UKAJI March 2022 round-up

UKAJI March 2022 round-up

Here is UKAJI’s round-up of important news, cases, events and publications related to administrative justice. If you have anything to add to this round-up or any future round-ups, please contact Lee Marsons on lm17598@essex.ac.uk. To put together this round-up, UKAJI makes use of the UK Constitutional Reform Tracker.

Appointments:

• The Home Secretary extended the appointment of Robin Simcox as Interim Commissioner for Countering Extremism. Simcox’s appointment was extended by three months in order for planning to continue on appointing and establishing a permanent Commissioner.
• The Home Secretary announced that Andrew Cooke, former Chief Constable of Merseyside Police, was her preferred candidate for Her Majesty’s Chief Inspector of Constabulary and Fire and Rescue Services.
• Jonathan Hall QC was appointed by the Home Secretary to a further three-year term as Independent Reviewer of Terrorism Legislation.
• The Home Secretary appointed Lord Hughes, former Justice of the UK Supreme Court, to chair an inquiry into the death of Dawn Sturgess, who died in 2018 following her exposure to the nerve agent, Novichok. The inquiry commenced on 17 March 2022.
• Baroness Stuart, a Labour MP formerly involved with the campaign to leave the European Union, was announced as the government’s preferred candidate for First Civil Service Commissioner. The Public Administration and Constitutional Affairs Committee went onto approve this appointment.
• The Secretary of State for Digital, Culture, Media and Sport announced that Lord Grade, former BBC Chairman, was the government’s preferred candidate for Chair of Ofcom.

Publications and reports:

• Professor Martin Levermore, the Independent Person to the Windrush Compensation Scheme, published a report on the oversight and performance of the Windrush Compensation Scheme. Professor Levermore in particular makes four recommendations for reform: first, that there should be clearer links between the Windrush Scheme, which can provide certain members of the Windrush generation with a right to remain in the UK, and the Windrush Compensation Scheme itself, which provides compensation for any disadvantages suffered through Home Office error; second, that applications are grouped by family and other criteria to fast-track similar cases; third, additional support should be provided to claimants to help improve the quality of applications; and, fourth, that the Independent Person should consult with the charity, JUSTICE, which published a report on improving the Windrush Compensation Scheme, to ensure that the recommendations are implemented effectively.
• Sir Ernest Ryder, former Senior President of Tribunals, released his report into the fairness of the parliamentary standards system. He was commissioned to do this by the House of Commons Committee on Standards.
• The Public Administration and Constitutional Affairs Committee released a report entitled “The Coronavirus Act 2020: Two Years On”, which put forward a series of recommendations on parliamentary scrutiny of delegated legislation and delegated powers in the event of future public emergencies and pandemics.
• Richard Kirkham, Parliamentary scrutiny of the Parliamentary and Health Service Ombudsman (Journal of Social Welfare and Family Law).
• Emily Schindeler, Unanswered questions: Family dispute resolution in the shadow of the law (Journal of Social Welfare and Family Law).
• Lisa Vanhala and Jacqueline Kinghan, The madness of accessing justice: legal mobilisation, welfare benefits and empowerment (Journal of Social Welfare and Family Law).
• Alice Welsh, Permission to discriminate – EU nationals, pre-settled status and access to social assistance (Journal of Social Welfare and Family Law).
• Charlotte Woodhead, Cerisse Gunasinghe, James Kenrick and Dame Hazel Genn, Social welfare advice and health among young people: A scoping review (Journal of Social Welfare and Family Law).
• Hala Altamimi, Qiaozhen Liu and Benedict Jimenez, Not Too Much, Not Too Little: Centralization, Decentralization, and Organizational Change (Journal of Public Administration Research and Theory).
• Brian Y An and Shui-Yan Tang, When Agency Priorities Matter: Risk Aversion for Autonomy and Turf Protection in Mandated Collaboration (Journal of Public Administration Research and Theory).
• Grant Blume, “As Expected”: Theoretical Implications for Racialized Administrative Power as the Status Quo (Journal of Public Administration Research and Theory).
• Kirstine Zinck Pedersen and Anja Svejgaard Pors, Discretionary responses in frontline encounters: Balancing standardization with the ethics of office (Journal of Public Administration Research and Theory).

Ombuds affairs

• The PHSO is consulting on its new Central Government Complaints Standards until 31 May 2022.
• The PHSO released a public statement calling on the Home Office to significantly improve its visa processes and decisions in light of delays experienced by Ukrainian refugees fleeing the Russian invasion.
• Rob Behrens’ term of office as PHSO was extended by 2 years, which begins in April 2022.
• The PHSO determined that the Environment Agency had caused prolonged distress to two brothers who ran a small business during their application to use water from the River Avon to provide electricity for a mill. This was the second successful PHSO finding against the Environment Agency related to this application, the other being in December 2015 where the Agency was found to have mismanaged the application process.
• The Housing Ombudsman published its first annual review of landlord complaints handling and found that 66% of investigations into landlord complaints handling were upheld.
• The Housing Ombudsman released its corporate plan for 2022-25.
• The Northern Ireland Public Services Ombudsman launched a training programme to improve complaints handling in Northern Ireland. Starting with local government, the programme will also cover central government, health and social care, education and housing.
• The Scottish Public Services Ombudsman laid the results of 17 investigations before the Scottish Parliament, available here.
• The Local Government and Social Care Ombudsman determined that Staffordshire Council should reconsider its decision not to hear a complaint by a woman who was a looked after child in the council’s care.
• The LGSCO determined that Wirral Metropolitan Borough Council should pay an autistic teenager £4000 after it failed to put in place proper educational provision for him.
• The LGSCO determined that Devon Council had inadequately planned for a teenager with special educational needs to change schools in Year 11, causing several months of disrupted education.

Government departments:

• The Department for Education released its SEND Review, which is open for consultation until 1 July 2022.
• The Ministry of Justice released its response to a consultation on dispute resolution in England and Wales, available here.
• The Home Office released its response to a consultation on giving Police and Crime Commissioners greater powers. The response indicates that Police and Crime Commissioners will be granted, when parliamentary time for primary legislation permits, a general “functional power of competence” so that they can carry out any act connected to their general purposes.
• The Home Office released a policy paper on male victims of domestic abuse, examining matters including identification and reporting of abuse and support services available to male victims.
• The Home Secretary announced the terms of reference for an independent review of Border Force. Alexander Downer, the independent reviewer who is a former Australian minister and diplomat, will examine the following matters: the mission of Border Force and how it can be better defined; the capabilities required at frontline and managerial level; the levels of accountability within Border Force; and the role that Border Force might have in dealing with small boat crossings.
• The Cabinet Office released the terms of reference for the government’s Covid-19 Inquiry, to be chaired by Baroness Hallett, a former Court of Appeal judge. The terms of reference cover: preparedness for the pandemic; the public health response; the response in the health and care sector; and the economic response of the government.
• The Home Office launched a consultation on Schedule 7 of the Terrorism Act 2000, which permits individuals at a port to be stopped, searched, questioned and detained to determine whether they are involved in terrorism. The consultation closes on 12 April 2022 and addresses when a search may be conducted away from a port and the nature of the questions which may be asked by officials exercising the powers.
• The Ministry of Justice launched a consultation called the “Legal Aid Means Test Review”, which examines whether the current means testing and income thresholds for legal aid eligibility are appropriate. The consultation proposes increasing significantly the income and capital thresholds for legal aid eligibility but removing the means test entirely for some civil cases. These include legal representation for children and legal representation for parents whose children are facing proceedings in relation to the withholding or withdrawal of life-sustaining treatment. There is also a plan to remove the upper disposable income threshold for legal aid in the Crown Court.
• A number of government departments published a joint response to the Commission on Race and Ethnic Disparities. The government’s response, entitled “Inclusive Britain”, contains 70 actions that the government proposes to take grouped under three themes: trust and fairness; opportunity and agency; and inclusion.
• The Ministry of Justice launched a public consultation on Strategic Litigation Against Public Participation (SLAPP), whereby legal processes are used to harass, intimidate and financially exhaust opponents via improper means. The consultation particularly focuses on actions brought by individuals or corporations to avoid scrutiny of their actions in the public interest. The consultation closes on 19 May 2022.
• The Ministry of Justice and Department for Health and Social Care launched a consultation on proposed changes to the Mental Capacity Act 2005 Code of Practice and implementation of the Liberty Protection Safeguards. The consultation closes on 7 July 2022.
• The Early Legal Advice Pilot Scheme Order 2022 came into force, which establishes a pilot scheme called the “Early Legal Advice Pilot” that provides legal aid for certain civil legal services. The pilot will run from 1 April 2022 to 31 March 2024 and will apply to individuals habitually resident in Manchester or Middlesbrough. The scheme provides advice and assistance in relation to certain housing, debt, and welfare benefits issues but only for the provision of up to three hours of advice and assistance, and not including the provision of advice and assistance in the form of representation.

Cases

• The Administrative Court concluded that the Home Office’s blanket policy of seizing the mobile phones of asylum seekers at ports was an unlawful interference with Article 8 of the ECHR. This was because it was not in accordance with law, as various provisions relied upon to justify the Home Office’s policy provided no legal basis for the seizures. The Home Office conceded during the hearings that a number of these purported legal bases were erroneous: R (HM) v Secretary of State for Home Department [2022] EWHC 695 (Admin).
• The Court of Appeal determined, in a claim pursued by the Good Law Project, that the first instance judge had been entitled to refuse permission to validate the claimant’s defective service of a claim for judicial review under Part 54 of the Civil Procedure Rules. The result was that Good Law Project’s challenge to the lawfulness of the public procurement of a contract for the supply of personal protective equipment to Pharmaceuticals Direct Limited in the early stages of the Covid-19 pandemic could not proceed: R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355.
• The Court of Appeal gave judgment in a case related to victims of human trafficking and whether domestic policies designed to implement the European Convention on Action Against Trafficking in Human Beings (ECAT) had satisfactorily interpreted and applied the measure. The Court of Appeal determined that, while the Secretary of State was not obligated to give an official immigration status to victims of human trafficking, there could be an obligation not to take action to deport the individual. The Court further made obiter comments in relation to delays in Home Office decision-making about victims of human trafficking, noting that these delays were “notorious”: R (EOG and KTT) v Secretary of State for Home Department [2022] EWCA Civ 307.
• The Administrative Court concluded that the Secretary of State’s policy of permitting some 16 and 17 year old “looked after” children be housed in an “unregulated setting” if the relevant local authority was of the view that the setting was suitable, was lawful. The claimant argued that the Secretary of State distinction between “looked after” children under 16, who could not be housed in unregulated settings, and those over 16 was irrational. The claimant also argued that the policy breached s.149 of the Equality Act 2010 (the Public Sector Equality Duty) and that the Secretary of State had failed adequately to consult children in developing this policy: R (Article 39) v Secretary of State for Education [2022] EWHC 589.
• The Court of Appeal determined a preliminary matter in a tort action pursued against the Security Services, who were accused of providing questions and information to the American CIA despite knowing that the claimant was being mistreated by the CIA. In particular, the claimant alleged that the torts of misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence were committed by the Security Services. The Court of Appeal had to decide whether the law of England and Wales applied to these acts or whether the acts of the respective countries involved (including Thailand, Poland, Lithuania, Cuba, Afghanistan and Morocco) applied. The Court decided that the law of England and Wales was to apply: R (Zubaydah) v Foreign and Commonwealth Office [2022] EWCA Civ 334.
• The Court of Appeal allowed the Secretary of State’s appeal in a case concerning alleged discrimination against female victims of human trafficking who were also lone parents. The Court determined that whether the case was argued on a discrimination against women or discrimination against lone parents basis, it was not enough to establish merely prima facie discrimination. The claimants also had to establish that they had been discriminated against on the facts of their cases and that the discrimination was not justified. The claimants had yet to establish either of these things: R (MD) v Secretary of State for Home Department [2022] EWCA Civ 336.
• The Court of Appeal quashed a decision of the Special Immigration Appeals Commission (SIAC) that, while the Secretary of State’s procedure had been unfair during the claimant’s naturalisation application, the outcome of rejecting the application was inevitable, causing SIAC to refuse any relief to the claimant. The Court of Appeal decided that, while SIAC had followed the correct legal test, it had reached a conclusion on the facts not reasonably open to it. Also of interest is that the Court noted that under the British Nationality Act 1981, the relevant test for refusing relief to claimants was if the outcome would inevitably be the same. This contrasts with s.84 of the Criminal Justice and Courts Act 2015, which requires courts to refuse relief where it appears highly likely that the outcome for the claimant would not have been substantially different. Both parties agreed that the pre-2015 must apply: R (GA) v Secretary of State for Home Department [2022] EWCA Civ 304.
• The Northern Ireland Court of Appeal dismissed a judicial review challenge to the Northern Ireland Protocol of the UK-EU Withdrawal Agreement, where the claimants argued that the Protocol was incompatible with the Act of Union 1800, Northern Ireland Act 1998 and Human Rights Act 1998: Allister v Secretary of State for Northern Ireland [2022] NICA 15.
• The Administrative Court concluded that, in a challenge to the Secretary of State’s so-called “pushback policy” of redirecting migrant boats out of UK territorial waters, the claimant could not rely on expert evidence. The claimant sought to rely on evidence from a specialist on maritime search and rescue and a Master Mariner. While accepting the experts’ credentials, the Court determined that their evidence was not reasonably required to resolve the legal dispute before it: R (Public and Commercial Services Union) v Secretary of State for Home Department [2022] EWHC 517.
• The Court of Appeal decided that an administrative error whereby the First-tier Tribunal did not receive written submissions from the claimant prior to reaching its decision in relation to him did not render that decision unlawful. In particular, the Court found that the submissions nothing of importance that could have altered the outcome of the case: R (Rahaman) v Secretary of State for Home Department [2022] EWCA Civ 310.
• The Court of Appeal found that the Home Office had breached its duty of candour to the court in a judicial review claim concerning two Turkish nationals deported to Turkey following the certification of their human rights claim as totally without merit under s.94B of the Nationality, Asylum and Immigration Act 2002. The Court of Appeal determined that there had been serious failures of disclosure by the Secretary of State in relation to the Turkish government’s attitude towards facilitating use of video link technology in its premises. While the Court also determined that the claimant’s public law challenges were now academic, it added that this did not prevent any private law claims for damages from proceeding: R (Yilmaz) v Secretary of State for Home Department [2022] EWCA Civ 300.
• The First-tier Tribunal decided that the submissions of government departments to the Independent Review of Administrative Law were too divergent to be in the public interest to disclose, as this could undermine collective cabinet responsibility: Public Law Project v Information Commissioner and Secretary of State for Justice EA/2021/0378.

Parliamentary news:

• The Independent Expert Panel, which hears appeals from the Parliamentary Commissioner for Standards under the Independent Complaints and Grievance Scheme (ICGS), upheld 21 allegations of bullying and improper conduct against the former Speaker of the House of Commons, John Bercow. At 3.9, the report concluded that: “It is for historians to judge whether the respondent was a successful reforming Speaker of the House of Commons. However, there was no need to act as a bully in order to achieve that aim. A great office can be filled forcefully and effectively without descending to such behaviour.” In addition, at 3.11 the report argued that: “His evidence in the investigations, the findings of the Commissioner, and his submissions to us, show also that the respondent has been a serial liar.” Ultimately, the report determined at 3.13 that: “The respondent’s conduct was so serious that, had he still been a Member of Parliament, we would have determined that he should be expelled by resolution of the House.”
• The Dissolution and Calling of Parliament Act 2022 received royal assent. This Act repeals the Fixed-Term Parliaments Act 2011 and revives the royal prerogative powers to dissolve Parliament and call a new Parliament. It also contains an ouster clause making non-justiciable any use of these prerogative powers.
• The Public Service Pensions and Judicial Offices Act 2022 received royal assent, a response to the Court of Appeal’s decision in Lord Chancellor v McCloud [2018] EWCA Civ 2844 which determined that there was unlawful direct age discrimination in certain transitional provisions related to judicial pensions.
• The Economic Crime (Transparency and Enforcement) Act 2022 received royal assent, which: creates a register of overseas entities in the UK and their beneficial owners; strengthens powers in relation to unexplained wealth orders; and creates an urgent procedure for the imposition of sanctions.
• The House of Commons passed a humble address motion requiring the disclosure by the government of “any document held by the Cabinet Office or the Prime Minister’s Office containing or relating to advice from, or provided to, the House of Lords Appointments Commission concerning the appointment of Evgeny Alexandrovich Lebedev as a Member of the House of Lords” and “the minutes of, submissions relevant to and electronic communications relating to, any meeting within the Cabinet Office or the Prime Minister’s Office at which the appointment of Lord Lebedev…was discussed”. The motion passed as the government did not whip its MPs to oppose the motion.