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 August to October 2022.
Administration of justice
On 6 September 2022, the High Court gave judgment in R (Marten) v Crown Court at Lincoln  EWHC 2283 (Admin). The case concerned the test to be applied in applications to extend custody time limits (CTLs). The applicant was awaiting trial for various offences alleged to have taken place in September 2021. His case was originally listed for trial on 14 March 2022, with a CTL in place until 21 March 2022. The CPS made a pre-emptive application to extend the CTL, with HHJ Hirst confirming that the trial could not be heard on its initial date due to “court availability”. The applicant sought judicial review on grounds that the judge had failed to take into account relevant matters and had not given full reasons for his decision. In the alternative, the applicant argued that the judge had made an excessive extension to the CTL. Section 22 of the Prosecution of Offences Act 1985 provides the Secretary of State with powers to make regulations to set time limits in relation to preliminary stages of criminal proceedings and the period which an accused may be in custody in relation to that offence. Regulation 5 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299) then states that the appropriate CTL is 182 days. Under section 22(3) of the 1985 Act there is a power to extend a CTL if the court is satisfied that the extension is needed due to “[s]ome other good and sufficient reason.” Previous cases have found that such reasons could include a shortage of courtrooms resulting from the consequences of the Covid-19 pandemic. However, whilst this may be a “good” reason, it would not necessarily be a sufficient reason, and the prosecution has the evidentiary burden of proving that it is a sufficient reason. Submissions made by the defendant were found to implicitly seek to pray in aid of the continuing impact of the pandemic, said to be a major contributory factor in the backlog of court cases and a cause of significant delay. Macur LJ rejected this argument, noting that the restrictions made under the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 202/953 ended in June 2021, and the CPS can no longer simply use the Covid-19 pandemic as an overriding reason to extend CTLs. There must be further scrutiny of the issues leading to the extension application. The judgment can be found here.
On 28 September 2022, the President of the Family Division, Sir Andrew McFarlane, delivered a speech to the Family Mediation Association Conference 2022. Sir Andrew’s address is important for those interested in out-of-court mechanisms of dispute resolution and he refers to several developing modes of mediation, including the psychodynamic and ecosystemic models. Sir Andrew also refers to the success of the Mediation Voucher Scheme, which in his view has produced positive outcomes for a good proportion of those who have used the vouchers. Sir Andrew notes that approximately 11,700 Mediation Vouchers have been issued to date. The speech is available here.
On 10 October 2022, the Lord Chief Justice of England and Wales delivered a closing address to the Legal Wales Conference 2022. In his speech, the Lord Chief Justice focused on “the benefit of UK law to the economy and the vital importance of our international reach and status as a judiciary, not only in Europe but across the Commonwealth and more widely around the globe.” On the benefits on the rule of law to the economy, the Lord Chief Justice argued that: “The rule of law underpins all economic and social activity in this country and, independently, the law of this jurisdiction and the common law bring substantial economic benefits. Both are, I think, largely taken for granted and their contributions undervalued.” On the benefits of international judicial engagement, the Lord Chief Justice suggested that: “We promote the rule of law, encourage international respect for our institutions and the rule of law here. We promote this jurisdiction as a venue for international dispute resolution and English law internationally; and through both we promote our domestic legal and ancillary services. This is part of soft power.” The speech is available here.
On 13 October 2022, the Master of the Rolls delivered a speech to the Legal Services Board: Reshaping Legal Services Conference 2022 on the three most pressing problems for the legal profession in 2022. Sir Geoffrey Vos argued that the legal profession’s approach to diversity, its ambivalent relationship to new technologies, and understanding how to be financially sustainable in light of modern technologies and business practices were the three principal issues. The speech is available here.
Confidentiality, freedom of information and data protection
On 8 September 2022, the Information Commissioner issued an enforcement notice against the Department for International Trade and a practice recommendation to the Department for Business, Energy and Industrial Strategy for persistent failures to respond to information requests within appropriate time limits. Between January and March 2022, the Department for International Trade responded to requests late in over 50 per cent of cases, the worst figure in the whole of government. Both documents are available here.
On 14 September 2022, the First-tier Tribunal (General Regulatory Chamber) gave its decision in Greenwood v The Information Commissioner & Anor  UKFTT 333 (GRC) concerning an appeal under section 57 of the Freedom of Information Act 2000. The subject of the appeal was a request for information relating to the companies and individuals who made bids for contracts to supply Personal Protective Equipment in March 2020. The Department of Health and Social Care (DHSC) withheld the information under section 43(2), commercial interests, with the Information Commissioner finding that the section was correctly applied and the public interest in maintaining the exemption outweighed the public interest in disclosure. The appellant wished to scrutinise the companies in a High Priority Lane (HPL) purchasing process in order to expose any perceived or actual cronyism, political interference, or wrongdoing. The Tribunal found section 43(2) to be engaged for companies on the relevant withheld information list because disclosure would, or would be likely to, adversely affect their commercial interests. The Tribunal listed the factors in favour of disclosure, which included: public interest in understanding the Government’s response to the pandemic and handling of PPE purchasing; transparency around the HPL and its impacts; that the case of R (Good Law Project Ltd) v Secretary of State for Health and Social Care  EWHC 46 TCC) found the HPL to be unlawful (though it did not identify any wrongdoing); allowing scrutiny by investigative journalists; that FOI can potentially be used as an anti-corruption tool; and that defamation actions could be available to those subject to inaccurate, harmful speculation as a result of the disclosure. In favour of withholding the information, the Tribunal noted: the reasonable expectation of the companies on the list, and DHSC policy, that names of unsuccessful bidders would not be published; there were no relevant obligation to publish under the Public Contracts Regulations or other transparency law; DHSC had already published a list of those who received contracts that came through the HPL; unsuccessful bidders had received no public money; companies would likely be subject to negative reporting whether justified or not; some companies were unaware that they were in the HPL; and that arguably, sufficient information has now already been disclosed to understand the impact of HPL on the overall process. The Tribunal held that in the absence of any evidence of wrongdoing or malfeasance, the balance of public interest weighed in favour of withholding the information. The decision can be found here.
On 31 October 2022, the House of Commons Public Administration and Constitutional Affairs Committee published is Third Report of Session 2022-23, Governing England. The Committee concluded that there is an urgent need for significant reform to the way England is governed, identifying six main areas of concern: complexity of governance structures; opacity of governance structures; that governance arrangements for England (and the UK as a whole) are some of the most centralised amongst the world’s democracies; ineffectiveness of funding arrangements for local government and combined authorities; geographical inequality; and that people in England have a low sense of political efficacy (meaning they do not feel political and social change is possible, specifically that their participation in political processes is unlikely to elicit change). The report can be found here.
The Northern Ireland Assembly has not functioned fully since February 2022 when the Democratic Unionist Party withdrew its First Minister from office due to a disagreement over the Northern Ireland Protocol to the EU-UK Withdrawal Agreement. Before February 2022, the Secretary of State was required to propose a date for an Assembly election if Northern Ireland Ministers were not appointed within a 14-day period after the first meeting of the Assembly following an election. New provisions in the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022, intended to reduce instability in Northern Ireland’s political institutions, extended the 14 days to up to four six-week periods (which renewed automatically). The statutory 24-week period since the May 2022 elections ran out just after midnight on Friday 28 October 2022.
On 18 October 2022, in oral evidence to the Northern Ireland Affairs Committee, the Secretary of State ruled out making any legislative changes to avoid the requirement to call a further election. A transcript can be found here.
On 20 October 2022, in a Written Statement, Update on delivery of the Government’s Commitments in New Decade, New Approach, the Secretary of State reiterated that legally an election must take place within 12 weeks of the 28 October 2022 deadline. The Statement can be found here.
On 27 October 2022, the Northern Ireland Assembly met to elect a Speaker under section 39(1) of the Northern Ireland Act 1998. The Assembly was unable to agree upon a Speaker under the cross-community vote procedure and was therefore unable to conduct its first item of business. The Acting Speaker noted that any further sittings of the Assembly can be held only to elect a Speaker and Deputy Speakers. The Assembly sitting was subsequently adjourned, and under section 39(2) of the Northern Ireland Act 1998, the current Speaker remains in office until a successor is elected. The Assembly proceedings can be found here.
On 19 August 2022, the Scottish Government’s Cabinet Secretary for the Constitution, Europe and External Affairs, lodged a Legislative Consent Memorandum on the Northern Ireland Protocol Bill (introduced to the House of Commons on 13 June 2022). The Scottish Government set out its position: that the Scottish Parliament should not consent to the Bill and that it does not intend to lodge a Legislative Consent Motion in relation to the Bill. The Government’s reasons for not including a draft motion, and its reasoning that the Parliament should not give consent, relates to three matters: incompatibility with the UK’s international obligations; the impact tabling the Bill has already had on Scottish interests; and the potential future impact on such interests in the event of further escalation. The memorandum can be found here.
On 22 September 2022, the Scottish Parliament’s Constitution, Europe, External Affairs and Culture (CEEAC) Committee published its 5th Report of the Session, The Impact of Brexit on Devolution. The report covers regulatory divergence; the Sewel Convention; and delegated powers. The report can be found here.
On 6 October, the CEEAC Committee launched a public consultation on how devolution is working following the UK’s departure from the EU, covering public experiences of policy-making and legislative processes; how devolution should evolve post EU exit; scope for regulatory divergence in areas such as the environment and food standards; and whether there are sufficient safeguards around regulatory divergence, as well as clarity and transparency. The consultation closes on 30 November 2022, and can be found here.
On 6 October 2022, the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee published its 8th Report of the Session, Stage 1 Report on the Gender Recognition Reform (Scotland) Bill, approving the general principles of the Bill by a five to two majority. The report can be found here.
On 11 and 12 October, the UK Supreme Court heard the case, Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998, Case ID: 2022/98. The case concerned whether the Supreme Court has jurisdiction to hear the reference, or whether it should in any event use its discretion to decline to hear it; and whether “the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be ‘Should Scotland be an independent country?’ relates to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England; and/or (ii) the Parliament of the United Kingdom?” Further information on the case can be found here. The Lord Advocate’s Written Case: whether the question for a referendum on Scottish Independence contained in the proposed referendum Bill relates to reserved matters, can be found here. And the Written Case on behalf of HM Advocate General for Scotland UKSC 2022/0098, can be found here.
On 28 – 30 October 2022, a new Citizens’ Panel met to deliberate how the Scottish Parliament can best work with communities to ensure their needs are reflected. The Panel comprised 22 people broadly reflecting the demographic make-up of Scotland. This implements recommendations of the Scottish Parliament’s Citizen Participation and Public Petitions Committee inquiry into Public Participation. More information can be found here.
On 18 August 2022, the Welsh Government’s Counsel General and Minister for the Constitution issued a Written Statement: Legal challenge to the UK Internal Market Act 2020, noting that the Welsh Government’s permission to appeal the Court of Appeal’s decision in R (Counsel General for Wales) v The Secretary of State for Business, Energy and Industrial Strategy  EWCA Civ 118 had been refused by the Supreme Court on the basis that the claim for judicial review was premature. The statement nevertheless affirms the Welsh Government’s clear opposition to the UK Internal Market Act 2020. The statement can be found here.
On 29 September 2022, the Welsh Government’s Minister for the Economy laid a Legislative Consent Memorandum on the Northern Ireland Protocol Bill. The Welsh Government recommends the Senedd withhold consent to the Bill on the basis that it was not involved in making the Bill and does not agree with its rationale; that the powers as drafted are too broad and lack clarity of purpose; and that the Bill has potential to result in breaches of the UK’s obligations under international law. The memorandum can be found here.
On 7 October 2022, the Counsel General for Wales and Minister for the Constitution gave a speech to the Legal Wales Conference 2022 in Llandudno. He argued that the UK Government should change the tone of its relationship with the legal sector, avoiding phrases such as “activist lawyers” and “lefty human rights lawyers”; that three bills considered to threaten the rule of law should be withdrawn (the Northern Ireland Protocol Bill, the Bill of Rights Bill and the Retained EU Law (Revocation and Reform) Bill); that there should be greater investment in the justice system; and that the UK Government should fully engage with the recommendations of the Thomas Commission on Justice in Wales. More information on the Counsel General’s speech can be found here.
On 7 October 2022, the Welsh Government’s Counsel General for Wales and Minister for the Constitution launched a consultation on a Statute Law (Repeals) (Wales) Bill. The twofold purposes of the consultation are first, in relation to the individual proposals in the Bill, if the repeals are helpful, and whether there are any consequences of repeal that the Government needs to be aware of; and second, if there are any other provisions Welsh Government should consider including in this or a future Bill. The consultation closes on 6 January 2023 and can be found here.
On 10 October, the Senedd Cymru/Welsh Parliament published its report on Post-EU funding arrangements. The Committee considered the UK Government’s new funding schemes: the Community Renewal Fund (CRF), Levelling Up Fund (LUF) and the Shared Prosperity Fund (SPF). Its overarching finding was that the successful implementation of these new funds in Wales is endangered by lack of engagement between the Welsh and UK governments. The Committee considered that the current discourse around funding arrangements lacks maturity and clarity. The report can be found here.
On 24 October 2022, the Welsh Government’s Minister for Finance and Local Government published a Written Statement on the Welsh Tax Acts etc. (Power to Modify) Act 2022, which received Royal Assent on 8 September 2022. The Act permits Welsh Ministers to make amendments in response to changes made by the UK Government to predecessor UK taxes – stamp duty land tax and landfill tax – which will affect the Welsh block grant adjustment. It also permits amendments to the Welsh Tax Acts to respond to other external circumstances (e.g., to ensure the devolved Welsh taxes are not imposed in a way that it incompatible with any international obligations). The Act enables Welsh Ministers to make legislative changes to protect against tax avoidance activity, and to make changes where a court or tribunal decision identifies an issue that Welsh Ministers consider could benefit from legislative change or legal clarification. The Act enables Welsh Ministers to make regulations which may have retrospective effect, and Welsh Ministers have a statutory obligation to publish a statement on their policy with respect to the exercise of this power. The Act can be found here and the Welsh Ministers’ Statement of Policy with regard to retrospective effect can be found here.
On 1 September 2022, the Equality and Human Rights Commission published new guidance on preventing discrimination in the use of artificial intelligence by public bodies. The guidance is designed to assist public bodies to avoid breaching the Equality Act 2010, including the Public Sector Equality Duty (PSED), and gives practical examples of how artificial intelligence may produce discriminatory outcomes. In addition, from October 2022, the EHRC announced that it would be working with thirty local authorities across the country to understand how they are using artificial intelligence to deliver services. The guidance is available here.
On 27 September 2022, the Equality and Human Rights Commission published guidance designed to prevent racial discrimination in schools against students with Afro-Caribbean hairstyles. The guidance makes clear that uniform and appearance policies that ban certain hairstyles, without the possibility for exceptions to be made on racial grounds, are likely to be unlawful. This includes natural Afro-Caribbean hairstyles, braids, cornrows, plaits and head coverings. The guidance is available here.
On 31 October 2022, the Court of Appeal gave judgment in Smith v Secretary of State for Levelling Up, Housing & Communities & Anor  EWCA Civ 1391. The case concerned an August 2015 amendment to the definition of “Gypsies and Travellers”, set out in the policy document Planning Policy for Traveller Sites (PPTS 2015). Prior to that amendment, the definition expressly included those who had permanently ceased travelling due to disability or old age. It was accepted in the litigation that the exclusion of this group indirectly discriminated against elderly and disabled Gypsies and Travellers, with the High Court finding such discrimination to be justified. The Court of Appeal disagreed, allowing Smith’s appeal and quashing a relevant Planning Inspector’s decision that relied on the definition. The Court of Appeal determined that Pepperall J in the High Court had erroneously imposed a burden of proof on the Appellant, whereas in cases in which indirect discrimination is admitted, the burden should be on the Secretary of State to demonstrate the necessary justification. The Court of Appeal also found that Pepperall J had erred in concluding that there was no race discrimination claim, holding instead that the nature of the discrimination before the judge was the negative impact on Gypsies and Travellers who had permanently ceased to travel due to old age or illness, but who lived or wanted to live in a caravan, and that the act of living in caravans is an integral part of the Gypsy/Traveller way of life, such that the discrimination was inextricably linked to their ethnicity. The Court of Appeal then concluded that on the evidence before it there was no proper justification for the discrimination. The stated objective of the exclusion within the policy document was “to ensure that the planning system applies fairly to all”, expanded upon in the Public Sector Equality Duty (PSED) analysis which went on to say that “where Gypsies and Travellers have settled permanently, they should be treated no differently to the rest of the settled community for planning purposes” (quoted at para 90). The Court held that the material accompanying the planning policy definition does not support the assertion of fairness as a legitimate aim in this context. Whilst the Secretary of State may have been entitled to their own perception that the existing planning system was advantageous to Gypsies and Travellers, there was no sufficiently identifiable basis in fact to establish a legitimate policy objective (para 96).
Having concluded that the policy definition did not have a legitimate aim, the Court of Appeal did not need to address the question of proportionality balance. However, it went on to provide its reasoning on the issue, noting the importance of the harshness of what was being proposed to the question of proportionality. Specifically, and drawing on the PSED analysis, that the exclusion could mean those persons without family connections would no longer be able to live with other members of their Gypsy and Traveller community, that the people most likely to be affected are elderly, disabled, and possibly women, particularly those from single parent families and without family connections, and that there is risk of homelessness and that unauthorised camping may increase as those affected seek to ensure they fulfil the new definition by demonstrating they have not permanently ceased to travel. For these, and other reasons, the Court of Appeal held that the severity of the effect on the rights of aged and disabled Gypsies and Travellers outweighs the alleged objectives of the policy definition. The judgment can be found here.
On 6 September 2022, the High Court gave judgment in Harris v The Environment Agency  EWHC 2264 (Admin). The Claimants’ argued that the Environment Agency had breached its obligation under article 6(2) of the EU Habitats Directive (92/43/EEC) to avoid the deterioration of protected habitats and disturbance of protected species. They further argued that the article 6(2) obligation has direct effect in domestic law by reason of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 which require the Environment Agency to “have regard” to the Habitats Directive; and that, irrespective of the effect of regulation 9(3) of the Habitats Regulations, article 6(2) of the Habitats Directive is enforceable by domestic courts. The case provides useful discussion of when directives form part of Retained EU law under section 4(2)(b) of the European Union (Withdrawal) Act 2018 (EU(W)A). Under section 4, rights, powers, liabilities, obligations, restrictions, remedies and procedures, which, immediately before IP Completion Day, were (i) recognised and available in domestic law by virtue of the European Communities Act 1972, section 2(1) and were (ii) enforced, allowed and followed, continue to be recognised and available in domestic law after IP Completion Day. However, section 4(2)(b) also provides that such rights, powers etc, arising under an EU directive do not form part of Retained EU Law if they “are not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before IP Completion Day (whether or not as an essential part of the decision in the case).”
In the present judgment, Johnson J found that the Environment Agency’s limiting an investigation into the impact of water abstraction licences to only three sites of special scientific interest breached relevant obligations under article 6(2) of the Habitats Directive. He also found that regardless of regulation 9(3) of the Habitats Regulations, article 6(2) of the Habitats Directive formed part of Retained EU Law. This was because section 4(2)(b) of the EU(W)A does not require that the particular provision has been held to have direct effect, but only that it is “of a kind” that has been held to have direct effect. Due to similarities with article 6(3) of the Habitats Directive, which had been held as directly effective in previous cases, the Court found that article 6(2) was also “of a kind” such as to be directly effective. However, there had also been a domestic case prior to IP Completion Day recognising that article 6(2) of the Habitats Directive had legal effect in domestic proceedings due to its binding nature on all public authorities of EU Member States (Natural England v Warren  UKUT 300 (AAC)). Whilst in that previous case, Upper Tribunal Judge Markus had not expressly held that article 6(2) was directly effective, that was the effect of her decision, and, in the present case, Johnson J considered this effect sufficient to satisfy the test in section 4(2)(b) of the EU(W)A. The precise breadth of section 4(2)(b) likely remains an issue potentially subject to further determination. The judgment can be found here.
Government and Civil Service
Following the resignation of Boris Johnson as Prime Minister on 7 July 2022, the result of the Conservative Party leadership contest was announced on 5 September 2022. The result was that Liz Truss had defeated Rishi Sunak 57.4 per cent to 42.6 per cent. Accordingly, on 6 September 2022 Liz Truss became Leader of the Conservative Party and Prime Minister of the United Kingdom after kissing hands with Her Majesty the Queen. Brandon Lewis was appointed as Lord Chancellor and Secretary of State for Justice; Suella Braverman as Secretary of State for the Home Department; Kwasi Kwarteng as Chancellor of the Exchequer; James Cleverly as Secretary of State for the Foreign, Commonwealth and Development Office; Thérèse Coffey as Deputy Prime Minister and Secretary of State for Health and Social Care; Nadhim Zahawi as Chancellor of the Duchy of Lancaster; Penny Mordaunt as Leader of the House of Commons and Lord President of the Council; Jacob Rees-Mogg as Secretary of State for Business, Energy and Industrial Strategy; and Kemi Badenoch as Secretary of State for International Trade.
On 8 September 2022, Her Majesty Queen Elizabeth II passed away at her estate at Balmoral Castle in Scotland. Charles, previously the Prince of Wales, became King Charles III and Camilla, previously the Duchess of Cornwall, became Queen Consort. The statement released by Buckingham Palace on Her late Majesty’s death is available here. The Prime Minister, Liz Truss, delivered a speech outside No. 10 Downing Street the same day, which can be viewed here.
On 10 September 2022, an Accession Council was held to make a formal proclamation of Her late Majesty’s death and the accession of Charles III as King. The Council was presided over by the Lord President of the Council, Penny Mordaunt. For the first time, the Accession Council was recorded and broadcast live and can be viewed here. Further information about the Accession Council historically can be found here.
The principal proclamation announcing Her late Majesty’s death and the accession of Charles III as King was given on 10 September 2022 at St James’s Palace by the Garter King of Arms, David White, following the Accession Council. On later dates, the proclamation was also read across the UK by local government officials and in the other territories where Her late Majesty was Head of State. The text of the proclamation is available here.
On 12 September 2022, His Majesty the King attended Westminster Hall to receive messages of condolence from the Speaker of the House of Commons and the Lord Speaker. Members of Parliament and peers were also in attendance. His Majesty’s response to the messages can be viewed here. That same day, His Majesty the King attended the Scottish Parliament to receive a motion of condolence. The messages and His Majesty’s response can be viewed here.
On 13 September 2022, His Majesty the King visited Northern Ireland to receive messages of condolence from local political leaders. The messages and the King’s response can be viewed here.
On 16 September 2022, His Majesty the King attended the Senedd to receive a motion of condolence. His Majesty announced that William and Catherine, the Duke and Duchess of Cambridge, would become the Prince and Princess of Wales, a title historically granted to the heir to the throne and their consort. His Majesty delivered parts of his speech in the Welsh language, which can be viewed here.
On 19 September 2022, a State Funeral was held for Her late Majesty Queen Elizabeth II. The funeral was broadcast live and can be viewed here.
On 23 September 2022, the Chancellor of the Exchequer delivered a “mini-Budget”. Styled as the government’s “Growth Plan”, the mini-Budget included abolishing the 45 per cent rate of income tax, cutting the basic rate of income tax, freezing alcohol duty, reversing the previous Chancellor’s increase in National Insurance Contributions (NICs), cutting stamp duty, and not implementing the planned increase in corporation tax. The Chancellor of the Exchequer’s statement to the House of Commons is available here.
On 3 October 2022, the Chancellor of the Exchequer reversed his decision to abolish the 45 per cent rate of income tax, arguing that this policy has become “a distraction” to the government’s overall economic agenda. The Chancellor also announced that he would make a “fiscal statement” on 23 November setting out how the government would make its economic policy financially sustainable. Further details can be found here.
On 10 October 2022, the Chancellor of the Exchequer wrote to the Treasury Select Committee informing members that he was bringing forward his plans to publish economic forecasts from the Office for Budget Responsibility on the sustainability of government economic policy to 31 October. The letter is available here.
On 13 October 2022, the National Audit Office published a report into the delivery of employment support schemes in response to Covid-19. The report focuses on whether the schemes achieved their objectives to support incomes and the labour market during a time of national crisis, how departments managed the administration of the schemes through their various iterations, and how HM Revenue and Customs has estimated the levels of fraud and error involved. The report estimates that the various schemes cost close to £100 billion and that several billion pounds was likely paid to recipients due to fraud and error, money which is unlikely ever to be recovered. That said, the report also praises the introduction of such essential schemes at rapid pace and concludes that in general the schemes achieved their objectives. The report is available here.
On 14 October 2022, Kwasi Kwarteng was dismissed as Chancellor of the Exchequer. The same day, the Prime Minister announced that the government was reversing its decision not to increase corporation tax from 19 per cent to 25 per cent. In place of Kwasi Kwarteng, Jeremy Hunt was appointed as Chancellor of the Exchequer.
On 17 October 2022, the new Chancellor of the Exchequer, Jeremy Hunt, reversed much of the former Chancellor’s mini-Budget. The Chancellor of the Exchequer’s statement to the House of Commons is available here.
On 19 October 2022, Suella Braverman resigned as Secretary of State for the Home Department following her admission that she had shared confidential government documents through a personal email address. Her resignation letter is available here.
On 20 October 2022, Liz Truss resigned as Prime Minister of the United Kingdom and Leader of the Conservative Party. Sir Graham Brady, Chair of the Conservative Party’s 1922 Committee, announced that the Conservative Party would hold a brief and expedited leadership contest to replace Liz Truss. Any Member of Parliament wishing to become leader would have to secure the nomination of at least one hundred Conservative Members of Parliament.
On 21 October 2022, the National Audit Office published a report into leadership development in the UK Civil Service. In this initial factual report, the National Audit Office describes the Civil Service’s current training and development for its leaders, focusing on Senior Civil Servants (SCS) and the pipeline of future senior leaders. The report further outlines reforms currently being implemented by the Cabinet Office, including the Government Skills and Curriculum Unit (GSCU) which has developed a single curriculum for civil servants based on five strands: public administration, working in government, leading and managing, specialist skills and domain knowledge. The report is available here.
On 24 October 2022, it was announced that only Rishi Sunak had reached the requisite threshold to be considered as Leader of the Conservative Party.
On 25 October 2022, Rishi Sunak became Prime Minister of the United Kingdom, the first person of British Indian origin to hold the office. This was also the first time that Charles III had appointed a Prime Minister. The King approved the appointments of Suella Braverman as Secretary of State for the Home Department; Dominic Raab as Lord Chancellor, Deputy Prime Minister and Secretary of State for Justice; Thérèse Coffey as Secretary of State for the Environment, Food and Rural Affairs; Victoria Prentis as the Attorney-General of England and Wales; and David TC Davies as Secretary of State for Wales.
During the short time that Liz Truss was Prime Minister in September to October 2022, the Bill of Rights Bill had been paused given that Dominic Raab, the main protagonist of the Bill, was no longer Lord Chancellor and Secretary of State for Justice. However, after the appointment of Rishi Sunak as Prime Minister and the reappointment of Dominic Raab as Lord Chancellor in late October 2022, the Bill of Rights Bill is again being pursued by the government and is expected to receive its second reading in the House of Commons in late 2022 or early 2023. The Bill repeals the Human Rights Act 1998 and replaces it with a new Bill of Rights. Specific changes include: the repeal of the section 3 obligation on judges to interpret legislation “so far as it is possible to do so” to be compatible with human rights; the repeal of the section 2 obligation to take account of decisions from the European Court of Human Rights; a prohibition on judges recognising any new positive obligations on public authorities; a restriction on the extra-territorial application of the Bill of Rights; a requirement on British judges to ignore Rule 39 interim measures issued by the European Court of Human Rights; and preventing British judges from interpreting ECHR rights in a more expansive way to the European Court of Human Rights.
On 27 September 2022, the European Court of Human Rights gave judgment in Otite v the United Kingdom (Application no. 18339/19). The Applicant entered the UK as a spouse of a settled person and he and his wife subsequently had three children (all British Citizens). In November 2014 he was convicted of fraud offences and sentenced to a period of four years and eight months imprisonment. Under section 32(5) of the United Kingdom Borders Act 2007, the Secretary of State for the Home Department was required to make a deportation order as the period of imprisonment was more than twelve months. The Applicant invoked ECHR article 8; a claim subsequently rejected by the Secretary of State. Before the ECtHR the parties accepted that the Applicant’s deportation would constitute an interference with the right to private and family life under article 8(1), and it did not appear in doubt that the deportation order was in accordance with the law and pursued a legitimate aim. The judgment then centred on whether the deportation struck a fair balance between the Applicant’s ECHR rights and the community’s interests. In reaching its conclusion, the ECtHR considered that the Upper Tribunal had given detailed consideration to the facts of the Applicant’s case and had balanced the seriousness of his offence against the likely impact on his family and private life. The Upper Tribunal had also referred to key criteria identified by the ECtHR jurisprudence, e.g., in the leading case of Boultif v Switzerland (Application no. 54273/00). The ECtHR agreed with that the fraud offence committed by the Applicant was a serious crime, that the Applicant had spent a significant proportion of his time in the UK engaged in criminal offending and had not economically integrated into UK society. The Court also noted that whilst the best interests of children must be afforded “significant weight”, they will not necessarily be decisive. Consequently, the deportation was found not to violate article 8. The judgment can be found here.
On 11 October 2022, the European Court of Human Rights gave judgment in Coventry v United Kingdom (Application no. 6061/16). The Applicant in the present case was an unsuccessful defendant in a nuisance action which the claimants in that action had funded through a conditional fee arrangement (CFA) and after the event (ATE) insurance intended to underwrite their liability to pay the defendants’ costs. Under the Access to Justice Act 1999, the order for costs made against the Applicant in the current complaint included both the “success fees”, intended to compensate lawyers working under a CFA for unsuccessful cases for which they would not be paid, and the ATE insurance premium. The Applicant complained that the recovery of the success fees and ATE premium under a CFA constituted a disproportionate interference with his rights under ECHR article 6, and specifically his right of access to a court and the principle of equality of arms. The ECtHR determined that the Applicant could not be a victim under the ECHR insofar as he sought to invoke the right of access to a court, given that he had fully participated in every stage of the relevant nuisance proceedings, with the benefit of legal representation. In relation to the equality of arms complaint, the ECtHR joined the admissibility and merits issues. In short, the ECtHR held that “in respect of uninsured defendants, who bore an excessive and arbitrary burden in CFA litigation, the impugned scheme, when viewed as a whole, infringed the very essence of the principle of equality of arms as guaranteed by Article 6 § 1 of the Convention” (para 87). The ECtHR also found that, in principle, an uninsured defendant would consequently be deprived of their possessions under article 1 of protocol 1 and that in this instance the scheme placed an excessive burden on uninsured defendants that exceeded the State’s margin of appreciation in relation to matters of social and economic policy. The judgment is narrow in that it applies to the pre Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 CFA regime as far as concerns uninsured defendants, and the question of remedy was deferred to a further hearing. However, the judgment may provide some insight into the ECtHR’s approach to any potential future challenges concerning the post-LASPO regime, and it constitutes a rare finding of violation by the UK. The judgment can be found here.
On 14 October 2022, the Equality and Human Rights Commission announced that it had retained its “A status” as a National Human Rights Institution (NHRI). This followed a re-accreditation process with the Global Alliance of National Human Rights Institutions (GANHRI). GANHRI periodically reviews and accredits NHRIs through its Sub-Committee on Accreditation approximately every five years. Retaining “A status” means the EHRC remains compliant with the Paris Principles, which provide the benchmark for high-performing, independent NHRIs. The EHRC also remains able to report directly to the United Nations on human rights issues because of this reaccreditation. The announcement is available here.
Immigration, extradition, deportation and asylum
On 4 October 2022, the Independent Chief Inspector of Borders and Immigration commenced an inspection of how family reunion applications are processed and administered by the Home Office, following the transfer of casework from the Asylum Operations team to the Resettlement, Relocation and Reunion Services team. The Inspector anticipates reporting to the Home Secretary by November 2022 and the announcement is available here.
On 19 October 2022, the Independent Chief Inspector of Borders and Immigration published an inspection report on the use of hotels as accommodation for unaccompanied asylum-seeking children during March to May 2022. The Chief Inspector focused particularly on compliance with section 55 of the Borders, Citizenship and Immigration Act 2009, which requires the Secretary of State for the Home Department to exercise their immigration, asylum and nationality functions “having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.” While the report concludes that broadly children accommodated in hotels felt safe and happy, it also found that the practices and procedures of the Home Office did not represent a child-focused approach that fully acknowledged safety and wellbeing concerns of young people. In particular, consistent and effective oversight of contractor activity was limited, there was little concrete planning to end the use of hotels as accommodation, and no timelines were set to move individual children from hotels to more stable accommodation. The report is available here.
On 27 October 2022, the Independent Chief Inspector of Borders and Immigration launched a call for evidence for his inspection of Home Office operations which seek to effect the removal of foreign national offenders from the United Kingdom. The inspection focuses on: the effectiveness and quality of the services provided by the Immigration Prison Teams; the prioritisation of cases for removal and the effectiveness of the early removal and facilitated returns schemes; and the Home Office’s strategy for the collection, monitoring and reporting of data, and how this data is used to drive improvements. The call for evidence closes on 23 November 2022 and is available here.
On 31 August 2022, the UK Covid-19 Inquiry opened its second investigation – referred to as Module 2 – which will examine the political and administrative decision-making in the UK and devolved governments in relation to the Covid-19 pandemic. Module 2 will examine decisions taken by the Prime Minister and the Cabinet, as advised by the Civil Service, senior political, scientific and medical advisers, and relevant Cabinet sub-committees. Module 2A will examine key groups and individuals within the Scottish Government, including the First Minister and other Scottish Ministers. Module 2B will examine the decision-making of key groups and individuals within the government in Wales, including the First Minister and other Welsh Ministers. Module 2C will examine the decision-making of key groups and individuals within the government in Northern Ireland, including the First Minister, deputy First Minister and other Ministers. The announcement is available here.
On 20 October 2022, the Independent Inquiry into Child Sexual Abuse published its final report. The report makes a wide range of recommendations to central and local government, the devolved governments, police forces, churches and religious associations, educational settings and Parliament. These include requiring police forces and local authorities in England and in Wales to collect data on all cases of known or suspected child sexual exploitation, including separating this data from other data sets and disaggregating the data according to the sex, ethnicity and disability of both the victim and perpetrator. Another recommendation is that the Home Office should coordinate the development of a national plan of action addressing child sexual abuse and exploitation overseas by UK nationals and residents of England and Wales, involving input from all lead governmental agencies in the field. Moreover, the Inquiry recommended that the UK government should introduce legislation to: change the definition of full-time education and to bring any setting that is a child’s primary place of education within the scope of the definition of a registered educational setting and provide Ofsted with sufficient powers to examine the quality of child protection when it undertakes inspections of unregistered institutions. Perhaps most importantly, the Inquiry recommended that the UK government should introduce legislation which places certain individuals – “mandated reporters” – under a statutory duty to report child sexual abuse where they: receive a disclosure of child sexual abuse from a child or perpetrator; witness a child being sexually abused; or observe recognised indicators of child sexual abuse. The following persons should be designated “mandated reporters”: any person working in regulated activity in relation to children under the Safeguarding and Vulnerable Groups Act 2006; any person working in a position of trust as defined by the Sexual Offences Act 2003; and police officers. The report is available here.
On 6 October 2022, Sir Adrian Fulford retired as Lord Justice of Appeal. First appointed as a Recorded in 1995, a High Court judge in 2002, and to the Court of Appeal of England and Wales in 2013, Sir Adrian was the first openly gay judge in the UK. The retirement notice is available here.
On 18 October 2022, the Lord Chief Justice of England and Wales and the Senior President of Tribunals announced the launch of a new website for the judiciary, available at judiciary.uk. The new design incorporates features which are intended to publicise and support the work done by the judiciary, including in schools and local communities. There are also new educational resources, including a rule of law animation. Lord Burnett of Maldon and Sir Keith Lindblom’s statement is available here.
On 24 October 2022, the High Court have judgment in R (Rhieni Dros Addysg Gymraeg (Parents for Welsh-Medium Education)) v Neath Port Talbot County Borough Council  EWHC 2674 (Admin). The case concerned the Council’s proposals to replace three English-medium primary schools with one larger English-medium primary school, without including an assessment of the impact of the proposal on the Welsh language (a Welsh Language Impact Assessment – WLIA) in the prior consultation exercise. In Wales, changes in the provision of public education are governed by the School Standards and Organisation (Wales) Act 2013, Part 3, including section 38 which requires Welsh Ministers to issue a School Organisation Code that must then be followed by local authorities, school governing bodies, and others, in connection with proposals for change, when exercising their functions. When making proposals for establishing a new school, a local authority must consult on its proposals in accordance with the Code before publishing them. Section 1 of the Code requires that: “Where proposals affect schools where Welsh is the medium of instruction (for subjects other than Welsh) for some or all of the time, local authorities should carry out a Welsh Language Impact Assessment.” Under para 3.4 of the Code, the required consultation document must include certain listed details for schools “likely to be affected by the proposals”.
Giving judgment, Kerr J began by concluding that interpretation of the provisions of the Code is a matter for the Court, that the Code is given statutory force but is not itself a statute, and that the Code is intended to be operated by educational professionals as opposed to lawyers and must therefore be construed in a common-sense manner rather than unduly legalistically. Kerr J then considered that the word “involved” in the Code refers to schools directly the subject of the proposals in question (e.g., schools that would close) whereas “affected” is a broader term. Drawing on R (Driver) v Rhondda Cynon Taf County Borough Council  EWCA Civ 1759, the factors to be taken into account in determining whether a school is “affected” include the effect on existing pupils, the availability of places to meet demand for Welsh medium primary education, and the likely impact on parental choice (in the current context, potentially choosing to send children to a new comparatively well-resourced English-medium “super school” when they might otherwise have chosen Welsh medium education). Kerr J concluded that relevant Welsh-medium schools in the area would be “affected” by the proposal because they may undergo a material change due to the proposal, with it being enough that there is a “real possibility that the school may undergo a material change” (paras 109-110). He concluded that the Council had erroneously adopted a higher test, namely the likelihood or strong likelihood that local Welsh-medium schools would lose pupils. As such he found that the Council had misdirected itself in law when interpreting and applying the Code. He also rejected the Council’s argument under section 31(2A) of the Senior Courts Act 1981, that it was highly likely that the outcome would not have been substantially different had the conduct complained of not occurred. The conduct complained of was the omission to include a WLIA in the consultation, though a WLIA was later completed. Kerr J noted that the relevant “outcome” is not confined to the decision under challenge, but also includes the wider outcome of what actually happens in the aftermath of that decision, and in this case the Council had changed political leadership, with the new administration undertaking to reconsider whether or not to implement the proposals. At the time of giving judgment neither the Court, the defendant Council, nor anyone else, knew what the wider outcome would be. The judgment can be found here.
Parliament was in summer recess for the period 21 July to 5 September 2022.
On 8 September 2022, the Ministry of Justice published its response to the Justice Committee’s report on use of the criminal law during the Covid-19 pandemic. Overall, the government’s response insisted that: “Legal changes have only been used when necessary, with proportionate action being taken to help achieve the Government’s strategic objectives in respect of the public health context at the time.” The government’s response accepted some of the Committee’s recommendations: “The Ministry of Justice agrees to the recommendation from the report that there should be consultation with the Ministry of Justice as a matter of course when departments are considering whether to amend or create new offences or penalties.” However, the response did not make any specific commitments about the parliamentary scrutiny of delegated legislation: “Though being made at pace, all statutory instruments brought forward in response to the pandemic have remained subject to parliamentary scrutiny and approval as set out in the terms of the parent Act. The creation of these powers and their terms would themselves have been scrutinised and debated in Parliament during the passage of the parent Act, informed by the work of the Delegated Powers and Regulatory Reform Committee and the departmental Delegated Powers Memorandum which sets out the proposed delegated powers in the bill, justification of their inclusion, the choice of procedure and justification for that choice.” The government also rejected a recommendation that there should be a specific section in explanatory memoranda for statutory instruments detailing new criminal offences created: “The Government considers that including a specific heading in the explanatory memorandum for new criminal offences created by a statutory instrument is disproportionate. It is important that the explanatory memorandum is kept as concise as possible, and the introduction of further headings are likely to lead to the document becoming unmanageably complex.” The full response is available here.
On 28 September 2022, the Justice Committee published a report on indefinite sentences for public protection (IPP). The Committee concludes that the Ministry of Justice’s action plan for reducing the size of the IPP population lacks clear strategic priorities, as well as operational detail and performance measures. The report outlines the various challenges prisoners face to progression to release, including access to mental health services and the availability of course places. Further, the report concludes that the parole process is ineffective and poses a significant barrier to progress for IPP offenders. In its recommendations, the report concludes that the only way adequately to resolve the problems caused by IPP sentences is a statutory resentencing exercise in respect of prisoners still serving an IPP sentence. This resentencing must be guided by three key principles: (1) balancing protection of the public with justice for the individual offender; (2) recognising and protecting the independence of the judiciary; and (3) ensuring that no harsher sentence is imposed retrospectively. The report is available here.
On 30 September 2022, the Justice Committee published a report on the Draft Victims Bill. The Committee concludes that the Bill does no more for victims of crime than existing legislation. Moreover, the Bill includes overarching principles that are weaker than those consulted on, and which do little to improve public bodies’ compliance with the Victims’ Code. According to the Committee, the Bill further retains the onus on the victim to claim rights that they are often unaware of, rather than requiring public bodies to deliver them proactively. The report is available here.
On 12 October 2022, the Public Accounts Committee published a report on the challenges faced by domestic regulators following the UK’s withdrawal from the EU. The report concludes that: “Over time, regulatory divergence between the EU and UK and within the UK internal market may make regulation less efficient and more costly for regulators, consumers and businesses if, for example, divergence creates barriers to trade or increases regulatory complexity. Equally, there are opportunities from adopting more agile regulator approaches outside of the EU that could deliver benefits in driving innovation and growth.” The report is available here.
On 13 October 2022, the Joint Committee on Human Rights opened an inquiry into the Draft State Immunity Act 1978 (Remedial) Order 2022. This is a Remedial Order under section 10 of the Human Rights Act 1998 which responds to the judgment of the UK Supreme Court in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs  UKSC 62, where the Court made a declaration of incompatibility in respect of sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978. These provisions prevent the UK courts from exercising jurisdiction in respect of certain proceedings brought against foreign countries in connection with employment disputes. To the extent that they go further than the requirements of customary international law, the UK Supreme Court concluded that the provisions are disproportionate interferences with article 6 ECHR. Section 4(2)(b) was additionally found to be incompatible with article 14 ECHR on the basis of unjustified discrimination on the grounds of nationality. The inquiry ran until 4 November and is available here.
On 18 October 2022, the International Agreements Committee published a report into the Memorandum of Understanding between the UK and Rwanda for an asylum partnership agreement. This is the agreement between the UK and Rwanda which permits the UK to remove some asylum seekers to Rwanda for the processing of their asylum applications. The Committee criticises the government for using a Memorandum of Understanding, which are not binding in international or domestic law, to implement this agreement on the basis that “[a]greements that fundamentally affect individuals’ rights should be entered into through a formal treaty, so that the rights of those affected can be fully protected…” and “In choosing to conclude the agreement as an MoU, the UK Government has also avoided any meaningful parliamentary scrutiny. Unlike treaties, MoUs do not have to be laid before Parliament for a 21-day scrutiny period, and can enter into effect immediately after signature.” The report is available here.
On 18 October 2022, the House of Commons considered the Public Order Bill at committee stage and third reading. The Bill contains provisions related to the regulation of disruptive protests. The House of Commons Hansard is available here.
On 18 October 2022, the House of Commons approved a motion by the Leader of the House of Commons to create an appellate process against decisions of the Committee on Standards. Appeals would be heard by the Independent Expert Panel which already hears appeals related to the Independent Complaints and Grievance Scheme, which is a Scheme permitting victims of bullying, harassment and sexual misconduct by MPs to complain. The House of Commons Hansard is available here.
On 19 October 2022, the Joint Committee on Human Rights published a report on the government’s National Security Bill, which is designed to modernise espionage offences, in particular replacing those within the Official Secrets Acts of 1911, 1920 and 1939. The Committee concludes that, while the Bill’s provisions are overall positive and are broadly in line with recommendations of the Law Commission’s recent review, there are risks that some of the provisions draw offences too widely and could criminalise behaviour that does not constitute a threat to national security. According to the Committee, some of the proposed offences would interfere unnecessarily and disproportionately with human rights to freedom of expression and association and the right to protest and may have a disproportionate impact on certain racial communities, particularly if new police powers are not exercised with restraint. The Committee further recommends that more thought be given to how the legislation will affect whistle-blowers, protesters and journalists who are engaged in activities which are part of a healthy, functioning democratic system. The report is available here.
On 20 October 2022, the Joint Committee on Human Rights opened an inquiry into the Draft Bereavement Benefits (Remedial) Order 2022. This Remedial Order under s.10 of the Human Rights Act 1998 responds to the UK Supreme Court’s judgment In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48 and the Administrative Court’s judgment in R (Jackson) v Secretary of State for Work and Pensions  EWHC 183 (Admin). These cases related to discrimination against women in the provision of Widowed Parent’s Allowance (WPA) and Bereavement Support Payment (BSP) respectively, which was determined to be a violation of article 8 taken with article 14 ECHR. The inquiry ran until 11 November and is available here.
On 20 October 2022, the Public Administration and Constitutional Affairs Committee published a report into the work of the Electoral Commission. The Committee expressed its belief that the Commission plays a fundamental role in overseeing free and fair elections and referendums in the UK and in regulating political finance so that politics enjoys public confidence and is free from corruption. However, the Committee expressed its concern that the Electoral Commission can find it difficult to support electoral administrators, political parties, campaigners, and voters to understand and navigate the increasing complexity of electoral law and levels of divergence in electoral policy across the United Kingdom. In particular, the Commission will in a very limited period of time have to produce guidance and monitor the implementation of new requirements for voters to produce ID in UK parliamentary elections. Furthermore, the Committee remains concerned by the government’s new ability to set the strategic direction of the Electoral Commission through issuing a Strategy and Policy Statement, as set out in the Elections Act 2022. According to the Committee, this significantly alters the Electoral Commission’s relationship with government as an independent body. However, the Committee welcomed the three-month statutory consultation period for the draft Statement and that the Statement will be subject to the super-affirmative parliamentary procedure, whereby a Minister submits a proposal for a statutory instrument to Parliament before it is formally laid. The report is available here.
On 21 October 2022, the Public Administration and Constitutional Affairs Committee opened an inquiry into the government’s estates and property strategy. The inquiry will examine the impact of the government’s “Levelling Up” commitment to build a larger presence in the regions and nations by moving 22,000 Civil Service jobs out of London by 2030. The Committee will scrutinise the impact of the closure of smaller offices and opening of large regional hubs on civil servants, local communities, and economic regeneration. The inquiry is available here.
On 21 October 2022, the Public Accounts Committee published a report on the use of electronic monitoring services – normally known as “tagging” – by HM Prison and Probation Service. The Committee concludes that tagging programmes have wasted £98 million of taxpayers’ money since their inception. Moreover, the Committee concludes that it is unacceptable that, despite its previous recommendations, the Ministry of Justice still does not have sufficient data to understand the outcomes of tagging and that police forces and the Probation Service continue to lack timely access to the high-quality data they need to monitor offenders and keep the public safe. Ultimately, the report concludes that the Ministry of Justice still does not know what works and for who and whether tagging reduces reoffending. The report is available here.
On 24 October 2022, the Financial Secretary to the Treasury presented for the approval of the House of Commons Out-of-Turn Supplementary Estimates 2022-23 for the Department for Business, Energy and Industrial Strategy and HM Treasury. This amounted to requesting an additional £60,176,000,000 for the Department for Business and £60,176,000,000 for the Treasury to fund the cost of the government’s policy on subsidising energy bill payments during the cost of living crisis. The House of Commons Hansard for the debate can be found here.
On 25 October 2022, the House of Commons considered the Retained EU Law (Revocation and Reform) Bill at second reading. The Hansard for the House of Commons debate is available here.
On 25 October, 31 October, 2 November and 7 November 2022, the House of Lords considered the Northern Ireland Protocol Bill at committee stage. The consideration is available here.
On 27 October 2022, the International Trade Committee published a report on the parliamentary scrutiny of free trade agreements, concluding: “We consider the statutory provisions for parliamentary scrutiny to be insufficient and that the additional commitments the Government has made do not go far enough or have enough force.” The Committee recommends that “the Government systematically considers how other parliamentary democracies undertake scrutiny, to identify potential improvements to the current UK process. We further ask the Government to consider in its review how it engages with Parliament and its committees specifically, including how it can involve and sight us more closely on details before and during negotiations.” The report is available here.
On 31 October, 2 November and 14 November, the House of Lords considered the Higher Education (Freedom of Speech) Bill at committee stage. Further information is available here.
Police and prosecution agencies
On 11 August 2022, HM Inspectorate of Constabulary and Fire and Rescue Services published a report into the police’s response to burglary, theft and other acquisitive offences. Inspectors found that: forces are missing opportunities to identify and catch offenders, from the moment a member of the public reports the crime to the point where a case is finalised; police are not doing all they can to help victims when they report crimes – indeed, in 71 per cent of the burglary reports examined, police personnel did not give victims any advice on crime-scene preservation during the initial call; forces lack investigative capacity and capability to effectively tackle burglary, robbery and theft, often because of the national detective shortage and inexperience; and investigations are not being appropriately or thoroughly supervised, with a third of cases examined having insufficient evidence of proper supervision. The report is available here.
On 2 September 2022, HM Inspectorate of Constabulary and Fire and Rescue Services published the terms of reference for its inspection into how effectively the criminal justice system meets the needs of victims of crime. This is a joint inspection with HM Crown Prosecution Service Inspectorate and HM Inspectorate of Probation. The inspection will assess the quality of communication and support for victims of crime at every stage of the criminal justice process and will assess how effectively criminal justice agencies work together to meet the needs of victims. The inspection is expected to be published in the summer of 2023 and the terms of reference are available here.
On 22 September 2022, HM Inspectorate of Constabulary and Fire and Rescue Services published a report into the performance of the Metropolitan Police. The report graded the Metropolitan Police’s performance across nine areas and found the force was “good” in one area, “adequate” in two areas, “requires improvement” in five areas, and “inadequate” in one area. The Metropolitan Police’s poorest outcome was in responding to the public. HMICFRS said the areas requiring improvement are investigating crime; protecting vulnerable people; managing offenders; developing a positive workplace; and good use of resources. The report is available here.
Prisoners and mental health detainees
On 21 September 2022, HM Inspectorate of Prisons published a report into outcomes for girls in custody. In all settings, the Inspector concluded that frontline staff did their best to care for very vulnerable girls and every girl assessed in the sample commented positively about the staff looking after them. The Inspector also found good partnership work between health, education and care staff that aimed to meet the needs of girls. However, there were some concerning outcomes for girls in the area of safety; they were, for example, 12 times more likely than boys to self-harm and more likely to be restrained, often in response to self-harm. Moreover, preparation for release was undermined by a lack of support in the community. In the Inspector’s case sample, three of the seven girls who had left custody in 2021 were in the community and all faced difficulties accessing their accommodation, education or health care support. The report is available here.
On 13 October 2022, HM Inspectorate of Prisons published an inspection report into the experience of immigration detainees in prisons. The principal finding is that immigration detainees held in prisons are substantially disadvantaged in terms of legal safeguards and welfare when compared with those in immigration removal centres and that the impact of detention on their wellbeing was considerable. Moreover, the report concludes that the progression of detainees’ immigration cases was not adequate in too many of the cases reviewed, which meant that people were subject to avoidable periods of lengthy immigration detention. This, combined with a lack of meaningful information from the Home Office regarding their case progression, led to frustration and feelings of helplessness in detainees. Slow case progression within the immigration system in general, and the restrictions on face-to-face contact during the pandemic, compounded this problem. The report is available here.
On 7 September 2022, the High Court gave judgment in R (Jwanczuk) v Secretary of State for Work and Pensions  EWHC 2298 (Admin). The case concerned whether it is lawful to deny a Bereavement Support Payment (BSP) to the claimant husband of a deceased wife where the wife did not in her lifetime pay any national insurance contributions (NICs) because her severe disabilities prevented her from working. Sections 30 and 31 of the Pensions Act 2014 provide for payment of BSP and conditions for entitlement to it. One condition is that the deceased spouse must have “actually paid” class 1 or class 2 NICs giving rise to an earnings factor, or total earnings factors, equal to or greater than 25 times the lower earnings limit for the tax year. Giving judgment, Kerr J reached the same conclusion as the Northern Ireland Court of Appeal in O’Donnell v Department for Communities  NICA 36, which related to materially identical secondary legislation (the Pensions Act (Northern Ireland) 2015 (PANI)). This was that the qualifying condition, which requires the deceased spouse of any claimant to have actually paid NICs, violates article 14 ECHR, read with article 1 of protocol 1 ECHR because the result is to deny BSP to a person whose deceased spouse was unable to work and therefore unable to pay NICs throughout their working life due to disability. Kerr J also discussed that neither side contended that the High Court of England and Wales is bound by authority to O’Donnell as if it were a decision of the Court of Appeal of England and Wales, nor did either party seek to dispute that decisions of the NICA are entitled to the utmost respect. Kerr J did, however, note what he referred to as trenchantly expressed forensic differences between the parties. Namely, that the Applicant’s submission was tantamount to arguing that a decision of the NICA only be departed from in the same narrow circumstances as a decision of the Court of Appeal, whereas the Defendant Secretary of State argued that the decision be treated like any other merely persuasive authority. Kerr J had considered various authorities on the desirability of observing comity between the UK’s legal jurisdictions, and the so-called “principle of parity” particularly within areas of law such as social security. He stressed that human rights should, if possible, have the same content throughout the UK, and that if O’Donnell is not distinguishable, he would not depart from it unless persuaded it was clearly wrong. He also concluded that the PANI’s status as subordinate legislation did not make any difference. The exercise of the interpretive obligation under section 3 of the Human Rights Act 1998 is available in the case of both primary and secondary legislation, and that any difference in the appropriate degree of deference to the legislature is theoretical rather than real because the PANI is an Act of the elected legislature of Northern Ireland. However, the Secretary of State has been granted Permission to Appeal the High Court’s decision. The High Court’s judgment can be found here.
On 23 September 2002, the High Court gave judgment in R (Timson) v Secretary of State for Work and Pensions  EWHC 2392. The case concerned written guidance under the Social Security (Claims and Payments) Regulations 1987 providing for the deduction of certain liabilities that are owed by a claimant, before the benefits are paid to them. This arrangement applies to certain types of “legacy” benefits, but not to Universal Credit. The Claimant challenged the lawfulness of the Secretary of State’s written guidance to officials responsible for deciding whether it is in a benefit claimant’s interests to have deductions made from their subsistence benefit to pay sums owed to utility companies; deductions are referred to as Third Party Deductions (TPDs). The Claimant contended that the Defendant’s policy approach to TPDs in respect of fuel and water debts, as set out in written guidance, generates unlawful decisions. The High Court held the Defendant’s guidance unlawful on two grounds. First, because it directs a decision maker that the question of whether a claimant consents to a TPD is not a relevant consideration or material factor when the claimant’s wishes are in fact an important and often determinative consideration. Second, decision makers are misdirected by the implication that they do not have an obligation to seek information and representations from the claimant before making a decision about the imposition of TPD. Cavanagh J concluded that this failure to notify the claimant an opportunity to give information and make representations breaches the “obligation of fairness” (para 213) referring to principles of fairness summarised by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody  1 AC 531. The Court rejected a further ground that the TPD scheme breached the Claimant’s ECHR article 1 protocol 1 right to property; despite its flaws, it cannot be said that the scheme or its operation in practice, fails to strike a fair balance between the protection of an individual’s rights and the community interests, when applying the “manifestly without reasonable foundation” test. The judgment 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