What’s new in administrative justice, March 2017

UK Parliament

After suffering two defeats in the House of Lords on the EU (Notification of Withdrawal) Bill, the Government now has the power to trigger Article 50 and begin Brexit negotiations. One of the amendments would have required the Government to guarantee the rights of EU citizens in the UK post Brexit and the other would have given parliament a vote on any deal negotiated by the Government, prior to withdrawal. Both amendments were defeated when the Bill returned to the Commons and the Bill therefore passed unamended.

The Government has published the Prisons and Courts Bill. The Bill would give prison governors control over budgets for education and employment and introduce league tables for issues such as safety and progress. It would also extend the use of virtual court hearings and allow for less serious criminal offences to be dealt with online.

The Brexit Committee has published a report on the Government’s negotiating objectives regarding the rights of UK and EU citizens. The Committee recommended that the UK should make a unilateral decision to safeguard the rights of EU nationals living in the UK.

The Home Affairs Committee has published an interim report on unaccompanied child migrants in response to the Government’s announcement that it intends to limit the number of children accepted into Britain under the so-called “Dubs scheme”. The Committee recommended that the Government should urgently consult the Independent Anti-Slavery Commissioner on the impact of changes to the scheme on trafficking and exploitation, and publish information on the capacity of councils to provide further places for unaccompanied children.

The Communities and Local Government Committee published a pre-Budget report on adult social care. The Committee concluded that social care requires immediate extra funding to make up for the current shortfall, and suggested that the National Audit Office should determine the amount needed. The Committee also recommended a cross-party review of social care funding in the long term.

A report by the Women and Equalities Select committee proposes that the Brexit process offers an opportunity to embed equality into law and policy in the UK. Among the Committee’s recommendations are that the Government should assess the extent of research and other equality initiatives that currently receive EU funds, and replace and ring-fence these funds to allow current equalities research to continue undisrupted.

During a Westminster Hall debate on torture and the treatment of asylum claims, immigration Minister Robert Goodwill confirmed that Government policy would permit an asylum seeker to be returned to a jurisdiction in which they had suffered torture, provided there was not an ongoing risk of serious harm or persecution.

Courts

The European Court of Human Rights has held that it was lawful for the Government to revoke a terrorist suspect’s British Citizenship. The applicant claimed his Article 8 rights had been breached by the removal of his citizenship whilst he was abroad.

The Inner House of the Court of Session has dismissed an appeal by a prisoner who claimed that his Article 5 rights had been breached as a result of a failure to give him a reasonable opportunity to rehabilitate himself.

The Outer House has upheld a claim that the automatic disclosure of a thirty year old conviction for a minor offence during an employment check was a breach of Article 8.

Benefits

The Work and Pensions Committee held an urgent one-off evidence session on 6 March in the wake of Government plans to restrict the number of people who qualify for Personal Independence Payments (PIP). Representatives from the advice sector explained how clients experience assessments, the impact of Mandatory Reconsideration, and reasons for the high number of successful appeals to tribunal.

The Scottish Government has announced that “Social security experience panels”, made up of users of the current system, will be formed to give their views on the design of Scotland’s new benefits system.

Ombuds

The Communities and Local Government Select Committee held an evidence session with Michael King (Local Government Ombudsman) and Denise Fowler (Housing Ombudsman) on the draft Public Services Ombudsman Bill on 6 March. Among the issues discussed are the strengths and weaknesses of the draft legislation and whether or not the Housing Ombudsman should be included in the new converged public-sector ombud.

Data protection

The Scottish Government has announced that its “Named Person” scheme will be implemented, with new legislation to be introduced before the summer recess. The policy was subject to a successful legal challenge, on the grounds that the information sharing provisions were incompatible with Article 8 privacy rights. The revised scheme will ensure that information sharing is compatible with laws on data protection, human rights and confidentiality, it was claimed.

Publications and reports

A new publication, Reconstructing Judicial Review by Dr Sarah Nason of Bangor University, offers a new interpretation of judicial review in England and Wales as being concerned with the advancement of justice and good governance, as opposed to being concerned primarily with ultra vires or common law constitutionalism. Described as a ‘ground-breaking reassessment of the grounds of judicial review ‘, it is developed both from examining the functions and values that ought to be served by judicial review, and from analysis of empirical ‘social’ facts about judicial review primarily as experienced in the Administrative Court. A post about the book has been published on UKAJI’s blog.

The Hansard Society has issued a report on its legislative scrutiny data mapping project, which aims to encourage evidence-based debate about how government produces and Parliament scrutinises legislation. Over time, as the data reveals trends or changes, the research will bring problems or new developments in the process into sharper focus, and shed new light on the adequacy and effectiveness of the legislative scrutiny process.

A report by the Equality and Human Rights Commission, the Scottish Human Rights Commission, the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland to the UN Committee on the Rights of Persons with Disabilities was published on February 2017. Among the findings set out in the report are that changes to legal aid in England and Wales have negatively affected disabled people’s access to justice in family law, housing, employment, debt and welfare benefits cases. The introduction of fees for Employment Tribunals in GB has resulted in a significant decline in the number of disability discrimination claims. To comply with Convention on the Rights of Persons with Disabilities, the UK Government must take concrete steps to ensure that disabled people can effectively seek redress.

Another report by the EHRC, Who runs Wales, examines the composition of those in leadership positions in public life and public services in Wales. The report concludes that there has been some progress since previous studies, but that women are still significantly under-represented at senior levels in most sectors.

The Law Commission has published a final report and draft Bill following a review of the Mental Capacity Act and the Deprivation of Liberty Safeguards (DoLS). The report recommends that the DoLS be repealed and replaced as a matter of urgency. The draft Bill would also make wider changes to the Mental Capacity Act in order to ensure greater safeguards for persons before they are deprived of their liberty.