What’s new in administrative justice, July 2017

Parliament

The Queen’s Speech took place on 21 June. Eight bills were announced to deal with the UK’s departure from the EU. As well as providing for the repeal and transposition of EU laws, the bills will implement policies on immigration, trade, customs, international sanctions, nuclear safeguards, agriculture, and fisheries.

Further legislative measures were announced, including a Travel Protection Bill to update the ATOL scheme; a Draft Tenants’ Fees Bill, banning the charging of fees and capping deposits; a Courts Bill to reform the courts system, including greater use of technology; a Data Protection Bill, to update the current regime; and, a Draft Patient Safety Bill to improve the framework safety investigations within the NHS.

Non-legislative measures announced included: a counter-terrorism review; the establishment of a commission for countering extremism; a public inquiry into the Grenfell Tower fire; and the introduction of an independent public advocate to act for bereaved families after a public disaster. The Government also committed to holding a consultation on the future of social care.

The Government has since published the European Union (Withdrawal) Bill, which would repeal the European Communities Act 1972 and transpose EU laws into domestic legislation. The Bill makes clear that the EU Charter of Fundamental Rights will not be brought into domestic law when the UK leaves the EU. Labour has identified a number of concerns with the Bill, including the failure to include the Charter, and use of delegated powers, and has said it will vote it down unless significant changes are made. Nicola Sturgeon and Carwyn Jones issued a joint statement in response, describing the Bill as a ‘naked power-grab’, and suggested that legislative consent may not be given if it remains in its current form.

Select Committee chairs for the new parliament have now been announced. New chairs are:

• Rachel Reeves – Business, Energy and Industrial Strategy Committee;
• Clive Betts – Communities and Local Government;
• Robert Halfon – Education;
• Dr Julian Lewis – Defence;
• Neil Parish – Environment, Food and Rural Affairs;
• Tom Tugendhat – Foreign Affairs;
• Dr Andrew Murrison – Northern Ireland Affairs;
• Lilian Greenwood – Transport;
• Nicky Morgan – Treasury

A number of chairs were re-elected unopposed, including Hilary Benn on the Brexit Committee; Yvette Cooper on Home Affairs; Robert Neill on the Justice Committee; Dr Sarah Wollaston on Health; and Bernard Jenkins on the Public Administration and Constitutional Affairs Committee.

The Commission on Parliamentary Reform has published a Report on the Scottish Parliament which proposes a broad range of important changes to the way in which the Scottish Parliament operates. Among its recommendations are a review of the resources and powers available to committees in order to facilitate greater expertise and experience and support more effective scrutiny.

Sajid Javid, Secretary of State for Communities and Local Government, has made a statement to parliament on the Grenfell Tower disaster, providing an update on the police investigation and public inquiry. He confirmed that Sir Martin Moore-Bick has been appointed to lead the inquiry and has been meeting with survivors and members of the local community before finalising the terms of the inquiry.

Courts

The High Court has ruled that benefits caps on single parents with children under two are unlawful, adding they ‘cause real misery without good purpose’. As reported on rightsinfo.org, ‘The court decided that there had been no proper response from the Government about concerns as to how the cuts would affect children, other than the fact having parents in work would be an advantage. Benefits covered by the cap also included ones designed to help children. The judge ruled that Article 14 of the Human Rights Convention (freedom from discrimination) was applicable and there was no justification for the differential treatment of lone parents in the Benefit Cap policy. There had been a failure to apply the best interests of the child, meaning parents would have restrictions on being able to afford housing, food and other things that should be available to the average child.’

The Supreme Court has held that a civil partner should have the same pension rights as those of a spouse in the event of the pensioner’s death. The case concerned an exemption in the Equality Act that allowed employers to exclude same sex civil partners and spouses from benefits paid into a pension fund before the Civil Partnership Act came into force in 2005.

Ombuds

The Local Government Ombudsman has changed its name to the Local Government and Social Care Ombudsman to reflect its wider remit covering complaints about adult social care, including both publicly and privately funded services.

A new ombud will be established to cover complaints about public bodies in the Isle of Man. The Tynwald Commissioner for Administration Act is expected to be brought in on December 31 this year. The IOM Today reported that the Act was given Royal assent back in 2011 but never implemented, mainly because of concerns over how the ombudsman role would be funded. The remit will be phased in, initially covering investigations of alleged maladministration in the eight government departments and subsequently extended to cover other public bodies, including local authorities.

The Chief Ombudsman for Ombudsman Services gave evidence to the inquiry of the Lords Select Committee on the European Union into consumer protection rights following Brexit. The ombud, Lewis Shand-Smith, explained that the UK’s implementation of the EU consumer protection regulations including the ADR Directive. Among the issues discussed were the argument that all regulated industries should have an independent ombud, including rail travel, and that and ombud is distinct from ADR in that and ombud ‘has a duty to work with individual companies where they see something that they think is causing consumer detriment and … also have a responsibility to work with the regulator in a sector and to report to the regulator if they see something happening that is causing a detriment.’ He also suggested to the Committee that the model of ombud used in the UK needs to be reviewed and overhauled.

Reports

A new report commissioned by the British Academy and the Royal Society considers data management and the governance challenges that need to be addressed ‘if the overall system of governance for data management and data use is to maintain public trust’. ‘Data Management and Use: Governance in the 21^st century’ sets out high-level governance principles to ensure trustworthiness and trust in data management and use. The overarching principle is that of ‘human flourishing’, which is supported by the underlying principles of:

• protecting individual and collective rights and interests
• ensuring that trade-offs affected by data management and data use are made transparently, accountably and inclusively
• seeking out good practices and learn from success and failure
• enhancing existing democratic governance.

The report notes that a number of bodies are responsible for data governance issues but recommends that a single body should be established ‘to steward the landscape as a whole, rather than being directly responsible for implementation within specific domains’.

A report from the National Audit Office on mental health in prisons says it is difficult to determine if Government is achieving value for money in its initiatives to improve prisoner well-being because it does not know how many prisoners have a mental health problem and how much it spends on mental heath care in prisons. The report notes that the prison system is under considerable pressure and the rates of self-inflicted deaths and self-harm have increased significantly. Interventions identified by the Government have not yet been implemented, and the quality of health care provided in privately managed prisons is not monitored. The Prisons and Probation Ombudsman reported in 2016 that 70% of prisoners who committed suicide between 2012 and 20124 had mental health needs.

Conferences

On 13 October 2017, the Academic Committee of the Civil Mediation Council will host a conference on ‘Compulsory mediation in the civil courts: opportunity or threat?‘ The conference takes place against a background of the modernising of court processes and the introduction of the online court. The Keynote Address will be provided by Sir Ernest Ryder, Lord Justice of Appeal and Senior President of Tribunals.

On 5 December 2017, Queen Margaret University will host a conference to consider the impact of complaints on public service employees. The event is to address a gap in existing administrative justice research and practice, where the emphasis has tended to be on how citizens experience complaint processes and the impact of complaints on public service staff has tended to be ignored. The conference will also address ideas around ‘employee recovery’ and how public services staff can be supported through the complaints process. In addition to hearing from a number of high profile academics and practitioners, the conference will present the findings of a small research study and will culminate in the production of guidance by the Scottish Public Services Ombudsman aimed at helping public bodies better support their staff.