
Bill cause us concern. We are again disappointed that the Government has not
examined the provisions of the Bill against all the relevant international
standards relating to the rights of children before publication. Perhaps as a
result there are a number of issues relating to secure colleges in particular
that need examination and amendment, including making clear that force cannot
be used on children to secure “good order and discipline”. We also
recommend that Parliament takes the opportunity presented by the Bill to design
the detail of the review mechanism that exists for offenders who are given a
whole life order, rather than leave this to be done by the
courts.
With regard to the Deregulation
Bill, we believe that it should not impose the economic growth duty on the EHRC
unless the Commission is certain that it will not undermine its independence.
The independence of all of our national human rights institutions is of great
significance both to the role they perform here, but also internationally, and
to the UK’s human rights standing abroad.”