What’s new in administrative justice, November 2017

Parliament

The EU (Withdrawal) Bill has begun its Committee stage in the House of Commons. The government has given assurances that parliament will be given a vote on whether or not to accept the deal agreed upon. However, in the event that parliament does not approve the deal, the UK will exit the EU nonetheless. The Government has also tabled amendments that would fix the date on which the UK will leave the EU.

The House of Commons Library has published a briefing paper focusing on retained EU law, and another focusing on instructions to the courts on the status and interpretation of that law.

The Joint Committee on Human Rights (JCHR) has identified priority Bills for scrutiny during the current parliament. In addition to the EU (Withdrawal) Bill, these are the Data Protection Bill; the Sanctions and Anti-Money Laundering Bill; the Immigration Bill; and, the draft Domestic Violence and Abuse Bill. The Data Protection Bill and the Sanctions and Anti-Money Laundering Bill have both been introduced in the House of Lords.

The JCHR has also held an evidence session to explore the relationship between freedom of speech and the Prevent duty in universities, and whether free speech is restricted on campuses.

The Constitution Committee has published a follow-up report on judicial appointments, warning that difficulties with recruitment threaten the UK’s legal system, and that more work to address judicial diversity is needed. The Committee has also published a report on the Data Protection Bill, noting the interlocking relationship between the powers contained in the Bill and current EU law. It suggests that the Bill will need careful scrutiny to ensure that the provisions continue to function post-Brexit, and draws attention to the large number of delegated powers in the Bill.

The Child Poverty (Scotland) Bill has completed its passage through the Scottish Parliament. The Bill will set statutory targets to reduce child poverty and place a duty on ministers to report regularly on progress.

Investigatory Powers

The Home Office has announced that it will shortly be launching a consultation on its proposed response to the judgment of the CJEU in a challenge to the Data Retention and Investigatory Powers Act 2014 (DRIPA). DRIPA has since been replaced by Part 4 of the Investigatory Powers Act 2016. The judgment sets out the safeguards that need to be in place in order for a data retention regime to be consistent with EU law. The Government has made it clear that the proposed response will ensure that the police and other public authorities can continue to acquire communications data in a way that is consistent with EU law.

The Investigatory Powers Tribunal has referred a complaint about the acquisition of Bulk Communications Data to the CJEU. The IPT is seeking guidance on the extent to which the relevant provisions of the Investigatory Powers Act are governed by EU law.

Immigration and asylum

The UNHCR has reported on the results of a study into the degree of integration achieved under the UK’s Syrian Vulnerable Persons Resettlement Scheme. The study found that the programme, which aims to resettle 20,000 refugees by 2020, is working relatively well. Refugees’ experiences of reception and early integration were positive, although language provision, employment support, and help with housing were identified as areas for improvement. Key recommendations included the establishment of a national integration strategy; a review of capacity to deal with short term surges in numbers; improving provision of appropriate accommodation; and making family reunification more integral to the scheme.

The Home Office has published a paper setting out further details on the administrative procedures underpinning the UK’s proposals for an applications system for EU citizens obtaining settled status. This follows an earlier policy paper on the status of EU citizens in the UK. The European Parliament’s Brexit Steering Group has contradicted suggestions that a deal on citizens’ rights is almost finalised, suggesting that there are still major issues to be resolved.

The Scottish Government has submitted evidence to the Migration Advisory Committee on the Contribution of EEA citizens to Scotland. Europe Minister Alasdair Allan suggested that the figures confirmed that workers from the EU brought huge economic benefits to Scotland.

Legal aid

The Ministry of Justice has presented the Legal Aid, Sentencing and Punishment of Offenders Act 2012: Post-Legislative Memorandum to the Justice Committee. It has been published as part of the post-legislative scrutiny process of LASPO. It will cover, among other issues, changes to the scope of legal aid; the Exceptional Case Funding Scheme; the introduction of the mandatory telephone gateway; reform of the application of the merits test; and abolition of the Legal Services Commission and its replacement with the Legal Aid Agency.

The Ministry of Justice has decided not to pursue an appeal against a decision to restore legal aid for prisoners in three categories. The MoJ had previously indicated that it intended to appeal to the Supreme Court against a decision of the Court of Appeal that restrictions on the availability of legal aid were unlawful in three areas.

Ombuds

A report has been published on research on language used in complaints handling. The Language of Complaints was produced by IFF Research for the Legal Ombudsman (LeO). The research was commissioned in order to help LeO understand how language affects consumers’ behaviour and choices and identify better practice in the use of language by LeO staff as well as legal services providers. The report highlights the use of jargon in complaints responses – including ‘remedy’, ‘premature’, ‘informal’ and ‘out of time’ – which can cause confusion or appear meaningless and add to ‘the accumulation of technical language that the customer will have encountered in their complaint “journey”.’ The researchers explored the impact of language used in both written and oral communication; consulted with staff at LeO and carried out 15 face-to-face interviews and four focus groups with members of the public, both those whose complaint to the Ombudsman had concluded and those who had used a legal services provider but not complained.

A report by MoneySavingExpert for the All-Party Parliamentary Group on Consumer Protection explores the ‘complex maze’ of ombuds that deal with consumer complaints. ‘Sharper Teeth: the Need for Consumer Ombudsman Reform’ suggests that because ombuds have different powers and vary in the extent to which companies comply with their decisions, consumers are left confused and frustrated. The report also explores consumers’ perceptions of impartiality of the ombuds and the fairness of their decisions. Recommendations for reform include that all companies should be a member of an ombud scheme and that there should be only one ombud for each consumer sector.

Wales

A Commission on Justice in Wales, announced in September 2017, will begin work in December 2017, chaired by Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales. The Commission members have been announced, as have the terms of reference. The aim of the Commission is to review the operation of the justice system in Wales and set a long-term vision for its future, including promoting better outcomes in terms of access to justice and ensuring that the jurisdictional arrangements and legal education reflect the role of justice in the governance and prosperity of Wales as well as distinct issues that arise in Wales. The Commission will publish a report of its findings and recommendations during the course of 2019.

Reports and consultations

The Home Office has published the report of a major independent review of deaths and incidents in police custody. The report makes numerous recommendations, on the use of restraint; the custody environment, training for officers; and access for families to legal aid at inquests. The government’s response commits to review existing guidance so that the starting presumption is that legal aid should be awarded for representation of the bereaved at an inquest following a suspicious death or suicide in police custody or prison.

The Scottish Government is consulting on proposals for transgender people to be legally recognised in their acquired gender. They include removing requirements under the Gender Recognition Act 2004 for applicants to provide medical evidence and have lived in their acquired gender for two years before applying to the Gender Recognition Panel. The deadline for responses is 1 March 2018.

A report on research into Scotland’s new arrangements for handling complaints about public services has been published by UKAJI, the University of Glasgow, and Queen Margaret University. ‘Scotland’s model complaint handling procedures: Exploring recent developments and the usefulness of complaint data for administrative justice research’ provides an insight into the operation of new arrangements in the local authority sector following the Public Services Reform (Scotland) Act 2010. Under the Act, the Scottish Public Services Ombudsman (SPSO) was tasked with simplifying and standardising complaint procedures across the Scottish public sector. To do so, it created an internal team called the Complaints Standards Authority (CSA). The CSA’s role involves designing model complaint handling procedures (model CHPs), monitoring the operation of those procedures (including setting data reporting requirements), and supporting the development of good practice in complaint handling.