Editors’ note: The Public Law Current Survey was originally published in Public Law and is reprinted here with the generous permission of that journal.
This Survey covers the period May to July 2022.
Administration of justice
On 3 May 2022, Sir Colin Birss, the Deputy Head of Civil Justice, delivered a keynote address to the Online Dispute Resolution Forum. Sir Colin gave an overview of the “agile systems design methodology” being used to implement the “digital justice system” in England and Wales. In time, Sir Colin argued that this system would include online dispute resolution portals which would not necessarily be produced by government: “This will allow the market to set the ODR portals up and the OPRC (Online Procedure Rules Committee) will provide the data standards to ensure they integrate properly with the courts digital system”. Sir Colin further provided an overview of the new OPRC created by the Judicial Review and Courts Act 2022, in particular its membership which will include senior judges, non-judicial members and “members with IT expertise” and its future approach to regulating online dispute resolution, which is likely to involve setting high-level principles to be followed by designers and coders of the portals. Sir Colin concluded by recognising the tensions involved in these reforms:
“This is, in effect, a collision of traditions between the lawyers, on one side, who would like to see it written in something resembling law, and the coders on the other, who don’t want it to be written at all. We have to find this balance between those two schools of thought.”
The speech is available here.
On 12 May 2022, the Master of the Rolls, Sir Geoffrey Vos, delivered a speech for London International Dispute Resolution Week 2022. In his speech, Sir Geoffrey explored the benefits of digital justice and how committing to digital dispute resolution is essential to maintain confidence and sustainability in the justice system. The speech is available here.
On 30 May 2022, the Lord Chief Justice of England and Wales delivered the Lionel Cohen Lecture 2022 at the Hebrew University of Jerusalem entitled “Institutional Independence and Accountability of the Judiciary”. In his speech, the Lord Chief Justice provided an overview of ways that the judiciary maintains its independence from the government and Parliament and the mechanisms for holding the judiciary accountable, including an analysis of reforms in the Constitutional Reform Act 2005. The speech is available here.
On 8 June 2022, the Master of the Rolls, Sir Geoffrey Vos, delivered a speech entitled “Mandating Mediation: The Digital Solution” to the Chartered Institute of Arbitrators. The speech addressed whether mediation should be mandated in civil proceedings and how that could be achieved. Sir Geoffrey argued that both questions had to be answered in light of the new “digital justice system” which was being created, one
“that is based online … and does not employ historic methods to identify the issues that need to be resolved … a smart system every aspect of which is dedicated to one of two things: first, the identification of the real issues that divide the parties, and secondly the resolution of those issues at the earliest possible stage in the dispute”.
This will require
“a common data architecture … [a] common and consistent approach to how information, ‘data’, about an issue or case is collected as it heads through the system … Digital systems designed and built using these common building blocks or ‘data standards’, will be what allows all participants and contributors to the justice system, whether claimants, defendants, lawyers, mediators, or judges, to become integrated in a way which is simply impossible in the analogue world”.
Sir Geoffrey argued that such a digital justice system was desirable because:
“The issues for resolution are identified by asking and answering questions rather than by presenting statements of case drafted in an adversarial manner … The benefits that a digital justice system provides include far easier and better access to justice.”
Ultimately, Sir Geoffrey argued that mandatory mediation was less likely to be necessary in the digital justice system:
“Mandation may still remain a useful tool in the box in some specific kinds of case as we build the digital justice system, but it is likely in the future to be unnecessary to impose a mandatory formal mediation at a particular stage in every case.”
The speech is available here.
On 6 July 2022, the Lord Chief Justice of England and Wales delivered the Mansion House speech on the occasion of the Dinner to Her Majesty’s Judges. In the speech, the Lord Chief Justice marked
“the importance of the rule of law in the affairs of our great nation, the contribution that an independent judiciary makes to the rule of law and the unparalleled strength of English law as a driver of prosperity”.
The Lord Chief Justice particularly noted the increase in the judicial retirement age to 75 through the Public Service Pensions and Judicial Offices Act 2022 and the discussions between the judiciary and Ministry of Justice which led to this reform. The Lord Chief Justice further noted that the Judicial Appointments Commission continued to struggle to fill judicial vacancies for salaried roles, particularly for district judges and circuit judges. This was because it was becoming increasingly more flexible and financially attractive to become a fee-paid judge, sometimes holding multiple fee-paid offices, rather than become a full-time salaried judge. The Lord Chief Justice suggested reform of the terms and conditions of each role, particularly the minimum and maximum times for which a salaried and fee-paid judge can sit. The full speech is available here.
On 8 July 2022, the Lord Chief Justice, Senior President of Tribunals and Lord Chancellor announced the creation of “One Judiciary”, which will bring together administratively the traditional courts and tribunals to produce a “single judicial family”. The initiative will begin through increasing the numbers of cross-deployments and will reach its culmination in a unified judicial leadership structure. This will give the Lord Chief Justice of England and Wales overarching responsibility for the courts and tribunals. The Senior President of Tribunals will continue to provide oversight of the tribunals but through a role with the status of a Head of Division. Chamber and Tribunal Presidents will continue to lead their respective jurisdictions and the statement committed the government to working with the devolved administrations and judiciary to implement the changes. The announcement is available here.
On 20 July 2022, the Ministry of Justice released its response to the Independent Review of Criminal Legal Aid, which is available here.
On 22 July 2022, the President of the Family Division of the High Court, Sir Andrew MacFarlane, announced the creation of a National Deprivation of Liberty Court to deal with applications seeking to authorise the deprivation of children’s liberty to be based in the Royal Courts of Justice. The new court will be supported by two Family High Court or Deputy High Court judges each week and a dedicated administrative team. Hearings will ordinarily be heard remotely. The announcement is available here.
On 26 July 2022, the Ministry of Justice launched a consultation on increasing the use of mediation in the civil justice system in England and Wales. The consultation sets out the government’s proposal to automatically refer people involved in a civil dispute valued up to £10,000 for a free mediation session provided by HM Courts and Tribunals Service. The consultation closes on 4 October 2022 and is available here.
On 29 July 2022, the Court of Appeal gave judgment in Executor of HRH Prince Philip, Duke of Edinburgh v Guardian News and Media  EWCA Civ 1081. His Royal Highness Prince Philip, Duke of Edinburgh died on 9 April 2021. On 28 July 2021 a private hearing took place before Sir Andrew McFarlane, the President of the Family Division (PFD) attended only by the PFD, Prince Philip’s executor, and the Attorney General. The hearing was not publicly listed, and the PFD determined, after submissions from only the executor and the Attorney General, that the hearing should take place in private, but that the judgment should be made public. Under r.58 of the Non-Contentious Probate Rules 1987 (SI 1987/2024) it is provided that an original will “shall not be open to inspection if, in the opinion of [the court], such inspection would be undesirable or inappropriate”. The PFD concluded that what was in the public interest was likely to be determinative of whether it was undesirable or inappropriate that the will be open to public inspection. He concluded that as a matter of public law, the Attorney General was uniquely entitled to represent the public interest. As a result, the Attorney General’s statement that the public interest strongly favoured not permitting publication of the will was compelling evidence that made it effectively inevitable that the application to hold the entire hearing in private should succeed. The main reasons for holding the hearing in private and sealing the will concerned the unique status of the sovereign as head of state; an inherent public interest in protecting the dignity of the sovereign and close members of her family to enable them to fulfil their constitutional roles; that none of the factors supporting the principle that wills should be open (e.g. the avoidance of fraud or alerting potential third party claimants) was likely to apply to senior members of the Royal Family; and that whilst there was likely to be public curiosity in the contents, there was no true public interest in the public knowing such wholly private information (at ).
Guardian News Media (GNM) appealed to the Court of Appeal on grounds that the PFD had been wrong to conclude that, as a matter of law, only the Attorney General could speak to the public interest on both media attendance at the hearing and substantive law issues; that the PFD had been wrong in law to deny the media an opportunity to make submissions on whether the substantive hearing should be in private; and that the PFD had wrongly failed to consider any lesser interference with open justice than a private hearing excluding all press representatives.
The Court of Appeal held that the PFD had been wrong to suggest that only the Attorney General is able to speak to the public interest in open justice as a matter of law, albeit that the Attorney General’s views are of great weight (at ) and could be regarded as compelling (at ). However, whilst the PFD was wrong to say that only the Attorney General could speak to the issue, the media had no legal right to be heard before any order as to a private hearing was made. GNM was wrong to assume that the media has a legal right to attend and make submissions wherever a party applies for a hearing to be held in private. The central issue was whether the PFD was wrong, as a matter of fairness, either to exclude the media altogether or not to consider lesser interferences with the principle of open justice. The majority concluded that due to the exceptional position of the Royal Family and the private nature of wills, that this was not a case where fairness demanded the media be notified of the hearing and asked to make submissions before judgment. Whilst King LJ agreed with the majority and dismissed the appeal on all grounds, she noted her significant reservations in respect of the third ground and that, for her part, she believed she would have tried to find a route that would have enabled the media to be present to hear and scrutinise the substantive proceedings (at ). The judgment can be found here.
On 11 May 2022, the UK Government introduced the Levelling-up and Regeneration Bill. This includes provisions for the setting of levelling-up missions and reporting on progress in delivering them, provisions about local democracy and a community infrastructure levy, as well as various provisions about planning and regeneration. Further information and the Bill can be found here.
On 18 May 2022, the Home Office launched a consultation on reform of fire and rescue services in England, including introducing a statutory code of ethics, a fire and rescue services oath, the creation of a College of Fire and Rescue, and placing strategic oversight of fire and rescue services under the responsibility of a directly elected individual, such as a mayor or police and crime commissioner. The consultation closed on 26 July 2022 and is available here.
On 19 May 2022, the Secretary of State for Northern Ireland announced that he would be taking action to ensure that women and girls in Northern Ireland could access abortion services, as required by s.9 of the Northern Ireland (Executive Formation) Act 2019. On 22 July 2021, the Secretary of State gave a direction to the Northern Ireland Department of Health to commission abortion services by 31 March 2022 but the department did not meet that deadline. Consequently, the Secretary of State announced that he would be laying regulations to remove the need for the Executive Committee in Northern Ireland to approve abortion services funded by the Department of Health and confer on the Secretary of State the power to do anything that a Northern Ireland minister or department could do to secure access to abortion services. The regulations are available here.
On 19 May 2022, the Secretary of State for Business, Energy and Industrial Strategy, the Scottish Government and the Welsh Government agreed a memorandum of understanding on the independence of the Advanced Research and Invention Agency (ARIA). The memorandum outlines three guiding principles: strategic autonomy; operational autonomy; and minimal bureaucracy. It also states it is not intended to create legal relations or be justiciable. The memorandum is available here.
On 5 May 2022, an election to the Northern Ireland Assembly was held. Sinn Féin became the first nationalist party to win the most seats overall in a Northern Ireland election, with the Democratic Unionist Party (DUP) losing seats and becoming the second largest party, the Alliance Party became the third largest party. At the time of writing, the DUP continues to reject the Northern Ireland Protocol to the UK-EU Withdrawal Agreement Treaty and on this basis will not support the Northern Ireland Assembly sitting or an Executive being nominated. A House of Commons Library Research Briefing on the 2022 election, by Matthew Burton, was published on 18 May 2022 and can be found here.
On 30 May 2022 the Northern Ireland Assembly met with the aim of electing a Speaker and Deputy Speaker, however, such could not be elected based on cross-community vote and therefore the Assembly has not been able to conduct its first business. Under s.39(2) of the Northern Ireland Act 1998, the current Speaker remains in office until a successor is elected. The transcript of the 30 May meeting can be found here.
On 14 June 2022, the Scottish Government published the first in a series of papers entitled “Building a New Scotland” which together form the prospectus for an independent Scotland. A video introduction to the series can be found here.
The first paper in this series is entitled Independence in the modern world. Wealthier, happier, fairer: why not Scotland? It sets out an analysis of the UK’s performance across a range of economic and social indictors relative to that of 10 European countries, and can be found here.
The second paper in the series, Renewing democracy through independence sets out the Scottish Government’s view that people who live in Scotland have the right to choose how they should be governed and to decide if Scotland should become an independent country. It can be found here.
On 28 June 2022, the Scottish Parliament passed the Coronavirus (Recovery and Reform) (Scotland) Bill. The Bill is split into three parts: Pt 1 creates new powers to respond to public health emergencies; Pt 2 creates powers for the Scottish Ministers in relation to educational establishments; Pt 3 makes changes to various services with most relating to electronic communication; Pt 4 relates to eviction from properties in the private rented sector; Pt 5 (and the Bill’s Schedule) continue some of the changes to the justice system brought in during the pandemic; and Pt 6 sets out coming into force and so on. More information and the Bill can be found here.
On 28 June 2022, the First Minister Nicola Sturgeon MSP made a statement to the Scottish Parliament on a Scottish independence referendum. The statement sets out the actions the Scottish Government and Lord Advocate intend to take in the absence of a s.30 order. These include publishing a Scottish Independence Referendum Bill, which would be consultative and not self-executing; that the First Minister has asked the Lord Advocate to consider a request to exercise her power under para.34 of Sch.6 to the Scotland Act 1998 to refer the Bill to the Supreme Court and that the Lord Advocate had agreed to do so; if the Bill is deemed within competence that the Scottish Government will then immediately introduce it and ask the Scottish Parliament to pass it on a timescale that would allow a referendum to take place on 19 October 2023; that if the Bill is deemed without competence and the UK Government continues to refuse a s.30 order, the Scottish National Party will fight the next UK general election on a single question “should Scotland be an independent country”. The First Minister’s statement can be found here.
The First Minister also sent a letter to the Prime Minister informing him that the Lord Advocate had decided to refer to the Supreme Court the question of whether Scottish Parliament legislation for an independence referendum relates to reserved matters and informing him that the Scottish Government is ready and willing to negotiate the terms of a s.30 order. The letter can be found here.
The Scottish Independence Referendum Bill, including the referendum question, form of the ballot paper, and date of the referendum can be found here.
On 28 June 2022, the Advocate General made a reference under para.34 of Sch.6 to the Scotland Act 1998. On 15 July 2022, the Supreme Court issued an order refusing the Advocate General for Scotland’s application for directions requiring the Advocate General and the Lord Advocate to file written cases restricted to the question whether the court can or should accept the reference. The court refused the application on the basis that the issues of whether the court should accept the reference and how the court should answer the question both require consideration of the circumstances giving rise to the reference and the substance of the question referred. The court therefore found it in the interests of justice and the efficient disposal of the proceedings that it hears argument on both issues at a single hearing. A provisional hearing date has been set for 11–12 October 2022. Updates can be found here.
On 4 May 2022, the House of Commons Library published a research briefing by David Torrance, Devolution in Wales: “A process, not an event”. The briefing can be found here.
On 9 May 2022, the Senedd Cymru/Welsh Parliament, Legislation, Justice and Constitution Committee held its first evidence session with the newly created Law Council of Wales, whose President is Lord Lloyd-Jones. The initial principal areas of activity of the Council are legal education and training, and legal services, with working groups set up to consider both matters. A third working group has also been established to consider the viability of a national dispute resolution centre in Wales, specifically one that might embrace mediation, conciliation and arbitration. The transcript of the evidence session can be found here.
On 24 May 2022, the Welsh Government introduced a document, Delivering Justice for Wales, setting out its approach to reforming the justice system, and delivering better outcomes for the people of Wales. The document covers prevention and early intervention, equality and justice, family justice, policing in Wales, criminal justice, civil and administrative justice, access to justice, the legal sector and economy of Wales, and governance, constitutional issues and the law of Wales. The document can be found here.
On 8 June 2022, the Senedd Cymru/Welsh Parliament debated the Report of the Special Purpose Committee on Senedd Reform—Reforming our Senedd: A stronger voice for the people of Wales. The Senedd passed a motion: noting the report of the Special Purpose Committee on Senedd Reform, endorsing the recommendations for policy instructions for legislation on Senedd Reform in time for the next Senedd elections in 2026, and noting that the report also calls on the Senedd to consider a number of matters relating to Senedd reform. A transcript of the debate can be found here.
On 13 June 2022, the Senedd Cymru/Welsh Parliament, Legislation, Justice and Constitution Committee held a stakeholder event on Wales in the UK—legislating in a changing constitutional context. A summary of the discussion can be found here and a relevant “Briefing Paper” can be found here.
On 4 July 2022, the Welsh Government introduced the Historic Environment (Wales) Bill, the first to be introduced under Standing Order 26C—Consolidation Acts of the Senedd. This is the first Bill forming part of the government’s agenda to consolidate and codify Welsh law. The Bill itself aims to consolidate legislation relating to the historic environment in Wales. It provides for the protection of monuments, buildings and conservation areas, by bringing together and restating already-existing legislation (both primary and secondary) in one place. More information can be found here.
On 7 July 2022, the Rt Hon. Robert Buckland QC MP was appointed Secretary of State for Wales. More information about Sir Robert and the role can be found here.
On 13 July 2022, the Senedd Cymru/Welsh Parliament passed the Welsh Tax Acts etc. (Power to Modify) Bill, which provides Welsh Ministers with a regulation-making power to enable them to modify Welsh Tax Acts (and subordinate legislation made under them) for various purposes including to ensure compatibility with international obligations, to protect against tax avoidance in relation to devolved Welsh taxes and to respond to relevant changes made by the UK Government to predecessor taxes. The relevant four-week intimation period ends on 9 August 2022. More information and the Bill can be found here.
On 15 July 2022, the Independent Commission on the Constitutional Future of Wales published its first progress report, also submitted to the First Minister, Counsel General and Minister for the Constitution, and the Leader of Plaid Cymru. The report covers the appointment of an expert panel to provide support to the Commission on a range of specialisms, such as governance, law, the constitution, economics, and finance, and gives an update on evidence sessions. As of 11 July 2022, the Commission had received almost 1,600 completed responses to its call for evidence. Also on 11 July 2022, the Commission launched a community engagement fund, created to ensure the views of the varied communities in Wales are being recognised, so that they can be reflected in the Commission’s interim report. The Commission will provide grants to eligible organisations of up to a maximum of £5,000 per third sector organisation or community group, with activity expected to take place in August–November 2022. The Commission’s progress report can be found here and the ongoing consultation can be found here.
On 25 July the Employment Tribunal gave judgment in Bailey v Stonewall Equality Ltd  UKET 2202172/2020. The claimant is a criminal defence barrister at Garden Court Chambers, holding the gender critical view that sex is immutable. The context was public debate on proposed reform of the Gender Recognition Act 2004, and in particular the campaigning group Stonewall’s advocacy of a change to gender self-identity provisions. The claimant alleged that Garden Court Chambers and their staff acted toward her in ways that were in breach of the Equality Act 2010, and also that Stonewall instructed or caused some of Garden Court’s actions, or that they attempted to induce or cause those actions. Ms Bailey had complained to colleagues about chambers becoming a Stonewall Diversity Champion, and that her concerns related to her belief about who was a woman. She argued that due to this complaint she was given less work, with a resultant fall in income. In 2019 she was also involved in establishing the LGB Alliance, an organisation which resists transwomen being able to self-identify as women. Her tweets had led to a number of complaints being made to chambers about the incompatibility of her views with trans rights. Following complaints, Garden Court investigated, concluding that two tweets were likely to offend the Bar Standards Board Code, and Ms Bailey was asked to delete the tweets.
The tribunal held that Ms Bailey’s gender critical beliefs were protected under the Equality Act 2010. Her particular beliefs being, that Stonewall wanted to replace sex with gender identity, that the tone of its advocacy in this context was absolutist and complicit in threats against women, and that such eroded women’s rights and lesbian same-sex orientation. The tribunal stressed, following Forstater v CGD Europe Ltd  I.C.R. 525, that it did not have to adjudicate on whether it is correct to say that the difference between men and women is about biology (sex) or social role (gender) and that it did not have to determine whether Ms Bailey’s protected beliefs were correct (at –).
The tribunal upheld Ms Bailey’s claim that Garden Court Chambers had unlawfully directly discriminated against her under s.13 of the Equality Act 2010 because of her belief, specifically, when chambers tweeted that complaints about her would be investigated, and when chambers’ internal investigation concluded that two of her tweets were likely to offend the Bar Standards Board Code. She was awarded compensation for injury to feelings, but no detriment as concerns loss of work was found.
The claimant also alleged that Garden Court had a practice of holding that gender critical views were bigoted, and that it had allowed Stonewall to direct its complaints process, and as such this indirectly discriminated against her (s.19 of the Equality Act 2010). The tribunal rejected this claim on the facts (at –). The tribunal also rejected a separate claim that Stonewall had instructed or induced discrimination by Garden Court, or attempted to do so, contrary to s.111 of the Equality Act 2010. The tribunal’s decision can be found here.
On 17 May 2022, the Foreign Secretary gave an oral statement to the House of Commons outlining that the government would introduce a Bill to Parliament “in the coming weeks” in order to modify aspects of the Northern Ireland Protocol. The Foreign Secretary insisted that this would be compatible with international law and added that the government’s preferred option remained a negotiated settlement with the EU. The statement is available here.
On 13 June 2022, the Northern Ireland Protocol Bill was introduced to the House of Commons. The aim of the Bill is to make provision about the effect in domestic law of the Protocol on Ireland/Northern Ireland in the EU Withdrawal Agreement, about other domestic law subject areas dealt with by the Protocol and for connected purposes. The main provisions of the Bill are that it: provides that certain specified provisions of the Northern Ireland Protocol do not have effect in the UK; gives ministers powers to provide that other provisions of the Protocol do not have effect in the UK; provides that enactments, including the Union with Ireland Act 1800 and Act of Union (Ireland) 1800 are not affected by provisions of the Northern Ireland Protocol that do not have effect in the UK; and gives ministers powers to make law in connection with the Northern Ireland Protocol, including where provisions of the Protocol do not have effect in the UK. The Bill and its progress can be found here.
On 15 June 2022, the European Commission launched infringement proceedings against the UK for not complying with significant parts of the Protocol on Ireland/Northern Ireland. It found the UK’s repeated non-implementation to constitute “a clear breach of international law”. The Commission also provided additional details on possible solutions initially put forward in October 2021 to facilitate the movement of goods between Great Britain and Northern Ireland. The Commission decided to take the infringement initially launched on 15 March 2021 to its second stage by issuing a reasoned opinion. The Commission has also launched two new infringement proceedings against the UK for: failing to carry out its obligations under the EU’s sanitary and phytosanitary rules by not carrying out necessary controls and failing to ensure adequate staffing at border control posts in Northern Ireland; and failing to provide the EU with trade statistics data in respect of Northern Ireland as required under the Protocol. Further information on the proceedings can be found here.
On 14 July 2022, the UK Government updated its policy paper, Northern Ireland Protocol: The UK’s solution, outlining the UK’s approach to the issues it considers to have been raised by the Northern Ireland Protocol to the UK-EU Withdrawal Agreement Treaty. The policy paper can be found here.
Government and Civil Service
On 13 May 2022, the government published its response to the House of Commons’ humble address motion calling for the publication of documents containing advice from, or provided to, the House of Lords Appointments Commission on the appointment of Lord Lebedev to the House of Lords, as well as any Cabinet Office or Prime Minister’s Office documents on the same issue. The response omitted internal correspondence from the Cabinet Office and Prime Minister’s Office to the House of Lords Appointments Commission on the basis that it would not be in the public interest to reveal this information. The response is available here and followed public debate on Lord Lebedev’s associations with the President of the Russian Federation, Vladimir Putin.
On 13 May 2022, the Cabinet Office announced that from that date all senior Civil Service positions must be advertised externally and that ministers will have a personal veto over any requests to recruit internally in the Civil Service. The announcement is available here.
On 13 May 2022, it was reported that the Prime Minister planned to reduce the Civil Service by around 91,000 posts, bringing numbers down to 2016 levels. The status of this policy is unclear given the Prime Minister’s resignation on 7 July 2022 and the Conservative Party’s consequent leadership contest. The story is available here.
On 20 May 2022, the Chair of the Public Administration and Constitutional Affairs Committee, William Wragg MP, reported that the government had prevented the Cabinet Secretary, Simon Case, and the Director General of the Cabinet Office’s Propriety and Ethics team, Darren Tierney, from appearing before the committee. The session was confirmed weeks before as part of the committee’s inquiry into government propriety and was due to discuss the management of conflicts of interest and unregulated appointments in the Civil Service, the Downing Street parties during lockdown, and the recent announcement of the government’s intention to reduce the size of the Civil Service. The statement from the committee is available here.
On 20 May 2022, the Chair of the Liaison Committee, Sir Bernard Jenkin MP, noted in a letter to the Leader of the House of Commons, Mark Spencer MP, that the government planned to update the Cabinet Manual. Sir Bernard expressed his wish that the updates would incorporate select committees’ expectations on timely and quality ministerial responses to committee reports. The letter is available here.
On 20 May 2022, the Chair of the Liaison Committee, Sir Bernard Jenkin MP, wrote to the Prime Minister following his appearance before the committee, highlighting 11 instances where the Prime Minister had indicated that employment was higher now than prior to the pandemic. Sir Bernard noted that this was not true and asked the Prime Minister to indicate when he had corrected the record. The letter is available here.
On 25 May 2022, Sue Gray released her full report following her investigation into allegations of gatherings in government premises during coronavirus lockdowns. The report is available here.
On 25 May 2022, the Prime Minister made a statement to the House of Commons in light of the publication of Sue Gray’s full report on unlawful gatherings on government premises during coronavirus lockdowns. The Prime Minister said that:
“I want to begin today by renewing my apology to the House and to the whole country for the short lunchtime gathering on 19 June 2020 in the Cabinet Room, during which I stood at my place at the Cabinet table and for which I received a fixed penalty notice.”
He added that:
“I want to conclude by saying that I am humbled, and I have learned a lesson. Whatever the failings … of No.10 and the Cabinet Office throughout this very difficult period … and my own, for which I take full responsibility … I continue to believe that the civil servants and advisers in question … are good, hard-working people, motivated by the highest calling to do the very best for our country.”
The statement is available here.
On 27 May 2022, the Cabinet Office released a statement of government policy on standards in public life, particularly the role of the Ministerial Code and the Independent Adviser on Ministers’ Interests. The statement indicates that the independent adviser will in future be consulted about revisions to the code, including how it can be made simpler and clearer. The statement also indicates that the Ministerial Code will be revised to make clear that minor breaches of the code should not automatically lead to resignation or dismissal. In addition, the code will be revised to set out an “enhanced process to allow for the Independent Adviser to independently initiate an investigation, having consulted the Prime Minister and obtained his consent”. The statement is available here.
On 30 May 2022, Lord Evans, the Chair of the Committee on Standards in Public Life, wrote to Lord True, Cabinet Office Minister, in light of the government’s policy statement on changes to the Ministerial Code and the role of the Independent Adviser on Ministers’ Interests. While Lord Evans welcomed the government’s intention to allow the adviser to initiate his or her own investigation with the Prime Minister’s consent and to allow a graduated range of sanctions which will not require ministers automatically to resign following a breach of the code, Lord Evans still regretted that
“current arrangements retain the risk that—irrespective of sanction—the Prime Minister can directly overrule the Adviser on the finding of a breach, circumstances that would critically undermine the credibility of the Adviser’s office”.
The letter is available here.
On 31 May 2022, the government announced that the Civil Service Fast Stream, which aims to place university graduates within the Civil Service as potential future leaders on a fast-tracked basis, would be paused for at least one year to help freeze Civil Service recruitment. The status of this policy is unclear in light of the Prime Minister’s resignation and the consequent Conservative Party leadership contest. The announcement is available here.
On 31 May 2022, Lord Geidt, the Prime Minister’s Independent Adviser on Ministers’ Interests, released his annual report for 2021–22. Lord Geidt noted that, for this reporting year, his work had been unusual:
“For much of the year, the conduct of the Prime Minister himself has potentially been subject to consideration against the requirements of the Code. Accordingly, and whether unfairly or not, an impression has developed that the Prime Minister may be unwilling to have his own conduct judged against the Code’s obligations.”
In particular, Lord Geidt questioned whether the Prime Minister ought to have referred himself to the independent adviser after receiving a fixed penalty notice from the police:
“In the case of the Fixed Penalty Notice recently issued to and paid by the Prime Minister, a legitimate question has arisen as to whether those facts alone might have constituted a breach of the overarching duty within the Ministerial Code of complying with the law. It may be that the Prime Minister considers that no such breach of his Ministerial Code has occurred. In that case, I believe a Prime Minister should respond accordingly, setting out his case in public.”
The report is available here.
On 16 June 2022, Lord Geidt resigned as the Prime Minister’s Independent Adviser on Ministers’ Interests, citing concern that the Prime Minister had asked him for advice on violating World Trade Organisation (WTO) rules by imposing steel tariffs. The resignation letter and the Prime Minister’s response are available here.
On 6 June 2022, Conservative Members of Parliament voted that they had confidence in the Prime Minister to remain as leader of the Conservative Party. The Prime Minister won the confidence vote by 211 to 148 and the story is available here.
On 7 July 2022, the Prime Minister, Boris Johnson MP, resigned. His statement outside No.10 Downing Street is available here.
On 18 May 2022, the Home Secretary announced that the UK would ratify the Istanbul Convention, the Council of Europe Convention on Combating Violence Against Women and Domestic Violence. The statement is available here.
On 23 May 2022, the Lord Chancellor laid regulations prohibiting cross-examination in person in family and civil proceedings where there is evidence of domestic abuse between the parties. This was accomplished by virtue of the Domestic Abuse Act 2021, which inserted new Pt 4B into the Matrimonial and Family Proceedings Act 1984 and new Pt 7A into the Courts Act 2003. The regulations are available here.
On 22 June 2022, the Lord Chancellor introduced the Bill of Rights Bill into the House of Commons. The Bill repeals the Human Rights Act 1998 and creates a new Bill of Rights as a replacement. In particular, the Bill: repeals the duty on domestic courts to take account of Strasbourg jurisprudence in s.2; repeals the duty in s.3 to interpret all legislation so far as it is possible to do so to be compatible with human rights; prohibits domestic courts from imposing any additional positive obligations on public bodies and sets conditions on the implementation of existing positive obligations; excludes the extraterritorial application of the new Bill; requires domestic courts to disregard r.39 interim measures from the European Court of Human Rights; and repeals the duty on ministers to declare that in their view the contents of Bills are compatible with human rights. The Bill is available here and the government’s response to the original consultation is available here.
On 22 July 2022, the Ministry of Justice released its response to a consultation on “Strategic Lawsuits Against Public Participation (SLAPPs)”. SLAPPs are a form of legal action whereby wealthy individuals or corporations use the courts to discourage legitimate criticism and debate about their activities. The Ministry of Justice indicates that it will seek to implement a new statutory early dismissal process to stop SLAPPs through allowing judges to strike out claims which lack merit. This will include a three-part test comprising consideration of whether the activity is against the public interest; examination of whether the case is an abuse of process; and whether the case has a realistic prospect of success. The response is available here.
Immigration, extradition, deportation and asylum
On 12 May 2022, the Independent Chief Inspector of Borders and Immigration published a report on the use of hotels as contingency asylum accommodation and concluded that broadly the conditions in hotels were compatible with required standards. However, the report also found that the short notice and lack of consultation provided by the Home Office to local authorities prior to new hotels being established in their areas have damaged relations considerably. The report added that the Home Office must be realistic in setting targets to end the use of hotels as asylum accommodation and work with providers and stakeholders to agree what is achievable. The report is available here.
On 25 May 2022, the Home Office released new guidance for caseworkers on processing applications for fee waivers in citizenship applications for children. These applications previously had a fee in excess of £1,000, which was upheld as lawful by the UK Supreme Court in R. (on the application of Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department  UKSC 3;  2 W.L.R. 343. The guidance is available here.
On 8 June 2022, four individual asylum seekers together with the Public and Commercial Services Union, Detention Action, and Care4Calais issued a judicial review application challenging the Secretary of State’s decisions to remove the claimants to Rwanda pursuant to her policy of removing asylum seekers to Rwanda, as well as challenging the lawfulness of the policy itself. On 10 June the Administrative Court also granted permission for four further asylum seekers to be added to the claim, but refused the application for an interim injunction preventing removal of the individual claimants on a flight scheduled to depart on 14 June. On 13 June the Court of Appeal upheld the refusal of interim relief, this was appealed to the UK Supreme Court which refused permission on 14 June. In R. (on the application of NSK (Iraq)) v Secretary of State for the Home Department a panel of three Justices, comprising the President of the Supreme Court, Lord Reed, Deputy President of the Supreme Court, Lord Hodge, and Lord Kitchin, refused permission to appeal. Explaining the court’s decision Lord Reed noted that the first instance judge, Swift J, had to determine whether the balance of convenience favoured allowing the claimants to be removed to Rwanda in pursuance of the policy or favoured the claimants being allowed to remain. Swift J’s decision was that the importance of the Secretary of State being able to implement the policy whilst its lawfulness was subject to legal challenge outweighed the significance of the problems that might be faced by the claimants if removed to Rwanda. He nevertheless concluded that whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to serious triable issues to be considered by the court when assessing the merits of the full application. Neither the Court of Appeal nor the Supreme Court found Swift J’s determination as to the balance of convenience and interim measures to involve an error of law or to be unreasonable. The Supreme Court was also given assurances by the UK Government Legal Department on behalf of the Secretary of State that were the appellant to succeed at a hearing in July he would then be returned to the UK. The Supreme Court decision can be found here.
On 14 June 2022, the European Court of Human Rights (ECtHR) granted an urgent interim measure in the case of NSK v United Kingdom (28774/22), indicating to the UK Government that the applicant should not be removed to Rwanda until three weeks after the delivery of the final domestic decision in ongoing judicial review proceedings. Under r.39 of the Rules of Court, the ECtHR may indicate interim measures to any state party to the ECHR, such measures are decided in connection with proceedings before the ECtHR without prejudging any subsequent decisions on admissibility or merits. Requests are only granted on an exceptional basis when applicants would otherwise face a real risk of irreversible harm. The ECtHR noted that regard had been had to concerns identified in material before it, in particular by the UN High Commissioner for Refugees, that asylum seekers transferred from the UK to Rwanda would not have access to fair and efficient procedures for determination of refugee status, alongside Swift J’s decision in the High Court that there were serious triable issues. The ECtHR determined, in light of the risk of treatment contrary to the applicants’ Convention rights, that Rwanda is outside the Convention’s legal space, and in the absence of any legally enforceable mechanisms for the applicants’ return to the UK in the event of a successful merits challenge, that interim measures should be granted. On the 14 June 2022, the ECtHR received a further five individual requests for interim measures, two were granted (in RM v United Kingdom (29080/22) and HN v United Kingdom (29084/22)), two were refused as the applicants had not made use of suspensive remedies available before national courts (Abdollahi v United Kingdom (29081/22), and Shokri v United Kingdom (29082/22)), and one was withdrawn as the Home Office had since withdrawn the applicant’s removal directions. More information can be found here.
On 16 June 2022, the High Court gave judgment in R (on the application of BVN) v Secretary of State for the Home Department  EWHC 1159 (Admin);  H.R.L.R. 12 which concerned the treatment of a migrant identified as a potential victim of human trafficking. The claimant challenged the lawfulness of the defendant’s statutory guidance issued under s.49 of the Modern Slavery Act 2015 on the basis that it permits a potential victim of trafficking to withdraw from the National Referral Mechanism (NRM) without imposing a requirement of informed consent. Giving judgment, Bourne J held that art.4 of the European Convention Against Trafficking cannot be interpreted as mandating any specific steps to be taken when an individual indicates a wish to leave the NRM, nor did the judge consider any other obligation to be imposed by the common law duty of rationality. The court found in the claimant’s favour on the second ground of challenge, namely that where the High Court grants unconditional bail to a person in immigration detention, it is unlawful for the Secretary of State to then supplement this order by imposing a bail condition, in this case requiring them to report periodically to a specified location, that encroaches on the liberty granted by court order. The judgment can be found here.
On 20 July, Lewis LJ gave the judgment of the High Court in AAA v Secretary of State for the Home Department  EWHC 1922 (Admin). This application concerned claims involving 15 individuals who had variously applied for permission for judicial review to challenge the UK’s Rwanda policy and decisions made under it in their individual circumstances. The court determined that the hearing initially scheduled for 19 July 2022 should be adjourned to enable the claimants to consider the Secretary of State’s new decision letters in their cases, and to amend their grounds of challenge if necessary and to identify alleged deficiencies. The hearing is adjourned until 5 September 2002 and scheduled for five days. The decision can be found here.
On 30 June 2022, the Independent Chief Inspector of Borders and Immigration released his re-inspection report on the use of Napier Barracks as contingency asylum accommodation. The re-inspection found that the management and oversight of Napier Barracks had improved, with strong working relationships in place between the Home Office, the provider, and its subcontractors. According to the inspector, the more positive atmosphere reflected the work undertaken to improve the facilities and activities and the introduction of a 90-day maximum duration of stay which gives residents more certainty over the time they will spend at Napier. There was also evidence of increased engagement with non-governmental organisations and community groups. However, the inspector expressed disappointment that work had not been undertaken to improve the poor condition of the shared dormitories, with those accommodated there reporting a lack of privacy, unacceptable noise levels and disruption to sleep. The report also expressed concern about the lack of a defined timescale for the completion of any improvements despite Home Office plans to increase the number of residents accommodated on the site. The report is available here.
On 7 July 2022, the Independent Chief Inspector of Borders and Immigration released a report into the Global Positioning System (GPS) monitoring of foreign national offenders, with a focus on the processing of information and data through the Electronic Monitoring Hub from September 2021 to March 2022. The inspector concluded that the Electronic Monitoring Hub had a positive workplace culture based around a strong team, but efforts were often blunted by cumbersome and overly long recruitment processes and an underestimation of the scale of legal challenges. Staffing shortfalls resulted in delays to the three-monthly reviews of those who were on a tag and a lack of use of formal sanctions for breaches, which threatened to undermine the effectiveness of the whole programme. The inspector also concluded that work is needed to develop robust data standards. Currently, there are inconsistencies in data across the Hub’s areas of activity and no data quality framework is in place to ensure that information (including sensitive details of offender movements) is being properly managed. The report is available here.
On 14 July 2022, the President of the First-tier Tribunal (Immigration and Asylum Chamber) issued guidance on witnesses giving evidence from abroad via digital means in the First-tier Tribunal. The guidance is available here.
On 19 July 2022, the Independent Chief Inspector of Borders and Immigration released a statement expressing his frustration that the Home Secretary had yet to publish his report concerning small boat crossings despite having sent the Secretary of State the report in February 2022. The statement is available here.
On 21 July 2022, the Home Office released the Independent Chief Inspector of Borders and Immigration’s report into small boat crossings, which focused specifically on the use of processing centres at Tug Haven and Western Jet Foil. The report determined that in 2021, 28,526 people arrived on the south coast in small boats, a significant increase from 236 in 2018. The inspector concluded that the Home Office’s response was inefficient and ineffective, with significant gaps in security procedure which left vulnerable migrants at risk of harm. An inspection of the Tug Haven processing facilities, which have since closed, along with those at Western Jet Foil, both in Dover, found the Home Office’s response to the challenge of increasing numbers of migrants was poor, particularly in terms of systems, processes, resources, data collection and accurate record keeping. The report is available here.
On 12 May 2022, Baroness Hallett, the Chair of the UK Covid-19 Inquiry, released a report following a consultation on the inquiry’s terms of reference. Baroness Hallett recommended to the Prime Minister that the inquiry’s terms of reference be amended to include express reference to the impact of the pandemic on children and young people, workforce testing in care homes, the delivery of vaccines, the availability and use of expert evidence, how decisions were made by government and with what data and the impact of the pandemic on mental health. The report is available here.
On 28 June 2022, the Prime Minister agreed to Baroness Hallett’s recommendations and amended the terms of reference. The full terms of reference are available here.
On 21 July 2022, the UK Covid-19 Inquiry launched its first investigation into how well prepared the UK was for a pandemic. The announcement is available here.
On 14 July 2022, the Ministry of Justice released the judicial diversity statistics for 2022. The statistics show that although the proportion of women has increased slightly over recent years, women remain under-represented in the court judiciary, particularly in senior roles. As of 1 April 2022, about a third (35 per cent) of court judges and half of tribunal judges were women. The proportion remains lower in senior court appointments (30 per cent for High Court and above). The statistics also show that as of 1 April 2022, 5 per cent of judges were Asian, 1 per cent were black, 2 per cent were mixed race and 1 per cent were from other ethnic minority backgrounds. The proportion of ethnic minorities remains lower for senior court appointments (5 per cent for High Court and above) compared to others. Moreover, as of 1 April 2022, ethnic minority men and women each accounted for 5 per cent of judges. White women accounted for 37 per cent and white men accounted for the remaining 53 per cent. The full statistics are available here.
On 28 July 2022, the first televised sentencing remarks in the Crown Court in England and Wales were broadcast from the Old Bailey. Her Honour Judge Sarah Munro QC sentenced Ben Oliver for the manslaughter of his grandfather. The footage is available here.
On 29 July 2022, the Senior President of Tribunals appointed Mr Justice Dove to be President of the Immigration and Asylum Chamber of the Upper Tribunal with effect from 2 October 2022. The announcement is available here.
On 15 June 2022, the UK Supreme Court gave judgment in Re H-W (Children)  UKSC 17;  1 W.L.R. 3243, concerning the proportionality of care orders made in relation to three children and the appellate review of those orders. Giving judgment Dame Siobhan Keegan held that the first issue to be addressed in the appeal was whether the judge fell into error by proceeding too directly from his assessment of risk of significant harm to the making of a care order for the longer term and what was required to demonstrate that the decision made was proportionate and necessary. The second issue was, then, should an appellate court undertake for itself a fresh assessment of proportionality and necessity. On the first issue Dame Siobhan drew on the judgment of Sir James Munby in Re B-S (Children) (Adoption Order: Leave to Oppose)  EWCA Civ 1146;  1 W.L.R. 563, that the judicial task is to evaluate all options, undertaking a global, holistic and multi-faceted evaluation of the child’s welfare taking into account all the pros and cons of each option. Noting that Sir James also referenced the judgment of McFarlane LJ in Re G (A Child) (Care Proceedings: Welfare Evaluation)  EWCA Civ 965;  1 F.L.R. 670, where he held that a balancing exercise is required to evaluate each option to the degree necessary to weigh its internal positives and negatives as well as conducting a side by side comparison against competing options. On the second issue, Dame Siobhan held that where there is an appeal from a care order, the function of an appellate court is to review the judge’s findings and to intervene only if they are wrong or if the process of the judge’s reasoning was inadequate, and that an appellate court is not required to conduct a fresh necessity and proportionality analysis. In the current case, the court held that the judge had adopted a flawed process as he did not adequately assess the prospects of various options to mitigate the risk of sexual harm. The judgment can be found here.
On 18 July 2022, the High Court gave judgment in R. (on the application of Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy  EWHC 1841 (Admin). The case concerned ss.13 and 14 of the Climate Change Act 2008. Section 13 imposes a duty on the Secretary of State to “prepare such proposals and policies” as he considers will enable set carbon budgets to be met. It was common ground between the parties that this is a continuing obligation. Giving judgment, Holgate J held that s.13 does not require the Secretary of State to be satisfied that the quantitative effects of his proposals and policies will enable the whole of the emissions reductions required by the carbon budget to be met. However, the judge also held that the Secretary of State had approved a relevant net zero strategy without being provided with sufficient information to be satisfied that the carbon budgets could be met. In particular, that the risk to the delivery of individual policies and proposals was an obviously material consideration, on which, as a matter of law, information had to be provided to the minister to enable him to discharge his functions under s.13. Officials projected that the UK would achieve only 95 per cent of the emissions reductions required for the relevant carbon budget, and as such without information on quantitative contributions by individual policies to the 95 per cent assessment, the minister could not rationally decide for himself how much weight to give to those matters in order to discharge his obligation under s.13(1). As these individual quantitative assessments were missing from the briefing to the minister, he was not able to appreciate the extent to which those individual policies, which might also be subject to significant uncertainty in terms of content, timing or effect, were assumed to contribute to the 95 per cent cumulative total (at –).
In relation to handling the 5 per cent shortfall, the minister was not told which unquantified policies were relied upon as part of the judgment made, which were assumed capable of further development, whether the advice or comparison did not involve relying on or identifying any specific policies, and whether any further calculations had been performed. Having regard to the statutory scheme Holgate J considered that these matters were “obviously material” considerations to the minister’s lawful discharge of his obligation under s.13.
Section 14 provides that “as soon as reasonably practicable” after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting current and future “budgetary periods” up to and including that budget. The court held that s.14 requires Parliament to be provided with an explanation as to how the Secretary of State’s policies are intended to meet the statutory targets and that quantification of the reductions expected from implementation of s.13 policies is legally essential to that explanation as to how measures are expected to meet carbon budgets. In short, that insufficient information was provided to enable Parliament to hold the Secretary of State to account, and for the public to understand how the government intends to meet statutory targets.
The court also rejected an “ambitious” argument that s.3 of the Human Rights Act 1998 requires the court to adopt an interpretation more rather than less conducive to the protection of ECHR rights, and that would minimise further climate change impacts. The judgment can be found here.
On 3 May 2022, the House of Commons Committee on Standards released a new report on the regulation of All Party Parliamentary Groups (APPGs). Recommendations include: reducing the number of APPGs; transparency as to funding sources; stricter rules on secretariats; and a more rigorous statement of the responsibility of APPG chairs. The report is available here.
On 10 May 2022, the Prince of Wales delivered the Queen’s Speech, announcing the government’s legislative proposals for the next parliamentary session. Major announcements included: a new British Bill of Rights to repeal the Human Rights Act 1998; a Brexit Freedoms Bill that will expand ministerial powers to repeal or amend retained EU law without prior parliamentary approval; a Procurement Bill to allow public bodies to carry out procurement exercises at speed during times of emergency; a Data Reform Bill to amend the UK’s data protection legislation; a Public Order Bill to further regulate and restrict disruptive protest tactics; a Northern Ireland Troubles (Legacy and Reconciliation) Bill to provide immunity from prosecution for individuals who disclose information regarding the Troubles; and a Victims Bill to implement the Victims’ Code in law. The government’s briefing notes for the Queen’s Speech are available here.
On 16 May 2022, it was reported that Michael Gove MP, Secretary of State for Levelling Up, had declined a request for the House of Lords to sit in the QEII Centre near Parliament Square while Parliament was undergoing renovation. Mr Gove suggested they looked at alternative buildings in the North of England, the Midlands, the South West, Scotland or Wales. The story is available here.
On 19 May 2022, the Chair of the House of Lords International Agreements Committee and the Department for International Trade exchanged letters agreeing to the establishment of a new process for scrutinising free trade agreements. This will include: a pre-negotiation call for input or public consultation and the publication of negotiating objectives; regular updates during negotiations; independently scrutinised impact assessments post-signature covering economic and environmental impacts; and parliamentary debate pre-ratification. The letters are available here.
On 23 May 2022, the House of Commons considered the Public Order Bill at second reading. The Bill includes provisions to criminalise the protest tactic of “locking on”, increase police powers of stop and search against potential protestors, and introduce serious disruption prevention orders, which prevent an individual from engaging in protests which could cause serious disruption to others. The Hansard is available here.
On 24 May 2022, the House of Commons Committee on Standards published a report on a new Code of Conduct and Guide to the Rules for Members of Parliament entitled Promoting appropriate values, attitudes and behaviour in Parliament. Recommendations include customising the descriptors associated with the seven Nolan principles so that they are tailored to MPs; adjusting the principle of “Leadership” to include reference to actively promoting anti-discriminatory attitudes; reviewing the possibility of the Code of Conduct prohibiting Members from subjecting others to unreasonable or excessive personal attacks; that Members should be required to register ministerial office in the register of interests; making the register of interests publicly searchable; banning the provision of paid parliamentary advice; and no additional restrictions on the outside time and income that members can earn from outside interests. The report is available here.
On 24 May 2022, the House of Commons considered the Northern Ireland Troubles (Legacy and Reconciliation) Bill at second reading. The Bill provides for the establishment of a new independent commission for information recovery, tasked with carrying out robust, effective and thorough investigations into deaths and serious injuries that occurred during the Troubles. The Bill further provides immunity from prosecution to those who committed unlawful acts during the Troubles if they share honest details of their offences with the new commission. The Hansard is available here.
Parliament rose for its summer recess on 21 July and will return on 5 September.
Police and prosecution agencies
On 16 May 2022, the Home Office announced that restrictions on the use of s.60 of the Criminal Justice and Public Order Act 2014, which empowers police officers to stop and search individuals without reasonable suspicion after or in anticipation of serious violence, would be removed. This follows a pilot scheme by the Home Office which has been operating since 2014 called “Best Use of Stop and Search” (BUSS), which had restricted the use of s.60 to a limited number of police areas. The announcement is available here.
On 17 May 2022, the Home Office launched a consultation on revising Code A of PACE to make it reflect new powers available to police in the Police, Crime, Sentencing and Courts Act 2022, which created serious violence reduction orders (SVRO). These civil orders give police the power to stop and search individuals convicted of an offence where a knife or offensive weapon was present. The order will be piloted in West Midlands, Merseyside, Thames Valley and Sussex Police forces before a decision is made on roll out across England and Wales. The consultation closes on 27 June 2022. The consultation is available here.
On 18 May 2022, the Home Office launched a consultation on a code of practice for the extraction of information from electronic devices possessed by victims of crime. The consultation is available here and closed on 12 July 2022.
On 27 May 2022, the College of Policing released guidance on the extraction of information from digital devices. The guidance is available here.
On 19 May 2022, the Home Secretary appointed Sir Thomas Winsor to review the circumstances surrounding the stepping aside of the Commissioner of the Metropolitan Police, Dame Cressida Dick. Called the “Commissioner Accountability Review”, Sir Thomas will consider: the facts, timeline of events and circumstances which resulted in Dame Cressida leaving; whether due process was followed under the Police Reform and Social Responsibility Act 2011 and other relevant rules of law; and provide the Home Secretary with advice, options and recommendations on how accountability and due process in these respects may be strengthened. The terms of reference are available here.
Prisoners and mental health detainees
On 30 June 2022, the Lord Chancellor announced three reforms to the Parole Board of England and Wales. The first was that any person would have the right to apply to the Parole Board to hold a public hearing, with the Board itself having the final decision based on “the interests of justice”. The second was that for some prisoners convicted of violent or serious offences, including murderers, rapists, terrorists and those who have caused the death of a child, the Lord Chancellor will have the power to take specialist advice and make recommendations to the Parole Board prior to release. The third was that in time stronger powers would be taken, including a ministerial veto on the release of some dangerous offenders and a power to require the Board to reconsider a case. The announcement is available here.
On 24 June 2022, the High Court gave judgment in R. (on the application of National Council for Civil Liberties (Liberty) v Secretary of State for the Home Department  EWHC 1630 (Admin). This was the third stage of the claimant’s challenge to provisions of the Investigatory Powers Act (IPA) 2016. The first stage judgment held that Pt 4 of the IPA 2016 was incompatible with EU law in two respects, that access to and use of retained data was not limited to the purpose of preventing and detecting serious crime, and that access to retained data was not subject to prior independent review. Relevant provisions of the IPA 2016 were amended by the defendants, but the claimant did not accept that such fully satisfied the requirements of EU law. In the second stage proceedings the court dismissed an application for a declaration of incompatibility under s.4 of the Human Rights Act 1998. In the current third stage proceedings, one ground of challenge was accepted, namely that Pt 3 of the IPA 2016 does not comply with the requirement for prior independent authorisation of access to communications data (stemming from Watson v Secretary of State for the Home Department; Tele2 Sverige AB v Post-och telestyrelsen (C-203/15 & C-698/15) EU:C:2016:970;  Q.B. 771 CJEU, and the Court of Appeal in R. (on the application of Watson) v Secretary of State for the Home Department  EWCA Civ 70;  Q.B. 912). The court held that the law stated by the CJEU, Court of Appeal, and Divisional Court is clear, and that prior authorisation by a court or independent administrative body is required for access under Pt 3 to data retained under Pt 4. As such, the ability of the security and intelligence agencies to obtain access to retained data for the “applicable crime purpose” by relying on s.61 of the IPA 2016 (which allows internal authorisation from a designated senior officer) rather than s.60A (which requires an application to the Investigatory Powers Commissioner), was incompatible with retained EU law (at ). The court also noted that the EU (Withdrawal) Act 2018 sets out a scheme by which the courts continue to be bound by retained EU law including case law up to the end of the implementation period on 31 December 2020, that a domestic court would still be entitled to take into account CJEU judgments delivered after this date but that such would no longer be binding. The judgment can be found here.
On 19 May 2022, the Department for Work and Pensions published a policy paper on Fighting Fraud in the Welfare System. The paper outlines new legislative proposals to: give DWP investigating officers greater access to third party data; grant investigating officers new powers of arrest, search and seizure; and introduce new civil penalties. The paper is available here.
On 18 July 2022, the Upper Tribunal (Administrative Appeals Chamber) gave its decision in R. (on the application of Bui) v Secretary of State for Work and Pensions; R. (on the application of Onakoya) v Secretary of State for Work and Pensions  UKUT 189 (AAC). The cases concerned whether the Secretary of State is entitled to withhold payment of universal credit (UC) from an individual who does not have a National Insurance number (NINo) until such time as a NINo is allocated. Notably both claimants were initially granted permission to apply for judicial review by the High Court with their claims being transferred to the Upper Tribunal under s.31A(3) of the Senior Courts Act 1981, based, among other matters, on the Upper Tribunal’s specialist knowledge in the area of law. Farbey J then directed that the Upper Tribunal claims be heard by a three-judge panel on the basis that they raised a question of law of special difficulty or an important point of principle or practice, under para.3(a) of the Senior President’s Practice Statement on the composition of tribunals in matters before the Upper Tribunal (Administrative Appeals Chamber). The cases turned largely on the proper interpretation of s.1(1B) of the Social Security Administration Act 1992, which imposes a process of verification before awarding or paying public funds to a person who may not be entitled to them. The tribunal held that whilst the effect of the process is that payment of UC is not possible until a NINo has been allocated, the subsection does not in terms require the allocation of a NINo as a precondition of entitlement to benefit. Whist acknowledging that the effect of the provision is to make Advance Payment Regulations covering UC otiose in the context of a claimant subject to s.1(1B) and recognising that this may mean claimants without NINos are required to rely on other means to secure welfare support, the tribunal stressed that the practical effects of the provision are a matter of policy for the government.
The tribunal also dismissed a claim under the ECHR Protocol 1 art.1 right to property, on the basis that any delay in making UC to claimants with no NINo pending the outcome of the verification process is justified by the public interest in preventing the payment of benefit in respect of fraudulent claims.
A further claim based on the Equality Act 2010 was dismissed. The tribunal accepted that it is more likely that an adult British national making a benefit claim will already have a NINo than a foreign national making such a claim, however, it considered s.1(1B) a proportionate means of achieving the legitimate aim of administration of welfare benefits, whilst preventing misuse and abuse of public funds through fraudulent claims. The decision can be found here.
Lee Marsons is a Research Fellow at the Public Law Project
Dr Sarah Nason is a Senior Lecturer at the University of Bangor