UKAJI April 2022 round-up

UKAJI April 2022 round-up

Here is UKAJI’s round-up of important administrative justice and administrative law related news for April 2022. If you have anything to add to this round-up or any future round-ups, please contact Lee Marsons. UKAJI makes use of Public Law Project’s UK Constitutional Reform Tracker to put together its round-ups and is a partner to that project.

Publications

• Jed Meers, ‘Legacy benefits’ and the Universal Credit uplift: justified discrimination in the COVID-19 social security response (Journal of Social Welfare and Family Law).
• Pirmin Bundi and Valerie Pattyn, Trust but Verify? Understanding Citizen Attitudes Towards Evidence-Informed Policy-Making (Public Administration).
• Rhys Andrews, Judith Clifton and Laurence Ferry, The Corporatization of Public Services (Public Administration).
• Michael Howlett and M Ramesh, Designing for adaptation: Static and dynamic robustness in policymaking (Public Administration).
• Xin Chen and Andrew Sullivan, Should I stay or should I go? Why participants leave collaborative governance arrangements (Journal of Public Administration Research and Theory).
• Nicolai Petrovsky, Ge Xin and Jinhai Yu, Job Satisfaction and Citizen Satisfaction with Street-level Bureaucrats: Is There a Satisfaction Mirror? (Journal of Public Administration Research and Theory).
• Erik-Jan van Dorp, The Minister Wants It: Self-Politicisation and Proxy Politics Among Senior Civil Servants (Public Policy and Administration).
• Age Johnson, Strategic planning in turbulent times: Still useful? (Public Policy and Administration).

Reports and speeches

• On 1 April 2022, the Welsh Auditor General released its Annual Plan 2022-23 and its Equality Report 2020-21.
• On 6 April 2022, the Welsh Auditor General released a report on the effectiveness of direct payments for adult social care in Wales, available here.
• On 12 April 2022, the National Audit Office released a report setting out a framework for evaluating the effectiveness of government spending, available here.
• On 13 April 2022, the Joint Committee on Human Rights released its report on the government’s proposals to reform the Human Rights Act 1998.
• On 27 April 2022, the Master of the Rolls delivered the Annual Masters Lecture to the Worshipful Company of Arbitrators on mediation and dispute resolution. In his lecture, Sir Geoffrey Vos explored the place of mediation in a future digital dispute resolution system. The full speech is available here.
• On 28 April 2022, the Master of the Rolls gave a speech to the Socio-Legal Studies Association Conference entitled “The proper place of the law in a digital society”. Sir Geoffrey Vos’s theme was how law can be used as a tool for social improvement in a digitalised world. The full speech is available here.
• On 21 April 2022, the National Audit Office released a report on the effectiveness of the UK government’s cross-border travel management during the Covid-19 pandemic, available here.
• On 29 April 2022, the Independent Reviewer of Terrorism Legislation released a report into the operation of the Terrorism Acts 2000 and 2006 and the Terrorism Prevention and Investigation Measures Act 2011. The government released its response, focused on terrorist ideology in prisons, here.
• On 29 April 2022, the Public Administration and Constitutional Affairs Committee released a report on the Clearing House within the Cabinet Office which manages the cross-government response to certain freedom of information requests. The Committee concludes that the Clearing House lacks transparency in its purpose, criteria, performance standards and decisions.

Cases of interest

• The UK Supreme Court concluded that the Cabinet Office’s pilot scheme requiring a form of photographic ID for voting in some local authority elections was lawful: R (Coughlan) v Cabinet Office [2022] UKSC 11.
• The Administrative Court granted interim relief to an Afghan judge in hiding from the Taliban in Afghanistan who had made two applications to the Home Office. The first was for a visa to enter the UK given threats to him and his family following the fall of Kabul to the Taliban and the second was for a waiver of the obligation on him to provide biometric data prior to entering the UK. The claimant would be unable realistically to provide this data in Afghan or in Pakistan, his nearest safe centre. The Home Office had initially refused both applications. The Administrative Court granted interim relief on the basis that the decisions were highly likely to be irrational and that any harm to the public interest or national security could be amply dealt with my modest adjustments made by the Home Office: R (JZ) v Secretary of State for Home Department [2022] EWHC 771 (Admin).
• The Court of Appeal concluded that a British citizen who was initially an Afghan national was entitled to damages under s.8 of the Human Rights Act 1998 and for violation of European Union law (so-called “Francovich” damages). The Secretary of State had sought to remove him from the UK to Germany, where the Secretary of State argued his asylum application should be resolved. It was determined that this was a violation of Article 8 ECHR (right to respect for private and family life) and a breach of the Dublin III Regulation: R (QH) v Secretary of State for Home Department [2022] EWCA Civ 421.
• The High Court (Queen’s Bench Division) concluded that the UK regulatory regime for the sharing of bulk personal datasets (BPDs) to foreign intelligence agencies by the British security services was a lawful interference with Article 8 of the ECHR: R (Privacy International) v Investigatory Powers Tribunal [2022] EWHC 770 (QB).
• The Administrative Court gave judgment in a judicial review claim related to the Care Quality Commission’s guidance for providers in relation to its market oversight of the financial sustainability of “difficult to replace” providers of adult social care. Advinia advanced three grounds of review: (a) that the guidance misconstrued the word “likely” in the relevant statutory criteria; (b) that the guidance is procedurally unfair in that it restricts the ability to make representations and the ability to request an independent review; and (c) is procedurally unfair in its approach to disclosing confidential information. The Administrative Court upheld the challenge on ground 1 but dismissed it on grounds 2 and 3: R (Advinia Healthcare Ltd) v Care Quality Commission [2022] EWHC 965 (Admin).
• The Administrative Court held that it was not contrary to the Public Records Act 1958 or the Freedom of Information Act 2000 for ministers to communicate about government business using encrypted or self-deleting electronic messaging systems and that administrative law had yet to reach the stage whereby any codes of practice, policies or guidelines about use of these communications systems by ministers were enforceable in court: R (All the Citizens and Good Law Project) v Prime Minister [2022] EWHC 960 (Admin).
• The Administrative Court determined that the Health Secretary’s policy of discharging certain hospital patients into care homes during the Covid-19 pandemic was unlawful by virtue of being irrational. This was because the policy contradicted known scientific advice on the dangers of exposure to coronavirus at care homes. However, the Administrative Court dismissed a challenge based on Article 2 ECHR (the right to life), deciding that Strasbourg jurisprudence had not developed to the stage of requiring systemic actions to be taken in the midst of a pandemic: R (Gardner and Harris) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin).
• The Administrative Court dismissed a judicial review claim against Dover District Council for granting planning permission to Lydden Hill Race Circuit by a resident who was affected by the noise from the race track. The claimant argued that the Council had committed four errors of law: (a) an incorrect assessment of the level of noise required to produce a statutory nuisance; (b) an incorrect assessment of the consequences of the new development; (c) failure to give adequate reasons; and (d) failure to have regard to Article 8 ECHR: R (James) v Dover District Council [2022] EWHC 961 (Admin).
• The Administrative Court concluded that Surrey County Council had failed in its duties under a number of provisions in the Children Act 1989 and the Education Act 1996, specifically the duties to secure suitable education otherwise than at school, to review an education and health care plan (EHC) and to provide accommodation to children in need. The Administrative Court also dismissed arguments from the Council that the court should use the ”no substantial difference” test to refuse relief:  R (LB) v Surrey County Council [2022] EWHC 772 (Admin).
• The Administrative Court concluded that a proposed Holocaust memorial at Victoria Tower Gardens near Parliament Square was unlawful on the basis that the London County Council (Improvements) Act 1900 imposed a statutory ban on certain developments in that location: London Historic Parks and Gardens Trust v Minister of State for Housing [2022] EWHC 829 (Admin).
• The Administrative Court considered an application to hear live witnesses in judicial review proceedings in a case concerning obligations imposed on an individual under the Counter-Terrorism and Security Act 2015. The Administrative Court decided that oral evidence from national security witnesses was required to permit an adequate judicial assessment of the necessity and proportionality of the measures: R (QX) v Secretary of State for Home Department [2022] EWHC 836 (Admin).

Government departments

• On 12 April 2022, it was reported that the Prime Minister and his wife along with the Chancellor of the Exchequer would receive fixed penalty notices from the Metropolitan Police Service for attending unlawful gatherings during the Covid-19 pandemic. The story is available here.
• On 13 April 2022, Lord Wolfson resigned as Minister in the Ministry of Justice following the Prime Minister and Chancellor of the Exchequer receiving fixed penalty notices for breaching lockdown rules during the Covid-19 pandemic. The story is available here.
• On 14 April 2022, the Home Office announced that the UK and Rwanda had agreed a Memorandum of Understanding whereby the Rwandan authorities would process some asylum claims made to the UK in Rwanda and permit successful asylum claimants to reside in Rwanda.
• On 27 April 2022, Lord Geidt determined that the Chancellor of the Exchequer had not breached the Ministerial Code in respect of four potential conflicts of interest: (a) the Chancellor’s blind management arrangements for his financial assets; (b) the Chancellor’s possession of a US Green Card until October 2021; (c) the Chancellor’s wife being non-domiciled in the UK for tax purposes; and (d) certain shareholders possessed by the Chancellor’s wife. Lord Geidt concluded that: “I advise that the requirements of the Ministerial Code have been adhered to by the Chancellor, and that he has been assiduous in meeting his obligations and in engaging with this investigation.”
• On 28 April 2022, the Department for Digital, Culture, Media and Sport released a Broadcasting White Paper, which included proposals for the privatisation of Channel 4 and new powers for Ofcom to regulate video-on-demand services.

Ombuds affairs

• Rob Behrens, the PHSO, published a blog on the PHSO’s new strategy for 2022-25, available here.
• The PHSO upheld the complaint of a female tourist against the Foreign Office for providing her with inadequate advice and support on pursuing a complaint of sexual assault and rape in Turkey.
• The PHSO and LGSCO released joint guidance to health and social care bodies to tackle common and repeated mistakes seen in the aftercare of patients receiving support under the Mental Health Act.
• The LGSCO determined that Cambridgeshire County Council failed to provide adequate educational support to a nine year old boy with severe neuro-disabilities since September 2020 after the boy’s GP recommended against him attending school during the Covid-19 pandemic.
• The SPSO laid its findings in 13 complaints before the Scottish Parliament, available here.
• The Housing Ombudsman determined that Clarion, the UK’s largest housing association, was guilty of severe maladministration for its repeated failure to respond to a resident’s complaints and her attempts to escalate them.
• The Housing Ombudsman released its April 2022 newsletter, available here.
• The Housing Ombudsman launched a call for evidence on how social landlords deal with noise complaints, which is due to close on 13 May 2022.
• The Housing Ombudsman reported that its online casebook which summarises the Ombudsman’s decisions had reached in excess of 1800 cases.

Parliamentary affairs

• On 4 April 2022, in its consideration of House of Commons amendments to the Nationality and Borders Bill during “ping-pong”, the House of Lords made a number of amendments to the Bill and the government suffered ten defeats in votes. The Hansard is available here.
• On 19 April 2022, the Online Safety Bill had its second reading in the House of Commons. The Hansard is available here and the House further held a “carry over motion” to permit the Bill to progress to committee stage post-prorogation.
• On 26 April 2022, the House of Commons considered amendments made by the House of Lords to the Judicial Review and Courts Bill. Of particular importance, the government announced that it did not intend to ask the Commons to reinstate the presumption in favour of suspended and prospective-only quashing orders in Clause 1 of the Bill, which had been removed in the House of Lords following an amendment tabled by Lord Anderson of Ipswich.
• On 28 April 2022, Parliament was prorogued on Thursday 28 April 2022. The following important Bills received Royal Assent: British Sign Language Bill; Down Syndrome Bill; Elections Bill; Judicial Review and Courts Bill; Health and Care Bill; Nationality and Borders Bill; and the Police, Crime, Sentencing and Courts Bill.
• On 28 April 2022, the Independent Expert Panel released a report upholding allegations of bullying against Liam Byrne MP and recommending his suspension from the House of Commons.

Other news

• Lord Grade, former Chair of the BBC, was appointed as the Chair of Ofcom.
• It was reported in the media that the government had abandoned its plans to impose a legislative ban on so-called “conversion therapy”, or attempts to emotionally or cognitively suppress or reverse an individual’s sexuality or gender identity. After widespread criticism, the government announced that it intended to pursue the legislative ban but that it would not cover trans conversion therapy.
• The government cancelled its “Safe To Be Me” international LGBT conference following a boycott of the event by LGBT organisations after the government abandoned its plans to prohibit trans conversion therapy.
• On 19 April 2022, the National Archives launched a new website called “Find Case Law”, which collates and makes publicly accessible judgments from senior courts including the Court of Appeal and High Court of England and Wales, the UK Supreme Court and the Upper Tribunal. The website is available here.