affiliated to the International Association of Constitutional Law
Editors’ note: The Public Law Current Survey was originally published in Public Law and is reprinted here with the generous permission of that journal. The July 2015 issue of the journal is now out and its table of contents can be consulted below.
The Justice Select Committee report “Impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012” (HC 311, 12 March) was very critical of the Government’s cutting of civil legal aid. The Committee noted that the saving of £2bn from a £10bn budget had limited access to justice for some of those who needed legal aid the most. Furthermore, the MoJ had not been able to demonstrate that it has achieved value for money for the taxpayer. In some instances it had failed to prevent cases becoming more serious and creating further claims on the legal aid budget. Efforts to target legal aid at those who most needed it had focused on intervention aimed at the point after a crisis had already developed, rather than on prevention. That had created knock-on costs, either because cases became more serious so became eligible for legal aid, such as house repossession cases, or because costs were shifted from the legal aid budget to other public services rather than reduced overall. There had also been a significant underspend in the civil legal aid budget because the MoJ failed to ensure that those eligible for legal aid were able to access it. The Committee was also highly critical of the limited research and evidence base drawn on by the MoJ in pushing through the reforms. Such findings were echoed in the Public Accounts Committee report “Implementing Reforms to Civil Legal Aid” (HC 808, 4 February). It was “deeply disturbing that the Ministry of Justice’s changes to civil legal aid were based not on evidence but on an objective to cut costs as quickly as possible” adding the Ministry did not know, and had shown little interest in, the knock-on costs of its reforms across the wider public sector as a result of increased physical and mental health problems caused by the inability to access advice to resolve legal problems. Further, it had no idea whether the projected £300 million spending reduction in its own budget was outweighed by additional costs elsewhere.
The Lord Chancellor’s Exceptional Funding Guidance for Inquests which set out the test for the grant of legal aid and representation, and which asserted that the procedural obligation to investigate under Article 2 “only arises in a narrow range of circumstances where the evidence suggests that it is arguable that the State has breached its substantive obligation to protect life” was unlawful, as being based on various errors of law. The Guidance indicated there was but one trigger, namely evidence of arguable breach by the State, when Article 2 case law identified a variety of circumstances and types of case of real public importance and significance where the duty arose independently of the existence of evidence of arguable breach (R (oao Letts) v Lord Chancellor  EWHC 402 Admin).
The Defence Select Committee report “Decision Making in Defence Policy” (HC 682, 26 March) concluded that decision-making had become clearer in recent years but that more still needed to be done to improve the quality of information and strategic debate, and to allow disagreement in the system. The Committee’s study of two examples of poor decision-making in the past, the UK deployment of soldiers to isolated positions in Helmand, and the decision first to select STOVL (short take-off and vertical landing) jets for the aircraft Carriers, then to change to catapult launched jets, and then to reinstate the STOVL, showed improved interdepartmental coordination, and clearer leadership, clearer accountability, clearer civilian control, and clearer opportunity for challenge but a continuing lack of deep-country or subject expertise, and therefore, a lack of high-quality information or evidence available to decision-makers.
From 1 February, the Information Commissioner has had powers to subject public healthcare organisations to a compulsory audit for compliance with the Data Protection Act. These had previously only applied to central government departments. The audits will review how the NHS handles patients’ personal information, and can review areas including security of data, records management, staff training and data sharing.
The Science and Technology Committee warned in its report “Current and future use of biometric data and technologies” (HC 734, 7 March) that government had failed to respond strategically to the growing use of biometric data, leaving a governance gap that had allowed the police to begin collecting certain biometric data such as facial recognition software to combat crime and terrorism without proper regulatory oversight. The Committee reported its discovery that the police had begun using facial recognition software and uploading onto the Police National Database custody photographs of people who had not even been charged.
The Court of Appeal confirmed that the English courts do have jurisdiction to hear data protection and misuse of private information claims brought against Google arising out of its alleged collection of private information about internet usage via their Apple Safari browser. Further, it confirmed that misuse of private information was a tort, not an equitable wrong. The Court also discussed and made findings on the meaning of “personal data” within s.1(1) of the Data Protection Act 1998 (Vidal-Hall v Google Inc ( EWCA Civ 311; for background see  PL 307).
The Attorney-General was not entitled to issue a certificate under s. 53 of the Freedom of Information Act 2000, in effect vetoing the release of certain letters written by HRH Prince of Wales to various government ministers, and so the certificate was invalid. Further, reg.18(6) of the Environmental Information Regulations 2004 (which enables members of the public to see documents containing “environmental information”, again subject to certain exemptions) was incompatible with Council Directive 2003/4/EC and must be treated as invalid. Therefore the certificate would in any event have been invalid insofar as it related to environmental information. So held the Supreme Court, by a majority in each case, dismissing the Attorney-General’s appeal. The Attorney-General had issued the certificate following proceedings before the Upper Tribunal at which disclosure had been ordered. Lord Neuberger, Lord Kerr and Lord Reid interpreted the seemingly clear wording of s.53 consistently with the rule of law such that the Attorney-General was not able to override a decision of a judicial tribunal or court by issuing a certificate merely because he, a member of the executive, considering the same facts and arguments, took a different view from that taken by the tribunal or court. Lord Mance and Lady Hale took the view that it would be open to the Attorney General to issue a certificate under s.53 if he disagreed with the decision of the Upper Tribunal but such disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification that was not made out here. In their dissent, Lord Wilson and Lord Hughes considered that s.53 clearly expressed parliament’s intention to empower a member of the executive to override a decision of a court (R (oao Evans) v Attorney General  UKSC 21).
The special powers that private water and sewerage utility companies have were sufficient, collectively in themselves and as examples of powers of the same type, to satisfy the test laid down by the CJEU such that they were “public authorities” for the purposes of the environmental information regulations contained in the Aarhus Convention, Directive 2003/4/EC on public access to environmental information and the Environmental Information Regulations 2004 (SI No 3391) (Fish Legal v Information Commissioner  UKUT 52 (AAC))
Regulation 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1) did not apply to identity cards issued by Member States to their nationals regardless of the period of validity and the possibility of using them for the purposes of travel outside that State. So held the CJEU in an application brought by various Dutch nationals concerning the refusal to issue them with a passport and an identity card unless their biometric data was recorded at the same time. Since Regulation 2252/2004 was not applicable to such situations it thus followed that (i) Member States were not required to guarantee in legislation that biometric data would not be used or stored by that State for purposes other than those mentioned in Article 4(3) of that regulation and (ii) there was no need to determine whether the storage and use of biometric data for purposes other than those referred to in Article 4(3) thereof was compatible with the Charter on Fundamental Rights (Willems v Burgemeester van Nuth Joined Cases C‑446/12 to C‑449/12, ECJ 16 April).
The House of Lords Constitution Committee in its report “Inter-governmental relations in the UK” (HL 146, 27 March) argued that transparency around inter-governmental relations, especially through the Joint Ministerial Committee (JMC), was vital and should be substantially improved so as to enable greater parliamentary scrutiny of inter-governmental relations. The Government should consider setting out the framework of inter-governmental relations in legislation. This need not be overly prescriptive, but could set out the existence and membership of the JMC and its sub-committees and the core principles governing relations between the administrations. The report repeated the Committee’s calls for the UK-wide political parties to formulate a coherent vision for the future shape of the UK as a whole, without which there could not be constitutional stability. An overarching vision for the future of the Union and its devolution settlements should be a stabilising force in its own right and would allow for inter-governmental relations to be organised on a more stable basis. It was “extraordinary” that the Deputy Prime Minister, as the Cabinet minister responsible for devolution, was not a member of the Cabinet Committee on that very subject.
The Commons Political and Constitutional Reform Committee published two reports relevant to the devolution settlement. Its first (HC 1022, 22 March) had as its focus the “Constitutional implications of draft Scotland clauses”. The Committee was concerned that the swift publication of the draft clauses after the Smith Commission reported had been at the expense of broader consideration of the consequences for the future of the UK. The Committee was disappointed there had been no attempt to provide for full pre-legislative scrutiny of the clauses by this Parliament. The incoming Government should recognise, and consult upon, the consequences for all parts of the UK in the round when introducing legislation to implement the Smith Commission Agreement and other proposals on constitutional reform affecting the Union, given too the trends towards decentralisation in England, to ensure that change strengthened the Union. Its other report, “The future of devolution after the Scottish referendum” (HC 700, 29 March) built on this and recommended that a constitutional convention, with citizen participation, be established, no later than the end of 2015, to consider the effect of proposed new devolution settlements. It also called on the Government to establish, in the first six months of the new Parliament, a commission to review proposals for further devolution within England and to reach agreement on a suite of powers which local authorities could draw down where they could demonstrate demand and popular support, making local government the vehicle for further devolution within England. Separately, a Convention for England, with broad popular representation from the public and civil society, could examine the relationship between England and the United Kingdom and develop a process for further agreed devolution from the centre to regions and localities. There were similar criticisms in the Lords Constitution Committee report “Proposals for the devolution of further powers to Scotland” (HL 145, 24 March), which expressed deep concern over the lack of a UK-wide perspective in the Government’s proposals for further devolution to Scotland and astonishment that the UK Government did not appear to have considered the wider implications for the United Kingdom of the proposals. It questioned how any process that did not consider the future of the Union as a whole could provide for an “enduring” settlement.
The House of Commons’ Northern Ireland Affairs Committee report “The administrative scheme for ‘on-the-runs’” (HC 177, 24 March) concluded that the scheme of “comfort letters” sent to “on-the-runs” (OTRs) should never have taken place in the manner in which it was developed and run. It was questionable whether or not the “on-the-runs” scheme was lawful, but its existence distorted the legal process. If it existed at all, it should have been formalised within the various agencies involved with clear lines of reporting and accountabilities, and made public. The Secretary of State’s refusal to name which of those recipients of the Royal Prerogative of Mercy were OTRs was wholly unacceptable. While there was a difficult peace process going on at the time, there still had to be transparency and accountability in government and in the legal process. The secrecy of the scheme also meant that aggrieved persons had been denied the opportunity to have a decision made by a Minister quashed in judicial review proceedings.
The Northern Ireland Assembly and Executive Review Committee launched its report into ‘Women in Politics and the Northern Ireland Assembly’ (9 March). The report was the culmination of a nine month-long inquiry and included a number of recommendations to make the political landscape a more welcoming place for women; there are only 21 female MLAs, making up just under 20% of all MLAs in the Assembly. The report also set out ways of encouraging greater participation at both local and national levels and in public life in general.
In Scotland, the Budget (Scotland) Act 2015 was passed, as was the Community Charge Debt (Scotland) Act 2015, extinguishing various liabilities arising by virtue of the Abolition of Domestic Rates Etc. (Scotland) Act 1987, the so-called poll tax. The Welfare Funds (Scotland) Act 2015 requires councils to establish a welfare fund to meet individual immediate short term needs or to enable certain individuals to establish or maintain a settled home.
On 27 March, the Scottish Government published “Scotland’s Action Plan for EU Engagement” indicating Scotland’s purpose and activities in Europe, encompassing Scotland’s strategic priorities, how the Scottish Government influences and engages with EU policies and programmes, and its work to build partnerships in the EU. The Plan set out the four key areas in which the Government plans to focus its activity: being a committed partner and making the case for Scotland’s place in Europe; promoting effective and meaningful EU reform; actively participating in order to secure investment, innovation and inclusive growth; and strengthening Scotland’s European partnerships. On 20 February, it published its research findings “Community Experiences of Sectarianism” based on in-depth qualitative research within five case study communities across Scotland that examined if and how sectarianism affected particular communities, and how it might form part of people’s everyday experiences. The study provided insights into people’s perceptions and experiences both in areas where sectarianism still appeared to persist and where it seemed to be less of a problem. It also offered insights into how these communities believed they could be strengthened to tackle sectarianism in its various manifestations.
The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was outside the devolved legislative competence of the Welsh Assembly both because it was not concerned with the “organisation and funding of [the] national health service” under s.108(4)-(5) and paragraph 9 of Part 1 of Schedule 7 of the Government of Wales Act 2006 and because, by virtue of s.108(6) of the 2006 Act, it was incompatible with the A1PI rights of compensators and insurers, the right to peaceful enjoyment of their possessions. So held the Supreme Court unanimously (with Lord Thomas and Lady Hale adopting narrower reasoning) in a referral by the Counsel General for Wales brought under s.99(1) of the 2006 Act. The scheme envisaged by the Bill in effect rendered insurers liable to a charge to the Welsh Ministers in the same sum as any compensatory liability they have to those victims of asbestos-related diseases, as a means for the Welsh Government to recoup the cost of NHS treatment. The Court held that the charges provided for by the Bill were to be imposed on compensators and insurers rather than patients and lacked any direct or close connection with the provision of Welsh NHS services. The Bill sought to impose what were in effect new tortious or statutory duties on third parties to pay for the relevant Welsh NHS treatment. As to A1P1, the new financial liabilities of compensators and insurers would arise from asbestos exposure and liability insurance policies which long pre-dated the Bill. The retrospective effect of the Bill required special justification, which was absent in the present case (Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales and The Association of British Insurers (Intervener)  UKSC 3)
The Higher Education (Wales) Act 2015 makes provision about certain student fees and about the quality of aspects of higher education. The Well-being of Future Generations (Wales) Act 2015 requires public bodies to act in pursuit of the economic, social, environmental and cultural well-being of Wales in a way that accords with the sustainable development principle, and requires them to report on such action. It establishes both a Commissioner for Future Generations, to advise and assist public bodies, and public services boards to plan and take action in pursuit of economic, social, environmental and cultural well-being in their area. The Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 is designed to improve arrangements for both the prevention of gender-based violence, domestic abuse and sexual violence, and for the protection of victims of such abuse and violence. It aims to improve support for those affected by such abuse and violence, and requires the appointment of a National Adviser on gender-based violence, domestic abuse and sexual violence.
Welsh affairs were the subject of a general debate on 5 March, scheduled by the Backbench Business Committee (Hansard HC Deb 5 March, col. 1134).
The Political and Constitutional Reform Committee called for legislation on boundary reviews to be made a priority by the next Government in its report, “What next on the drawing of boundaries?” (HC 600, 15 March). Its earlier report “Voter engagement in the UK: follow up” (HC 938, 5 February) urged Government to respond to public support for changes to electoral arrangements. Specifically, it recommended that the Government bring forward plans to target those groups—including young people, British citizens living overseas and people with disabilities—who are currently least likely to be registered to vote; that Government consider making registration automatic; and that changes to electoral arrangements—including online voting, registering closer to or on Election Day and holding elections at the weekend—be piloted in the next Parliament with a view to making permanent changes to electoral arrangements ahead of the 2020 general election. It also recommended that after the 2015 general election the Government and Parliament take forward research and national debates on electoral reform and the possibility of extending the franchise to 16 and 17 year olds, with a view to taking forward legislative changes if appropriate.
The House of Lords Constitution Committee has stated (HL 119, 23 February) that the use of secondary legislation to amend the Scotland Act 1998 so as to allow the Scottish Parliament to grant voting rights to 16 and 17 year-olds in Scottish Parliament and Scottish local elections made it impossible for Parliament to scrutinise the proposal effectively, and was not an appropriate way to proceed with significant constitutional change.
The Environmental Audit Committee report “The environmental risks of the Transatlantic Trade & Investment partnership” (HC 857, 10 March) warned of the risk that the TTIP agreement, currently being negotiated by the European Union and the US, could weaken European and UK environmental and public health regulations if laxer US regulations were ‘mutually accepted’ in the deal. It also risked producing a chill effect on future environmental regulations, particularly if its proposed Investor-State Dispute Settlement presented US companies with an opportunity to sue European states for introducing new regulations.
Following the ruling from the CJEU on referral, the Supreme Court unanimously ordered the government to submit new air quality plans to the European Commission no later than 31 December 2015. For the background and facts see  PL 869 (R (oao ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs  UKSC 28).
The Commons European Scrutiny Committee “Scrutiny Reform follow-up and Legacy Report” (HC 918, 25 March) criticised the Government for refusing to schedule debates it recommended on such highly-charged issues as the free movement of EU citizens and the EU Budget, and set out its deep concerns about the manner in which the BBC treated EU issues. It concluded that the BBC had not yet demonstrated that it commanded wide confidence in its coverage of the EU. This would be a key issue to be considered in the run up to any referendum on EU membership and, more broadly, raised wider questions about the BBC’s accountability to Parliament which would have to be taken into account as part of the forthcoming review of the BBC Charter.
The Lords EU Select Committee “The Review of the Balance of Competences between the UK and the EU” (HL 140, 25 March) was critical of the Government for going back on its word and failing to draw the 32 reports completed in the Review together in a final analysis; for failing to promote the Review effectively; and for a lack of clarity on its true costs. Its report “The UK’s opt-in Protcol: implications of the Government’s approach” (HL 136, 24 March) was very critical of what it concluded amounted to a unilateral approach to EU Justice and Home Affairs Measures that had brought no tangible benefit to the UK which the incoming Government should abandon. In the view of the Committee, the evidence pointed to three conclusions: that the Government’s interpretation of the opt-in Protocol was legally unsustainable; that its litigation strategy ignored the case law of the Court; and that its stance could run counter to the UK’s own interests as well as undermine its good standing among other Member States. The Government’s broad interpretation of the treaty provisions governing the UK’s opt-in would, perversely, give the EU itself wide powers to increase its competence in other areas.
Charter of Rights
As part of its ongoing inquiry into the application of the EU Charter in UK law, the Commons European Scrutiny Committee considered (32nd Report, HC 219 4 February) the EU Commission Report on the application of the EU Charter of Fundamental Rights, 2013 (COM(14) 224) and recommended it be debated on the floor of the House.
At its meeting on 11th March (36th report, HC 219), the Commons European Scrutiny Committee considered the EU Commission Communication “A new EU Framework to strengthen the Rule of Law” (COM(14) 158).
The Collective Redundancies Directive (Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16)) sets out duties of information and consultation on employers proposing to dismiss twenty or more employees at an establishment, over the course of 90 days. The term “establishment” did not cover the whole of the relevant retail business, regarded as a single economic business unit, but instead meant the unit to which the workers concerned were assigned to carry out their duties, in other words each individual store. So held the ECJ on a preliminary reference from the Court of Appeal in a case concerning dismissal by reason of redundancy of several thousand former employees of high street shop, Woolworths. Furthermore, the trigger of 20 as the minimum number of employees to be dismissed at any one establishment referred to those employed at each establishment, rather than overall across the company’s sites or shops (USDAW and Wilson v WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd and Secretary of State for Business, Innovation and Skills Case C-80/14, 30 April).
Contracting and outsourcing
The Information Commissioner report “Transparency in Outsourcing: a roadmap” (19 March) noted that a “transparency gap had opened up in the provision of public service” and called for a better reflection of the importance of transparency in government outsourcing. It queried whether it might now be time for government to step in to ensure the public can access the information they should be entitled to from big government-funded contractors, including possibly changing the law so that certain contractors could be designated as public authorities under the FoIAct. Expenditure on outsourced public services is estimated to account for about half of the £187bn that government spends on goods and services, of which local government outsourcing constituted about £30bn. 75% of people surveyed for the ICO said it was important that private companies acting on behalf of public authorities should be subject to the Freedom of Information Act.
The Commons Public Administration Select Committee (PASC) report “Lessons for Civil Service impartiality from the Scottish independence referendum” (HC 111, 23 March) was critical of both a Scottish Government White Paper which included a description of the SNP’s proposed programme for government that was contingent upon their winning the 2016 Scottish Parliament, and of the publication of normally confidential advice to ministers by the Permanent Secretary to the Treasury. As to the first, the Committee was of the view that civil servants should not carry out ministers’ wishes, if they were being asked to use public funds to promote the agenda of a political party, as was evident in that case. In the latter, while the Permanent Secretary was justified in publishing his views opposing currency union with Scotland on the grounds that he was ‘reassuring the markets’, the Committee’s view was that the advice should not have been published. Its publication compromised the perceived impartiality of one of the UK’s most senior civil servants. The Committee recommended that the Civil Service Code be revised, to extend the provisions applicable in respect of parties in elections in the Code to ‘yes’ and ‘no’ campaigns in referendums.
Basing their report “Developing Civil Service skills: a unified approach” (HC112, 17 March) on the cancellation of the West Coast Mainline franchise competition, the same Committee was very critical of perceived “skills” gaps in the civil service that had caused very costly failures.
Duty to accommodate
It was unlawful for a council to seek to place a family out of area without first making enquiries to assess the practical effect on the children’s needs of moving the family many miles away, and without seeming to consider the duty to offer accommodation as close by as possible or without providing an explanation for not doing so. So held the Supreme Court upholding an appeal by N a single mother, who had been given notice by W council that its duty to house her had come to an end when she refused the offer of accommodation out of area. N was in poor health and had five children all aged 8-14. She was evicted from her private rented flat following the introduction of the benefit cap, and W council accepted she was unintentionally homeless placing it under a duty to provide suitable housing. Local authorities have a statutory duty to accommodate persons within their area so far as this is reasonably practicable. Reasonable practicability imported a stronger duty than simply being reasonable. Where it was not reasonably practicable to accommodate ‘in borough’ they must generally try to place the household as close as possible to where they were previously living. This discretion was hedged and structured by an Order from 2012 and by Supplementary Guidance. It was clear that the council had not had regard to the need to safeguard and promote the welfare of children, as required by s.11(2) of the Children Act 2004. While this did not require welfare to be the paramount or even a primary consideration, it did point towards the need to explain the choices made, preferably by reference to published policies. Furthermore, it must always be clear from the decision taken that proper consideration had been given to the relevant matters required by the 1996 Act and accompanying Code. Here, the courts below were too ready to assume that W council had properly complied with its statutory obligations, with the effect of immunising from judicial scrutiny automatic decisions to house people far from their home district (Nzolameso v City of Westminster  UKSC 22).
A defence to an eviction based on the substantive right of equal treatment contained in the Equality Act 2010 is different from and additional to a defence based on the right to a home in Article 8 of the ECHR. So held the Supreme Court upholding an appeal by A-L, a 47 year-old man with chronic and severe mental ill health amounting to a disability for the purposes of the 2010 Act on whom A, a housing association, had served notice of eviction. A-L sought to defend the claim for possession by arguing that it constituted unlawful disability discrimination contrary to the 2010 Act. While proportionality under the 2010 Act was similar to the balancing exercise undertaken in respect of Article 8 defences, the Court determined there was one key difference. Under Article 8, a court could assume that an order would meet the legitimate aims of vindicating a local authority’s property rights and of enabling the authority to comply with its statutory duties in the allocation and management of the housing stock available to it. In virtually every case there would be a strong case for finding that the possession order would be a proportionate means of achieving those aims. Thus as a general rule the defence should be considered summarily and only be allowed to proceed if it crossed the high threshold of being seriously arguable. Under the 2010 Act, it could not be taken for granted that the aim of vindicating the landlord’s property rights would almost invariably make an eviction proportionate. The burden would be on the landlord to show that there were no less drastic means available and that the effect on the occupier was outweighed by the advantages. Summary disposal might still be appropriate, but not in cases where a claim was genuinely disputed on grounds that appear to be substantial, where disclosure or expert evidence might be required. Here, the judge had misdirected himself and adopted the wrong approach (Akerman-Livingstone v Aster Communities Limited  UKSC 15).
Implementation of judgments
The JCHR report “Human Rights Judgments” (HL 130/HC 1088, 11 March) commended the Government for the downward trend in the number of judgments of the European Court of Human Rights which had found the UK to be in breach of the European Convention on Human Rights (ECHR) and for its successful efforts to bring to a conclusion a number of old cases but drew Parliament’s attention to the disparity between the good record of the Government before the European Court of Human Rights and the media’s portrayal of these statistics. The Committee was concerned by the Government’s failure to implement the judgments relating to prisoner voting and by the delays in the implementation of some judgments in Northern Ireland. It commended the Government for its annual report on human rights judgments and recommended some ways to make the report still more useful to Parliament, including by turning it into an “Annual Human Rights Report” to Parliament which would then form the basis of the annual appearance of the Human Rights Minister before the JCHR.
The Modern Slavery Act 2015 makes provision about slavery, servitude and forced or compulsory labour and about human trafficking, including provision for the protection of victims, and makes provision for an Independent Anti-slavery Commissioner.
It was not a violation of the presumption of innocence in Article 6 for O’D to be convicted of manslaughter in part on the basis of his remaining silent, and for the trial judge to have given an adverse inferences direction to the jury, even in a case where expert evidence had demonstrated that a defendant’s intellectual disabilities would render them particularly vulnerable to cross-examination, in that they would be unable to understand the significance of the questions or to provide a coherent account of what had happened. So held the European Court in an application brought by O’D, a man with an IQ of 62, within the bottom 1% of the general population, and an understanding of spoken English equivalent to that of a six year-old child (O’Donnell v UK App 16667/10 ECtHR 7 April).
There was a violation of the duty to have criminal charges determined within a reasonable time (in Article 6(1)) when the delays in a criminal confiscation order case that could be shown attributable to the State authorities totalled approximately three years, out of total period between date of conviction to date of confiscation order of some seven and a half years (Piper v UK App no 44547/10 ECHR 21 April).
Rights of children
The JCHR report “UK’s compliance with the UN Convention on the Rights of the Child” (HL 144/HC 1016, 24 March) stated that the Government should move to ratify the Optional Protocol to the UNCRC which would allow children in the UK the right of individual petition to the UN Committee on the Rights of the Child in the same way that applied under the UN Convention on the Elimination of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities. It noted that in some areas, such as immigration, legal aid and children in custody, some policy developments had actually worked against the best interests of children. It expressed its disappointment that, during the current period of austerity, children – particularly disadvantaged children – had in certain areas suffered disproportionately, and concluded that the Government’s statutory duty to eliminate child poverty by 2020 should be treated as a human rights issue.
Rights of women
The JCHR report “Violence against women and girls” (HL 106/ HC 594, 19 February) warned that the Government could harm its international reputation by failing to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). The Government’s progressive work on tackling violence against women and girls abroad was not translating into its domestic policy, despite its Violence against Women and Girls Action Strategy and the Home Secretary’s personal commitment to the issue. The Committee identified a failure to provide adequate refuge spaces and specialist services for victims of violence and noted the prevalence of violence against women and girls across many cultures in the UK today. There were also issues relating to asylum. While steps had been taken in relation to education about the issues, training and media representations, more could be done.
It was not disproportionate, and so not unlawful, for government to set a cap on welfare benefits that affected a higher number of women than men. While it was accepted that the benefit Regulations resulted, indirectly, in differential treatment of men and women in relation to welfare benefits – because the majority of non-working households receiving the highest levels of benefits were single parent households, and most single parents were women – the cap was a proportionate means of meeting legitimate aims. So held a majority of the Supreme Court, in test cases brought by two lone mothers and their youngest children whose weekly benefits were reduced by £75 and £55 respectively. While it had been argued that the savings were a small proportion of the total welfare budget, they nevertheless contributed towards deficit reduction. It was also the case that the cap was intended to change behaviour over the longer term. The cap for households with children was equivalent to a gross annual salary of £35,000, higher than the earnings of half of the UK’s working households. Whether the cap should be higher was a political question. It was not the function of the courts to determine how much public expenditure should be devoted to welfare benefits. The courts must give due weight to the considered assessment of democratically-elected institutions. Unless manifestly without reasonable foundation, their assessment should be respected by courts. The UN Convention on the Rights of the Child (“UNCRC”) had not been incorporated by Parliament into UK law. While it was relevant to the application of the ECHR, Strasbourg cases did not support the argument that the cap impinged on the article 8 ECHR rights of children, so there was no obligation under the UNCRC, as applied through the ECHR, for the Government to treat the best interests of children as a primary consideration. Lord Kerr, in his dissenting judgment, considered the UNCRC to be directly enforceable in domestic law. In Lady Hale’s dissenting view what had to be considered was whether the benefit cap as it applied to lone parents could be justified independently of its discriminatory effects. Here, it was necessary to ask whether proper account had been taken of the best interests of the children affected. It was clear it had not. The cap deprived some children of provision for their basic needs, which could not be in their best interests. It did so in order to incentivise their parents to seek work, but discriminated against lone parents, who were least likely to be able to do so. In light of the UNCRC, the indirect sex discrimination inherent in the cap’s implementation was not a proportionate way of achieving its aims. Lord Kerr reasoned that a mother’s personality was defined not simply by her gender but by her role as carer for her children, so that justification of a discriminatory measure had to address directly the impact on the children of lone mothers (R (oao SG and Others v Secretary of State for Work and Pensions  UKSC 16).
Freedom of speech
The House of Lords Communications Committee report “Press Regulation: where are we now?” (HL 135, 23 March) questioned how long the Government would and could ignore the Press’s refusal to sign up to the Royal Charter on Self-Regulation of the Press. It also noted the complexity of the new system and questioned public awareness of how to make a complaint.
It did not constitute a disproportionate interference with the right to freedom of expression to convict M for breach of the peace, and to impose a football banning order, having worn at an Old Firm (Rangers v Celtic) football match in Glasgow a black top with bright green letters spelling “INLA” (the Irish Nationalist Liberation Army), and on the back again, in large bright green letters, the slogan “FUCK YOUR POPPY REMEMBER DERRY”. So held the European Court declaring inadmissible an application brought by M (Maguire v UK App 58060/13, ECtHR 3 March).
The criminal conviction of four journalists, and an order to pay a number of small fines, for using hidden cameras as part of an investigation into the practices of an insurance brokers that was then broadcast as part of a TV programme on consumer protection, violated their right to freedom of expression within Article 10 of the ECHR (Haldimann v Switzerland App 21830/09 ECHR 24 February, judgment in French only).
Sections 16(1)(a) and 4(2)(b) of the State Immunity Act 1961, which confer on states a blanket immunity in respect of proceedings concerning the employment of the members of an Embassy, was incompatible with Article 6. So held the Court of Appeal, making a declaration of incompatibility in respect of both sections, in respect of claims brought by B and J, employed as members of the domestic staff respectively at the Sudanese and Libyan Embassies in London. Following dismissal, they brought a host of statutory claims including unfair dismissal and failure to pay the national minimum wage. A rule of the breadth of section 16(1)(a) was not required by international law, and so was incompatible with Article 6. Furthermore, claims for breach of the Working Time Regulations 1998 and for racial discrimination and harassment fell within the scope of EU law. B and J were entitled to rely on article 47 of the EU Charter, such that the court was required to disapply sections 4(2)(b) and 16(1)(a) in so far as they applied to those parts of the claims which fell within the scope of EU law (Benkarbouche and Janah v Embassies of Sudan and Libya  EWCA Civ 33) c.f. Reyes v Al-Malki  EWCA Civ 32 where a claim for diplomatic immunity was upheld in a case brought by R, employed as a domestic worker at an official diplomatic residence.
In Shepherd v Bundesrepublik Deutschland (Case C-472/13, 26 February) the European Court of Justice clarified the conditions in which a third-country national who had deserted might be granted asylum in the EU, contained in Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12). S was an American soldier serving in Iraq who had deserted when he came to the belief that the war was unlawful and the activities he was involved in could constitute war crimes. He claimed asylum in Germany where his unit had been stationed. In support of his asylum request, S claimed that, as a result of his desertion, he was at risk of criminal prosecution. Moreover, since desertion was a serious offence in the USA, it affected his life by putting him at risk of social ostracism in his country. Under the Directive, a third-country national with a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group may, under certain conditions, be granted refugee status; an act of persecution can, inter alia, take the form of ‘prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes’. The Court held that the protection offered in the Directive covered all military personnel, including logistical or support personnel and extended to cases where the asylum seeker participated only indirectly in the commission of war crimes if it was reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes. Furthermore, it did not exclusively concern situations in which it was established that war crimes had already been committed or were such as to fall within the scope of the International Criminal Court’s jurisdiction, but also those in which the asylum seeker could establish that it was highly likely that such crimes would be committed.
The House of Lords Select Committee on Extradition Law in its report “Extradition: UK law and practice” (HL 126, 10 March) noted that while many aspects of the UK’s existing arrangements were satisfactory, the system of seeking, accepting and monitoring assurances during the extradition process could not guarantee the UK was meeting its human rights obligations. The Committee also called for the Government to re-examine its decision to means test legal aid in extradition cases, as it believed the Government’s most recent cost-benefit analysis was neither sufficient nor credible. It commended the Government for opting back in to the European Arrest Warrant (EAW), supported the recent amendments to extradition law and recognised the concerns raised by many about extradition to the US.
Under s.94(5) of the Nationality, Immigration and Asylum Act 2002, the Secretary of State was entitled to designate a State as “safe” such that asylum claims from its citizens were presumed unfounded. The Secretary of State could do so where it was believed that (a) there was in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there would not in general contravene the United Kingdom’s obligations under the Human Rights Convention. The Supreme Court by a majority determined that the thrust of the s.94 scheme was to distinguish countries where its citizens were free from any serious risk of systematic persecution either by the state or by non-state agents which the state is unable or unwilling to control from those where that was not the case. Thus, “in general” in (a) differentiated persecution which occurred in the ordinary course of things from isolated incidents of persecution. Persecution must be a general feature of life in the country and apply to a recognisable section of the community. It did not require the persecution to affect any particular percentage of the population; such an approach was open to several objections. So held the majority, dismissing the appeal by the Secretary of State in relation to the designation of Jamaica, in favour of B, who had claimed asylum in the UK on grounds of his homosexuality which he averred would subject him to persecution back home in Jamaica (R (oao Jamar Brown) v Secretary of State for the Home Department  UKSC 8).
Mr Justice Hickinbottom delivered the The First Administrative Court in Wales Lecture (20 February) entitled “Administrative Court in Wales: Evolution or Revolution”.
The Home Secretary has power under s.40(2) of the British Nationality Act 1981 to deprive British citizens of citizenship but may not do so if such a decision renders them “stateless”. That in turn depended on whether they were not considered “as a national by any state under the operation of its law”, within the meaning of article 1(1) of the 1954 Convention relating to the Status of Stateless Persons. It was not unlawful for the Secretary of State to make an order depriving P of his British citizenship (on grounds that he was involved in terrorist activity) when there was no evidence of a decision or practice of the Vietnam government, where P was born, which treated him at the time of that decision as a non-national “by operation of its law”. The Article 1(1) issue was not necessarily to be decided solely by reference to the text of the nationality law of the state in question. Reference might also be made to the government’s practice, even if not subject to effective challenge in the courts. On whether the Home Secretary’s decision had implications for EU Law, it was by no means clear following Rottman  ECR I-1449 whether or not a Member State’s decision as to the acquisition or loss of national citizenship, without any cross-border element, was outside the scope of EU law. However even if it were within the scope, their Lordships’ view was that the likely outcome in the instant case would have been little different. It is here the case has perhaps greatest interest since – in differing degrees – the Supreme Court seemed prepared to countenance the availability of review on proportionality grounds at common law, not simply under EU Law (Pham v Secretary of State for the Home Department  UKSC 19).
Richard Snowden QC was appointed to the High Court with effect from 30 April 2015, assigned to the Chancery Division.
The results of the first Judicial Attitude Survey, something suggested last year by the Senior Salaries Review Body (SSRB) would be useful to them when preparing this year’s report on pay, was released on 11 February. It covers key management areas such as the experience of being a judge, morale, working conditions, remuneration, training and personal development, retention and leadership.
Lady Hale gave The Bryce Lecture 2015 “The Supreme Court in the United Kingdom Constitution” at Somerville College, Oxford on 5 February.
Lord Sumption addressed the Friends of the British Library on “Magna Carta then and now” (9 March) asserting that he did “have a problem with the distortion of history to serve an essentially modern political agenda” and noting that claims about the historical place of Magna Carta “represent the worst kind of ahistorical Whiggism. They encapsulate the view mocked a generation ago in a famous essay by Herbert Butterfield, that the past can be viewed as an accident-prone but on the whole persistent march towards the manifest rightness of our own values.”
The Local Government (Review of Decisions) Act 2015 institutes a formal review process for those aggrieved by council decisions not to permit an event to take place, or to impose conditions on it, for a reason related to health and safety. The Local Government (Religious etc. Observances) Act 2015 amends s.138 of the Local Government Act 1972 and empowers councils first to set aside time at meetings for prayers or other religious observance, or observance connected with a religious or philosophical belief, and secondly to support or facilitate, or make arrangements to be represented at religious events or events connected with a religious or philosophical belief.
Central/local government relations
It was not unlawful for the Secretary of State to allocate EU Grant funding that in effect meant a real cut of 61% for two English regions, as a result of (i) lower overall EU funding for the next seven-year period (ii) a uniform cut imposed by the Secretary of State of 5% for each of the four nations of the UK and (iii) using a baseline that took no account of earlier funding and transitional arrangements. So held the Supreme Court by a majority (4:3) in a claim brought by two regional authorities Merseyside and South Yorkshire who had argued they had been unfairly and differently treated from both the non-English transition regions of Northern Ireland and Highland & Islands, and other English transition regions. Lord Sumption discussed the factors that should militate towards judicial caution in intervention though added that the fact that a matter was one for democratic decision did not remove the need for judicial oversight. The majority considered there was enough of a relevant difference between Merseyside and South Yorkshire on the one hand and the remaining transition regions on the other to justify any difference in treatment. Lord Mance and Lord Carnwath in the minority held the decision unlawful because the Secretary of State took irrelevant considerations into account and treated like cases unalike and unlike cases alike; in comparison to the other regions not so affected, Merseyside and South Yorkshire received allocations without any uplift and without any reference to any assessment of their actual needs or receipts over the prior period (R (oao Rotherham Metropolitan Borough Council and others) v Secretary of State for Business, Innovation and Skills  UKSC 6).
The respondent council N was wrong in law to register a beach as a village green under the Commons Act 2006 since access by the public to the foreshore was not “as of right” but “by right”, whether that be by virtue of an implied licence or under bye-laws. Further, registration as a village green would be incompatible with the pre-existing statutory purpose of the use of the harbour as a working harbour, dating from legislation in 1847. So held the Supreme Court in an appeal brought by the current private owners of the harbour, NPP (R (oao Newhaven Port and Properties Limited) v East Sussex County Council  UKSC 7).
While it was not unlawful for a council as a matter of domestic law to charge prospective licensees a fee for the grant or renewal of a licence covering the running and enforcement costs of the licensing scheme, and payable either (a) at the time when the licence was granted or (b) on a refundable basis, at the time when the application was lodged, the Supreme Court held that as a matter of EU Law, only the first scheme was clearly permissible. The second was more problematic, because payment was required to be made by every applicant, albeit on a potentially refundable basis, at the time when the application is made. A preliminary reference to the ECJ was thus needed to determine whether the second constituted a “charge” incurred by an applicant, and was thus lawful, within regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999 and article 13(2) of Directive 2006/123/EC (R (oao Hemming (t/a Simply Pleasure Ltd)) v Westminster City Council  UKSC 25).
On 25 March the Cabinet Office launched a public consultation on the future of public service Ombudsmen, following the Public Administration Select Committee (PASC) report (April 2014) “Time for a People’s Ombudsman Service” (noted in this blog here and at  PL 567) that recommended change. The view of the Parliamentary and Health Service Ombudsman is for the creation of a new public ombudsman service (POS) covering all public services delivered in England and matters reserved to the UK with citizens having the right to choose to approach directly or through a representative, and in a variety of forms, including by digital communication.
The House of Lords (Expulsion and Suspension) Act 2015 makes provision to empower the House of Lords to expel or suspend members, and the Lords Spiritual (Women) Act 2015 makes time-limited provision for vacancies among the Lords Spiritual to be filled by bishops who are women. The House of Commons Commission Act 2015 amends the House of Commons Administration Act 1978 so that the Commission includes two external members, appointed by Commons resolution, alongside (now) seven parliamentary members and two official members, with functions now extending past setting of numbers, terms and remuneration of staff of the House to, from time to time, setting strategic priorities and objectives in connection with services provided by the House Departments. The Recall of MPs Act 2015 establishes a process for petitioning for the recall of MPs following conviction for certain criminal offences.
Parliament was dissolved on 30 March, with the General Election held on 7 May under the Fixed Term Parliaments Act. The Queen’s Speech is set for 27 May.
On 26 March, MPs took part in a valedictory debate for retiring MPs, the first time one such has been held. It was scheduled by the Backbench Business Committee following a bid from Sir George Young, with contributions from inter alia Sir John Stanley (an MP for 41 years), Dame Tessa Jowell, Jack Straw, Sir Malcolm Bruce, Gordon Brown and Sir George Young himself (Hansard HC Deb 26 March 2015, col 1634).
David Natzler was appointed Under Clerk of the Parliaments (Clerk of the House of Commons) in succession to Lord Lisvane KCB (formerly Sir Robert Rogers KCB) who retired in August 2014.
The Backbench Business Committee reported on its work in the 2010-2015 Parliament (HC 1106, 26 March) noting it had been widely used by backbench MPs to bring forward a range of important issues and averring that moves to restrict the Committee’s powers would be a “retrograde step”. The Committee considered that it had offered, for the first time, the opportunity for backbenchers to bring forward applications for debates on topics of their choice to a committee of their fellow backbenchers, rather than be restricted to subjects dictated by party whips, including debates on a range of issues such as mental health, cycling, Syria, Hillsborough, and on compensation for people given contaminated blood. Backbench debates have led to a number of key changes in government policy over the course of the current Parliament, and academic research pointed to backbench business debates altering government policy on a number of issues, including government funding of the BBC World Service, the release of documents to the Hillsborough Disaster, and the freezing of fuel duty.
The House Liaison Committee report on its Work in the Parliament 2010-2015 (HC 954, 24 March) concluded that directly-elected chairs had been a success for select committees, and also averred that the House of Commons should resist any attempt by the front-benches to overturn the Wright reforms and make the election of chairs less democratic and representative. It strongly backed the Wright Committee view that committees should not have more than 11 MPs, arguing that exact proportionality was not necessary on select committees so long as the balance across the total of committees was maintained. The Committee also recommended that people appointed to paid public office be required to undertake (should they be or become members of the House of Lords) not to refuse a request to give evidence to a relevant Commons select committee.
The three months leading up to the General Election was rather a frantic period. Legislation not covered elsewhere in this survey included
Her Majesty’s Inspector of Constabulary reported on whether the police are using stop and search powers effectively and fairly, (24 March) a follow up report into the progress made by forces since its original 2013 report on the same matter. On 12 March, it made public its report of the first inspection into the National Crime Agency since its creation in October 2013. The NCA was established to lead the UK’s fight against serious and organised crime, and the report examined how efficient and effective the NCA was in undertaking the statutory requirement of the criminal intelligence function with regard to namely: gathering; storing; processing; analysing; and disseminating. The report of its thematic inspection on the welfare of vulnerable people in police custody was published on 10 March, a report looking at, but not limited to, those with mental health problems, those from black and minority ethnic backgrounds and children. The Home Secretary had asked HMIC to consider groups for whom there had been “a pronounced concern” about their treatment in police custody (especially people of African-Caribbean descent).
The Home Affairs Committee report “Police bail”, published on 20 March (HC 962) covered anonymity before charge – that suspects should have the same right to anonymity as the complainant in sexual offences, until the time that they are charged – introducing an initial 28-day time limit on bail and where no further action was to be taken, the police should write to both the complainant and to the person who had been complained against.
The Justice Committee held a one-off session with Nick Hardwick, HM Chief Inspector of Prisons, on the work of HM Chief Inspector of Prisons on 4 March (HC 999)
The position relating to the release of prisoners sentenced to life terms, specifically the power of the Secretary of State to take decisions in relation to release, contained in s.30 of the Crime (Sentences) Act 1997 had now been settled domestically by the Court of Appeal in R v Newell  EWCA Crim 188, following the Strasbourg decision in Vintner (2012) 55 EHRR 34, such that there was no longer an issue under Article 3. So held the European Court in a challenge brought by H who had sought to argue that the legal position remained unclear insofar as the Lifer Manual had not been amended to reflect ECHR case-law. The Strasbourg Court was convinced that, following Newell, that the Secretary of State’s discretion in s.30 would be exercised compatibly with Article 3 and that a failure to do so would render unlawful the decision not to release. That ensured there would be no violation of Article 3 (Hutchinson v UK App 57592/08 ECtHR 3 February).
It was not unlawful under Article 8 for the police both to make and retain records about a peaceful protester on a searchable database. So held the Supreme Court by a majority (4:1) in a challenge by C, a 90 year-old peace campaigner who had been present at numerous demonstrations organised by Smash EDO, some of which became violent though C had remained peaceful throughout, and at which the police had overtly been collecting information. Because Smash EDO had associations with violent crime, information was retained even where no crime had been committed. Information about C had indirectly been recorded in 107 separate “Information Reports” primarily directed at the activities of other people. The state’s systematic collection and storage in retrievable form even of public information about an individual was clearly an interference with private life under Article 8(1) ECHR, and was in accordance with the law. The majority viewed it as justifiable and thus proportionate. Lord Sumption considered the interference with C’s private life to be minor: the information stored was personal but not intimate or sensitive; the primary facts recorded had always been in the public domain, and it was known that the police recorded them; there was no stigma attached to the inclusion of his information in the database as part of reports primarily directed to the activities of other people; the material was usable and disclosable only for police purposes and in response to requests made by Mr Catt himself under the Data Protection Act; and the material was regularly reviewed for deletion according to rational and proportionate criteria contained in the publicly available Code of Conduct and accompanying Guidance [26-28]. There were numerous proper policing purposes to which the retention of evidence of this kind made a significant contribution. The longer-term consequences of restricting the availability of this method of intelligence-gathering to the police would potentially be very serious, and the amount of labour required to excise information relating to persons such as C from the database would be disproportionate. Dissenting, Lord Toulson did not consider the police to have made the case for retaining for many years after the event information about someone about whom they had concluded that he was not known to have acted violently. It could not be necessary and proportionate to retain information about C’s attendance at mainstream political protest events (R (oao Catt) v Commissioner of Police of the Metropolis  UKSC 9). The other applicant in the case, Mrs T challenged the retention by police of letters sent to her notifying her of possible future prosecution for repeats of alleged homophobic harassment.
The Counter-Terrorism and Security Act 2015 introduces powers to seize travel documents temporarily and to impose temporary exclusion orders; amends the provisions relating to TPIMs; amends provisions relating to retaining relevant internet data; imposes a general duty on certain public authorities, such as universities and schools, to have due regard to the need to prevent people from being drawn into terrorism, and requires local authorities to establish panels to support those identified as being vulnerable to be drawn into terrorism; and sets up the Privacy and Civil Liberties Board to advise and assist for example the various independent reviewers of terrorism legislation.
David Mead is Professor of UK Human Rights Law at the University of East Anglia. He is also Current Developments Correspondent for the UKCLA Blog, and Current Survey Editor of Public Law.
(Suggested citation: D. Mead, ‘Public Law Current Survey (Feb – Apr 2015)’ UK Const. L. Blog (13th Jul 2015) (available at https://ukconstitutionallaw.org/))