EHRC Briefing - Courts and Tribunals (Judiciary and Functions of Staff) Bill, 2nd Reading, 20 June 2018

Posted On: 
18th June 2018

This briefing identifies issues to be addressed that have implications for Article 6 (the right to a fair trial) under the European Convention of Human Rights, and are relevant to the requirements of the public sector equality duty under the Equality Act 2010. 

The Bill presents an opportunity to address the Government’s approach to reforming the courts system and to consider how it can ensure human rights compliance and equal access to justice.

Key recommendations set out in this briefing include:

  • Assessing the cumulative impact of the broader courts modernisation programme:
  • The provisions in the Bill, while relatively narrow, are part of a much wider programme of changes to the way courts work including how and where court hearings take place. The Government should undertake a cumulative impact assessment to ensure it understands the impact of those changes on court users (particularly those who may have different needs arising from characteristics protected under the Equality Act 2010) and to ensure the changes are compliant with human rights obligations.
  • Building a sound evidence base on the impact of proposed changes on court users with protected characteristics:
  • There is a lack of data about court users with protected characteristics. The Government should collect comprehensive data about court users to enable a robust assessment of the equality impact of the Bill and of the modernisation programme as a whole.
  • Ensuring the delegation of judicial functions to non-judicial staff in clause 3 of the Bill meets the needs of those with particular characteristics protected by the Equality Act 2010 and is Article 6 ECHR compliant:
  • While delegating some judicial functions may make the courts easier and more efficient for court users, the Government should clarify how it will ensure that decisions about which judicial functions to delegate and the authorisation of staff to carry out those functions will be made with due regard to the aims of the Public Sector Equality Duty and in particular to meeting the needs and removing barriers to court users with protected characteristics under the Equality Act 2010.

That a requirement for a right to a de novo review by a judge of any delegated decision should be included in the Bill to ensure compliance with the Article 6 ECHR requirement for decisions by an independent and impartial person.

The briefing is available in full here.