Prisons and Courts Bill 2017
House of Commons
Second Reading
Monday 20 March
Advice for Parliamentarians
For more information, please contact:
Parliamentary lead:
Shelley Hopkinson
Tel: 0207832 7845
Legalleads:
Naomi Lumsdaine
Tel: 020 7832 7841
Sarfraz Khan
Tel: 01618298414
Introduction
This briefing provides advice for Parliamentarians on Parts 1 and 2 of the Prisons and Courts Bill 2017. The Equality and Human Rights Commission is Great Britain’s accredited ‘A status’ National Human Rights Institute (NHRI) and National Equality Body. Section 11 of the Equality Act 2006 sets out the Commission’s power to provide advice and recommendations on the law and proposed changes to the law.
The issues we identifyhave implications for Article 2 (the right to life), Article 3 (freedom from torture) and Article 6 (right to a fair trial)under the European Convention of Human Rights (ECHR). The Bill also presents a further opportunity to address the barrier to access to justice resulting from the imposition of Employment Tribunal fees.
Part 1 – Prisons
Prisoners are particularly vulnerable to human rights breaches asall aspects of their lives are controlled by the state.The Commission welcomes Clause 1 (2), which for the first time creates a statutory purpose for prisons. The purpose includes reform, preparing prisoners for life outside, rehabilitation and maintaining a safe and secure environment. This clarifies that the punitive function of prisons is limited to deprivation of liberty and more closely reflects human rights standards, which consistently recognise that prisons must keep prisoners safe and promote their reintegration into society. This statutory purpose should guide the development - and interpretation - of prison policies and secondary legislation.
Annual Reports by the Secretary of State
Currently, the Prison Act 1952 requires the Secretary of State to issue (and lay before Parliament)an annual report on every prison. This includes: a statement on accommodation; numbers of prisoners; work done by prisoners; and a statement of punishments inflicted. Clause 1(3) of this Bill would amend the Actto require the Secretary of State to issue an annual report collectively for prisons setting out how prisonsare meeting the purpose in Clause 1. In order for this report to hold the Secretary of State to account for compliance with equality[1] and human rights obligations, it should contain data about each prison’s performance on, for example, the use of force, injuries, violence, self-harm and deaths in custody. Such data should be disaggregated by protected characteristic, as appropriate.
Prisons and Probation Ombudsman
Statutory footing for the Ombudsman
Effective independent monitoring mechanisms are vital in prisons.The Commission welcomes Clause 4, which places the Ombudsman on a statutory footing. Clauses 12 to 14 give the Ombudsman enhancedpowersto enter premises and require information in carrying out investigations, which is welcome.
In addition, we recommend that either the Secretary of State isgiven a duty to ensure prisons implement recommendations from the Ombudsman, or that the Ombudsman is granted enforcement powers.Our inquiry into deaths in detention of adults with mental health conditions[2] highlighted that some prison establishments do not fully implement recommendations made by the Ombudsman. Her Majesty’s Chief Inspector of Prisons (HMCIP) has also identified this problem, andthe Ombudsman’smost recent annual report[3] highlighted the difficulty prisons have sustaining his recommendations. The Ombudsman currently hasno powers to address this.
Investigations of deaths following release
Clause 6 provides that the Ombudsman may carry out an investigation into a death where they have ‘reason to believe that the person’s death may in some way be connected with’ his or her detention or residence in an institution within the Ombudsman’s remit.This includes prisons, Secure Training Centres and immigration detention facilities. Where the Ombudsman has ‘reason to believe’, we recommend that an investigation should be mandatory rather thandiscretionary. This will help to ensure lessons to prevent future deaths are learnt, as required by Article 2 of the ECHR.
The Commission’s research[4]has highlighted the high levels of mortality for thoseleaving state detention.Between 2010 and 2015 there were 3,196 deaths of people under probation supervision, of which72 people died of non-natural causes within 28 days of release from prison. The period of greatest risk is seven or eight days following release.We therefore also recommend that all non-natural deaths within two weeks of release or residence at a relevant institution should be referred to the Prisons and Probation Ombudsman.
Not all deaths may come to the attention of the Ombudsman. For example, where an inquest takes place, following a non-natural death, there may be no indication that the person was under supervision. Our researchsuggests theneed for a provision addressing how the relevant authorities and the Ombudsman will be notified of such cases.
Investigations of complaints by the Ombudsman
Clause 9 provides powers for the Ombudsman to decide whether to investigate a complaint and, if so, the appropriate extent of the investigation and how it will be carried out. The Secretary of State maymake regulations about the types of complaints the Ombudsman can investigate. The Ombudsman has an important role in investigating matters relating to equality and human rights, so we recommend that the Bill shouldclarifythat the Ombudsman’s remit includesconsiderations of discrimination or a breach of human rights. The House of Lords Select Committee on Disability and the Equality Act 2010[5]recently recommended that securing compliance with the Equality Act should be a specific statutory duty for ombudsman schemes.
Part 2 – Procedures in civil, family and criminal matters
Online procedure: the civil and family courts and the tribunals
Barriers to access to justice
Clause37 includes a provision to make rules for online procedures in courts and tribunals.Clause 38 enables the Lord Chancellor to prescribe by regulationscircumstances in whicha person maychoose whether or not to initiate online proceedings.
We recognise the potential benefits of online procedures. However, for some people these procedures would present particular barriers which may compromise their access to justice. In our view, the regulations under Clause 38 must address these barriers, particularlyfor disabled people, people whose first language is not English, and those without access to adequate broadband. The focus must be on solutions which promote equal access to justice, based around users’ needs, rather than solely on ensuring equal digital access. The Commission would welcome the opportunity to provide expert advice on this issue.
Online convictions
The Commission is concerned about the risk that some defendants may plead guilty without fully understanding the implications of online proceedings, and without seeking appropriate legal advice. Removing judicial officers from the conviction process is a significant step that potentially impacts defendants’ rights under Article 6 of the ECHR. The opportunity to appeal against an online conviction and the power of courts to set aside an unjust conviction are necessary safeguards. However, access to good quality legal advice is vitalat the earliest stages of the process, providing sufficient time for individuals who have elected to plead guilty to reconsider and change initial decisions. This is particularly important for people who may have difficulty understanding the process, the consequences of making a guilty plea, and the choices available to them.
The Commission recommends that the Government prepare a detailed equality impact assessment and a human rights memorandum setting out its analysis of the Article 6 implications of this measure. This should include: consideration of additional safeguards; guidance on how prosecutors should exercise their discretion to offer online convictions/penalties; and clarification of the role of the courts in ensuring the new system complies with Article 6 ECHR obligations.
Employment Tribunal Fees and time limits
The Bill makes provision concerning access to the courts and tribunals, butit does not address key barriers affecting access to justice in the Employment Tribunals (ETs).
The Ministry of Justice’s (MoJ) recent review of the introduction of ET fees[6]acknowledges that the stark fall in the volumes of claims brought to the ETs following the introduction of fees has been much greater than originally estimated.Following the introduction of ET fees, the total number of claims fell by over 60%.MoJfigures indicated that around 8,000 claimants in 2014/15 did not bring a claim because they said they could not afford the fee. This is likely to be an underestimate, given that it does not include individuals who accept a low settlement amount (through early conciliation), orwithdraw claims because they cannot afford the fees.A review by the Commission[7] reported a reduction in claims of 91% for sex discrimination, 75% for equal pay, and 90% for working time, between 2013/14 and 2014/15.We are concerned that barriers to individuals seeking to protect their workplace rights in tribunals may have significant implications for the maintenance of lawful and fair employment practices.
A further barrier to justice is the time-limit for bringing an Employment Tribunal claim. We have recommended that it should be increased from three to six months in cases involving pregnancy and maternity discrimination, in line with other employment claims such as redundancy and equal pay. These points should be addressed in the Bill.
Further progressive measures
The Commission has previously raised concerns about provisions in the Criminal Justice and Courts Act 2015, which permit the use of reasonable force on young offenders in Secure Colleges where necessary to ensure good order and discipline[8]. The authorisation of use of force against children for this broad purpose may not be compatible with Article 3 (freedom from torture) and Article 8 (right to family life) of the ECHR.[9] In line with the Government’s purpose of strengthening safety for detainees in the criminal justice system in this Bill, this provision should be amended.
About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. It contributes to making and keeping Britain a fair society in which everyone, regardless of background, has an equal opportunity to fulfil their potential. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an ‘A status’ National Human Rights Institution. Find out more about the Commission’s work at:
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[1]Including the public sector equality duty in section 149 of the Equality Act 2010 (PSED).
[2]Preventing deaths in detention of adults with mental health conditions. EHRC, 2015.
[3]Annual Report 2015–2016. Prisons and Probation Ombudsman.
[4]Non-natural deaths following prison and police custody: Data and practice issues. EHRC, 2016.
[5]House of Lords Select Committee on the Equality Act 2010 and Disability. Report 2015-16, para 462
[6]Review of the introduction of fees in the Employment Tribunals: Consultation on proposals for reform
MoJ, January 2017.
[7]Equality, human rights and access to civil law justice: A literature review, EHRC. October 2015
[8] Schedule 10, para’s 8 and 10, Criminal Justice and Courts Act 2015, available at:
[9] EHRC, Briefing in support of amendment relating to use of physical restraint in secure colleges, October 2014.