What’s new in administrative justice, May 2016

Parliament

The Government accepted an amendment to the Immigration Bill tabled by Lord Dubs that would permit the resettlement of some unaccompanied children from Europe. The Bill received Royal Assent on 12 May and is now the Immigration Act 2016. Among other changes, the Act will extend the Government’s ‘deport first, appeal later’ power to make it easier to remove individuals who have no right to be in the UK and whose human rights claim has been refused and require them appeal from outside the UK, provided this does not breach their human rights. More information on changes to appeal rights are se out in this factsheet.

The Investigatory Powers Bill has completed Committee stage in the House of Commons. A number of largely technical amendments were tabled by the Government.

The House of Lords EU Justice Sub-Committee has published a report on plans to replace the Human Rights Act with a British Bill of Rights. The report looked at the likely impact of a British Bill of Rights on human rights litigation under the EU Charter of Fundamental Rights; the UK’s EU legal obligations and international standing; and on the devolved settlements. The report concluded that the views expressed by witnesses during the inquiry make a forceful case for the Government to think again before continuing with the policy.

The Joint Committee on Human Rights has published a report on the Government’s policy on the use of drones for targeted killings. The inquiry considered the legal justifications for the killing of a British national in Syria in 2015. The report recommended that the Government provide clarification of its position on a number of specific legal questions, including its understanding of the extent to which Article 2 of the European Convention on Human Rights (ECHR) applies to the use of lethal force outside armed conflict.

The Culture, Media and Sport Committee has published a report on the appointment of a new Information Commissioner. The Committee endorsed the Government’s approved candidate, Elizabeth Denham.

The Women and Equalities Committee has launched an inquiry into the scale and impact of sexual harassment and sexual violence in schools. The deadline for submitting evidence is 22 May.

The Government has responded to the Justice Committee’s report on criminal justice inspectorates. The Lord Chancellor recognised the need to clarify the terms of engagement between the Ministry of Justice (MoJ) and its Inspectorates and the Prisons and Probation Ombudsman. The MoJ also remains committed to agreeing a protocol with HM Inspectorate of Probation and the Prisons and Probation Ombudsman. The Attorney General indicated support for a closer relationship between the criminal justice inspectorates and the Justice Committee.

The Public Accounts Committee has published a report examining the extent of mis-selling in financial services, the role of claims management companies, and the need for more robust information gathering on redress and more Parliamentary scrutiny of financial regulation.

Administrative justice oversight

The Government has confirmed that it will abolish the Administrative Justice Forum (AJF) after April 2017. This follows the abolition of the Administrative Justice and Tribunals Council in 2013 and the subsequent end of the Welsh and Scottish administrative justice and tribunals committees at the end of 2015. The statement said that before its closure, ‘the AJF will also work with officials, the senior judiciary and stakeholders to identify what structures might be necessary to carry out the AJF’s functions in the future.’

Courts and tribunals

In light of the announced departure of Natalie Ceeney as Chief Executive of HMCTS, concerns have been expressed about the effect of this transition on access to justice in relation to the move towards digital courts and tribunals.

Legal aid and access to justice

The Ministry of Justice has announced a relaxation of the domestic violence evidence requirements under LASPO, following a negative Court of Appeal judgment. Pending further research, interim arrangements have extended the time limit for evidence to have been obtained, from two to five years, and introduced a provision for the assessment of evidence of financial abuse.

The Supreme Court has allowed a challenge to the legal aid residence test brought by the Public Law Project, on the basis that the Lord Chancellor did not have the power to introduce the proposed test. The Supreme Court has indicated that it will provide written reasons for the decision in due course.

The AIRE Centre is using crowdsourcing to fund a judicial review to challenge Operation Nexus, a joint initiative by the Home Office and the Metropolitan Police which reportedly allows people to be deported without any convictions. Donations can be made via Crowd Justice.

Human rights

The Court of Session has ruled that Scottish ministers did not breach the human rights of a convicted rapist by failing to provide him with an opportunity to rehabilitate himself. The claimant was subject to a lifelong restriction order with an earliest release date on 2019. He claimed that the failure to assess him for rehabilitation would prevent him from being able to demonstrate to the Parole Board that he no longer represented an unacceptable danger at that point, and that it was implicit in Article 5 that the state was under a duty to provide an opportunity for rehabilitation. Lord Armstrong dismissed the petition on the basis that it was premature.

The Home Secretary has made a speech calling for the UK to withdraw from the ECHR, arguing that it can “bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights”. Following this, an urgent question was tabled in the House of Commons by Alistair Carmichael MP on the UK’s membership of the ECHR. The Attorney General responded that the Government were committed to reforming the Human Rights Act but would prefer to remain within the ECHR.

The UK has nominated three candidates to be the next UK judge of the European Court of Human Rights. They are barristers Tim Eicke QC and Jessica Simor QC, and Murray Hunt, the Legal Adviser to the JCHR. One of the candidates will be elected in June for a nine year term.

David Isaac has been appointed as the new Chair of the Equality and Human Rights Commission. Dr Lesley Sawyers has been appointed as the new EHRC Scotland Commissioner. The JCHR, who previously raised concerns about Mr Isaac’s appointment, have suggested that he must keep an eye on any potential conflicts of interest.

Lord Anthony Lester QC, the Liberal Democrat peer and human rights advocate, has published a new book ‘Five Ideas to Fight For’, in which he argues that human rights, equality, free speech, privacy and the rule of law are under attack, and urges people to take a stand to defend them.

Publications and consultations

The Ministry of Justice has published a consultation on proposals to raise fees for the Immigration Tribunal. The consultation proposes to move to full cost recovery in the First-tier Tribunal for relevant proceedings and to introduce fees in the Upper Tribunal for the first time, at full cost recovery levels. Justice Minister Dominic Raab stated that this would involve an increase for an application for a decision on the papers in the First-tier Tribunal from £80 to £490, and from £140 to £800 for an oral hearing. The deadline for responses is 3 June.

The Department for Business, Innovation & Skills has launched a consultation looking at the issues faced by BME people in the labour market. It forms part of a review to be carried out by Baroness McGregor-Smith under a Government plan to improve labour market outcomes for those from BME backgrounds. A call for evidence closes on the 22 August.

The Department for Business, Innovation & Skills is consulting on its second proposal in two years to sell parts of the registry to a private investor. Lawyers warn that under government proposals to transfer most of the functions of Land Registry to a private contractor, a lack of impartiality and conflicts of interest arising from private sector involvement could make it difficult for Land Registry to fulfil its adjudicatory functions. The deadline for responses is 26 May.

The Migration Observatory at Oxford University has published a briefing on EU Migration, Welfare Benefits and EU Membership. It explains the main policy issues and statistics on EU migrants’ use of welfare benefits and examines who would be affected by proposed restrictions.

Police

The Home Secretary has made a statement on the findings of the inquest into the deaths of victims of the Hillsborough disaster. Investigations by the police and the Independent Police Complaints Commission are underway following the jury’s determination that those who died were unlawfully killed.

Labour have called for the Government to ensure that in the future bereaved families are given equal funding for legal representation as the police, at inquests where the police are involved.

Freedom of information and data protection

The First-tier Tribunal (Information Rights) has clarified when it is possible for a public authority to change its position to give a neither confirm nor deny response (NCND) after originally confirming that it held the requested information. The Tribunal held that NCND responses may not be used where the fact that the public authority holds the information is already in the public domain.

The General Data Protection Directive has been published in the Official Journal of the EU. It will come into force on 24 May, and will eventually replace the existing Data Protection Directive. The Directive imposes additional requirements on data processors and increases monetary penalties for breaches.

The magistrates’ court has dismissed an application by the National Crime Agency to make a direction that the claimant provide an encryption key in the interests of good case management. The court held that the case management rules cannot be used to circumvent the requirements of primary legislation, in this case an application under section 49 of RIPA.

Ombuds

On 11 May, the UK Supreme Court handed down its judgment in the JR 55 case, which was heard in March. The case involved an appeal by the Northern Ireland Commissioner for Complaints (the Complaints Commissioner, now the Northern Ireland Public Services Ombudsman) of the quashing by the Court of Appeal of a recommendation, including a financial remedy, made by the Commissioner in a complaint against a GP. The Supreme Court unanimously dismissed the appeal by the Complaints Commissioner, holding that the Commissioner had (i) no power to recommend the payment of a money sum against an individual who was not a public authority in an investigation under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996 and (ii) no power to make a special report drawing the attention of the legislature to such a person’s failure to comply with a recommendation.