What’s new in administrative justice, September 2015

Parliament

On 10 September Parliament will debate the findings of the All Party Parliamentary Group on Migration’s Inquiry into immigration detention.

Appointments to the newly formed Intelligence and Security Committee have been announced. Members include former Attorney General, Dominic Grieve, Angus Robertson, Westminster leader of the SNP, and George Howarth, who was a member of the predecessor committee.

The new Women and Equalities Select Committee held its first evidence session on 8 September, hearing from experts on Transgender Equality.

UN Human Rights Committee

The UN Human Rights Committee has made a number of observations regarding the UK’s compliance with the Covenant on Civil and Political Rights. The Report raised concerns about the following:

• The Government’s plans to repeal the Human Rights Act 1998 and replace it with a new Bill of Rights will weaken the degree of protection afforded to the rights enshrined in the Covenant within the domestic legal order;
• The quality and pace of the process of promoting accountability in relation to “the Troubles” in Northern Ireland and the absence of a comprehensive framework for dealing with conflict-related serious human rights violations;
• The slow progress in proceedings before the Intelligence and Security Committee (ISC) in relation to the Detainee Inquiry, and the adequacy of the ISC as an investigation mechanism, in relation to accountability for human rights violations committed by British forces abroad;
• The use of stop and search powers in Scotland, and in particular the selective use of non-statutory searches in a manner which is allegedly unlawful and disproportionate;
• The UK’s continuing employment of a broadly formulated definition of terrorism, which could encompass politically motivated action designed to influence a government or international organisation, despite concerns raised by two Independent Reviewers of Terrorism Legislation and the Supreme Court. The Committee was also concerned about the new powers introduced by the Counter-Terrorism and Security Act 2015;
• The introduction of temporary exclusion orders and the use of citizenship deprivation orders as counter-terrorism measures, raising the possibility of persons being rendered stateless;
• The high number of suicides and incidents of self-harm in custody;
• The UK’s reliance on its “deportation with assurances” policy to justify the deportation of foreign nationals suspected of terrorism related offences to countries where it is reported that they may face a real risk of torture or other forms of ill-treatment;
• The lack of a fixed time limit on the duration of detention in immigration removal centres, and the deficiencies of the detained fast track system in the asylum process, including failure to prevent torture survivors from entering the system and failure to provide access to justice;
• The extension under the Justice and Security Act 2013 of the use of closed material procedures to civil proceedings involving sensitive material. The committee also expressed concerns that the new test for miscarriage of justice, introduced in 2014, may not be in compliance with article 14(6) of the Covenant, and about the impact of changes to the legal aid system and their impact on access to justice;
• The legal regime governing the interception of communications and communications data, allowing for mass interception of communications without sufficient safeguards against arbitrary interference with the right to privacy;
• The lack of progress in reviewing the UK’s legislation denying prisoners the right to vote.

Reports

The Northern Ireland Human Rights Commission has published a report on Alternative Care and Children’s Rights in Northern Ireland. The report reviews the current provision for vulnerable children in Northern Ireland and considers how international human rights standards can offer protection and support.

The Home Secretary’s Commission on Appropriate Adults has published a report, There to help, which identifies significant shortcomings in current Appropriate Adult provision for mentally vulnerable suspects. This undermines their welfare, inhibits the exercise of their legal rights, risks miscarriages of justice and lengthens custody times potentially increasing the risk of self-harm.

Tribunals

The Court of Appeal has upheld the High Court’s decision to reject a claim for judicial review brought by Unison challenging the introduction of fees in the employment tribunal. The Court acknowledged that the introduction of the fees had had the effect of deterring a large number of potential claimants, but concluded that this fact alone was not a sufficient basis for a successful challenge. Evidence of the actual affordability of the fees in the financial circumstances of typical individuals would be needed in order for the Court to conclude that the fees payable under the scheme would be realistically unaffordable in some cases.

Acas has published research on the first year of the Early Conciliation (EC) service which was introduced for all potential claimants in an attempt to encourage settlement outside of the Employment Tribunals (ET). The research found that nearly half of all claimants who made use of the EC service either reached a formal settlement or were otherwise provided with assistance by Acas such that they did not make an ET claim. Of those for whom EC did not result in a formal settlement, 55% had submitted or were planning to submit an ET claim, whilst 45% had decided against this course of action. Of those who chose not to submit an ET claim, the most cited reason was that the ET fees were off putting, although the majority did cite Acas as a factor in helping them. The research is discussed in further detail on lexology.com.

Immigration and asylum

HM Inspector of Prisons has published a report on an unannounced inspection of Yarl’s Wood removals centre. The report calls for time limits on the detention of migrants without trial after fresh warnings of a significant deterioration in conditions.

The House of Commons Library has published a briefing paper Immigration detention in the UK: an overview.

Local government

Research published by the Money Advice Trust has found that councils’ use of bailiffs for debt collecting has increased by 16% in the past two years.

Parking

The Lead Adjudicator’s annual report on private parking appeals has been published by POPLA (Parking on Private Land Appeals).

Consumer redress

The Foundation for Law, Society and Justice has published a report of a workshop at Queen Margaret University Designing Consumer Redress: Making Redress accessible for Consumer-Citizens. The report assesses the implications of the new EU Directive on consumer Alternative Dispute Resolution and explores new ways to encourage and enable greater numbers of people to access good quality consumer redress.

The Directive will place a requirement on businesses selling to consumers to provide information about certified ADR schemes, and require that ADR providers wishing to gain certification must meet certain standards with regard to independence, impartiality, and quality of expertise. However, concerns have been raised about the potential for confusion for consumers caused by the existence of multiple ombudsmen within the same sector as a result of the fact there is no officially approved ombudsman. This also means that decisions made by these ombudsmen are not legally binding on businesses.

The Legal Ombudsman has launched a consultation into changes to its scheme rules which would be necessary for it to become an ADR entity certified by the Legal Services Board. The consultation will run until 2 November.

Social security

A volunteer law project providing representation for individuals appealing against fit to work assessments under the work capability assessment (WCA) has reported a 95% success rate, resulting in the reinstatement of £1m in benefits for ill and disabled clients wrongly assessed as able to work.

It has been reported that thousands of people claiming benefits for long-term illness or disability died within two weeks of being ruled “fit to work” between 2011 and 2014. The statistics on people who died after claiming Employment and Support Allowance, Incapacity Benefit or Severe Disablement Allowance were released by the Ministry of Justice following a freedom of information request.

Consultations and calls for evidence

The Law Commission has launched a consultation on the law of mental capacity and deprivation of liberty. The consultation closes on 2 November 2015.

The Law Commission is also consulting on how to make the existing law applicable in Wales easier to use and understand, in light of the complicated devolution arrangements and resultant confusion as to where responsibilities lie. That consultation closes on 9 October 2015.

The Ministry of Justice has launched a consultation on the provision of the court and tribunal estate in England and Wales. This follows recent statements by the Justice Secretary on court closures. The consultation ends on 8 October 2015.

The Scottish Parliament’s Welfare Reform Committee recently concluded a call for evidence in relation to its inquiry on the Future of Social Security in Scotland. The Committee is focusing on the practical implementation of the social security schemes outlined in the Smith Agreement. The Committee plans to take oral evidence in the Autumn.