UKAJI October 2020 round-up
Here is UKAJI’s round-up of important administrative justice news, events, and publications for October 2020. If you have anything to add to this round-up or any future round-ups, please contact Lee Marsons on firstname.lastname@example.org.
NB: the acronym IRAL referred to throughout this round-up stands for the Independent Review of Administrative Law.
UKAJI blog posts
- Lee Marsons, Maurice Sunkin and Theodore Konstadinides, UKAJI submission to the IRAL – a summary
- Lee Marsons, Maurice Sunkin and Theodore Konstadinides, UKAJI submission to the Independent Review of Administrative Law (IRAL)
- Lewis Graham, The Perpetual Constitution, Democracy and Rights Commission
- Theodore Konstadinides, Lee Marsons, and Maurice Sunkin, Reviewing Judicial Review: The constitutional importance of the Independent Review of Administrative Law (IRAL)
- Lee Marsons, UKAJI call for blogs on the Independent Review of Administrative Law (IRAL)
Articles and publications
- Julie Tipping, ‘Employment and support allowance: mandatory reconsideration and appeals come full circle’ (Journal of Social Welfare and Family Law)
- Jed Meers, ‘Fatally upsetting the computer’: universal credit, earned income, and the demands of automation’ (Journal of Social Welfare and Family Law)
- Emma Hitchings and Mavis Maclean, Unprecedented times: some thoughts on the consequences of the COVID-19 pandemic from a family and social welfare law perspective (Journal of Social Welfare and Family Law)
- Alison Tarrant, Personal budgets in adult social care: the fact and the fiction of the Care Act 2014 (Journal of Social Welfare and Family)
- Helen O’Nions, ‘Fat cat’ lawyers and ‘illegal’ migrants: the impact of intersecting hostilities and toxic narratives on access to justice (Journal of Social Welfare and Family Law)
- Marie Burton, Lost in space? the role of place in the delivery of social welfare law advice over the telephone and face-to-face (Journal of Social Welfare and Family Law)
- Rachel Jeffers, Escaping from the universal credit ‘lobster pot’ (Journal of Social Welfare and Family Law)
- Nick Bennett, The new public services Ombudsman for Wales Act 2019: the story 2014 – 2020 (Journal of Social Welfare and Family Law)
- Vibeke Lehmann Nielsen, Helle Ørsted Nielsen and Mette Bisgaard, Citizen reactions to bureaucratic encounters – Different ways of coping with public authorities (Journal of Public Administration Research and Theory)
- Steffen Eckhard, Alexa Lenz, Wolfgang Seibel, Florian Roth, and Matthias Fatke, Latent Hybridity in Administrative Crisis Management: The German Refugee Crisis of 2015/16 (Journal of Public Administration Research and Theory)
- Jurgen Willems, Lewis Faulk, and Silke Boenigk, Reputation Shocks and Recovery in Public-Serving Organizations: The Moderating Effect of Mission Valence (Journal of Public Administration Research and Theory)
- Lucie Trlifajová, Jakob Hurrle, Work must pay: Does it? Precarious employment and employment motivation for low-income households (Journal of European Social Policy).
- Kitty Stewart, Kerris Cooper and Isabel Shutes, What will ‘taking back control’ mean for social policy in the UK? Brexit, public services and social rights (Journal of European Social Policy)
- Anna Simola and Sirpa Wrede, Young EU migrant citizens’ access to financial independence in conditions of precarious work: A tripartite approach to welfare conditionality (Journal of European Social Policy)
- Joe Tomlinson, ‘Justice in Automated Administration‘ (Oxford Journal of Legal Studies).
- Jack Maxwell and Joe Tomlinson, ‘Proving algorithmic discrimination in government decision-making‘ (Oxford University Commonwealth Law Journal).
Reports and policy papers
- Age UK published a report on the mental and physical wellbeing of the elderly during the Covid-19 pandemic.
- Institute for Public Policy Research published a report on the human impact of the hostile environment immigration policy.
- The Public Law Project issued an update to its report on Exceptional Case Funding in legal aid on how Covid-19 had impacted upon this form of funding.
- Ministry of Housing, Communities and Local Government published a policy paper related to the long-term delivery of social and affordable rented housing.
- The Ministry of Justice published its response to a consultation on departure of UK courts from retained EU law.
- The Public Law Project issued a report entitled Plus ça change? Brexit and the flaws of the delegated legislation system
- The House of Commons Women and Equalities Committee published an interim report on the unequal impact of Covid-19.
- Social Mobility Commission published a report on unequal social mobility opportunities in England caused by deprivation.
- Tonic, Stonewall Housing and Opening Doors London published a report on housing opportunities for older LGBT people.
- Women’s Budget Group published a report on creating a gender-equal economy.
- Child Poverty Action Group published a report on the impact of coronavirus on low-income families and children.
- Ministry of Housing, Communities and Local Government published a consultation on raising accessibility standards for the elderly and disabled for new homes.
- Lady Lawrence published her report for The Labour Party on the disproportionate impact of Covid-19 on ethnic minority communities.
- Carnegie UK Trust published a report entitled Good Work for Wellbeing in the Coronavirus Economy.
- In November, the Public Law Project is to hold a three-day workshop entitled Rise of the Robots: Challenging automated decision-making in government
- The Administrative Justice Council hosted a Webinar entitled ‘Falling through the gaps’ related to the Windrush scandal.
- The Legal Wales Conference took place on 9 October, which included a keynote speech from the Lord Chief Justice of England and Wales.
- The Lord Chief Justice of England and Wales held a virtual roundtable of Chief Justices from across the Commonwealth to discuss the experiences and responses of courts and tribunals facing the coronavirus pandemic.
- The Competition and Markets Authority and Serious Fraud Office signed a Memorandum of Understanding.
- The CMA is to investigate consumer protection in care homes.
- Public Law Project held an event on 29 October on challenging delays in the EU Settlement Scheme.
- Public Law Project held a digital conference on Judicial Review Trends and Forecasts 2020.
- JUSTICE established a working group on reforming benefits decision-making, headed by Lord Low of Dalston
- The Administrative Justice Council commissioned a survey on the provision of social welfare benefits during the Covid-19 pandemic.
- On 26 October at 17:00, the deadline for submissions to the IRAL’s call for evidence closed. This followed an extension of the initial deadline, which was 19 October at 12:00.
- Lord Sumption delivered the Cambridge Freshfields Annual Law Lecture on 27 October entitled ‘Government by decree – Covid-19 and the Constitution‘. A transcript of Sumption’s speech can be found here.
- On 20 October, the Government passed the Human Rights Act 1998 (Remedial) Order 2020, which amends s.9 of the Act using Schedule 2 of the Act in response to the European Court of Human Rights judgment in Hammerton v United Kingdom  ECHR 272. This follows a Joint Committee on Human Rights report recommending that Parliament approve the Order, and an initial report recommending that the Government adopt a wider reading of the judgment. By contrast, the Judicial Power Project recommended against permitting the executive to amend the 1998 Act using powers under that Act.
- On 29 October, Lord Carloway gave the Lord Rodger Memorial Lecture on constitutional principle and the rule of law.
Cases of interest
- R (Medical Justice) v Secretary of State for Home Department  EWCA Civ 1338, which concerned whether Home Office policy on speedy removals and deportations of migrants unlawfully abrogated the common law right of access to the court;
- AA (Nigeria) v Secretary of State for Home Department  EWCA Civ 1296, a judicial review against the decision of the Upper Tribunal that deportation of the claimant following his conviction serious drugs offences would not involve a violation of Article 8 ECHR in relation to his partner and children;
- R (Hoque, Mubarak, Kabir and Arif) v Secretary of State for Home Department  EWCA Civ 1357, which related to the correct interpretation of the ‘long residence’ provisions of the Immigration Rules (para. 276B);
- R (Lochailort Investments Ltd) v Mendip District Council  EWCA Civ 1259, which relates to the lawfulness of a neighbourhood development plan under the Localism Act 2011;
- R (Officer W80) v Commissioner of Police of the Metropolis  EWCA Civ 1301, relating to a dispute between the Metropolitan Police Commissioner, the Independent Office for Police Conduct, and an unnamed police officer about whether disciplinary proceedings should be pursued against the officer for gross misconduct for use of excessive force which led to a man’s death;
- R (RD) v Secretary of State for Justice  EWCA Civ 1346, related to whether a requirement to disclose a reprimand received from police as a child for petty theft was a violation of Article 8 ECHR when the individual applied for a job as a police support officer as an adult;
- R (Bhandal) v Secretary of State for Housing, Communities and Local Government  EWHC 2724 (Admin), a judicial review related to the lawfulness of an enforcement notice granted by a planning inspector appointed by the Secretary of State;
- R (CC) v Secretary of State for Work and Pensions and Her Majesty’s Treasury  EWHC 2817 (Admin), a judicial review related to the Government’s failure to increase the rate of payment of Carer’s Allowance;
- R (Hemms) v Bath and North East Somerset Council  EWHC 2721 (Admin), a judicial review related to the refusal of Bath Council to exercise statutory powers to remove a fence adjoining private property;
- R (McGaw) v Welsh Ministers  EWHC 2588 (Admin), a judicial review related to the refusal of a local authority and a planning inspector appointed by Welsh Ministers to grant planning permission for the claimant to build a ‘garden room’;
- R (London Historic Parks and Gardens Trust) v Secretary of State for Housing, Communities and Local Government  EWHC 2580 (Admin), on whether domestic law had satisfactorily transposed EU law in relation to creating an independent and objective authority to deal with environmental impact assessments;
- R (QH) v Secretary of State for Home Department  EWHC 2691 (Admin), an urgent application for interim relief (a mandatory order) requiring the claimant – a victim of human trafficking – to be provided with single occupancy housing in London;
- R (Skelton) v Senior Coroner for West Sussex  EWHC 2812 (Admin), a judicial review pursued by the family of a murder victim seeking a new inquest which complied with Article 2 ECHR.
- R (Moore) v Secretary of State for Work and Pensions  EWHC 2827 (Admin), a judicial review related to whether the treatment of maternity allowance as unearned income for Universal Credit purposes was unlawful.
- Health Service Executive of Ireland v IM and Kent County Council  EWCOP 51, a Court of Protection case related to where a 92-year old was habitually resident, Ireland or the United Kingdom, to determine which court (the High Court of Ireland or the Court of Protection) had jurisdiction over the issue.
- As of 12 October, the Scottish Government opened applications for the new Self-Isolation Support Grant to financially assist those who are self-isolating due to coronavirus.
- The Scottish Parliament’s Equality and Human Rights Committee is to hold an oral evidence session via Zoom with children and young people who have experience of living in care. This is part of its inquiry into the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.
- Holyrood’s Standards, Procedures and Public Appointments Committee is to examine the practices and procedures of the Scottish Parliament over the past seven months during the coronavirus pandemic. The Committee will evaluate recent changes with a view to recommending revisions to the Parliament’s Standing Orders to promote resilience in future challenging situations. The announcement can be found here.
- Holyrood’s Local Government and Communities Committee is to consider the Fair Rents (Scotland) Bill, a Member’s Bill introduced by Pauline McNeill MSP. The Bill is designed to create a system of private rent capping in Scotland. The announcement can be found here.
- Holyrood’s Finance and Constitution Committee recommended that the Scottish Parliament endorse the Scottish Government’s UK Withdrawal From the European Union (Continuity) (Scotland) Bill, which enables Scottish Ministers to make provision in secondary legislation for Scots law to keep pace with EU law in devolved areas.
- On 7 October, the Scottish Parliament voted to refuse a Legislative Consent Memorandum for Westminster’s Internal Market Bill.
- The Senedd’s Public Accounts Committee expressed concern about delays in the roll-out of the Welsh Community Care Information System (WCCIS) which is designed to replace paper health records with electronic records. This followed a report by the Welsh Auditor General on the same matter.
- The Welsh Auditor General published a report on the National Fraud Initiative in Wales 2018-20, designed to tackle incidents of fraud and overpayment across Welsh public services.
- The Welsh Auditor General published a report to set out its audit arrangements for community and town councils in Wales for 2020-21 accounts.
- The Welsh Auditor General published an interim report on progress made against its Annual Plan 2020-21 during April to September 2020.
- The Welsh Auditor General published a report on commercialisation in local government in Wales
- The Welsh Auditor General published a report on the financial sustainability of local government in Wales following the coronavirus pandemic.
- The Welsh Auditor General published a report entitled ‘Better law making: the implementation challenge’ on the challenges that public bodies, local authorities, and the Welsh Audit Office face in implementing legislation passed by the Senedd.
- The Senedd’s Finance Committee launched a consultation on the Welsh Government’s Budget 2021-22.
- The Senedd launched an online exhibit known as Windrush Cymru to celebrate Windrush generation stories and achievements in Wales.
- The Scottish Human Rights Commission published a report on Covid-19, social care, and human rights.
- 8 October 2020 was International Ombuds Day.
- The PHSO published an interim report regarding a research questionnaire that it carried out on the impact of coronavirus on ombuds institutions around the world. The PHSO received 52 responses from 36 countries and disseminated the questionnaire via the International Ombudsman Institute.
- The PHSO decided a complaint in relation to a complainant who had applied to remain in the UK via the Windrush Scheme. The complainant had been resident in the UK since 1973 and had been unable to prove his right to remain since 2014. The complainant waited ten months for his application to be considered, only for it to be wrongly refused, and was offered false advice that he could claim benefits until there was a decision on his application. The PHSO’s summary and recommendations can be found here.
- The SPSO laid its conclusions for 34 complaints before the Scottish Parliament.
- The SPSO, which is also the Independent National Whistleblowing Officer (INWO) in Scotland, will begin its functions in relation to NHS Scotland on 1 April 2021.
- The SPSO announced that will be considering complaints in relation to the Scottish Self-Isolation Support Grant.
- Margaret Kelly, the NIPSO, released a video on 8 October explaining why the work of ombuds institutions was important.
- The LGSCO determined that a complainant in Westminster was left without support to access the community after Westminster council reduced his care hours inappropriately.
- The London Borough of Harrow is to improve the way it processes Blue Badge assessments following a successful LGSCO complaint.
- The LGSCO recommended that Sheffield Council offer a public apology for the inadequate way that it removed street trees in local areas.
- The LGSCO decided a complaint in favour of an autistic woman who was regularly and repeatedly asked to provide evidence of a council tax waiver by Calderdale Council.
- The LGSCO issued new complaints handling guidelines for local authorities.
- The Housing Ombudsman issued a report detailing five cases where it found severe maladministration.
- On 21 October, the House of Commons declined to support an Opposition Day Motion to fund free school meals during school holidays until Easter 2021.
- The Westminster Parliament considered the Internal Market Bill at Second Reading.
- PACAC launched an inquiry on the Government’s proposed Constitution, Democracy and Rights Commission. The consultation runs until 16 November and can be found here. The Committee held its first oral evidence session on 6 October with witnesses including Lord Sumption, Lord Lisvane, and Prof Meg Russell. The transcript of the evidence session is available here.
- PACAC published its report into the Fixed-Term Parliaments Act 2011, which is available here.
- PACAC launched an inquiry into the role and status of the Prime Minister’s Office, which runs until 4 November 2020. The announcement is available here. PACAC also has an inquiry running until 23 November on English devolution, available here.
- The Chairs of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee wrote to the Secretary of State for the Environment, Food and Rural Affairs to express concern about the Government’s proposed interim regulator, the Office for Environmental Protection. This interim regulator is necessary because delays to the Government’s proposed Environment Bill mean that a statutory regulator will not be established by the end of the Brexit transition period. The exchange of letters is available here.
- On 23 October, the House of Lords Common Frameworks Scrutiny Committee launched an inquiry into the UK common frameworks programme. Common frameworks are the mechanism by which the UK and devolved administrations mutually agree some degree of regulatory consistency in policy areas where returning EU powers are within devolved competence. The inquiry is available here.
- The Home Affairs Committee held an evidence session on 14 October with Wendy Williams on the Windrush Lessons Learned Review, particularly how the recommendations of the Review might be monitored and implemented. Williams, of Her Majesty’s Inspector of Constabulary and Her Majesty’s Inspector of Fire and Rescue Services, had previously conducted the initial Review, available here. The evidence session can be found here.
- The Public Accounts Committee published a report in relation to immigration enforcement and argued that the Home Office appeared to formulate policy on the basis of anecdote, assumption, and prejudice rather than evidence and data. This caused damage to both the legitimate and illegal immigrant populations. The report is available here.
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