Legislation

The government launched what it claims will be the cornerstone of its New Plan for Immigration, “delivering the most comprehensive reform in decades to fix the broken asylum system”. One of the ways in which its factsheet says the system is broken is that “the number of people with no right to be here being removed has been steadily declining for several years due to legal challenges”. As a result, they say, “there are now over 10,000 Foreign National Offenders circulating on the streets, posing a risk to the public” — but that appears to suggest that a person poses a risk simply by virtue of breaking the law to get here, and losing their asylum appeal, which can’t be right. (Leave aside that what might be broken is actually a justice system not designed to deal with rushed, last-minute challenges to botched, last-minute deportations…)

According to the UK Human Rights Blog, the Nationality and Borders Bill

“seeks to further differentiate between migrants who enter the UK illegally and those who do not. Significant changes introduced by the new legislation are the increase of the maximum sentence for illegal entry from six months to twelve, introduced at clause 37, and the removal of protections for migrants who are escorted to the UK by the Border Force, who currently technically enter the country legally. The Bill will require that migrants have prior authorisation to enter the country to avoid entering illegally.”

The blog wonders how this will work alongside recently published CPS guidance under which they will no longer prosecute migrants uninvolved in any criminal activity other than illegal entry to the UK.

Then there is clause 38 which, says immigration barrister Colin Yeo in a Twitter Thread, appears to criminalise rescue of asylum seekers at sea.

Another concerning provision is clause 23, which appears to create (and not merely reiterate) a rule minimising the probative value to a claimant’s case of any late-produced evidence, as BarristerBlogger Matthew Scott points out in The evil lurking in clause 23 of the Nationality and Borders Bill.

However the Bill has a number of other aims, including changing how nationality can be assessed via parentage etc to address historic anomalies. Setting out his first impressions of the Bill, Colin Yeo on the Free Movement blog says:

1. A lot of it is already law so it isn’t actually very new at all.

2. The bits that are new are likely to lead to a lot of uncertainty and litigation, which is good for lawyers but bad for refugees and the public purse.

3. There is some genuine nastiness included.

4. The Bill will only worsen the problems with the United Kingdom’s current asylum system.

There are several other posts on the Bill on the Free Movement blog:

Finally, asks CJ McKinney, Whatever happened to the New Plan for Immigration “consultation”? — that was supposed to have informed the drafting of the Bill.

According to the government’s announcement, the Building Safety Bill “will create lasting generational change and set out a clear pathway for the future on how residential buildings should be constructed and maintained”. A new Building Safety Regulator will oversee a new safety regime for high-rise residential homes, and will be responsible for ensuring that any safety risks in high rise residential buildings of 18m and above are effectively managed and resolved, taking cost into account. It will simplify the existing system to ensure high standards are continuously met, with a ‘golden thread’ of information created, stored and updated throughout the building’s lifecycle, establishing clear obligations on owners and enabling swift action to be taken by the regulator, wherever necessary.

This builds on the government’s commitment to fully fund the cost of replacing unsafe cladding for all leaseholders in residential buildings 18 metres and over in England, with an unprecedented £5 billion investment in building safety. This is alongside the introduction of a new levy and a tax to ensure that industry pays its fair share towards the costs of cladding remediation.

Developers will also be required to join and remain members of the New Homes Ombudsman scheme, which will require them to provide redress to a homebuyer, including through the awarding of compensation.

Further explanation can be found in a recent post on the Nearly Legal blog: The Building Safety Bill

The Government announced on 5 July that it was providing More support for victims of domestic abuse at risk of homelessness. In practice what this meant was that it was bringing into force section 78 of the Domestic Abuse Act 2021, which received the Royal Assent on 29 April 2021. According to the government’s announcement

“Previously, victims had to be assessed as being ‘vulnerable’ as a result of domestic abuse to be identified as having a priority need. Under the new legislation, domestic abuse will be a standalone reason to qualify as needing this support.”

There is a handy explainer on the Nearly Legal blog: Domestic Abuse and Priority Need

The era of successive rule-changes and iterative regulations governing the stages and severity of lockdown may be coming to an end, following recent government announcements on travel and social distancing and a general abandonment of any pretense of ministerial example. Practical enforcement of lockdown rules seems to have largely evaporated. (This was particularly noticeable on Sunday when roaringly drunken male revellers roamed the city in search of not very private places to urinate or throw up in anticipation of witnessing a match victory that was ultimately denied, without much of the sort of heavy handed policing that a silent women’s vigil or a perceived threat of damage to an imperial statue would have attracted. Or so it felt.)

For a useful update on the lockdown, see Law & Religion UK: COVID-19 legislation and guidance: update to 10 July

(See also the item below on Public Order.)

Immigration

The Home Office’s EU Settlement Scheme (EUSS) allows EU, EEA and Swiss citizens and family members who were resident in the UK under EU free movement law before 1 January 2021 to apply for and obtain UK immigration status. The deadline for applications was 30 June 2021. However, that does not necessarily mean people cannot still apply, and many applications already made remain undecided.

In fact the scheme has been far more popular than expected, mainly because the government data on the numbers involved drastically underestimated the number of EU citizens present in the country at the relevant time. In all, more than six million applications were made to the EU Settlement Scheme before the 30 June deadline, marking an astonishing success in protecting the rights of EU citizens in the UK.

The statistics released last week show there were 6.02 million applications made to the scheme by 30 June with 5.1 million grants of status. There have been more than 5.3 million applications from England, 291,200 from Scotland, 98,600 from Wales, and 98,400 from Northern Ireland.

The surge in applications, including more than 400,000 in June alone, means that there are around 570,000 pending applications. The Government has repeatedly assured those who applied before the deadline that they will have their rights protected until their application is decided, as set out in law, and they have the means to prove their protected rights if needed.

For more information, see

The UK Supreme Court is currently hearing an appeal on whether Britons should be allowed to state a gender other than male or female on their passports. The Court of Appeal held that while article 8 of the Human Rights Convention was engaged, the right to respect for private life did not encompass a positive obligation on the part of the state to permit the claimant to apply for and be issued with a passport with an “X” marker signifying an unspecified gender in the “sex” field: R (Elan-Cane) v Secretary of State for the Home Department (Human Rights Watch intervening) [2020] EWCA Civ 363; [2020] QB 929.

Meanwhile, in the United States, the State Department has announced that it

“will be updating our procedures to allow applicants to self-select their gender as “M” or “F” and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents. The Department has begun moving towards adding a gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or CRBA.”

See also: NPR, The U.S. Will Add A 3rd Gender Option On Passports

Data protection

At the end of June the EU Commission adopted two adequacy decisions for the United Kingdom — one under the General Data Protection Regulation (GDPR) and the other for the Law Enforcement Directive. Personal data can now flow freely from the European Union to the United Kingdom where it benefits from an essentially equivalent level of protection to that guaranteed under EU law. According to the Commission’s announcement, the adequacy decisions also facilitate the correct implementation of the EU-UK Trade and Cooperation Agreement, which foresees the exchange of personal information, for example for cooperation on judicial matters. Both adequacy decisions include strong safeguards in case of future divergence such as a ‘sunset clause’, which limits the duration of adequacy to four years. The announcement was welcomed by the UK’s Information Commissioner.

See also: Jon Baines, Mishcon de Reya: GDPR “Adequacy” status conferred on UK

However, the government’s recent Taskforce on Innovation, Growth and Regulatory Reform (TIGRR) independent report recommends, in Headline Proposal 7,

“Replacing the UK General Data Protection Regulation 2018 with a new, more proportionate, UK framework of citizen data rights to give people greater control of their data while allowing data to flow more freely and drive growth across healthcare, public services and the digital economy.”

An example of that vision, one could say, is the current proposal to collate and to harvest the research and development potential of patient health data, which we covered in Weekly Notes, 28 June 2021. (See also Headline Proposal 12 of the TIGRR report, on establishing a “clear regulatory pathway for new digital health technology…”)

Courts

Somewhat mixed bag according to the latest HMCTS weekly operational update for week commencing Monday 5 July 2021:

  • Updated: The national rollout of the Common Platform criminal case management system continues. During the week commencing Monday 5 July 2021, it is scheduled to go live in 9 more courts in London and the South East. The system is now in use in 79 courts (25 Crown Courts and 54 magistrates’ courts) — 35% of the total number of criminal courts in England and Wales.
  • Updated: Common Platform accounts that had been inactive for 90 days were deregistered last weekend which was the correct procedure, and in line with our security policy. Due to a technical error, users did not receive advanced warning of this, which would have asked them to log into their account to prevent deactivation, as they should have done. We are sorry for any inconvenience this has caused. Anyone who receives an email saying that their Common Platform account has been deactivated can reinstate it by emailing CJSCP-DefenceServiceDesk@hmcts.net with their full name and email address. Thank you for your patience while we identified and fixed the problem. (Emphasis added)

Legal advice

The government has made two announcements about help for those in need of legal advice who can’t afford to pay for it. First, under the heading “Legal lifeline for people in need” it announced that

“an additional £2 million is being invested in the Community Justice Fund (CJF), which supports more than 70 not-for-profit organisations providing legal help to those who have lost their job, been caught in rent arrears, or built up debt as a result of Covid-19.”

The CJF is a joint initiative between leading social justice organisations including Advice UK, Law Centres Network, Citizens Advice, the AB Charitable Trust, Indigo Trust, and Paul Hamlyn Foundation. The new funding will be allocated over the next 12 months, providing timely support for the sector which has seen demand for its services increase over the pandemic.

Secondly, for those whose situation has required them to go to court, it announced under the heading “Regional and local support for those representing themselves in court underway in England and Wales” that the Ministry of Justice’s £3.1 million Legal Support for Litigants in Person grant has set up 8 area-based partnerships.

“The Legal Support for Litigants in Person (LSLIP) grant is fully underway, funding 11 projects across more than 50 organisations at local, regional and national levels to help people to identify issues as early as possible, to prevent them from getting worse, and to support people where they do need to attend court.”

Although we have always had self-represented litigants, sometimes from choice, more often from desperation, the fact is that the legal system is not really any better designed for them than hospital operating theatres for self-operating patients. Closing local courts and offering online filing and hearings via CE-file and CVP does not seem to have made the system any more user-friendly. Most, like the users of food banks, would rather not resort to the courts if they could avoid it, and would prefer to have a lawyer to help them, just as they would prefer to have real money in a real bank, than a box of donated groceries. But, thanks to a combination of austerity, Brexit and coronavirus, “we are where we are”, as the somewhat idiotic saying goes. It might have been simpler if the government had not so severely cut off legal aid in the first place.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

CHILDREN — Inherent jurisdiction — Medical treatment: Manchester University NHS Foundation Trust v Fixsler, 09 Jul 2021 [2021] EWCA Civ 1018; [2021] WLR(D) 380, CA

COSTS — Fixed costs — Low value personal injury claim: West (Executor of the Estate of Kenneth Morriss (decd)) v Burton, 08 Jul 2021 [2021] WLR(D) 379; [2021] EWCA Civ 1005, CA

DEFAMATION — Practice — Preliminary issues: Bindel v PinkNews Media Group Ltd, 07 Jul 2021 [2021] EWHC 1868 (QB); [2021] WLR(D) 377, QBD

EVIDENCE — Witness statements — Admissibility: MAD Atelier International BV v Manès, 08 Jul 2021 [2021] EWHC 1899 (Comm); [2021] WLR(D) 378, QBD

FISHERY — Illegal, unreported and unregulated fishing — Enforcement: John West Foods Ltd v Marine Management Organisation, 02 Jul 2021 [2021] EWHC 1763 (QB); [2021] WLR(D) 371, QBD

INJUNCTION — Freezing order — Application: AA v BB, 07 Jul 2021 [2021] EWCA Civ 1017; [2021] WLR(D) 376, CA

MARRIAGE — Financial provision — Dismissal of claim: Hasan v Ul-Hasan, decd, 02 Jul 2021 [2021] EWHC 1791 (Fam); [2021] WLR(D) 370, Fam D

PLANNING — Development — Community infrastructure levy: R (Gardiner) v Hertsmere Borough Council, 06 Jul 2021 [2021] EWHC 1875 (Admin); [2021] WLR(D) 374, QBD

PRISONS — Prisoner’s rights — Transgender prisoners: R (FDJ) v Secretary of State for Justice, 02 Jul 2021 [2021] EWHC 1746 (Admin); [2021] WLR(D) 367, DC

TRIBUNAL — Upper Tribunal — Practice and procedure: R (KA) v Secretary of State for the Home Department, 09 Jul 2021 [2021] EWCA Civ 1040; [2021] WLR(D) 381, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

Inforrm’s blog: Case Law: Vardy v Rooney, Wagatha Christie: Court rules on strike out and summary judgment application: Vardy v Rooney [2021] EWHC 1888 (QB), QBD

Nearly Legal: Doors, fixtures and demises: Fivaz v Marlborough Knightsbridge Management Ltd [2021] EWCA Civ 989, CA

UK Supreme Court Blog: New Judgment: General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22: General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22; [2021] 3 WLR 231

UK Human Rights Blog: Social Worker awarded damages in Strasbourg for unfair accusations of professional misconduct: SW v. United Kingdom (Appn no 87/18), ECtHR

UK Supreme Court Blog: New Judgment: R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions and Ors [2021] UKSC 26: R (C) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2021] UKSC 26, SC(E)

RPC Perspectives: Hargreaves — Burden of proof on HMRC in taxpayer information notice appeals: Hargreaves v Revenue & Customs Comrs [2021] UKFTT 80 (TC), FTT (TC)

UK Supreme Court Blog: New Judgment: R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28: R (B) v Secretary of State for Justice [2021] UKSC 28, SC(E)

Free Movement: Parts of Home Office policy on Dublin III family reunion declared unlawful: R (Safe Passage International) v Secretary of State for the Home Depart [2021] EWHC 1821 (Admin); [2021] WLR(D) 372, DC

Free Movement: Court orders asylum seeker brought back to UK after screening interview failures: AA (Sudan) v Secretary of State for the Home Department [2021] EWHC 1869 (Admin), QBD

Nearly Legal: Intentional homelessness, affordability and allowances: Patel v Hackney London Borough Council [2021] EWCA Civ 897, CA

Transparency Project: The Lachaux libel case returns with an expensive result for the publishers: Lachaux v Independent Print Ltd (1) Evening Standard Ltd (2) [2021] EWHC 1797 (QB), QBD (Nicklin J)

Other recent publications

The ODI has responded to the UK government’s restoring trust in audit and corporate governance consultation, launched by the Department of Business, Energy and Industrial Strategy (BEIS). The government’s white paper proposed wide-ranging reforms to modernise the country’s audit and corporate governance regime, targeting the UK’s biggest businesses and ensuring markets work effectively. But the ODI thinks it does not go far enough, in terms of how it deals with data. Its response takes the form of an open letter.

ICO blog: Improving mobile phone data extraction practices across the criminal justice system in the UK. Elizabeth Denham, UK Information Commissioner, provides an update on implementation of recommendations in last year’s Mobile phone data extraction report.

“The Attorney General has revised his guidelines on disclosure, stressing the message that it is not always necessary to obtain digital materials. And the College of Policing has issued operational guidance to police in England and Wales, emphasising the need to consider alternatives to the examination of mobile phones and to extract only the minimum amount of data strictly necessary.”

This is a good start, says the commissioner, but “a more strategic, coordinated approach is needed so that police and prosecutors understand and implement the required systemic changes”.

JUSTICE has responded to the Government’s statutory review of closed material procedure (CMP) under the Justice and Security Act 2013 (the JSA).

“CMP allows the state in litigation to disclose material which is sensitive to national security in closed procedures to the judge and a Special Advocate appointed to represent the other party’s interests, without having to disclose the material to the other party, the other party’s legal counsel or the public. The statutory review considers the functioning and impact of the CMP regime under the JSA.

In our response we highlight the inherently unfair nature of CMP and their inconsistency with the common law tradition of civil justice where proceedings are open, adversarial and equal. It is these principles that will be further compromised if the JSA is operating ineffectively or unfairly.”

Read their full response here.

In The Hancock affair: all about images, privacy, visuocentrism (via Inforrm’s blog), Thomas Bennett, Senior Lecturer at City Law School discusses further the privacy implications of the use of secretly obtained photographic and video evidence in exposing in the press the hypocrisy and breaches of guidelines of the former health minister, Matt Hancock MP. (The story was covered in Weekly Notes, 28 June 2021.)

In Probation milestone Jim Barton, Senior Responsible Owner of the Probation Reform Programme, marks the reunification of the probation service in a guest post on the Russell Webster blog.

(By way of context, the probation service was for some years divided up and part privatised, under an experiment foisted on it by former Lord Chancellor Chris Grayling, with from mixed to disastrous results.)

“Protest is an essential democratic and constitutional right. The police have a duty to ensure that this right is peacefully upheld by facilitating protests and only intervening proportionately and where necessary to protect people’s safety, public health and to prevent violence, disorder, or property damage. It is important that this is properly understood by citizens who want to exercise the right to protest and by the police responsible for its facilitation.”

The report of the independent Inquiry into police conduct at the Clapham Vigil and Bristol Protests and the implications for the Police Crime Sentencing and Courts Bill published by the All Party Parliamentary Group on Democracy and the Constitution has found a number of failings in the way the police dealt with protests, including a presumption of illegality, a failure to recognise and accommodate the right to protest, a failure to engage constructively with organisers, and a disproportionate use of force when the events appeared to get out of hand.

And finally…

from Oldie cartoonist Steve Jones recalls that the football was not the only recent adversarial sporting tournament, though Wimbledon was perhaps less controversial:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

 

Featured image: Photo by Belinda Fewings on Unsplash