Martin Partington: Spotlight on the Justice System

In a statement issued by the Lord Chancellor at the end of March 2010, shortly before Parliament rose for the General Election Campaign, the Government indicated that is was engaged in another major set of structural changes to the institutional framework of the English legal system – namely merger of the Courts and Tribunals Services. There was also mention of changing the institutional context within which the Parole Board operates.

The statement conceded that these changes would require a great deal of further work before they could be implemented. The details are unlikely to be available for some time. Underlying the proposals, however, is a clear intention within the Ministry of Justice that it should start to make its contribution to the substantial efficiency savings that all politicians agree must be achieved as part of the overall strategy of getting Britain’s public finances into better shape.

The recent news that Baroness Scotland had been subject to a civil penalty for breach of immigration law raises the interesting and not straightforward question: what is a civil penalty?

In essence it is a mechanism for government departments and agencies to secure increased compliance with regulations without having to take cases to court – with all the accompanying challenges of proving a breach of regulations ‘beyond reasonable doubt’. It should be characterised as an aspect of administrative justice (chapter 6) rather than criminal justice.

Imposition of a civil penalty does not follow a criminal conviction; therefore it does not give the person on whom a civil penality has been served a criminal record.

Imposition of civil penalties has become an increasingly used part of the administrative justice system – example can be found not only in the context of immigration law, but also taxation, environmental pollution and many others. Use of civil penalities is wide-spread – not just in the UK.

The UK Border Agency lists employers issued with civil penalty notices. It may be interesting to see others, apart from Baroness Scotland, who have been the target of this mode of enforcement: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/listemployerspenalties/