This Survey covers the period from November 2019 to January 2020.
Administration of justice
On 6 November 2019 the UK Administrative Justice Council (AJC) published its first Annual Report. This explained the council and its composition, and its themes of activity including: first instance decision-making; tribunals modernisation programme; ombudsman landscape and reform; and the ombudsman and tribunals familiarisation programme. It also gave details of academic panel workshops including: administrative justice decision-making and procedures; tribunals modernisation; an academic/practitioner pop-up engagement event; and mapping pathways to administrative justice in Wales. The AJC’s report can be found here.
Brexit
The European Union (Withdrawal Agreement) Act 2020 received Royal Assent on 23 January 2020, making the Withdrawal Agreement and Political Declaration agreed between the UK and the EU enforceable in domestic law. The Agreement and Declaration can be found here.
The passage of the Bill faced parliamentary ping-pong between the Commons and the Lords, with the Lords making several amendments, including: cl.7 which would provide EU citizens resident in the UK with a physical identity document once their settled status was confirmed; cl.26 which would prevent lower courts from departing from retained EU case law; cl.37 which related to asylum-seeking children and family reunification; and cl.38 which would have inserted language taking note of the Sewel Convention and the political limits it placed on Westminster’s sovereignty. The House of Commons considered and rejected each of the amendments and the Bill passed unamended.
On 29 January 2020 the European Parliament voted (621 for, 49 against, and 13 abstain) to consent to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The legislative resolution and texts adopted can be found here.
At 23.00 on 31 January 2020, the UK officially left the EU and entered into a transitional arrangement until 31 December 2020 as established in the Withdrawal Agreement and Political Declaration.
The UK Prime Minister has published a written statement setting out the Government’s proposed approach to the negotiations with the EU about the future relationship between the UK and the EU, including free trade, fisheries, and areas of co-operation including internal security co-operation. The statement can be found here.
The Competition and Markets Authority published guidance on its changing role as the UK enters the transitional arrangements following withdrawal from the EU. The guidance lay outs the authority’s expectations on how it plans to take over the previous regulatory and enforcement functions of the European Commission. The guidelines can be found here.
The Law Society for England and Wales has published commentary on a range of matters during the withdrawal transition period including; mutual recognition of professional qualifications, civil judicial co-operation, representation of lawyers at EU courts, intellectual property rights, dispute resolution mechanisms and institutional arrangements and citizen’s rights. The commentary can be found here.
Research by the Public Law Project provided new insight into the administration and operation of the EU Settlement Scheme (EUSS), established to allow EU citizens resident in the UK to apply to remain in the UK after Brexit. The Home Office statistics show that, since the scheme opened, nearly 2.6 million applications have been lodged, of which 2 million have been determined. Of all the applications lodged, 60.9 per cent of applications have resulted in a grant of settled status and 38.5 per cent have led to a grant of pre-settled status. Pre-settled status is a form of limited leave to remain whereas settled status, granted to individuals who have been resident for five or more years in the UK, is indefinite leave to remain. A further 0.7 per cent of applications led to, what the Home Office refers to as, “other outcomes”. The Home Office defines this category as applications that are “withdrawn or void (including where the applicant was ineligible to apply, for example, because they were a British citizen), was invalid as it did not include the required proof of identity and nationality or other mandatory information or was refused on eligibility or suitability grounds.” The statistics show that, so far, there have only been five outright refusals. The Home Office also has a substantial backlog of applications, which currently stands at 361,900. There also appear to be significant problems in consistent administration of the scheme, with 89.5 per cent of initial decisions being overturned on internal administrative review. An overview of the EUSS can be found here.
Criminal justice inspectorates
Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) released its Rape Inspection in December 2019. The Inspection found that, despite rape allegations increasing to 58,657 in March 2019, only 1,925 prosecutions were successful. The Inspection further found that, despite the increase in allegations, most of those increased number of cases were not being sent to the Crown Prosecution Service by the police for consideration of charges. Statistically, cases prosecuted by the Crown Prosecution Service had decreased by 52 per cent despite an increase of 43 per cent in rape allegations, and there had been a 23 per cent fall in the number of cases being referred to the CPS by police forces. The Inspection can be found here.
In January 2020, HMCPSI published its report assessing improvements in the handling by the CPS of disclosure of unused material in Crown Court matters. The report found that, compared to similar reviews in 2016 and 2018, there had been a significant improvement in all 14 CPS areas on disclosure of unused material which could lead to reasonable lines of inquiry for the defence. However, the report added that in 80 per cent of cases where a fault in disclosure had been found, the CPS provided no feedback to the police on how they could have improved their handling of the matter. Statistically, compliance with the duty of continuing disclosure in relation to non-disclosable unused material improved from 69.8 per cent in 2016 to 83.8 per cent presently and in relation to disclosable unused material improved from 72.6 to 82.8 per cent. In addition, compliance with the requirement for the prosecutor to review the defence statement and provide comments and advice to the police improved from 41.2 per cent in 2016 to 60 per cent. The report can be found here.
Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) published the third and final tranche of independent inspections into fire and rescue services for 12 years. The reports can be found here.
Her Majesty’s Inspectorate of Prisons published in January 2020 its report on the separation of children in young offender institutions. The report determined that the experiences of children separated in institutions differed greatly depending on the location at which they were detained. However, broadly, the report concluded that the regime operating at most institutions for separation was inadequate, inconsistent, and degrading, with some children being permitted to leave their cells for only 15 minutes a day and some not being able to shower once a day. The report can be found here.
Inspectors from HMCPSI worked with counterparts from HMICFRS to analyse the handling of disability hate crime cases by the police and CPS. Inspectors found an increase in disability hate crime being flagged on the CPS case management system, which normally enabled proactive and sensitive case management. However, the report did conclude that more could be done to properly assess the victim’s needs, particularly with court attendance and giving evidence. Inspectors found that the CPS guidance on disability hate crime is clear, although prosecutors do not always comply with what is required, particularly in the quality of the reviews prior to charge and post-charge. However, compliance with the Code for Crown Prosecutors in disability hate crime cases is excellent, which means that the correct cases are being progressed through the criminal justice system. The report can be found here.
Her Majesty’s Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services published a joint report on evidence-led domestic abuse cases, meaning those cases where the alleged victim of abuse does not give evidence against the accused. The inspectorates found that there were currently no uniform or effective standards applied to determine whether an evidence-led prosecution could be successful or not. In addition, the inspectorates determined that there was not sufficient consideration in agencies about whether pursuing an evidence-led prosecution might be in the interests of justice. The report can be found here.
Her Majesty’s Inspectorate of Probation (HMIP) published its inspection into the National Probation Service, highlighting significant areas of positive performance, including good leadership at every level of the service and increasing investment in training for new probation officers and in a new line management supervision framework. However, the report also determined that workloads are very high, with 60 per cent of probation officers carrying a workload over the 100 per cent target level and some much more than this. The report can be found here.
Devolution
Northern Ireland
On the 9 January 2020, the UK Northern Ireland Office published a deal, New Decade, New Approach, to see devolved government restored in Northern Ireland. The key elements of the deal are: transforming public services and investing in the economy; better politics and sustainable institutions; language and identity. The “deal” can be found here.
The Northern Ireland Assembly resumed meeting on 11 January 2020 and the executive was reformed with all ministers appointed. Arlene Foster MLA (DUP) was appointed First Minister, Michelle O’Neil MLA (Sinn Fein) was appointed Deputy First Minister, and Naomi Long MLA (Alliance) was appointed Justice Minister. Statutory committees were appointed on 14 January 2020.
On 20 January 2020, the Assembly affirmed that it would not consent to the European Union (Withdrawal Agreement) Bill 2019-2020.
Scotland
The Referendums (Scotland) Act 2020 received Royal Assent on 29 January 2020, providing a legislative framework for referendums. The Act provides a power for the Scottish Ministers, by regulations, to provide for the holding of referendums throughout Scotland within the legislative competence of the Scottish Parliament. This includes rules for voting and rules to regulate campaigning.
On 19 December 2019 the Scottish Government published its case for a second independence referendum: Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands. This can be found here.
On 8 January 2020, the Scottish Parliament affirmed that it would not consent to the European Union (Withdrawal Agreement) Bill 2019–2020.
The Scottish Elections (Franchise and Representation) Bill completed stage 2 consideration on 16 January 2020. The Bill aims to enfranchise certain persons in respect of Scottish parliamentary and local government elections; to extend to certain persons the right to vote at, stand for election at, and hold office as elected members following, Scottish parliamentary and local government elections. In particular it aims to extend the franchise in Scottish Parliament and local government elections to some convicted persons.
On 29 January 2020, the Scottish Parliament agreed (for 63, against 54, abstentions 1) to a motion on recognising Scotland in Europe. This motion: recognises that Scotland and the UK will continue to be represented within the Council of Europe; notes that the European flag was originally the flag of the Council of Europe; affirms Scotland’s commitments to the aims of the Council of Europe; recognises the importance of continuing to fly the European flag as a sign of support and solidarity with those EU nationals who have made Scotland their home; and directs the Scottish Parliamentary Corporate Body to ensure that the European flag continues to fly daily at the Parliament building.
Also on 29 January 2020 the Scottish Parliament agreed the following motion on Scotland’s Future (64 for and 54 against): that the Parliament recognises the sovereign right of the people of Scotland to determine the form of government best suited to their needs; agrees with the cross-party Smith Commission report published after the 2014 referendum and backed by the UK Government that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose; recognises that there has been a material change in circumstances since 2014 and that a referendum should be held so that the people of Scotland can decide whether they wish it to become an independent country, and calls on the UK Government to reach an agreement with the Scottish Government on such a referendum taking place on a date and in a manner determined by the Scottish Parliament, which the Scottish Government proposes should take place in 2020.
On 14 January 2020, Prime Minister Johnson wrote to First Minister Sturgeon to reject a previous request for a transfer of powers to hold a further referendum on Scottish independence. The Prime Minister’s letter can be found here.
Wales
On 22 January 2020, a Westminster Hall debate was held on the report of the Commission on Justice in Wales, moved by Liz Saville-Roberts MP (Plaid Cymru). The debate can be found here.
On 4 February 2020, the National Assembly debated the report of the Commission on Justice in Wales in plenary. The plenary session can be found here.
The National Assembly for Wales voted (by 42 votes to 7) to expand the remit and change the name of the Constitutional and Legislative Affairs Committee. It will now be called the Legislation, Justice and Constitution Committee. This followed on from recommendations of the Commission on Justice in Wales and means that the Assembly will formally scrutinise justice matters for the first time in its history.
The Senedd and Elections (Wales) Act 2020 received Royal Assent on 15 January 2020. The Act renames the National Assembly for Wales as the “Senedd Cymru” or “Welsh Parliament”; extends the right to vote in Senedd elections to 16 or 17 year old persons; amends the law relating to disqualification from membership of the Senedd; makes provision regarding oversight of the work of the Electoral Commission; and makes miscellaneous changes to the law relating to the government of Wales and for related purposes.
The Local Government and Elections (Wales) Bill was introduced on 18 November 2019. This aims (among other things); to reform local government electoral arrangements (extending the franchise to 16 and 17 year old persons); reform participation in local democracy; facilitate more consistent and coherent regional working mechanisms; introduce a new system for performance and governance based on self-assessment and peer review; and give powers to facilitate voluntary mergers of principal councils.
The Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill was agreed by the Assembly on 28 January 2020 and is expected to receive Royal Assent.
On 21 January 2020, the Assembly affirmed that it would not consent to the European Union (Withdrawal Agreement) Bill 2019–2020.
Freedom of speech
Shadow Education Minister, Tracy Brabin MP, asked Chloe Smith MP, Minister for the Cabinet Office, about reports that journalists and editors from certain newspapers and media outlets had been barred from attending a briefing held at No.10 about the UK’s future trade dealings with the EU. The outlets included the Press Association, Politics Home, Huffpost UK, the Mirror, and the Independent website.
On 22 January 2020, IMPRESS released a podcast on the challenges of Family Court reporting with Transparency Project member, Louise Tickle. The podcast can be found here. IMPRESS announced two new appointments to its board: Shelina Janmohamed and Pam Vick. The appointments can be found here.
Sir Alan Moses stepped down as Chair of the Independent Press Standards Organisation on 31 December 2019 and was replaced by Labour peer, Lord Foulkes. The Independent Press Standards Organisation also announced that Barry McIlheney, Chief Executive Officer of the Professional Publishers Association, had been appointed to its board. The Independent Press Standards Organisation further invited comments and submissions on its review of the Editors’ Code of Practice, which can be found here.
Human Rights
On 19 December 2019 the House of Commons Library published a briefing paper on UK Cases at the European Court of Human Rights since 1975 (TSO, 2019), CBP8049. The briefing paper can be found here.
On 29 January 2020 the European Court of Human Rights published its Annual Report 2019 and Analysis of statistics 2019. At the end of 2019 there were 59,800 applications pending before the court, one quarter of these concerned the Russian Federation. The number of new cases has risen on account of an increase in applications against Bosnia-Herzegovina, the Russian Federation, Turkey and Ukraine. The annual report can be found here; and the statistics here.
Housing benefit
In 2016 the UK Supreme Court gave judgment in a series of cases known as R. (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 W.L.R. 4550. These claims related to the spare room subsidy introduced under reg.B13 of the Housing Benefit Regulations 2006 (SI 2006/213) (also known as the “bedroom tax”). In Carmichael the Supreme Court held that where there was a transparent medical need for an additional bedroom (not catered for in reg.B13(5) and (6)) there would be unjustified discrimination on the ground of disability constituting violation of the claimant’s rights under art.14 read with art.8 ECHR. In the Carmichael case, one of the claimants could not share a bedroom with her husband due to her disabilities. The regulations catered for children who could not share a bedroom due to disabilities, but it did not cater for the situation of spouses who could not share a bedroom due to disability. The regulations also provided for a spare room for adults needing an overnight carer, but did not provide for a spare room where a child needed an overnight carer (a situation facing another claimant in Carmichael). To remedy these legal defects, the Secretary of State for Work and Pensions laid the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI 2017/213) before Parliament to address the two situations where the 2006 Regulations were held to breach the ECHR. The Size Criteria Regulations came into effect in April 2017 but were not retrospective.
In the case of RR v Secretary of State for Work and Pensions [2019] UKSC 52; [2019] 1 W.L.R. 6430, the Supreme Court then addressed what Lady Hale described as “an important constitutional question”, of the effect of Carmichael on decision-makers in the housing benefit system. The Supreme Court held that in cases relating to periods before the Size Criteria Regulations came into effect, local authorities, the First-tier Tribunal and the Upper Tribunal, should disregard the provisions of the 2006 Regulations found to be incompatible with the ECHR. In short, the other public body decision-makers in the housing benefit system should not apply the spare room subsidy, even in claims arising before the Size Criteria Regulations came into effect, as this would be in breach of ECHR rights.
Immigration, extradition, deportation and asylum
Asylum
In R. (on the application of MK) v Secretary of State for the Home Department [2019] EWHC 3573 (Admin) Mr Justice Saini rejected a claim that the UK Government’s process for dealing with asylum claims by unaccompanied children was systemically unlawful in public law. The judge considered a substantial volume of evidence, including from professionals working in the field, and statistical evidence, from both sides. Drawing on the judgment of Hickinbottom LJ in R. (on the application of Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin); [2018] 4 W.L.R. 49, Saini J stressed that he had to distinguish between a scheme or system which is inherently bad and unlawful, and one which is being badly operated. There is a difference between incidences which signal a systemic problem and those which, however numerous, remain cases of individual operational failure. Noting the very high threshold for finding a systemic failure, Saini J found that the defendant was taking action to address problems that had arisen largely due to fluctuating demand, and especially due to the large increase in asylum claims in 2015. He held that it “would be wrong in principle for the court to impose impossible or impracticable standards, or hold that the Defendant is acting unlawfully, when she is taking reasonable steps to improve the efficiency of a complex operational system in the face of increasing demand.” Saini J also held that the statistical data presented did not support the submission that delays in processing claims were due to systemic failures, or lack of priority being given to unaccompanied child asylum seekers. The claimants had also argued that the defendant’s policy failed to ensure that the child’s best interests were a primary consideration in the determination of claims, thus allegedly breaching domestic, EU and international law. Saini J, however, found that there were numerous features of the way that claims of unaccompanied children were dealt with showing that they are beneficiaries of special attention and prioritisation, and that this was also a significant factor in why there tended to be longer delays in processing such claims. In light of this he also rejected the claim that the arrangements unlawfully discriminated against children under art.14 ECHR read with art.8 ECHR. He stated: “[T]he usual processes for considering and determining claims have been substantially modified in respect of children, in order to reflect their particular vulnerability and need for support and assistance in advancing [an asylum claim] as well as the fact that they may be less able to provide clear and consistent explanations of the matters giving rise to the claim. Moreover, despite the special safeguards … the same overall indicative timeframe was applied.” Delay in processing the claimant’s specific claim was also found not to be unlawful.
Immigration detention
Where a person arrives illegally in the UK and claims asylum, having travelled to the UK via at least one other EU Member State in which they have already claimed asylum, the Home Department has established a policy in relation to detention pending removal pursuant to Immigration Act 1971 Sch.2 para.16(2). This can be found in Ch.55 of the Enforcement Instructions and Guidance (EIG). In R. (on the application of Hemmati) v Secretary of State for the Home Department [2019] UKSC 56; [2019] 3 W.L.R. 1156, the Supreme Court unanimously held that Ch.55 of the EIG fails to comply with the Dublin III Regulation (Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31) because it lacks adequate certainty and predictability and therefore does not satisfy the requirements of arts 28(2) and 2(n) of the Regulation. The UKSC draws on the decision of the Court of Justice of the European Union in Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Al Chodor (C-528/15) EU:C:2017:213; [2017] 4 W.L.R. 125, which requires that detention should be subject to safeguards of legal basis, clarity, predictability, accessibility and protection against arbitrariness. The provisions of Ch.55 EIG instead contained “no more than general guidance as to how the power to detain is to be exercised and does not constitute a set of objective criteria against which the risk of absconding is to be assessed.” Whilst the so-called Hardial-Singh [1984] 1 W.L.R. 704; [1984] 1 All E.R. 983 principles require detention powers to be exercised reasonably and for the prescribed purpose of facilitating deportation, they “do not constitute objective criteria on the basis of which an assessment may be made as to the likelihood that a person who is subject to a transfer procedure may abscond.” Although not necessary to decide the case, Lord Kitchen also considered the broader question of whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a “law” within the meaning of Dublin III art.2(n). The Secretary of State argued that Ch.55 could constitute “law”: because it is prescriptive and imposes restrictions on executive power going beyond Hardial-Singh; because failure to comply gives individuals legally enforceable rights before the courts including a right to compensation; and because in a common law jurisdiction case law and Ch.55 are integral components of the law which limits powers to detain and conditions the exercise of these powers, which would exist only in legislation in other legal systems. The respondents argued that Ch.55 is not “law” under art.2(n) Dublin III because as a policy it is subject to the principle that a decision-maker is entitled to depart from the policy with good reason; as such a statement of policy cannot be a principle of general application as required by art.2(n). The respondents also noted the Opinion of the Advocate General in Al Chodor that official discretion should be circumscribed in the manner that best guards against the deprivation of liberty, and so the content of the criteria and their application should be decided by authorities that are institutionally separate (and that the Carltona principle means the decisions of the Secretary of State’s officials will also count as his). The Supreme Court also concluded that the majority in the Court of Appeal were right to hold that the respondents were unlawfully detained and entitled to compensation under domestic common law.
Independent Reviewer of Terrorism Legislation
The Reviewer delivered a speech on Wednesday 22 January 2020 at a Henry Jackson Society event in the House of Commons. The Reviewer argued that, while his role necessarily involved reviewing legislation, it was equally important for him to refer to the instructions issued to individual officers telling them how to exercise those powers. In addition, the Reviewer argued that end to end encryption, encrypted metadata, and auto-destruction of communications were increasing challenges in the prosecutorial and law-enforcement fight against terrorism. Parliament should, in his view, make it an offence to refuse to hand-over encryption keys during a terrorism investigation, with no requirement to show that the investigation was impeded by that refusal. He further called for a new statutory framework on biometrics and terrorism legislation, a review of what extremist material ought to be prohibited online, and consideration of whether current legislation permitted the proscription of loose-knit groups and networks rather than fully-fledged organisations. The speech is available here.
The Reviewer gave a speech at the Israel Democracy Institute’s Security and Democracy Conference in Jerusalem on 26 November 2019. The speech related to the so-called democratic dilemma of prohibiting organisations as terrorist when they have not directly been involved in violent extremism themselves. The Reviewer argued that these decisions should remain with ministers democratically accountable to Parliament, rather than be given to courts, intelligence agencies, or the police. However, the Reviewer conceded that the risk was that political considerations would interfere with the proper and appropriate designation of some groups. He suggested that a useful compromise may be Israel’s system whereby an advisory committee of former judges advises the minister on the exercise of their power. The speech is available here.
Information Commissioner
On 24 January 2020, the Metropolitan Police Service announced that it would begin the operational use of live facial recognition (LFR) technology. The use of the technology would be intelligence-led and deployed to specific locations in London. Each deployment would have a bespoke “watch list”, made up of images of wanted individuals, predominantly those wanted for serious and violent offences. Information on how this technology is being used can be found here.
The Information Commissioner released a statement on 24 January 2020 concerning the announcement by the Metropolitan Police Service that they were to continue to use live facial recognition technology in public places. The commissioner acknowledged that an appropriately governed, targeted and intelligence-led deployment of live facial recognition may meet the threshold of strict necessity for law enforcement purposes, but reiterated its call for Government to introduce a statutory and binding code of practice for live facial recognition as a matter of priority. The statement can be found here.
The Information Commissioner published a report on 21 January 2020 concerning the protection of children’s privacy online, which set out 15 standards that online services should meet to protect children’s privacy. The code sets out the standards expected of those responsible for designing, developing or providing online services like apps, connected toys, social media platforms, online games, educational websites and streaming services. These standards included high privacy protection settings being installed as a default and nudge techniques not being used to encourage children to weaken safeguards. The standards can be found here.
The ICO’s Steve Wood was appointed as chair of the OECD’s Working Party on Data Governance and Privacy on 27 November 2019. The announcement can be found here.
The commissioner’s office posted a blog on data ethics and the digital economy, available here. In the blog, the office’s Executive Director of Technology Policy and Innovation highlighted several contemporary uncertainties about how to adequately balance data protection with consumer convenience and organisational improvement.
Inquiries
The Grenfell Tower Inquiry published its phase 1 report. The report is divided into six sections. Part I contains a broad introduction to the events that took place during the early hours of 14 June 2017. Part II contains a detailed narrative account of the fire and the steps taken in response to it. Part III contains the inquiry chairman’s conclusions about the origin and development of the fire and his analysis of the response of the London Fire Brigade and the other emergency services which attended the incident. It is also noted that the hearings commemorating those who died constituted an important part of the inquiry’s proceedings and that Pt IV contains a summary of the tributes paid to loved ones by their families and friends. Part V contains recommendations arising out of the findings made and Pt VI looks identifies some matters of particular importance to phase 2 of the inquiry. The report of phase 1 can be found here.
The UK Government’s response to phase 1 was published on 21 January 2020 and can be found here.
Phase 2 of the inquiry began on 27 January 2020.
Investigatory Powers Commission
Using powers under s.230 of the Investigatory Powers Act 2016, the Prime Minister directed the Investigatory Powers Commission to report on the application and enforcement of new “Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainee”. The direction can be found here and the principles can be found here. The principles outline the expected conduct of British intelligence and security officials when, with foreign intelligence and security services, they may wish to detain and interview suspects and pass on the intelligence gained from those detainees. The principles touch on (i) unlawful killing, (ii) torture, (iii) cruel, inhuman and degrading treatment, (iv) extraordinary rendition or rendition, and (v) unacceptable standards of arrest and detention. The principles make clear that, where personnel know or believe that unlawful killing, torture, or extraordinary rendition will take place, personnel must not proceed with interviewing or detention, and ministers must be informed. Meanwhile, where personnel recognise a real risk of unlawful killing, torture, cruel, inhuman and degrading treatment, extraordinary rendition, or unacceptable standards of arrest and detention, personnel should not proceed with interviewing unless there has been consultation with senior personnel and legal advisers who have concluded there is no real risk, or it has been possible to effectively mitigate the risk to below the threshold of real risk through reliable caveats or assurances which have been reviewed and approved by senior personnel. If mitigation is not possible, ministers must be consulted for a decision on the facts.
Judiciary
Sir Ernest Ryder announced his retirement as Senior President of Tribunals, he has been elected as Master of Pembroke College, Oxford and will take up the post in the summer.
Law Commission
The Law Commission published its long-awaited report into Simplification of the Immigration Rules (TSO, 2020), HC 14, Law Com. No.338, in January 2020. Describing the rules as “overly complex and unworkable” and their structure and drafting as “impenetrable” (para.1.1), the report investigated the drivers of this complexity and identified them as the frequency of changes to the rules (para.4.11), alongside the introduction of the points based system and the codification of art.8 ECHR (para.4.12). The Law Commission’s terms of reference included identifying principles to make the rules simpler and more accessible, reviewing their drafting and structure, as well as tackling the underlying causes of complexity. The report did not address immigration policy or the statute underlying the rules (para.1.4). Recommendations are made to overhaul the rules with reference to their comprehensiveness, accuracy, accessibility, consistency, durability, ability to be presented digitally and suitability for users (paras 2.3 and 2.58). Changes of content include a less prescriptive approach to the evidential requirements, in the form of non-exhaustive lists of suitable evidence (paras.5.133). These lists will include evidence that will always be accepted and evidence that is potentially suitable when adopting a more purposive approach to the rules (para.5.134). Recommendations are made to make the rules more user friendly, including dividing the subject matter differently (para.6.31), identifying inconsistencies (para.6.45), and highlighting differences in the guidance (para.6.100). Consolidation into a single set of immigration rules is propounded (para.6.91) and producing paper and digital booklets for each category of applicant (para.6.92).Further recommendations relate to consistency of titles and subheadings (paras 7.7 and 7.13), tables of contents for each part of the rules (para.7.27), simplified numbering (paras 7.38, 7.43, and 7.60), use of hyperlinks and signposting (paras 7.43 and 7.77) and providing statements of the date on which a rule comes into effect (para.9.20). The report can be found here.
Legal aid
In Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51, the Court of Appeal reversed the decision of Dove J (Tower Hamlets LBC v Al Ahmed [2019] EWHC 749 (QB)) who had found that trying to find legal aid was not a “good reason” for the appellant Mr Ahmed’s lateness in issuing an appeal under s.204 of the Housing Act 1996. Sir Stephen Richards considered that Dove J may have been overly influenced by case law interpreting appeals made out of time, or applications for extensions of time, by litigants in person under the Civil Procedure Rules and Tribunal Procedure (Upper Tribunal) Rules. The context of s.204 of the 1996 Act is materially different for the reasons given by Shelter in its intervention, summarised by Sir Stephen Richards as presenting “a bleak picture of the difficulties faced by homelessness applicants …without legal advice and representation, and of the difficulties they may face in finding someone to provide those services under legal aid, especially as a result of the post-LASPO shrinkage of the housing advice sector.” Whilst Dove J had found that the requirements of bringing a homelessness appeal were not “especially sophisticated or taxing”, Shelter argued that seeking legal aid can, and indeed often will, provide “good reason” for requiring an extension of time to appeal against an adverse decision on administrative review.
The case of R. (on the application of FF) v Director of Legal Aid Casework [2020] EWHC 95 (Admin) concerned the test excluding from the scope of legal aid proposed judicial review proceedings that do “not have the potential to produce a benefit for the individual, a member of the individual’s family or the environment” (under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Sch.1 Pt 1 para.19(3)). FF was a Bahraini citizen who was granted asylum in the UK following arrest without charge, detention and torture in Bahrain due to his involvement in pro-democracy protests. FF produced evidence (including from Bahraini national and international human rights organisations) that the Prince of Bahrain had been personally involved in the torture of detained prisoners, including two protest leaders that FF had been detained along with. FF sought legal aid for a judicial review claim to require the Home Secretary to make a decision whether to exclude the Prince of Bahrain from the UK and to set out the legal and factual basis for the decision reached. The Director of Legal Aid Casework ultimately rejected FF’s application for funding for full representation because he did not accept that exclusion of the Prince would constitute a “meaningful benefit” for FF or his family. Mr Justice Murray summarised relevant principles he had set out in the earlier case of R. (on the application of Liberty) v Director of Legal Aid Casework [2019] EWHC 1532 (Admin); [2019] 1 W.L.R. 5185. Namely, whether proposed judicial review proceedings would have the potential to produce a benefit for an individual, or member of his family is a mixed question of law and fact; “benefit” should be given its ordinary broad meaning (it must have some substance beyond “sufficient interest”); the benefit does not have to be financial or otherwise result in an improvement in the material conditions of life of the applicant or their family; there is a right answer (it is not a matter of discretion for the director); and finally that benefit which is “merely” psychological and/or involves the fulfilment of a moral obligation may, in an exceptional case, be sufficient, but this must go beyond what would otherwise be involved in purely representative litigation. Mr Justice Murray found FF’s case to be an exceptional one for combined factors including, his well-founded fear of persecution at the hands of the Bahraini authorities; that he and those connected to him remain at risk from the Bahraini regime; exclusion of the Prince would be a concrete step towards obtaining accountability and justice materially benefitting FF who has suffered serious emotional distress each time the Prince has visited the UK with impunity; that FF owes a moral duty to victims of torture who have reposed trust in him to pursue his campaign. Finally, the decision FF seeks to challenge is not independent of his own actions as it arose because he requested the Home Secretary to exclude the Prince from the UK, in consequence of evidence he passed to the CPS which was then communicated to the Home Office.
Ombudsmen
The Parliamentary and Health Service Ombudsman (PHSO) released a new Radio Ombudsman podcast with Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission, exploring how the ombudsman and the commission could work together to protect human rights in an age where rights-protection and norms were becoming increasingly precarious. The podcast can be found here.
The PHSO published a report entitled Learning from mistakes: An open and honest review of failings handling a serious complaint, which provides a frank account of how the PHSO got several things wrong in the way it dealt with a complaint and the considerable impact that this had on the family. The report details several changes in procedure, including a new system for allocating caseworkers, a new casework management system, accreditation for caseworkers, communications training for staff, and updated guidance indicating that evidence from organisations and complainants should be, in principle, view as equal. The review can be found here.
Andrew Medlock, Assistant Director of Strategy and Partnerships at the PHSO, posted a blog concerning the PHSO’s development of a complaints standards framework. The review can be found here.
The Local Government and Social Care Ombudsman published a report concerning maladministration and poor practice in relation to the administration of housing benefit. The report found that local authorities were administering the benefit in an inconsistent way, poorly understood their statutory duties in relation to the benefit and in relation to homelessness, and potentially unlawful practices in preventing families from challenging housing benefit decisions. The report added that the ombudsman upheld 78 per cent of all complaints about housing benefit referred to it, compared to a general upholding rate of 58 per cent. The report can be found here.
From 1 July 2020, the Scottish Public Services Ombudsman is also to become the Independent National Whistleblowing Officer. In advance of this change of role, the ombudsman published its National Whistleblowing Standards. These indicate that effective whistleblowing standards should be: open, focused on improvement, objective and fair, accessible, supportive to people who raise concerns, simple and timely, and proportionate and consistent. The standards can be found here.
Parliament
On 29 October 2019, Parliament passed the Early Parliamentary General Election Act 2019 which, irrespective of the Fixed Term Parliaments Act 2011, required a general election to be held on 12 December 2019.
Sir Lindsay Hoyle MP was elected by the House of Commons as its new Speaker, replacing John Bercow. Thereafter, Parliament was dissolved on 6 November 2019.
A general election was held on 12 December 2019, with the Conservative Party being returned to government with a majority of 80 seats.
Upon returning to business and following a nomination period running from 16–23 January, the House of Commons elected its committee chairs. The results of those elections can be found here. In particular, Sir Robert O’Neill MP was re-elected as Chair of the Commons Justice Committee, Yvette Cooper MP was re-elected as Chair of the Home Affairs Committee, and William Wragg MP was newly elected as Chair of the Public Administration and Constitutional Affairs Committee, taking over from Sir Bernard Jenkin.
A Queen’s Speech was held on 19 December 2019. Bills of interest may include:
• the European Union (Withdrawal Agreement) Bill, to implement into domestic law the Withdrawal Agreement and Political Declaration agreed between the UK and the EU. As noted, this Bill received Royal Assent on 23 January 2020;
• the Counter Terrorism (Sentencing and Release) Bill, to increase sentences handed down to “the most serious and dangerous offenders” and to ensure that those offenders are only released following approval by the Parole Board;
• the Sentencing Bill, which will increase sentencing for “the most serious and violent offenders” and ensure that those offenders are released only following approval by the Parole Board;
• the Windrush Compensation Scheme (Expenditure) Bill, which will establish a statutory compensation scheme for residents affected by the Windrush scandal;
• a Bill to provide the security services and law enforcement agencies with new tools to disrupt hostile state activity, including creating new offences to criminalise harmful activity conducted by and on behalf of states;
• a Bill to repeal the Fixed Term Parliaments Act 2011 and to make provision for parliamentary election timetables;
• the Prisoners (Disclosure of Information About Victims) Bill, which would ensure that where an offender who has been convicted of murder, manslaughter or taking indecent photographs of children refuses to disclose certain details about their offences, that is considered by the Parole Board as part of their assessment as to whether that offender should be released;
• a Bill to require an approved form of photographic ID at a polling station in a UK parliamentary election in Great Britain and local elections in England. Any voter who does not have an approved form of ID will be able to apply, free of charge, for a local electoral identity document;
• a Bill to establish a Police Covenant on a statutory footing to ensure that Parliament has the opportunity to scrutinise progress made against the covenant;
• potential measures will be brought forward to criminalise the act of trespassing when setting up an unauthorised encampment in England and Wales, with the introduction of new police powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments.
The speech also promised a Royal Commission on the effectiveness of criminal justice, whose terms of reference, duration, and scope is yet to be outlined, and a Constitution, Democracy and Rights Commission to “examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates”. On 20 January 2020, the House of Commons voted to approve the Queen’s Speech by 334 to 247. The Government’s briefing notes for the Queen’s Speech can be found here.
The Public Administration and Constitutional Affairs Committee published a report on 5 November 2019 concluding that staff turnover and political pressures can significantly hamper the Government’s ability to deliver major infrastructure projects. The report made several recommendations, including: examination of the relationship between the Infrastructure Projects Authority at the centre of Government and individual departments, enhancing the capacity of the Civil Service knowledge and skills base to deliver major projects, and action to address churn and turnover among project staff. The report can be found here.
Parole Board
Peter Rook was appointed as new Vice Chair of the Parole Board on 3 February 2020. The announcement can be found here.
The Parole Board made publicly available on its website on 31 January 2020 a series of cases decided under its new reconsideration mechanism, whereby victims of crime may request a review of a decision of the Parole Board. The decisions can be found here.
The Parole Board published its quarterly statistics, available here. Among other things, the statistics indicated that 40 applications for a Parole Board decision to be reconsidered were made since the “reconsideration mechanism” was launched in July 2019, that 1,906 decision summaries had been provided to victims of crime since their introduction in May 2018, and there had been a 22 per cent increase in the workload of the board.
The Parole Board published its guidance for practitioners on the parole process, including giving detail guidance on the operation and conduct of oral hearings. The guidance can be found here.
Security and intelligence
The case of Privacy International v Secretary of State for Foreign and Commonwealth Affairs [2019] UKIPTrib IPT_17_186_CH, raised what the majority referred to as “one of the most profound issues which can face a democratic society governed by the rule of law”. By a majority the tribunal found that the commission of criminal offences by officials and agents of the state Security Service (MI5) could be lawful both as a matter of domestic public law, and also in accordance with the ECHR. The majority concluded that the prerogative power to operate a security service was superseded by the Security Service Act 1989 which had then occupied the field. They further held that the 1989 Act contains an implied power to authorise the running of agents who are embedded in an illegal criminal organisation and for such agents to participate in criminality. As such a policy purporting to authorise the commission of criminal offences by such agents was lawful. Drawing on the work of the philosopher Wesley Hohfeld (1878–1918), the majority noted that just because the Security Service has the power of authorisation as a matter of public law, does not mean it also has power to confer immunity from liability under either criminal law or civil law on its own officers or agents handled by them. The majority also held that the oversight powers of the Investigatory Powers Commissioner’s Office (and previously the Intelligence Services Commissioner) provide adequate safeguards against the risk of abuse of discretionary power (thus complying with art.6 ECHR). They also noted that the question of whether there has been a breach of ECHR rights is usually to be determined after the event on the concrete facts of a particular case, not in the abstract, and were not persuaded whether the claimants had met the requirements of the s.7 of the Human Rights Act 1998 “victim” test such as to have standing (although they did not dispose of the case for that reason). However, two judges (Charles Flint QC and Professor Graham Zellick QC) both dissented on the lawfulness of the power to authorise the commission of offences. Whilst both accepted the operational need for MI5 to run agents who may need to participate in serious criminal activity, on interpreting the 1989 Act in the context of other legislation (such as the Regulation of Investigatory Powers Act 2000) Charles Flint QC did not find the existence of “implied powers” in the 1989 Act to be made out. Professor Zellick QC, on the other hand, did not find the power to authorise agent participation in criminality authorised either under the prerogative or the 1989 Act, and as such he found it had no basis in law (therefore also rendering it in breach of the ECHR). Professor Zellick QC also took issue with the Hohfeldian inspired argument stating: “A power to condone or permit the commission of crimes cannot acquire the quality of legality because those breaking the law in compliance with the authorisation may subsequently be prosecuted. The authorisation is in itself intrinsically unlawful: it will impact on the legal rights of others, it may involve the commission of tortious and criminal acts and—in the absence of clear legal authority—is subversive of the Rule of Law.”
In September 2017, the Investigatory Powers Tribunal (IPT) referred questions to the ECJ concerning the collection of bulk communications data by the Security and Intelligence Agencies from mobile network operators (or electronic communications networks). The reference can be found here. On 15 January 2020, Advocate General Campos Sánchez-Bordona concluded that EU law exceptions relating to national security do not apply where providers of electronic services are required by law to retain data belonging to subscribers and to allow pubic authorities to have access to this data. In Case C-623/17 Advocate General Campos Sánchez-Bordona thus replied to the IPT: “Article 4 TEU and Article 1(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) should be interpreted as precluding national legislation which imposes an obligation on providers of electronic communications networks to provide the security and intelligence agencies of a Member State with ‘bulk communications data’ which entails the prior general and indiscriminate collection of that data.”
Separation of powers
In R. (on the application of Gill) v UK Statistics Authority (UKSA) [2019] EWHC 3407 (Admin), the claimant challenged the UKSA’s decision not to include a Sikh ethnic group tick box response in the Office for National Statistics census being developed for 2021. The category Sikh was available in the 2011 Census as a tick box response to the question of “Religion”, in the question of ethnicity Sikh was not listed as a tick box response, but there was a response of “other specify” in which 83,362 respondents wrote Sikh. Following consultation, the UKSA considered that this same approach would be the most appropriate for the 2021 Census, rejecting some demands for a Sikh tick box response in ethic group. The claimant’s grounds of challenge included that in developing the draft 2021 Census, the UKSA had departed from published evaluation criteria, and failed to apply some criteria consistently in determining questions and response options for inclusion under various topics. The defendant responded that these arguments were based on a fundamental misconception about the criteria, and the difference between criteria for determining what questions to ask, and what responses to include respectively. However, the case is particularly interesting as it raised issues of separation of powers. The final decision on the content of the questionnaire rests with the Minister for the Cabinet Office, who would then lay a draft Order in Council and supporting regulations before Parliament. This would need to be approved by Parliament, and it would be for the Queen to direct that a census shall take place by means of the Order in Council. The case was then seen as a pre-emptive challenge to the Queen’s exercise of that power, before the minister had made a final decision on the content of the census questionnaires and before relevant legislation had been drafted. Mrs Justice Lang concluded that the claim was plainly premature, stating that it is well established that a declaration which had the effect of requiring a minister to introduce, or prohibiting a minister from introducing, draft legislation to Parliament other than on terms laid down by a court is an impermissible interference with parliamentary proceedings. If the court were to grant the declaration requested this would also be an interference with the law-making function of the Queen in Council contrary to the constitutional convention of the separation of powers. Nevertheless, Mr Gill (on behalf of the Sikh Federation UK) has expressed his intention to appeal.
Terrorism
On 4 February 2020, the Lord Chancellor and Secretary of State for Justice, Robert Buckland, announced plans to bring forward emergency, fast-tracked legislation that would prohibit those convicted of terrorist offences from being automatically released from prison half-way through their sentence without approval by the Parole Board. Controversially, this would apply to both future and current prisoners, meaning that the legislation would operate retroactively. The statement can be found in House of Commons Hansard, HC Vol.671, col.54 (3 February 2020). Lord Carlile of Berriew QC, the former Independent Reviewer of Terrorism Legislation, warned that the legislation could face legal challenge on human rights grounds.
Welfare
The Parliamentary Under-Secretary of State for Work and Pensions, Will Quince MP, announced a further delay to the roll-out of universal credit, this time until 2024. The announcement can be found here.
UK Constitutional Law Association 