What’s new in administrative justice, June 2016

Parliament

The Investigatory Powers Bill has completed report stage and third reading in the House of Commons. Labour won a number of concessions from the Government, including an overarching privacy clause, stronger protections for sensitive and confidential material, and a review of the necessity and utility of bulk powers. David Anderson QC will conduct the review with the help of expert advisers and will report in time to inform Committee stage consideration of the relevant parts of the Bill in the House of Lords. The Joint Committee on Human Rights published a report on the Bill suggesting that it represents an improvement in human rights terms, by increasing transparency and enhancing safeguards. However it recommended a number of improvements that should be made to the Bill, including stronger safeguards for MPs’ communications, material subject to legal professional privilege and journalists’ sources.

The Wales Bill has been introduced into the House of Commons. The Bill would give effect to the Government’s policy of establishing a reserved powers model for devolution to Wales.

The Public Accounts Committee has published a report on efficiency in the criminal justice system. It concluded that the system is at breaking point, and blamed a lack of shared responsibility and resource pressures. It suggested that the Ministry of Justice has exhausted the scope to make further savings and should take opportunities to make immediate improvements.

The Home Affairs Committee has published a report on Police diversity. The Committee found that urgent and radical action is needed to tackle the under-representation of black and minority ethnic people in the police forces of England and Wales.

The Human Trafficking and Exploitation (Scotland) Act 2015 has come into force in Scotland. The legislation provides for stronger sentences for those convicted of trafficking offences and will improve support offered to victims.

Tribunals

The Ministry of Justice published the latest statistics and commentary on tribunals.

The Justice Committee has published a report on its inquiry into recent and proposed changes to fees for courts and tribunals users. Accepting that some degree of financial risk is an important discipline for those considering legal action, the Committee considers what is an acceptable amount level of fee, taking into account factors such as vulnerability and inequality of resources. The Committee concluded that the introduction of fees set at a level to recover or exceed the full cost of operation of the court requires particular care and strong justification.

Asylum and immigration

The Asylum Advocacy Group and the APPG for International Freedom of Religion or Belief have published a report Fleeing Persecution: Asylum Claims in the UK on Religious Freedom Grounds. The report follows an enquiry into the quality of the assessment of religion-based asylum claims and the impact of the asylum procedure on the fairness and quality of decision-making. It recommended, among other things, that the Home Office should begin to collect statistics on the different convention grounds upon which asylum claims are grounded, and ensure that staff receive effective training and adhere to policy guidance.

The Independent Chief Inspector of Borders and Immigration has published a report on the inspection of the administrative review (AR) processes introduced following the 2014 Immigration Act. The report made extensive recommendations for improvements in relation to the processing of AR applications; training for decision makers; quality assuring decisions; and capturing feedback to improve functioning of the system.

An annual report for 2015-2016 has also been published, setting out a three year inspection plan.

The House of Commons Library has published analyses of asylum and migration statistics and trends in the UK and other EU countries.

Human rights

A new UK judge for the European Convention on Human Rights will be elected by the Parliamentary Assembly of the Council of Europe later in the month. A House of Commons Library briefing paper explains the selection process and provides profiles of the nominated candidates.

The Court of Appeal has overturned a decision of the Upper Tribunal, finding that the Article 8 rights of a convicted prisoner’s children did not outweigh the public interest in his deportation. The Court suggested that only the strongest Article 8 claim would outweigh the public interest in deporting someone sentenced to at least four years’ imprisonment, and that the tribunal had failed to direct itself as to the very great weight to be given to the public interest in the removal of foreign criminals as a deterrent and as an expression of condemnation.

The Outer House of the Court of Session has held that the restriction of student loans to under 55s in Scotland is discriminatory, contrary to Article 14 of the ECHR together with the right to education as protected by Article 2, Protocol 1.

Legal aid

The Legal Aid Agency is conducting a consultation with representative bodies including the Law Society on new contracts for criminal legal aid. It is also proposing to extend the existing contingency contracts until March 2017, in order to allow sufficient time to prepare for the new contract.

A new advisory council of solicitors and barristers has been established to assist the Justice Secretary in exploring how to reduce unnecessary bureaucratic costs, eliminate waste and end abuses within the criminal legal aid system. The council will be chaired by Gary Bell QC, who has asked those involved in the criminal justice system to get in contact with matters they wish to raise.

The Ministry of Justice is conducting a survey as part of its review of the domestic violence evidence requirements for accessing legal aid in private family cases. The deadline for responding to the survey is 1 July 2016.

Welfare benefits

The CJEU has upheld the legality of UK’s policy of withholding family benefits from EU migrants who do not have the right to reside in the UK. The European Commission had argued that the process of checking whether claimants are legally resident discriminates against foreign EU workers because British citizens are not checked in the same way. The Court ruled that the difference in treatment can be justified by a legitimate objective such as the need to protect the finances of the host Member State, provided that it does not go beyond what is necessary to attain that objective.

The DWP has published mandatory reconsideration statistics for Employment and Support Allowance Work Capability Assessments, covering October 2013 – April 2016.

Health

The NHS Equality and Diversity Council has published NHS workforce race equality data analysis for 2015. The report provides overview analyses of baseline data provided under the Workforce Race Equality Standard, which was introduced in 2015 to facilitate better understanding of why BME staff receive poorer treatment.