In pursuing the legal think tank’s objectives, Halsbury’s Law Exchange seeks to capture and distil the legal issues of the day; in particular, the issues behind the headlines. As a citadel of intellectual independence with no political or commercial agenda, Halsbury’s Law Exchange aims to debate these issues in a reasoned and coherent way in order to assess whether the law is fair or whether it needs to be changed.
Employment vetting: are we nearly there yet?
The employment vetting system has proved extremely controversial in recent years, for three main reasons. The first is its complexity. There are two different bodies involved: the Independent Safeguarding Authority (ISA), set up in 2006 following the Soham murders and the subsequent Bichard Inquiry; and the Criminal Records Bureau (CRB). The interaction between them, and their respective roles, are not well-understood. The second is the potential for the system to operate unfairly: CRB disclosures to prospective employers can include details of allegations that have not led to a criminal trial, or about non-criminal matters. And the third is the extensive reach of the ISA scheme. As originally enacted it would have required some 25% of the adult population to register for monitoring with the ISA.
Following the 2010 election the Coalition Government announced that it would review the whole area. The outcome of this work is seen in the Protection of Freedom Bill, published on 11th February 2011. This makes a number of changes, including the abolition of the controversial ISA monitoring provisions. But has the balance been struck in the right place between protecting individual privacy and safeguarding children and vulnerable adults?
There are still fundamental problems with how employment vetting operates. Individuals who have not been convicted of any offence will continue to face the prospect that allegations will be disclosed to their prospective employers, who will have to job of trying to evaluate material that has never been tested in court. Unscrupulous employers can still use enforced subject access to circumvent the vetting system. Meanwhile the growth of the internet makes the “right to be forgotten” harder to implement than ever before, and calls into question whether the concept of a spent conviction is still workable.
This White Paper tackles these intractable and controversial issues. It is intended to make a significant contribution to public debate as the Bill makes its way through Parliament.
This White Paper will look at what has happened in the UK so far in this area, as well as other jurisdictions; it will examine proposals to change UK law and advance some suitable conclusions for adoption to take us forwards.
In February 2010, Keir Starmer QC, the Director of Public Prosecutions, issued a policy for prosecutors that sets out the guidelines that must be followed for cases of assisting suicide. The publication of this policy arises from the decision of the Appellate Committee of the House of Lords in the Debbie Purdy case.
Clarification of the Crown Prosecution Service's methods in dealing with such cases has been needed following a number of high profile cases involving the disabled or terminally ill who have been unable to end their lives without assistance. Many of these cases involve the Dignitas Clinic, a centre for assisted suicide in Switzerland. While the CPS policy has not caused legislative change, it has brought clarity to how Law is administered. In brief, it enables those who assist others in their suicide to make an estimation of whether they might be prosecuted. The debate on assisted suicide has meanwhile continued.
In Germany, the position is that assisted suicide – not euthanasia – is not illegal. Assisted suicide is still of great concern in Germany, just as it is in the UK, both in the light of humanitarian issues and in the light of the abuses of the Third Reich. As well as examining the way the law of Germany regards this moral problem – within the context of its general law and the Constitution (Grundgesetz). The White Paper examines proposals to change the law further, discusses those changes in comparative terms, and suggests ways forward for the UK.
Does media access to family courts herald a new era of openness in family proceedings?
The new Children, Schools and Families Act contains provisions that extend access to what goes on in family proceedings. The key question is whether details of children’s lives published in the press, in print and online will cause significant harm to the children the system is in place to protect.
This White Paper will examine the implications of such a change.
Sovereign immunity: international crimes and sovereign debt
The doctrine of sovereign immunity provides that the sovereign or state is in many respects immune from both a civil claim and criminal prosecution – yet is this appropriate today, at a time when confidence in Public Officials and States has, at best, been challenged and at worst eroded?
Should serving high-ranking public officials be immune from proceedings relating to serious international crimes? Should "vulture funds" be able to buy sovereign debt at a steep discount and then aggressively use the court process to seek enforcement against state assets? Should States (Sovereign Wealth Funds) be able to amass and control vast wealth in third States without being subject to the jurisdiction of the local Courts?