What’s new in administrative justice, February 2016

Parliament

The Government have published a new Policing and Crime Bill. The Bill would make changes in relation to police complaints procedures and collaboration between the emergency services, among many other things.

The EU Justice Sub-Committee has heard evidence from Justice Secretary Michael Gove and leading academics in relation to its inquiry on the impact of replacing the Human Rights Act with a British Bill of Rights. Mr Gove highlighted a number of areas in which reform might be desirable, including making clear that the UK courts are free to depart from Strasbourg jurisprudence; the application of the Convention to the actions of British troops operating abroad; and the correct balance to be struck between freedom of expression and privacy rights. Professors Gordon Anthony and Christopher McCrudden of Queen’s University Belfast gave evidence as to the status of human rights, and the Human Rights Act, within the Northern Ireland devolution settlement and the Good Friday Agreement.

The Joint Committee on Human Rights has published its first legislative scrutiny report on the Trade Unions Bill. The report suggests that the Bill raises a number of potential human rights issues, including the cumulative impact of the proposals on the right to strike, and recommends that it should be subject to early post-legislation scrutiny.

The Justice Committee has heard evidence from senior judges in relation to its inquiry into courts and tribunal fees. Lord Dyson, Master of the Rolls, expressed concerns that enhanced court fees will impede access to justice for small and medium sized businesses, who may be deterred from litigating, and suggested that the research conducted by the Government prior to implementation was inadequate.

The Women and Equalities Committee has published the report of its inquiry into Transgender Equality. The report calls on the Government to take action to ensure full equality for trans people, emphasising the need to update existing legislation; provide better services, especially in the NHS; and improve confidence in the criminal justice system.

The Scottish Parliament has passed the Apologies (Scotland) Bill, intended to stop apologies being used as evidence of liability in most civil proceedings in Scotland, with the aim of bringing about social and cultural change.

The Abusive Behaviour and Sexual Harm (Scotland) Bill is currently before the Scottish Parliament. The Bill aims to improve access to justice for survivors of domestic abuse and makes changes to the way the justice system deals with sexual harm cases.

The Northern Ireland Assembly has passed the Northern Ireland Public Services Ombudsman (NIPSO) Bill, which brings in reforms to the public-sector ombud. The changes will simplify the process of complaining about public services and will strengthen the powers of the ombud. It will also include new areas within the ombud’s jurisdiction, including schools, colleges and universities.

Professor Mark Elliott has published an article on the recommendations of the Strathclyde Review. The Review recommended that the House of Lords’ powers in respect of statutory instruments should be brought broadly into line with its powers in respect of primary legislation, thereby preventing the House of Lords from vetoing statutory instruments. The article highlights the increasing use of statutory instruments with the resulting loss of scrutiny, and questions the conclusions of the Review.

Courts and access to justice

Michael Gove has announced that plans for a “dual contracting” system for criminal legal aid firms have been abandoned in light of significant opposition and numerous legal challenges, and a further cut in fees has been suspended. Lord Falconer has asked the National Audit Office to investigate how much the abortive attempt to impose criminal legal aid reforms cost the taxpayer.

A new publication – Access to Justice: Beyond the Policies and Politics of Austerity – considers the impact on accessing civil and administrative justice in the context of changing priorities to funding legal services. The papers developed from a series of ESRC-funded seminars, and include a chapter by UKAJI’s Tom Mullen, Professor of Law at Glasgow University.

The House of Commons Library has published a Briefing Paper considering the evidence on the impact of restrictions on legal aid and increase in self-represented litigants.

Lord Justice Jackson has used a speech at the Solicitors’ Costs Conference to call for the establishment of a CLAF – Contingent Legal Aid Fund. This would be a self-funding scheme that would pay the claimant’s costs, win or lose. If the claimant succeeds the CLAF would recover its costs from the other party and also a share of the proceeds of the action.

Justice Minister Shailesh Vara has announced the closure of 86 courts following a consultation. On average, these courts are used for less than two days a week. The Government have published its response to the consultation, along with impact assessments and regional response documents.

The Legal Services Consumer Panel has published a report recommending that the legal services sector should improve data provision in order to assist consumers in making informed decisions. Specific recommendations included that regulators should publish details of enforcement sanctions, and conduct mystery shopping exercises; and that the Legal Ombudsman should publish all decisions in full.

Cases

The Court of Appeal has held that the ‘spare room subsidy’ or ‘bedroom tax’ was discriminatory in its application in relation to a female victim of serious domestic violence and a severely disabled 15 year old boy. The Government has appealed to the Supreme Court.

In another decision, the Court of Appeal held that legal aid is only available in claims against the police where claimants can show dishonesty. The court found that a false imprisonment claim did not meet the new test under LASPO, which restricts funding to claims against a public authority where there was a deliberate or dishonest act or omission causing harm.

A European Arrest Warrant issued by German authorities has been discharged by Edinburgh Sheriff’s Court, on the basis that its execution would constitute an interference with the article 8 rights of the subject’s child, who was seriously ill.

Human rights

A new inquest has begun into the death of Cheryl James at Deepcut barracks in 1995. Her parents have been supported in their campaign for a new inquest by Liberty, who threatened Surrey police with legal action under the Human Rights Act after they refused to share evidence in relation to her death. In 2014 the High Court quashed the open verdict recorded at the original inquest, on the grounds of insufficiency of inquiry and new evidence.

The Faculty of Advocates has submitted evidence to the Scottish Parliament’s European and External Relations Committee on the possible repeal of the Human Rights Act. The Faculty said it was not convinced of the need for substantial reform, and that it believed that the incorporation of the European Convention on Human Rights into domestic law had been beneficial for the people of Scotland. Repeal of the HRA might lead to a fragmented system of rights, where the Scottish Parliament had the ability to legislate in a range of areas.

Prisons

The Prime Minister has announced plans for reform of prisons. The plans place a greater emphasis on rehabilitation, and include proposals for six new ‘reform prisons’, and giving greater control of education to prison governors.

The Prisoners (Control of Release) (Scotland) Act 2015 has come into force, with the effect that prisoners serving sentences of four years or more will no longer be eligible for automatic release after serving two thirds of their sentence.

Immigration and asylum

A Review into the Welfare in Detention of Vulnerable Persons has been published. The report, commissioned by the Home Secretary, focused on Home Office policies and operating procedures that have an impact on the welfare of immigration detainees.

The Chief Inspector of Borders and Immigration has published the results of an Inspection of Asylum Casework from March – July 2015. The inspection looked at the registration, screening and routing process; how substantive asylum interviews were conducted and whether material facts were captured and probed; and whether decision making was in accordance with Home Office guidance. The most serious failings were found in cases in which there was evidence of torture, which were subject to lengthy delays. The Home Office has published a response to this review, accepting or partially accepting all of the recommendations.

Ombuds

Paul Kernaghan has been appointed as the new Judicial Appointments and Conduct Ombudsman. The Ombudsman provides an independent ‘second tier’ investigation function in the handling of complaints involving judicial discipline or conduct, or the judicial appointments process.

The Local Government Ombudsman has published a report revealing a rise in complaints about how councils have dealt with applications for social housing. This follows changes brought in by the Localism Act 2011 which have allowed councils to introduce tighter qualification requirements for applicants. A significant proportion of complaints were from people denied access to their council’s housing register.

The Housing Ombudsman has given evidence to the Communities and Local Government Committee, following her appointment last year and the proposal not to merge her office into a single public sector ombudsman.

The Prison and Probation Ombudsman has written to the Justice Committee in response to questions about the implementation of recommendations by NOMS. He expressed disappointment at the frequent need to repeat recommendations, and noted the difficulty in influencing change in services under considerable strain.