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Consultations, Courts, Funding and legal aid, Immigration and asylum, Inquiries, Judicial review, Research, Social security and welfare benefits, Tribunals, UK Parliament, What's new

What’s new in administrative justice, August 2015

whatsnewParliament

The Justice Select Committee has announced an inquiry into the impact of the introduction of tribunal fees and enhanced court fees. The inquiry will look at how the increased fees have affected access to justice, and how they have affected the volume and quality of cases brought.

Members have been appointed to the new Select Committee on Women and Equalities. The Committee will be chaired by former Secretary of State for Women and Equalities, Maria Miller. The Committee’s first inquiry will look at transgender equality.

Cases

The High Court has ruled that the Exceptional Case Funding scheme is unlawful. Exceptional Case Funding was established to act as a safety net to mitigate the significant cuts to legal aid provided for in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It was intended to protect those whose fundamental rights would be breached in the absence of legal assistance. However, the Court concluded that it was not providing the safety net promised by Ministers and does not ensure that applicants’ human rights are not breached or are not likely to be breached. It also fails to provide for a right to appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.

The Supreme Court has ruled that restrictions on access to student loans for non-UK citizens and those without indefinite leave are disproportionate and cannot be justified. Under a change that took effect in 2012, in order to qualify for a loan for university tuition fees, a student must have been lawfully ordinarily resident in the UK for three years before the day the academic year begins (“the lawful residence criterion”); and be settled in the UK on that day (“the settlement criterion”). The effect of the settlement criterion is that all students with limited or discretionary leave to remain in the UK are ineligible for student loans. The case was brought by a young woman who has discretionary leave to remain in the UK and has received her entire education in the UK but is unable to take up the university places she has been offered because, due to her immigration status, she is not eligible for a student loan. Just for Kids Law intervened in the case. The Supreme Court declared that the restriction was a breach of rights under Article 14 ECHR read with Article 2 of the First Protocol of the European Convention on Human Rights.

The High Court has quashed the Data Retention and Investigatory Powers Act 2014 on the grounds that it is incompatible with the public’s right to respect for private life and communications and to the protection of personal data under Articles 7 and 8 of the EU Charter of Fundamental Rights. The effect of the ruling has been delayed until March 2016 to give the Government the opportunity to enact replacement legislation.

The Supreme Court has ruled that the segregation of two prisoners, who were serving sentences for serious terrorism offences, was not lawful after an initial 72 hour period. The basis for the ruling was that the decision to segregate beyond the initial period was not taken lawfully, due to a statutory requirement that such a decision be taken by the Secretary of State, rather than the prison Governor. The appellants’ claim that the procedure followed did not meet the requirements of Article 6 of the European Convention on Human Rights failed on the basis that prisoners do not have any precisely defined entitlement in this context, such as to require a hearing before an independent and impartial tribunal under Article 6.

Judicial Review

The Ministry of Justice has announced a consultation on funding reforms to judicial review. The consultation seeks views on the proposals for court and tribunal rules to set out that a declaration of funding sources is required on an application for permission; that details of third party funding need not be provided below a threshold of £1500; and that a more detailed picture of the applicant’s financial circumstances is required for a costs capping order. The deadline for responses is 15 September 2015.

Tribunals

Lord Justice Ryder has been appointed Senior President of Tribunals, the independent and statutory leader of the tribunal judiciary.

Welfare reform

The Social Security Advisory Committee has published a report on priorities for action on Universal Credit. The report looks at the use of benefit sanctions and concludes that further changes to the system should be deferred until a firm evidence base to underpin the policy has been established. It further recommends that alternatives to financial penalties should be explored.

Legal aid

The Ministry of Justice has published a response to the Justice Select Committee’s recommendations on the impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In response to the Committee’s criticism that the Ministry of Justice had avoided quantifying the level of knock-on costs arising from the reforms, the department set out the difficulties of quantifying the wider costs, in particular in terms of isolating the impact of the reforms from those of other departmental policies and from wider social trends. The Ministry of Justice also stated that it ‘will continue to review the most effective systems in order to ensure decision making departments across central and local government get it right the first time and have accessible review systems to ensure courts and tribunals are the last resort’.

Research

RUSI have published the Report of the Independent Surveillance Review A Democratic Licence to Operate. The Review was commissioned by Nick Clegg in 2014, in his capacity as deputy prime minister, to advise on the legality, effectiveness and privacy implications of UK surveillance programmes, and to examine potential reforms. The Report made a number of recommendations, including that a new legislative framework and oversight regime is needed in relation to surveillance powers, and that steps should be taken to ensure that the work of the Investigatory Powers Tribunal is as open and transparent as possible.

The Equality and Human Rights Commission together with the Department for Business Innovation and Skills have published a report on the prevalence and nature of pregnancy discrimination and disadvantage in the work place. It presents the findings of two surveys of employers and mothers who were asked for their views on pregnancy, maternity leave and mothers returning to work. It finds that 11 per cent of mothers reported having been dismissed, made compulsorily redundant, or treated so poorly they felt they had to leave their jobs.

Freedom of Information

The Government has established an independent Commission to review Freedom of Information. The Commission will consider whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice. It may also consider the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information.

Immigration

The Ministry of Justice has published research into the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) with regard to the removal of legal aid for onward immigration appeals. During the passage of the LASPO Bill through Parliament, concerns were raised about the impact of removing legal aid for onward appeals because they are only granted on the basis of errors of law, and there were concerns that members of the public would not be able to argue such points. The Government therefore committed to review the impacts of withdrawing legal aid from these cases after implementation. The research looked at management data and conducted interviews with stakeholders. Key findings included the fact that the proportion of unrepresented appellants had decreased in the post-LASPO period, contrary to expectations, but that case processing times had increased.

The Lord Chancellor lost an appeal against a High Court ruling that the detained fast-track appeals process is unfair to asylum seekers. The process, under which asylum seekers are detained pending a determination of their claims, was held to be ‘systematically unfair and unjust’ by the Court of Appeal. The Government intends to appeal the decision in the Supreme Court.

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